Vol. 81 Friday, 

No. 161 August 19, 2016 

Part VI 

Department of Labor 

Employment and Training Administration 

20 CFR Parts 603, 651, 652, et al. 

Workforce Innovation and Opportunity Act; Final Rule 

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56072 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Parts 603, 651, 652, 653, 654, 

658, 675, 679, 680, 681, 682, 683, 684, 

685, 686, 687, and 688 

[Docket No. ETA–2015–0001] 

RIN 1205–AB73 

Workforce Innovation and Opportunity 

Act 

AGENCY: Employment and Training 

Administration (ETA), Labor. 

ACTION: Final rule. 

SUMMARY: The Department of Labor 

(DOL or the Department) issues this 

Final Rule to implement titles I and III 

of the Workforce Innovation and 

Opportunity Act (WIOA). Through these 

regulations, the Department reforms and 

modernizes our nation’s workforce 

development system. This rule provides 

the framework for changes for statewide 

and local workforce development 

systems to increase the employment, 

retention, earnings, and occupational 

skill attainment of U.S. workers, 

particularly those individuals with 

barriers to employment, so they can 

move into good jobs and careers and 

provide businesses with the skilled 

workforce needed to make the United 

States more competitive in the 21st 

Century global economy. 

DATES: This Final Rule is effective 

October 18, 2016. 

FOR FURTHER INFORMATION CONTACT: 

Adele Gagliardi, Administrator, Office 

of Policy Development and Research 

(OPDR), U.S. Department of Labor, 

Employment and Training 

Administration, 200 Constitution 

Avenue NW., Room N–5641, 

Washington, DC 20210, Telephone: 

(202) 693–3700 (voice) (this is not a tollfree number). If you use a 

telecommunications device for the deaf 

(TDD), call 1–800–326–2577. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of Major Provisions 

C. Costs and Benefits 

II. Acronyms and Abbreviations 

III. Rulemaking Authority and Background 

A. Workforce Innovation and Opportunity 

Act Principles 

B. Major Changes From the Workforce 

Investment Act of 1998 

C. Workforce Innovation and Opportunity 

Act Rulemaking Process 

D. Legal Basis 

IV. Public Comments Received on the Notice 

of Proposed Rulemaking 

V. Section-by-Section Discussion of the 

Public Comments and Final Regulations 

A. Part 603—Federal-State Unemployment 

Compensation Program 

B. Part 675—Introduction to the 

Regulations for the Workforce 

Development Systems Under Title I of 

the Workforce Innovation and Act 

C. Part 679—Statewide and Local 

Governance of the Workforce 

Development System Under Title I of the 

Workforce Innovation and Opportunity 

Act 

D. Part 680—Adult and Dislocated Worker 

Activities Under Title I of the Workforce 

Innovation and Opportunity Act 

E. Part 681—Youth Activities Under Title 

I of the Workforce Innovation and 

Opportunity Act 

F. Part 682—Statewide Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

G. Part 683—Administrative Provisions 

Under Title I of the Workforce 

Innovation and Opportunity Act 

H. Part 684—Indian and Native American 

Programs Under Title I of the Workforce 

Innovation and Opportunity Act 

I. Part 685—National Farmworker Jobs 

Program Under Title I of the Workforce 

Innovation and Opportunity Act 

J. Part 686—The Job Corps Under Title I of 

the Workforce Innovation and 

Opportunity Act 

K. Part 687—National Dislocated Worker 

Grants 

L. Part 688—Provisions Governing the 

YouthBuild Program 

M. Part 651—General Provisions Governing 

the Wagner-Peyser Act Employment 

Service 

N. Part 652—Establishment and 

Functioning of State Employment 

Service 

O. Part 653—Services of the Wagner-Peyser 

Act Employment Service 

P. Part 654—Special Responsibilities of the 

Employment Service 

Q. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

VI. Rulemaking Analyses and Notices 

A. Executive Orders 12866 and 13563: 

Regulatory Planning and Review 

B. Regulatory Flexibility Act 

C. Small Business Regulatory Enforcement 

Fairness Act of 1996 

D. Paperwork Reduction Act 

E. Executive Order 13132 (Federalism) 

F. Unfunded Mandates Reform Act of 1995 

G. Plain Language 

H. Assessment of Federal Regulations and 

Policies on Families 

I. Executive Order 13175 (Indian Tribal 

Governments) 

J. Executive Order 12630 (Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights) 

K. Executive Order 12988 (Civil Justice 

Reform) 

L. Executive Order 13211 (Energy Supply) 

I. Executive Summary 

A. Purpose of the Regulatory Action 

On July 22, 2014, President Obama 

signed the Workforce Innovation and 

Opportunity Act (WIOA) (Pub. L. 113– 

128), comprehensive legislation that 

reforms and modernizes the public 

workforce system. WIOA reaffirms the 

role of the public workforce system, and 

brings together and enhances several 

key employment, education, and 

training programs. This new law 

provides resources, services, and 

leadership tools for the public 

workforce system to help individuals 

find good jobs and stay employed and 

improves employer prospects for 

success in the global marketplace. It 

ensures that the public workforce 

system operates as a comprehensive, 

integrated, and streamlined system to 

provide pathways to prosperity for those 

it serves and continuously improves the 

quality and performance of its services. 

The Department is publishing this 

Final Rule to implement those 

provisions of WIOA that affect the core 

programs under title I, the WagnerPeyser Act Employment Service (ES) 

program, as amended by WIOA title III 

(ES program), and the Job Corps and 

national programs authorized under title 

I which will be administered by the 

Department. In addition to this DOL 

WIOA Final Rule, the Departments of 

Education (ED) and Labor jointly are 

publishing a Final Rule to implement 

those provisions of WIOA that affect all 

of the WIOA core programs (titles I 

through IV) and which will have to be 

overseen and administered jointly by 

both Departments. Readers should note 

that in this DOL WIOA Final Rule there 

are a number of cross-references to the 

Joint WIOA Final Rule published by ED 

and DOL, including those provisions in 

the Joint WIOA Final Rule regarding 

performance reporting. In addition to 

the Joint WIOA Final Rule, ED and DOL 

are issuing separate final rules to 

implement program-specific 

requirements of WIOA that fall under 

each Department’s purview. DOL is 

issuing this Final Rule governing 

program-specific requirements under 

WIOA title I and for the ES program, as 

amended by WIOA title III. ED is issuing 

three final rules: One implementing 

program-specific requirements of the 

Adult Education and Family Literacy 

Act (AEFLA), as reauthorized by title II 

of WIOA; and two final rules 

implementing all program-specific 

requirements for programs authorized 

under the Rehabilitation Act of 1973, as 

amended by title IV of WIOA. The Joint 

WIOA Final Rule and other Departmentspecific final rules are published 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56073 

elsewhere in this issue of the Federal 

Register. 

WIOA seeks to deliver a broad array 

of integrated services to customers of 

the public workforce system, which 

include both individuals seeking jobs 

and skills training and employers 

seeking skilled workers. The law 

improves the public workforce system 

by more closely aligning it with regional 

economies and strengthening the 

network of about 2,500 one-stop centers. 

Customers must have access to a 

seamless system of high-quality services 

through coordination of programs, 

services, and governance structures. The 

Act builds closer ties among key 

workforce partners—business leaders, 

State and Local Workforce Development 

Boards (WDBs), labor unions, 

community colleges, non-profit 

organizations, youth-serving 

organizations, and State and local 

officials—in striving for a more jobdriven approach to training and skills 

development. 

WIOA will help job seekers and 

workers access employment, education, 

training, and support services to 

succeed in the labor market and match 

employers with the skilled workers they 

need to compete in the global economy. 

The purposes of WIOA described in the 

statute include: 

• Increasing access to and 

opportunities for the employment, 

education, training, and support 

services that individuals need, 

particularly those with barriers to 

employment. 

• Supporting the alignment of 

workforce investment, education, and 

economic development systems, in 

support of a comprehensive, accessible, 

and high-quality workforce 

development system. 

• Improving the quality and labor 

market relevance of workforce 

investment, education, and economic 

development efforts. 

• Promoting improvement in the 

structure and delivery of services. 

• Increasing the prosperity of workers 

and employers. 

• Providing workforce development 

activities that increase employment, 

retention, and earnings of participants 

and that increase postsecondary 

credential attainment and as a result, 

improve the quality of the workforce, 

reduce welfare dependency, increase 

economic self-sufficiency, meet skill 

requirements of employers, and enhance 

productivity, and the competitiveness of 

our nation. 

WIOA’s passage and implementation 

builds upon the groundwork already 

laid by an Administration-wide review 

of employment, education, and training 

programs to ensure Federal agencies do 

everything possible to prepare ready-towork-Americans with ready-to-be-filled 

jobs. That review identified several 

priorities for Federally supported 

training programs, including employer 

engagement; promoting work-based 

learning strategies, such as on-the job 

training and registered apprenticeships, 

career pathways, and regional 

collaboration; increasing access to 

training by breaking down barriers; and 

data-driven program management and 

evaluation. 

As WIOA implementation progresses, 

success in accomplishing the purposes 

of WIOA at the State, local, and regional 

levels, will be determined by whether: 

• One-stop centers are recognized as 

a valuable community resource and are 

known for high quality, comprehensive 

services for customers. 

• The core programs and one-stop 

partners provide seamless, integrated 

customer service. 

• Program performance, labor market, 

and related data drive policy and 

strategic decisions and inform customer 

choice. 

• Youth programs reconnect out-ofschool youth (OSY) to education and 

jobs. 

• Job seekers access quality career 

services either online or in a one-stop 

center through a ‘‘common front door’’ 

that connects them to the right services. 

• One-stop centers facilitate access to 

high quality, innovative education and 

training. 

• Services to businesses are robust 

and effective, meeting businesses’ 

workforce needs across the business 

lifecycle. 

As noted throughout this Final Rule, 

the Department will be issuing guidance 

to help our regulated communities 

understand their rights and 

responsibilities under WIOA and these 

regulations. Consistent with the 

Administrative Procedure Act’s 

exemption from its notice and comment 

requirement for general statements of 

policy, interpretations, and procedural 

instructions, this guidance will provide 

interpretations of many of the terms and 

provisions of these regulations and more 

detailed procedural instructions that 

would not be appropriate to set out in 

regulations. The Department also will be 

issuing guidance to provide information 

on current priorities and initiatives, 

suggested best practices, and in 

response to stakeholder questions. 

B. Summary of Major Provisions 

To implement WIOA title I, the 

Department has added several new CFR 

parts to title 20, chapter V (ETA’s 

regulations). In particular, because the 

WIA regulations will continue to be 

referenced in existing and historic 

documents for some time after the 

WIOA transition, the Department is 

creating entirely new programmatic 

regulations to reflect the requirements of 

WIOA, rather than amending the WIA 

title I regulations found at 20 CFR parts 

660 through 672. Table 1 below presents 

a crosswalk for these new CFR parts to 

illustrate how they relate to the existing 

WIA regulations. 

In addition, the Department is 

revising in this DOL WIOA Final Rule 

certain other CFR parts in accordance 

with WIOA, rather than creating entirely 

new parts, where it was not necessary 

to retain the WIA version of the 

regulation. For example, the Department 

retains the Wagner-Peyser Act 

implementing regulations in 20 CFR 

parts 651 through 658 and is revising in 

this Final Rule only those parts that are 

affected by WIOA, i.e., parts 651 

through 654 and 658. Further, the 

Department is amending portions of part 

603 (Federal-State Unemployment 

Compensation (UC) Program; 

Confidentiality and Disclosure of State 

UC Information) in accordance with 

WIOA. These CFR parts that are 

amended but not new in this DOL 

WIOA Final Rule are indicated in Table 

1 by showing that they do not change 

location in the CFR from WIA to WIOA. 

The remainder of this section I.B briefly 

summarizes each CFR part in this Final 

Rule and any significant differences 

between the notice of proposed 

rulemaking (NPRM) and Final Rule. 

TABLE 1—CROSSWALK OF WIA AND WIOA REGULATIONS

Subject matter WIA CFR part WIOA CFR part 

Federal-State UC Program ............................................................................................ 20 CFR part 603 ................ 20 CFR part 603. 

Definitions/Introduction to Regulations .......................................................................... 20 CFR part 660 ................ 20 CFR part 675. 

State and Local WDBs, Local and Regional Plans, Waivers ....................................... 20 CFR part 661 ................ 20 CFR part 679. 

Adult and Dislocated Workers ....................................................................................... 20 CFR part 663 ................ 20 CFR part 680. 

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TABLE 1—CROSSWALK OF WIA AND WIOA REGULATIONS—Continued 

Subject matter WIA CFR part WIOA CFR part 

Youth Activities .............................................................................................................. 20 CFR part 664 ................ 20 CFR part 681. 

Statewide Activities ........................................................................................................ 20 CFR part 665 ................ 20 CFR part 682. 

Administrative Provisions ............................................................................................... 20 CFR part 667 ................ 20 CFR part 683. 

Indian and Native American Programs ......................................................................... 20 CFR part 668 ................ 20 CFR part 684. 

National Farmworker Jobs Program .............................................................................. 20 CFR part 669 ................ 20 CFR part 685. 

Job Corps ...................................................................................................................... 20 CFR part 670 ................ 20 CFR part 686. 

National Dislocated Worker Grants ............................................................................... 20 CFR part 671 ................ 20 CFR part 687. 

YouthBuild ...................................................................................................................... 20 CFR part 662 ................ 20 CFR part 688. 

Wagner-Peyser Act Employment Service—Definitions ................................................. 20 CFR part 651 ................ 20 CFR part 651. 

Wagner-Peyser Act Employment Service—Establishment and Functioning ................ 20 CFR part 652 ................ 20 CFR part 652. 

Wagner-Peyser Act Employment Service—Services .................................................... 20 CFR part 653 ................ 20 CFR part 653. 

Wagner-Peyser Act Employment Service—Special Responsibilities ............................ 20 CFR part 654 ................ 20 CFR part 654. 

Wagner-Peyser Act Employment Service—Administrative Provisions ......................... 20 CFR part 658 ................ 20 CFR part 658. 

1. Part 603—Federal-State 

Unemployment Compensation Program 

The Department is amending its 

regulations at 20 CFR part 603 to help 

States comply with WIOA. WIOA 

requires that States use ‘‘quarterly wage 

records’’ in assessing the performance of 

certain Federally funded employment 

and training programs. In particular, 

this Final Rule amends part 603 to 

clarify and expand, in a limited fashion, 

those public officials with whom the 

State may share certain confidential 

information to carry out requirements 

under WIOA, including the use of wage 

records to meet performance reporting 

requirements and cooperation with 

certain DOL and ED evaluations. The 

Department is amending part 603 as 

proposed in the NPRM. 

2. Part 675—Introduction to the 

Regulations for the Workforce 

Development System Under Title I of 

the Workforce Innovation and 

Opportunity Act 

Part 675 discusses the purpose of title 

I of the WIOA, explains the format of 

the regulations governing title I, and 

provides additional definitions for terms 

used in the law. 

The most notable changes to this part 

from the regulatory text proposed in the 

NPRM include the addition of a 

definition of ‘‘family’’ and strengthening 

the definition of ‘‘consultation.’’ The 

DOL WIOA Final Rule defines ‘‘family’’ 

in the same way as the WIA definition 

of ‘‘family,’’ except that instead of using 

the gender-specific ‘‘husband’’ and 

‘‘wife’’ terms that were in WIA, it 

substitutes ‘‘a married couple.’’ This is 

intended to bring the definition into 

conformance with the recent Supreme 

Court decisions about marriage equality. 

Regarding the revised definition of 

‘‘consultation,’’ in response to public 

comments expressing concern that the 

proposed definition was not specific 

enough, the Final Rule definition better 

focuses on the public workforce system 

and is necessary to clarify that 

consultation constitutes a coming 

together of stakeholders, robust 

conversation, and opportunity for all 

parties to express thoughts and 

opinions. 

The Department also changed the 

terms ‘‘workforce innovation and 

opportunity system,’’ and ‘‘workforce 

investment system’’ to ‘‘workforce 

development system’’ throughout this 

rule. This was done to enhance 

consistency across parts and avoid 

confusion, and to be emphasize the role 

of workforce development boards in this 

system. 

3. Part 679—Statewide and Local 

Governance of the Workforce 

Development System Under Title I of 

the Workforce Innovation and 

Opportunity Act 

Part 679 addresses the statewide and 

local governance provisions of the 

workforce development system under 

WIOA title I. This part includes 

provisions that govern the conditions 

under which the Governor must 

establish the State WDB (subpart A); the 

requirements for designation of regions 

and local areas under WIOA (subpart B); 

the role of Local WDBs, Local WDB 

membership, and the role of chief 

elected officials (CEOs) (subpart C); the 

requirements relating to regional and 

local plans (subpart D); the statutory 

and regulatory waiver authority 

provided by WIOA sec. 189(i), including 

the requirements for submitting a 

workforce flexibility plan under WIOA 

sec. 190 (subpart E). 

As for notable changes to this part 

from the NPRM regulatory text, to 

address concerns about representation 

of core programs on the State WDB was 

raised by many commenters, the 

Department has revised the final 

regulations to clarify that, for the WIOA 

title I and ES programs, a single lead 

State official with primary 

responsibility for those programs may 

represent more than one of those 

programs. However, WIOA title II 

programs must have a single, unique 

representative, and the Vocational 

Rehabilitation (VR) program 

administered by ED and authorized 

under title I of the Rehabilitation Act of 

1973, as amended by WIOA title IV (VR 

program), must have a single, unique 

representative. See 

§ 679.110(b)(3)(iii)(A)(1)(i) through (iii). 

Further, the Department clarified the 

regulatory text by providing details on 

the duration of initial local area 

designation and the timing of the first 

available opportunity for local area 

subsequent designation to occur. The 

Department revised the proposed 

requirement to clarify that initial 

designation is applicable only to 

Program Year (PY) 2016 and PY 2017. 

Noting the commenters’ concerns 

regarding availability of WIOA 

performance data, which is required for 

the determination of designation, the 

Department added § 679.250(c) to clarify 

that no determination of subsequent 

designation may be made before the 

conclusion of PY 2017. The section-bysection discussion of part 679 below 

details other changes to the part 679 

regulatory text, as well as Department 

responses to all substantive public 

comments. 

4. Part 680—Adult and Dislocated 

Worker Activities Under Title I of the 

Workforce Innovation and Opportunity 

Act 

In this part of the Final Rule, the 

Department describes requirements 

relating to the services that are available 

for adults and dislocated workers under 

WIOA title I. Under WIOA, adults and 

dislocated workers may access career 

services and training services. Training 

is provided through a robust eligible 

training provider and program list 

(ETPL), comprised of entities with a 

demonstrated capability of training 

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individuals to enter quality 

employment. WIOA also provides 

enhanced access and flexibility for 

work-based training options, such as onthe-job training (OJT), customized 

training, and incumbent worker 

training. In this part, the Department 

also discusses supportive services and 

needs-related payments that can be 

provided, based on customer needs, to 

enable them to participate in WIOA 

career and training services. 

Some of the notable changes to this 

part from the NPRM regulatory text 

include that the Final Rule clarifies that 

the priority of service in the adult 

program for individuals who are public 

assistance recipients, other low-income 

individuals and for individuals who are 

basic skills deficient exists at all times, 

not just when funds are limited. 

Regarding the role of registered 

apprenticeship programs, the Final Rule 

emphasizes the key role WIOA 

envisions for registered apprenticeship 

programs by highlighting these 

programs as a training service for both 

Individual Training Accounts (ITAs) 

and as OJT. The Final Rule allows 

apprenticeship programs that are not 

registered to go through the eligible 

training provider (ETP) process if they 

want to be on the ETP list; the rule does 

not provide apprenticeship programs 

that are not registered special access to 

the ETPL. The Department also clarifies 

in this Final Rule that registered 

apprenticeship programs are 

automatically eligible for the ETPL and 

the State is required to notify them of 

their automatic eligibility and allow the 

registered apprenticeship program an 

opportunity to consent to be on the 

State ETPL (see § 680.470). This 

mechanism must be minimal burden to 

registered apprenticeship programs and 

must comply with Federal guidance. 

The Department further clarifies in this 

Final Rule that local areas, which have 

the authority to set more stringent 

standards than the State for eligibility of 

training providers, may not do so for 

registered apprenticeship programs that 

are on the State ETPL. Finally, the 

Department clarifies in this Final Rule 

that registered apprenticeship programs 

may be removed from the State ETPL for 

enforcement reasons other than 

performance, such as a clear violation of 

WIOA (see § 680.470). Although 

registered apprenticeship programs are 

not required to report in the same way 

as other ETPs, they are required to be a 

part of the State annual ETP 

performance report under WIOA sec. 

116(d)(2). 

5. Part 681—Youth Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

Part 681 describes requirements 

relating to the services that are available 

to youth under WIOA title I, subtitle B, 

as part 664 did for youth activities 

funded under WIA. The most significant 

change to the youth formula program 

under WIOA is the shift to focus 

resources primarily on OSY. WIOA 

increases the minimum percentage of 

program funds required to be spent on 

OSY from 30 to 75 percent. The 

Department plans to release subsequent 

guidance and technical assistance on 

how States and local areas can 

incorporate strategies for recruiting and 

serving more OSY. 

In addition, WIOA includes a major 

focus on providing youth with work 

experience opportunities with a 

requirement that local areas must spend 

a minimum of 20 percent of local area 

funds on work experience. And 

although work experience becomes the 

most important of the program 

elements, WIOA also introduces 5 new 

program elements: Financial literacy; 

entrepreneurial skills training; services 

that provide labor market and 

employment information about indemand industry sectors or occupations 

available in the local areas; activities 

that help youth prepare for and 

transition to postsecondary education 

and training; and education offered 

concurrently with and in the same 

context as workforce preparation 

activities and training for a specific 

occupation or occupational cluster. 

The most significant change between 

the NPRM and the Final Rule occurs in 

§ 681.400. This section clarifies that 

youth activities may be conducted by 

the local grant recipient and that when 

the Local WDB chooses to award grants 

or contracts to youth service providers, 

such awards must be made using a 

competitive procurement process in 

accordance with WIOA sec. 123. The 

section-by-section discussion of part 

681 below details other changes to the 

part 681 regulatory text, as well as 

Department responses to all substantive 

public comments. 

6. Part 682—Statewide Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

WIOA provides a reservation of funds 

for statewide employment and training 

activities. These activities are 

undertaken by the States, rather than by 

Local WDBs; both the required and 

allowable activities are addressed by 

part 682. WIOA designates the 

percentage of funds that may be devoted 

to these activities from annual 

allotments to the States—up to 15 

percent must be reserved from youth, 

adult, and dislocated worker funding 

streams, and up to an additional 25 

percent of dislocated worker funds must 

be reserved for statewide rapid response 

activities. 

Some of the notable changes to this 

part from the NPRM regulatory text 

include the specification that layoff 

aversion is a required rapid response 

activity, as applicable. Layoff aversion 

activities may include employer-focused 

activities such as providing assistance to 

employers in managing reductions in 

force, funding feasibility studies to 

determine if the employer’s operation 

may be sustained through a buy-out, etc. 

Further, the DOL WIOA Final Rule 

specifies that a successful rapid 

response system includes 

comprehensive business engagement. 

Finally, the DOL WIOA Final Rule 

specifies that rapid response funds may 

be used to pay for incumbent worker 

training as long as it is part of a broader 

layoff aversion strategy. Incumbent 

worker training is also a valuable layoff 

aversion tool and, under WIA, many 

States requested a waiver to allow such 

training with rapid response funds. This 

Final Rule change recognizes the value 

of incumbent worker training for this 

purpose and includes it as allowable 

under rapid response within the context 

of layoff aversion activities. 

7. Part 683—Administrative Provisions 

Under Title I of the Workforce 

Innovation and Opportunity Act 

Part 683 establishes the 

administrative provisions for the 

programs authorized under title I of 

WIOA. Some of the provisions are also 

applicable to grants provided under the 

Wagner-Peyser Act, as indicated in 

specific sections of the part. The 

remaining Wagner-Peyser Act 

administrative regulations are located in 

part 658. Additionally, please note that 

administrative provisions for Job Corps 

(subtitle C of title I of WIOA) contracts 

are addressed separately in part 686. 

This DOL WIOA Final Rule adds a 

requirement that the Governor establish 

criteria or factors for approving Local 

WDB transfers of funds between the 

adult and dislocated worker programs 

and that these criteria must be in a 

written policy, such as the State Plan or 

other written policy. 

Regarding Pay-for-Performance 

contract strategies, the final regulations 

made a change from the NPRM in that 

the Department has added a new section 

that maintained the requirement for a 

feasibility study prior to implementing 

a Pay-for-Performance contract strategy 

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56076 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

but removed it from the 10 percent 

limitation of funds. 

8. Part 684—Indian and Native 

American Programs Under Title I of the 

Workforce Innovation and Opportunity 

Act 

Part 684 governs the Indian and 

Native American (INA) program 

authorized under WIOA sec. 166. WIOA 

and part 684 streamline the competitive 

process for awarding the INA program 

grants. Section 166 of WIOA requires 

both that grants be awarded through a 

competitive process and that grantees 

submit a 4-year plan (WIOA secs. 166(c) 

and 166(e)). These WIOA regulations 

streamline the grant award process to 

ease the administrative burdens. The 

Department will no longer designate 

grantees or require a notice of intent. 

Moreover, the part 684 WIOA 

regulations have incorporated the 4-year 

plan into the competitive grant award 

process. Because these changes will 

help streamline the process for 

awarding grants, these WIOA 

regulations should result in less of an 

administrative burden on both 

applicants and the Department. 

Other than a few technical, nonsubstantive edits, the Department has 

made no changes to the regulatory text 

in part 684. 

9. Part 685—National Farmworker Jobs 

Program Under Title I of the Workforce 

Innovation and Opportunity Act 

The purpose of part 685 is to 

implement WIOA sec. 167, which 

authorizes migrant and seasonal 

farmworker (MSFW) programs. In 

drafting these regulations, the 

Department consulted with States and 

MSFW groups during stakeholder 

consultation sessions conducted in 

August and September 2014, as required 

by WIOA sec. 167(f). MSFW programs 

include career services and training, 

housing assistance, youth services, and 

related assistance to eligible MSFWs. 

The regulations in part 685 support 

strategic alignment across workforce 

development programs by: Aligning the 

definition of ‘‘farmwork’’ found in this 

part with that used in the ES program; 

adjusting the upper and lower age 

ranges of eligible MSFW youth to 

conform to those established in WIOA 

sec. 129 for OSY and ISY; and requiring 

that grantees coordinate services, 

particularly outreach to MSFWs, with 

the State Workforce Agency (SWA) in 

their service area and the State Monitor 

Advocate. These changes are intended 

to support coordination between MSFW 

programs and other workforce programs 

such as the ES program, and facilitate 

MSFW youth co-enrollments with other 

WIOA title I programs. 

Part 685 includes language regarding 

training services that reinforces that 

training must be directly linked to an indemand industry or occupation that 

leads to economic self-sufficiency and 

encourages the attainment of recognized 

postsecondary credentials when 

appropriate (see § 685.350). 

Part 685 also establishes that grantees 

funded under WIOA sec. 167 can serve 

eligible MSFW youth participants (see 

§§ 685.320 and 685.510). These 

regulations also require that a 

percentage of the total funds 

appropriated each year for WIOA sec. 

167 activities must be used for housing 

grants, and described specific housing 

assistance activities to better articulate 

the types of services that can be 

delivered to eligible MSFWs (see 

§ 685.360). 

Based on the public comments 

received in response to the NPRM, the 

Department made the following 

significant changes to part 685 as 

proposed: 

• The Final Rule permits a National 

Farmworker Jobs Program (NFJP) 

grantee some flexibility to increase the 

OJT reimbursement rate up to 75 

percent of the wage rate of a participant, 

provided that such reimbursement rates 

are consistent with the rates set by the 

Governor in the State or Local WDB(s) 

in the local area(s) in which the grantee 

operates in accordance with WIOA sec. 

134(c)(3)(H)(i); 

• The Final Rule revises § 685.360(d) 

to clarify that NFJP-funded permanent 

housing development activities that 

benefit eligible MSFWs do not require 

individual eligibility determinations; 

• The Final Rule clarifies in § 685.360 

that development of on-farm housing 

located on property owned and operated 

by an agricultural employer is an 

allowable activity; and 

• In response to commenters’ 

concerns regarding the negative impact 

that would result on performance 

indicator calculations by including 

individuals who receive only certain 

minimal ‘‘related assistance’’ services, 

which do not require a significant 

investment of staff time and resources, 

the Department has added language to 

§ 685.400 that puts the NFJP program in 

alignment with other WIOA authorized 

programs regarding performance 

accountability calculations. 

10. Part 686—The Job Corps Under Title 

I of the Workforce Innovation and 

Opportunity Act 

This part establishes regulations for 

the Job Corps program, authorized in 

title I, subtitle C of WIOA. The 

regulations address the scope and 

purpose of the Job Corps program and 

provide requirements relating to site 

selection, protection, and maintenance 

of Job Corps facilities; funding and 

selection of center operators and service 

providers; recruitment, eligibility, 

screening, selection and assignment, 

and enrollment of Job Corps students; 

Job Corps program activities and center 

operations; student support; career 

transition services and graduate 

services; community connections; and 

administrative and management 

requirements. The regulations carry out 

Congressional direction on contracting 

and competition for centers and 

incorporate the requirements of title I, 

subtitle C of WIOA. Specifically, the 

regulations describe how the Job Corps 

program is operated in order to deliver 

relevant academic and career technical 

training (CTT) that leads to meaningful 

employment or postsecondary 

education and explain the requirements 

necessitated by the unique residential 

environment of a Job Corps center. 

Although the Department received 

some public comments that opposed the 

proposed provision stating that the 

Secretary of Labor, in consultation with 

the Secretary of Agriculture, may select 

an entity to operate a Civilian 

Conservation Center (CCC) or close low 

performing CCCs if the Secretary of 

Labor deems appropriate (§ 686.350(e) 

through (f)), the DOL WIOA Final Rule 

retains these paragraphs as proposed 

because the regulatory text mirrors the 

statutory requirements at WIOA sec. 

159(f)(2). In addition, regarding 

concerns expressed by commenters that 

the proposed high-performing center 

criteria were too difficult to achieve, the 

Department is retaining § 686.320 as 

proposed because the language in the 

regulation mirrors that of WIOA and the 

Department does not have the discretion 

to loosen the criteria. 

11. Part 687—National Dislocated 

Worker Grants 

National Dislocated Worker Grants 

(DWGs) are discretionary awards that 

temporarily expand service capacity at 

the State and local levels through timelimited funding assistance in response 

to significant dislocation events. These 

grants are governed by sec. 170 of 

WIOA. The part 687 regulations set 

forth the key elements and requirements 

for DWGs. Additional guidance on 

DWGs and the application requirements 

for these grants was published 

separately by the Department in 

Training and Employment Guidance 

Letter (TEGL) No. 01–15, ‘‘Operational 

Guidance for National Dislocated 

Worker Grants, pursuant to the 

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Workforce Innovation and Opportunity 

Act (WIOA or Opportunity Act).’’ 

The part 687 regulations establish a 

framework that will enable eligible 

applicants to apply quickly for grants to 

relieve the impact of layoffs, 

emergencies, and disasters on 

employment in the impacted area and to 

meet the training and reemployment 

needs of affected workers and to enable 

them to obtain new jobs as quickly as 

possible. These regulations call for early 

assessment of the needs and interests of 

the affected workers, through either 

rapid response activities or other means, 

as well as an indication of the other 

resources available to meet these needs, 

to aid in the creation of a customercentered service proposal. The early 

collection of information about affected 

workers will allow applicants to have an 

understanding of the needs and interests 

of the impacted workers to enable a 

prompt application for the appropriate 

level of DWG funds. Early collection of 

information also will facilitate the 

receipt of DWG funds when the 

Secretary determines that there are 

insufficient State and local formula 

funds available. Early intervention to 

assist workers being dislocated is 

critical to enable them to access workbased learning opportunities and other 

types of training that lead to industryrecognized credentials, as appropriate, 

to help them find new employment in 

in-demand industries and occupations 

as soon as possible after their 

dislocation occurs. 

The Department has made several 

global changes and technical edits to the 

part 687 regulations proposed in the 

NPRM for clarity and technical 

accuracy. For example, ‘‘National 

Dislocated Worker Grants’’ will be 

referred to by the acronym ‘‘DWGs’’ in 

this part for simplicity. In addition, the 

Department has determined it is 

necessary to alter the labels of what the 

NPRM called ‘‘Regular’’ and ‘‘Disaster’’ 

DWGs to describe more accurately their 

purpose and intended use. ‘‘Regular’’ 

DWGs have been renamed 

‘‘Employment Recovery’’ DWGs, and 

‘‘Disaster’’ DWGs have been renamed 

‘‘Disaster Recovery’’ DWGs. Further, the 

terms ‘‘career services’’ and 

‘‘employment-related assistance’’ have 

been changed to ‘‘employment and 

training assistance’’ to clarify that the 

use of DWG funds is not limited to only 

career services. Training and supportive 

services also may be provided as 

appropriate and in accordance with the 

requirements of part 687. Finally, the 

term ‘‘temporary employment’’ has been 

replaced with the term ‘‘disaster relief 

employment’’ to better align the text of 

this part 687 with that of WIOA sec. 

170. In addition, this DOL WIOA Final 

Rule clarifies that individuals who 

relocate to another State, tribal, or 

outlying area after a disaster may 

receive services in either the disaster 

area or the area to which they relocate. 

However, the Final Rule also includes a 

provision for the Secretary to allow, in 

certain circumstances, individuals to 

receive services in both the disaster and 

the relocation area. Other nonsubstantive changes and technical edits 

are described in detail in the section-bysection discussion of part 687 below. 

12. Part 688—Provisions Governing the 

YouthBuild Program 

The YouthBuild program authorizes 

grants for job training and educational 

activities for at-risk youth who, as part 

of their training, help construct or 

rehabilitate housing for homeless 

individuals and families and lowincome families in their respective 

communities. Participants receive a 

combination of classroom training, job 

skills development, and on-site training 

in the construction trades. The 

Department wants to emphasize the 

connections across all of our youthserving programs under WIOA, 

including the WIOA youth formula 

program and associated boards and 

youth committees, connections to preapprenticeship and registered 

apprenticeship programs, and Job Corps 

centers across the country. WIOA is an 

opportunity to align and coordinate 

service strategies for these ETA youth 

training programs, as well as to align 

with our Federal partners that serve 

these same customers. WIOA also 

ensures that these programs are using 

common performance indicators and 

standard definitions, which includes 

aligning the definitions for homeless 

youth, basic skills deficient, 

occupational skills training, and 

supportive services. Additionally, the 

YouthBuild regulation adopts the six 

new performance indicators that were 

codified across WIOA youth-serving 

programs and aligns YouthBuild with 

the WIOA youth formula program 

performance outcomes. 

WIOA affirms the Department’s 

commitment to providing high-quality 

education, training, and employment 

services for youth and young adults 

through YouthBuild grants by 

expanding the occupational skills 

training offered at local YouthBuild 

programs. YouthBuild programs can 

offer occupational skills training in indemand occupations, such as health 

care, advanced manufacturing, and IT, 

as approved by the Secretary and based 

on the maturity of the program and local 

labor market information. 

Other changes include revisions to the 

duration of the restrictive covenant 

clause, clarifying eligibility criteria for 

participation, and describing qualifying 

work sites and minimum criteria for 

successful exit from the YouthBuild 

program. Beyond these regulations, the 

Department will continue to develop 

guidance and technical assistance to 

help grantees and the workforce 

development community operate highly 

effective YouthBuild programs. 

13. Part 651—General Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

The Wagner-Peyser Act of 1933 

established the ES program, which is a 

nationwide system of public 

employment offices that provide public 

labor exchange services. The ES 

program seeks to improve the 

functioning of the nation’s labor markets 

by bringing together individuals seeking 

employment with employers seeking 

workers. In 1998, the ES program was 

amended to make it part of the one-stop 

delivery system established under WIA. 

The ES program has now been amended 

again under title III of WIOA. 

WIOA expands upon the previous 

workforce reforms in the WIA and, 

among other provisions, identifies the 

ES as a core program in the one-stop 

delivery system, embeds ES State 

planning requirements into a unified 

planning approach, and requires the 

colocation of ES offices into the onestop centers. The regulations in parts 

651, 652, 653, 654, and 658 update the 

language and content of the regulations 

to implement amendments made by title 

III of WIOA to the Wagner-Peyser Act. 

In some areas, these regulations 

establish entirely new responsibilities 

and procedures. In other areas, the 

regulations clarify and update 

requirements already established. The 

regulations make important changes to 

the following components of the ES 

program: definitions, data submission, 

and increased collaboration 

requirements, among others. 

Part 651 sets forth definitions for 20 

CFR parts 652, 653, 654, and 658. The 

Department received several comments 

regarding these definitions and has 

eliminated, revised, and added 

definitions, as needed. Some 

commenters suggested new terms they 

would like to see defined in part 651, 

and other commenters expressed 

concerns or suggestions relating to 

specific proposed definitions. 

Additionally, the Department has made 

technical and clarifying changes to some 

of the definitions. 

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14. Part 652—Establishment and 

Functioning of State Employment 

Service 

The regulations at 20 CFR part 652 set 

forth standards and procedures 

regarding the establishment and 

functioning of State ES operations. 

These regulations align part 652 with 

the WIOA amendments to the ES 

program, and with the WIOA reforms to 

the public workforce system that affect 

the ES program. The WIOA-amended 

Wagner-Peyser Act furthers 

longstanding goals of closer 

collaboration with other employment 

and training programs by mandating 

colocation of ES offices with one-stop 

centers; aligning service delivery in the 

one-stop delivery system; and ensuring 

alignment of State planning and 

performance indicators in the one-stop 

delivery system. Other new WagnerPeyser Act provisions are consistent 

with long-term Departmental policies, 

including increased emphasis on 

reemployment services for UI claimants 

(sec. 7(a)); promoting robust Workforce 

Labor Market Information (WLMI); the 

development of national electronic tools 

for job seekers and businesses (sec. 3(e)); 

dissemination of information on best 

practices (sec. 3(c)(2)); and professional 

development for ES staff (secs. 3(c)(4) 

and 7(b)(3)). 

Several public comments received in 

response to the NPRM prompted the 

Department to make minor changes to 

parts of the regulations in this section. 

For example, the Department agreed 

with comments regarding ensuring 

comprehensive front-line staff training; 

and direct language has been added to 

§ 652.204 from sec. 3(c)(4) of the 

Wagner-Peyser Act (as amended by 

WIOA sec. 303(b)(4)) to indicate that 

professional development and career 

advancement can be supported by the 

Governor’s Reserve. The Department 

agreed with the commenter-suggested 

benefits of aligning definitions across 

the core programs, and as a result, the 

terms ‘‘reportable individual’’ and 

‘‘participant’’ have been revised to align 

with the performance accountability of 

the other core programs. The 

Department also agreed with 

commenters who suggested that career 

services under WIOA are not a 

substitute for Wagner-Peyser Act sec. 

7(a) services; § 652.3(f) has been 

amended to reference sec. 7(a) of the 

Wagner-Peyser Act. The Department 

continues to seek alignment of service 

delivery with WIOA core programs. 

The Department received several 

varying comments regarding colocation. 

This part clarifies the intent of 

colocation; how ES-only affiliate sites 

do not meet the intent of WIOA; the 

Department’s decision to broaden 

language in 20 CFR 678.315(b) to allow 

multiple programs to meet the more 

than 50 percent threshold by combining 

the time their staff members are 

physically present (see Joint WIOA 

Final Rule); and the expectation that 

colocation should be completed as 

expeditiously as possible, and that the 

Department will issue future guidance 

on this topic. Many commenters also 

raised questions and provided 

comments regarding the allowable uses 

of Wagner-Peyser Act funds. The 

Department clarified that there are no 

changes in the activities that may be 

funded by Wagner-Peyser Act funds. 

Specifically, training services may not 

be provided with sec. 7(a) of the 

Wagner-Peyser Act funding; however, 

appropriate career services and labor 

exchange services may be provided to 

individuals in training and there is no 

restriction on funding training services 

with sec. 7(b) funds under the WagnerPeyser Act. 

In regard to WLMI, some of the 

clarifications identified in this part 

include: There is a need to provide 

extensive education and technical 

assistance with regard to accessing wage 

record data; the Workforce Information 

Advisory Council (WIAC) will advise on 

WLMI and may consider what kind of 

information is needed for planning, but 

it will not be involved in developing 

State Plans; and the Departments of 

Labor and Education will issue joint 

guidance with regard to use of wage 

data for performance in the context of 

the confidentiality requirements for the 

use of UI wage record data and 

education data under the Family 

Educational Rights and Privacy Act 

(FERPA). The Department also made 

other clarifying changes to part 652, as 

discussed elsewhere in this Final Rule. 

15. Part 653—Services of the WagnerPeyser Act Employment Service 

Part 653 sets forth standards and 

procedures for providing services to 

MSFWs and provides regulations 

governing the Agricultural Recruitment 

System (ARS), a system for interstate 

and intrastate agricultural job 

recruitment. In subparts B and F of part 

653, the Department is implementing 

the WIOA title III amendments to the 

Wagner-Peyser Act, as well as 

streamlining and updating certain 

sections to eliminate duplicative and 

obsolete provisions. Despite these 

changes, part 653 remains consistent 

with the ‘‘Richey Order.’’ NAACP v. 

Brennan, 1974 WL 229, at *7 (D.D.C. 

Aug. 13, 1974). 

Upon the consideration of comments 

suggesting that the Department require 

outreach workers to be trained on not 

only how to identify and refer possible 

incidents of sexual harassment, but also 

on similar issues such as sexual 

coercion, assault, and human 

trafficking, the Department has added 

such language to the regulatory text at 

§ 653.107(b)(7). Training outreach 

workers in this way is key in helping to 

connect victims with appropriate 

resources and support networks. 

16. Part 654—Special Responsibilities of 

the Employment Service System 

In 1980, the Department published 

amended regulations at 20 CFR part 654, 

subpart E, providing agricultural 

housing standards for MSFWs. In the 

NPRM, the Department proposed to 

revise these agricultural housing 

regulations (hereinafter ‘‘ETA 

standards’’) by updating outdated 

terminology and by establishing an 

expiration date for the ETA standards. 

This proposed expiration date was 

intended to transition housing currently 

governed by the ETA standards to the 

Occupational Safety and Health 

Administration (OSHA) regulations 

governing temporary labor camps for 

agricultural workers as set forth at 29 

CFR 1910.142. After considering the 

public comments received on this 

aspect of the proposal, the Department 

is rescinding its proposal to establish an 

expiration date for the ETA standards in 

order to transition housing currently 

governed by the ETA standards to the 

OSHA standards, as explained in further 

detail in this Final Rule. 

17. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

Part 658 sets forth systems and 

procedures for complaints, monitoring 

for compliance assessment, 

enforcement, and sanctions for 

violations of the ES regulations and 

employment-related laws, including 

discontinuation of services to employers 

and decertification of SWAs. The 

Department’s proposed changes to part 

658 updated terminology and 

responsibilities and reorganized various 

regulations to increase the clarity and 

efficiency of the provisions involved. 

Additionally, headings were revised, 

when necessary, to reflect changes to 

the regulations, and language was added 

to permit, where relevant, the use of 

electronic mail and electronic 

signatures. 

Overall, the Department received 

several comments seeking clarification 

on processing complaints and apparent 

violations, attempting informal 

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resolution, and the role of MSFW 

complainant’s representatives, among 

many others. The Department has 

addressed these requests for 

clarification in the responses to public 

comments contained in the part 658 

section-by-section discussion below (see 

section V.Q). Additionally, the 

Department will issue guidance on the 

Complaint System, informal resolution, 

referring complaints and apparent 

violations, and on part 658, subpart F 

(Discontinuation of Services to 

Employers by the Employment Service 

System). 

C. Costs and Benefits 

This Final Rule has been designated 

an ‘‘economically significant rule’’ 

under sec. 3(f)(4) of Executive Order 

(E.O.) 12866. Therefore, the Office of 

Management and Budget (OMB) has 

reviewed the Final Rule, and the 

Department has conducted a regulatory 

impact analysis to estimate the costs, 

benefits, and transfers associated with 

the Final Rule, which is detailed in full 

in section V.A of the Final Rule below. 

In total, the Department estimates that 

this Final Rule will have an average 

annual net benefit of $14,806,210 and a 

total 10-year net benefit of $95,836,706 

(with 7-percent discounting). 

The Department estimates that this 

Final Rule will have an average annual 

cost of $35,037,540 and a total 10-year 

cost of $278,750,652 (with 7-percent 

discounting). The largest contributor to 

the cost is the requirement related to the 

development and continuous 

improvement of the workforce 

development system, followed by the 

career pathways development and the 

colocation of ES services. 

The Department quantified the 

expected incremental benefits 

associated with this Final Rule relative 

to the baseline of the current practice 

under the Workforce Investment Act of 

1998 (WIA), where possible. 

Specifically, the Department quantified 

the benefits expected to result from 

required competition for all one-stop 

operators. Competition for all one-stop 

operators will result in cost reductions 

for Local WDBs due to increases in 

efficiency, which are estimated to 

amount to approximately $49,843,750 

per year and $374,587,357 over the 10- 

year period (with 7-percent 

discounting). This quantified benefit 

resulting from increased competition for 

all one-stop operators, however, does 

not account for several other important 

benefits to society that the Department 

was unable to quantify due to data 

limitations or lack of existing data or 

evaluation findings. Based on a review 

of empirical studies (primarily studies 

published in peer-reviewed academic 

publications and studies sponsored by 

the Department), however, the 

Department identified a variety of 

societal benefits: (1) Training services 

increase job placement rates; (2) 

participants in occupational training 

experience higher reemployment rates; 

(3) training is associated with higher 

earnings; and (4) State performance 

accountability measures, in combination 

with the board membership provision 

requiring employer/business 

representation, can be expected to 

improve the quality of the training and, 

ultimately, the number and caliber of 

job placements. The Department 

identified several channels through 

which these benefits might be achieved: 

(1) Better information about training 

providers will enable workers to make 

better informed choices about programs 

to pursue; (2) sanctions to underperforming States will serve as an 

incentive for both States and local 

entities to monitor performance more 

effectively and to intervene early; and 

(3) enhanced services for dislocated 

workers, self-employed individuals, and 

workers with disabilities will lead to the 

benefits discussed above. 

In addition, the Final Rule will result 

in transfer payments, i.e., a shift in costs 

or benefits from one group to another 

that does not affect total resources 

available to society. The Department 

estimates that this Final Rule will result 

in annual average transfer payments of 

$12,887,628 and a total 10-year transfer 

payment of $96,853,514 (with 7-percent 

discounting). These transfers result from 

increased funding for targeting OSY. 

The Department has determined that 

the Final Rule will have no cost impact 

on small entities and will not impose an 

unfunded mandate on Federal, State, 

local, or tribal governments as defined 

by the Unfunded Mandates Reform Act 

of 1995. 

II. Acronyms and Abbreviations 

AEFLA Adult Education and Family 

Literacy Act 

ALJ Administrative Law Judge 

ACS American Community Survey 

ADA Americans with Disabilities Act 

ANRC Alaska Native Regional Corporation 

ANVSA Alaska Native Village Service Area 

AOP Agricultural Outreach Plan 

ARC Analyst Resource Center 

ARS Agricultural Recruitment System 

ATAP Assistive Technology Act Program 

AWPA Migrant and Seasonal Agricultural 

Worker Protection Act 

AWOL Absent Without Official Leave 

BCL Business and Community Liaison 

BLS Bureau of Labor Statistics 

CBO Community-based organization 

CCC Civilian Conservation Center 

CDBG Community Development Block 

Grant 

CEO Chief elected official 

CEP Concentrated Employment Program 

CFR Code of Federal Regulations 

Complaint System Employment Service and 

Employment-Related Law Complaint 

System 

COO Chief operating officer 

COSO Committee of Sponsoring 

Organizations of the Treadway 

Commission 

CPARS Contract Performance Assessment 

Reports 

CPP Career Preparation Period 

CRIS Common Reporting Information 

System 

CTS Career Transition Services 

CTT Career Technical Training 

DACA Deferred Action for Childhood 

Arrivals 

DINAP Division of Indian and Native 

American Programs 

DOL Department of Labor 

DVOP Disabled Veterans Outreach Program 

DWG Dislocated Worker Grant 

EBSS Enterprise Business Support System 

ED Department of Education 

EEOC Equal Employment Opportunity 

Commission 

E.O. Executive Order 

EO Equal opportunity 

ES Employment Service 

ESA Employment Standards 

Administration 

ESARS Employment Security Automated 

Reporting System 

ETA Employment and Training 

Administration 

ETP Eligible training provider 

ETPL Eligible training provider list 

FAR Federal Acquisition Regulations 

FECA Federal Employees Compensation 

Act 

FEIN Federal employer identification 

number 

FEMA Federal Emergency Management 

Agency 

FERPA Family Educational Rights and 

Privacy Act 

FLSA Fair Labor Standards Act 

FOA Funding Opportunity Announcement 

FPO Federal Project Officer 

FR Federal Register 

FTE Full Time Equivalent 

GED General Educational Development 

GIS Geographic information system 

GPRA Government Performance and 

Results Act 

HEARTH Homeless Emergency Assistance 

and Rapid Transition to Housing Act of 

2009 

HHS Department of Health and Human 

Services 

HOME HOME Investment Partnerships 

HSD High School Diploma 

HSE High School Equivalent 

HUD U.S. Department of Housing and 

Urban Development 

IC Information collection 

ICR Information Collection Request 

IEP Individual Employment Plan 

IEVS Income and Eligibility Verification 

System 

INA Indian and Native American 

IRFA Initial Regulatory Flexibility Analysis 

IRS Internal Revenue Service 

ISDEAA Indian Self-Determination and 

Education Assistance Act 

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ISS Individual Service Strategy 

ISY In-school youth 

IT Information technology 

ITA Individual Training Account 

JIS Job Information Service 

JS Job Service 

JTPA Job Training Partnership Act 

JVSG Jobs for Veterans State Grants 

LEARS Labor Exchange Agricultural 

Reporting System 

LEHD Longitudinal Employer-Household 

Dynamics 

LEP Limited English proficiency 

LEWIS Local Employment and Wage 

Information System 

LLC Limited Liability Corporation 

LLSIL Lower Living Standard Income Level 

LMI Labor Market Information 

Local WDB Local Workforce Development 

Board 

MOU Memorandum of Understanding 

MPO Management Performance Outcome 

MSFW Migrant and Seasonal Farmworker 

MSWR Medical Separation with 

Reinstatement Rights 

NAA National Apprenticeship Act 

NAACP National Association for the 

Advancement of Colored People 

NAETC Native American Employment and 

Training Council 

NAFTA North American Free Trade 

Agreement 

NAICS North American Industry 

Classification System 

NDWG National Dislocated Worker Grant 

NEG National Emergency Grant 

NFJP National Farmworker Jobs Program 

NICRA Negotiated Indirect Cost Rate 

Agreement 

NIEM National Information Exchange 

Model 

NLX National Labor Exchange 

NPRM Notice of Proposed Rulemaking 

OA Outreach and Admissions 

OALJ Office of Administrative Law Judges 

OBS On-board strength 

ODEP Office of Disability and Employment 

Policy 

OFLC Office of Foreign Labor Certification 

OIG Office of the Inspector General 

OJT On-the-job training 

OMB Office of Management and Budget 

OMS Outcome Measurement System 

OPDR Office of Policy Development and 

Research 

OSHA Occupational Safety and Health 

Administration 

OSY Out-of-school youth 

OTSA Oklahoma Tribal Service Area 

OWI Office of Workforce Investment 

PART Program Assessment and Rating Tool 

PBP Program Budget Plan 

PEDCS Post Enrollment Data Collection 

System 

PIA Privacy Impact Assessment 

PII Personally identifiable information 

PIP Performance improvement plan 

PIRL Participant Individual Record Layout 

PMP Projections Managing Partnership 

PPACA Patient Protection and Affordable 

Care Act 

PRA Paperwork Reduction Act of 1995 

PREP Profiling Reemployment Program 

PRH Policy and Requirements Handbook 

Pub. L. Public Law 

PY Program year 

REA Reemployment and Eligibility 

Assessment 

RESEA Reemployment Services and 

Eligibility 

RFA Regulatory Flexibility Act 

RFP Requests for proposals 

RHY Runaway or Homeless Youth 

Richey Order Judge Richey Court Order 

RIN Regulatory Information Number 

RMA Regional Monitor Advocate 

RSA Rehabilitation Services Administration 

SBA Small Business Administration 

SBREFA Small Business Regulatory 

Enforcement Fairness Act of 1996 

SDA Service delivery area 

sec. Section of a Public Law or the United 

States Code 

SESA State Employee Security Act 

S–FTP Secure File Transfer Protocol 

SMA State Monitor Advocate 

SOC Standard Occupational Classification 

SNAP Supplemental Nutrition Assistance 

Program 

SSA Social Security Act 

SSDI Social Security Disability Insurance 

SSN Social Security Number 

State WDB State Workforce Development 

Board 

STAWRS Simplified Tax and Wage 

Reporting System 

SWA State Workforce Agency 

SWCAP Statewide Cost Allocation Plans 

TAA Trade Adjustment Assistance 

TANF Temporary Assistance for Needy 

Families 

TAPR Trade Act Participant Report 

TAT Technical Assistance and Training 

TDD Telephone device for the deaf 

TEAP Trainee Employee Assistance 

Program 

TEGL Training and Employment Guidance 

Letter 

TEN Training and Employment Notice 

UC Unemployment Compensation 

UCX Unemployment Compensation for Exservice members 

UI Unemployment insurance 

U.S.C. United States Code 

VA Department of Veterans Affairs 

VETS Veterans’ Employments and Training 

Service 

VR Vocational rehabilitation 

Wagner-Peyser Act Wagner-Peyser Act of 

1933 

WARN Worker Adjustment and Retraining 

Notification 

WDB Workforce Development Board 

WHD Wage and Hour Division 

WIA Workforce Investment Act of 1998 

WIAC Workforce Information Advisory 

Council 

WIASRD Workforce Investment Act 

Standardized Record Data 

WIB Workforce investment boards 

WIC Workforce Information Council 

WIOA Workforce Innovation and 

Opportunity Act 

WLMI Workforce and Labor Market 

Information 

WLMIS Workforce and Labor Market 

Information System 

WPRS Worker Profiling and Reemployment 

Services 

WRIS Wage Record Interchange System 

YB-TAP YouthBuild Trainee 

Apprenticeship Program 

ZT Zero Tolerance 

III. Rulemaking Authority and 

Background 

A. Workforce Innovation and 

Opportunity Act Principles 

On July 22, 2014, President Obama 

signed WIOA, the first legislative reform 

of the public workforce system in more 

than 15 years, which passed Congress 

by a wide bipartisan majority. WIOA 

supersedes WIA and amends the Adult 

Education and Family Literacy Act 

(AEFLA), the Wagner-Peyser Act, and 

the Rehabilitation Act of 1973. WIOA 

presents an extraordinary opportunity 

for the public workforce system to 

accelerate its transformational efforts 

and demonstrate its ability to improve 

job and career options for our citizens 

through an integrated, job-driven public 

workforce system that links diverse 

talent to our nation’s businesses. It 

supports the development of strong, 

vibrant regional economies where 

businesses thrive and people want to 

live and work. 

WIOA reaffirms the role of the 

customer-focused one-stop delivery 

system, a cornerstone of the public 

workforce development system, and 

enhances and increases coordination 

among several key employment, 

education, and training programs. Most 

provisions in WIOA took effect on July 

1, 2015, the first full program year after 

enactment, although the new statutory 

State Plans and performance 

accountability system requirements take 

effect July 1, 2016. Title IV of WIOA, 

however, took effect upon enactment. 

WIOA is designed to help job seekers 

access employment, education, training, 

and support services to succeed in the 

labor market and to match employers 

with the skilled workers they need to 

compete in the global economy. WIOA 

has six main purposes: (1) Increasing 

access to and opportunities for the 

employment, education, training, and 

support services for individuals, 

particularly those with barriers to 

employment; (2) supporting the 

alignment of workforce investment, 

education, and economic development 

systems in support of a comprehensive, 

accessible, and high-quality workforce 

development system; (3) improving the 

quality and labor market relevance of 

workforce investment, education, and 

economic development efforts; (4) 

promoting improvement in the structure 

and delivery of services; (5) increasing 

the prosperity of workers and 

employers; and (6) providing workforce 

development activities that increase 

employment, retention, and earnings of 

participants and that increase 

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postsecondary credential attainment 

and as a result, improve the quality of 

the workforce, reduce welfare 

dependency, increase economic selfsufficiency, meet skill requirements of 

employers, and enhance productivity 

and competitiveness of the nation. 

Beyond achieving the requirements of 

the new law, WIOA offers an 

opportunity to continue to modernize 

the public workforce system, and 

achieve key hallmarks of a customer 

centered public workforce system, 

where the needs of business and 

workers drive workforce solutions, 

where one-stop centers and partners 

provide excellent customer service to 

job seekers and businesses, where the 

public workforce system pursues 

continuous improvement through 

evaluation and data-driven policy, and 

where the public workforce system 

supports strong regional economies. 

Regulations and guidance 

implementing WIOA titles I and III are 

issued by DOL, with the exception of 

the joint regulations issued by DOL and 

ED on the provisions in title I relating 

to unified and combined planning, 

performance, and the one-stop delivery 

system. Regulations and guidance on 

implementing titles II and IV of WIOA 

are issued by ED. The Joint WIOA Final 

Rule and the ED WIOA Final Rules are 

published elsewhere in this issue of the 

Federal Register. 

WIOA retains much of the structure of 

WIA, but with critical changes to 

advance greater coordination and 

alignment. Under title I, subtitle A, each 

State will be required to develop a 

single, unified strategic plan that is 

applicable to six core workforce 

development programs. The core 

programs consist of the adult, dislocated 

worker, and youth formula programs 

administered by the Department under 

WIOA title I; the Adult Education and 

Family Literacy program administered 

by ED under WIOA title II; the ES 

program administered by the 

Department and authorized by the 

Wagner-Peyser Act, as amended by 

WIOA title III; and the VR program 

administered by ED and authorized 

under title I of the Rehabilitation Act of 

1973, as amended by WIOA title IV (VR 

program). In addition to core programs, 

WIOA provides States the opportunity 

to include other key one-stop partner 

programs such as the Supplemental 

Nutrition Assistance Program (SNAP), 

Unemployment Insurance (UI), 

Temporary Assistance for Needy 

Families (TANF), and Perkins Career 

Technical Education in a Combined 

State Plan. The law also includes a 

common performance accountability 

system applicable to all of the core 

programs. 

The remainder of WIOA title I 

authorizes the adult, dislocated worker, 

and youth formula programs; the State 

and local WDBs (formerly workforce 

investment boards or WIBs); the 

designation of regions and local areas; 

local plans; the one-stop delivery 

system; national programs, including 

Job Corps, YouthBuild, Indian and 

Native American (INA) programs, and 

Migrant and Seasonal Farmworker 

(MSFW) programs; technical assistance 

and evaluations; and general 

administrative provisions currently 

authorized under title I of WIA. Title II 

retains and amends the Adult Education 

and Family Literacy Program currently 

authorized under title II of WIA. Title III 

contains amendments to the WagnerPeyser Act relating to the ES and 

Workforce and Labor Market 

Information System (WLMIS), and 

requires the Secretary to establish a 

WIAC. Title IV contains amendments to 

the Rehabilitation Act of 1973, which 

were also included under title IV of 

WIA; it also requires the Secretary of 

Labor to establish an Advisory 

Committee on Increasing Competitive 

Integrated Employment for Individuals 

with Disabilities. Finally, title V 

contains general provisions similar to 

the provisions applicable under title V 

of WIA as well as the effective dates and 

transition provisions. 

B. Major Changes From the Workforce 

Investment Act of 1998 

This section contains a summary of 

the major changes from WIA. As 

indicated above, WIOA retains much of 

the structure of WIA. Major changes in 

WIOA are: 

• Aligns Federal investments to 

support job seekers and employers. The 

Act provides for States to prepare a 

single Unified State Plan that identifies 

a 4-year strategy for achieving the 

strategic vision and goals of the State for 

preparing an educated and skilled 

workforce and for meeting the skilled 

workforce needs of employers. States 

govern the core programs as one system 

assessing strategic needs and aligning 

them with service strategies to ensure 

the public workforce system meets 

employment and skill needs of all 

workers and employers. 

• Streamlines the governing bodies 

that establish State, regional and local 

workforce investment priorities. WIOA 

makes State and Local WDBs more agile 

and well positioned to meet local and 

regional employers’ workforce needs by 

reducing the size of the WDBs and 

assigning them additional 

responsibilities to assist in the 

achievement of the State and local 

strategic workforce vision and goals. 

The State WDBs continue to have a 

majority of business representation and 

a business chair and work for all 

workers and job seekers, including lowskilled adults, youth, and individuals 

with disabilities, while they foster 

innovation, and ensure streamlined 

operations and service delivery 

excellence. 

• Creates a common performance 

accountability system and information 

for job seekers and the public. WIOA 

ensures that Federal investments in 

employment, education, and training 

programs are evidence-based and datadriven, and accountable to participants 

and the public. It establishes a 

performance accountability system that 

applies across the core programs, by 

generally applying six primary 

indicators of performance: Entry into 

unsubsidized employment at two points 

in time, median earnings, attainment of 

postsecondary credentials, measurable 

skill gains, and effectiveness in serving 

employers. 

• Fosters regional collaboration to 

meet the needs of regional economies. 

WIOA promotes alignment of workforce 

development programs with regional 

economic development strategies to 

meet the needs of local and regional 

employers. 

• Enhances access to high quality 

services through the network of one-stop 

delivery system. WIOA helps job seekers 

and employers acquire the services they 

need in centers and online, clarifies the 

roles and responsibilities of the one-stop 

partner programs, adds the TANF 

program as a required one-stop partner 

unless the Governor objects, requires 

competitive selection of one-stop 

operators, and requires the use by the 

one-stop delivery system of a common 

one-stop delivery identifier or brand 

developed by the Secretary of Labor 

(‘‘American Job Center,’’ see Joint WIOA 

Final Rule). 

• Improves services to individuals 

with disabilities. WIOA stresses 

physical and programmatic 

accessibility, including the use of 

accessible technology to increase 

individuals with disabilities’ access to 

high quality workforce services. 

• Makes key investments for 

disconnected youth. WIOA emphasizes 

services to disconnected youth to 

prepare them for successful 

employment by requiring that a 

minimum of 75 percent of youth 

formula program funds be used to help 

OSY, in contrast to the 30 percent 

required under WIA. WIOA increases 

OSYs’ access to WIOA services, 

including pre-apprenticeship 

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opportunities that result in registered 

apprenticeship. It adds a requirement 

that at least 20 percent of formula funds 

at the local level be used on work-based 

training activities such as summer jobs, 

OJT, and apprenticeship. 

• Helps employers find workers with 

the necessary skills. WIOA contributes 

to economic growth and business 

expansion by ensuring the public 

workforce system is job-driven— 

matching employers with skilled 

individuals. WIOA requires Local WDBs 

to promote the use of industry and 

sector partnerships that include key 

stakeholders in an industry cluster or 

sector that work with public entities to 

identify and address the workforce 

needs of multiple employers. 

Additionally, successful 

implementation of many of the 

approaches called for within WIOA, 

such as career pathways and sector 

strategies, require robust relationships 

across programs and with businesses, 

economic development, education and 

training institutions, including 

community colleges and career and 

technical education, local entities, and 

supportive services agencies. 

C. Workforce Innovation and 

Opportunity Act Rulemaking Process 

Since the enactment of WIOA, the 

Department has used a variety of means 

to coordinate with other Federal 

agencies that have roles and 

responsibilities under the Act. The 

Department works closely with staff at 

ED and the Department of Health and 

Human Services (HHS) on all shared 

policy and implementation matters. Key 

areas of collaboration include the 

Unified State Plan, performance 

reporting, one-stop service delivery, and 

services to disconnected youth and to 

individuals with disabilities. WIOA 

created an opportunity to enhance 

coordination and collaboration across 

other Federal programs through the 

Combined State Plan and the 

Department meets with the other 

Federal agencies regarding those plans. 

Before publishing the WIOA NPRM 

(80 FR 20690, Apr. 16, 2015), the 

Department solicited broad input 

through a variety of mechanisms 

including: 

• Issued Training and Employment 

Notice (TEN) No. 05–14 to notify the 

public workforce system that WIOA was 

enacted, accompanied by a statutory 

implementation timeline, a fact sheet 

that identified key reforms to the public 

workforce system, and a list of 

frequently asked questions. 

• Issued TEN No. 06–14 to announce 

a series of webinars to engage WIOA 

stakeholders in implementation of 

WIOA. 

• Issued TEN No. 12–14 to provide 

guidance to States and other recipients 

of funds under title I of WIA on the use 

and reporting of PY 2014 funds for 

planning and implementation activities 

associated with the transition to WIOA. 

• Established a WIOA Resource Page 

(www.doleta.gov/WIOA) to provide 

updated information related to WIOA 

implementation to the public workforce 

system and stakeholders; 

• Established a dedicated email 

address for the public workforce system 

and stakeholders to ask questions and 

offer ideas related to WIOA 

(DOL.WIOA@dol.gov); 

• Conducted, in conjunction with ED 

and HHS, outreach calls, webinars, and 

stakeholder and in-person town halls in 

each ETA region. The Department and 

its Federal partners hosted 10 town 

halls across the country, reaching over 

2,000 system leaders and staff 

representing core programs and onestop partners, employers, and 

performance staff. This included a town 

hall with INA leaders and membership 

organizations serving Indians and 

Native Americans, Hawaiians, and 

Alaskan Natives as well as a formal 

consultation with members of the 

Native American Employment and 

Training Advisory Council to the 

Secretary of Labor. 

• Conducted readiness assessments to 

implement WIOA in all States and 70 

local workforce areas to inform 

technical assistance. 

Since the DOL WIOA NPRM was 

published, the Department has issued 

additional WIOA guidance using 

various mechanisms including the 

following: 

• Issued numerous pieces of official 

guidance to the public workforce system 

on policies related to WIOA 

implementation (some jointly with ED), 

including ‘‘Vision for the One-Stop 

Delivery System under WIOA’’ (Aug. 13, 

2015) and TEGL No. 14–15, ‘‘Workforce 

Innovation and Opportunity Act (WIOA) 

Requirements for Unified and Combined 

State Plans.’’ See http://wdr.doleta.gov/ 

directives/All_WIOA_Related_

Advisories.cfm. 

• Provided on-going technical 

assistance to the public workforce 

system in the form of Frequently Asked 

Questions. See https://www.doleta.gov/

wioa/FAQs.cfm. 

• Developed a network of peer 

learners titled the Innovation and 

Opportunity Network (ION) that is 

designed to help all levels of workforce 

development professionals, 

stakeholders, and partners connect with 

others throughout the public workforce 

system who are working to implement 

WIOA. ION’s in-person collaboration is 

provided through the Department’s 

regional Federal Project Officers, and 

regional meetings with State and local 

stakeholders. Regarding online 

collaboration, the ION Web site 

provides webinars, quick start action 

planners, podcasts from voices in the 

field describing their experiences in 

implementation, and other online 

resources. 

• Conducted, in conjunction with ED 

and HHS, webinars for stakeholders on 

a variety of topics, including: 

Credentials that Count for Youth (Apr. 

29, 2015); ION (May 13 and June 3, 

2015); Firing Up Youth Standing 

Committees (May 27, 2015); Making the 

Shift—Successfully Leveraging InSchool Youth (ISY) and OSY Resources 

and Services (June 24, 2015); WIOA Act 

Now Series: Partnerships in Action (July 

1, 2015); Webinar Series Act Now: 

Governance, Leadership, and Building a 

Strategic Board (July 15, 2015); 

Collaborative Partnerships Serving 

Youth wish Disabilities (July 29, 2015); 

Customer-Centered Design 

Implementation WIOA (July 29, 2015); 

WIOA Eligible Training Provider 

Provisions: The First Year (Aug. 5, 

2015); WIOA Performance 

Accountability Reporting 

Requirements—Overview of Layout and 

Templates (Aug. 12 and 13, 2015); 

Career Pathways for Youth (Aug. 26, 

2015); Proposed Information Collection: 

Required Elements for Submission of 

the Unified or Combined State Plan and 

Plan Modifications Under WIOA (Aug. 

27, 2015); Implementing WIOA in Rural 

Areas (Sept. 30, 2015); DEI Lessons 

Learned for WIA/WIOA: How Integrated 

Resource Teams Achieved WIA 

Outcomes for Populations that 

Experience Multiple Challenges to 

Employment and Implications for WIOA 

(Oct. 22, 2015); ApprenticeshipUSA 

Online Toolkit: A New Tool to Advance 

Apprenticeship Under WIOA (Oct. 26, 

2015); Partnership Between WIOA and 

TANF to Serve Youth (Oct. 28, 2015). 

Workforce Innovation and Opportunity 

Act Information Collection Requests 

There are two new Information 

Collection Requests (ICRs) and six 

existing OMB-approved information 

collections that are being revised as part 

of this DOL WIOA Final Rule. Section 

V.B of the NPRM (Paperwork Reduction 

Act) included descriptions of the new 

ICRs and how the proposal would 

change each of the existing information 

collections. Section VI.D of this Final 

Rule (Paperwork Reduction Act) 

provides summary information about 

the public comments received on these 

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ICRs and details the final burden 

estimates for the revised information 

collections. 

Soon after publication of the DOL 

WIOA NPRM and the Joint WIOA 

NPRM, DOL and ED published a notice 

in the Federal Register announcing the 

joint ICR for the WIOA Performance 

Management, Information, and 

Reporting System (80 FR 43474, July 22, 

2015) and requested comments on this 

ICR during a 60-day public comment 

period (hereinafter ‘‘WIOA Joint 

Performance ICR’’) (see https://

www.regulations.gov/

#!docketDetail;D=ETA-2015-0007). On 

September 1, 2015, DOL solicited 

comments on its own WIOA 

performance accountability ICR to 

require the following programs to report 

on a standardized set of data elements 

through the WIOA Workforce 

Performance Accountability, 

Information, and Reporting System: 

WIOA adult, dislocated worker, and 

youth, ES, National Farmworker Jobs, 

Trade Adjustment Assistance, 

YouthBuild, INA, and the Jobs for 

Veterans’ State Grants (80 FR 52798) 

(hereinafter ‘‘DOL Performance ICR’’) 

(see https://www.regulations.gov/

#!docketDetail;D=ETA-2015-0008). On 

April 16, 2015, ED solicited comments 

on its ICR related to the VR program 

Case Service Report (RSA–911) to 

require VR agencies to report data 

required under sec. 101(a)(10) of the 

Rehabilitation Act of 1973, as amended 

by WIOA, as well as performance 

accountability data under title I of 

WIOA (hereinafter ‘‘RSA–911’’). DOL 

and ED received 112 public comment 

submissions in response to the WIOA 

Joint Performance ICR, DOL received 

public comments on the DOL 

Performance ICR, and ED received 

public comments on the RSA–911, 

respectively. The Departments address 

those comments in the final WIOA Joint 

Performance and DOL WIOA ICRs. 

On August 6, 2015, the U.S. 

Departments of Labor, Education, 

Health and Human Services, 

Agriculture, and Housing and Urban 

Development proposed a new 

information collection regarding 

required elements for submission of the 

Unified or Combined State Plan and 

Plan modifications under WIOA 

(hereinafter ‘‘WIOA State Plan ICR’’) (80 

FR 47003) (see https://

www.regulations.gov/

#!docketDetail;D=ETA-2015-0006). The 

WIOA State Plan ICR received a total of 

16 public comments. These public 

comment submissions informed the 

development of the final WIOA State 

Plan ICR, which OMB approved on 

February 19, 2016. See http://

www.reginfo.gov/public/do/PRASearch 

(ICR Reference No. 201601–1205–001). 

D. Legal Basis 

On July 22, 2014, the President signed 

WIOA (Pub. L. 113–128) into law. 

WIOA repeals WIA (29 U.S.C. 2801 et 

seq.). As a result, the WIA regulations 

no longer reflect current law. Section 

503(f) of WIOA required that the 

Department issue an NPRM and then a 

Final Rule that implements the changes 

WIOA makes to the public workforce 

system in regulations. Therefore, the 

Department has developed and issued 

this Final Rule that implements WIOA. 

The Department has issued regulations 

regarding the WIOA sec. 188 

nondiscrimination and equal 

opportunity provisions through separate 

rulemaking. See 80 FR 43872 (July 23, 

2015) (establishing WIOA sec. 188 

implementing regulations at 29 CFR part 

38); 81 FR 4494 (Jan. 26, 2016) 

(proposing updates to 29 CFR part 38 

consistent with current equal 

opportunity law). 

IV. Public Comments Received on the 

Notice of Proposed Rulemaking 

The Department’s NPRM to 

implement titles I and III of WIOA was 

published on April 16, 2015 (80 FR 

20690). During the 60-day public 

comment period, the Department 

received a total of 767 public comments 

on the WIOA NPRM. In addition to 

these submissions, the Department also 

considered portions of 84 public 

comment submissions from the Joint 

WIOA NPRM docket that the 

Department determined related to the 

DOL WIOA NPRM. The Joint WIOA 

NPRM, which proposed regulations to 

implement jointly administered 

activities authorized under WIOA title I, 

was also published on April 16, 2015 

(80 FR 20574). 

General Comments 

Comments: Several commenters 

expressed general support for the 

proposed regulation, commenting that 

the regulations would increase 

employment, make the United States 

more competitive, lead to higher wages, 

and produce other benefits. Some of 

these commenters expressed confidence 

that that the Department can deliver on 

this proposal, and that the associated 

expense is necessary. Several comments 

made general positive remarks about 

WIOA, and specifically cited an 

emphasis on one or more specific 

aspects of the law, such as adult 

education, college and career readiness, 

strengthening connections among 

programs and recognizing the role of 

distance learning and technology in 

reaching broader audiences. The 

commenters suggested that WIOA 

provides adequate flexibility to 

accommodate differences among States 

(e.g., size, population density and 

population diversity. Some commenters 

discussed workforce developmentrelated services currently provided or 

cited statistics that they asserted 

illustrate the current or historical use of 

the public workforce system in terms of 

services and participant demographics. 

For example, one organization cited 

statistics regarding which aspects of 

titles I and II are being used by LEP 

individuals. 

Department Response: Since these 

comments require no response, they are 

not addressed in this DOL WIOA Final 

Rule. No submissions expressed general 

opposition to the proposal. Instead, 

many commenters discussed their 

disagreement with specific aspects of 

the proposal. These comments are 

addressed in the associated and 

appropriate sections of the section-bysection discussion of the Final Rule (see 

section V below). 

Requests To Extend the Comment 

Period 

Comments: A few commenters 

requested a 60-day extension of the 

comment period. The commenters cited 

the size and complexity of the five 

proposed NPRMs implementing WIOA. 

Department Response: While the 

Department recognizes that the issues 

addressed in the DOL WIOA NPRM are 

complex and important, the Department 

concluded that the 60-day comment 

period was sufficient to provide the 

public a meaningful opportunity to 

comment, and this conclusion is 

supported by the hundreds of complex 

and thoughtful comments received. 

Additionally, the NPRM was available 

to the public for a preliminary review 

on the Federal Register Web site upon 

submission of the NPRMs to the Federal 

Register, which was several weeks prior 

to publication, thereby providing 

stakeholders additional time prior to the 

publication date. 

Coordination and the WIOA 

Rulemaking Process 

Comments: A commenter urged the 

Departments of Labor and Education to 

increase collaboration, including more 

coordinated implementation guidance, 

providing incentives for programs 

within the two Departments to 

participate in a Combined Plan, and 

affording flexibility in use of funding 

streams and on performance 

accountability. Two commenters said 

that aspects of the proposed regulations 

suggest lesser coordination of WIOA 

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guidance and oversight across 

Departments than envisioned by WIOA. 

Further, these commenters expressed 

concern that the lack of specificity in 

areas of the proposed regulations could 

result in the issuance of Federal 

guidance on levels that should be in 

regulation to ensure that States and 

local areas have an opportunity to 

comment. 

Department Response: The 

Departments of Labor and Education 

have taken great care to coordinate the 

issuance of collaborative guidance 

regarding WIOA implementation, 

including TEGL No. 14–15, ‘‘Workforce 

Innovation and Opportunity Act (WIOA) 

Requirements for Unified and Combined 

State Plans’’; TEGL No. 04–15, ‘‘Vision 

for the One-Stop Delivery System under 

the Workforce Innovation and 

Opportunity Act (WIOA).’’ The 

Departments will continue to issue 

guidance collaboratively. As 

appropriate, the Department will reach 

out and consult other stakeholders as it 

develops guidance and technical 

assistance. As the Department 

implements WIOA, it anticipates lots of 

stakeholder outreach, building on our 

long established relationships. The 

Department will continue this robust 

outreach throughout implementation. 

V. Section-by-Section Discussion of 

Public Comments and Final Regulations 

The analysis in this section provides 

the Department’s response to public 

comments received on the DOL WIOA 

NPRM. If a proposed CFR section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on the NPRM that were 

outside the scope of the proposed 

regulation and the Department offers no 

response to such comments. Lastly, the 

Department has made a number of nonsubstantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

A. Part 603—Federal-State 

Unemployment Compensation Program 

Relationship Between 20 CFR part 603 

and WIOA 

The disclosure of wage record data is 

governed by 20 CFR part 603, which 

establishes requirements for 

maintaining the confidentiality of 

unemployment compensation (UC) 

information along with standards for 

mandatory and permissive disclosure of 

such information. Part 603 permits State 

agencies to disclose confidential 

unemployment compensation 

information—including ‘‘wage 

information’’ (referred to in § 603.2(k))— 

to ‘‘public officials’’ (defined at 

§ 603.2(d)) under limited circumstances 

(under § 603.5), and authorizes such 

public officials in turn to use the 

information to meet certain Federal 

requirements in the performance of their 

official duties. 

The Department has decided to 

amend 20 CFR part 603 as proposed in 

the NPRM. These Final Rules amend 

current regulations to clarify and 

expand, in a limited fashion, those 

public officials with whom the State 

may share certain confidential 

information to carry out requirements 

under WIOA. The regulations 

enumerate certain additional public 

officials who may access confidential 

State wage records for the State’s 

performance reporting. Ensuring such 

access to these State records will allow 

State agencies to manage better the 

information for the purpose of making 

Federally required reports on certain 

program outcomes, and to cooperate 

more effectively and be more 

informative with respect to Federal 

program evaluations. 

WIOA sec. 116(i)(2) and 20 CFR 

677.175(a) (see Joint WIOA Final Rule) 

require State workforce, training, and 

education programs to use quarterly 

wage records to measure the progress of 

the State on State and local performance 

accountability measures. The 

Department interpreted at 20 CFR 

677.175(b) the reference to ‘‘quarterly 

wage records’’ in WIOA sec. 116(i)(2) to 

require States to use the confidential UC 

information in the employer-provided 

wage reports collected under sec. 1137 

of the Social Security Act (SSA), 42 

U.S.C. 1320b–7. These are the reports 

that the State UC agency obtains from 

employers for determining UC tax 

liability, monetary eligibility, or for 

cross-matching against State UC 

agencies’ files to determine if improper 

payments have been made. 

The regulation at 20 CFR 677.175(b) 

(see Joint WIOA Final Rule) defines 

‘‘quarterly wage record information’’ to 

include three data elements or 

categories of data elements: (1) A 

program participant’s Social Security 

Number (SSN); (2) information about 

the wages that program participants 

earn after exiting from the program; and 

(3) the name, address, State, and (when 

known) Federal Employer Identification 

Number (FEIN) of the employer paying 

those wages. The ‘‘wage information’’ 

defined in § 603.2(k)—which the 

regulations allow State agencies to 

disclose under limited circumstances— 

includes the three data categories or 

elements (wages, SSN(s), employer 

information) that States must use as 

their data source for State and local 

performance reporting under WIOA. 

These terms are different but refer to the 

same information: wage records. 

As explained in greater detail below, 

in the NPRM the Department proposed 

to change and expand § 603.2 

(definition of ‘‘public official’’) and 

change § 603.5 (governing disclosures to 

public officials) to help States comply 

with WIOA’s performance requirements, 

including the performance reports of the 

States, local areas, and Eligible Training 

Providers (ETPs). In addition, the 

Department amended § 603.6 to add a 

provision requiring disclosure of 

confidential UC information to a Federal 

official (or an agent or contractor of a 

Federal official) requesting such 

information to meet the new statutory 

requirement on State cooperation with 

certain DOL and ED evaluations. These 

changes facilitate States’ obligations to 

report on performance through the use 

of quarterly wage records, and to 

cooperate in DOL and ED evaluations. 

The amendments to 20 CFR part 603 

only relate to State agency disclosures 

necessary to comply with certain 

provisions of WIOA. Much of part 603 

was left intact and was not considered 

for amendment in the NPRM, the 

purpose of which was to implement 

WIOA, not to otherwise impact partner 

programs. The Department invited 

comments on the proposed amendments 

to part 603, but did not consider 

comments on other portions of part 603 

or other UC matters that are outside the 

scope of the proposed rulemaking. 

The Department received 22 

comments in response to the proposed 

changes to part 603. While normally the 

Department does not discuss comments 

that are outside the scope of the 

amendment, the Department notes that 

only the portions of part 603 that are 

being amended were part of the NPRM 

and open for comment. The existing 

data protections required under other 

portions of part 603 will continue and 

will be enforced. These required 

protections, laid out in §§ 603.8, 603.9, 

603.10, and 603.12, ensure that 

confidential UC data are secure. These 

portions of part 603 were not considered 

for amendment and so were excluded 

from the NPRM. 

The analysis that follows provides the 

Department’s response to public 

comments received on the proposed 

part 603 regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

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in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

Section 603.2 What definitions apply 

to this part? 

Definition of ‘‘public official’’: The 

changes to this section amend the 

definition of ‘‘public official’’ as used 

throughout part 603. The changes to 

§ 603.2(d), to facilitate State compliance 

with WIOA’s reporting requirements, 

clarify and expand the definition of who 

and what entities are considered 

‘‘public officials.’’ The amendments to 

§ 603.2(d) clearly enumerate that 

‘‘public official’’ includes officials from 

public postsecondary educational 

organizations; State performance 

accountability and customer 

information agencies; the chief elected 

officials of local areas (as that term is 

used in WIOA sec. 106); and a public 

State educational authority, agency, or 

institution. Some of these officials 

already would meet the definition of 

‘‘public official’’ under current 

§ 603.2(d); however, the amendments 

make this clear. 

Comments: The Department received 

some comments suggesting clarification 

of the definition and application of the 

phrase ‘‘chief elected official.’’ 

Department Response: No changes 

were made to the regulatory text in 

response to these comments. Such 

clarification is best accomplished 

through guidance and technical 

assistance as needed. 

Disclosure to public postsecondary 

institutions: Section 603.2(d)(2) permits 

disclosure to public postsecondary 

educational institutions, regardless of 

how those institutions are structured or 

organized under State law. Section 

603.2(d)(2) clearly delineates the types 

of postsecondary educational 

institutions that are allowed access to 

confidential UC information: 

(1) Public postsecondary educational 

institutions that are part of a State’s 

executive branch, i.e., that derive their 

authority either directly from the 

Governor or from an entity (State WDB, 

commission, etc.) somewhere in that 

line of authority (see § 603.2.(d)(2)(i)); 

(2) Public postsecondary educational 

institutions that are independent of the 

State’s executive branch, which means 

those institutions whose directors 

derive their authority either directly 

from an elected official in the State 

other than the Governor or from an 

entity (again, a State WDB, commission, 

or other entity) in that line of authority. 

This covers any public postsecondary 

educational institution established and 

governed under State law, for example, 

a State Board of Regents (see 

§ 603.2(d)(2)(ii)); 

(3) State technical colleges and 

community colleges, which may also be 

covered under (1) or (2) (see 

§ 603.2(d)(2)(iii)). 

Section 603.2(d)(5) permits disclosure 

to a public State educational authority, 

agency, or institution; the Department 

considers the heads of public 

institutions deriving their authority 

from a State educational authority or 

agency to be ‘‘public officials’’ for 

purposes of part 603. 

These changes are designed to help 

States comply with WIOA’s requirement 

to use wage records to measure 

performance (WIOA sec. 116(i)(2)) and 

to facilitate the performance reporting 

required for ETPs under secs. 116(d) 

and 122 of WIOA. As long as the 

recipients of the data adhere to all of the 

requirements in 20 CFR part 603, this 

section permits States to make these 

disclosures to comply with WIOA 

requirements for Federal, State, or local 

government reporting on program 

outcomes and for other specified 

purposes. 

Comments: The Department received 

several comments requesting that nonpublic educational institutions, 

community-based organizations, and 

for-profit educational institutions be 

added to the list of entities included in 

the term ‘‘public official.’’ 

Department Response: As explained 

in the NPRM, non-public educational 

institutions, including non-profit or forprofit educational institutions, 

community-based organizations, and 

eligible training providers that are not 

subject to the authority of the executive 

branch of a State or other elected 

official, are not permitted to obtain 

confidential UC information, including 

wage information, under this authority. 

In first proposing the ‘‘public official’’ 

exception to the UC confidentiality 

requirement in 69 FR 50,022, 50,027 

(2004), the Department explained that 

‘‘there is less risk of unauthorized use 

or disclosure of UC information if 

responsibility for safeguarding 

confidentiality rests within the 

executive or legislative branches of 

government.’’ Any disclosures of 

confidential UC information to those 

entities for purposes of complying with 

WIOA must be authorized under an 

exception contained in § 603.5 other 

than § 603.5(e). The Department is 

issuing guidance to address how nonpublic entities that need wage record 

information to complete reports 

required under WIOA will be able to 

obtain access to aggregate wage record 

information for this purpose. No 

changes were made to the regulatory 

text in response to these comments. 

Section 603.6(b)(8) What disclosures 

are required by this subpart? 

Section 603.6(b)(8) makes the 

disclosure of confidential UC 

information mandatory for certain 

Federal evaluations when the disclosure 

does not interfere with the efficient 

administration of State UC law. The 

addition of § 603.6(b)(8) implements the 

requirement that States cooperate in 

conducting evaluations under the 

authority of either the Secretary of Labor 

or the Secretary of Education under 

WIOA sec. 116(e)(4). This cooperation, 

defined in WIOA, must include ‘‘the 

provision of data (in accordance with 

appropriate privacy protections 

established by the Secretary of Labor)’’; 

this includes 20 CFR part 603 and any 

other privacy protections the Secretary 

may establish. The final regulation 

requires disclosure of confidential UC 

information to Federal officials or their 

agents or contractors, requesting such 

information in the course of an 

evaluation covered by WIOA secs. 

116(e)(4) and 116(e)(1) to the extent that 

such disclosure is ‘‘practicable.’’ 

The Department interprets ‘‘to the 

extent practicable’’ to mean that the 

disclosure would not interfere with the 

efficient administration of State UC law. 

This interpretation is consistent with 

the application of regulations that apply 

to disclosures under § 603.5. The 

introductory language to § 603.5 

provides that, in situations where the 

disclosure of confidential UC 

information is permitted, the State may 

make the disclosure only if doing so 

would not interfere with the efficient 

administration of State UC law. In 

effect, § 603.6(b)(8) requires that State 

UC agencies make disclosures to DOL 

and ED for the purposes of the 

Departments’ conducting evaluations, 

when the disclosures do not interfere 

with the efficient administration of the 

State UC law. The Department expects 

this cooperation and related disclosures 

to include responding to surveys and 

allowing site visits, as well as disclosing 

confidential UC information needed for 

evaluations. 

Comments: The Department received 

two comments that raised concerns that 

the adoption of § 603.6(b)(8) would 

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allow the creation of a national UC 

database and require a State’s ‘‘entire UI 

file.’’ 

Department Response: The 

information required to be disclosed for 

a given evaluation is considerably less 

than what may be included in a State’s 

UC file. Additionally, these disclosures 

are required only for research, 

evaluation, and investigation purposes 

found in WIOA, the Rehabilitation Act 

of 1973, and the Wagner-Peyser Act, as 

well as evaluations under other laws. 

The information disclosed may not be 

used for purposes other than that for 

which it was obtained. These 

disclosures are subject to the 

appropriate privacy and confidentiality 

protections found throughout 20 CFR 

part 603. Research projects, evaluations, 

and investigations have set time frames 

for which data are being reviewed and 

are generally limited in scope. In 

general, the Department would not be in 

possession of any of the information 

requested under the disclosure 

provisions at § 603.6(b)(8). The 

researcher, evaluator, or investigator 

would be in possession of the 

information and use it for their stated 

purposes under proper authority or 

would be subject to sanctions for breach 

of the agreement under which the data 

were obtained. No changes were made 

to the regulatory text in response to 

these comments. 

B. Part 675—Introduction to the 

Regulations for the Workforce 

Development Systems Under Title I of 

the Workforce Innovation and 

Opportunity Act 

Part 675 discusses the purpose of title 

I of the WIOA, explains the format of 

the regulations governing title I, and 

provides additional definitions which 

are not found and defined in WIOA. 

Section 675.100 describes the 

purposes of title I of WIOA. 

Section 675.200 outlines the structure 

of the WIOA regulations. 

Section 675.300 provides a list of 

definitions that are applicable across the 

WIOA regulations. 

Included in this list of definitions, the 

Department includes the following 

relevant definitions from the Office of 

Management and Budget’s (OMB) 

‘‘Uniform Administrative Requirements, 

Cost Principles and Audit Requirements 

for Federal Awards’’ found at 2 CFR part 

200: Contract, Contractor, Cooperative 

Agreement, Federal Award, Federal 

Financial Assistance, Grant Agreement, 

Non-Federal Entity, Obligations, PassThrough Entity, Recipient, Subaward, 

Subrecipient, Unliquidated Obligations, 

and Unobligated Balance. All other 

definitions at 2 CFR part 200 apply to 

these regulations where relevant, but 

have not been included in this section. 

Contract. The definition for 

‘‘contract’’ incorporates the definition 

established by OMB at 2 CFR 200.22. 

Specifically, the term ‘‘contract’’ refers 

to the legal document that a non-Federal 

entity uses to purchase property or 

services used to carry out its duties 

under a grant authorized under WIOA. 

If the Department determines that a 

particular transaction entered into by 

the entity is a Federal award or 

subaward it will not be considered a 

contract. 

Contractor. The definition of 

‘‘contractor’’ incorporates the definition 

contained in OMB’s Uniform Guidance 

at 2 CFR 200.23. The Uniform Guidance 

has replaced the term ‘‘vendor’’ with the 

term ‘‘contractor.’’ As used in these 

regulations, the term ‘‘contractor’’ 

includes entities that WIOA refers to as 

‘‘vendors.’’ Additionally, it is important 

to note that contractors are not 

subrecipients. Additional guidance on 

distinguishing between a contractor and 

a subrecipient can be found at 2 CFR 

200.330. 

Cooperative Agreement. The 

definition of ‘‘cooperative agreement’’ 

incorporates the definition contained in 

the Uniform Guidance at 2 CFR 200.24. 

Department or DOL. This term refers 

to the United States Department of 

Labor, its agencies, and organizational 

units. 

Employment and Training Activity. 

As used in these regulations, the term 

‘‘employment and training activity’’ 

refers to any workforce investment 

activities carried out for an adult or 

dislocated worker under sec. 134 of 

WIOA and 20 CFR part 678 (see Joint 

WIOA Final Rule). 

Equal Opportunity (EO) Data. This 

term refers to the data required by the 

Department’s regulations at 29 CFR part 

37 implementing sec. 188 of WIOA. 

ETA. This term refers to the 

Employment and Training 

Administration, which is an agency of 

DOL, or its successor organization. 

Federal Award. This definition 

incorporates the definition in the 

Uniform Guidance at 2 CFR 200.38. 

Federal Financial Assistance. The 

definition of ‘‘Federal financial 

assistance’’ incorporates the definition 

contained in the Uniform Guidance at 2 

CFR 200.40. 

Grant or Grant Agreement. The 

definition of ‘‘grant agreement’’ 

incorporates the definition contained in 

the Uniform Guidance at 2 CFR 200.51. 

Because both WIOA and these 

regulations use ‘‘grant’’ and ‘‘grant 

agreement’’ interchangeably, the 

inclusion of both terms here clarifies 

that the terms are synonymous. 

Grantee. The definition of ‘‘grantee’’ 

refers to a recipient of funds under a 

grant or grant agreement. Grantees are 

also referred to as recipients in these 

regulations. 

Individual with a Disability. This 

definition uses the definition from sec. 

3 of the Americans with Disabilities Act, 

as amended, and is further defined at 29 

CFR 37.4. 

Labor Federation. This definition 

remains unchanged from the definition 

used in the regulations under WIA at 20 

CFR 660.300. 

Literacy. The definition for ‘‘literacy’’ 

as used in these regulations is a measure 

of an individual’s ability to participate 

and successfully function both in the 

workplace and in society. 

Local WDB. This definition clarifies 

that the term ‘‘Local WDB’’ as used in 

these regulations refers to the Local 

Workforce Development Boards (WDB) 

established under WIOA sec. 107, to set 

policy for the local workforce 

development system. 

Non-Federal Entity. The definition of 

‘‘non-Federal entity’’ incorporates the 

definition contained in the 

Department’s Exceptions to the Uniform 

Guidance at 2 CFR 2900.2. 

Obligations. The definition of 

‘‘obligations’’ incorporates the 

definition contained in the Uniform 

Guidance at 2 CFR 200.71. 

Outlying Area. The term ‘‘outlying 

area’’ refers to those Territories of the 

United States which are not within the 

definition of ‘‘State,’’ including the U.S. 

Virgin Islands, Guam, American Samoa, 

the Commonwealth of the Northern 

Mariana Islands, and, in certain 

circumstances, the Republic of Palau. 

Pass-through entity. The definition of 

pass-through entity incorporates the 

definition in the Uniform Guidance at 2 

CFR 200.74. 

Recipient. The definition of 

‘‘recipient,’’ which is different than the 

current definition of recipient under 

WIA at 20 CFR 660.300, incorporates 

the definition in the Uniform Guidance 

at 2 CFR 200.86. 

Register. The definition of ‘‘register’’ 

means the point at which an individual 

seeks more than minimal assistance 

from staff in taking the next step 

towards self-sufficient employment. 

This is also when information that is 

used in performance information begins 

to be collected. At a minimum, 

individuals must provide identifying 

information to be registered. 

Secretary. This term refers to the 

Secretary of the U.S. DOL, or their 

officially delegated designees. 

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Secretaries. This term refers to the 

Secretaries of the U.S. DOL and the U.S. 

ED, or their officially designated 

designees. 

Self-Certification. The term ‘‘selfcertification’’ refers to the certification 

made by an individual that they are 

eligible to receive services under title I 

of WIOA. 

State. The term ‘‘State’’ refers to each 

of the several States of the United 

States, the District of Columbia, and the 

Commonwealth of Puerto Rico. 

State WDB. This definition clarifies 

that the term ‘‘State WDB’’ as used in 

these regulations refers to the State 

Workforce Development Boards (WDB) 

established under WIOA sec. 101. 

Subgrant or Subaward. This term 

incorporates the definition of 

‘‘subaward’’ in the Uniform Guidance at 

2 CFR 200.92. This term replaces the 

term ‘‘subgrant’’ found in WIA at 20 

CFR 660.300. Because both WIOA and 

these regulations use ‘‘subgrant’’ and 

‘‘subaward’’ interchangeably, the 

inclusion of both terms here clarifies 

that the terms are synonymous. 

Subrecipient. The definition of 

‘‘subrecipient’’ incorporates the 

definition in the Uniform Guidance at 2 

CFR 200.93. This term is synonymous 

with the term ‘‘subgrantee.’’ 

Unliquidated Obligations. The 

definition of ‘‘unliquidated obligations’’ 

incorporates the definition contained in 

the Uniform Guidance at 2 CFR 200.97. 

Unobligated Balance. The definition 

of ‘‘unobligated balance’’ incorporates 

the definition in the Uniform Guidance 

at 2 CFR 200.98. 

Wagner-Peyser Act. As used in these 

regulations, the term ‘‘Wagner-Peyser 

Act’’ refers to the Wagner-Peyser Act 

passed on June 6, 1933, and codified at 

29 U.S.C. 49 et seq. 

WIA Regulations. The term ‘‘WIA 

Regulations’’ as used in this regulation 

or subsequently by the Department 

refers to the regulations 20 CFR parts 

660 through 672. This definition is 

necessary because, as described in the 

introduction to these regulations, the 

Department has chosen to retain the 

WIA regulations at parts 660 through 

672 of title 20 of the CFR. 

WIOA Regulations. This term, as used 

in this regulation or generally by the 

Department means those regulations in 

20 CFR parts 675 through 687, the 

Wagner-Peyser Act regulations in 20 

CFR part 652, subpart C, and the 

regulations implementing WIOA sec. 

188 in 29 CFR part 37. 

Workforce Investment Activities. The 

term ‘‘workforce investment activities’’ 

is a general term that describes the 

broad array of activities and services 

provided to eligible adults, dislocated 

workers, and youth under secs. 129 and 

134 of title I of WIOA. 

Youth Workforce Investment Activity. 

The term ‘‘youth workforce investment 

activity’’ refers to those activities carried 

out for eligible youth that fall within the 

broad definition of ‘‘workforce 

investment activity.’’ 

Section 675.100 What are the purposes 

of title I of the Workforce Innovation 

and Opportunity Act? 

Comments: An advocacy organization 

urged the Department to include in 

§ 675.100 a reminder to States and 

employers of their existing obligations 

under the Americans with Disabilities 

Act (ADA), notwithstanding anything 

else reflected in the WIOA regulations. 

Department Response: The 

Department takes nondiscrimination 

seriously and addresses it in the 

regulation at 20 CFR part 38. No change 

to the regulatory text was made in 

response to this comment. 

Section 675.200 What do the 

regulations for workforce development 

systems under title I of the Workforce 

Innovation and Opportunity Act cover? 

Comments: Some commenters 

provided feedback on technical 

corrections for this section, while others 

provided comments that addressed 

specific provisions found elsewhere in 

this regulation. 

Department Response: Technical 

corrections were made to this section. In 

addition, several comments that 

referenced this section were more 

appropriately addressed in other parts 

of the regulation, and have been so 

addressed. 

Section 675.300 What definitions 

apply to these regulations? 

Comments: Some commenters 

suggested that the Department should 

provide additional detail on what is 

involved in a requirement to consult. 

These commenters generally 

emphasized the importance of 

meaningful consultation. For example, 

referring to the proposed definition of 

consultation, a Local WDB commented 

that ‘‘exchanging viewpoints and ideas’’ 

is only helpful when both parties feel 

equally empowered to influence the 

outcome of the discussion. Two 

commenters expressed concern that the 

requirement to consult could be 

interpreted to mean just share 

information or whatever else is in the 

best interest of the entity required to 

consult. Another commenter suggested 

that consultation should be defined as 

strongly as possible to stress advanced 

notice, robust conversation, and 

collaborative efforts with local areas 

prior to the State’s decision-making 

process. Some commenters made 

specific suggestions for what the 

Department should or could include in 

a definition of consultation, including 

active engagement, good faith 

discussion and decision-making 

agreement and consent from local 

elected officials, the Local WDB, and the 

State WDB, provision of written notice 

of intended changes with a cost-benefit 

analysis and a specific timeframe for 

public comment, process to contest 

decisions through a formal grievance 

process, requiring consultation with the 

largest and smallest local areas in the 

State, and requiring State WDB 

members to visit and engage local areas. 

Department Response: The 

Department agrees with the need to 

emphasize meaningful consultation and 

revised the definition of consultation in 

this section to emphasize convening, 

robust conversation, and an opportunity 

for all stakeholders to share their 

thoughts and opinions. In addition, 

some of the specific suggestions not 

incorporated into this definition are 

addressed in other parts of this 

regulation and the Joint WIOA Final 

Rule. For example, 20 CFR part 676 

requires public comment on Unified 

and Combined State Plans (see Joint 

WIOA Final Rule), and part 679 of this 

regulation requires governors to appoint 

only persons who have been nominated 

by certain stakeholder organizations to 

certain positions on the State WDB. 

Comments: A commenter 

recommended clearly defining ‘‘career 

pathways’’ in this regulation in such a 

way to ensure flexibility in deviation 

from a pathway if education and 

employment requirements are met. 

Department Response: WIOA secs. 

3(7)(A) through (G) define career 

pathways as a combination of rigorous 

high-quality education, training, and 

other services that meet specified 

guidelines. The Department agrees that 

additional guidance would help State 

and Local WDBs implement career 

pathways. With the Department of 

Education, the Department has 

published a Career Pathways Toolkit, 

which can be found at 

www.DOLETA.gov, and continues to 

provide guidance and technical 

assistance on the implementation of 

career pathways under WIOA. 

Comments: Asserting that neither 

WIOA sec. 3 nor the WIOA NPRMs 

include a definition of ‘‘family,’’ some 

commenters suggested that the 

Department provide clarification on this 

term. 

Department Response: The 

Department agrees that ‘‘family’’ is a 

term that should be defined in this 

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regulation and has added a definition of 

family that is based on the WIA 

definition and has been updated to 

reflect the Supreme Court decision in 

United States v. Windsor, 133 S. Ct. 

2675 (2013). While this definition 

applies to all parts of this regulation, the 

Department notes that part 681 of this 

regulation adds a reference to 

dependents, per specifications of the 

Internal Revenue Service, when this 

definition is considered as part of a 

determination of eligibility to 

participate in the WIOA youth programs 

described in that part. 

Comments: Several commenters 

recommended adding to this part 

definitions of terms not addressed above 

or in the NPRM. Most of them were 

related to indicators of performance of 

WIOA title I programs, which are 

addressed in 20 CFR part 677 of the 

Joint WIOA Final Rule. Several other 

comments focused on defining or 

revising definitions of terms that are 

used in regulations applying solely to 

Department of Education programs. The 

Department worked with the 

Department of Education to ensure they 

were addressed where they most 

appropriately fit, which was often in the 

Joint WIOA Final Rule and sometimes 

in specific parts of this regulation. 

Department Response: The 

Department considered these comments 

and addressed them in other parts of 

this regulation, as appropriate, and 

worked with the Department of 

Education to address these comments in 

the most relevant part of the most 

appropriate regulation. For example, 

some commenters suggested definitions 

of terms related to performance under 

WIOA title I programs are addressed in 

20 CFR part 677 (see Joint WIOA Final 

Rule) and comments related to serving 

youth under WIOA title I programs are 

addressed in part 681. 

In addition, the Department realized 

that the NPRM contained minor 

inconsistencies in how it defined 

‘‘individual with a disability’’ across 

parts. The Department therefore edited 

such definitions using the statutory 

definition at WIOA sec. 3(25), which 

uses the definition from the Americans 

with Disabilities Act (ADA), to make 

them consistent with each other. The 

Department interprets all references to 

the ADA to include case law and 

interpretive guidance. The Department 

also changed the terms ‘‘workforce 

innovation and opportunity system,’’ 

and ‘‘workforce investment system’’ to 

‘‘workforce development system’’ 

throughout this rule. This was done to 

enhance consistency across parts and 

avoid confusion, and to be emphasize 

the role of workforce development 

boards in this system. 

C. Part 679—Statewide and Local 

Governance of the Workforce 

Development System Under Title I of 

the Workforce Innovation and 

Opportunity Act 

20 CFR part 679 addresses the 

Statewide and Local Governance 

provisions of the Workforce 

Development System under title I of 

WIOA. This part includes provisions on 

the State WDB, the Workforce 

Innovation and Opportunity Act Local 

Governance (Workforce Development 

Areas), Local WDBs, Regional and Local 

Plans, and Waivers/Workforce 

Flexibility Plans. 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

Statewide and Local Governance 

regulations. If a section is not addressed 

in the discussion below, it is because 

the public comments submitted in 

response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

1. Subpart A—State Workforce 

Development Board 

Subpart A sets forth the conditions 

under which the Governor must 

establish the State WDB. 20 CFR 

679.100(a) through (e) explain the 

purpose of the State WDB. The State 

WDB represents a wide variety of 

individuals, businesses, and 

organizations throughout the State. 

WIOA is designed to help job seekers 

and workers access employment, 

education, training, and support 

services needed to succeed in the labor 

market, and match employers with the 

skilled workers needed to compete in 

the global economy. The State WDB has 

the critical role of leading and guiding 

the State’s implementation of WIOA, 

which requires aligning Federal 

investments in job training, integrating 

service delivery across programs, and 

ensuring that workforce investments are 

job-driven and match employers with 

skilled workers. The State WDB serves 

as a convener of State, regional, and 

local workforce system partners to 

enhance the capacity and performance 

of the workforce development system 

and align and improve employment, 

training, and education programs, and 

through these efforts, promote economic 

growth. The State WDB’s role as a 

strategic convening place where key 

stakeholders and partnerships come 

together can be accomplished only if 

each State WDB member is an active 

participant in the business of the board. 

State WDB members must establish a 

platform in which all members actively 

participate and collaborate closely with 

the required partners of the workforce 

development system, and other 

stakeholders, including public and 

private organizations. This engagement 

is crucial in the State WDB’s role to help 

integrate and align a more effective jobdriven workforce development system 

that invests in the connection between 

education and career preparation. 

Overarching Comments on State WDBs 

Comments: Commenters expressed 

concern with the WIOA implementation 

timelines for establishing compliant 

State WDBs. They said that States 

should have more flexibility in the time 

allowable to become compliant with 

new requirements, including new 

membership requirements and the new 

State WDB role, which could require 

changes by the State legislature. 

Department Response: WIOA called 

for the implementation of most of 

WIOA, including the State WDB 

requirements, by July 1, 2015. State 

WDB requirements are outlined in 

WIOA sec. 101 and § 679.100. The 

Department issued operating guidance 

in TEGL No. 27–14 on April 15, 2015, 

titled ‘‘Workforce Innovation and 

Opportunity Act Transition Authority 

for Immediate Implementation of 

Governance Provisions.’’ This guidance 

can be found at http://wdr.doleta.gov/

directives/All_WIOA_Related_

Advisories.cfm. 

Comments: One commenter was 

concerned with potential political 

influence the Governor holds over State 

and Local WDBs as well as procurement 

requirements. 

Department Response: WIOA vests 

certain authority with the Governor, 

including State WDB appointments, and 

the Department has no authority to 

change it. 

WIOA sec. 107(e) requires Boards to 

operate in a transparent manner; 

§§ 679.140 and 679.390 set forth the 

parameters for State and Local WDBs to 

conduct business in an open and 

transparent manner. Transparency in 

operations also assures that all parties 

are held accountable to the public and 

can mitigate concerns of inappropriate 

influence. Transparency promotes 

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accountability and provides valuable 

information to citizens on the Federal, 

State, and local government’s activities. 

The State WDB must make available to 

the public on a regular basis, through 

electronic means and open meetings, 

information about State WDB activities 

such as the State Plan, modifications to 

the State Plan, board membership, the 

board’s by-laws, and the minutes of 

meetings. This information must be 

easily accessed by interested parties. 

Ensuring that this information is widely 

available promotes transparency and 

provides access to the public on how 

the State WDB works to align, integrate, 

and continuously improve the 

workforce development system. No 

change to the regulatory text was made 

in response to this comment. 

Comments: Another commenter 

recommended that developing an 

overarching vision for the workforce 

development system and monitoring of 

progress toward that vision should be a 

function of the State WDB. 

Department Response: These actions 

are a function of the State WDB. 20 CFR 

679.100 implements WIOA sec. 101(d) 

and outlines the vision and purpose of 

the State WDB. Among other 

responsibilities, the State WDB is 

required to assist the Governor in the 

‘‘development, implementation, and 

modification of the State Plan’’ (WIOA 

sec. 101(d)(1)) and to support the 

function of the public workforce system 

enumerated in WIOA sec. 101(d)(2) 

through (12). The State Plans must 

detail the State’s strategic workforce 

approach and vision as outlined in 20 

CFR 676.100(a) (see Joint WIOA Final 

Rule) and no change to the regulatory 

text was made in response to this 

comment. 

Section 679.100 What is the purpose 

of the State Workforce Development 

Board? 

20 CFR 679.100 implements WIOA 

sec. 101 and outlines the purpose of the 

State WDB. A key goal of Federallyfunded training programs is to get more 

U.S. workers jobs and marketable skills 

and support businesses to find workers 

with the skills that are needed. The 

State WDB is responsible for engaging 

employers, education providers, 

economic development, and other 

stakeholders to help the workforce 

development system achieve the 

purpose of WIOA and the State’s 

strategic and operational vision and 

goals outlined in the State Plan. 

The Department encourages the State 

to take a broad and strategic view when 

considering representatives of the State 

WDB, and also in establishing processes 

which it will use to include necessary 

perspectives in carrying out State WDB 

functions. For example, alignment of 

required one-stop partner investments is 

essential to achieving strategic and 

programmatic alignment at the State, 

regional, and local level. Further, States 

are encouraged to examine factors like 

the natural bounds of regional 

economies, commuting patterns, and 

how economic sectors impact the State, 

which may benefit from inputs either 

from formal members of the board, or 

through other engagement. Broad 

geographic representation as well as a 

reflection of diversity of populations 

within the State is critical. 

Comments: A commenter emphasized 

the need for Boards to remain connected 

to local and regional programs, and 

another requested more information on 

how employer engagement would be 

measured and how a State WDB would 

know if their engagement was 

successful. This commenter suggested 

surveys of partners (both pre-WIOA and 

annually) to determine the level of 

engagement. 

Department Response: There is a 

primary indicator of performance in 

WIOA sec. 116(b)(2)(i)(vi) to gauge the 

system’s effectiveness in serving 

business. WIOA does not provide 

parameters for measuring the Board’s 

effectiveness in engaging employers. 

However, this engagement is crucial in 

the State WDB’s role to help integrate 

and align a more effective job-driven 

workforce development system that 

invests in the connection between 

education and career preparation. The 

Department will continue to provide 

technical assistance and guidance to 

Boards to assist their efforts to fulfill 

this vision. The Department envisions 

that the State WDB will serve as a 

convener of State, regional, and local 

workforce system partners to enhance 

the capacity and performance of the 

workforce development system; align 

and improve employment, training, and 

education programs, and through these 

efforts, promote economic growth. 

Comments: A commenter suggested 

that more information regarding the 

State Plan and how States will satisfy 

the needs of individuals with 

disabilities, and the specific 

performance metrics that will be used 

for systemic improvement be included 

in § 679.100. 

Department Response: State Plan 

requirements as a function of the State 

WDB are addressed in § 679.130. WIOA 

sec. 102 describes the requirements for 

the State Plan; State Plan requirements 

are also addressed in 20 CFR part 676, 

including requirements to address the 

needs of the State’s workforce and 

services to individuals with barriers to 

employment (see Joint WIOA Final 

Rule). No change to the regulatory text 

was made in response to this comment. 

Section 679.110 What is the State 

Workforce Development Board? 

Local Elected Officials 

Comments: Commenters citing the 

needs of large and diverse States that are 

concerned with adequate representation 

of local level interests recommended 

that Governors include the chief elected 

official from the smallest and largest 

workforce areas on the State WDB. 

Similarly, other commenters 

recommended that the local elected 

officials be increased from a minimum 

of two representatives to a percentage of 

the Board. 

Department Response: Both WIOA 

and the regulations offer the Governor 

the flexibility to ‘‘include other 

appropriate representatives and officials 

designated by the Governor’’ as detailed 

in § 679.110(b)(3)(iii)(B). The Governor 

has the flexibility to appoint more local 

elected officials to the State WDB as he/ 

she sees fit and a Governor may seek to 

have such officials represent the range 

of local government entities. The 

Department encourages the Governor to 

use this authority, which may include 

increasing the representation of CEOs, 

to ensure accurate representation of the 

interests of job seekers and businesses 

in the State. No change to the regulatory 

text was made in response to these 

comments. 

Representation of Core Programs 

Comments: Commenters opposed the 

Department’s interpretation of WIOA 

allowing for representation of multiple 

core programs by a single person (as 

proposed in § 679.110(b)(3)(iii)(A)) and 

indicated that this situation fails to 

adequately represent adult education. 

Some commenters called for specifically 

mandating the State director of adult 

education on the State WDB. Others 

were concerned that the Department’s 

interpretation does not satisfy the 

requirement to have a representative of 

the lead State official with primary 

responsibility for each of the core 

programs. 

Department Response: The Governor 

is responsible for ensuring adequate 

representation of the core programs, 

which the Department interprets to 

mean that the core program’s State WDB 

representative has not only primary 

responsibility for the program, but also 

the expertise to actively and 

meaningfully contribute to the State 

WDB’s understanding of the program’s 

role in the public workforce system, 

especially with regard to the strategic 

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planning for that system, and in the 

development and implementation of the 

State Plan. The Department has added 

§ 679.110(b)(3)(iii)(A)(1)(i) through (iii) 

to clarify that, for title I and WagnerPeyser Act programs, a single lead State 

official with primary responsibility for 

those programs may represent more 

than one of those programs. However, 

the WIOA title II and VR programs must 

have a single, unique representative. 

When appointing a board member to 

represent multiple core programs under 

§ 679.110(b)(3)(iii), Governors should 

take into account the requirement that 

the representative has the primary 

responsibility for the core program 

which includes direct responsibility for, 

and understanding of, policy issues 

involving the core program and the 

public workforce system. The 

Department encourages Governors to 

ensure an ongoing role for all core 

programs to inform the Boards’ actions. 

Meeting these requirements may be 

achieved in a number of ways, such as 

directly appointing a State’s director for 

those core programs to the Board, 

gathering direct input from program 

administrators via a subcommittee or 

staffing structure, or frequent efforts to 

gather input. 

These provisions are intended to 

ensure that all core programs have 

meaningful input on the State WDB, but 

neither WIOA nor the regulation 

requires that the adult education 

director be appointed to the State WDB. 

The regulation is not changed to require 

a specific title be named as 

representative; however, representatives 

must meet the requirement of primary 

responsibility. 

The Department will issue guidance 

to support the implementation and 

maintenance of compliant State WDBs. 

Labor Union, Small Business, and 

Registered Apprenticeship 

Representation 

Comments: Comments on the 

membership requirements of 

representatives of labor organizations 

and registered apprenticeship included 

multiple suggestions for regulatory text 

changes. One commenter suggested 

changing ‘‘exists’’ in 

§ 679.110(b)(3)(ii)(B) to ‘‘operating,’’ 

because ‘‘exists’’ could cause confusion. 

Another commenter suggested that the 

term ‘‘registered’’ precede 

apprenticeship, out of concern that the 

NPRM language would allow lowquality apprenticeship programs that are 

not registered be considered. 

Department Response: The 

Department disagrees that ‘‘exists’’ will 

cause confusion in reference to 

registered apprenticeship programs 

available in the State. The Department 

agrees that the reference to 

apprenticeship should be changed to 

‘‘registered apprenticeship’’ because 

references throughout WIOA are 

generally references to registered 

apprenticeship. 

No change to the regulatory text was 

made in response to these comments, 

with the exception of revising 

§ 679.110(b)(3)(ii)(B) to refer to 

apprenticeship as ‘‘registered 

apprenticeship.’’ 

Comments: Commenters requested 

clarification of the total number of labor 

representatives required on the State 

WDB, and suggested labor 

representatives include employee 

representatives for non-unionized 

employees. 

Department Response: WIOA requires 

at least two representatives of labor 

organizations nominated by State labor 

federations, and a representative of a 

registered apprenticeship program. 

Because State WDB members may not 

serve multiple roles for the categories 

included in WIOA sec. 101(b)(1)(C)(ii) 

(as outlined in WIOA sec. 101(b)(3)(B)), 

the Department’s proposed language 

clarified that, at minimum, two labor 

representatives and one joint labormanagement of a registered 

apprenticeship program are required. 

The State WDB must include not less 

than 20 percent representation of the 

workforce, including at a minimum 

these three representatives. 

In addition to these representatives, 

WIOA sec. 101(b)(1)(C)(iii)(II) and 

§ 679.110(b)(3)(iii)(B), give the Governor 

the flexibility to appoint ‘‘other 

representatives and officials as the 

Governor may designate.’’ This would 

allow the Governor to designate nonunion employee organizations as 

additional members of the State WDB. 

No change to the regulatory text was 

made in response to these comments. 

Nominations 

Comments: Two union commenters 

urged the Department to clarify that the 

nominations for representatives of joint 

labor-management registered 

apprenticeship programs on State and 

Local WDBs should be made by State 

and local building and construction 

trades councils, except where none exist 

in the State, in which case the 

representative(s) should be nominated 

by the local Building Trades Councils 

within the State. 

Regarding the proposed 

§ 679.110(b)(3)(i)(C) requirement that 

the Governor must appoint required 

representatives of businesses or 

organizations based on nominations 

from business organizations and trade 

associations in the State, a commenter 

asked what would qualify these 

organizations to submit such 

nominations and requested that the 

Department clarify the definition of 

these organizations. 

Department Response: Paragraph 

(b)(3)(i)(C) of § 679.110 implements 

WIOA sec. 101(b)(1)(C)(i)(III), which 

requires State WDB members who 

represent businesses or organizations 

representing businesses to be appointed 

from a list of potential members 

nominated by State business 

organizations and business trade 

associations. WIOA does not further 

define trade associations; restricting the 

nominating entity would not comply 

with WIOA sec. 101(b)(1)(C)(i)(III), but 

Governors may accept nominations of 

representatives to the State WDB from 

Trade Councils. Furthermore, WIOA 

does not require that the representatives 

of joint labor-management registered 

apprenticeship programs (under WIOA 

sec. 101(b)(1)(C)(ii)(II) be nominated by 

any organization. The Department 

declines to add the requirement that 

trades councils must nominate these 

members. No change to the regulatory 

text was made in response to these 

comments. 

Single-Area States 

Comments: Relating specifically to 

concerns for single-area States, one 

commenter suggested that the core 

programs can be improved by CEOs on 

the State WDB and that the Departments 

of Labor and Education must look 

critically at any Unified or Combined 

State Plan that is submitted from a 

single-area State that does not obviously 

and fully represent the local viewpoint 

from a diverse set of stakeholders, as is 

the intention of this section. Another 

commenter stated that because local 

control is primarily with the State WDB 

in single-area States, the local 

community advisory groups, who are 

more familiar with the specific 

community needs, do not have the 

influence that they should. Multiple 

commenters also requested that the 

Department clarify the meaning of the 

proposed § 679.110(b)(3)(iii)(A)(2) 

requirement that the State WDB include 

two or more CEOs (collectively 

representing both cities and counties 

‘‘where appropriate’’) and indicate 

whether this language would exempt 

single-area States from requiring CEOs 

to serve on the State WDB. 

Department Response: 20 CFR 

679.270 implements WIOA sec. 

107(c)(4), which describes the 

requirements of Local WDBs in singlearea States. Section 679.270 requires 

that the State WDB, acting as the Local 

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WDB, carry out the functions of both 

Boards except that the State is not 

required to meet and report on a set of 

local performance accountability 

measures. Section 679.110(b) requires 

CEO representation on the State WDB. 

There is no exemption for membership 

categories on the State WDB in singlearea States. No change to the regulatory 

text was made in response to these 

comments. 

Community-Based Organizations 

Comments: A few commenters 

recommended that State WDBs should 

be required to have at least one 

representative from community-based 

organizations (CBOs) with experience 

and expertise in addressing individuals’ 

training, employment, and educational 

needs. For example, one commenter 

suggested adding § 679.110(b)(3)(ii)(E) 

that states ‘‘State Boards are strongly 

encouraged to include organization 

representatives in (C) and (D).’’ 

Department Response: Many 

comments from stakeholders with 

mandated representation on the Board 

under WIA requested that they again be 

mandated Board members or that they 

be referenced in regulation. WIOA 

reduced mandated Board membership 

in an effort to streamline State WDBs 

and provide Governors the flexibility to 

establish Boards that best reflect the 

diversity of the State’s job seeker and 

employer communities. The Department 

recognizes that many important system 

partners with experience with specific 

job seeker populations, such as required 

one-stop partner programs, tribal 

organizations, other Department 

program grantees, and those serving the 

disadvantaged and disabled populations 

are no longer required members of the 

Board. However, § 679.110(b)(3)(ii) 

permits representatives of communitybased organizations that have 

demonstrated experience and expertise 

in addressing the employment, training, 

or education needs of individuals with 

barriers to employment to contribute to 

the 20 percent workforce threshold. 

Paragraph (b)(3)(iii)(B) says the 

Governor has the flexibility to appoint 

‘‘other appropriate representatives and 

officials designated by the Governor’’ 

which does not preclude any 

organization as the Governor deems 

appropriate for the State. The 

Department encourages the Governor to 

ensure that State WDB members 

represent the diversity of job seekers, 

and employers across the State, which 

includes ensuring adequate 

representation on the State WDB. The 

Department has made no changes to the 

regulatory text in response to these 

comments. 

Chairperson Requirements 

Paragraph (c) of § 679.110 implements 

WIOA sec. 101(c) requiring the 

Governor to select a chairperson of the 

Board from among the business 

representatives on the Board who are 

the owner or chief executive officer for 

the business or organization, or a person 

who is an executive with the business 

or organization with optimum policymaking or hiring authority. 

Comments: One commenter requested 

amending the statutory language to 

allow outlying areas to appoint a 

representative from a non-governmental 

organization, a community-based 

organization, or a small business rather 

than a business as chair of the State 

WDB, expressing concern about finding 

a chairperson who would be willing to 

dedicate the time and effort to the 

Board. 

Department Response: A small 

business owner would meet the 

qualifications outlined in the statue and 

would not require a change to the 

regulations. However, WIOA does not 

delineate specific Board membership 

exemptions for outlying areas. No 

change to the regulatory text was made 

in response to these comments. 

Individuals With Disabilities and Other 

Barriers to Employment 

Comments: Many commenters from 

stakeholders with mandated 

representation on the Board under WIA 

and from other interest groups requested 

that they again be mandated Board 

members or that they be referenced in 

regulation. Various commenters 

suggested that Governors be required to 

appoint individuals with disabilities, 

disability service providers, and direct 

support professionals, lead State 

officials from agencies with primary 

responsibility for providing services to 

individuals with intellectual, 

developmental, and other significant 

disabilities as members of the State 

WDB. Another commenter 

recommended that because it is not 

required, the Department should 

strongly urge representation of 

populations with disabilities on State 

and Local WDBs. 

Department Response: WIOA reduced 

mandated Board membership in an 

effort to streamline State WDBs and 

provide Governors the flexibility to 

establish Boards that best reflect the 

diversity of the State’s job seeker and 

employer communities. The Department 

recognizes that many important system 

partners with experience with specific 

job seeker populations, such as required 

one-stop partner programs, tribal 

organizations, other Department 

program grantees, and those serving the 

disadvantaged and individuals with 

disabilities are no longer mandated 

members of the Board. However, 

§ 679.110(b)(3)(ii) requires not less than 

20 percent of the Board be comprised of 

workforce representatives which may 

include one or more individuals who 

have demonstrated experience and 

expertise in addressing the employment, 

training, or education needs of 

individuals with barriers to 

employment. Paragraph (b)(3)(iii)(B) 

says the Governor has the flexibility to 

appoint ‘‘other appropriate 

representatives and officials designated 

by the Governor,’’ which does not 

preclude representatives of any required 

partner program, community based 

organizations or other organizations as 

the Governor deems appropriate for the 

State. The Department encourages the 

Governor to ensure that State WDB 

members represent the diversity of job 

seekers, and employers across the State, 

which includes ensuring adequate 

representation on the State WDB. The 

Department has made no changes to the 

regulatory text in response to these 

comments. 

Work-Relevant Training 

Comments: Relating to the WIOA 

provision that provides that State WDB 

business representatives may represent 

businesses that provide ‘‘employment 

opportunities that, at a minimum, 

include high-quality, work-relevant 

training and development in in-demand 

industry sectors,’’ some commenters 

asked the Department to clarify the 

definition of ‘‘work-relevant training’’ in 

proposed § 679.110(b)(3)(i)(B). In 

particular, some of these commenters 

asked whether it pertains to for-profit 

training providers. Another commenter 

stated while the definition of ‘‘indemand’’ is located at WIOA sec. 3(23), 

there are no definitions for the terms 

‘‘high-quality’’ and ‘‘work-relevant.’’ 

This commenter recommended that the 

Department allow definition of these 

terms at the State or local level. 

Department Response: Paragraph 

(b)(3)(i)(B) of § 679.110 implements 

WIOA sec. 101(b)(1)(C)(i)(II), which 

provides that State WDB business 

representatives must represent 

businesses that provide ‘‘employment 

opportunities that, at a minimum, 

include high-quality, work-relevant 

training and development in in-demand 

industry sectors.’’ WIOA sec. 3 provides 

definitions used in the law, however the 

terms ‘‘work-relevant’’ training and 

‘‘high quality’’ are not defined in WIOA. 

The State WDB, in conjunction with the 

Governor, is responsible for crafting 

appropriate parameters to address 

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circumstances in the State; States are 

therefore responsible for defining 

‘‘work-relevant’’ and ‘‘high-quality’’ in 

accordance with the particular 

circumstances faced by that State. The 

Department has made no changes to the 

regulatory text in response to these 

comments. 

Comments: Other commenters said 

that while they agree that customized 

training, registered apprenticeship, or 

OJT are all work-relevant, the 

Department should clarify that these are 

just a few examples and not a 

comprehensive list because such 

limitation could deem ineligible 

representatives of the business 

community who may successfully offer 

alternative types of training such as a 

non-registered apprenticeship. 

Similarly, another commenter 

recommended that § 679.110(b)(3)(i)(B) 

should clarify that ‘‘a representative of 

a business providing an alternative form 

of training can serve on the State 

Board.’’ 

Department Response: The 

Department acknowledges that the 

training options mentioned in this 

section are illustrative, and that other 

training strategies could reasonably 

satisfy this requirement. The 

Department has determined that no 

further definition is required and has 

made no changes to the regulatory text 

in response to these comments. 

Voting Rights 

Comments: Expressing concern that 

allowing a Governor to selectively grant 

voting rights among non-required 

members could skew a Board or lead to 

the appearance of discrimination against 

some of the non-required member 

interests, a commenter recommended 

that § 679.110(g) state clearly that the 

Governor may grant voting privileges to 

either all or none of the non-required 

members of the State WDB. Another 

commenter said that allowing a CEO to 

give voting rights to non-required 

members could lead to political tension. 

Some commenters were concerned that 

a Governor’s authority to convey voting 

privileges to non-required members, as 

stated in § 679.110(g), would be used to 

circumvent the requirement of a 

business majority on the State WDB, or 

otherwise impact the functionality of 

the Board. 

Department Response: WIOA sec. 

101(b)(1) mandates certain State WDB 

members in order to ensure a core set 

of interests are represented. Title 20 

CFR 679.110(g) requires all mandated 

Board members to have voting rights. 

This section also permits the Governor 

to grant voting privileges to the nonrequired members of the board, and the 

Department encourages the Governor to 

do so, if doing so would further the 

mission and goals of the board. 

Additionally, as described below, the 

Governor may not award voting rights in 

such a way that would upset the balance 

of required membership categories. 

Under the regulations as proposed, 

Governors cannot circumvent 

membership requirements by granting 

voting rights to non-mandated State 

WDB members because the membership 

requirements explained in paragraph (b) 

will always cause the majority of 

members on the Board to be mandated 

members. No change to the regulatory 

text was made in response to these 

comments. 

Indian and Native American 

Representation 

Comments: Paragraph (b) of § 679.110 

implements WIOA sec. 101(b) 

describing the required State WDB 

membership. Many comments from 

stakeholders with mandated 

representation on the Board under WIA 

and other interest groups requested that 

they again be mandated Board members 

or that they be referenced in regulation. 

Several commenters suggested that 

Indian and Native American 

representatives be required as Board 

members. As part of a Council 

resolution submitted as a public 

comment, the Native American 

Employment and Training Council 

(NAETC) proposed that each State WDB 

should have a representative from a 

tribe or tribal organization. 

Department Response: WIOA reduced 

mandated Board membership in an 

effort to streamline the State WDBs and 

provide Governors the flexibility to 

establish Boards that best reflect the 

diversity of the State’s job seeker and 

employer communities. Many important 

system partners with experience with 

specific job seeker populations, such as 

tribal organizations, other Department 

program grantees, and those serving the 

disadvantaged and disabled populations 

are no longer required members of the 

Board. However, § 679.110(b)(3)(ii) 

requires not less than 20 percent of the 

Board be representatives of the 

workforce, which may include 

representatives of community-based 

organizations that have demonstrated 

experience and expertise in addressing 

the employment, training, or education 

needs of individuals with barriers to 

employment. It also says the Governor 

has the flexibility to appoint ‘‘other 

appropriate representatives and officials 

designated by the Governor’’ 

(§ 679.110(b)(3)(iii)(B)); the Department 

encourages the Governor to ensure that 

State WDB members represent the 

diversity of job seekers and employers 

across the State. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.120 What is meant by the 

terms ‘‘optimum policy-making 

authority’’ and ‘‘demonstrated 

experience and expertise’’? 

Paragraph (a) of § 679.120 defines the 

term ‘‘optimum policy-making 

authority’’ as 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. This 

section retains the same requirements 

that were included in the WIA 

regulations at 20 CFR 661.203(a). 

Paragraph (b) of § 679.120 defines the 

term ‘‘demonstrated experience and 

expertise’’ as an individual who has 

documented leadership in developing or 

implementing workforce development, 

human resources, training and 

development, or a core program 

function.’’ 

Comments: The Department sought 

comment on the definition of optimum 

policy-making authority, and 

demonstrated experience and expertise. 

Commenters recommended adding 

education and training expertise to 

§ 679.120 by indicating that 

documented leadership in any of the 

areas in § 679.110(b)(3)(ii)(C) and (D) 

also would be considered. 

Department Response: The 

Department agrees with these 

commenters and changed the regulatory 

language in § 679.120 to reference 

§ 679.110(b)(3)(ii)(C) and (D). 

Comments: Commenters also 

recommended in-depth criteria 

including: A successful track record, 

leveraging of funds, documented service 

track record, quality partnerships, 

culturally competent, and a physical 

location in the area. However, the 

majority of commenters supported 

leaving the definition open to State and 

local discretion. Some commenters 

expressed concern that the definition 

proposed in § 679.120 was too specific 

and may limit the types of 

representatives on the State WDB to 

those with experience in human 

resources. 

Department Response: With the 

clarification that demonstrated 

experience and expertise may include 

individuals with experience in 

education or training of job seekers with 

barriers to employment as described in 

§ 679.110(b)(3)(ii)(C) and (D), the 

Department has determined that the 

definition is sufficiently clear to provide 

parameters to State WDBs. 

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Comments: Another commenter 

suggested removal of the term 

‘‘documented,’’ referencing experience 

in the areas described in § 679.120, to 

avoid added administrative burdens of 

processing documentation. 

Department Response: The use of the 

term ‘‘documented’’ assures that the 

selected representatives meet the 

criteria necessary to contribute 

meaningfully to the Board’s actions for 

job seekers but does not require any 

specific administrative burden. 

Processes and procedures related to 

membership are the responsibility of the 

elected official. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.130 What are the 

functions of the State Workforce 

Development Board? 

20 CFR 679.130 implements sec. 

101(d) of WIOA and describes the role 

and functions of the State WDB. 

Paragraphs (a), (d) through (e), and (g) 

through (k) of § 679.130 reiterate the 

relevant statutory requirements at WIOA 

secs. 101(d)(1), (4) and (5), and (7) 

through (11). These functions are the 

primary functions of the State WDB. 

Comments: A few commenters 

suggested text changes such as requiring 

State WDBs to partner with public 

television stations due to those stations’ 

experience creating instructional 

materials on employability skills for job 

agencies and one-stop centers, 

providing professional development 

tools like workshops, and hosting job 

fairs. 

Department Response: The 

Department encourages State WDBs to 

partner with a wide variety of 

organizations, however it declines to 

require entities not identified in statute. 

No change to the regulatory text was 

made in response to these comments. 

Comments: One commenter suggested 

that § 679.130(a) and (b) should require 

State WDBs to create and implement an 

appeal process for all policies, 

monitoring, and negotiations that take 

place by the Governor, State WDB, or 

State pass-through entity and the Local 

WDBs. 

Department Response: Section 

679.130 implements WIOA sec. 101(d), 

which does not include the requirement 

to establish such an appeals process. No 

change to the regulatory text was made 

in response to these comments. 

Clarification of Role of the State WDB 

Comments: Commenters requested 

clarification of the roles of the State 

WDB such as how the State WDB is to 

assist in reviewing recommendations 

‘‘on actions that should be taken by the 

State to align workforce development 

programs to support a comprehensive 

and streamlined workforce development 

system’’ and whose recommendations 

the Board is to review. 

Department Response: WIOA sec. 

101(d) indicates that the role of the State 

WDB is to assist the Governor in the 

development, implementation, and 

modification of the State Plan. To that 

end the Board is to review policies, 

programs, and recommendations on 

actions that should be taken by the State 

to align workforce development 

programs in the State. The State WDB is 

not limited in the types of 

recommendations that can be reviewed. 

The Board may consider 

recommendations from any number of 

areas, not limited to those resulting from 

the public comment on the State Plan, 

from State WDB meetings, or standing 

committees. In its role in assisting the 

Governor, the State WDB should review 

relevant comments regarding State WDB 

actions, as well as provide its own 

recommendations of actions to the 

Governor. No change to the regulatory 

text was made in response to these 

comments. 

Comments: Commenters requested 

clarification of the role of the State WDB 

when other entities perform the same 

functions such the development and 

oversight of the State’s labor market 

information (LMI) system, which 

involves the State WDB and State 

Unemployment Insurance (UI) 

Administrator. 

Department Response: State WDBs 

have several roles related to the use of 

LMI in the State. Paragraph (e)(3) of 

§ 679.130 implements WIOA sec. 

101(d)(5)(C) and requires State WDBs to 

develop effective training programs that 

respond to real-time data analysis of the 

labor market. WIOA sec. 101(d)(11) and 

§ 679.130(k) require the development of 

the statewide workforce and labor 

market information system described in 

sec. 15(e) of the Wagner-Peyser Act 

which refers to the State’s 

responsibilities. The responsibilities are 

complementary rather than duplicative 

of the roles of other State agencies in 

these areas. The State WDB should 

coordinate with all relevant parties to 

develop and implement a plan for 

ensuring activities are cohesively 

leveraged rather than duplicated. No 

change to the regulatory text was made 

in response to these comments. 

Comments: Two commenters urged 

the Department to incorporate into 

§ 679.130 an active review of State 

policies that encourage innovation or 

hinder innovative strategies that are 

developed at the local level and both 

cautioned against over-regulation by the 

State. 

Department Response: Under 

§ 679.130 State WDBs are already 

required to review policies, programs, 

and recommendations on actions that 

should be taken by the State to align 

workforce development programs in the 

State. No change to the regulatory text 

was made in response to these 

comments. 

Comments: A commenter asked 

whether, for the purpose of carrying out 

sec. 101(d), WIOA authorizes the 

Governor to ignore or otherwise 

disregard existing State laws with regard 

to agency rulemaking. 

Department Response: WIOA does not 

provide this authority to the Governor. 

However, States are required to comply 

with the Final Rule as a condition of the 

WIOA grant. The Governor should 

follow applicable State laws in a 

manner best designed to comply with 

these regulations when implementing 

the functions of the State WDB. 

Single-Area States 

Comments: Single-area States, which 

operated as such under WIA, are 

permitted under WIOA. A commenter 

urged the Department to mandate use of 

Local WDBs and/or regional consortia in 

single-area States. 

Department Response: WIOA sec. 

107(c)(4) requires that State WDBs 

operating as the Local WDB carry out 

the same functions, except as noted, 

required of the Local WDB as detailed 

in § 679.270. Therefore, State WDBs in 

single-area States are already required 

by statute and regulation to meet all 

requirements of membership and 

functions of both State and Local WDBs. 

No change to the regulatory text was 

made in response to these comments. 

Career Pathways (§ 679.130(c)(2)) 

WIOA sec. 101(d)(3)(B) outlines ‘‘the 

development of strategies to support the 

use of career pathways for the purpose 

of providing individuals, including lowskilled adults, youth, and individuals 

with barriers to employment (including 

individuals with disabilities), with 

workforce investment activities, 

education’’ as a function of the State 

WDB and is described in § 679.130(c)(2). 

WIOA sec. 107(d) and § 679.300 extends 

the requirement to Local WDBs. WIOA 

sec. 3(7)(A) through (G) defines career 

pathways as a combination of rigorous 

and high-quality education, training, 

and other services that meet specified 

guidelines. 

Comments: Commenters requested 

that the Department provide more 

comprehensive guidance on the 

implementation of career pathways. 

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Several commenters provided 

recommended changes to the regulatory 

text that included adding criteria, 

including a section specific to Local 

WDB implementation of career 

pathways, requiring the State and Local 

WDBs to define the roles and 

responsibilities of WIOA programs 

related to career pathways, listing 

required partners (such as Job Corps, 

and public television), and developing 

strategies to include job seekers with 

specific barriers. 

Department Response: The ideas and 

suggestions provided by the 

commenters support career pathways as 

a dynamic topic that involves input of 

multiple partners and stakeholders 

throughout the system. The statutory 

language provides general criteria for 

both State and Local WDBs to reference 

in developing career pathway strategies. 

The Department has concluded that 

more prescriptive regulatory language 

may limit State WDBs’ innovation in 

developing career pathways to support 

individuals to retain and enter 

employment; however, the Department 

will issue further guidance and 

technical assistance to help States. No 

change to the regulatory text was made 

in response to these comments. 

Industry or Sector Partnerships 

(§ 679.130(c)(4)) 

Paragraph (c)(4) of § 679.130 

implements WIOA sec. 101(d)(3)(D) 

states that the roles and functions of the 

State WDB include the development 

and expansion of strategies to meet the 

needs of employers, workers, and job 

seekers particularly through industry or 

sector partnerships related to in-demand 

industry sectors and occupations. 

Comments: A commenter suggested 

that the Department should revise 

§ 679.130(c)(4)’s requirement for State 

WDBs to assist with strategies related to 

industry or sector partnerships to 

include the language ‘‘with an emphasis 

on attainment of recognized postsecondary credentials.’’ 

Department Response: Title 20 CFR 

679.130(c)(4) states that State WDBs 

have responsibility for the development 

and expansion of strategies to meet the 

needs of employers, including sector 

strategies. State WDB functions already 

include the requirement to develop and 

update comprehensive State 

performance and accountability 

measures to assess core program 

effectiveness under WIOA sec. 116, 

which includes a credential attainment 

measure. Therefore, attainment of 

credentials, including postsecondary 

credentials, should already be a State 

WDB priority, as should sector 

strategies. No change to the regulatory 

text was made in response to these 

comments. 

Best Practices (§ 679.130(e)) 

Paragraph (e) of § 679.130 requires the 

Board to identify and disseminate best 

practices in a number of areas 

(paragraphs (e)(1) through (3)). 

Comments: Commenters had concerns 

about dissemination of best practices 

surrounding assessments. One 

commenter urged the Department to 

explain further how States would use 

assessments by including how to report 

this in title-specific data. This 

commenter expressed concerns that the 

value of requiring these assessments 

could be undercut through a perverse 

incentive for programs to avoid coenrollment if the assessments’ use in an 

accountability system is not clearly 

defined and recommended that States 

ensure that title II providers have 

processes for sharing assessment data 

with title I providers and vice versa. 

Department Response: The regulation 

does not require the reporting of the use 

of assessments in this section. The State 

WDB’s purpose, as outlined in WIOA 

sec. 101 and § 679.100, is to convene 

State, regional, and local workforce 

system, and partners to align and 

improve the outcomes and effectiveness 

of Federally-funded and other workforce 

programs and investments. Therefore, 

the Board’ responsibility already 

includes aligning the strategies related 

to best practices in assessments. The 

State Plan should address the State’s 

strategic and operational vision. No 

change to the regulatory text was made 

in response to these comments. 

State WDB One-Stop Delivery System 

Guidance (§ 679.130(f)) 

Paragraph (f) of § 679.130 requires the 

State WDB to develop and review 

statewide policies affecting the 

coordinated provision of services 

through the State’s one-stop delivery 

system which is to include developing 

objective criteria and procedures for the 

Local WDBs’ use in assessing the 

physical and programmatic accessibility 

of one-stop centers. 

Comments: A commenter suggested 

that the language in § 679.130(f) should 

be strengthened to better reflect the 

importance of including programmatic 

and physical accessibility in the 

assessment of one-stop centers. This 

commenter recommended that 

accessibility of one-stop centers must 

include the removal of barriers as 

defined in the Americans with 

Disabilities Act (ADA) and 28 CFR 

36.304 and should extend to 

technological accessibility, citing sec. 

508 of the Rehabilitation Act of 1973. 

Department Response: The 

Department agrees that accessibility is 

paramount for all job seekers, and it is 

the State WDB’s function to develop the 

tools to assist local areas to ensure that 

one-stop centers are both physically and 

programmatically accessible to all job 

seekers. As noted by the commenter, 

physical accessibility is already 

required under existing statute and 

individual State laws as well as the 

regulation implementing WIOA sec. 188 

at 29 CFR part 38. WIOA sec. 102(2)(vii) 

and the WIOA State Plan ICR require 

that the State Plan address how the onestop delivery system will comply with 

the Americans with Disabilities Act of 

1990. No change to the regulatory text 

was made in response to these 

comments. 

Strategies for Technological 

Improvements To Improve One-Stop 

Services (§ 679.130(g)) and Strategies for 

Aligning Technology and Data Systems 

Across One-Stop Partner Programs 

(§ 679.130(h)) 

Comments: A State agency expressed 

concern that the requirement that State 

WDBs develop strategies to ensure 

technology is accessible to individuals 

with disabilities and individuals 

residing in remote areas (§ 679.130(g)(4)) 

could become costly and asked the 

Department for information on if each 

State would create its own plan and for 

the expectations for the scope of 

available technology. A commenter 

expressed concern that the requirement 

that State WDBs develop strategies to for 

aligning technology and data systems 

across one-stop partner programs in 

§ 679.130(h) could become costly, and 

asked the Department for an explanation 

of why this responsibility is necessary 

and what the plan development 

schedule would look like. 

Department Response: Paragraph 

(g)(4) of § 679.130 and paragraph (h) of 

§ 679.130 address technology 

improvements, and data system 

alignment across one-stop partner 

programs. Neither paragraph (g) nor (h) 

require the development of a plan, or 

outline specific technology 

expectations; rather, the Board is 

responsible for developing strategies for 

technological improvements. Although 

the State WDB may choose to develop 

a technology plan to achieve those 

requirements, neither WIOA nor the 

regulations require the submission of a 

formal technology plan. No change to 

the regulatory text was made in 

response to these comments. 

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Development of Statewide Workforce 

and Labor Market Information System 

(§ 679.130(k)) 

Comments: WIOA sec. 101(d)(11) and 

§ 679.130(k) require the development of 

the statewide workforce and labor 

market information system described in 

sec. 15(e) of the Wagner-Peyser Act 

which refers to the State’s 

responsibilities. A commenter requested 

clarification of the role of the State WDB 

in the development and oversight of the 

State’s labor market information (LMI) 

system. State WDBs have several roles 

related to the use of LMI in the State. 

Department Response: Paragraph 

(e)(3) of § 679.130 implements WIOA 

sec. 101(d)(5)(C) and requires State 

WDBs to develop effective training 

programs that respond to real-time data 

analysis of the labor market. WIOA sec. 

101(d)(11) and § 679.130(k) require the 

development of the statewide workforce 

and labor market information system 

described in sec. 15(e) of the WagnerPeyser Act which refers to the State’s 

responsibilities. The responsibilities are 

complementary rather than duplicative 

of the roles of other State agencies in 

these areas. The State WDB should 

coordinate with all relevant parties to 

develop and implement a plan for 

ensuring activities are cohesively 

leveraged rather than duplicated. 

Section 679.140 How does the State 

Workforce Development Board meet its 

requirement to conduct business in an 

open manner under ‘‘sunshine 

provision’’ of the Workforce Innovation 

and Opportunity Act? 

Title 20 CFR 679.140 implements 

WIOA sec. 101(g) requiring the State 

WDB to conduct business in an open 

manner. 

Comments: A commenter 

recommended the Department revise 

§ 679.140(b)(3) to require State WDBs to 

make available the minutes of meetings 

and any public comments, feedback, or 

requests for service, and to provide a 

written response to such comments or 

requests. 

Department Response: The 

Department notes that paragraph (b)(3) 

already implements the WIOA sec. 

101(g) requirement that meeting 

minutes be available to the public upon 

request. The Department encourages all 

State WDBs to operate with 

transparency; State WDBs are free to 

make additional information, such as 

public comments and other information 

it deems appropriate, available to the 

public. No change to the regulatory text 

was made in response to these 

comments. 

Section 679.150 Under what 

circumstances may the Governor select 

an alternative entity in place of the State 

Workforce Development Board? 

Title 20 CFR 679.150 implements 

WIOA sec. 101(e), which authorizes the 

use of alternative entities to the State 

WDB under the following conditions: 

The alternative entity was in existence 

on the day before the date of enactment 

of the Workforce Investment Act of 

1998; is substantially similar to the 

WIOA State WDB; and includes 

representatives of business and labor 

organizations in the State. As outlined 

in § 679.150(c), if the alternative entity 

does not provide representatives for 

each of the categories required under 

WIOA sec. 101(b), the State Plan must 

explain the manner in which the State 

will ensure an ongoing role for any 

unrepresented membership group in the 

workforce development system. The 

State WDB must maintain an ongoing 

and meaningful role for an 

unrepresented membership group, 

including entities carrying out the core 

programs. 

Comments: Commenters disagreed 

with the interpretation at § 679.150(d) 

that required a new State WDB if the 

membership of the alternative entity 

had changed significantly after August 

7, 1998 and paragraph (e) that defined 

the criteria for a significant change. 

Commenters interpreted the alternate 

entity provisions of WIOA to mean that 

an alternative entity may add or remove 

membership categories and maintain 

alternative entity status unless those 

changes make the State WDB 

‘‘substantially dissimilar’’ to the State 

WDB. Commenters requested the 

Governor be given the authority to make 

a determination regarding the definition 

of ‘‘substantially similar.’’ 

Department Response: The 

Department agrees and has deleted the 

proposed text at § 679.150(d) and (e) 

from the Final Rule. The Department 

declines to further define ‘‘substantially 

similar’’ in § 679.150 but considers 

substantially similar to be aligned with 

the composition of the WIOA compliant 

State WDB as outlined in WIOA sec. 

101(a) through (c) and § 679.110. The 

Department considers changes to the 

alternative entity membership or 

structure that are contrary to the 

requirements of WIOA sec. 101(a) 

through (c) and § 679.110 or those that 

make the alternative entity less aligned 

with WIOA State WDB compliance to 

result in an alternative entity that is not 

substantially similar to a compliant 

WIOA State WDB. 

Comments: Commenters requested 

that the Department require a business 

majority for alternative entities. 

Department Response: WIOA sec. 

101(e) and § 679.150(b)(3) require 

alternative entities to have 

representatives of businesses in the 

State, however lacks a requirement for 

a business majority. The Department 

strongly encourages alternative entities 

to seek a majority business participation 

in State WDB activities and decisions. 

No change to the regulatory text was 

made in response to these comments. 

2. Subpart B—Workforce Innovation 

and Opportunity Act Local Governance 

(Workforce Development Areas) 

This subpart provides the 

requirements for identification of 

regions and designation of local areas 

under WIOA. WIOA envisions a 

workforce development system that is 

customer focused on both the job seeker 

and business, and is able to anticipate 

and respond to the needs of regional 

economies. It requires Workforce 

Development Boards and CEOs to 

design and govern the system 

regionally, aligning workforce policies 

and services with regional economies 

and supporting service delivery 

strategies tailored to these needs. To 

support this regional approach, this 

subpart requires States to identify 

intrastate or interstate regions. When the 

region contains more than one local 

area, the local areas are required to plan 

regionally. WIOA envisions a regional 

system where public workforce system 

leaders partner and provide leadership 

as part of a comprehensive, regional 

workforce and economic strategy. The 

majority of comments in this section 

pertained to the structure of regions, 

and initial and subsequent designation 

of workforce development areas. 

Section 679.200 What is the purpose 

of requiring States to identify regions? 

Title 20 CFR 679.200 implements 

requirements found at both WIOA sec. 

101(d)(3)(E), and WIOA sec. 106(a), 

which require the Governor to identify 

regions with consultation from the CEOs 

and Local WDBs in the affected region. 

The development of comprehensive 

regional partnerships facilitates 

alignment of workforce development 

activities with regional economic 

development activities, and better 

supports the execution and 

implementation of sector strategies and 

career pathways. Regional cooperation 

may also lower costs and increase the 

effectiveness of service delivery to 

businesses that span more than one 

local area within a region and to job 

seekers through coordination of shared 

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services, processes, and operations. The 

Department encourages States to ensure 

that local and regional planning areas 

are aligned to support improved service 

delivery, improved training and 

employment outcomes, better meet 

employer needs, and greater 

effectiveness and efficiency in achieving 

these outcomes. 

Comments: A commenter expressed 

concern that defining boundaries of a 

region at the State level could result in 

a lack of coordination among locals in 

different regions. A different commenter 

suggested that the Department require 

cooperation between core partners to 

align existing services into the 

appropriate regions and ‘‘to reject plans 

where Governors have not effectively 

assigned local areas to regions.’’ 

Department Response: State WDBs are 

required to identify regions in 

consultation with local chief elected 

officials and Local WDBs. The State 

WDB is also tasked with ensuring the 

overall alignment of the public 

workforce system. The function of 

identifying regions should not limit 

coordination among Local WDBs 

outside of the identified region; in fact, 

the State WDB function is to ensure that 

the system becomes more, rather than 

less, cohesive. No change to the 

regulatory text was made in response to 

these comments. 

Comments: One commenter said that 

the market of a local area may lend itself 

to more than one region and in 

instances such as this they could exist 

as a singular local region and partner 

with the neighboring areas. 

Department Response: The 

Department agrees that the State WDB 

could reach such a conclusion. No 

change to the regulatory text was made 

in response to these comments. 

Section 679.210 What are the 

requirements for identifying a region? 

Title 20 CFR 679.210 addresses the 

requirements for identifying a region 

and requires a process that includes 

consultation with Local WDBs and 

CEOs. 

Comments: Commenters suggested 

additional clarification regarding how 

consultation will take place including 

requiring memorandums of agreement, 

and a detailed policy of the process. 

Department Response: The term 

consultation is used in § 679.210 as a 

requirement for identifying a region; the 

Department added a definition of 

consultation to part 675. This clarifies 

that consultation constitutes a robust 

conversation in which all parties are 

given opportunity to share their 

thoughts and opinions. The Department 

declines to add additional requirements. 

Comments: The Department requested 

comment on additional data that may be 

considered other than that laid out in 

§ 679.210(c)(1) through (8). Commenters 

provided suggestions for new data 

points as well as adjustments to those in 

paragraphs (c)(1) through (8), such as 

including public transportation when 

considering commuting patterns, adding 

the workforce participation rate of 

people with barriers to employment, 

especially individuals with disabilities 

and out of school youth with 

disabilities, administrative efficiencies, 

and existing regional capacity and a 

history of local areas working together. 

Department Response: The data 

points in § 679.210(c)(1) through (8) are 

for illustrative purposes and should not 

limit the State’s decision-making when 

identifying regions. The Department 

will review the suggestions when 

determining and issuing guidance on 

any additional factors as outlined in 

§ 679.210(c)(8). No change to the 

regulatory text was made in response to 

these comments. 

Comments: WIOA sec. 

102(b)(2)(D)(i)(II) and § 679.210 require 

the Governor to develop a policy and 

processes for identifying regions. 

Commenters suggested that local areas 

designated under WIA be able to join 

one or more region or have the 

opportunity to remain a single region. 

Another commenter suggested that any 

current local areas that incorporate 

multiple jurisdictions should 

automatically be considered a region. A 

commenter requested clarification 

regarding the difference between the 

identification of regions and the 

designation of local areas. 

Department Response: Local area 

designation is addressed in §§ 679.220 

and 679.230; the purpose of a local area 

is to administer workforce development 

activities. The purpose of a region is 

addressed in §§ 679.200 and 679.210; 

the purpose of a regional area is to align 

workforce development activities and 

resources with larger regional economic 

development areas and resources. The 

regional plan should describe the 

Governor’s processes for ensuring the 

requirements outlined in WIOA sec. 102 

for the identification of regions are met. 

Local areas designated under WIA are 

not exempt from the regional 

identification process. No change to the 

regulatory text was made in response to 

these comments. 

Comments: Those regions comprised 

of two or more contiguous local areas 

are planning regions as described in 

WIOA sec. 3(48). Commenters have 

suggested that a single area could 

participate in multiple planning regions 

by being a member, or through a 

memorandum of agreement. 

Department Response: In accordance 

with WIOA sec. 106(a)(2), a single local 

area may not be split across two 

planning regions. Local areas must be 

contiguous in order to be a planning 

region and effectively align economic 

and workforce development activities 

and resources. The Department 

encourages States confronted with this 

issue to reevaluate whether the local 

areas in question are consistent with 

labor market areas and with regional 

economic development areas in the 

State. If these criteria are not met, the 

State should consider how best to recast 

local areas for the purposes of 

subsequent designation and regional 

integration. Local areas only may be part 

of one region, however, local areas 

within planning regions are not 

prohibited from working or coordinating 

with other local areas, and regions may 

coordinate with other planning regions. 

Coordination may be especially vital 

across States; the Department 

anticipates providing additional 

guidance regarding the creation and 

management of interstate planning 

regions. No change to the regulatory text 

was made in response to these 

comments. 

Comments: A commenter requested 

that the Governor be provided flexibility 

to add more criteria to § 679.210(c) for 

use when identifying a region. 

Department Response: The 

Department has determined that the 

Governor must use the criteria at 

§ 679.210 in determining a region in 

order to ensure consistency among 

States. However, the list of factors in 

paragraph (c) is illustrative and 

additional factors may be considered. 

The Department will review the criteria 

when determining and issuing guidance 

on any additional factors as outlined in 

§ 679.210(c)(8), which states that the 

Secretary of Labor may provide 

additional considerations for the 

development of regions according to the 

policy priorities of the Department. No 

change has been made to the regulatory 

text in response to this comment. 

Section 679.230 What are the general 

procedural requirements for designation 

of local areas? 

Title 20 CFR 679.230 describes a 

general public comment process and the 

general procedural requirements for 

designation of local areas, which 

include consultation with the State 

WDB, chief elected officials and affected 

Local WDBs. The Governor has the 

discretion to establish the process and 

procedures to solicit comments that it 

determines appropriate. However, a 

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wide-reaching, inclusive process allows 

sufficient time for stakeholders to 

provide substantive comments that will 

enable the Governor to receive 

meaningful feedback from all interested 

stakeholders, ensuring that the Governor 

is able to consider all relevant 

information, data, and opinions before 

making a decision to designate or 

redesignate a local area. WIOA sec. 

102(b)(2)(D)(i)(II) requires the State Plan 

to describe the Governor’s processes for 

designating local areas. In addition, the 

State Plan must detail how the State 

will ensure the requirements outlined in 

WIOA sec. 102 regarding public 

comments and consultation are met. 

Comments: Commenters suggested 

that regulations require additional 

clarification regarding consultation. 

Department Response: The 

Department agrees with the comment 

and has added a definition of 

consultation to the regulatory 

definitions in part 675 of the Final Rule. 

The term ‘‘consultation’’ is used 

throughout WIOA to describe the 

process by which State and/or local 

stakeholders convene to discuss changes 

to the public workforce system. The 

Department has concluded that this 

definition is necessary to clarify that 

consultation constitutes a robust 

conversation in which all parties are 

given opportunity to share their 

thoughts and opinions. Written 

correspondence or other simple 

communication methods do not 

constitute consultation. This definition 

applies to all provisions that use the 

term unless otherwise specified. With 

the addition of the definition in part 675 

of the Final Rule, the Department 

considers the requirements of § 679.230 

to be clear. No changes were made to 

the regulatory text in response to these 

comments. 

Comments: Many commenters 

expressed their agreement with the 

general procedural language in this 

section and commented that pursuant to 

WIA sec. 189(i)(2), Texas’s workforce 

areas were designated before WIA took 

effect and therefore, they may continue 

to be used as local areas. One of the 

commenters agreed commenter, stating 

that for these reasons, ‘‘Texas should 

continue to operate pursuant to the 

waiver authority afforded under 

WIOA.’’ 

Department Response: Throughout 

the sections pertaining to Local WDBs 

several similar comments referenced 

operations in Texas as approved under 

WIA. The Department’s response to all 

comments pertaining to Texas’s 

operation under special rule authority 

in WIA is that WIOA sec. 193 continues 

the provisions in effect in WIA and the 

Department will continue to administer 

them in the same manner under WIOA. 

Section 679.240 What are the 

substantive requirements for 

designation of local areas that were not 

designated as local areas under the 

Workforce Investment Act of 1998? 

Title 20 CFR 679.240 implements 

WIOA sec. 101 and addresses the 

substantive requirements for 

designation of local areas that were not 

designated as local areas under the 

Workforce Investment Act of 1998 and 

§ 679.250 addresses subsequent 

eligibility of local areas. 

Comments: One commenter 

supported this section as proposed. A 

few commenters, including a State 

WDB, suggested that the Department 

add language to the regulation that will 

provide Governors the flexibility to 

apply the factors outlined in 

§ 679.240(a) following subsequent 

designation regardless of whether the 

area was designated previously. 

Department Response: WIOA sec. 

106(b)(3) outlines the requirements of 

subsequent eligibility: ‘‘After the period 

for which a local area is initially 

designated under paragraph (2), the 

Governor shall approve a request for 

subsequent designation as a local area 

from such local area, if such area—(A) 

performed successfully; (B) sustained 

fiscal integrity; and (C) in the case of a 

local area in a planning region, met the 

requirements described in subsection 

(c)(1).’’ WIOA does not require other 

criteria, and this provision permits 

existing areas to continue so long as 

they meet the statutory criteria. No 

change to the regulatory text was made 

in response to these comments. 

Section 679.250 What are the 

requirements for initial and subsequent 

designation of workforce development 

areas that had been designated as local 

areas under the Workforce Investment 

Act of 1998? 

Comments: A couple commenters 

expressed their support for the language 

in § 679.250(a) through (c). One 

commenter recommended that in this 

section and elsewhere in the regulations 

any language that ‘‘prohibits a rural 

concentrated employment program 

(CEP) from applying for designation as 

local workforce area’’ should be deleted. 

Another commenter presented the 

same suggestion and recommended 

deleting language from the rule and 

preamble discussion that exclude rural 

CEPs from being eligible to apply as 

local workforce areas. Specifically, the 

commenter recommended deleting 

language from the regulatory text of 

§ 679.250(g), and deleting language 

discussing CEPs in the preamble 

discussion for § 679.250(g), and the 

preamble discussion for § 679.290(a), 

and the commenter provided detailed 

rationale to support the deletion of all 

anti-CEP language. 

Department Response: WIOA 

Technical Amendments Act, enacted on 

May 22, 2015, amended WIOA sec. 

106(b) to allow rural concentrated 

employment programs to apply for 

initial and subsequent designation as a 

local workforce area. The regulations 

have been revised to conform with the 

statutory direction and paragraph (g) 

now reads as follows: ‘‘The Governor 

may approve, under paragraph (c) of 

this section, a request for designation as 

a local area from areas served by rural 

concentrated employment programs as 

described in WIOA sec. 107(c)(1)(C).’’ 

Comments: Many commenters 

requested clarification regarding the 

requirements of subsequent designation 

and the associated timelines in 

§ 679.250. 

Department Response: The 

Department clarified § 679.250 to 

provide details on the duration of initial 

designation and the timing of the first 

available opportunity for local area 

subsequent designation to occur. The 

Department revised the proposed 

requirement to clarify that initial 

designation is only applicable to PY 

2016 and PY 2017. Noting the 

commenters’ concerns regarding 

availability of WIOA performance data, 

which is required for the determination 

of designation, the Department added 

§ 679.250(c) to clarify that no 

determination of subsequent 

designation may be made before the 

conclusion of PY 2017. 

Section 679.260 What do the terms 

‘‘performed successfully’’ and 

‘‘sustained fiscal integrity’’ mean for 

purposes of designating local areas? 

Title 20 CFR 679.260 implements the 

WIOA sec. 106(e)(1) definition of 

performed successfully. 

Comments: Many commenters asked 

for guidance in applying the WIOA sec. 

106(e)(1) definition. 

Department Response: The 

Department agrees that additional detail 

is necessary to ensure that initial and 

subsequent designation requirements 

are applied consistently. The 

Department has adjusted the Final Rule 

at § 679.260 to detail the performance 

indicators, and corresponding timelines, 

to be considered for initial and 

subsequent designation. For clarity and 

to reduce duplication the Department 

deleted § 679.260(a)(1) and (2) 

pertaining to the negotiated levels of 

performance. The details in paragraphs 

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(a)(1) and (2) were unnecessarily 

duplicative to the requirements covered 

in the introductory text of paragraph (a), 

which already outline the relevant 

performance goals. The Department 

added detailed timeframe information 

for subsequent designation in 

§ 679.260(b)(1) and (2). 

Comments: Some commenters 

suggested that performance be measured 

in the aggregate based on the total 

outcomes for all performance indicators 

instead of individual performance 

indicators. Another commenter 

requested that success be based on 

achieving 80 percent of the negotiated 

goal. 

Department Response: Based on 

experiences under WIA, the Department 

determined that individual indicators of 

performance provide Governors more 

detailed information for making 

designation determinations. Title 20 

CFR 679.260 clarifies that local areas 

must not fail any individual measure for 

2 consecutive years. Title 20 CFR 

679.260(a) clarifies that the local area 

must meet or exceed the performance 

levels the Governor negotiated with 

Local WDB and CEO. 

Comments: A commenter asked for 

clarification regarding appeal rights if a 

local area is deemed not to have 

performed successfully if there was no 

negotiation between a local area and the 

State for the previous 1 to 2 years before 

enactment of WIOA. 

Department Response: WIA sec. 

136(c) and § 666.310(a) of the 

regulations implementing WIA required 

the negotiation of local area 

performance indicators under WIA. In 

accordance with WIOA sec. 106(e)(1) 

and § 679.260(a) and (b), the local 

performance must be judged in 

accordance with the definitions of 

‘‘meets’’ and ‘‘exceeds’’ in place at the 

time the performance levels were 

negotiated. Appeals regarding local area 

designation must adhere to the 

requirements in §§ 683.630(a), 683.640, 

and 679.290. 

Comments: Paragraph (c) of § 679.260 

implements WIOA sec. 106(e)(2), which 

defines the term ‘‘sustained fiscal 

integrity.’’ Commenters requested 

clarification of fiscal integrity, and one 

commenter expressed concern that the 

three criteria used for determining 

‘‘sustained fiscal integrity’’ would limit 

the Governor’s ability to designate local 

areas and suggested that the Department 

clarify that only the first criterion 

requires a formal determination by the 

Secretary of Labor. 

Department Response: In WIOA sec. 

106(e), ‘‘sustained fiscal integrity’’ 

means ‘‘that the Secretary has not made 

a formal determination, during either of 

the last 2 consecutive years preceding 

the determination regarding such 

integrity, that either the grant recipient 

or the administrative entity of the area 

misexpended funds . . . due to willful 

disregard of the requirements of the 

provision involved, gross negligence, or 

failure to comply with accepted 

standards of administration.’’ Section 

679.260(c) implements the requirements 

outlined in WIOA sec. 106(e). No 

changes were made to the regulatory 

text in response to these comments. To 

the extent that additional clarification 

may be needed, the Department will 

issue separate guidance. 

Section 679.270 What are the special 

designation provisions for single-area 

States? 

Title 20 CFR 679.270 implements 

WIOA secs. 106(d) and 107(c)(4)(A), 

which allow for single-area States so 

designated under WIA to continue, and 

requires the State WDB to carry out the 

functions of the Local WDB in a singlearea State. 

Comments: Commenters requested 

additional clarification on the roles of 

the State WDB in single-area States. 

Several commenters indicate that singlearea States tend to be small or 

substantially rural areas and fulfilling 

the mandates of both the State and Local 

WDBs would be both unduly 

burdensome for single-area States as 

well as impractical. Others objected to 

single-area State WDBs taking on the 

role of the Local WDB and expressed 

concern that such situations are nonresponsive to local needs and to local 

stakeholders. Commenters suggested 

varying solutions which include 

allowing waivers or exceptions for 

single-area States of certain Board 

functions; mandating local 

representation to a broader extent on the 

single-area State WDB; creating a 

specific section regulating exemptions 

for single-area State WDB functions; and 

offering non regulatory technical 

assistance and guidance. 

Department Response: WIOA sec. 

107(c)(4)(A) requires that single-area 

States’ State WDB carry out the function 

of the Local WDB with an exemption 

only for meeting and reporting on local 

performance indicators, so the 

requirements of § 679.270(c) cannot be 

reduced. However, the Department does 

not intend for single-area States to 

conduct the required Board functions in 

such a way as to be inefficient or 

duplicative. To that end, the 

Department has amended the regulatory 

text at § 679.270 by adding paragraph 

(d), which clarifies that single-area 

States must conduct the functions of the 

Local WDB to achieve the incorporation 

of local interests but may do so in a 

manner that reduces unnecessary 

burden and duplication of processes. 

The Department will issue guidance 

regarding how single-area States must 

carry out the duties of State and Local 

WDBs. 

The Department encourages the 

Governor to ensure that State WDB 

members represent the diversity of job 

seekers and employers across the State, 

which includes ensuring adequate local 

elected official representation on the 

State WDB. Single-area States have the 

additional burden of representing local 

level interests and stakeholders. 

3. Subpart C—Local Workforce 

Development Boards 

Title 20 CFR 679.300 explains the 

purpose of the Local WDB. The Local 

WDB represents a wide variety of 

individuals, businesses, and 

organizations throughout the local area. 

The Local WDB serves as a strategic 

convener to promote and broker 

effective relationships between the 

CEOs and economic, education, and 

workforce partners. The Local WDB 

must develop a strategy to continuously 

improve and strengthen the workforce 

development system through innovation 

in, and alignment and improvement of, 

employment, training, and education 

programs to promote economic growth. 

Local WDB members must establish a 

platform in which all members actively 

participate and collaborate closely with 

the required and other partners of the 

workforce development system, 

including public and private 

organizations. This is crucial to the 

Local WDB’s role to integrate and align 

a more effective, job-driven workforce 

investment system. In this part the 

Department addresses comments on the 

roles of the Local WDBs, Local WDB 

memberships, and the role of local 

elected officials. 

Section 679.300 What is the vision and 

purpose of the Local Workforce 

Development Board? 

Title 20 CFR 679.300 establishes the 

vision for and explains the purpose of 

the Local WDB. 

Comments: Commenters suggested the 

Department clarify that Local WDBs are 

responsible for organizing the key 

partners to develop a vision for the 

system collectively, implementing that 

system, and monitoring performance. 

Department Response: These 

responsibilities are already laid out in 

the regulations under § 679.300(b)(1). 

One of the purposes of the Local WDB 

is to provide strategic and operational 

oversight in collaboration with required 

and other partners to help the workforce 

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development system achieve the 

purposes outlined in WIOA sec. 2, and 

assist in the achievement of the State’s 

strategic and operational vision and 

goals outlined in the State Plan. 

Paragraphs (b)(2) and (3) of § 679.300 

require the Local WDB to assist in the 

achievement of the State’s strategic and 

operational vision and goals as outlined 

in the Unified State Plan or Combined 

State Plan, and to maximize and 

continue to improve the quality of 

services, customer satisfaction, and 

effectiveness of the services provided. 

No change to the regulatory text was 

made in response to these comments. 

Section 679.310 What is the Local 

Workforce Development Board? 

Title 20 CFR 679.310 implements 

WIOA sec. 107 by defining the Local 

WDB and its functions. 

Comments: Commenters suggested 

changes regarding the function of 

establishing by-laws covered in 

§ 679.310(g) including suggesting that 

the criteria that apply to the selection of 

Local WDB members also should apply 

to by-laws of the Board, and that Board 

members should not be required to 

actively participate in convening system 

stakeholders. 

Department Response: WIOA sec. 

107(b)(1) and § 679.320 describe the 

Local WDB membership requirements 

as enumerated in WIOA. The WIOA 

statute does not indicate that by-laws 

restrict membership. The Department 

declines to make the suggested 

regulatory change. No change to the 

regulatory text was made in response to 

these comments. 

Comments: Some commenters stated 

that § 679.310(g)(7) should refer to 

membership on the Local WDB, rather 

than the State WDB. One commenter 

suggested that the authority should fall 

to Local WDBs and not CEOs and 

recommended that the Department 

reword § 679.310(g)(7) as follows: ‘‘A 

description of any other conditions 

governing appointment or membership 

on the Local Board as deemed 

appropriate by both the Local Board 

Chair and the CEO. The rest of these 

conditions should be under the 

authority of the [Local Board] and be 

included as requirements in the [Local 

Board] developed by-laws.’’ 

Department Response: The 

Department agrees and will make that 

technical change to § 679.310(g)(7) to 

replace State WDB with Local WDB. 

The regulatory text has been revised 

with this change to § 679.310(g)(7). 

Comments: A commenter requested 

clarification regarding the financial 

liability for local areas with multiple 

chief elected officials. 

Department Response: Paragraph (e) 

of § 679.310 says that if a local area 

includes more than one unit of general 

local government the chief elected 

officials may execute an agreement to 

describe their responsibilities for 

carrying out the roles and 

responsibilities. This agreement may 

include the assignment of liabilities 

among the units of local government. 

The chief elected officials should 

address financial roles in this 

agreement. In addition there is authority 

under WIOA sec. 107(d)(12)(B)(i)(I) that 

the Governor may agree to take on the 

liability of the chief elected official. 

Comments: A commenter stated that 

the term ‘‘elect’’ in the nomination 

process should be changed to 

‘‘appoint.’’ 

Department Response: The 

Department agrees and has changed the 

term ‘‘elect’’ in § 679.310(g)(1) to 

‘‘select.’’ 

Comments: Regarding the nomination 

process, a commenter asked the 

Department to clarify whether the Board 

chair will be nominated by a vote of the 

Local WDB members and not by the 

chief elected official. 

Department Response: The Local 

WDB is required to elect the chairperson 

as outlined in § 679.330 in accordance 

with WIOA sec. 170(b)(3). 

Comments: The proposed regulations 

in § 679.310(g) would require the CEO 

to establish by-laws for Local WDBs. A 

few commenters suggested that the 

Department revise the language in 

proposed paragraph (g) to require that 

CEOs, ‘‘in consultation with the Local 

Board,’’ must establish by-laws 

consistent with State policy for Local 

WDB membership. 

Department Response: Paragraph (g) 

of § 679.310 requires the local elected 

official to establish by-laws that include 

the process to ensure Local WDB 

members actively participate in 

convening system stakeholders, 

brokering relationships with a diverse 

range of employers, and leveraging 

support for workforce development 

activities. The by-laws will outline the 

process and roles for Local WDB 

members. An effective Local WDB 

establishes clear roles, responsibilities, 

procedures, and expectations through 

its by-laws, and that these requirements 

will help Local WDBs to be more agile 

and proactive in reacting to board 

turnover, increase board participation 

when board members are not able to 

physically attend board meetings, 

improve board functionality, and help 

ensure that the public is informed about 

the operation of the board. No changes 

to the regulatory text have been made in 

response to these comments. 

Comments: A commenter requested 

that the Department revise the section 

so that the Local WDBs must draft bylaws ‘‘after consultation with and 

approval by the chief elected official.’’ 

Department Response: WIOA sec. 107 

delegates the establishment of by-laws 

to the chief elected official. The chief 

elected official must establish the bylaws in order to constitute a Local WDB. 

Paragraph (c) of § 679.310 allows the 

Local WDB and the chief elected 

official(s) to enter into an agreement that 

describes the respective roles and 

responsibilities of the parties which 

does not prohibit the Local WDB’s role 

in the development of future by-laws. 

The suggested change is not necessary 

and no change to the regulatory text was 

made in response to this comment. 

Section 679.320 Who are the required 

members of the Local Workforce 

Development Board? 

Title 20 CFR 679.320 addresses the 

required members on the Local WDB in 

accordance with WIOA sec. 107. 

Comments: The Department received 

comments of support for this section but 

one commenter suggested that it may 

cause political tension to allow a Chief 

Elected Official to appoint Local WDB 

members. 

Department Response: WIOA clearly 

contemplates that Chief Elected 

Officials will use the State established 

criteria to appoint Local WDB 

membership that meets the 

requirements in WIOA sec. 107(b)(2). 

Section 679.320(g) requires the Chief 

Elected Official establish a formal 

nomination and appointment process. 

No change has been made to the 

regulatory text in response to this 

comment. 

Overarching Comments on the Required 

Members of Local WDBs 

Comments: Commenters requested 

guidance on documenting the inability 

to find a certain member type. 

Department Response: Local WDBs 

should follow State guidelines for 

documenting the lack of member types 

in the area. 

Adult Education Representation 

Comments: The Department received 

several comments suggesting that a 

specific entity be named to represent 

adult education programs at the local 

level. 

Department Response: WIOA sec. 

107(b)(1) and § 679.320(a) require that 

the chief elected official use the criteria 

set by the Governor, in partnership with 

the State WDB, to appoint members of 

the Local WDBs. The Department 

concludes that the Governor, in 

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partnership with the State WDBs, has 

authority for creating a policy regarding 

the criteria for the membership of the 

Local WDB, which includes criteria for 

selecting the representative of a title II 

eligible provider of adult education and 

literacy activities. No change has been 

made to the regulatory text in response 

to this comment. 

Comments: Commenters also 

recommended that a process be 

implemented for selecting a Local WDB 

representative in the event there are 

multiple providers in the area. 

Department Response: In accordance 

with WIOA sec. 107(b)(2)(C)(i), 

§ 679.320(d)(1) requires that the Local 

WDB include at least one eligible 

provider administering adult education 

and literacy activities under title II. 

Nominations are solicited when 

multiple entities are in a local area as 

described in § 679.320(g)(3) and WIOA 

sec. 107(b)(6). No change to the 

regulatory text was made in response to 

these comments. 

Comments: One commenter asked for 

clarification between the terms 

‘‘education and training activities’’ and 

‘‘education and training services,’’ 

stating that they seem to mean the same 

thing in many instances. 

Department Response: In order to 

avoid confusion, the Department 

eliminated the term ‘‘education and 

training services’’ from the regulatory 

text. 

Dual Representation 

Title 20 CFR 679.320(h) allows an 

individual to be appointed as a 

representative on the Local WDB for 

more than one entity if the individual 

meets all of the criteria for 

representation. 

Comments: Several commenters 

expressed concern with this approach 

because it differs from State WDB 

requirements; commenters 

recommended allowing for all core 

programs to have separate 

representation on Local WDBs. One 

commenter supported the flexibility in 

permitting a Local WDB member to 

represent multiple entities. Another 

commenter recommended that the 

Department should strongly discourage 

a Local WDB member from representing 

two interests, reasoning that a Board 

member serving the interests of two 

separate functions would not be true to 

the intent of WIOA. This commenter 

also expressed concern that it would 

create a conflict of interest under the 

Sarbanes-Oxley Act and a Board 

member’s heightened fiduciary 

responsibilities. 

Department Response: The 

Department recognizes that the structure 

of core programs may differ across the 

country and separate representation 

may not be possible or practical in all 

local areas. The Department offers 

Governors and Local Chief Elected 

Officials the flexibility for an individual 

to be appointed as a representative on 

the Local WDB for more than one entity 

if the individual meets all of the criteria 

for representation. However, there is no 

requirement that this be the case. In 

accordance with WIOA sec. 107(b)(1) 

and § 679.320(a) the CEO must follow 

the process established by the Governor, 

in partnership with the State WDB, for 

appointing members of the Local WDB. 

With regard to concerns about conflicts 

of interest under the Public Company 

Accounting Reform and Investor 

Protection Act (Sarbanes-Oxley Act) or 

other applicable laws, neither WIOA nor 

these regulations exempt an official 

serving in a dual representation capacity 

from any applicable ethical rules. In 

fact, § 683.200(c)(5) imposes specific 

conflict of interest requirements on 

WIOA recipients in addition to those 

applicable under the uniform 

administrative requirements. For these 

reasons, the Department has determined 

that the flexibility for Local WDB 

membership is appropriate and no 

change to the regulatory text was made 

in response to these comments. 

Labor Union, Small Business, and 

Registered Apprenticeship 

Representation 

Paragraph (c) of § 679.320 requires 

that at least 20 percent of Local WDB 

membership must be workforce 

representatives to include 

representatives of labor organizations, 

and a joint labor-management registered 

apprenticeship program, or (if no such 

program exists in the area) a 

representative of a registered 

apprenticeship program in the area if 

such program exists. 

Comments: Commenters requested 

clarification of the total number of labor 

representatives required on the Local 

WDB, and suggested labor 

representatives include employee 

representatives for non-unionized 

employees. 

Department Response: Paragraph (c) 

of § 679.320 clarified that, at minimum, 

three labor representatives must be 

included in the Local WDB: Two or 

more representatives of labor 

organizations, where such organizations 

exist in the local area, and one joint 

labor-management representative of a 

registered apprenticeship program 

where such program exists in the local 

area. In the event that these 

organizations are not present in the 

local area, representatives must be 

selected from other employee 

representatives. For local areas with no 

union-affiliated registered 

apprenticeship program, a 

representative of a non-union registered 

apprenticeship in the area must be 

appointed if one exists. The Local WDB 

may include other individuals or 

representatives as outlined in paragraph 

(e). The Department has determined that 

no change is required to the proposed 

language to allow for additional 

representation of the labor force as 

appropriate. 

Regarding the number of small 

business representation, paragraph (b) of 

§ 679.320 implements WIOA sec. 

107(b)(2)(A)(ii), which describes Local 

WDB membership criteria and calls for 

members that ‘‘represent businesses, 

including small businesses.’’ The 

Department interprets WIOA’s use of 

the word ‘‘businesses’’ to indicate that 

the Local WDB is required to have more 

than one member representing a small 

business. 

Comments: One commenter requested 

a definition of the word ‘‘business’’ and 

asked if it ‘‘may include large non-profit 

organizations.’’ Another commenter 

requested a definition of ‘‘business 

organization,’’ suggesting it ‘‘include 

trade associations and chambers of 

commerce,’’ and another commenter 

also requested clarity that ‘‘business 

organizations can be a local chamber of 

commerce or a regional entity.’’ One 

commenter asked if sector 

representatives had to come from an 

established sector or if they also could 

represent ‘‘aspirational industries.’’ 

Department Response: WIOA sec. 3 

contains definitions of terms used in the 

law. This section does not specifically 

define a business or a business 

organization. The groups suggested by 

the commenters may be included as 

long as they meet the membership 

criteria outlined in § 679.320. Title 20 

CFR 679.320 implements WIOA sec. 

107(b)(2) by describing the required 

members of a Local WDB. Paragraph (b) 

requires that a majority of the members 

of the Local WDB be representatives of 

businesses in the local area and 

paragraphs (b)(1) and (2) outline the 

required criteria. The Chief Elected 

Official (CEO) has the authority in 

WIOA sec. 107 and § 679.320(e)(4) to 

appoint other members as he/she deems 

appropriate. Regarding the comment on 

‘‘aspirational industries,’’ many 

organizations can meet the criteria 

outlined in § 679.320(b) and the CEO 

has the authority to appoint additional 

members that meet the needs of the 

local area employers and job seekers. 

The Department concludes that no 

further definition is required and has 

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made no changes to the regulatory text 

in response to this comment. 

Comments: Multiple commenters 

stated that the Department cites WIOA 

sec. 3(25) regarding business 

representative requirements in 

§ 679.320(b)(2) and it should reference 

sec. 3(23) instead. A commenter asked 

if trained members who have experience 

with eligible youth, as referenced in 

proposed § 679.320(c)(4), would include 

representatives from local government 

funded programs such as 4–H. 

Department Response: The 

Department agrees that the reference to 

WIOA sec. 3(25) in § 679.320(b)(2) is 

incorrect. WIOA sec. 3(23) defines indemand industry sector or occupation. 

WIOA sec. 3(25) defines an individual 

with a disability which is not relevant 

to § 679.320(b)(2). The Department has 

made the correction in § 679.320(b)(2). 

Regarding the question of whether 

representatives from 4–H programs 

would qualify as members having 

experience with eligible youth, 

§ 679.320 implements WIOA sec. 107(b) 

which outlines membership criteria for 

Local WDBs. As outlined in 

§ 679.320(a), for each local area in the 

State, the members of the Local WDB 

must be selected by the CEO consistent 

with the criteria established under 

statute and criteria established by the 

Governor, and must meet the 

requirements of WIOA sec. 107(c)(2). 

CEOs are required to establish a formal 

nomination and appointment process 

(§ 679.320(g)), which should answer 

specific questions about local area 

membership requirements. Due to the 

number of factors involved, the 

Department is not able to comment on 

if a specific entity would meet the 

requirements set forth by the Governor 

as well as all of the statutory 

requirements but advises interested 

parties to review the CEO’s process in 

their area. 

Comments: Paragraph (b)(2) of 

§ 679.320 implements WIOA sec. 

107(b)(1)(C)(i)(II), which provides that 

Local WDB business representatives 

represent businesses that provide 

‘‘employment opportunities that, at a 

minimum, include high-quality, workrelevant training and development in indemand industry sectors.’’ Some 

commenters asked the Department to 

clarify the definition of ‘‘work-relevant 

training’’ in proposed 

§ 679.110(b)(3)(i)(B). In particular, some 

of these commenters asked whether it 

pertains to for-profit training providers. 

Another commenter stated while the 

definition of ‘‘in-demand’’ is located at 

WIOA sec. 3(23), there is no definitions 

for the terms ‘‘high-quality’’ and ‘‘workrelevant.’’ This commenter 

recommended that the Department 

allow these terms to be defined at the 

State or local level. 

Department Response: WIOA sec. 3 

provides definitions of terms used in the 

law. The terms ‘‘work-relevant’’ training 

and ‘‘high-quality’’ are not defined in 

WIOA or in the regulations. The Local 

WDB’s functions under WIOA sec. 

107(d) and § 679.370 include employer 

engagement, career pathways 

development, and identifying and 

disseminating promising practices. It is 

incumbent upon the Local WDB to 

apply the above terms so that it includes 

the members it determines best support 

its functions. No change to the 

regulatory text was made in response to 

these comments. 

Nominations 

WIOA sec. 107 and § 679.320 of this 

part outline the requirements for Local 

WDB membership. 

Comments: Commenters requested 

that a nomination process not be 

required in communities where there 

are multiple adult education providers. 

Department Response: WIOA sec. 

107(b)(6) requires a nomination process 

if there are multiple eligible providers of 

title II adult education and literacy 

activities serving the local area (a 

similar process is required for multiple 

institutions of higher education in a 

local area). Section 679.320(g)(3) 

conforms with WIOA sec. 107(b)(6) and 

the Department made no changes to the 

regulatory text in response to these 

comments. 

Comments: Another commenter 

suggested that Local WDB members 

must be nominated by an appropriate 

body, and if no such body is clear, then 

the opportunity to present nominations 

should be required to be widely 

publicized. 

Department Response: WIOA does not 

require that the Local WDB nominations 

be from particular bodies, except that in 

instances of multiple adult education 

providers in a local area nominations 

will be accepted from those institutions 

in accordance with WIOA sec. 107(b)(6) 

and § 679.320(g)(3). In accordance with 

WIOA sec. 107(b)(1) and § 679.320(a) 

the CEO must follow the process 

established by the Governor, in 

partnership with the State WDB, for 

appointing members of the Local WDB 

which may include processes for 

soliciting nominations. No change to the 

regulatory text was made in response to 

these comments. 

Individuals With Disabilities and Other 

Barriers to Employment 

Section 679.320 implements WIOA 

sec. 107(b) describing the required Local 

WDB membership. 

Comments: As with the State WDBs, 

many commenters from stakeholders 

with mandated representation under 

WIA, requested that they again be 

mandated members of the Local WDB, 

or that they be referenced in regulation. 

Department Response: WIOA reduced 

required Local WDB membership in an 

effort to streamline the Boards and 

provide Chief Elected Officials the 

flexibility to establish Local WDBs that 

best reflect the diversity of job seeker 

and employer communities. The 

Department recognizes that many 

important system partners with 

experience with specific job seeker 

populations, such as required one-stop 

partner programs, tribal organizations, 

other Department program grantees, and 

those serving the disadvantaged and 

disabled populations are no longer 

required members of the Board. 

However, § 679.320(c) and (d) require 

the Board be comprised of workforce 

representatives that can include one or 

more representatives of communitybased organizations that have 

demonstrated experience and expertise 

in addressing the employment, training, 

or education needs of individuals with 

barriers to employment. Paragraph (e)(4) 

of § 679.320 says the CEO has the 

flexibility to appoint ‘‘other appropriate 

individuals as determined by the chief 

elected official’’ which does not 

preclude any organization as the CEO 

deems appropriate. The Department 

encourages the CEO to ensure that Local 

WDB members represent the diversity of 

job seekers and employers in their local 

areas, which includes ensuring adequate 

representation on the Local WDB and 

ensuring appropriate expertise to 

address needs of individuals with 

barriers to employment. No change to 

the regulatory text was made in 

response to these comments. 

Voting Rights 

Title 20 CFR 679.320 implements 

WIOA sec. 107 (b) which outlines Local 

WDB membership. 

Comments: Some commenters 

recommended that Board members from 

each core program must be individuals 

working specifically with core 

programming and they must get a vote 

on the Local WDB, including 

grandfathered Boards. 

Department Response: Title 20 CFR 

679.320(e)(4) says the CEO has the 

flexibility to appoint ‘‘other appropriate 

individuals as determined by the chief 

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elected official’’ which does not 

preclude any organization as the CEO 

deems appropriate. The Department 

encourages the CEO to ensure that Local 

WDB members represent the diversity of 

job seekers, employers, and one-stop 

partner programs in the local area which 

includes ensuring adequate 

representation on the Local WDB. Title 

20 CFR 679.320(i), which requires all 

required Local WDB members to have 

voting rights, also gives the CEO 

flexibility to convey voting rights to 

non-required members. No change to 

the regulatory text was made in 

response to this comment. 

Comments: One commenter asked 

how adult education programs that are 

not funded by the State and do not have 

voting rights can still contribute. 

Department Response: Title 20 CFR 

679.360(a) permits the use of standing 

committees on the Local WDB. Standing 

committees may be established to 

provide information and assist the Local 

WDB in carrying out its responsibilities 

under WIOA 107. Standing committee 

members must include individuals who 

are not members of the Local WDB and 

who have demonstrated experience and 

expertise in accordance with 

§ 679.340(b) and as determined by the 

Local WDB. Stakeholders with expertise 

may wish to contribute as members of 

standing committees, if the Local WDB 

establishes such committees. No change 

to the regulatory text was made in 

response to these comments. 

Section 679.330 Who must chair a 

Local Workforce Development Board? 

Section 679.340 What is meant by the 

terms ‘‘optimum policy-making 

authority’’ and ‘‘demonstrated 

experience and expertise’’? 

Comments: One commenter strongly 

supported both proposed definitions. 

Another commenter expressed concern 

regarding the language used to define 

‘‘optimum policy-making authority’’ 

because TANF is administered at the 

State level and local leadership does not 

have ‘‘optimum policy-making 

authority’’ for the agency. For this 

reason, the commenter requested that 

the Department clarify what ‘‘optimum 

policy-making authority’’ is at the local 

level. 

One commenter asked the Department 

if it thinks local administrators of State 

agencies meet the criteria for optimum 

policy-making authority or if it expects 

this regulation will require the 

nomination and appointment of State 

capital-based agency executives. 

Regarding demonstrated experience 

and expertise, one commenter 

recommended that all staff working 

with job seekers and business customers 

should receive certification through 

programs like Certified Workforce 

Development Professional (CWDP) by 

the National Association of Workforce 

Development Professionals (NAWDP) to 

ensure they are qualified in their role. 

Department Response: 20 CFR 

679.340 clarifies the term ‘‘optimum 

policy-making authority’’ as 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. The section also 

defines ‘‘demonstrated experience and 

expertise’’ at the local level, which 

includes a workplace learning advisor 

as defined in WIOA sec. 3(70); an 

individual who contributes to the field 

of workforce development, human 

resources, training and development, or 

a core program function; or someone the 

Local WDB recognizes for valuable 

contributions in education or workforce 

development related fields. The 

Department concludes that the Local 

WDB has flexibility to make the 

determinations of optimum policymaking authority and demonstrated 

experience and expertise within the 

outlined criteria. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.350 What criteria will be 

used to establish the membership of the 

Local Workforce Development Board? 

Comments: Title 20 CFR 679.350 

affirms that the chief elected official 

appoints the Local WDB in accordance 

with the criteria in WIOA sec. 107(b) 

and applicable State criteria. 

Commenters sought additional detail on 

which industries can be represented, 

specifically asking about the healthcare 

industry and educational institutions. 

Commenters also requested that 

501(c)(3) corporations be defined as 

businesses. 

Department Response: WIOA sec. 3 

contains definitions of terms used in the 

law. This section does not specifically 

define a business or a business 

organization. The entities identified by 

the commenters may be included as 

long as they meet the membership 

criteria. No change to the regulatory text 

was made in response to these 

comments. 

Section 679.360 What is a standing 

committee, and what is its relationship 

to the Local Workforce Development 

Board? 

Comments: 20 CFR 679.360 

implements WIOA sec. 107(b)(4) and 

establishes the roles and responsibilities 

of standing committees within the Local 

WDB structure. Commenters supported 

the text, as well as suggested that the 

Department require or recommend 

particular groups, such as Job Corps, to 

be members of standing committees. 

Department Response: Standing 

committees were not legislated under 

WIA and are optional under WIOA as 

clarified in § 679.360(b). The 

Department declines to mandate a 

specific entity be represented on a 

standing committee, but nothing would 

prevent Job Corps representatives from 

being appointed to standing committees 

under § 679.360(b). 

Standing committees may be used to 

assist the Local WDB in carrying out its 

responsibilities as outlined in WIOA 

sec. 107. 

Comments: One commenter suggested 

changing the word ‘‘must’’ to ‘‘may’’ 

regarding the requirement in 

§ 679.360(a) to include those appointed 

by the Local WDB in standing 

committees but who are not Board 

members. 

Department Response: The 

Department encourages the use of 

standing committees to expand 

opportunities for stakeholders to 

participate in Local WDB decisionmaking, particularly for representatives 

of organizations that may no longer sit 

on the Local WDB but continue to have 

a stake in the success of Local WDB 

decisions. Such committees also expand 

the capacity of the Local WDB in 

meeting required functions and expand 

opportunities for stakeholders to 

participate in Local WDB decisionmaking. For this reason, it is important 

to require the appointment of non-Board 

members. No change to the regulatory 

text was made in response to these 

comments. 

Section 679.370 What are the 

functions of the Local Workforce 

Development Board? 

Role and Function of the Local WDB 

Title 20 CFR 679.370 lists the 

functions of the Local WDBs as 

enumerated in WIOA sec. 107(d). Under 

WIOA, the Local WDB, in partnership 

with the CEO, must perform a variety of 

functions to support the local workforce 

system. 

Comments: Commenters 

recommended the addition of a variety 

of Local WDB functions. 

Department Response: In order to 

preserve Local WDB flexibility, the 

Department declines to enumerate 

additional functions. No change to 

§ 679.370 was made in response to these 

comments. 

Comments: Paragraph (b) of § 679.370 

discusses a new role for Local WDBs 

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that are part of a planning region that 

includes multiple local areas. This 

provision repeats the WIOA 

requirement that Local WDBs that are 

part of a planning region must develop 

and submit a regional plan in 

collaboration with the other Local 

WDBs in the region. Regarding 

§ 679.370(b), a commenter 

recommended the Department include 

language allowing any local area that 

includes multiple jurisdictions and 

partners to have an automatic 

designation as a region and to consider 

that area’s local plan to be a regional 

plan. 

Department Response: WIOA sec. 

106(a)(2) clearly assigns the State the 

responsibility of identifying regions 

after consultation with Local WDBs and 

chief elected officials. As required in 

WIOA sec. 106(c)(2), the local plan is 

incorporated into the regional plan, 

where required, in accordance with 

§ 679.540. No change to the regulatory 

text was made in response to this 

comment. 

Career Pathways (§ 679.370(f)) 

WIOA sec. 3(7)(A) through (G) defines 

career pathways as a combination of 

rigorous and high-quality education, 

training, and other services that meet 

specified guidelines. WIOA sec. 

101(d)(3)(B) enumerates ‘‘the 

development of strategies to support the 

use of career pathways for the purpose 

of providing individuals, including lowskilled adults, youth, and individuals 

with barriers to employment (including 

individuals with disabilities), with 

workforce investment activities, 

education’’ as a function of the State 

WDB and is described in § 679.130(c)(2). 

WIOA sec. 107(d) and § 679.300 extends 

the requirement to Local WDBs. 

Comments: Commenters requested 

that the Department provide more 

comprehensive guidance on the 

implementation of career pathways. 

Several commenters provided 

recommended changes to the regulatory 

text that included adding criteria, 

including a section specific to Local 

WDB implementation of career 

pathways, requiring the State and Local 

WDBs to define the roles and 

responsibilities of WIOA programs 

related to career pathways, listing 

required partners (such as Job Corps, 

and public television), and developing 

strategies to include job seekers with 

specific barriers to employment. 

Department Response: The 

Department acknowledges the interest 

in implementing successful career 

pathway strategies. The ideas and 

suggestions provided by the 

commenters support that career 

pathways is a dynamic topic that 

involves input of multiple partners and 

stakeholders across the public 

workforce system. The Department 

agrees that further guidance and 

technical assistance is needed and will 

be issued. However, the statutory 

language provides general criteria for 

both State and Local WDBs to use in 

developing career pathway strategies 

meeting their needs. More prescriptive 

language may limit State and Local 

WDBs’ ability to be proactive and 

innovative in developing career 

pathways to support individuals to 

retain and enter employment. No 

change to the regulatory text was made 

in response to these comments. 

Strategies for Technological 

Improvements To Improve One-Stop 

Services (§ 679.370(h)) 

Comments: Proposed § 679.370(h)(1) 

requires that Local WDBs facilitate 

connections among the intake and case 

management information systems of the 

one-stop partner programs; a commenter 

asserted that connecting intake and case 

management information systems will 

raise significant issues in terms of 

staffing, technology, and confidentiality. 

Department Response: Title 20 CFR 

679.370(h) does not outline specific 

technology requirements expectations, 

but rather the Board is responsible for 

developing strategies for aligning 

technology and data systems across onestop partner programs. The Local WDB 

may connect intake and case 

management systems, but neither WIOA 

nor the regulations require a single case 

management system among one-stop 

partners. The regulation provides Local 

WDBs with flexibility to develop 

systems that best fit their needs and 

budgets. No change to the regulatory 

text was made in response to these 

comments. 

Review of Adult Education Provider 

Applications (§ 679.370(n)) 

Paragraph (n) of § 679.370 reflects a 

number of new functions for the Local 

WDB related to coordination with adult 

education and literacy providers in the 

local area. This provision requires the 

Local WDB to review applications to 

provide adult education and literacy 

activities under title II to determine 

whether such applications are 

consistent with the local plan; the 

eligible agency retains approval 

authority. It also requires the Local 

WDB to make recommendations to the 

eligible agency to promote alignment 

with the local plan. 

Comments: Commenters requested 

clarification regarding the application 

review process. Further information 

regarding Local WDB coordination with 

adult education and literacy providers is 

provided at 34 CFR part 463, which 

requires the eligible agency to establish 

in its competition a processes by which 

applicants must submit an application 

to the Local WDB for review prior to its 

submission to the eligible agency. This 

part also includes a role for the Local 

WDB in replicating and implementing 

cooperative agreements in accordance 

with subparagraph (B) of sec. 101(a)(11) 

of the Rehabilitation Act of 1973 (29 

U.S.C. 721(a)(11)), and implementing 

cooperative agreements in accordance 

with that section with the local agencies 

administering plans under title I of that 

Act (29 U.S.C. 720 et seq.) other than 

sec. 112 or part C of that title (29 U.S.C. 

732, 741) to enhance the provision of 

services to individuals with disabilities 

and other individuals. 

Commenters expressed concerns that 

Local WDBs will not have the 

appropriate amount of time to review all 

adult education provider applications in 

a timely manner, particularly in large 

cities with many programs or for 

education programs serving 

jurisdictions with multiple Local WDBs. 

One commenter also expressed concern 

about the title II adult education 

provider application review process 

because Local WDBs do not understand 

enough about education programs and 

recommended that the regulations 

contain a clear conflict of interest policy 

as well as a process where the adult 

education stakeholders have the ability 

to help shape the local plan. One 

commenter suggested that the review 

and approval process outlined in 

§ 679.370(n) for adult education 

providers should be applied to all core 

partner plans. 

Department Response: The 

Department of Education provides 

additional information about the review 

of local applications for grants or 

contracts to provide title I adult 

education and literacy services at 20 

CFR 463.20 which reiterates that the 

purpose of the review is to ensure that 

the application is consistent with the 

local plan. The section also advises that 

the review is taken into consideration 

when making funding decisions. The 

Department of Education advises that 

only appointed local WDB members 

who do not have a conflict of interest as 

defined in sec. 107(h) of WIOA are 

allowed to participate in the review of 

an eligible training provider application. 

Boards may arrange to offer training to 

local WDB members by adult education 

experts prior to participating in the 

review process. No change to the 

regulatory text was made in response to 

these comments. 

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Ensuring Appropriate Use and 

Management of WIOA Funds 

Comments: Under paragraph (h), a 

commenter asked if the State can limit 

a Local WDB’s authority to increase the 

on-the-job training reimbursement rate 

if all factors required in regulation and 

policy are met. 

Department Response: Paragraph 

(h)(4)(i)(2) of § 679.370 requires Local 

WDBs, in partnership with the chief 

elected official for the local area, to 

ensure the appropriate use and 

management of funds. Therefore, local 

areas should establish policies, 

interpretations, guidelines, and 

definitions to implement provisions of 

title I of WIOA to the extent that such 

policies, interpretations, guidelines, and 

definitions are not inconsistent with 

WIOA and the regulations issued under 

WIOA, Federal statutes and regulations 

governing one-stop partner programs, 

and with State policies. States also 

should establish policies, 

interpretations, guidelines, and 

definitions to implement provisions of 

title I of WIOA to the extent that such 

policies, interpretations, guidelines, and 

definitions are not inconsistent with 

WIOA and the regulations issued under 

WIOA, as well as Federal statutes and 

regulations governing one-stop partner 

programs. Local WDBs, therefore, can 

set policies but those policies must not 

conflict with State policy, or WIOA. No 

change to the regulatory text was made 

in response to these comments. 

Negotiation of Local Performance 

Indicators (§ 679.370(j)) 

Comments: Under paragraph (j), a 

commenter stated that the regulations 

need to indicate that local areas have 

the final decision regarding performance 

negotiations. 

Department Response: WIOA sec. 

107(d)(9) requires that locals negotiate 

performance and § 679.510(a)(1)(viii) 

requires an agreement between Local 

WDBs and chief elected officials for 

how a planning region will collectively 

negotiate and reach agreement with the 

Governor on local levels of performance. 

No change to the regulatory text was 

made in response to these comments. 

Negotiating Methods for Funding OneStop Infrastructure Costs (§ 679.370(k)) 

Title 20 CFR 679.370(k) requires that 

the Local WDB negotiate with the CEO 

and required partners on the methods 

for funding the infrastructure costs of 

one-stop centers. 

Comments: Comments asked for 

clarification on the role of CEO. 

Department Response: The CEO is not 

required to provide infrastructure costs, 

nor is the CEO required to negotiate the 

infrastructure costs, but rather the Local 

WDB and the CEO must agree upon the 

methods that will be applied to 

determine the infrastructure funding. 

Section 678.500 (see Joint WIOA Final 

Rule) describes what must be included 

in the Memorandum of Understanding 

executed between the Local WDB, with 

the agreement of the CEO, and the onestop partners relating to the operation of 

the one-stop delivery system in the local 

area, and provides for additional details 

regarding infrastructure costs. No 

change to the regulatory text was made 

in response to these comments. 

Selection of Youth Services, Training, 

and Career Services Providers 

(§ 679.370(l)) 

Comments: Under paragraph (l), a 

couple of commenters requested 

clarification that Local WDBs only can 

determine eligibility of training 

providers for their local areas and that 

eligibility is contingent on the providers 

being approved on the State eligible 

training provider list (ETPL). 

Department Response: WIOA sec. 122 

and 20 CFR part 677 of the Joint WIOA 

Final Rule describe the process for 

determining the eligibility of training 

providers. Providers must be approved 

via the Governor’s process, however, 

Local WDBs may set additional criteria 

for providers on the local list. No 

change to the regulatory text was made 

in response to these comments. 

Section 679.400 Who are the staff to 

the Local Workforce Development Board 

and what is their role? 

Title 20 CFR 679.400 describes the 

Local WDB’s authority to hire staff and 

the appropriate roles for Board staff as 

outlined in WIOA sec. 107(f). 

Comments: Commenters suggested 

that any prior agreements between Local 

WDBs and chief elected officials 

regarding staffing roles and 

responsibilities be recognized; that the 

regulations clarify that the State agency 

is to take responsibility for hiring; and 

that the regulations should reiterate that 

the hiring of a director is optional. 

Department Response: WIOA sec. 

107(f) describes the authority of the 

Local WDB to hire a director. There is 

no mandate that Local WDBs hire staff. 

The authority to hire staff to support the 

Local WDB is granted under WIOA sec. 

107(f) to the Local WDB, not the State 

agency. 

Prior agreements are not 

automatically recognized. It is in the 

best interest of the public workforce 

system to ensure the director of the 

Local WDB is competent and 

experienced with workforce programs 

and service delivery. Paragraph (b) of 

§ 679.400 requires the Local WDB to 

apply objective qualifications to the 

Board director, paragraph (d) limits the 

Local WDB staff’s role to assisting the 

Board fulfill the functions at WIOA sec. 

107(d) unless the entity selected to staff 

the Board enters into a written 

agreement with the Board and CEO as 

noted in § 679.400(e). Title 20 CFR 

679.400 aligns with WIOA sec. 107(f) 

and no change to the regulatory text was 

made in response to these comments. 

Section 679.410 Under what 

conditions may a Local Workforce 

Development Board directly be a 

provider of career services, or training 

services, or act as a one-stop operator? 

Selection as a One-Stop Operator 

(§ 679.410(a)) 

Title 20 CFR 679.410 implements 

WIOA sec. 107(g) and explains the 

situations in which the Local WDB may 

directly act as a one-stop operator, a 

provider of career services, or training 

services provider. 

Comments: The Department received 

many comments supporting the 

requirement that one-stop operators be 

competitively procured. However, other 

commenters recommended waivers or 

exceptions to the requirement that onestop operators be competitively 

procured. Some commenters 

recommended waivers for performance, 

direct designation of the Local WDB as 

the one-stop operator with the 

agreement of the CEO and Governor, 

and allowing Governors to designate the 

selection of one-stop operators in singlearea States. Several commenters 

disagreed with the Department’s 

interpretation that WIOA sec. 107(g), 

which allows for the selection of the 

one-stop operator with the agreement of 

the CEO and Governor, is an additional 

requirement under WIOA sec. 

121(d)(2)(A) and not a separate path to 

designation. 

Department Response: A more 

detailed discussion of this issue is 

contained in 20 CFR part 678 of the 

Joint WIOA Final Rule. The Department 

maintains the interpretation, consistent 

with 20 CFR 678.605 (see Joint WIOA 

Final Rule) and WIOA sec. 121(d)(2)(A), 

that the Local WDB must select the onestop operator through a competitive 

process. In instances in which a State is 

conducting the competitive process, the 

State must follow the same policies and 

procedures it uses for procurement with 

non-Federal funds. State, Local, and 

non-Federal entities should follow the 

applicable procurement guidelines in 

the Uniform Guidance at 2 CFR part 

200. Neither WIOA nor § 679.410 

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prohibit Local WDBs from competing to 

become a one-stop operator if they 

could do so in accordance with the 

Uniform Guidance. The provision 

requires the competitive procurement of 

all one-stop operators. No change to the 

regulatory text was made in response to 

these comments. 

Career Services Provider (§ 679.410(b)) 

The Department specified in 

§ 679.410(b) that a Local WDB may act 

as a provider of career services only 

with the agreement of the CEO in the 

local area and the Governor. 

Comments: Commenters requested 

clarification regarding the 

circumstances under which a Local 

WDB may provide career services. 

Department Response: Although 

WIOA sec. 107(g) requires that one-stop 

operators be competitively procured, 

there is no similarly clear statutory 

requirement for provision of career 

services and therefore Local WDBs do 

not have to undertake a competitive 

process to offer career services. 

Comments: Some commenters 

suggested that Local WDBs only be 

permitted to offer career services if the 

CEO and Governor agree that there are 

insufficient providers of career services 

in an area. Another commenter 

responded that many Local WDBs are 

currently delivering high quality career 

services and should not be forced to 

procure them. 

Department Response: The 

Department has interpreted WIOA sec. 

107(g)(2), which states that a Local WDB 

may provide career services described 

in WIOA sec. 134(c)(2) through a onestop delivery system or be designated or 

certified as a one-stop operator only 

with the agreement of the CEO and the 

Governor, to mean that the Local WDB’s 

delivery of career services is at the 

discretion of the CEO and Governor. 

Section 679.410(b) offers the CEO and 

Governor flexibility in deciding whether 

to pursue a competitive award of career 

services. However, the Department 

supports competition and maintains the 

opinion that Local WDBs acting as 

direct providers of these services is not 

optimal. No change to the regulatory 

text was made in response to these 

comments. 

Comments: Commenters also 

requested clarity regarding the role of 

Local WDB members in delivering 

training and career services but offered 

no suggested language changes. 

Department Response: Paragraph (d) 

of § 679.410 provides language that 

extends the Local WDB limitations 

outlined in § 679.410(c) to Local WDB 

staff. No change to the regulatory text 

was made in response to these 

comments. 

Training Services Provider 

(§ 679.410(c)) 

WIOA sec. 107(g)(B) outlines a waiver 

process for Local WDBs to offer training 

services. Local WDBs wanting to offer 

training services, such as GED, are 

required to apply to the Governor for a 

waiver and meet the waiver restrictions 

outlined in WIOA sec. 107(g)(1) and 

§ 679.410(c). 

Comments: Commenters asked for 

clarification regarding the penalties for 

violating this provision. 

Department Response: WIOA sec. 183 

requires the Governor to monitor all 

locals and lays out the course of action 

for any deficiencies that are not 

corrected such as corrective action, 

sanctions, and reorganizing the Local 

WDB. Entities that do not comply are 

subject to appropriate administrative 

and fiscal actions, which may include 

revocation of the waiver as described in 

WIOA sec. 107. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.420 What are the 

functions of the local fiscal agent? 

Comments: The Department requested 

comment on § 679.420 which addresses 

the roles of the local fiscal agent. Many 

commenters agreed with the regulation 

as proposed while others provided 

recommendations for expanding the role 

and suggested changes to the regulatory 

text to include requiring the permissible 

functions in § 679.420(c). Other 

commenters requested additional 

guidance on specific concerns such as 

fees, policy development, clarification 

on entities that may act as a fiscal agent, 

and the role of the CEO. Noting that 

most commenters agreed with the fiscal 

agent role set forth in the proposed 

regulatory text, the Department made no 

changes to the fiscal agent functions 

under § 679.420. 

One commenter said that that the 

definition of fiscal agent conflicts with 

§ 681.400. 

Department Response: The 

Department disagrees that the two 

regulatory sections are in conflict. 

Paragraph (b) of § 679.420 provides a list 

of the key functions of a fiscal agent. 

The appropriate role of fiscal agent is 

limited to accounting and funds 

management functions rather than 

policy or service delivery. Section 

681.400 provides that the local grant 

recipient may directly provide youth 

services. Entities serving multiple roles 

must adhere to WIOA title I, subtitle E 

(Administration) and § 679.430 to 

ensure appropriate firewalls within a 

single entity performing multiple 

functions, including when a fiscal agent 

also functions as a direct provider of 

services. No change to the regulatory 

text was made in response to these 

comments. 

Section 679.430 How do entities 

performing multiple functions in a local 

area demonstrate internal controls and 

prevent conflict of interest? 

Proposed 20 CFR 679.430 specified 

that a written agreement with the Local 

WDB and CEO is required when a single 

entity operates in more than one of the 

following roles: Local fiscal agent, Local 

WDB staff, one-stop operator, or direct 

provider of career services or training 

services. 

Comments: Several commenters 

requested clarification regarding how 

various entities should function in 

multiple roles. 

Department Response: This section 

requires a written agreement with the 

Local WDB and chief elected official 

when a single entity operates in more 

than one of the specified roles, but does 

not dictate the specific contents of the 

agreement, because the regulation 

cannot account for each individual 

Local WDB situation. However, the 

agreement must demonstrate how the 

organization will carry out its 

responsibilities while in compliance 

with WIOA and corresponding 

regulations, relevant Office of 

Management and Budget (OMB) 

circulars, the Uniform Guidance, and 

the State’s conflict of interest policy. 

While it may be appropriate in some 

instances for a single organization to 

fulfill multiple roles, a written 

agreement between the Local WDB, 

chief elected official, and the 

organization fulfilling multiple roles is 

the best method to limit conflicts of 

interest or the appearance of conflicts of 

interest, minimize fiscal risk, and 

develop appropriate firewalls within a 

single entity performing multiple 

functions. Because the regulation must 

be adaptable to a variety of potential 

situations, the Department has 

determined that no regulatory change is 

appropriate in this section and no 

change to the regulatory text was made 

in response to these comments. 

However, to clarify the multiple roles 

this section is addressing, the regulatory 

text was revised to refer to ‘‘the direct 

provider of services’’ instead of ‘‘the 

direct provider of career and training 

services’’ in order to include cases 

where the entity may be directly 

providing youth services under WIOA. 

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56106 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Other Comments on Local Workforce 

Development Boards 

Comments: A commenter expressed 

its support for all of the proposed part 

679, subpart C, regulations. Multiple 

commenters said that Local WDBs 

should have more flexibility in the time 

allowable to become compliant with 

Federal and State laws during the 

program year 2015–2016. 

Department Response: Regarding 

timelines, the Department agrees that 

clarification of the expectation for the 

process is needed and will add 

§ 679.500(c), which requires the 

Governor to establish and disseminate a 

policy for the submission of local and 

regional plans. 

Comments: One commenter asserted 

that the regulations are missing the vital 

role of a ‘‘system coordinator’’ that is 

truly necessary in complex areas like 

large metropolitan cities. The 

commenter described three options for 

designating a ‘‘system coordinator’’ that 

it asserted would maintain the Local 

WDB’s authority to establish a vision for 

the local workforce development 

system, recognize the diversity in 

models for implementing WIOA, and 

maintain a competition to ensure the 

highest quality providers are selected to 

operate one-stop centers. These options 

were described as (1) the Local WDB 

taking on the role of system coordinator 

(provided it competitively selected onestop operators per WIOA sec. 121(d)); 

(2) the Local WDB could, with 

agreement of the CEO, designate a local 

public agency or non-profit organization 

as the system coordinator (provided it 

competitively selected one-stop 

operators); or (3) a single one-stop 

operator could still play this role. 

Department Response: WIOA does not 

define or otherwise reference a role for 

a system coordinator. WIOA secs. 101 

and 107 allow Boards to hire staff for 

the purposes of assisting in carrying out 

the Board required functions. The local 

option to create a role of a system 

coordinator is already covered in the 

Boards’ authority to hire staff. No 

change to the regulatory text was made 

in response to these comments. 

4. Subpart D—Regional and Local Plan 

Title 20 CFR 679.500 describes the 

purpose of the regional and local plans; 

WIOA provides designated regions and 

local workforce areas the responsibility 

and opportunity to develop employment 

and training systems tailored 

specifically to regional economies. 

These systems must meet the needs of 

the full range of learners and workers, 

including those with barriers to 

employment. The system must also 

address the specific needs of regional 

employers and the skills they require. 

WIOA requires the Local WDB, in 

partnership with the CEO, to submit a 

local plan to the Governor. If the local 

area is part of a planning region, the 

Local WDB will submit its local plan as 

part of the regional plan and will not 

submit a separate local plan. The local 

or regional plan provides the framework 

for local areas to define how their 

workforce development systems will 

achieve the purposes of WIOA. The 

regional or local plans serve as 4-year 

action plans to develop, align, and 

integrate the region and local area’s job 

driven workforce development systems, 

and provides the platform to achieve the 

local area’s visions and strategic and 

operational goals. Since the local plan is 

only as effective as the partnerships that 

operationalize it, it must represent a 

collaborative process among local 

elected officials, boards, and required 

and other partners (including economic 

development, education, and private 

sector partners) to create a shared 

understanding of the local area’s 

workforce investment needs, a shared 

vision of how the workforce 

development system can be designed to 

meet those needs, and agreement on the 

key strategies to realize this vision. The 

Department received comments on the 

purpose, the content, and the structure 

of regional and local plans. In this 

subpart the Department addresses 

comments regarding how regions can be 

aligned. 

Section 679.500 What is the purpose 

of the regional and local plan? 

WIOA sec. 106(c) addresses regional 

coordination and regional plans are 

addressed in WIOA sec. 106(c)(2). In 

accordance with WIOA sec. 106(c), 

§ 679.500 describes the purpose of the 

regional and local plans. 

Comments: Commenters provided 

feedback for the content of the regional 

plan, expressed concern about the 

challenges of coordination, requested 

additional guidance on plan 

development, and asked for clarity 

regarding plan development and 

submission. 

Department Response: The 

Department has issued some guidance 

on planning and anticipates issuing 

additional guidance on planning to the 

public workforce system. Regarding 

timelines, the Department agrees that 

clarification of the expectation for the 

process is needed and has added 

§ 679.500(c), which requires the 

Governor to establish and disseminate a 

policy for the submission of local and 

regional plans. 

Section 679.510 What are the 

requirements for regional planning? 

Participation in a Regional Planning 

Process (§ 679.510(a)(1)) 

WIOA sec. 106(c) governs regional 

coordination and regional planning 

requirements, which are clarified in 

§ 679.510. 

Comments: A commenter asked 

which local area within a region would 

be responsible for the performance 

negotiation process. 

Department Response: The 

representatives of each local area in the 

region are collectively responsible for 

the process. Establishing an agreement 

among the Local WDBs and local CEOs 

in the region concerning how the 

planning region will collectively 

negotiate and reach agreement with the 

Governor on local levels of performance 

for, and report on, the performance 

accountability measures is required by 

WIOA sec. 116(c)(1)(H) and 

§ 679.510(a)(1)(viii). No change to the 

regulatory text was made in response to 

these comments. 

Preparation, Submittal, and Approval of 

Regional Plans (§ 679.510(a)(2)) 

Comments: Commenters have 

suggested that a single local area could 

elect to participate in multiple planning 

regions through a memorandum of 

agreement. 

Department Response: In accordance 

with WIOA sec. 106, a single local area 

may not be split across two planning 

regions. Local areas must align with 

planning regions to align economic and 

workforce development activities and 

resources effectively. Local areas may be 

part of only one region. However, local 

areas are not prohibited from working or 

coordinating with other local areas, and 

regions may coordinate with other 

planning regions. Similarly, where a 

single local area is identified as a region, 

such a local area could reasonably 

coordinate with other local areas or 

planning regions. Coordination may be 

especially vital across States; the 

Department anticipates providing 

additional guidance regarding the 

creation and management of interstate 

planning regions. As the regulation 

aligns with WIOA and does not prohibit 

coordination, no change to the 

regulatory text was made in response to 

these comments. 

Comments: A commenter asked how 

the plans are to be submitted. 

Department Response: The plans 

must be submitted to the Governor as 

outlined in § 679.510(a)(2) and any 

guidance issued by the Department 

(§ 679.510(a)(1)(i)). 

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Other Requirements for Regional 

Planning (§ 679.510(b), (c), and (d)) 

Comments: Commenters suggested 

specific content for the regional plan 

including how the region coordinates 

core program services, economic 

development strategies, education 

attainment, credentialing of workforce 

skills to meet employer skill needs, and 

data regarding participants with 

disabilities. 

Department Response: WIOA sec. 

106(c)(2) and § 679.510 describe the 

requirements for regional planning, 

which already address the region’s 

service strategies, regional labor market 

data, coordination efforts, etc. The 

Department plans to issue further 

guidance. 

Section 679.520 What are the 

requirements for approval of a regional 

plan? 

Section 679.520 describes the regional 

plan approval process. 

Comments: The Department received 

comments regarding the timelines, 

including suggestions that the timeline 

for approval in § 679.520 of ‘‘90 days 

after submission’’ is inconsistent with 

WIOA sec. 108(e), which says the plan 

‘‘shall be considered to be approved by 

the Governor at the end of the 90-day 

period beginning on the day the 

Governor receives the plan.’’ 

Department Response: The 

Department agrees that 90-day period 

should be revised to track WIOA and 

has amended both §§ 679.520 and 

679.570 to reflect the statutory language 

of 90 days after receipt of the local plan. 

Section 679.530 When must the 

regional plan be modified? 

Title 20 CFR 679.530 describes when 

a regional plan must be modified and 

§ 679.580 requires the Governor to 

establish procedures governing local 

plan review and modification to ensure 

that the biennial review and 

modification of local plans is conducted 

consistently throughout the State. The 

circumstances identified in 

§ 679.530(b)(1) and (2) identify the 

significant changes that require 

modification but the Governor may 

require other factors. While sec. 106(c) 

of WIOA clearly describes the required 

contents of the regional plan, it provides 

less detail about the approval and 

modification process, saying only that 

officials in the planning region must 

‘‘prepare, submit, and obtain approval’’ 

of the plan. 

Comments: Commenters requested 

that the language in this section and of 

§ 679.580 be narrowed to specify that 

modifications are required only in 

response to ‘‘changes to local economic 

conditions, and any changes in the 

financing available’’ to allow regions 

more flexibility. 

Department Response: Because the 

local plan is a component of the 

regional plan, the Department decided 

to apply the approval and modification 

requirements to the regional plan, 

which are reflected in § 679.530(b)(2), 

and which require modification based 

on ‘‘other factors affecting the 

implementation of the local plan, 

including but not limited to changes in 

the financing available to support WIOA 

title I and partner-provided WIOA 

services.’’ In the Department’s view, 

ensuring that regional and local plans 

remain up-to-date and relevant, and 

ensuring consistency between regional 

and local plan requirements, will 

improve the effectiveness of the public 

workforce system. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.540 How are local 

planning requirements reflected in a 

regional plan? 

Title 20 CFR 679.540 outlines how 

local planning requirements are 

reflected in a regional plan. WIOA is 

silent on the coordination of the 

regional and local plan, noting only that 

the regional plan must ‘‘incorporate 

local plans for each of the local areas in 

the planning region.’’ The Department 

has determined that the most 

appropriate and least burdensome 

approach to implementing this 

provision is to include a copy of each 

local plan within the regional plan to 

accompany the plan’s discussion of 

regional strategies. In this arrangement, 

the regional plan is completed in 

cooperation with the Local WDBs and 

CEOs in a planning region, per 

§ 679.510(a). Each individual Local 

WDB and CEO will respond to the local 

planning requirements at § 679.560(b) 

through (e) individually. The Local 

WDBs and CEOs in a planning region 

must cooperate to develop a common 

response to the local planning 

requirements that discuss regional labor 

market information, as required by 

§ 679.540(a), and any other appropriate 

requirements permitted by the Governor 

per § 679.540(b). When these activities 

are completed, the planning region 

submits one regional plan to the 

Governor that includes the common 

discussion of regional labor market 

information and other requirements as 

required by the Governor, as well as 

each local plan in a single document. 

Comments: A commenter asked the 

Department to clarify if regions had to 

submit all of the separate local plans 

that are encompassed in the regional 

plan. 

Department Response: WIOA sec. 

106(c)(2) requires the regional plan to 

incorporate local plans for each of the 

local areas in the planning region. As 

described above, the Department has 

determined that the most appropriate 

and least burdensome approach to 

implementing this provision is to 

include a copy of each local plan within 

the regional plan to accompany the 

plan’s discussion of regional strategies. 

No change to the regulatory text was 

made in response to these comments. 

Section 679.550 What are the 

requirements for the development of the 

local plan? 

Title 20 CFR 679.550 explains the 

requirements for the development of the 

local plan. This section emphasizes the 

importance of collaboration and 

transparency in the development and 

submission of the local plan and 

subsequent modifications. 

Comments: A commenter requested 

clarification regarding when it was 

necessary for a local area to submit a 

local plan. 

Department Response: Paragraph (a) 

of § 679.550 implements sec. 108(a) of 

WIOA and describes the general 

requirements for the preparation and 

content of the local plan. If the local 

area is part of a planning region, the 

Local WDB must comply with WIOA 

sec. 106(c) and §§ 679.510 through 

679.540 in the preparation and 

submission of a regional plan. The local 

plan is considered submitted when it is 

incorporated in the regional plan. 

Comments: Other commenters asked 

if the terms plan, the local plan, or the 

local workforce investment plan are 

synonymous and recommended 

consistency be used throughout the 

regulation. 

Department Response: The 

Department used all terms to refer to the 

local plan required in WIOA sec. 108 

and refers to the local plan in the 

regulations. 

Section 679.560 What are the contents 

of the local plan? 

Contents of a Local Plan 

Title 20 CFR 679.560 is consistent 

with sec. 108(b) of WIOA and outlines 

the information that must be included 

in the local plan. These requirements set 

the foundation for WIOA principles, by 

fostering strategic alignment, improving 

service integration, and ensuring that 

the public workforce system is industryrelevant, responding to the economic 

needs of the local area and matching 

employers with skilled workers. 

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Comments: The Department received 

comments supporting the proposed 

section, and some recommending 

changes to the content of the local plan, 

as well as comments requesting 

additional guidance. 

Department Response: The 

Department has determined it is 

appropriate for § 679.560 to track 

closely with WIOA sec. 108(b), which 

outlines the content requirements of the 

local plan. No changes were made to the 

regulatory text in response to these 

comments. The Department recognizes 

the need for technical assistance in 

developing local plans and will issue 

guidance for State and Local WDBs to 

assist in developing compliant plans. 

Local Levels of Performance 

Title 20 CFR 679.560(b)(4) explains 

that the Local WDB must describe how 

it will coordinate local workforce 

investment activities with regional 

economic development activities that 

are carried out in the local area and 

promote entrepreneurial skills training 

and microenterprise services. 

Comments: Commenters requested 

additional information on performance 

criteria for the ETPL and 

‘‘microenterprise development.’’ 

Department Response: Alignment 

between the public workforce system 

and local economic development 

activities is critical in order to identify 

and fulfill industry talent needs by 

training customers for emerging and in 

demand job skills. Furthermore, 

microenterprise development refers to 

training for the purposes of selfemployment. This training strategy may 

be appropriate for individuals or 

participants with multiple barriers to 

employment, including persons with 

disabilities. 

Title 20 CFR 679.560(b)(5) focuses on 

the delivery of services through the onestop delivery system in the local area 

and requires descriptions regarding how 

the Local WDB will ensure the 

continuous improvement of eligible 

providers of services—see part 680, 

subpart D, for additional information on 

the requirements of the eligible training 

provider list. 

Comments: Other commenters 

suggested that regulations detail the 

timeline for performance negotiations 

related to local plan submission. 

Department Response: The 

Department agrees that clarification is 

needed and has added § 679.500(c), 

which requires the Governor to establish 

and disseminate a policy for the 

submission of local, and regional plans. 

This policy must account for the 

requirement that local areas in a region 

reach agreement on how they will 

negotiate performance indicators with 

the Governor, as provided in 

§ 679.510(a)(1)(viii). 

Priority of Service (§ 679.560(b)(21)) 

Comments: Commenters requested 

additional clarification on the 

implementation of priority of service, 

and recommended methods to ensure 

consistent implementation. 

Department Response: Title 20 CFR 

679.560(b)(21) requires that the plan 

include description of the process by 

which priority of service must be 

applied by the one-stop operator, but 

also clarifies that such priority is for 

adult career and training services and 

must be given to recipients of public 

assistance, other low-income 

individuals, and individuals who are 

basic skills deficient. Including the 

priority service policy in the local plan 

will help ensure a more uniform 

application of the policy throughout the 

local area. The Department has issued 

some guidance on planning and 

anticipates issuing additional guidance 

for State and Local WDBs to assist in 

developing compliant plans; no change 

to the regulatory text was made in 

response to these comments. 

Comments: A commenter suggested 

that the WIOA system should provide 

program participants with access to 

curriculum-aligned industry-recognized 

certificates verifying attainment of the 

critical skills that employers are looking 

for, so that when opportunities open up, 

the match between job seeker and 

employment can be accelerated and 

career pathways can be illuminated. 

Department Response: Title 20 CFR 

679.560(b)(2) requires that the Local 

WDB describe how such alignment will 

improve access to services and to 

activities that lead to a recognized 

postsecondary credential. The Local 

WDBs have the flexibility to consider 

many options; the Department declines 

to require a specific approach. However, 

the Department recognizes the need for 

technical assistance in developing local 

plans and will issue planning guidance 

for State and Local WDBs to assist in 

developing compliant plans. No change 

to the regulatory text was made in 

response to these comments. 

Other Comments on Local Plans 

Comments: A commenter suggested 

deleting § 679.560(b)(17) regarding 

becoming or remaining a highperforming Board. 

Department Response: The 

Department has determined that the 

requirement is consistent with WIOA 

sec. 108(b)(18) and has made no changes 

to the regulatory text in response to this 

comment. 

Comments: The Department received 

several comments regarding 

§ 679.560(b)(20) regarding the 

requirement that a local plan include a 

description of how one-stop centers are 

implementing and transitioning to an 

integrated, technology-enabled intake 

and case management information 

system for programs carried out under 

WIOA and by one-stop operators. 

Commenters had specific questions 

regarding how such a system is to be 

implemented. 

Department Response: Paragraph 

(b)(20) of § 679.560 reflects WIOA sec. 

108(b)(21). There is a requirement that 

the plan detail the actions that will be 

taken but there is no mandate in this 

section of a particular approach. No 

change to the regulatory text was made 

in response to these comments. 

Section 679.570 What are the 

requirements for approval of a local 

plan? 

Overarching Comments on the 

Approval of a Local Plan Timeline for 

Approval and Implementation 

The Department recognizes that the 

development of the local plan is 

dependent on several other essential 

State and local WIOA implementation 

activities and that local areas may not be 

able to respond fully to each of the 

required elements of the local plan in 

the timeframe provided. The 

Department sought comment on the 

scope of the challenges local areas may 

face regarding regional and local 

planning and potential actions that the 

Department can take to help local areas 

address these challenges. 

Comments: Several commenters 

requested that the amount of time be 

extended for both existing local plans 

that are already compliant with the 

initial designation criteria and local 

plans for new areas or regions. 

Commenters suggested that local plans 

be due 6 to 9 months after the State 

Plans are approved. Many commenters 

expressed concerns about the timeline 

in developing and submitting all plans. 

Several suggested timelines that should 

be regulated. Other commenters 

suggested that regulations detail the 

timeline for performance negotiations 

related to plan submission. 

Department Response: Title 20 CFR 

679.570 implements WIOA sec. 108(e). 

Paragraph (a) of § 679.570 requires that 

the Governor review completed plans 

and stipulates that unless the Governor 

determines that the plan is deficient 

according to paragraphs (a)(1) through 

(3), the plan will be considered 

approved 90 days after the Governor 

receives the plan. The Department made 

a clarifying edit to paragraph (a) so that 

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it is clear the 90-day time period begins 

when the Governor receives the plan, 

rather than at submission. The 

Department also edited paragraph (a)(2) 

to update the citation to the regulation 

that implements WIOA sec. 188. 

Regarding timelines, the Department 

agrees that clarification of the 

expectation for the process is needed 

and, as described above, has added 

paragraph (c) to § 679.500, which 

requires the Governor to establish and 

disseminate a policy for the submission 

of local and regional plans. 

With Training and Employment 

Guidance Letter No. 14–15, ‘‘Workforce 

Innovation and Opportunity Act (WIOA) 

Requirements for Unified and Combined 

State Plans,’’ dated March 4, 2016, and 

the WIOA State Plan ICR, published 

under OMB control number 1205–0522, 

the Department issued guidance on and 

requirements for Unified and Combined 

State Plans. The Department also 

intends to issue guidance or technical 

assistance on local and regional 

planning. Section 679.570 aligns with 

WIOA sec. 108, and the changes 

described above address the 

commenters’ concerns. No additional 

change to the regulatory text was made 

in response to these comments. 

Paragraph (b) of § 679.570 outlines the 

processes, roles, and responsibilities in 

the local plan process for situations in 

which the State is a single local area. 

Paragraph (b)(1) clarifies the State must 

incorporate the local plan in the State’s 

Unified or Combined State Plan 

submitted to the Department. Paragraph 

(b)(2) states that the Secretary of Labor 

will perform the roles assigned to the 

Governor as they relate to local planning 

activities and § 679.570(b)(3) indicates 

the Secretary of Labor will issue 

planning guidance for single-area States. 

Comments: Commenters asked why 

the Secretary of Labor would be 

performing the Governor’s role, what 

those planning activities are, and if the 

Secretary of Labor should be limited to 

approving local plans. 

Department Response: Single-area 

States are required to submit the plan to 

the Secretary of Labor under WIOA sec. 

108. The Secretary will perform the 

Governor’s role in local planning as 

outlined in WIOA sec. 108(a) and (e) 

regarding plan submission and 

approval. Section 679.570 aligns with 

WIOA sec. 108 and the Final Rule 

makes no change to § 679.570(b) in 

response to these comments. 

Section 679.580 When must the local 

plan be modified? 

Title 20 CFR 679.580 is consistent 

with WIOA sec. 108(a), which requires 

the Governor to establish procedures 

governing local plan review and 

modification to ensure that the biennial 

review and modification of local plans 

is conducted consistently throughout 

the State. Paragraph (b) of § 679.580 

explains that the Local WDB and 

appropriate CEOs must review the local 

plan every 2 years and submit a 

modification as needed, based on 

significant changes in labor market and 

economic conditions and other factors 

including changes to local economic 

conditions, changes in the financing 

available to support WIOA title I and 

partner-provided WIOA services, 

changes to the Local WDB structure, or 

a need to revise strategies to meet 

performance goals. 

Comments: A commenter 

recommended that modifications be 

limited to only substantive changes or 

as required by the State WDB. Other 

commenters requested guidance that 

included examples of changes 

warranting a local plan modification. 

Department Response: As outlined in 

§ 679.580, the Governor is required to 

establish procedures governing local 

plan review and modification. The 

Governor has the flexibility to further 

define the criteria under § 679.580(b) 

that require a modification to the local 

plan. The Department does not agree 

that additional language is needed to 

require additional modification 

requirements. Moreover, as described in 

the discussion of regional plan 

modification in § 679.530, in the 

Department’s view, ensuring that local 

and regional plans remain up-to-date 

and relevant, and ensuring consistency 

between local and regional plan 

requirements, will improve the 

effectiveness of the public workforce 

system. The Department declines to 

change the modification requirements 

and has made no changes to the 

regulatory text in response to these 

comments. 

5. Subpart E—Waivers/WorkFlex 

(Workforce Flexibility Plan) 

This subpart describes the statutory 

and regulatory waiver authority 

provided by WIOA sec. 189(i), and the 

requirements for submitting a Workforce 

Flexibility Plan under WIOA sec. 190. 

The Department addresses comments 

regarding the purpose of the waiver 

authority in WIOA, and the 

circumstances under which a waiver 

may apply. 

WIOA provides States the flexibility 

to request a waiver of program 

requirements in order to implement new 

strategic goals for the improvement of 

the statewide workforce development 

system and to provide better customer 

service in exchange for accountability 

for expected programmatic outcomes. A 

Workforce Flexibility plan provides 

additional flexibility to the State. In 

general, a State with an approved 

Workforce Flexibility plan is given the 

authority to identify local level 

provisions to waive without further 

approval from the Secretary of Labor to 

achieve outcomes specified in the plan. 

A description of what provisions of 

WIOA and the Wagner-Peyser Act may 

and may not be waived is included, 

along with an explanation of the 

procedures for requesting a waiver. The 

subpart also describes what may and 

may not be waived under a Workforce 

Flexibility Plan, and the procedures for 

obtaining approval of a plan. The WIOA 

requirements for obtaining approval for 

a waiver or Workforce Flexibility Plan 

are similar to those in WIA secs. 189(i) 

and 192, respectively; therefore, many 

of the proposed regulations are the same 

as the regulations implementing WIA. 

No changes have been made to 

regulatory text in response to these 

comments. 

Section 679.610 What provisions of 

the Workforce Innovation and 

Opportunity Act and the Wagner-Peyser 

Act may be waived, and what 

provisions may not be waived? 

WIOA sec. 189(i)(3)(A)(i) establishes 

the limitations of the Secretary’s general 

waiver authority for WIOA title I, 

subtitles A, B, and E. As described in 

the regulation, the Secretary is 

statutorily prohibited from waiving any 

provisions related to the following: 

• Wage and labor standards; 

• Non-displacement protections; 

• Worker rights; 

• Participation and protection of 

workers and participants; 

• Grievance procedures and judicial 

review; 

• Nondiscrimination; 

• Allocation of funds to local areas; 

• Eligibility of providers or participants; 

• The establishment and functions of 

local areas and Local WDBs; 

• Procedures for review and approval of 

State and local plans; 

• The funding of infrastructure costs for 

one-stop centers; and 

• Other requirements relating to the 

basic purposes of title I of WIOA 

described in § 675.100 of this chapter. 

Comments: A commenter suggested 

that the Department consider waivers of 

some of these provisions to the extent 

that they enhance wage and labor 

standards and non-displacement 

protections. 

Department Response: The 

Department does not have the authority 

to approve waivers that are prohibited 

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by statute and no change to the 

regulatory text was made in response to 

this comment. 

Section 679.620 Under what 

conditions may a Governor request, and 

the Secretary approve, a general waiver 

of statutory or regulatory requirements 

under the Workforce Innovation and 

Opportunity Act? 

Title 20 CFR 679.620(a) through (f) 

implements WIOA sec. 189(i)(3) and 

describes the conditions under which a 

Governor may request, and the Secretary 

may approve a waiver of statutory or 

regulatory requirements. Title 20 CFR 

679.620(a) explains that the Secretary 

will issue guidelines on waiving WIOA 

and Wagner-Peyser requirements. States 

will be required to follow the 

Secretary’s guidelines, which 

supplement the requirements listed in 

20 CFR 679.600 through 679.620. 

Comments: A commenter asked for 

more clarification regarding what the 

most recent data are that would be 

required to grant a waiver renewal, as 

required by proposed § 679.620(d)(7). 

Department Response: In general, the 

Department has not required specific 

data sources when requesting a waiver 

under WIA or WIOA. The Governor has 

the discretion to use the data source or 

sources that most effectively 

demonstrates the need and/or benefit of 

the requested waiver. The Department 

has made no changes to the regulatory 

text in response to this comment. 

Comments: A commenter asked if 

existing WIA waivers that are approved 

to run past 2015 will be applicable 

under WIOA, and suggested that they 

remain in effect through the original 

period for which they were approved. 

With regard to the WIOA transition 

period, one commenter supported the 

current continuation of waivers as 

granted. Other commenters 

recommended the continuation of 

existing waivers until the WIOA State 

Plan is approved. Regarding States with 

existing WIA waivers, one commenter 

recommended that the Department 

allow such States to keep this flexibility 

until either the Federal government 

provides additional time or resources 

necessary for implementation of WIOA’s 

new requirements, or the States provide 

evidence that they are prepared to 

implement the additional requirements. 

Department Response: The 

Department issued TEGL No. 01–15 

(‘‘Guidance Regarding the Impact of 

Workforce Innovation and Opportunity 

Act Implementation on Waivers Under 

the Workforce Investment Act’’), which 

addresses the status of waivers during 

program year 2015 and communicates 

the Department’s position on waivers 

under WIOA. This guidance includes an 

attachment that discusses whether each 

waiver type will be continued into 

WIOA, as well as those that expired 

effective July 1, 2015. No change to the 

regulatory text was made in response to 

these comments. 

Section 679.630 Under what 

conditions may the Governor submit a 

Workforce Flexibility Plan? 

Comments: One commenter expressed 

support for the language in this section 

that prohibits the waiver of certain 

requirements related to labor standards 

and worker protections. 

Department Response: WIOA sec. 

189(i)(3)(A)(i) and (ii) describe the 

statutory limitations to the Secretary’s 

WIOA title I and Wagner-Peyser waiver 

authority. These prohibitions include 

any statutory provisions related to labor 

standards or worker rights. No change to 

the regulatory text was made in 

response to this comment. 

Other Comments on Waivers/Work-Flex 

Comments: One commenter expressed 

support for the proposed language in 

part 679 subpart E regarding waivers 

and Work-Flex. 

To assist employers and job seekers 

best, one commenter requested that the 

Department offer waivers whenever 

possible. A State agency suggested that 

the Department add waiver provisions 

to the Final Rule regarding the 

application for continued eligibility of 

ETPs and to the internal control policy 

requirement provided that a written 

agreement pursuant to proposed 

§ 679.430 is in place. 

Department Response: Specific 

waiver requests must be requested 

through the waiver process. The 

Department declines to make changes to 

identify specific waivers in the 

regulatory text. 

6. Other Comments on Statewide and 

Local WIOA Governance 

Comments: With regard to the 

alignment of title I and title II services 

to improve services for immigrant and 

LEP individuals, multiple commenters 

recommended that the Department 

provide additional guidance to States 

and localities (whether through 

regulations or policy directive) that 

allows for differing eligibility criteria 

across the titles and encourages States 

and localities to align services without 

precluding participation by individuals 

who may be eligible for services under 

one title but not another. Another 

commenter stressed the importance of 

aiding immigrant and refugee 

communities and asked that the 

Department include reference to the 

need for expertise in serving 

linguistically and culturally diverse 

populations in its discussion of part 

679. 

One commenter expressed its concern 

about the challenge of meeting all WIOA 

requirements by July 1, 2015, 

particularly considering the late 

issuance of the WIOA regulations. 

Department Response: While the 

Department acknowledges the need to 

be sensitive to the employment and 

training needs of immigrant and LEP 

individuals, WIOA sec. 189(i)(3)(A)(i) 

prohibits the Department from waiving 

or otherwise altering eligibility criteria. 

No change to the regulatory text was 

made in response to these comments. 

The Department acknowledges the 

challenges inherent in implementing 

WIOA in the absence of a Final Rule. 

The Department issued Operating 

Guidance documents to inform the 

public workforce system how to comply 

with WIOA statutory requirements. The 

Operating Guidance provided a 

framework for program activities while 

regulations were finalized. 

Comments: Explaining that its local 

areas have utilized funding to serve 

customers in their jurisdiction only, one 

commenter asked whether the State can 

set policy to allow a broader use of 

funds under WIOA. In addition, this 

commenter asked whether, if State 

agencies grant adult education programs 

to local areas, the infrastructure costs 

should come from the local vendor or 

the State. 

Department Response: States have 

authority to set policy that is consistent 

with WIOA. The Department has 

determined that the State is in the best 

position to develop policy regarding 

allocating scarce Federal funds; the 

Department has not made changes to the 

regulatory text in response to this 

comment. Further, all funds must 

expended in accordance with the 

Uniform Guidance regulations and 

WIOA subtitle E (Administration). TEGL 

No. 15–14 (‘‘Implementation of the New 

Uniform Guidance Regulations’’) 

provides additional information on 

implementing the Uniform Guidance. 

Comments: One commenter suggested 

that Local WDBs should remain 

responsible for operation of local/

regional workforce programs 

representing business sectors in their 

communities and that it is a conflict of 

interest for State governments to receive 

funding, develop and operate programs, 

and monitor and evaluate programs. 

This commenter asserted that Stateoperated workforce programs are 

primarily budget-driven, rather than 

customer-driven, with primarily digital 

service structures that leave individuals 

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in rural communities lacking internet, 

transportation, and skills without access 

to services. 

Department Response: Section 

679.100 implements WIOA sec. 101 and 

outlines the vision and purpose of the 

State WDB. Section 679.130 implements 

WIOA sec. 101(d) and describes the 

roles and functions of the State WDB. 

The State WDB’s purpose, as outlined in 

WIOA sec. 101 and § 679.100, is to 

convene State, regional, and local 

workforce system, and partners to align 

and improve the outcomes and 

effectiveness of Federally funded and 

other workforce programs and 

investments. Section 679.300 

implements WIOA sec. 107 and 

explains the purpose of the Local WDB. 

In accordance with the functions of the 

Local WDB outlined in WIOA sec. 

107(d), § 679.300(b)(1) includes the 

function of providing strategic and 

operational oversight in collaboration 

with required and other partners to help 

the workforce development system 

achieve the purposes outlined in WIOA 

sec. 2, and assist in the achievement of 

the State’s strategic and operational 

vision and goals outlined in the State 

Plan. Paragraphs (b)(2) and (3) of 

§ 679.300 require the Local WDB to 

assist in the achievement of the State’s 

strategic and operational vision and 

goals as outlined in the Unified State 

Plan or Combined State Plan, and to 

maximize and continue to improve the 

quality of services, customer 

satisfaction, and effectiveness of the 

services provided. 

D. Part 680—Adult and Dislocated 

Worker Activities Under Title I of the 

Workforce Innovation and Opportunity 

Act 

1. Introduction 

In this part of the Final Rule, the 

Department describes requirements 

relating to the services that are available 

for adults and dislocated workers under 

WIOA. Adult services are provided to 

help job seekers who are at least 18 

years old succeed in the labor market. 

WIOA establishes a priority in the adult 

program for serving low-income 

individuals, recipients of public 

assistance, and individuals lacking basic 

work skills. Dislocated worker services 

are provided to workers who have lost 

their job, through no fault of their own. 

The goal of dislocated workers services 

is to help these individuals obtain 

quality employment in in-demand 

industries. 

Under WIOA, adults and dislocated 

workers may access career services and 

training services. WIOA provides for a 

public workforce system that is 

universally accessible, customer 

centered, and training that is job-driven. 

In this part, the Department also 

discusses supportive services and 

needs-related payments that can be 

provided, based on customer needs, to 

enable them to participate in WIOA 

career and training services. 

The Department generally received 

comments that were supportive about 

the delivery of career and training 

services. It also received comments 

about the implementation of the 

statutory priority for the WIOA adult 

program, and how various populations, 

including individuals with disabilities, 

are able to access WIOA title I adult and 

dislocated worker services, which the 

Department has sought to clarify. In 

addition, the Department received 

comments about some of the new workbased experience and training 

opportunities under WIOA, including 

how registered apprenticeship can be 

utilized by the one-stop delivery system, 

and clarifications on transitional jobs, 

on-the-job training, and incumbent 

worker training. These comments are 

discussed below, in the sections 

corresponding to subparts A–D and 

F–G. The Department also received a 

number of comments on the Eligible 

Training Provider (ETP) eligibility 

requirements, which are discussed 

below under subpart D. For the 

comments received that pertain to the 

WIOA sec. 116(d)(4) ETP annual 

performance reports, those comments 

are discussed in the preamble 

discussion accompanying 20 CFR 

677.230 (see Joint WIOA Final Rule 

published elsewhere in this issue of the 

Federal Register). 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

part 680 regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

2. Subpart A—Delivery of Adult and 

Dislocated Worker Activities 

Introduction 

This subpart discusses the role of 

WIOA adult and dislocated worker 

services delivered through the one-stop 

delivery system. The one-stop delivery 

system provides universal access to 

career services to meet the diverse needs 

of adults and dislocated workers. Adult 

and dislocated worker programs are 

required partners in the one-stop 

delivery system and as such, grant 

recipients are subject to the required 

partner responsibilities set forth in 20 

CFR 678.415 (see Joint WIOA Final 

Rule). 

Career and training services, tailored 

to the individual needs of job seekers, 

form the backbone of the one-stop 

delivery system. While some job seekers 

may only need self-service or other 

basic career services like job listings, 

labor market information, labor 

exchange services or information about 

other services, some job seekers will 

need services that are more 

comprehensive and tailored to their 

individual career needs. These services 

may include comprehensive skills 

assessments, career planning, and 

development of an individual 

employment plan that outlines the 

needs and goal of successful 

employment. Under WIA, career 

services were identified as core and 

intensive services and participants 

generally would follow through each 

level of service to receive training 

eventually. WIOA provides an 

individual receiving services in onestop centers the opportunity to receive 

the service needed to help him/her meet 

his/her employment and career goals. 

WIOA clarifies that an individual does 

not need to follow a fixed sequence of 

services that may not be necessary to 

meet his or her needs. 

Under WIOA, the Department 

classifies career services into two 

categories: Basic and individualized 

career services. This grouping is not 

designed to create barriers to training, 

but rather identifies the importance that 

these two types of career services can 

have in helping individuals obtain 

employment. Basic career services must 

be made available to all job seekers and 

include services such as labor exchange 

services, labor market information, job 

listings, and information on partner 

programs. Individualized career services 

identified in WIOA and described in 

these proposed regulations are to be 

provided by local areas as appropriate to 

help individuals to obtain or retain 

employment. Career and training 

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services are more fully discussed in 

subparts A and B of this part. 

Section 680.100 What is the role of the 

adult and dislocated worker programs in 

the one-stop delivery system? 

Comments: A commenter expressed 

support for § 680.100 as proposed. In 

contrast, another commented that CEOs 

should not be considered one-stop 

partners. The commenter stated that 

CEOs are involved in the governance 

and oversight of the one-stop delivery 

system through the Board members that 

they appoint and so neither CEOs nor 

Board members should be involved in 

the operation of a one-stop delivery 

system. 

Department Response: WIOA sec. 107 

states that the CEO for the local area is 

the local grant recipient. WIOA sec. 

107(c) provides for how CEOs are to be 

determined in the event that there are 

multiple units of local government in a 

workforce area. As the grant recipient 

for the adult and dislocated worker 

programs, the CEO or his/her designee 

is a required one-stop partner in the 

governance and delivery of services in 

the one-stop delivery system consistent 

with sec. 121(b)(1) of WIOA and 20 CFR 

part 678 (see Joint WIOA Final Rule). 

No changes have been made to the 

regulatory text in response to the 

comments. 

Section 680.110 When must adults 

and dislocated workers be registered 

and considered a participant? 

Comments: A one-stop center 

requested clarification on how 

registration can occur through an 

electronic submission. Specifically, this 

commenter asked whether eligibility 

can be determined based solely on an 

electronic submission. The commenter 

also requested clarification of the 

language in the preamble explaining 

that ‘‘minimal’’ assistance would trigger 

the need to register. 

Department Response: State and local 

areas have the discretion to determine 

appropriate intake methods, which may 

include electronic and virtual means. 

Additionally, a service being provided 

to an individual electronically or 

virtually can be sufficient for the 

individual to be considered a 

‘‘participant,’’ provided it meets the 

standards of the definition provided at 

20 CFR 677.150(a) (see Joint WIOA 

Final Rule). 

Comments: A few commenters agreed 

with the way in which the NPRM 

described participation for adult and 

dislocated worker involvement with 

WIOA services. Specifically, several 

commenter suggested that self-service 

and information service should be 

included as participation for the 

purposes of registering a person to 

measure performance. 

In contrast, several commenters 

disagreed with the proposed approach 

to describing participant or 

participation. A few commenters said 

that ‘‘participant’’ was described too 

narrowly, cautioning that the NPRM 

could lead to denial of services for 

individuals in need of assistance. Some 

commenters recommended revisions to 

§ 680.110(a) to describe a ‘‘participant’’ 

by referencing 20 CFR 677.150 rather 

than limiting it to those individuals who 

receive staff-assisted services (see Joint 

WIOA Final Rule). One commenter 

expressed support for this revision, 

explaining that removal of minimally 

assisted customers from metrics would 

potentially reduce investments in 

resource rooms, a self-service facility 

that provides job seekers internet-based 

job search opportunities that are 

required by today’s employer. 

Additionally, several commenters 

recommended revisions to § 680.110(b) 

to allow for the provision of WIOA 

services to individuals who are not 

participants. In contrast, one commenter 

recommended that paragraph (b) more 

broadly define those individuals who 

are not required to register and be 

designated as participants to include 

individuals receiving referral services. 

Another commenter requested 

clarification on the distinction between 

a ‘‘staff assisted WIOA service’’ and 

‘‘self service and informational 

activities.’’ This commenter stated that 

WIA regulations with similar language 

had caused analogous confusion. A onestop center asked whether a basic 

workshop would be considered 

‘‘informational services’’ or a career 

service for purposes of performance 

accountability. A commenter asked if 

there was a distinction between basic 

and individual career services as it 

relates to participation. Noting that the 

NPRM explicitly specifies the activities 

that will not count towards 

participation but does not specify the 

activities that will count, a commenter 

asked whether it is up to the State to 

determine which career services will 

place the individual into participation 

or performance calculations. Expressing 

confusion over the meaning of 

participant, a commenter requested a 

definition of participant, including a 

clear indication of whether registration 

or utilization of services was necessary 

to be considered a participant, and 

asked the Department to identify the 

term for clients that are not registered 

and not participants. 

Several commenters stated that 

clarification is needed on where and 

when assessments and information 

collection efforts relevant to identify 

self-service individuals, reportable 

individuals, and participants will occur. 

Some commenters recommended that 

the Department provide a framework for 

how the designation of enrollment 

intertwines with career and training 

services, allowing maximum flexibility 

for States to design their approaches for 

both in-person and online services. In 

contrast, a commenter encouraged the 

Department to create a clear system that 

ensures a consistent approach across the 

States. Similarly, another commenter 

encouraged the Department to provide 

more details on the level/type of 

information required to be collected by 

individual and by required program 

titles to ensure data system integrity for 

reporting purposes. 

A commenter encouraged the 

Department to require enrollment in 

WIOA title I programs to occur when an 

individual employment plan (IEP) is 

developed. A commenter recommended 

the point at which funds must be 

dedicated to the client for their 

employment or training needs as the 

appropriate trigger for enrollment. 

Department Response: The 

Department made some non-substantive 

changes to align the definition of 

performance with 20 CFR 677.150(a)(3) 

(see Joint WIOA Final Rule). It also 

changed the text of § 680.110(a) to 

clarify when an individual is considered 

a ‘‘participant.’’ The Department is 

providing additional clarity in guidance 

on what services count as self-services 

or information-only services and 

activities. Further guidance may be 

provided to explain which services 

cause an individual to be considered a 

‘‘participant.’’ 

The distinction between reportable 

individual and participant is used for 

the purposes of reporting on 

performance, and does not have any 

impact on eligibility or service 

provision. Further information on 

performance is discussed in 20 CFR part 

677 (see Joint WIOA Final Rule 

published in this issue of the Federal 

Register), and information on the 

collection and data systems is being 

provided through the Department’s ICRs 

and guidance. 

The Department notes that while an 

IEP will cause an individual to be 

considered a participant, there are other 

ways to qualify for participation because 

there is no sequence of services 

requirement in WIOA. An IEP is an 

individualized career service and can be 

provided under either title I of WIOA or 

under the Wagner-Peyser Act 

Employment Service (ES) (as amended 

by title III of WIOA). Individualized 

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career services (of which an IEP is one) 

may be provided with Wagner-Peyser 

Act funds. 

Comments: A few commenters 

recommended that § 680.110(c) be 

revised to require the collection of data 

from only those individuals actually 

receiving aid, benefits, services, or 

training. 

Department Response: The 

Department made a technical correction 

at § 680.110(c), changing ‘‘Employment 

Opportunity’’ data to ‘‘EO’’ data because 

that is the data referred to in this section 

as defined in 20 CFR 675.300. The 

collection of Equal Opportunity (EO) 

data on every individual who is 

interested in being considered for WIOA 

title I financially assisted aid, benefits, 

services, or training is necessary to 

ensure compliance with WIOA sec. 188. 

The regulations governing WIOA sec. 

188 can be found at 29 CFR part 38. 

The point at which an individual has 

indicated ‘‘interest’’ in WIOA title I 

services is within the grant recipient’s 

discretion; however, the recipient’s 

request for and receipt of information 

triggers the accompanying responsibility 

to collect EO data at the same time. The 

EO data must be maintained in a 

manner that allows the individuals from 

whom the data was collected to be 

identified, and that ensures 

confidentiality. This responsibility is 

separate from, and might not arise at the 

same point in the process as, the 

registration responsibility. 

Section 680.120 What are the 

eligibility criteria for career services for 

adults in the adult and dislocated 

worker programs? 

Comments: A commenter stated that 

there is a discrepancy between the 

preamble and the proposed regulation 

creating confusion whether individuals 

who are basic skills deficient also have 

to be low-income. Similarly, a few 

commenters stated that priority should 

be given to low-income adults and 

public assistance recipients and 

individuals who are basic skills 

deficient, in accordance with WIOA sec. 

134(c)(3)(E). One commenter 

recommended that priority should also 

be given to adults who lack a regionally 

accredited secondary education diploma 

or high school equivalent (HSE). 

A commenter stated that the change 

from core and intensive services to 

career services as in proposed § 680.120 

would place a burden on States and 

local areas to revise policy and 

procedures. This commenter also 

requested that the Department define 

‘‘basic career services’’ and 

‘‘individualized career services’’ and 

describe when participants get placed 

into training. 

Department Response: WIOA sec. 

134(c)(3)(E) provides a statutory priority 

for public assistance recipients, other 

low-income individuals, and 

individuals who are basic skills 

deficient. The priority for these 

populations is not a criterion for 

eligibility for services under this 

program; rather, it is a statutory 

emphasis on providing individualized 

career services and training services to 

these populations under this program. 

The Department refers readers to 

§ 680.600, which governs the priority 

provisions of the adult program. No 

changes have been made to the 

regulatory text in response to the 

comments. 

Individuals who are basic skills 

deficient are to be provided priority 

with funds for these adult services. 

Basic skills deficient is defined in 

WIOA sec. 3(5), and an individual who 

lacks a secondary education diploma or 

HSE may qualify based on this standard. 

Additionally, § 680.600 provides 

Governors and Local WDBs with the 

authority to designate other priority 

populations. Individuals who lack a 

secondary education diploma or HSE 

could be designated by a Governor or 

Local WDB under that authority. 

Under WIA, priority with adult funds 

was to be provided in the event that 

funding was limited; that provision was 

removed from WIOA. Thus, priority and 

the policies and procedures for 

determining priority are statutory 

requirements for the WIOA title I adult 

program. The Department refers a 

commenter to 20 CFR 678.430 for 

definitions of ‘‘basic career services’’ 

and ‘‘individualized career services’’ 

(see Joint WIOA Final Rule). 

In addition, when participants are to 

be placed into training is a decision that 

must be made consistent with WIOA 

sec. 134(c)(3) and § 680.210. 

Section 680.130 What are the 

eligibility criteria for career services for 

dislocated workers in the adult and 

dislocated worker programs? 

Comments: Commenters requested 

clarification on the meaning of 

‘‘unlikely to return to a previous 

industry or occupation,’’ and what is 

meant by ‘‘unemployed as a result of 

general economic conditions in the 

community in which the individual 

resides or because of natural disasters.’’ 

One commenter encouraged the 

removal of the ‘‘unlikely to return’’ to 

their previous industry/occupation 

criteria from the definition of dislocated 

worker, because it hinders the ability to 

serve individuals that have been laid off 

or terminated. 

Further, a commenter stated that the 

process for determining eligibility as a 

dislocated worker through receipt of 

unemployment insurance or exhaustion 

of unemployment insurance currently is 

a cumbersome process. This commenter 

recommended that one-stop or the ES 

staff have real time access to the 

unemployment insurance database for 

verification of eligibility of dislocated 

workers. 

Department Response: WIOA defines 

‘‘dislocated worker’’ under WIOA sec. 

3(15), and requires the individual be 

‘‘unlikely to return to a previous 

industry or occupation’’ under WIOA 

3(15)(A)(iii). The regulation maintains 

this statutory definition. The 

Department has added regulatory text at 

§ 680.130(b)(3) allowing for Governors 

and Local WDBs to establish policies 

and procedures for one-stop centers to 

use in determining when an individual 

is unlikely to return to his or her 

previous industry or occupation. Any 

policy or procedure must be consistent 

with § 680.660, which provides that 

separating service members meet this 

criterion. 

The Department may utilize guidance 

and technical assistance to assist States 

and local areas in determining when an 

individual is ‘‘unlikely to return to a 

previous industry or occupation’’ or 

when an individual is ‘‘unemployed as 

a result of general economic conditions 

in the community in which the 

individual resides or because of natural 

disasters.’’ No other changes have been 

made to the regulatory text in response 

to the comments. 

Section 680.140 What Workforce 

Innovation and Opportunity Act title I 

adult and dislocated worker services are 

Local Workforce Development Boards 

required and permitted to provide? 

Comments: A commenter requested a 

definition of how Local WDBs are 

allowed flexibility when providing 

services with adult and dislocated 

worker funds. This commenter also 

stated that there would be a burden on 

States to track local flexibility of funds. 

Another commenter asked whether 

subgrantees would need to report 

expenditures for job seeker services, 

employer services, or coordination 

activities, as listed in proposed 

§ 680.140(b)(1) through (3). 

Department Response: Section 

680.140 describes the required and 

permissible employment and training 

activities with WIOA title I adult and 

dislocated worker funds. Paragraph (a) 

of § 680.140 describes the required 

activities a Local WDB must provide, 

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56114 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

which includes career and training 

services. These services are required 

under WIOA sec. 134(c)(2) and (3). 

Paragraph (b) lists the permissible 

activities a Local WDB may provide. 

Local WDBs have discretion in what 

permissible activities and services they 

provide. All expenditures must be 

tracked and documented by the State 

and Local WDB to ensure the proper 

administration of these funds. No 

changes have been made to the 

regulatory text in response to the 

comments. Section 680.140(b) is further 

discussed below. 

Comments: A few commenters 

expressed support for the various 

provisions within proposed § 680.140 

covering services for individuals with 

disabilities and recommended 

additional language be added to the 

regulation to urge Local WDBs to focus 

their optional services on this 

population because these services are 

permissive and not mandatory. Two 

commenters also encouraged the 

Department to reference veterans’ 

priority of service in § 680.140(a). 

A couple of commenters encouraged 

the Department to mention bridge 

programs explicitly, which are programs 

that prepare individuals with limited 

academic or English skills to succeed in 

postsecondary education and training 

programs, as an acceptable activity 

under WIOA, and to encourage their use 

in the Final Rule. Another commenter 

recommended that referrals by one-stop 

centers to regionally accredited 

secondary-level educational programs 

providing entry-level workforce 

preparation and/or postsecondary 

education and training activities be 

included as a basic service and 

counseling service. 

Department Response: The 

commenters above refer to the 

permissible local employment and 

training activities under WIOA sec. 

134(d) and § 680.140(b). Paragraph (b)(1) 

of § 680.140 describes the permissible 

‘‘job seeker services’’ that may be 

provided. The one-stop delivery system 

plays a vital role in providing career and 

training services to individuals with 

disabilities, as well as the customer 

supports that may be provided to help 

individuals with disabilities to navigate 

multiple services. The Department 

understands the commenters’ desire to 

make these services to individuals with 

disabilities mandatory; however, WIOA 

states that these are permissible 

activities under WIOA sec. 134(d). The 

Department does encourage Local WDBs 

to provide these services for individuals 

with disabilities, veterans, and other 

individuals with barriers to 

employment. No changes have been 

made to the regulatory text in response 

to the comments for § 680.140(b)(1)(i) 

through (iv). The citation to transitional 

jobs at § 680.190 has been moved from 

§ 680.830 to reflect the Department’s 

position that transitional jobs are a type 

of work experience, and thus a career 

service. 

Regarding the reference to veterans’ 

priority of service, the regulation at 

§ 680.650 ensures priority of service for 

veterans in all Department-funded 

employment and training programs. 

The Department notes bridge 

programs may be an appropriate activity 

for individuals to obtain meaningful 

employment; however, bridge programs 

are not discussed in WIOA and are not 

included in the regulatory text. 

Comments: A commenter 

recommended that career services for 

self-employed adults and dislocated 

workers be defined to include industry 

sector and/or entrepreneurship training 

for individuals who wish to remain selfemployed. 

Department Response: The 

Department does not propose to 

mandate any particular career services 

for self-employed adults and dislocated 

workers; these decisions are best made 

locally based on individual need. 

Decision-making about career and other 

services and training should be 

informed by information about indemand industry sectors and 

occupations. The Department notes that 

entrepreneurship training is allowed for 

adults and dislocated workers under 

WIOA sec. 134(c)(3)(D). 

Comments: A commenter requested 

clarification regarding employer 

services and the relationship to career 

services provided to job seekers versus 

employer services provided to 

businesses. This commenter explained 

that services provided to employers do 

not appear to be considered a career 

service because there would be no 

specific job seeker to register. 

Furthermore, the commenter stated that 

delivery of employer services does not 

need to be procured for a one-stop 

center, but can be designated by the 

local elected officials. 

Several commenters recommended 

that to serve both job seekers and 

employers effectively, the role of 

business services outreach staff should, 

in addition to supporting the priorities 

of the Local WDB, be focused on the 

goals of the individual WIOA titles. One 

commenter sought clarification on 

whether custom training, on-the-job 

training (OJT), and incumbent worker 

training were acceptable services to be 

offered under the business services 

function. This commenter also urged the 

Department to clarify the regulations to 

make clear that the operation of 

business services by the Local WDB 

itself and its staff are acceptable. 

A commenter encouraged the 

Department to define ‘‘employment 

generating activities,’’ which are 

prohibited by the proposed regulation. 

Department Response: Business and 

employer services are a permissible 

local activity under § 680.140(b)(2); 

services to employers are not considered 

a career service that is a required 

activity under § 680.140(a). No changes 

have been made to the regulatory text in 

response to the comments at 

§ 680.140(b)(2). 

The Department acknowledges the 

comments about defining ‘‘employment 

generating activities,’’ and has 

addressed them in § 683.245 of the 

preamble and regulations. The 

Department notes that employer 

services described in § 680.140(b)(2) 

must not be used to encourage business 

relocation to the local area from another 

State or local area. 

Comments: One commenter stated 

that it would be very difficult, if not 

impossible, to determine accurately 

when implementing a pay-forperformance training contract the 

amount of administrative funds that 

were spent on this specific activity 

because administrative funds may be 

pooled and that pooling includes the 

youth program. This commenter 

asserted a similar concern for 

percentage limitations associated with 

incumbent worker training (§ 680.800), 

transitional jobs (§ 680.820 in the 

NPRM; § 680.195 in this Final Rule), 

and work experience activities in the 

youth program (§ 681.590). 

Department Response: WIOA allows 

Local WDBs to set aside and use up to 

10 percent of their adult and dislocated 

worker funds on WIOA Pay-forPerformance contract strategies (see 

WIOA sec. 134(d)(1)(A)(iii) and 

§ 683.500), up to 20 percent on 

incumbent worker training (see WIOA 

sec. 134(d)(4)), and up to 10 percent on 

transitional jobs (see WIOA sec. 

134(d)(5)). See also § 680.140(b)(1)(v), 

(b)(4), and (b)(8). Administrative 

activities necessary to initiate or procure 

Pay-for-Performance contract strategies, 

incumbent worker training, and 

transitional jobs must be consistent with 

§ 683.215, which discusses how to 

determine whether an activity is 

administrative or programmatic for 

purposes of WIOA. If the activity would 

be considered programmatic under 

§ 683.215, then the cost would be 

subject to the caps discussed above. If 

the activity would be considered 

administrative under § 683.215, it may 

be paid for out of the Boards’ usual 

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administrative funds, and it is not 

subject to the caps. Therefore, the Board 

would not need to specifically account 

how much of the administrative funds 

are spent on these particular programs. 

Section 680.150 What career services 

must be provided to adults and 

dislocated workers? 

Comments: A commenter stated that 

the definition of career services should 

be clarified to include pre-screening, 

application assistance, and colocation of 

application assistance services for the 

programs for which career services onestop centers must provide information 

and referrals. 

Another commenter recommended 

that referrals to regionally accredited 

secondary-level educational programs 

providing entry-level workforce 

preparation and/or postsecondary 

education and training activities be 

included as part of basic services and 

counseling services. A commenter 

requested clarification regarding 

whether alternative secondary school 

(formerly General Education Diploma 

[GED]) preparation is considered a 

career service or a training service. 

One commenter recommended that 

§ 680.150(c) be revised to refer to 

activities provided for a ‘‘participant’’ 

and not a ‘‘registered participant’’ to 

avoid confusion resulting from 

‘‘registrants’’ and ‘‘participants’’ being 

two separately defined terms. Another 

suggested that the Department revise the 

regulations to allow participants to opt 

out of follow-up services, as was 

allowed under the WIA regulations. A 

few commenters requested clarification 

on the meaning of ‘‘follow up services 

as appropriate.’’ 

A commenter recommended that 

supportive services such as tools, 

uniforms, bus passes, or childcare, be 

allowed for up to 1 year after the exit 

date of adults or dislocated workers, 

saying some individuals may need a 

little additional help to keep a job that 

may not have been known when the 

individual initially took the job. 

A commenter association 

recommended the addition of new 

paragraphs within § 680.150 to (1) 

specify that career services can be 

provided by any of the one-stop 

partners, as opposed to having to be 

provided by a WIOA title I partner; and 

(2) create a framework by which prior 

interviews, evaluations, and 

assessments of participants can be used 

for purposes of evaluating eligibility for 

career services. 

Department Response: The 

Department has added ‘‘basic’’ before 

‘‘career services’’ to ensure consistency 

with 20 CFR 678.430(a) in how these 

services are described (see Joint WIOA 

Final Rule). No changes have been made 

to the regulatory text in response to the 

comments at § 680.150(b). 

Career services are defined in 20 CFR 

678.430 (see Joint WIOA Final Rule) and 

WIOA sec. 134(c)(2). Pre-screening, 

application assistance, referrals, and 

other information all would qualify as 

basic career services under 20 CFR 

678.430(a). Basic career services under 

§ 680.150(a) must be made available and 

are key to ensuring high quality services 

throughout the one-stop delivery 

system. 

The Department considers adult 

education and literacy activities (see 

WIOA sec. 3(3)) that lead to a secondary 

school diploma to be a training service. 

An entity that offers a program that 

leads to a secondary school diploma or 

its equivalent can be eligible as a State 

eligible training provider (ETP), see 

§ 680.420. The Department notes, 

however, that if title I adult and 

dislocated worker funds are used for 

these activities, they must be done 

concurrently or in coordination with 

any training activities in WIOA sec. 

134(c)(3)(D)(i)–(vii). The Department 

has added regulatory text to clarify this 

point at § 680.350. 

The Department agrees with the 

suggestion that ‘‘registered participant’’ 

be changed to ‘‘participant’’ and has 

made this change in the regulatory text. 

The Department has added ‘‘as 

determined appropriate by the Local 

WDB’’ to proposed § 680.150(c) to 

clarify how the determination is made 

to provide follow-up services. This 

addition is consistent with the statutory 

text at section 134(c)(2)(xiii), which 

states that follow-up services are 

provided ‘‘as appropriate.’’ 

The Department declines to make any 

change in regulatory text to allow the 

provision of supportive services for 

adult and dislocated workers for up to 

a year after exit; section 134(d)(2)(A) of 

WIOA requires that adults and 

dislocated workers must be participants 

to receive supportive services. The 

Department also declines to modify the 

regulatory text about the provision of 

career services. Career services are 

defined in 20 CFR 678.430, which is the 

one-stop section of the joint regulation, 

and they may be provided by any 

partner program. The Department has 

decided that the use of prior interviews, 

evaluations, and assessments of 

participants for the purpose of eligibility 

is to be determined by State and local 

policies. 

Section 680.160 How are career 

services delivered? 

Comments: A few commenters 

expressed opposition to a requirement 

that Local WDBs obtain a waiver before 

providing career services. One of these 

commenters stated that the NPRM 

requirement that Local WDBs receive a 

waiver before being allowed to deliver 

career services would be a major change 

and a significant burden because getting 

a waiver is not an easy process. This 

commenter recommended that the 

Department provide States with an 

easier, quicker process for requesting 

waivers. 

A commenter recommended that, at a 

minimum, a waiver request should 

address: (1) Why the waiver is 

necessary, (2) how granting the waiver 

would provide service to the affected 

area superior to that which would have 

been provided as the result of a 

competitive process; (3) why the 

prospective designee is the best choice 

as the local one-stop operator or 

provider of career services; and (4) what 

process was used in making the 

determination (including the specific 

data that supports it). 

Department Response: For a Local 

WDB to provide career services, it must 

meet the requirements in WIOA sec. 

107(g)(2), which allows for Local WDBs 

to be providers of career services of title 

I career services for adult and dislocated 

workers with the agreement of the CEO 

in the local area and the Governor. 

Although there is a waiver requirement 

for Local WDBs to provide training 

services under WIOA sec. 107(g)(1)(B) 

and § 679.410(c), which documents how 

Local WDBs may apply for a waiver 

with the State, there are no waiver 

requirements for Local WDBs to provide 

career services. No change is made in 

the regulatory text in response to these 

comments. 

Section 680.170 What is the individual 

employment plan? 

The Department has moved the 

proposed § 680.180 to § 680.170, so that 

the work experience regulation that was 

proposed as § 680.170 can be 

renumbered as § 680.180, closer to the 

transitional jobs provision at § 680.190. 

In § 680.170, the regulation also replaces 

the words ‘‘case manager’’ with ‘‘career 

planner’’ to be more consistent with the 

nomenclature used in WIOA. 

Comments: A few commenters 

requested clarification on the role of 

IEPs for all services categories of 

individuals and programs and urged the 

Department to ensure consistency at the 

program enrollment level, including 

when an IEP is required to be started/ 

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completed and some flexibility in 

serving the general public job seeker. 

Another commenter asked whether: (1) 

The development of an IEP requires 

participation under WIOA title I, (2) this 

service can be delivered by ES staff, or 

(3) this determination can be made at 

the local level. 

Department Response: The 

Department strongly encourages the use 

of IEPs as a tool in the career planning 

process. However, there is no sequence 

of service requirement in WIOA and 

determining when an IEP is appropriate 

for individuals is a local decision. The 

Department encourages Local WDBs to 

develop policies and procedures for the 

appropriate use of IEPs. 

An IEP is an individualized career 

service and can be provided under 

either WIOA title I or the ES (as 

amended by WIOA title III and as 

described in § 652.206), which is 

decided locally and is a part of the 

Memorandum of Understanding (MOU) 

governing the role of the ES in the onestop delivery system. 

Section 680.180 What is an internship 

or work experience for adults and 

dislocated workers? 

The Department has moved this 

proposed § 680.170 to § 680.180, so that 

this work experience regulation is 

renumbered to be closer to the 

transitional jobs provision at § 680.190. 

Comments: A commenter stated that it 

is important that WIOA participants 

who are placed in work experience or 

internships are fully protected by the 

nation’s wage and hour laws and 

regulations. This commenter 

recommended that the Department 

revise proposed § 680.170 by deleting 

the language allowing for paid and 

unpaid work experiences and adding a 

cross reference to the U.S. Department 

of Labor Wage and Hour Division 

(WHD) regulations and guidance 

concerning unpaid internships. 

Similarly, a commenter requested 

clarification on when work experience 

can be unpaid, including assessment of 

the implications of unpaid work as a 

potential violation of the Fair Labor 

Standards Act. 

Department Response: The 

Department notes the comments and has 

added language to the regulatory text 

stating that internships and work 

experiences under WIOA may be paid 

or unpaid, as consistent with other laws, 

including the Fair Labor Standards Act. 

The Department will continue to use 

guidance and technical assistance to 

assist grantees in determining how 

WIOA intersects with other laws. 

Comments: A commenter encouraged 

the Department to maintain a broad 

definition of work experience that is 

applicable to all core programs, 

reasoning that work experience is an 

invaluable tool to engage businesses and 

to support job seekers in overcoming 

barriers by gaining experience that leads 

to unsubsidized employment. 

Department Response: The 

Department agrees with the 

commenter’s suggestion and makes no 

change in the regulatory text. 

Comments: A commenter asked 

whether there were limitations on the 

percentage of funds to be utilized for 

paid work experience. 

Department Response: Work 

experiences may be paid or unpaid, 

consistent with the Fair Labor Standards 

Act and other applicable laws. 

Transitional jobs is a type of paid work 

experience described in §§ 680.190 and 

680.195. A Local WDB may use up to 10 

percent of funds allocated to the local 

area under section 133(b) of WIOA to 

provide transitional jobs. (Sec. 134(d)(5) 

of WIOA.) Transitional jobs also are 

subject to certain eligibility criteria 

along with comprehensive career and 

supportive services requirements. In 

addition to transitional jobs, other work 

experiences may be paid; to be eligible 

for these work experiences an 

individual must meet adult and 

dislocated worker program eligibility 

and there is no requirement for 

comprehensive career and supportive 

services. These other types of paid work 

experiences are not subject to a statutory 

funding cap. 

Comments: Another commenter 

encouraged the Department to allow 

Local WDBs to determine the 

appropriate timeframe for internships 

and/or work experience based upon 

multiple factors, including industry 

standard and/or practice and the sectorbased accepted length of time needed to 

acquire one or more relevant skills and/ 

or industry-recognized credentials. 

Department Response: The 

Department has set no minimum or 

maximum duration requirements for 

work experiences. These factors may be 

used by Governors and Local WDBs in 

making such determinations. 

Section 680.190 What is a transitional 

job? 

Comments: Many commenters asked 

for clarification of ‘‘transitional jobs’’ 

versus ‘‘work experience;’’ including 

exceptions to the 10 percent cap on 

transitional jobs, the similarities 

between transitional jobs and work 

experiences, and distinctions from OJT. 

Another commenter expressed 

concern that the distinctions between 

transitional jobs and OJT contracts in 

the NPRM are not clear enough and 

recommended that the Department 

expand on the differences in the Final 

Rule several ways: (1) Unlike OJT, the 

program provider should act as 

employer of record and assume all 

responsibilities of the employeremployee relationship; (2) transitional 

jobs require a 100 percent wage subsidy, 

while OJT subsidize up to 75 percent of 

wages; (3) funds for transitional jobs 

support all components of the service 

strategy; (4) transitional jobs should be 

targeted at those job seekers most in 

need of intervention; and (5) transitional 

jobs may be structured as offsite 

placements with private-sector, publicsector, or nonprofit employers or as inhouse social enterprise or work crew 

placements. 

Department Response: The 

Department agrees with the 

recommendation of some commenters 

and has added language to § 680.180, 

which defines what an internship or 

work experience is for adults and 

dislocated workers and clarifies that 

transitional jobs are considered to be a 

type of work experience. The 

Department also has moved proposed 

§§ 680.830 and 680.840 to §§ 680.190 

and 680.195 respectively. 

The Department agrees with the 

comments made about the OJT 

contracts, i.e., that in transitional jobs 

programs the program provider may act 

as the employer of record; however, 

there may be a joint employment 

relationship between the worker, the 

firm in which the worker is placed, and 

the program provider. The Department 

has added regulatory text defining 

transitional jobs as providing an 

individual with work experience that 

takes place within the context of an 

employee-employer relationship, in 

which the program provider may act as 

the employer, and with an opportunity 

to develop important workplace skills. 

The Department will provide further 

guidance and technical assistance on 

transitional jobs programs, including 

best practices. 

Comments: Some commenters asked 

the Department to define ‘‘inconsistent 

work history.’’ One of these commenters 

also requested a substantive quantifiable 

definition of the term ‘‘chronic 

unemployment.’’ One commenter 

requested that the Department define 

‘‘transitional jobs’’ and asked for 

clarification of the required funds for 

career services and supportive services 

that must be provided with transitional 

jobs. A couple of commenters 

recommended that the Department 

strengthen the definition of ‘‘transitional 

jobs’’ with further guidance and 

technical support to States and 

localities. These commenters also 

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recommended that the Final Rule 

reiterate that the term means ‘‘wagepaid’’ subsidized employment 

consistent with other definitions in 

Federal law and agency guidance. 

Similarly, another commenter 

recommended that the Department 

define ‘‘transitional jobs’’ as ‘‘timelimited wage-paid experiences that are 

subsidized for individuals with barriers 

to employment who are chronically 

unemployed or have an inconsistent 

work history.’’ 

Department Response: The 

Department has decided that the 

definitions of ‘‘inconsistent work 

history’’ and ‘‘chronic unemployment’’ 

should be left to the Local WDBs and 

has added language to the regulatory 

text in § 680.190 to reflect this. The 

Department encourages Local WDBs to 

utilize information such as an 

individual’s labor market history, 

unemployment status, durations of 

unemployment, long-term 

unemployment, and other factors that 

the Local WDB may determine 

appropriate for defining these terms. 

The Department has added language to 

better define transitional jobs, including 

adding the terms ‘‘time-limited’’ and 

‘‘wage-paid’’ in § 680.190. WIOA 

requires transitional jobs to include both 

comprehensive and supportive services. 

Local WDBs determine which 

comprehensive and supportive services 

are appropriate for each individual. 

Comments: One commenter 

recommended that the Department and 

the Internal Revenue Service (IRS) 

identify an acceptable means of paying 

a training stipend that does not trigger 

the Patient Protection and Affordable 

Care Act (PPACA) regulations. Another 

commenter recommended specific 

language to amend proposed § 680.830 

(as explained above, renumbered in the 

Final Rule to § 680.190) to articulate 

that people who participate in 

transitional jobs are not counted toward 

labor participation rates, that is, not 

counted as ‘‘employed persons’’ by the 

BLS. 

Further, this commenter and others 

asserted that workers in transitional jobs 

should be classified as employees rather 

than contractors or trainees and should 

be subject to protections such as wage 

and hour laws, minimum wage laws, 

unemployment insurance, and workers 

compensation. 

Department Response: The ACA 

employer responsibility provisions are 

governed by the IRS and any training 

and employment agreements the 

grantees make may be subject to those 

provisions. The Department encourages 

grantees to utilize IRS resources and 

guidance when determining those 

responsibilities. The Department will 

issue subsequent guidance and 

technical assistance to help identify 

appropriate IRS resources and guidance. 

Transitional jobs and other work-based 

training often establish an employeremployee relationship that must follow 

applicable laws and regulations that 

govern such relationships, including: 

Wage and hour laws, minimum wage 

laws, unemployment insurance, and 

workers’ compensation. 

The suggestion that transitional jobs 

not count in the labor force 

participation rate that is captured by the 

Current Population Survey that the BLS 

administers is not germane to WIOA or 

these regulations. 

Comments: A couple of commenters 

recommended that transitional jobs 

programs be targeted at populations 

with multiple employment barriers and 

people with sporadic, problematic and 

inconsistent work histories within the 2 

years prior to engaging in the program. 

These commenters recommended 

targeting people experiencing 

homelessness; opportunity youth; 

people reentering communities from 

prison and those with criminal records; 

long-term recipients of TANF, SNAP 

and other public benefits; low-income 

noncustodial parents; and other 

chronically unemployed people. 

Some commenters recommended that 

allowable use of funds should include: 

Wages paid to transitional jobs program 

participants during their subsidized job 

placement; funding for employmentrelated case management and support 

such as transportation vouchers and 

clothing allowances; funding for job 

retention services for no fewer than 6 

months after placement in a subsidized 

job; supporting integration of literacy, 

adult basic education, training, and 

career advancement resources; and 

supporting program capacity-building 

needs, such as adding additional staff 

and/or infrastructure improvements as 

appropriate. 

Department Response: The 

Department considers these 

recommended criteria to be appropriate 

factors that a Local WDB may use when 

determining who is eligible for a 

transitional job and which groups to 

target. Thus, no change is made in the 

regulatory text. The Department will 

provide further guidance and technical 

assistance as appropriate. 

Allowable uses of transitional jobs 

funds include wages to the participant 

and supportive services such as 

transportation vouchers. The 

Department encourages local staff to 

align services and provide the 

appropriate mix of services to meet 

individuals’ needs. Staff and 

infrastructure improvements are not 

allowable uses of transitional jobs 

funds. 

Comments: Commenters asserted that 

transitional jobs are typically 3 to 9 

months and seldom longer than 1 year. 

They recommended that transitional job 

arrangements include the following in 

order to avoid displacement of 

incumbent workers: Strong prohibitions 

against substitution and displacement; 

protections for recently laid-off 

employees, workers on leave, and 

striking workers; and preservation of 

recall rights under collective bargaining 

agreements for union employees of 

transitional job employer partners. 

Department Response: The 

regulations at § 683.270 contain 

safeguards against displacement of 

employees that are applicable to WIOA 

title I employment and training 

activities, including transitional jobs. 

The Department also added § 680.840, 

which clarifies that funds for workbased training and work experiences 

may not be used to fill openings that 

resulted from a labor dispute. 

Comments: Commenters 

recommended several ways to maximize 

the likelihood that workers are retained 

in unsubsidized employment after a 

transitional job program: (1) Monitoring 

participants and providing retention 

services for at least 6 months following 

unsubsidized job placement; (2) regular, 

frequent follow-up contacts by retention 

specialists; (3) ongoing retentionfocused activities such as workshops, 

peer learning groups and support 

groups; (4) retention incentives in the 

form of monetary bonuses or 

nonmonetary incentives such as child 

care services; and (5) reemployment 

services for workers who are terminated 

from unsubsidized employment. The 

commenters also recommended several 

specific structure elements and polices 

that they asserted are essential: (1) A 

flexible length of time in subsidized 

employment based on the skill 

development needs of the individual; 

(2) subsidized employment offered 

should be no fewer than 20 hours per 

week and workers should be allowed to 

remain in the subsidized employment 

until unsubsidized employment slots 

are available for transition; (3) 

employers should support participant 

development and skill building; and (4) 

personal contact and consistent followup should be provided among program 

staff, participants, and employment 

supervisors, as well as opportunities to 

work with a case manager for the 

participant to address serious issues if 

they arise. 

Department Response: The 

Department declines to propose a 

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minimum or maximum duration for 

transitional jobs that could create 

unnecessary restrictions that may 

prevent an individual from obtaining 

unsubsidized employment. The 

Department also declines to create a 

one-size-fits-all approach to transitional 

jobs, and considers these decisions are 

best made by the Local WDB and the 

individual’s career planner. No changes 

have been made to the regulatory text in 

response to these comments. The 

Department will address these issues 

further through guidance and technical 

assistance. 

Comments: A commenter 

recommended that proposed § 680.830 

(as explained above, renumbered in the 

Final Rule to § 680.190) be amended to 

refer to ‘‘time-limited work experience’’ 

to be consistent with the language and 

intent of WIOA sec. 134(d)(5). 

Department Response: The 

Department agrees with this comment 

and has amended the language in 

§ 680.190 to include the phrase ‘‘timelimited work experience.’’ 

Comments: Another commenter asked 

what is the employer reimbursement 

rate and contract length? 

Department Response: The employer 

reimbursement rate is to be determined 

by the Local WDB and can be up to 100 

percent. The Department encourages 

Local WDBs to work with employers 

that are willing to provide a certain 

percentage of the cost of the transitional 

job. 

Section 680.195 What funds may be 

used for transitional jobs? 

Comments: Some commenters 

requested clarification on the 10 percent 

limit on use of funds. In particular, 

some commenters asked if the 10 

percent limit would apply to work 

experience as an activity. A State WDB 

asked whether all adult and dislocated 

workers transitional job work 

experience is subject to the 10 percent 

cap. 

Department Response: The 

Department considers transitional jobs 

to be a targeted service that includes 

comprehensive career and supportive 

services. Non-transitional job work 

experiences have no requirement that 

they must be paid or unpaid, and they 

do not have the same requirements for 

comprehensive career and supportive 

services. They also are not subject to the 

10 percent funding cap that transitional 

jobs are. The Department has added text 

to the regulatory text to further clarify 

the 10 percent cap and that transitional 

jobs, defining them as a certain type of 

work experience which is targeted to a 

specific population that is: ‘‘chronically 

unemployed’’ or has an ‘‘inconsistent 

work history.’’ 

Comments: A commenter asked for 

clarification on what ‘‘comprehensive 

career services’’ means when required to 

be part of transitional jobs, and asked if 

it includes basic career services, 

individualized career services, or both, 

and if there is a sequence of services 

before service can be provided. 

Department Response: 

Comprehensive career services may 

include both basic and individualized 

career services and are based on the 

needs of the participant. Comprehensive 

career services and supportive services, 

which are required to be provided as 

part of any transitional jobs strategy, are 

not subject to the 10 percent cap 

described at § 680.195. However, the 

Department is providing flexibility to 

allow for these services to be provided 

with the funds set-aside for transitional 

jobs. Local areas determine which 

comprehensive and supportive services 

are appropriate for each individual. 

There is no sequence of service 

required. 

3. Subpart B—Training Services 

Training services are discussed at 

§§ 680.200 through 680.230. WIOA is 

designed to increase participant access 

to training services. Training services 

are provided to equip individuals to 

enter the workforce and retain 

employment. Training services may 

include, for example, occupational 

skills training, OJT, registered 

apprenticeship (which incorporates 

both OJT and classroom training), 

incumbent worker training, preapprenticeship training, workplace 

training with related instruction, 

training programs operated by the 

private sector, skill upgrading and 

retraining, entrepreneurial training, and 

transitional jobs. Training services are 

available for individuals who, after 

interview, evaluation or assessment, and 

case management are determined to be 

unlikely or unable to obtain or retain 

employment that leads to selfsufficiency or higher wages than 

previous employment through career 

services alone. The participant must be 

determined to be in need of training 

services and possess the skills and 

qualifications to participate successfully 

in the selected program. It also must be 

determined that they are unlikely or 

unable to retain employment that leads 

to self-sufficiency or higher wages. 

Some participants may need additional 

services to assist their vocational 

training, such as job readiness training, 

literacy activities including English 

language training, and customized 

training. 

Comments: Comments generally were 

supportive of the Department’s flexible 

approach to the delivery of training 

services for the WIOA title I adult and 

dislocated worker programs. 

Department Response: The 

Department has updated and clarified 

language regarding how registered 

apprenticeship and other 

apprenticeships may be utilized as a 

training solution for adult and 

dislocated worker customers. 

Section 680.200 What are training 

services for adults and dislocated 

workers? 

Comments: Two commenters strongly 

recommended that local flexibility be 

preserved as it relates to determining 

the appropriate availability, structure, 

and mix of training services that are 

offered locally to individuals and 

employers. Another commenter 

encouraged the Department to avoid 

restrictive standards and allow 

customization of varying training 

practices because there is slower 

adoption among small businesses of 

newer best practices. This commenter 

stated that this flexibility is particularly 

important when considering the 

effectiveness of competency-based 

training versus number of hours trained. 

Department Response: The 

Department agrees that it is important to 

maintain local flexibility to make 

decisions about the appropriate mix of 

career and training services and has 

provided local flexibility in making 

those determinations. 

Comments: A few commenters 

provided input on pre-apprenticeships 

and non-registered apprenticeships. One 

commenter encouraged the Department 

to add more flexibility into the 

regulations as they relate to preapprenticeships and non-registered 

apprenticeships so that manufacturers 

can develop and use programs that best 

meet their unique needs. Another 

commenter cautioned the Department 

not to discriminate against nonregistered apprenticeships because 

many smaller employers rely on these 

types of programs. One commenter 

recommended that employer-sponsored 

craft training programs that are not 

registered, but that lead to an industryrecognized credential, should have an 

automatic initial ETP determination and 

then, be required to satisfy continued 

eligibility requirements after 1 year. 

Department Response: WIOA sec. 

122(a)(2)(B) provides automatic 

qualification for registered 

apprenticeship programs on eligible 

training provider lists (ETPLs) and 

WIOA in general provides an overall 

emphasis on registered apprenticeship 

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programs throughout the one-stop 

delivery system. The Department has 

used this emphasis to highlight the 

unique flexibilities the one-stop 

delivery system has in making use of 

registered apprenticeship programs to 

provide training services, including 

Individual Training Accounts (ITAs) 

and OJT. This in no way restricts preapprenticeship programs and nonregistered apprenticeship programs from 

being an ETP according to the criteria in 

WIOA sec. 122(a). These training 

providers, in order to receive ITA 

payments, must go through the same 

eligibility criteria as other training 

providers on the ETPL. The Department 

considers programs that lead to an 

industry-recognized credential as 

valuable providers of training, and these 

programs are welcome to apply to 

become ETPs. The Department declines 

to make changes to the regulatory text 

in response to these comments. 

Comments: One commenter 

encouraged the Department to allow 

adult education providers to provide 

workforce preparation rather than 

training in sector work. The commenter 

stated that if community-based adult 

education providers were required to 

offer sector training, most of these 

providers would have to be completely 

transformed, would require significant 

capacity boosts, would be less likely to 

reach the hard-to-serve, and would have 

drastically reduced enrollment. 

One commenter requested 

clarification on the role of adult basic 

education. 

Department Response: Under WIOA 

sec 134(c)(3)(D)(x), title I adult and 

dislocated worker funds may be used to 

support adult education and literacy 

activities, provided concurrently or in 

combination with other training 

services. The Department has added 

regulatory text clarifying this use of 

WIOA title I adult and dislocated 

worker funds in § 680.350. This 

regulation involving appropriate uses of 

adult education and literacy activities 

only applies to WIOA title I adult and 

dislocated worker funds. 

Comments: A commenter expressed 

support for having both OJT and 

classroom training available to adult 

and dislocated workers. Two 

commenters supported the inclusion of 

integrated English literacy/civics 

education programs in WIOA. These 

commenters recommended that the 

Departments of Labor and Education 

provide diverse examples of how such 

programs may be designed, including 

ways in which they may represent 

components of sector partnerships and/ 

or career pathways initiatives, and how 

they may facilitate the economic, 

linguistic, and civic integration of 

participants. 

Department Response: The 

Department of Labor will work with the 

Department of Education to provide 

additional guidance and technical 

assistance on sector partnership and 

career pathways initiatives under 

WIOA, including how to integrate 

programs such as those the commenters 

highlighted. 

Comments: One commenter described 

the benefits of entrepreneurship training 

and encouraged the Department to 

revise performance indicators that 

would create a barrier to the inclusion 

of entrepreneurship training in the 

WIOA public workforce system. 

A few commenters requested 

clarification on what constitutes 

entrepreneurial training as cited at sec. 

134(c)(3)(D)(vii) of WIOA. 

Department Response: 

Entrepreneurial training is an allowable 

training activity, and the Department 

will issue guidance and technical 

assistance to support its use and to 

address performance accountability. 

Additionally, the Department has 

addressed instances where quarterly 

wage records are not traditionally 

available for performance accountability 

purposes, as may be the case where 

participants have received 

entrepreneurial training, in 20 CFR 

677.175 (see Joint WIOA Final Rule). 

Comments: Two commenters 

recommended that the regulations 

explicitly recognize the need for direct 

support professionals to address the 

growing ‘‘direct support worker crisis’’. 

Department Response: WIOA sec. 

108(b), which lists the required contents 

of local plans, states that the plans must 

include an analysis of existing and 

emerging in-demand industry sectors 

and occupations including the 

employment needs of employers in 

those sectors and occupations. Training 

programs for WIOA title I adult and 

dislocated worker programs are to be 

linked to in-demand industries and 

occupations in the local plan. The Final 

Rule does not explicitly recognize any 

specific industry or occupation needed 

to meet current workforce needs 

because these needs may change and 

often are based on State and local labor 

markets. 

Comments: One commenter suggested 

that the regulations should better 

articulate the important role for digital 

literacy instructions, reasoning that 

these skills are critical to job 

advancement as well as educational 

credentials, including high school 

equivalency diplomas. Additionally, 

this commenter urged the Department to 

adopt a flexible framework as it relates 

to the integration of occupational skills 

training, which the commenter stated 

should include a student-centered 

approach in which co-enrollment in 

workforce education programs be 

optional rather than required. 

Department Response: The 

Department considers digital literacy to 

be a pre-vocational service or a 

workforce preparation activity, both of 

which are considered to be 

individualized career services and not 

training services. The Department agrees 

that digital literacy is an important skill 

to succeed in the 21st century 

workforce, but considers it to be a 

service that may be made available 

based on individual need as determined 

by the local area. While WIOA 

encourages program alignment, and coenrollment is one way to align service 

delivery, the Department does not 

require co-enrollment across programs. 

Comments: A commenter suggested 

that the Department provide the list of 

training services found in WIOA in the 

regulations rather than simply 

referencing the statutory citation. 

Department Response: The 

Department agrees with the 

recommendation and has adjusted the 

regulatory text of § 680.200 to include 

the list of training services provided in 

WIOA sec.134(c)(3)(D). 

Comments: Commenters requested 

clarification on whether alternative 

secondary school (formerly GED) 

preparation is considered a career 

service or a training service. 

Department Response: The 

Department considers a program that 

leads to a secondary school diploma to 

be a training service. A program that 

leads to a secondary school diploma or 

its equivalent can be eligible as a State 

ETP, see § 680.420. 

Section 680.210 Who may receive 

training services? 

Comments: A commenter asked who 

would be responsible for determining 

what constitutes self-sufficiency when 

determining who may receive training 

services under proposed § 680.210(a)(1). 

Department Response: Under WIOA 

sec. 134(a)(3)(A)(xii), States may use 

statewide funds reserved by the 

Governor for adopting, calculating, or 

commissioning for approval an 

economic self-sufficiency standard for 

the State that specifies the income needs 

of families, by family size, the number 

and ages of children in the family, and 

sub-State geographical considerations. 

Under WIOA sec. 134(d)(1)(A)(x), local 

areas may use employment and training 

funds to adjust the State standard for 

local considerations, or can adopt, 

calculate, or commission for approval a 

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self-sufficiency standard for the local 

area that specifies the same factors 

required of the State standard. Under 

WIOA sec. 134(c)(3)(A)(i) individuals 

who receive training must be unlikely or 

unable to obtain or retain employment 

that leads to economic self-sufficiency 

or wages comparable to or higher than 

wages from previous employment 

through career services. Additionally, 

they must be in need of training services 

to obtain or retain employment that 

leads to economic self-sufficiency or 

wages comparable to or higher than 

wages from previous employment. The 

one-stop center is responsible for 

determining if an individual meets the 

self-sufficiency standard set by this 

process. 

Comments: A commenter requested 

clarification about the division of 

responsibilities between one-stop 

centers and local service providers, 

including clarification on who is 

responsible for determining who can 

receive training services. 

Department Response: The 

Department considers the ultimate 

responsibility for determining who can 

receive training services to rest with the 

Local WDB. However, through the 

service procurement process and other 

arrangements established through the 

local MOU, the board may delegate 

those responsibilities to the one-stop 

center or local service providers. 

Comments: A commenter disagreed 

with the language in proposed 

§ 680.210(a) that indicates that a 

determination needs to be made that the 

training will result in receipt of wages 

higher than wages from previous 

employment, reasoning that economic 

conditions can make this difficult. 

Department Response: The 

Department notes that § 680.210(a) 

mirrors the requirements for title I adult 

and dislocated worker services found in 

WIOA sec. 134(c)(3)(A), and that 

training that leads to a ‘‘comparable 

wage’’ also is allowed for individuals to 

receive training services. No changes 

have been made to the regulatory text in 

response to the comments. 

Comments: A commenter 

recommended that the Department 

make efforts to inform employers of the 

availability of training services to assist 

workers on short-term or long-term 

disability programs. 

Department Response: The 

Department considers this to be an 

example of an appropriate business or 

employer service that may be provided 

through the one-stop delivery system. 

While the Department will not add 

language to the regulatory text 

mandating specific employer services, 

the Department does recognize the 

importance of ensuring quality services 

for individuals with disabilities and will 

utilize guidance and technical 

assistance to ensure best practices in 

serving businesses and individuals with 

disabilities. 

Comments: A commenter suggested 

that the regulations should direct onestop centers to take into account older 

workers’ different training needs and 

lesser access to financial aid, and make 

sure that older workers are not 

discriminated against in access to 

WIOA-funded ITAs. 

Department Response: Older workers 

are identified as a target population for 

WIOA services, based on their inclusion 

in the definition of individuals with a 

barrier to employment in WIOA sec. 

3(24). The Department will issue 

guidance and technical assistance on 

best practices in providing career and 

training services to older workers. 

Section 680.220 Are there particular 

career services an individual must 

receive before receiving training 

services under the Workforce 

Innovation and Opportunity Act? 

Comments: One commenter stated 

that there should be no required 

sequence of services prior to providing 

training services to allow more 

flexibility in meeting the needs of 

customers. Another commenter asked 

whether there is a frequency rate 

permitted to bypass career services and 

whether bypassing career services 

before training was considered to be an 

exception. 

One commenter requested further 

guidance and direction on how Local 

WDBs should document the 

circumstances that justify 

determinations that training services 

should be provided. 

Department Response: There is no 

sequence of service requirement and 

therefore, no requirement that career 

services must be provided before 

training services. Section 680.220(b) 

states, if training services are provided 

without career services, the Local WDB 

must document the circumstances that 

justified its determination to provide 

training without career services. 

Eligibility for training must be 

determined by an interview, evaluation, 

or assessment, and career planning or 

any other method through which the 

one-stop partner or partners can obtain 

enough information to make an 

eligibility determination for training 

services. Paragraph (b) of § 680.220 

requires a case file that includes a 

determination of need for training 

services, based on the criteria discussed 

in § 680.220(a). There is no frequency 

requirement; the need for training 

services should be determined prior to 

their provision. There have been no 

changes to the regulatory text in 

response to these comments. 

Comments: Several commenters 

requested clarification as to how far 

back an assessment could have been 

conducted to satisfy the prerequisite for 

training services. 

Department Response: The 

Department does not mandate a certain 

length of time that previous assessments 

may go back; however, the Department 

expects that the previous assessments 

must be recent. The Department 

recommends that Governors and Local 

WDBs develop policies for the use of 

recent assessments that are appropriate 

for the individual and the one-stop 

center. The recent assessment must have 

sufficient information to make an 

eligibility determination for training 

services. 

Comments: A commenter 

recommended replacing the references 

to ‘‘eligibility’’ and ‘‘eligible’’ in 

proposed § 680.220(a) with ‘‘determined 

appropriate,’’ ‘‘suitable,’’ or ‘‘ability to 

benefit’’ to make it clear that this is not 

an additional eligibility determination 

beyond the eligibility determination 

conducted in § 680.110. 

Department Response: WIOA sec. 

134(c)(3)(A) refers to ‘‘eligibility’’ for 

training services and this language is 

incorporated in the regulatory text. The 

Department recognizes that there are 

two types of eligibility—eligibility for 

program services and eligibility for 

training services. An individual must 

meet program service eligibility to be 

considered for training service 

eligibility. 

Comments: A commenter stated that 

the proposed steps required before a 

participant can receive training are 

appropriate for a customer who is in 

career transition, but questioned the 

appropriateness of the path where an 

employed worker is in need of skills 

upgrade to achieve economic selfsufficiency. 

Another commenter encouraged the 

addition of a provision that training for 

jobs that fall below economic selfsufficiency standards also must include 

ongoing training post-hire for career 

ladders within the industry and take 

into consideration other factors 

including benefits, retirement, vacation, 

and education that can mitigate and 

improve lower wage jobs. 

Department Response: The steps 

before a participant can be determined 

eligible for training services in the 

regulatory text are the minimum 

required by WIOA sec 134(c)(3)(A). The 

Department allows flexibility for local 

areas to develop methods to provide 

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services for individuals in need of a 

skills upgrade to achieve economic selfsufficiency. As part of the training 

eligibility, training services provided 

must be determined to lead to economic 

self-sufficiency or wages comparable to 

or higher than previous employment. 

Section 680.230 What are the 

requirements for coordination of 

Workforce Innovation and Opportunity 

Act training funds and other grant 

assistance? 

Comments: A commenter suggested 

that the Department revise the 

regulations to require, rather than 

recommend, that one-stop centers and 

partners take into account the full cost 

of training, including the cost of 

supportive services, when coordinating 

grant assistance. 

Department Response: The 

Department considers the full cost of 

training services to be an important 

factor when coordinating assistance 

from other grants or resources. The 

Department strongly encourages this 

coordination and consideration be taken 

into account. WIOA allows for one-stop 

centers or partners to make this a 

consideration and does not require it. 

Therefore, the Department has changed 

‘‘should’’ to ‘‘may’’ in § 680.230(a). 

Comments: Some commenters 

recommended revisions to the proposed 

regulations as they relate to 

reimbursement of WIOA funds for 

participants who eventually receive Pell 

Grants. Specifically, because of the 

difficulties associated with 

implementing the proposed framework, 

these commenters recommended that 

WIOA funds not be reimbursed in 

situations where a Pell Grant is 

subsequently awarded after a one-stop 

center has paid for training. A 

commenter asked whether required 

educational fees are considered part of 

the training expenses or educationrelated expenses. This commenter 

sought clarification on this issue, but 

recommended that they be considered 

training expenses and not educationrelated expenses. 

Department Response: The 

Department maintained the 

requirements of Pell Grant 

reimbursement, as described in 

§ 680.230(c). WIOA sec 134(c)(3)(B)(ii) 

requires reimbursements to local areas 

from Federal Pell Grants to an 

individual who received WIOA title I 

training services while his or her Pell 

Grant was pending. The Department 

agrees with the commenters’ suggestion 

that educational fees be considered part 

of the training expenses that should be 

reimbursed to the local area and has 

added language in § 680.230(c) to 

require this reimbursement. 

Comments: A commenter stated that 

WIOA funds should be directed toward 

Temporary Assistance for Needy 

Families (TANF) recipients to enhance 

the work and training needs of the 

public assistance population without a 

requirement that TANF funds first be 

considered. Furthermore, the 

commenter stated that when resources 

in a local area are limited, local areas 

are best suited to determine which 

funds are dedicated to provide training 

and WIOA should be a primary funding 

source. 

Department Response: The 

Department declines to make a change 

in the regulatory text at § 680.230(b). 

WIOA funds supplement other sources 

of training grants and do not supplant 

them. 

Comments: To ensure consistency 

with previous Federal guidance, a 

commenter suggested that the 

Department add language to § 680.230 to 

clarify that education and training 

benefits earned by veterans are not 

required to be coordinated with training 

funds available under WIOA title I. 

Department Response: While the 

Department declines to make a change 

in the regulatory text, it notes that the 

Department of Veterans Affairs benefits 

for education and training services are 

not included in the category of ‘‘other 

sources of training grants’’ listed in 

§ 680.230(b). Therefore, veterans and 

spouses are not required to first use any 

available benefit entitlements associated 

with their military service before being 

considered eligible for WIOA funded 

training, and one-stop centers are not 

required to consider the availability of 

those funds. 

Comments: Some commenters 

recommended that the Department 

clarify that WIOA title I funds can 

support title II adult education 

programs, as the WIOA sec. 134(c)(3) 

definition of training includes ‘‘adult 

education and literacy activities, 

including activities of English language 

acquisition and integrated education 

and training programs’’ at sec. 

134(c)(3)(x). Commenters asserted that 

this clarification was needed as 

expeditiously as possible so that the 

planning processes in the States can 

proceed efficiently. 

Department Response: Under WIOA 

sec. 134(c)(3)(D)(x), title I adult and 

dislocated worker funds may be used to 

support adult education and literacy 

activities, provided concurrently or in 

combination with other training 

services. The Department has added 

regulatory text clarifying this use of 

WIOA title I adult and dislocated 

worker funds in § 680.350. This 

regulation involving appropriate uses of 

adult education and literacy activities 

only applies to WIOA title I adult and 

dislocated worker funds. 

Comments: Because availability of 

training assistance depends on whether 

participants have access to other sources 

to pay for training, a commenter 

strongly encouraged the Department to 

stress to Local WDBs the importance of 

the optional services outlined in 

§ 680.140 for individuals with 

disabilities. 

Department Response: The 

Department identifies in § 680.140 all of 

the required and permissible WIOA title 

I adult and dislocated worker services 

that Local WDBs may provide. The 

Department considers the permissible 

activities described in § 680.140(b) that 

may help individuals with disabilities 

to navigate among multiple services and 

activities to be important. The 

Department also has listed ‘‘reasonable 

accommodations for individuals with 

disabilities’’ to be an allowable 

supportive service in § 680.900. 

4. Subpart C—Individual Training 

Accounts 

Individual Training Accounts (ITAs) 

are key tools used in the delivery of 

many training services. The Department 

seeks to provide maximum flexibility to 

State and local programs in managing 

ITAs. These regulations do not establish 

the procedures for making payments, 

restrictions on the duration or amounts 

of the ITA, or policies regarding 

exceptions to the limits. The authority 

to make those decisions resides with the 

State or Local WDBs. The authority that 

States or Local WDBs may use to restrict 

the duration of ITAs or restrict funding 

amounts must not be used to establish 

limits that arbitrarily exclude eligible 

training providers. 

Through the one-stop center, 

individuals will be provided with 

quality and performance information on 

providers of training and, with effective 

career services, case management, and 

career planning with the ITA as the 

payment mechanism. ITAs allow 

participants the opportunity to choose 

the training provider that best meets 

their needs. Under WIOA, ITAs can 

more easily support placing participants 

into registered apprenticeship programs. 

Section 680.300 How are training 

services provided? 

Comments: A commenter expressed 

support for the ability to pay an ITA at 

the beginning of the training program 

rather than on an incremental basis, 

because it would allow Local WDBs to 

budget and manage their ITAs much 

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more easily, eliminates the concern 

about putting customers into training 

that straddles 2 program years, and 

simplifies the determination of how 

much carry over funding to include in 

the next program year’s budget. 

Department Response: The 

Department considers it important to 

maintain flexibility in how ITA 

payments are made to support Local 

WDBs to use the most effective payment 

mechanisms. There have been no 

changes to the regulatory text in 

response to these comments. 

Section 680.320 Under what 

circumstances may mechanisms other 

than Individual Training Accounts be 

used to provide training services? 

Comments: A few commenters 

expressed support for the approach 

proposed in § 680.320. One commenter 

expressed support for the opportunity to 

contract for services rather than rely 

solely on ITAs, potentially support 

streamlining and more effective 

administration and planning for training 

providers. Another commenter 

expressed support for the training of 

cohorts, allowing States and local areas 

to contract with providers to assist 

groups of participants through one 

contract for services with defined goals 

and outcomes, rather than the 

administratively burdensome process of 

having each individual participant 

request services from providers through 

an ITA. Another commenter supported 

the Department’s detailed list of 

circumstances under which a 

mechanism other than an ITA may be 

used to provide training services. 

Several commenters provided input 

on funding mechanisms for training for 

individuals with barriers to 

employment. One commenter expressed 

support for allowing local areas to 

contract directly with training providers 

to supply training that will effectively 

service individuals with barriers to 

employment, expanding innovative and 

effective models for helping participants 

obtain industry-recognized credentials. 

Another commenter recommended that 

the Department recognize the need for 

coordination with vocational 

rehabilitation programs when 

addressing services for individuals with 

disabilities to avoid duplication of 

effort. 

Department Response: The 

Department generally received 

supportive comments about the use of 

alternative methods to ITAs. The 

Department encourages coordination 

with Vocational Rehabilitation programs 

when serving individuals with 

disabilities to ensure effective service 

delivery. No changes have been made to 

the regulatory text in response to the 

comments, but the Department is 

adding, ‘‘and the local area has fulfilled 

the consumer choice requirements of 

§ 680.340’’ to § 680.320(a), to ensure that 

the statutory requirement at WIOA sec. 

134(c)(3)(G)(ii)(I) is included. This 

provision requires that a local area have 

a full ITA system in place even if it 

decides to provide training through 

contracts because one or more of the 

situations in § 680.320(a)(1) through (5) 

applies. Section 680.320(c) provides 

that the local plan describe the process 

to be used in all cases to select training 

under a contract to be consistent with 

WIOA sec. 108(b)(16). 

Comments: A few commenters 

recommended that the Department 

clarify which individuals are considered 

to have a barrier to employment as a 

result of being an English language 

learner. Specifically, these commenters 

asserted that the preamble and the 

regulatory text differ in that one requires 

that three elements be met ((1) English 

language learners, (2) individuals who 

have low levels of literacy, (3) 

individuals facing substantial cultural 

barriers) while the other allows any one 

element as triggering categorization of 

having a barrier to employment. One 

commenter asked that the Department 

add a definition of ‘‘ex-offender’’ and 

encouraged the Department to include 

individuals with deferred sentences to 

be included within the definition 

because these individuals encounter 

similar barriers to employment as those 

individuals who actually spend time 

incarcerated. Another commenter 

asserted that the regulation should 

include employer incentives to 

encourage the hiring of ex-offenders. 

Department Response: WIOA sec. 

3(24) defines ‘‘individuals with barriers 

to employment,’’ and WIOA sec. 3(24)(I) 

includes the following groups that 

qualify for this definition: ‘‘Individuals 

who are English language learners, 

individuals who have low levels of 

literacy, and individuals facing 

substantial cultural barriers.’’ The 

Department clarifies that if an 

individual meets any one of the three 

criteria in WIOA sec. 3(24)(I), that 

individual may be considered to have a 

barrier to employment. WIOA defines 

‘‘English language learner’’ in WIOA 

sec. 203(7) and is one of the criteria that 

may be met to be considered an 

individual with a barrier to 

employment. The Department also 

considers the definition of ‘‘literacy’’ 

provided in WIOA sec. 203(13) as the 

standard to be used for determining if 

an individual is considered to have low 

literacy, and therefore a barrier to 

employment. The Department will use 

guidance and technical assistance to 

States and Local WDBs to aid in 

determining when these elements are 

met. The term ‘‘offender’’ is defined in 

WIOA sec. 3(38) and the Department 

considers this to be the basis by which 

an individual is determined to be an 

‘‘ex-offender.’’ The Department declines 

to alter the regulatory text to include 

employer incentives for hiring of 

specific groups. 

Comments: One commenter expressed 

support for the inclusion of ‘‘older 

individuals’’ in the list of barriers to 

employment, reasoning that the aging 

community has more challenges than 

younger workers in regaining 

employment once it has been lost and 

are more likely to be among the long 

term unemployed. Two commenters 

requested that the Department define 

the duration of unemployment that 

must be reached for an individual to be 

considered a long term unemployed 

individual. 

Department Response: The 

Department generally defers to the 

Bureau of Labor Statistics (BLS) 

definition and will provide additional 

guidance to States and local areas on 

long-term unemployed. 

Comments: Another commenter urged 

the Department to provide flexibility 

and guidance to use ITA funds 

concurrently or successively with paid 

work experience or OJT, reasoning that 

this combined use of ITA/OJT or ITA/ 

paid work experience would provide 

additional benefits to the participants. 

Department Response: The 

Department notes that there is no 

prohibition on the combined use of 

ITAs and OJT as well as any other 

contracted training services under 

WIOA sec. 134(c)(3)(G)(iv). These 

decisions must be based on individual 

need and they must be paying for 

separate program elements. There also is 

no prohibition on using career services, 

such as work experience, in 

combination with ITAs. 

Comments: A commenter asked how 

the Department defines ‘‘institution of 

higher education’’ as the term relates to 

funding mechanisms for training 

services in proposed § 680.320. 

Department Response: The term 

‘‘institution of higher education’’ is 

defined in WIOA sec. 3(28); the 

Department has added this citation into 

the regulatory text in § 680.320(a)(4). 

Comments: One commenter 

recommended a minor technical 

correction to proposed § 680.320(a)(4) to 

replace the phrase ‘‘will facilitate’’ with 

‘‘in order to facilitate.’’ 

Department Response: The 

Department agrees with the 

commenter’s suggestion and has made 

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this nonsubstantive correction in the 

regulatory text in § 680.320(a)(4). 

Section 680.330 How can Individual 

Training Accounts, supportive services, 

and needs-related payment be used to 

support placing participating adults and 

dislocated workers into a registered 

apprenticeship program and support 

participants once they are in a registered 

apprenticeship program? 

In this section, a new paragraph (a) 

was created, and proposed paragraph (a) 

is now (a)(1). Similarly, proposed 

paragraph (b) is now (a)(2). Proposed 

paragraph (c) has been renumbered to 

(b), and the following proposed 

paragraphs (d) and (e) are now (c) and 

(d). 

Comments: A few commenters 

expressed support for allowing ITA 

funding to be used to pay for supportive 

services and needs-related payments to 

support the placement of a participant 

into a registered apprenticeship 

program. A commenter asked whether 

supportive services would be provided 

throughout a multi-year apprenticeship 

and whether supportive services would 

be provided to an employed individual 

participating in an apprenticeship. 

Additionally, the commenter asked how 

WIOA would assist an already 

employed worker who moves up the 

career ladder and is put into an 

apprenticeship either through OJT, ITA, 

or support services. Another commenter 

stated that one-stop centers should 

provide career services and supportive 

services during the final year of an 

apprenticeship because this is a crucial 

time that can directly lead to 

employment. 

Some commenters stated that there 

should be no limitations placed on 

program service funding, including 

incumbent worker funding, which these 

commenters described as possibly the 

most appropriate funding to serve 

apprentices. In regard to incumbent 

worker funding, these commenters said 

that some companies may select current 

employees to upskill in a registered 

apprenticeship program given the length 

of the investment and the increased 

likelihood of the individual remaining 

engaged. 

Department Response: The 

Department refers to the regulatory text 

in §§ 680.900 through 680.920, the 

general requirements for supportive 

services. Supportive services may be 

used for both employed and 

unemployed individuals to support 

their participation in career and/or 

training services. Decisions about the 

provision of supportive services, 

including the duration, timing, and 

type, are to be made by the Local WDB. 

The Department refers to the 

regulatory text in §§ 680.700 through 

680.750 and in particular § 680.710, 

which discusses the requirements for 

OJT contracts for employed workers. 

Incumbent worker training may be an 

appropriate service that would help an 

individual move up a career ladder 

within an apprenticeship program. 

Comments: A commenter 

recommended that the Department 

revise proposed § 680.330(b) 

(renumbered in regulatory text as 

§ 680.320(a)(2)) to allow for payments 

from ITAs to non-profit, joint labormanagement training to defray the cost 

of providing apprenticeship or preapprenticeship training for programs 

that do not charge ‘‘tuition.’’ This 

commenter suggested that these 

payments should include not only the 

pro-rata cost of delivering direct training 

to enrollees, but also should cover costs 

incurred to retain third-party providers. 

Two commenters stated that ITAs could 

be used to pay for pre-requisites for 

apprenticeship such as math courses, 

required education courses, and/or 

certifications as part of the work-based 

experience. Another commenter 

encouraged the Department to support 

the use of ITAs for competency-based 

apprenticeship models. 

Department Response: The 

Department agrees with the comment 

that the term ‘‘tuition’’ does not reflect 

the funding arrangements of registered 

apprenticeship programs and has 

changed the text in § 680.330(a)(2) to 

change it to ‘‘Training services provided 

under a registered apprenticeship 

program’’ to address this and be 

consistent with the way the Department 

refers to other types of training. The 

other suggestions from commenters 

about allowable uses for ITA funds are 

acceptable as long as the providers of 

those services are on the ETPL. No other 

changes have been made to the 

regulatory text in response to the 

comments. 

Comments: A commenter 

recommended that the regulations 

should allow for contracted 

apprenticeship programs as well as the 

placement of trainees into these 

programs solely through the ITA system, 

which the commenter described as not 

allowing for the easy organization of 

cohort-based programs. This commenter 

asserted that cohort-based 

apprenticeships and preapprenticeships can work with students 

recruited through the one-stop delivery 

system as well as those recruited from 

outside the system but would require a 

threshold number of trainees to be cost 

effective. The commenter concluded 

that the availability of trainee cohort 

classes in apprenticeship and preapprenticeship programs is a costeffective approach to training. 

Department Response: The 

Department considers that these types 

of training cohorts are allowable 

provided that the individuals meet the 

training eligibility requirements and the 

training providers are on the ETPL. 

Comments: A commenter expressed 

the desire to be able to use ITAs to pay 

for apprenticeship programs that are not 

on the ETPL and that can last for many 

years to ensure that participants receive 

the training needed and that the local 

area is able to capture all applicable 

credentials received for performance 

purposes. Similarly, a commenter asked 

how long WIOA enrollment lasts past 

the 6 months of OJT if an 

apprenticeship lasts multiple years. 

This commenter also asked how a 

credential is documented if a WIOA 

participant exits the system prior to 

completion of the apprenticeship. 

Department Response: To receive 

funds from an ITA, the training provider 

must be on the ETPL. The Department 

encourages interested providers to apply 

to be ETPs. The Department is issuing 

guidance about the credential measures 

in performance. WIOA enrollment is 

governed by the definitions of 

‘‘participant’’ and ‘‘exit’’ in 20 CFR 

677.150 (see Joint WIOA Final Rule). 

Local areas can develop ITA contracts 

within the framework of these 

definitions and the requirements for 

ITAs. Training services should be 

provided based on the needs of the 

individual and ITAs should be 

structured to address those needs. 

Comments: To expand preapprenticeships and apprenticeships, 

some commenters recommended that 

the one-stop centers be given authority 

to initiate the application for registered 

apprenticeships. A commenter 

recommended that one-stop centers 

build and maintain relationships with 

apprenticeship programs that operate 

within their region to provide a point of 

contact for individuals that would like 

to enroll. To serve individuals enrolled 

in pre-apprenticeship or registered 

apprenticeship programs best, a 

commenter suggested including a 

regulatory requirement that the one-stop 

delivery system receive technical 

assistance to help expand one-stop 

center capacity to serve women entering 

these training programs. 

Department Response: There is no 

prohibition in WIOA on one-stop 

centers initiating applications for 

registered apprenticeships. The 

Department encourages Local WDBs to 

partner with registered apprenticeships, 

work to align service delivery, and make 

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appropriate arrangements to build on 

these partnerships. The Department 

encourages the one-stop delivery system 

to help populations access training in 

nontraditional employment and will 

provide technical assistance to share 

best practices on this subject. 

Comments: Two commenters listed 

the following ways in which a one-stop 

delivery system could serve the preapprenticeship programs, including, 

marketing, referrals, training costs, 

direct placements in registered 

apprenticeships, and use of OJT funds. 

Department Response: The 

Department considers these 

recommendations to be examples of best 

practices to be shared through guidance 

and technical assistance. 

Comments: A commenter requested 

clarification on several issues related to 

pre-apprenticeships: (1) With preapprenticeship programs moving to 

ITAs and therefore onto the ETPL, is the 

expectation that all other intensive 

service providers also will be included 

in the ITAs and ETPL; (2) the treatment 

of pre-apprenticeship programs that are 

not linked to a registered apprenticeship 

under WIOA; and (3) whether an out-ofschool youth under 18 or an in-school 

youth be approved for an ITA for a preapprenticeship program? 

Department Response: Preapprenticeship programs may be eligible 

for an ITA if they are on the ETPL. The 

Department encourages preapprenticeship programs that provide 

training services under an ITA to apply 

to be an ETP. The Department considers 

pre-apprenticeship programs to be 

directly partnered with at least one 

registered apprenticeship program; 

programs that do not meet this criterion 

are not considered a pre-apprenticeship 

program for the purposes of WIOA. In 

order to receive an ITA under WIOA 

title I adult and dislocated worker 

programs, an individual must meet 

program eligibility criteria as well as the 

training eligibility criteria. 

Section 680.340 What are the 

requirements for consumer choice? 

Comments: A commenter indicated 

that proposed § 680.340 does not speak 

effectively to the concept of ‘‘consumer 

choice.’’ This commenter stated that it 

would take serious efforts by the 

Department to develop more extensive 

information regarding the learning 

providers to inform individuals seeking 

training opportunities properly. 

Furthermore, the commenter asserted 

that posting information about eligible 

trainers has not proven to assist the 

learner. 

Department Response: The 

regulations on consumer choice are 

consistent with the language in WIOA 

sec 134(c)(3)(F). The Department 

emphasizes the importance of 

performance information on training 

providers to ensure consumers may 

make an informed assessment of their 

training options. The Department 

considers the role of the career planner 

as critical to support individuals to 

make well-informed training decisions. 

Career planners are responsible for 

making training eligibility 

determinations, and these 

determinations require that States and 

local make available high quality 

performance information to participants 

to make informed training choices. 

Comments: One commenter suggested 

that the Department rewrite proposed 

§ 680.340(b) so that it is clear that there 

is no requirement for the employer to 

report outcomes when using OJT and 

customized training other than in those 

circumstances required by the Local 

WDB. 

Department Response: The 

Department agrees with the commenter 

and has changed the regulatory text in 

§ 680.340(b) to emphasize that the ETPL 

is a separate list from the list that the 

Governor may require for work-based 

training providers. 

Comments: A commenter 

recommended that proposed § 680.340 

be revised to make it clear that training 

funds are not an entitlement and that 

criteria in addition to eligibility are 

assessed prior to referral to a provider 

and program. Two other commenters 

requested clarification as to the reasons 

that training could be refused. 

Department Response: WIOA is not 

an entitlement program. Determinations 

for training are made consistent with the 

law, including WIOA sec. 134(c)(3)(A), 

State and local policies, funding 

availability, and other appropriate 

considerations. There have been no 

changes to the regulatory text in 

response to these comments. 

One commenter requested that the 

Department provide a definition for the 

term ‘‘cost of referral’’ as used in 

proposed § 680.340(d). 

Department Response: The 

Department declines to define the term 

‘‘cost of referral’’ in the regulatory text. 

Comments: A commenter expressed 

support for the prioritization of funding 

for training programs that result in a 

recognized postsecondary credential. 

Department Response: The 

Department acknowledges the comment 

and has added language to the 

regulatory text in § 680.340(f) 

referencing the citation for WIOA sec. 

3(52), which defines a recognized 

postsecondary credential. 

Comments: A commenter 

recommended a technical correction to 

proposed § 680.340(b) to reference 

paragraph (d) in WIOA sec. 122 rather 

than paragraph (e). 

Department Response: The 

Department agrees and has made this 

nonsubstantive correction in the 

regulatory text in § 680.340(b). 

Section 680.350 May title I adult and 

dislocated worker funds be used to 

directly support adult education and 

literacy activities? 

Comments: Some commenters 

recommended that the Department 

clarify that WIOA title I funds can 

support title II adult education 

programs, as the WIOA sec. 134(c)(3) 

definition of training includes ‘‘adult 

education and literacy activities, 

including activities of English language 

acquisition and integrated education 

and training programs’’ at sec. 

134(c)(3)(D)(x). A commenter 

recommended that referrals to 

regionally accredited secondary-level 

educational programs providing entrylevel workforce preparation and/or 

postsecondary education and training 

activities be included as part of basic 

services and counseling services. A 

commenter requested clarification 

regarding whether alternative secondary 

school (formerly General Education 

Diploma [GED]) preparation is 

considered a career service or a training 

service. 

Department Response: Under WIOA 

sec. 134(c)(3)(D)(x), title I adult and 

dislocated worker funds may be used to 

support adult education and literacy 

activities, provided concurrently or in 

combination with other training 

services. The Department has added 

regulatory text clarifying this use of 

WIOA title I adult and dislocated 

worker funds in § 680.350. The 

Department notes that these activities 

for title I adult and dislocated worker 

funds must be done in coordination 

with other training activities in WIOA 

sec. 134(c)(3)(D)(x). 

5. Subpart D—Eligible Training 

Providers 

This subpart describes the process by 

which organizations qualify as eligible 

training providers of training services 

under WIOA. It also describes the roles 

and responsibilities of the State and 

Local WDBs in managing this process 

and disseminating the State Eligible 

Training Providers and Programs List 

(ETPL). Throughout the preamble, the 

Department refers to the State Eligible 

Training Providers and Programs List as 

the ‘‘State List,’’ the List, and the ETPL. 

The State ETPL and the related 

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eligibility procedures ensure the 

accountability, quality, and labor market 

relevance of programs of training 

services that receive funds through 

WIOA title I, subtitle B. The regulations 

emphasize that the List and 

accompanying information must be 

easily understood and disseminated 

widely in order to maximize informed 

consumer choice and serve members of 

the public. 

The State plays a leadership role in 

ensuring the success of the eligible 

training provider system in partnership 

with Local WDBs, the one-stop delivery 

system, and the one-stop’s partners. The 

Governor, in consultation with the State 

WDB, must establish eligibility criteria 

and procedures for initial and continued 

eligibility for training providers and 

programs to receive funds under WIOA 

title I, subtitle B. In doing so, the 

Governor may establish minimum 

performance levels for initial and 

continued eligibility and the 

Department encourages Governors to do 

so. In establishing minimum 

performance levels for eligibility, the 

Governor should take into consideration 

the need to serve targeted populations. 

Except for with respect to registered 

apprenticeship programs, the Local 

WDB may establish higher performance 

levels or require additional information 

from State eligible training providers to 

receive funds through the local area 

Individual Training Accounts (ITAs). 

The regulations in this subpart 

implement WIOA sec. 122 and refer to 

WIOA secs. 107, 116, and 134 where 

those sections affect program and 

provider eligibility, the ETPL, the use of 

ITAs, and the inclusion of registered 

apprenticeship programs on the ETPL. 

In § 680.410, the regulations clarify 

what entities can be eligible training 

providers. Section 680.470 provides that 

registered apprenticeship programs, 

which WIOA treats differently than 

other eligible training providers in some 

respects, are automatically eligible to be 

included on the ETPL. Finally, 

§ 680.500 requires the Governor or State 

Workforce Agency (SWA) to 

disseminate the State ETPL with 

accompanying performance and cost 

information to Local WDBs in the State 

and to members of the public through 

specified means. The performance 

information must be presented in a way 

that is easily understood, in order to 

maximize informed consumer choice 

and serve all individuals seeking 

information on training outcomes, 

including WIOA participants and 

individuals with disabilities. Separately, 

20 CFR 677.230 (see Joint WIOA Final 

Rule) addresses the ETP annual 

performance reports mandated at WIOA 

sec. 116(d)(4), which require providers 

to report on, among other things, the 

levels of performance for the WIOA 

primary indicators of performance for 

all individuals enrolled in the program 

of study. 

In response to concerns expressed by 

stakeholders that some providers of 

training would face difficulties in 

participating in this WIOA-revised 

system, the Department has clarified the 

interrelated eligibility requirements and 

explained that while WIOA places an 

emphasis on quality training as 

measured by performance criteria, State 

and Local WDBs and training providers 

must work together in achieving this 

goal. The regulations emphasize the 

Governor’s role in offering financial or 

technical assistance to training 

providers where the information 

requirements of this section result in 

undue cost or burden. Making a wide 

variety of high-quality programs of 

training available to participants will 

increase customer choice and training 

providers may find performance 

information useful to improve their 

programs of study, which in turn will 

provide a direct benefit to participants. 

The Department also encourages the 

Governor to work with eligible training 

providers to return aggregate 

performance information to the 

providers in ways that will help the 

providers improve their program 

performance. The State and Local WDBs 

must work together to ensure sufficient 

numbers and types of training providers 

and programs to maximize customer 

choice while maintaining the quality 

and integrity of training services. In 

addition, the regulations explain that 

community-based organizations (CBOs) 

can be eligible training providers, 

provided they meet the requirements to 

become eligible training providers in 

WIOA sec. 122 and this subpart. 

Because of WIOA’s emphasis on 

ensuring the provision of quality 

training, and the importance of using 

performance criteria to obtain such 

quality, the Department does not intend 

to waive the requirement to submit 

performance information at this time. 

Throughout this subpart, the 

Department has changed references 

from the Eligible Training Provider List 

to the list of eligible training providers 

and programs to convey that the list is 

a compilation of the programs of 

training services for which ITAs can be 

used. The Department has also made 

revisions throughout this subpart for 

consistency in the use of the term 

‘‘program of training services’’ and to 

incorporate the use of youth funds for 

ITAs for out-of-school youth (OSY) aged 

16–24. 

The Department received a number of 

comments that pertain to the WIOA sec. 

116(d)(4) ETP annual performance 

reports. The Department notes that 

submission of the ETP annual 

performance reports is required by 

WIOA sec. 116(d)(4) and comments and 

responses relating to this report are 

addressed in the Joint WIOA Final Rule 

preamble section for 20 CFR 677.230. 

This subpart D of part 680 addresses the 

ETP eligibility requirements. 

Section 680.400 What is the purpose 

of this subpart? 

Proposed § 680.400 explained the 

purpose of this subpart. It stated that the 

list must be accompanied by relevant 

performance and cost information and 

made publicly available online through 

Web sites and searchable databases as 

well as any other means the States use 

to disseminate information to 

consumers. The Department has made 

non-substantive corrections for 

consistency in how the Department uses 

terms throughout this section. 

Additionally, the Department has made 

substantive changes to paragraphs (a) 

and (b) of this section which are 

described in detail below. 

Comments: A commenter requested 

that Local WDBs ensure the availability 

of training providers that understand 

the unique needs of individuals with 

disabilities. Another commenter cited 

the challenges faced by older workers 

and recommended that the regulations 

direct one-stop centers to take into 

account older workers’ different training 

needs and lesser access to financial aid, 

and make sure that older workers are 

not discriminated against in access to 

WIOA-funded ITAs. 

Department Response: The unique 

needs of individuals with disabilities 

require a minor revision to § 680.400 to 

emphasize the importance of 

disseminating the State ETPL to 

individuals with disabilities. One of 

WIOA’s stated purposes is to increase 

access to employment and training for 

individuals with barriers to 

employment, which is defined in WIOA 

to include individuals with disabilities 

as well as older individuals. Individuals 

with disabilities (e.g., those who are 

blind or hearing-impaired) may have 

unique needs that prohibit access to 

information through the Internet or 

other common databases. To fulfill the 

statutory purpose of WIOA, the 

Department has added language to 

§ 680.400(b) that requires States to 

disseminate information to consumers 

in formats accessible to individuals with 

disabilities. In response to the comment 

that the regulations direct one-stop 

centers to take into account older 

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workers’ different training needs, the 

Department notes that the ability to 

provide services to individuals with 

barriers to employment is a factor that 

must be taken into account in the 

Governor’s eligibility procedures under 

§ 680.460(f)(9) and that WIOA sec. 

3(24)(D) and (E) define ‘‘individual with 

a barrier to employment’’ to include 

individuals with disabilities and older 

individuals. Because this is a required 

factor in the eligibility procedures, the 

Department has decided not to address 

this in the purpose section of the 

regulation. No changes were made to the 

regulatory text in response to these 

comments. 

Comments: Another commenter 

requested that the Department explain 

whether programs other than those 

authorized by WIOA title I must use the 

eligible training provider list. A few 

commenters recommended that 

§ 680.410 specify that the requirements 

apply to entities providing training to 

participants paid for with WIOA title I 

adult or dislocated worker funding only 

and are not more generally applicable to 

all entities providing training to adult 

and dislocated workers. 

Department Response: WIOA’s 

requirements regarding the State list of 

eligible training providers pertains to 

WIOA title I, subtitle B funds only. Core 

programs and partners other than the 

title I programs are not required to use 

the list of eligible training providers and 

programs, although States may choose 

to employ their ETP list for other 

activities. No changes were made to the 

regulatory text in response to this 

comment. 

Comments: The Department received 

a number of comments regarding 

whether youth may use ITAs in 

response to proposed § 681.550 (Are 

Individual Training Accounts permitted 

for youth participants?). 

Department Response: In § 680.400, 

the Department has added that this 

subpart describes the process for 

determining eligible training providers 

and programs for the adult, dislocated 

worker, and youth programs. More 

information about this is provided in 

the preamble corresponding to 

§ 681.550. The Department has updated 

§§ 680.400(a), 680.430, and 680.490 to 

clarify which requirements of this 

subpart apply to the eligible training 

providers and programs that serve OSY 

aged 16 through 24 with ITAs. 

Section 680.410 What is an eligible 

training provider? 

The Department made nonsubstantive edits for consistency in how 

the Department uses terms throughout 

this section. Additionally, the 

Department has made significant 

substantive revisions to this section that 

are explained below. 

The Department significantly revised 

this section to more clearly define the 

term ‘‘eligible training provider’’ (ETP) 

and changed the section’s title to reflect 

this change. The Department made these 

changes to clarify which entities are 

considered ETPs, as many of the 

requirements of WIOA sec. 122 apply 

only to those entities that are considered 

ETPs under WIOA. This clarification 

responds to commenters’ requests for 

clarification on which requirements of 

WIOA sec. 122 apply to which entities. 

Section 680.410(a) through (c) lays 

out the defining characteristics of ETPs. 

Specifically, revised § 680.410(a) 

provides that ETPs are the only types of 

entities that can receive funding for 

training services through an ITA. This 

means that if an entity is not on the 

State ETPL, the entity may not receive 

ITA funds to pay for training services. 

Section 680.410(b) was revised to make 

clear that ETPs must be included on the 

State ETPL. The Department added new 

§ 680.410(c) to provide that ETPs must 

provide a program of training services as 

that term is defined at § 680.420. 

The Department also added new 

§ 680.410(d) to describe the kinds of 

entities that can be ETPs. Eligible 

training providers can be institutions of 

higher education that provide a program 

which leads to a recognized 

postsecondary credential, entities that 

carry out programs registered under the 

National Apprenticeship Act (29 U.S.C. 

50 et seq.), and other public or private 

providers of training services, which 

may include community-based 

organizations (§ 680.410(d)(3)(i)), joint 

labor-management organizations 

(§ 680.410(d)(3)(ii)), and eligible training 

providers of adult education and 

literacy activities under WIOA title II if 

such activities are provided in 

combination with the training services 

described at § 680.350 

(§ 680.410(d)(3)(iii)). 

The Department deleted proposed 

paragraph (b) of § 680.410 to clarify that 

this subpart is focused on ETPs and the 

State list of ETPs. The requirements for 

individuals receiving training from 

entities other than ETPs are addressed 

in §§ 680.320 and 680.530. Further 

description of the training that can be 

provided to individuals through entities 

other than ETPs can be found in 

§ 680.530. 

Part of the reason for this revision to 

this section is to make it clear that only 

entities that have gone through the 

Governor’s ETP eligibility procedures 

and registered apprenticeship programs 

are considered ETPs, are able to be on 

the State ETPL, and can receive funding 

through ITAs. Additionally, because 

only these entities are on the State 

ETPL, only these entities, except for 

registered apprenticeship programs, are 

required to provide information for the 

ETP annual eligible training provider 

performance report required by WIOA 

sec. 116(d)(4). 

Comments: Many commenters 

provided input on specific categories of 

training providers. A few commenters 

supported allowing Local WDBs to 

provide training services as long as the 

Local WDB is licensed, registered, or 

otherwise exempt by the State office of 

education. Some commenters requested 

guidance on approval of distance 

learning providers requesting to be put 

on the ETPL. One commenter requested 

that the Department define and add a 

distance learning category as a potential 

ETP. 

Another commenter encouraged the 

Department to expand the definition of 

eligibility for training providers to 

include platforms that work with 

accredited institutions of higher 

education to provide Massive Open 

Online Courses (MOOCs). Several 

commenters encouraged the Department 

to revise § 680.410(a) to identify public 

television stations explicitly as an ETP 

with demonstrated expertise in 

developing and implementing evidencebased training services. Another 

commenter recommended that § 680.410 

explicitly identify public libraries as 

potential providers, and particularly for 

enhanced digital literacy training and 

services. One commenter recommended 

that industry-based multi-employer 

training programs with a minimum of 

50 percent employer representatives be 

eligible for inclusion on the ETPL to 

allow for training funds to be included 

as providers who would then be eligible 

for WIOA support. Another commenter 

urged the Department to consider 

integrating microenterprise 

development organizations, entities that 

help people in the very earliest stages of 

creating their own businesses, into the 

WIOA system. In addition, one 

commenter suggested a revision to 

paragraphs (a)(1) through (3) of 

§ 680.410 to include, as examples of 

eligible training providers of training 

services with WIOA adult funds under 

title I, public or private organizations 

that have demonstrated effectiveness in 

providing regionally accredited 

secondary-level educational programs 

that include entry-level workforce 

preparation and/or postsecondary 

education and training activities. 

Department Response: The 

Department has determined it is not 

appropriate in the regulation to specify 

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types of public and private entities that 

are appropriate to be ETPs, as many of 

these entities could be ETPs if they meet 

the requirements for initial and 

continued eligibility under 

§ 680.410(d)(3). Instead, the Department 

has defined broadly the kinds of entities 

which are eligible to be ETPs based on 

WIOA sec. 122(a)(2). The public and 

private entities commenters encouraged 

for inclusion on the ETPL are within the 

parameters of entities under 

§ 680.410(d) that can be ETPs, provided 

they meet all other applicable 

requirements, such as the Governor’s 

eligibility requirements. In addition, the 

Department has not regulated to require 

training to be delivered in a specific 

format; programs may be delivered inperson, online, or in a blended 

approach. Nothing in the regulation 

precludes any of these approaches to 

training; therefore, it is unnecessary to 

regulate specifically that these are 

permissible types of training. In 

addition, the Department is clarifying 

that Local WDBs may provide training 

services, if they meet the conditions of 

WIOA sec. 107(g)(1), which includes the 

information required in a written waiver 

request to the Governor. This provision 

is addressed in § 679.410. In response to 

the commenter that suggested Local 

WDBs can provide training as long as 

the Local WDB is licensed, registered, or 

otherwise exempt by the State office of 

education, the Department notes that 

WIOA sec. 107(g)(1) establishes the 

requirements that must be met if a Local 

WDB wishes to provide training. 

Therefore, the Department has not 

included this in this section. 

Section 680.420 What is a ‘‘program of 

training services’’? 

This section defines the term 

‘‘program of training services’’ that is 

used throughout the regulations. The 

Department proposed to define the term 

as one or more courses or classes, or a 

structured regimen that leads to 

specified outcomes, including 

recognized postsecondary credentials, 

secondary school diplomas or their 

equivalent, employment, or measurable 

skill gains toward such credentials or 

employment. The Department made 

non-substantive edits for consistency in 

how the Department uses terms 

throughout this section. The Department 

also made substantive revisions to 

paragraphs (a) and (b) which are 

described in detail below. 

In the NPRM preamble, the 

Department explained that the 

definition of a WIOA ‘‘program of 

training services’’ includes a structured 

regimen that leads to an industryrecognized credential. The NPRM 

preamble indicated that the outcomes in 

the definition of program of training 

services aligned with performance 

requirements in WIOA sec. 116(b)(2)(A). 

Comments: Many commenters 

requested that the definition of 

‘‘program of training services’’ be 

clarified with options to recognize 

‘‘non-credentialed training, such as 

incumbent worker training, work-based 

learning opportunities, or single courses 

that fall within a career pathway for 

employment.’’ These commenters also 

requested clarification of ‘‘industryrecognized credentials’’ to avoid 

confusion over which programs should 

qualify as eligible for WIOA funding. 

Several commenters requested 

clarification regarding how or when a 

program of training services leads to ‘‘a 

recognized postsecondary credential, 

secondary school diploma or its 

equivalent.’’ A few commenters 

recommended that § 680.420 include 

training programs that lead to a 

‘‘recognized postsecondary degree or 

industry recognized credential’’ to avoid 

a potential debate over what constitutes 

a ‘‘postsecondary credential.’’ Other 

commenters suggested that a definition 

of ‘‘recognized industry credential’’ 

include a degree, diploma, or 

certification provided by an educational 

institution, third-party industry 

association, or industry accreditation 

body if it is not widely recognized by 

multiple employers in a region or 

industry. One commenter recommended 

that the term ‘‘industry-recognized 

credentials’’ as used in the preamble to 

the NPRM be added to the regulatory 

text. Another commenter asked whether 

having a group of five employers state 

the certificate of completion from a 

training provider is ‘‘industry 

recognized’’ would meet the definition 

of industry-recognized credential. One 

commenter recommended a change to 

§ 680.420(a) through (c), to include, as 

outcomes of programs of training 

services, regionally accredited 

secondary education diplomas and 

career certification for entry-level work 

force preparation earned as a part of a 

secondary education program. 

Department Response: The 

Department has revised the regulatory 

text of § 680.420 to further clarify which 

programs qualify as WIOA ‘‘programs of 

training services.’’ The introductory text 

of § 680.420 was modified to clarify that 

a ‘‘program of training services’’ is one 

that provides the services in § 680.200 

and leads to any of the outcomes listed 

in paragraphs (a) through (d) of this 

section, making clear the relationship 

between the definition of ‘‘program of 

training services’’ in this section and the 

definition of ‘‘training services’’ in 

§ 680.200. 

Section 3(52) of WIOA defines the 

term ‘‘recognized postsecondary 

credential,’’ which was used in the 

Department’s proposed definition of a 

‘‘program of training services.’’ The 

Department has revised § 680.420(a) to 

include all of the credentials, 

certificates, licenses, and degrees 

included in the WIOA definition of 

‘‘recognized postsecondary credential.’’ 

However, the Department removed the 

term ‘‘recognized postsecondary 

credential’’ from the definition of 

‘‘program of training services’’ in 

response to comments that this may be 

read as too limiting if it is interpreted 

to mean that these credentials can only 

be obtained by individuals who have a 

secondary degree, or a high school 

diploma or its recognized equivalent. 

The new definition of ‘‘program of 

training services’’ remains consistent 

with the program outcomes described in 

WIOA sec. 116(b)(2)(A) and 20 CFR part 

677 (see Joint WIOA Final Rule). 

The Department chose not to define 

the term ‘‘industry-recognized 

credential’’ in the subpart and used the 

term ‘‘industry-recognized certificate or 

certification’’ in the definition of 

‘‘program of training services’’ in order 

to mirror the definition of ‘‘recognized 

postsecondary credential’’ under WIOA. 

The term ‘‘industry-recognized 

credential’’ is an evolving term and the 

Department determined that defining it 

in the regulation may limit future 

innovation around industry-relevant 

training. 

The Department agrees that programs 

of training services should be inclusive 

of non-credentialed training, such as 

incumbent worker training, work-based 

learning opportunities, or single courses 

that fall within a career pathway. The 

introduction to § 680.420 emphasizes 

that training services that ‘‘lead to’’ any 

of the outcomes listed at § 680.420, 

which includes employment, is a 

program of training services. Therefore, 

programs that are components of such a 

regimen may be eligible programs. 

In addition, as explained in 

§§ 680.410 and 680.350 and associated 

sections of the preamble, WIOA title I 

adult and dislocated worker funds may 

be used for programs of training services 

that provide adult education and 

literacy activities if they are provided 

concurrently or in combination with 

occupational skills training and training 

services specified in § 680.350. For 

example, English as a second language 

may be part of a program of training 

services that leads to measurable skill 

gains toward postsecondary credentials, 

industry-recognized credentials, or 

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employment. The Department has 

added a cross reference to § 680.350 in 

§ 680.420(b) to clarify that a participant 

may utilize a program offering a 

secondary school diploma or its 

equivalent only when that program is 

offered in conjunction with 

occupational skills training and other 

training options listed at § 680.350. The 

revised definition of program of training 

services and the acceptable outcomes to 

which a structured regimen may lead 

align with the definitions within WIOA 

sec. 116(b)(2)(A) and in 20 CFR part 677 

(see Joint WIOA Final Rule). Section 

680.420(d) provides that a program of 

training services is one that leads to 

measurable skill gains towards a 

credential described in paragraph (a) or 

(b) of this section. In this context, the 

term ‘‘measurable skill gains’’ is used 

similarly to its use in 20 CFR part 677 

and the accompanying ICR. For 

clarification, the Department notes that 

the ETP annual performance report 

layout required under WIOA sec. 

116(d)(4) uses the term ‘‘training 

program,’’ which is synonymous with 

‘‘program of training services.’’ 

Section 680.430 Who is responsible for 

managing the training provider 

eligibility process? 

Section 680.430 outlines the roles and 

responsibilities of the Governor, the 

State WDB, any designated State 

agencies, and Local WDBs in 

establishing and implementing criteria 

and procedures for determining the 

eligibility of training providers. The 

Department received several comments 

addressing § 680.430. The Department 

made non-substantive edits for 

consistency in how the Department uses 

terms throughout this section and to this 

section’s title. The Department also 

made substantive changes to paragraphs 

(a), (c)(3), and (d), and these changes are 

described in detail below. 

The title to this section of the NPRM 

was ‘‘Who is responsible for managing 

the eligible provider process.’’ The 

Department is making a non-substantive 

edit and inserting the word ‘‘training’’ 

between ‘‘eligible’’ and ‘‘provider’’ for 

consistency. 

The Department modified § 680.430(a) 

to clarify that the Governor, in 

consultation with the State WDB, 

establishes the criteria, information 

requirements, and procedures, 

including procedures identifying the 

roles of the State and local areas, 

governing eligibility of providers and 

programs of training services to receive 

funds for out-of-school youth as 

described in § 681.550. 

The Department renumbered and rearranged paragraph (d) and added 

paragraph (e) for consistency with other 

portions of this subpart, including 

§§ 680.450, 680.460, and 680.470, in 

regard to what is required for registered 

apprenticeship programs to be an 

eligible training provider. These 

provisions of the subpart make it clear 

that registered apprenticeship programs 

are not required to follow the 

Governor’s eligibility procedures (initial 

or continued) in order to be eligible 

training providers. This is consistent 

with WIOA sec. 122(a)(3), which 

provides that registered apprenticeship 

programs are maintained on the State 

List for so long as the program is 

registered under the National 

Apprenticeship Act. Therefore, the 

Department modified this section to 

ensure that the registered 

apprenticeship programs are not subject 

to the additional standards that may be 

established by a local area. 

Because registered apprenticeship 

programs are not subject to the 

Governor’s criteria and information 

requirements or required to report on 

their levels of performance for 

eligibility, Local WDBs cannot establish 

additional criteria and information 

requirements or establish higher levels 

of performance for these entities to 

receive training services in the local 

area. Moreover, permitting the Local 

WDBs to establish additional criteria 

and performance standards for 

registered apprenticeship programs 

would be in tension with what the 

Department has determined is a key 

purpose of sec. 122(a)(3): Encouraging 

the integration of the registered 

apprenticeship program into the WIOA 

system. Section 680.430(d) provides that 

the Local WDB can make 

recommendations to the Governor on 

the procedure used in determining the 

eligibility of providers and programs. 

This is not a change from the NPRM. 

The Department has added new 

§ 680.430(e), which contains the 

provisions from proposed 

§ 680.430(d)(2) and (3), but clarifies that 

the provisions do not apply with respect 

to registered apprenticeship programs. 

Except for registered apprenticeship 

programs, the Local WDB may establish 

higher performance levels or require 

additional information from State 

eligible training providers to receive 

funds through local area ITAs. 

Paragraph (e)(1) provides that the Local 

WDB can, except with respect to 

registered apprenticeship programs, 

require additional criteria and 

information from local programs to 

become or remain eligible, and 

paragraph (e)(2) states that the Local 

WDB can set higher levels of 

performance, except with respect to 

registered apprenticeship programs, 

than those required by the State for local 

programs to become or remain eligible. 

In paragraph (e)(2), the Department 

made a non-substantive edit changing 

the phrase ‘‘local providers’’ to ‘‘local 

programs’’ to clarify that eligibility is 

determined on a program-by-program 

basis and removed the word 

‘‘particular’’ from this paragraph as 

unnecessary. 

Comments: One commenter 

commended the Department for 

outlining the responsibilities of State 

and Local WDBs to ensure adequate 

availability of training services for 

individuals with disabilities and 

recommended that § 680.430(c)(3) 

similarly remind Local WDBs to 

disseminate and maintain lists of 

providers in formats accessible to 

individuals with disabilities. 

Department Response: As noted above 

under § 680.400, the State List must be 

made publicly available in a format this 

is accessible to individuals with 

disabilities. One of WIOA’s stated 

purposes is to increase access to 

employment and training for 

individuals with barriers to 

employment, which WIOA defines as 

including individuals with disabilities 

as well as older individuals. Individuals 

with disabilities (e.g., those who are 

blind or hearing-impaired) may have 

unique needs that prohibit them from 

accessing information through the 

Internet or other common databases. To 

fulfill one of the statutory purposes of 

WIOA articulated in WIOA sec. 2(1), the 

Department has added language to 

§ 680.430(c)(3) requiring that Local 

WDBs ensure that the State list of 

eligible training providers and programs 

is disseminated through the one-stop 

delivery system in formats accessible to 

individuals with disabilities. 

Comments: A commenter asked the 

Department to revise § 680.430(d)(1) to 

require the Governor to engage with the 

Local WDB and to require an equal 

exchange of information that allows for 

mutual consent in the management of 

the ETP process. 

Department Response: The 

Department considered this comment; 

however, WIOA sec. 122 explicitly 

states that the Governor, in consultation 

with the State WDB, is to establish the 

criteria, information requirements, and 

procedures governing the eligibility of 

providers and programs and the 

Department will not create an additional 

requirement that the Governor obtain 

mutual consent of the Local WDBs. 

Moreover, § 680.430(d) already provides 

a role for the Local WDB in this process: 

It allows Local WDBs to make 

recommendations to the Governor on 

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the procedures used to determine 

eligibility of providers and programs. 

The Department encourages Local 

WDBs to make such suggestions and 

strongly encourages the Governor to 

carefully consider and incorporate the 

Local WDBs’ suggestions, as they are 

most familiar with the training needs of 

their specific area. No changes were 

made to the regulatory text in response 

to this comment. 

Comments: One commenter 

recommended that the regulation 

explicitly require a Governor to make 

the process for becoming an ETP 

transparent and ensure adequate access 

for CBOs to become ETPs. The 

commenter stated that a transparent and 

accessible process is necessary in order 

to expand access to a variety of highquality providers and programs for 

individuals seeking employment and a 

way out of poverty. 

Department Response: The 

Department notes that § 680.410 was 

modified to include paragraph (d)(3)(i), 

which explicitly acknowledges that 

CBOs may be eligible training providers. 

Moreover, CBOs can provide training 

through training contracts with the 

Local WDB under § 680.320. The 

Department agrees that a transparent 

process is important. Section 680.450(c) 

requires the Governor to solicit and take 

into consideration recommendations 

from Local WDBs and providers, 

provide an opportunity for interested 

members of the public to comment, and 

designate a specific time for doing these 

things. Additionally, § 680.460(e) 

requires that the Governor’s procedures 

be described in the State Plan, which is 

subject to the public comment 

requirements for State Plans. Because 

the Department concludes the process 

will already be transparent as public 

comment is required in the 

development of the procedures and in 

the development of the State Plan, no 

changes were made to the regulatory 

text in response to this comment. 

Comments: Another commenter 

recommended that ‘‘may’’ be changed to 

‘‘must’’ in § 680.430(c)(2), to ensure that 

States with large Indian, Alaska Native 

and Native Hawaiian populations focus 

attention on the special circumstances 

of these populations. 

Department Response: The 

Department notes that § 680.430(c) 

requires the Local WDB to carry out the 

activities in § 680.430(c)(2) and already 

uses the term ‘‘must.’’ This section of 

the regulation implements WIOA sec. 

107(d)(10)(E), which requires the Local 

WDB to work with the State to ‘‘ensure 

there are sufficient numbers and types 

of providers of career services and 

training services (including eligible 

training providers with expertise in 

assisting individuals with disabilities 

and eligible training providers with 

expertise in assisting adults in need of 

adult education and literacy activities) 

serving the local area and providing the 

services involved in a manner that 

maximizes consumer choice, as well as 

providing opportunities that lead to 

competitive integrated employment for 

individuals with disabilities.’’ This 

section is focused on ensuring consumer 

choice for individuals with disabilities 

and adults in need of adult education 

and literacy activities. However, the 

Department interprets § 680.430(c)(2) to 

ensure that there are sufficient numbers 

and types of providers of career services 

and training services, to include 

ensuring that such services are available 

to assist specific populations such as the 

Indian, Alaska Native, and Native 

Hawaiian populations. No changes to 

the regulatory text were made in 

response to these comments. 

Section 680.440 [Reserved] 

The NPRM included a proposed 

§ 680.440 implementing WIOA sec. 

122(c), which allowed the Governor to 

establish a transition procedure for 

training providers eligible under WIA to 

maintain their eligibility and the 

eligibility of their programs under 

WIOA until December 31, 2015. In this 

Final Rule, the Department has removed 

§ 680.440 in its entirety because the 

time during which providers could 

retain their eligibility under WIA into 

WIOA has elapsed. Therefore, this 

provision is no longer necessary. 

Although this provision is not in the 

Final Rule, the Department received 

several comments on the proposed rule 

and is addressing them below. 

Comments: Commenters addressed 

the Department’s proposed timeline and 

transition procedures for 

implementation of the continued 

eligibility provisions for ETPs eligible 

under WIA. A handful of commenters 

expressed support for exempting ETPs 

eligible under WIA from initial 

eligibility procedures and for providing 

these ETPs a transition period before 

requiring compliance with the 

application procedures to establish 

continued eligibility. 

A number of commenters requested 

that the Department allow States more 

time to implement the continued 

eligibility procedures. One commenter 

recommended that the Department 

extend the time allowed for transition of 

ETPs to meet the new requirements 

under WIOA until June 30, 2016. 

Another commenter recommended that 

the Department allow all ETPs to 

receive initial and/or subsequent 

eligibility under WIA regulations until 

the State publishes and implements its 

new eligibility procedures, no later than 

June 30, 2016, reasoning that this 

approach would be consistent with the 

Department’s transition authority in sec. 

503 of WIOA. One commenter 

cautioned that the procedures for initial 

and continued eligibility are lengthy 

and that there would not be enough 

time for implementation, then urged the 

Department to adopt more flexible 

procedures for easier implementation. 

A few commenters recommended that 

a waiver provision be added in the 

WIOA Final Rule relating to the 

application for continued eligibility of 

ETPs. Another commenter 

recommended a longer period of 

transition (i.e., more than 12 months) 

because of the additional information 

required from applicants to become an 

ETP under WIOA as well as the 

additional programming needed to 

electronically capture this information. 

One commenter recommended that 

States be allowed to use existing 

procedures for new providers and 

develop and implement new procedures 

by July 1, 2016, consistent with the start 

date of Unified State Plans. The 

commenter reasoned that this timeframe 

would allow States to identify best 

procedures and update software 

programming and user training and 

communicate these to potential 

providers. Other commenters 

recommended that the timeframe 

relevant in § 680.440 be determined by 

each individual State policy as 

determined by the Governor, without 

providing additional detail about the 

specific activities of concern. One 

commenter requested that continued 

eligibility be implemented as a phased 

transition. 

Department Response: In order to 

facilitate the transition from WIA to 

WIOA and give the states sufficient time 

to create robust eligibility policies and 

procedures for ETPs, the Department 

exercised its transition authority and 

issued guidance (Training and 

Employment Guidance Letter (TEGL) 

41–14, Change 1) that extended the 

timeline for implementation of 

continued eligibility requirements for 

training providers eligible under WIA 

by 6 months through June 30, 2016, 

unless the Governor determined that an 

earlier date was possible. While this is 

not the 12-month extension requested 

by a commenter, the Department 

concluded this was sufficient time for 

States to implement the continued 

eligibility procedures. The Department 

has chosen not to regulate waiver policy 

in the Final Rule. 

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WIOA sec. 122(b)(4)(B) requires 

providers not previously approved 

under WIA to complete the initial 

eligibility procedure. WIOA sec. 122(i) 

requires that the Governor and Local 

WDBs implement these requirements no 

later than 12 months after the date of 

enactment. Although States are required 

to implement new procedures for initial 

eligibility and continued eligibility, 

rather than using existing procedures, 

the regulation at § 680.460(f)(1)(v) 

allows the Governor to use alternate 

factors for performance until 

performance information is available to 

establish continued eligibility. The 

Department notes that the Governor has 

discretion to determine what the 

alternate factors for performance are; 

thus the Governor’s procedure may take 

into account existing performance 

information. Moreover, the regulation at 

§ 680.450(e)(2) requires the initial 

eligibility procedures to take into 

account ‘‘a factor related to’’ the 

indicators of performance which may 

take into account existing performance 

information. 

It is unclear what the commenter is 

suggesting by a ‘‘phased transition.’’ The 

Department notes that the Governor’s 

transition procedures could have been 

implemented in phases if the Governor 

chose to conduct the transition this way, 

as long as the continued eligibility 

procedures were implemented in a 

timely way to ensure that continued 

eligibility was established prior to the 

end of the transition period in that 

State, which, consistent with ETA 

guidance, could have extended no later 

than June 30, 2016. 

The Department notes that it also 

received comments on this section 

related to the eligible training provider 

annual performance report required 

under WIOA sec. 116(d)(4). The 

Department addresses these comments 

and provides responses in the preamble 

to 20 CFR 677.230 (see Joint WIOA 

Final Rule). 

Comments: Several commenters 

expressed confusion about how 

providers designated under WIA 

between WIOA’s enactment on July 22, 

2014, and implementation of WIOA’s 

ETP provisions on July 22, 2015, were 

to be treated. One commenter requested 

that the Department clarify the date at 

which States are no longer allowed to 

use their old eligibility-determination 

process. Another commenter 

recommended either grandfathering or 

offering States the discretion to allow 

training providers that become eligible 

under WIA between July 22, 2014, and 

June 30, 2015, to remain eligible 

training providers until December 31, 

2015, or to an earlier date according to 

the Governor’s transition procedures. 

Department Response: The 

Department is clarifying that WIOA sec. 

122(i) covers all providers and programs 

that were previously eligible under 

WIA. Thus, any provider that was 

previously eligible under WIA 

procedures, regardless of whether this 

was before or after the date of WIOA’s 

enactment on July 22, 2014, is subject to 

the continued eligibility procedures 

under WIOA. This reading is consistent 

with WIOA and with the Department’s 

intention stated in the NPRM to 

grandfather all WIA providers through 

the duration of the Governor’s transition 

period. The Department modified 

§ 680.460(a)(1) to make the treatment of 

providers and programs eligible under 

WIA consistent, regardless of whether 

they became eligible before, on, or after 

July 21, 2014. This interpretation is in 

accord with WIOA secs. 122(b)(4)(B) 

and 122(i) because all WIA providers 

determined eligible through June 30, 

2015, were deemed eligible under the 

version of WIA sec. 122 requirements in 

effect on July 21, 2014 (the day before 

enactment of WIOA). 

Section 680.450 What is the initial 

eligibility process for new providers and 

programs? 

Section 680.450 establishes the 

requirements for the initial eligibility 

procedures for new providers and 

programs. The Department made nonsubstantive edits for consistency in how 

the Department uses terms throughout 

this section. The Department also made 

substantive edits to paragraph (b), 

which are discussed in detail below. 

Comments: The Department received 

comments addressing various issues 

relating to § 680.450. Several 

commenters expressed support for the 

proposed initial eligibility process. 

Other commenters suggested that 

provisions for waivers be included in 

§§ 680.450 (initial eligibility) and 

680.460 (continued eligibility) of the 

Final Rule, and that WDBs be given 

authority to waive eligibility 

requirements on a case-by-case basis 

where it is in the best interest of those 

receiving training services. Some 

commenters recommended that 

Governors be given authority to approve 

public higher education schools 

automatically, similar to the proposed 

approach for registered apprenticeship 

programs, including eliminating the 

need for these institutions to be subject 

to initial or continued eligibility. These 

commenters stated that this was a 

duplicative burden on these institutions 

that are already required to report on 

programs to their primary funding 

sources. Several commenters 

recommended that National 

Farmworker Jobs Program (NFJP) 

grantees be presumed to be ETPs and be 

included on their States’ ETPLs 

automatically to encourage and 

streamline the ability of WIOA adult 

and dislocated worker programs to coenroll participants who also qualify for 

NFJP. In addition, one commenter 

expressed concern that its State would 

be unable to implement a new process 

that includes creating a technical system 

to track provider performance and other 

new WIOA requirements, as well as 

have public comment and implement by 

July 22, 2015, the date by which initial 

eligibility procedures are required to be 

implemented. Another commenter 

stated that even though local areas may 

set more stringent standards for 

performance for eligible training 

providers, because providers can apply 

to any Local WDB for approval to the 

statewide list, these more stringent 

standards are ineffective in ensuring 

provider quality. This commenter 

suggested that local areas should have 

full control over their Eligible Training 

Provider List, provided minimum 

standards are met. 

Department Response: The 

Department is clarifying in this 

preamble that States and local areas are 

the only entities authorized to 

determine new provider or program 

eligibility under WIOA. WIOA sec. 

122(a) requires the Governor to 

determine eligibility procedures. State 

and Local WDBs do not have authority 

under WIOA to waive initial or 

continued eligibility requirements. The 

Department is therefore not including 

such waiver authority in this subpart. 

However, the eligibility requirements in 

the regulations are quite flexible 

because although they require the 

Governor to take certain factors into 

account, they do not proscribe what 

weight is given to any one factor. 

Additionally, Local WDBs may use 

contractual arrangements under 

§§ 680.320 and 680.530 to ensure that 

training is available. Automatic 

approval of higher education 

institutions or NFJP grantees as eligible 

training providers is not permitted 

under WIOA; these institutions and 

grantees will need to apply for initial 

eligibility in the same manner as all 

other training providers. In response to 

comments about duplicative burden, the 

Department acknowledges that there 

may be some duplication of 

requirements. However, the Department 

encourages these institutions to examine 

where there is overlap in the reporting 

requirements to minimize duplicative 

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work in complying with all of the 

institution’s reporting requirements. 

Therefore, no change was made in 

response to this comment. 

The Department has made no change 

to the timeline for implementing initial 

eligibility procedures in order for new 

training providers and programs to be 

included on the State Eligible Training 

Provider and Programs List. The States 

must implement initial eligibility 

procedures within 1 year of WIOA’s 

enactment as is required under WIOA 

sec. 122(c). 

The Department corrected the 

reference to paragraph (d) in 

§ 680.450(c) to paragraph (e). 

Comments: Several commenters 

provided input on the specific 

performance information that the 

Governor of each State is required to 

request from potential training 

providers under § 680.450(e). 

Department Response: The 

Department considered commenters’ 

suggestions on what kinds of 

information could be considered a 

‘‘factor related to the indicators of 

performance’’ to meet § 680.450(e)’s 

requirement. However, with regard to 

the comments on the performance 

information requirements in 

§ 680.450(e), no substantive changes 

were made to the regulatory text in 

response to these comments. In part, 

because the factors related to 

performance that a Governor must take 

into account to establish initial 

eligibility are set forth in WIOA sec. 

122, the regulations are consistent with 

the statutory requirements. Moreover, 

WIOA sec. 122 gives the Governor the 

discretion to determine the procedures 

for initial eligibility and establish 

minimum performance standards and 

the Department wants to allow the 

Governor the flexibility to establish 

procedures that are most relevant and 

applicable to the Governor’s State. 

Section 680.450(e)(2) requires the 

initial eligibility procedures to take into 

account ‘‘a factor related to the 

indicators of performance . . . .’’ This 

does not mandate a specific factor and 

it is at the Governor’s discretion to 

determine what information to require 

for the applicant to meet this 

requirement. The Department has listed 

below the comments and responses 

received on the requirement at 

§ 680.450(e)(2). 

Finally, the Department notes that it 

revised § 680.450(e)(4) to clarify its 

implementation of WIOA sec. 

122(b)(4)(E)(iii). This provision of WIOA 

permits the Governor to require other 

factors that indicate high-quality 

training services, including the factor 

described at WIOA sec. 122(b)(1)(H). 

WIOA sec. 122(b)(1)(H) requires an 

analysis of the quality of a program of 

training services, including programs of 

training services that lead to recognized 

postsecondary credentials. Therefore, 

the Department has made a minor 

revision to § 680.450(e)(4) to reflect that 

the Governor’s criteria may require 

applicants to provide information 

demonstrating the program is a high 

quality program, which can include 

information related to training services 

that lead to recognized postsecondary 

credentials. 

Comments: A few commenters 

described the burden associated with 

the proposed performance information 

requirements and cautioned that they 

may limit the options available to 

training customers. Similarly, one 

commenter stated that the performance 

information requirements under both 

§§ 680.450 and 680.460 were too 

burdensome for small training 

providers, who are generally not 

equipped for tracking employment 

outcomes. 

Department Response: The 

Department considered commenters’ 

concerns about the burden of providing 

performance information under 

§§ 680.450 and 680.460. However, the 

information required for submission is 

set out in WIOA sec. 122 and the 

sections implement WIOA’s 

requirements for initial and continued 

ETP eligibility. The Department 

encourages States and providers to 

consider the benefit to the programs of 

training of having robust performance 

outcome data that can be used to 

evaluate and advertise the effectiveness 

of their programs of training. No 

changes were made to the regulatory 

text in response to these comments. 

Comments: A commenter cautioned 

against requiring past performance 

information for new training providers 

that do not have past performance 

information to evaluate. Another 

commenter recommended requiring 

applicant training providers to present 

average earning rates after exit rather 

than median earnings. 

Department Response: The 

Department considered the commenter’s 

recommendation, but determined that 

the Governor’s flexibility to determine 

what factors related to the performance 

indicators will be selected as part of the 

initial eligibility criteria is sufficient. 

This includes determining what factor 

related to performance may be used for 

new training providers. The Department 

notes that while the Governor has 

discretion to determine the factor 

related to performance that may be used 

for initial eligibility, once eligibility is 

established, WIOA sec. 

116(b)(2)(A)(i)(III) requires approved 

ETP programs to report on median 

earnings. However, this does not 

prohibit the Governor from also 

requiring ETP programs to report on 

average earnings. No changes were 

made to the regulatory text in response 

to these comments. 

Comments: One commenter requested 

changes in training provider eligibility 

criteria for providers that are different 

from WIA occupational skill providers 

(e.g., pre-apprenticeships, 

entrepreneurial training, customized 

and incumbent worker training, and 

youth services). 

Department Response: As explained 

above, the provider eligibility criteria 

are left to the Governor’s discretion. No 

changes have been made to the 

regulatory text in response to this 

comment. However, the Department 

notes that it is within the Governor’s 

discretion to have specific eligibility 

criteria for providers that provide 

training that is distinct from traditional 

WIA-occupational skill providers, as 

long as the criteria also comply with 

§§ 680.450 and 680.460 and are 

included in the State’s policies. Section 

680.530 and its preamble provide 

additional information on how States 

may provide customized and incumbent 

worker training. 

Comments: One commenter asked 

whether each State is required to specify 

which elements from § 680.450(e)(2) 

training providers need to provide 

information on or whether the training 

provider can submit information on any 

of the factors listed. 

Department Response: The State 

procedure must specify which elements 

from § 680.450(e)(2) training providers 

need to provide information on and 

what verifiable information will satisfy 

this requirement. 

Comments: Another commenter 

sought clarification of the definition of 

‘‘partnership with a business’’ as used 

in NPRM § 680.450(e)(3), and asked how 

this would impact the eligibility of a 

training provider. 

Department Response: The 

Department is clarifying that 

information about whether a provider is 

‘‘in a partnership with a business’’ 

under § 680.450(e)(3) could include 

information about the quality and 

quantity of employer partnerships. 

However, the Department did not 

include this example, or others in the 

regulation text, as States may have other 

methods for determining whether the 

provider is in a partnership with a 

business and including one example 

may be seen as limiting State options. 

The impact of this factor on the 

eligibility of the training provider is 

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determined by the Governor’s initial 

eligibility procedure. 

Comments: One commenter requested 

flexibility in initial eligibility 

requirements for training providers in 

rural areas and those serving the hardest 

to serve populations. 

Department Response: The Governor 

may require additional information in 

order to ensure that the needs of the 

State are being met, including in rural 

areas and in serving hard-to-serve 

populations. The Governor’s procedure 

determines how these additional factors 

may impact initial eligibility. In 

addition, the Local WDB must work 

with the State to ensure there are 

sufficient numbers and types of 

providers of training services, including 

eligible training providers with 

expertise in assisting individuals with 

disabilities and eligible training 

providers with expertise in assisting 

adults in need of adult education and 

literacy activities described under 

WIOA sec. 107(d)(10)(E), serving the 

local area. No changes were made to the 

regulatory text in response to this 

comment. 

Comments: Another commenter urged 

the Department to require new 

applicants to be subject to the same antidiscrimination provisions as registered 

apprenticeship programs under 29 CFR 

part 30. This commenter suggested that 

new applicants provide the following: A 

plan for recruitment to ensure 

underrepresented populations have 

access to nontraditional opportunities; 

capacity to deliver equitable training 

practices and classroom and OJT 

training environments that support 

underrepresented populations’ success 

and retention in the training program; 

and support services, case management, 

mentorship, and other strategies 

necessary for underrepresented 

populations’ success in training and 

employment. 

Department Response: Title 29 CFR 

part 30 governs the policies and 

procedures to promote equality of 

opportunity in apprenticeship programs 

registered with the U.S. Department of 

Labor and State apprenticeship 

programs registered with recognized 

State apprenticeship agencies. 

Therefore, the Department will not 

apply 29 CFR part 30 to all eligible 

training providers. However, for all 

other programs, the Department notes 

that the Governor has discretion to 

consider a wide range of factors when 

determining initial and continuing 

eligibility under §§ 680.450 and 

680.460. Therefore, if the Governor 

wishes to consider factors such as an 

eligible training provider’s treatment of 

underrepresented populations, this is 

within the Governor’s discretion. The 

Department has determined that 

applying criteria developed for one type 

of program of training to all types of 

training programs may unnecessarily 

limit the types of programs of training 

available to participants in WIOA 

programs. No changes were made to the 

regulatory text in response to this 

comment. 

Comments: The Department also 

received responses to the specific 

solicitation in the NPRM requesting 

comments about the types of verifiable 

program-specific information the 

Governor must require from providers 

seeking initial eligibility as ETPs under 

§ 680.450(e). 

Department Response: The 

Department has carefully analyzed the 

comments regarding verifiable program 

specific performance information, 

including the suggestions of specific 

factors and methods of providing 

verifiable information in the least costly 

manner. The Department has 

determined that no substantive changes 

to regulatory text are necessary in 

response to these comments. Instead, 

the Department is clarifying that the 

Governor and the States have discretion 

when developing their initial eligibility 

criteria and requirements to decide what 

constitutes verifiable program specific 

performance information and the factors 

related to indicators of performance. 

This flexibility will enable States to 

meet the individual needs of each State 

and allow each State to establish 

requirements that the ETPs and the 

State are able to manage given their 

current levels of technology. Examples 

of potential criteria include average 

earnings rates, average cost of training, 

and criteria based on information 

available in UI wage records. However, 

these examples are not intended to be 

an exhaustive list and States are not 

limited to the Department’s suggestions. 

In meeting the requirement that the 

factor be ‘‘related’’ to the WIOA sec. 116 

reporting requirements in 

§ 680.450(e)(2), this factor need not be 

limited to WIOA participants, even 

though under sec. 116 the primary 

indicators of performance require 

reporting on WIOA participants. This is 

because programs of training applying 

for initial eligibility will be applying to 

serve WIOA participants for the first 

time and will not have results available 

for WIOA participants. 

Comments: One commenter stated 

that the easiest-to-verify information 

that providers could furnish would be 

customer-level data that States can 

match to unemployment insurance (UI) 

wage records to determine employment 

outcomes. The commenter stated that 

providers would be expected to submit 

that information if they are placed on 

the ETPL because this information 

would be required for the ETP annual 

performance report. The commenter 

asserted that requiring information for 

an eligibility determination that 

matches information required for the 

ETP annual performance report would 

reduce costs for both providers and 

States and increase data integrity. A few 

commenters stated that the most valid, 

reliable, and efficient way to measure 

training providers’ performance is for 

the State to first collect a small set of 

seed records from each provider for 

each student (e.g., social security 

number, program of study, start date, 

end date, credential, and demographic 

characteristics) and then link the 

records with UI wage records and other 

administrative records used to 

determine outcomes. 

Department Response: The 

Department notes that these are 

potential options for States and the 

Governor may choose to utilize these 

approaches. However, the Department 

has chosen not to require States to 

implement these approaches for initial 

eligibility to give States the flexibility to 

determine the most effective method for 

obtaining verifiable program specific 

performance information for 

determining initial eligibility. As 

explained earlier, the Department 

recognizes that there is overlap between 

what is required for eligibility and the 

WIOA sec. 116(d)(4) ETP annual 

performance report. The Department 

strongly encourages States and ETPs to 

work together to find efficiencies in how 

information can be reported in the 

performance report and for eligibility 

purposes. No changes were made to the 

regulatory text in response to these 

comments. 

Comments: Another commenter stated 

that the regulations should encourage 

ETPs to focus their follow-up efforts on 

participants who do not appear in the 

UI wage records, relieving data 

collection burdens on the individual 

participants and the non-public training 

providers. 

Department Response: The 

Department recognizes that social 

security numbers will not be available 

for each participant and has determined 

that supplemental follow-up methods 

will be allowable. The use of 

supplemental information in 

performance reporting is further 

discussed in 20 CFR part 677 (see Joint 

WIOA Final Rule) and the associated 

ICR. 

Comments: Another commenter 

requested that the system used to gather 

ETP data should be accurate by nature 

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so that Local WDBs are not required to 

monitor or ensure accuracy of 

information. 

Department Response: The Governor 

or the Governor’s designated SWA (or 

appropriate State entity) is responsible 

for ensuring that programs meet 

eligibility criteria and performance 

levels established by the State, 

including verifying the accuracy of the 

information. The Local WDB must carry 

out the procedures assigned to the Local 

WDB by the State, including monitoring 

and ensuring accuracy of the 

information. No changes were made to 

the regulatory text in response to this 

comment. 

Comments: One commenter 

recommended specific performance 

information to be collected, including 

average cost of training to include 

tuition, supplies, and supportive service 

needs; loan default rates; employer 

partners; and the completion rates of all 

students rather than the exit rates. 

Department Response: The 

Departments have included in the 

subpart only the performance 

information required by WIOA secs. 122 

and 116. However, as described in 

§ 680.490(c), the Department notes that 

the Governor may require additional 

specific performance information that 

the Governor determines to be 

appropriate to determine or maintain 

eligibility. No changes were made to the 

regulatory text in response to this 

comment. 

Comments: One commenter stated 

that wages and retention should be 

verified using the employment base 

wage. 

Department Response: The 

Department is unclear what the 

commenter intends by ‘‘employment 

base wage.’’ However, the Department 

has chosen not to require States to 

implement these approaches for initial 

eligibility. States have the flexibility to 

determine the most efficient method for 

obtaining and verifying program specific 

performance information for 

determining initial eligibility. 

Comments: A few commenters 

suggested that States should be allowed 

to use supplemental/existing data 

because most schools are already 

required to report on programs to their 

primary funding sources, making the 

ETP reporting requirement a duplicative 

effort. These commenters asserted that 

the local area should determine if a 

training provider’s performance is 

acceptable and whether the training 

provider should continue to be listed on 

the ETPL. 

Department Response: The 

Department recognizes that some of the 

information ETPs are currently 

reporting might overlap with the 

information required for reporting for 

initial eligibility. The Department 

encourages States to examine closely 

WIOA reporting requirements and the 

other requirements ETPs are subject to, 

to find overlap and reporting 

efficiencies. Regarding the commenter’s 

suggestion that the local area determine 

if a training provider’s performance is 

acceptable, the Department notes that 

WIOA sec. 122(b)(3) and § 680.430(e) 

provide that Local WDBs can establish 

criteria and information requirements, 

in addition to the Governor’s, and 

require higher levels of performance 

than the Governor for purposes of 

determining the continuing eligibility of 

providers to receive funds to provide 

training services in the Local WDB’s 

area. No changes to the regulatory text 

have been made in response to this 

comment. 

Comments: Some commenters 

recommended that the Department 

allow States to determine the definition 

of verifiable information. Another 

commenter requested clarification 

regarding the ‘‘program specific’’ 

indicators required by the Department 

and recommended that States be 

allowed the flexibility to define what 

those mandated indicators will be 

through their ETP State policy. 

Department Response: As explained 

above, this subpart leaves the Governor 

the flexibility to determine what 

constitutes ‘‘verifiable program-specific 

information.’’ No changes were made to 

the regulatory text in response to this 

comment. 

Comments: One commenter suggested 

that providers report data on (and States 

determine eligibility for) all similar 

degree programs as one. For example, 

all bachelor’s degree programs at that 

provider are reporting as one bachelor’s 

degree program, rather than breaking 

them out into bachelor’s in education, 

bachelor’s in biology, bachelor’s in 

math, etc. This commenter also 

suggested that providers report data on 

(and States determine eligibility for) the 

main program of study, rather than all 

of the individual courses that make up 

the program. Further, this commenter 

recommended that providers do not 

need to report on (and States determine 

eligibility for) courses that are prevocational intensive service or skills 

upgrade courses, or courses that cross 

industry sectors and occupations or 

which are less than 3 days in duration. 

Department Response: In response to 

the recommendation that eligibility be 

determined generally at the degree level, 

the Department is clarifying that 

eligibility is determined at the level of 

‘‘program of training’’ as described in 

§ 680.420, rather than at the class, 

course or general degree level. A 

program of training may involve one 

course or a course of fewer than 3 days 

in duration, if the course leads to one of 

the outcomes as described in the 

definition of a program of training 

services at § 680.420. In order for such 

a program of training to receive WIOA 

title I adult, dislocated worker, or youth 

training funds through an ITA, the 

program must be determined eligible 

and is therefore subject to reporting 

requirements. Registered apprenticeship 

programs are an exception to the 

eligibility requirements. Work-based 

training options do not receive training 

funds through an ITA, and are described 

at § 680.530. No changes were made to 

the regulatory text in response to this 

comment. 

Comments: One commenter 

recommended that States be given an 

additional 2 years to implement the 

performance information requirements 

in §§ 680.450(e) and 680.460(f). After 

stating that the Department does not 

anticipate complete performance data 

derived from wages until PY 2018, a few 

commenters suggested allowing 

eligibility to be based on completion 

rates and credentials until complete 

employment and wage performance data 

can be collected. 

Department Response: The 

Department has determined that a 

regulation change is not necessary given 

the flexibility in the regulation at 

§§ 680.460(f)(1) and 680.450(e)(2). 

Under § 680.460(f)(1), the State may use 

alternate factors for performance until 

data from the conclusion of each 

performance indicator’s first data cycle 

is available. Under § 680.450(e)(2), the 

Governor’s procedure must require 

applicant providers to provide 

information addressing a factor related 

to performance indicators, meaning that 

the Governor’s initial eligibility 

procedure may not require the provision 

of the results for each of the indicators 

of performance. The required factors for 

initial and continued eligibility allow 

the Governor’s procedure to determine 

whether to set minimum performance 

standards and how much emphasis to 

put on any one factor that is taken into 

account. 

Although the Department determined 

no change to the regulation was 

necessary in response to those 

comments, the Department has made a 

revision to § 680.450(f) by inserting the 

word ‘‘performance’’ between 

‘‘minimum standards’’ to clarify that the 

minimum standards a Governor may set 

refer to minimum performance 

standards. Additionally, in response to 

commenters who requested that initial 

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eligibility last for longer than a year 

because more time is needed to generate 

enough exiters to provide a meaningful 

outcome measurement given the data 

lag for performance indicators, the 

Department is clarifying that 

§ 680.460(f)(1)(v) allows the Governor to 

take into account alternate factors 

related to the performance indicators 

described in § 680.460(f)(1) until 

performance information is available. 

Similarly, for initial eligibility, the 

Governor may use a factor related to 

performance in determining eligibility. 

Thus, the Governor’s ability to establish 

continued eligibility procedures and to 

take other factors into account enable 

the State to build in consideration of the 

limits of initially eligible training 

providers to supply performance 

information after only 1 year. The 

Department notes that it also plans to 

launch an intensive technical assistance 

effort. 

Comments: A commenter requested 

that initial eligibility under § 680.450(g) 

last longer than 1 year because more 

time is needed to generate enough 

exiters to provide a meaningful outcome 

measurement given the data lag for 

performance indicators, such as 

earnings in the fourth quarter after 

program exit. 

Department Response: The 

Department has determined that initial 

eligibility will be maintained at 1 year. 

WIOA sec. 122(b)(4)(B) provides that 

initial eligibility is ‘‘for only 1 fiscal 

year.’’ However, because program 

eligibility is not aligned with a fiscal 

year, the Department has removed the 

word ‘‘fiscal’’ from paragraph (g) in this 

section. Since initial eligibility may be 

determined at any time during a 

calendar year or program year, requiring 

initial eligibility to be for 1 year, rather 

than 1 fiscal year enables the State to 

establish a 12-month initial eligibility 

period for each program. 

Comments: One commenter 

recommended that the Department 

launch an intensive technical assistance 

effort for States to develop the IT 

infrastructure needed to meet these 

requirements. Another commenter 

requested that the regulation allow 

States and localities to waive the 

reporting requirements for libraries 

when developing lists of ETPs in the 

first year, on the grounds that libraries 

would be prevented from providing 

training with WIOA funding without 

such a waiver. A few commenters stated 

that reductions in overall funding and 

limited funding for the Governor’s setaside will make performance reporting 

requirements, including the need to 

modify data reporting systems, difficult. 

As a solution to this concern, 

commenters recommended that the full 

Governor’s set-aside be reinstated. One 

commenter encouraged the Department 

to pay particular attention to the impact 

that the requirements would have upon 

students that have expressed a desire to 

reengage back into the educational 

system and obtain their accredited high 

school diploma. The commenter made 

several specific recommendations about 

programs that would be helpful for this 

particular population, including making 

State WIOA program eligibility to be 

dictated by regional accreditation. 

Department Response: The 

Department has already deployed 

technical assistance for ETP 

requirements, including webinars and a 

Quick Start Action Planner and plans to 

engage in a technical assistance effort to 

assist with ensuring adequate 

information technology infrastructure to 

implement the new WIOA 

requirements. 

The Department has chosen not to 

regulate waiver policy in the Final Rule. 

The Department does not have authority 

under WIOA to provide States and local 

areas the ability to grant waivers. 

Therefore, the Department has not 

included such waiver provisions in the 

Final Rule for libraries. However, the 

Department notes that small CBOs, such 

as libraries, can provide programs of 

training services under contracts with 

local areas as described at §§ 680.530 

and 680.320. Programs of training 

services provided under such contracts 

are not eligible training providers and 

are not included on the State ETPL. 

Thus, they are not required to comply 

with the requirements to be on and stay 

on the list. The Department additionally 

notes that because CBOs providing 

training services through a contract are 

not on the State ETPL, they are also not 

required to submit the WIOA sec. 

116(d)(4) ETP annual performance 

report. 

The set-aside amount is determined 

by Congress as part of the annual 

appropriations process and is therefore 

outside the scope of this regulation. 

The Governor’s procedure for initial 

eligibility may require other information 

in order to demonstrate high quality 

training services and such information 

may include regional accreditation and 

the ability to serve students who wish 

to reengage the educational system. As 

described under § 680.420, a program of 

training services may lead to a 

secondary diploma or its equivalent, as 

long as this is consistent with § 680.350. 

No changes to the regulatory text were 

made in response to this comment. 

However, the Department has made a 

change to the regulatory text at 

§ 680.450(b) to align with changes made 

to § 680.470, providing that 

apprenticeship programs registered 

under the National Apprenticeship Act 

are exempt from initial eligibility 

procedures and must be included and 

maintained on the State ETPL unless the 

program is removed from the list for the 

reasons in § 680.470. This change was 

made to conform with changes made to 

§ 680.470, which are discussed in the 

preamble corresponding to that section. 

Although this is discussed more fully in 

the preamble to 20 CFR 677.230 (see 

Joint WIOA Final Rule), the Department 

notes that registered apprenticeship 

programs are not required to submit the 

WIOA sec. 116(d)(4) ETP annual 

performance report. Outcomes for 

WIOA participants in WIOA-funded 

registered apprenticeship programs 

must still be included in the State’s 

annual performance report under WIOA 

sec. 116(d)(2). The Department also 

made a non-substantive change to this 

provision by removing the word 

‘‘corresponding’’ from the phrase 

‘‘corresponding program’’ as the word 

‘‘corresponding’’ did not provide 

needed clarification and therefore was 

unnecessary. 

Section 680.460 What is the 

application procedure for continued 

eligibility? 

Section 680.460 sets out the 

requirements for the application 

procedure for continued eligibility. The 

Department has made non-substantive 

edits to this section for consistency with 

how the Department uses terms 

throughout the regulation. The 

Department has also made substantive 

revisions to paragraphs (c), (f)(1) and 

(10), and (j). The Department made edits 

to (i) to clarify the requirements for 

biennial review of eligibility 

information. These changes are 

discussed in further detail below. 

Comments: Several commenters 

supported requiring public comment 

during the development of continued 

ETP eligibility procedures as well as 

allowing the Governor discretion to set 

the timetable for consultation and 

public comment. One commenter 

recommended that the regulations be 

revised to provide assurance that the 

biennial review is transparent and that 

it allows for adequate input from 

employers, as well as to provide 

guidance on specific ways in which 

Governors may hold providers 

accountable for meeting the needs of 

local employers. Another commenter 

suggested that the Department provide 

more structure for the process of 

including education programs on the 

ETPL and include specific examples for 

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gauging program quality by demanding 

standards of effective practice. 

Department Response: The 

Department has determined that no 

changes to the regulatory text are 

necessary to address the concerns raised 

by commenters as the section already 

achieves the commenters’ suggestions. 

The Governor’s procedure for biennial 

review may take into consideration 

factors to ensure that the State will meet 

the needs of local employers. The 

Governor establishes the procedure after 

taking into consideration 

recommendations from Local WDBs and 

training providers and providing an 

opportunity for comment from 

interested members of the public, 

including representatives of business 

and labor organizations as required by 

§ 680.460(b)(1) through (3). In addition, 

States must describe the eligibility 

procedures in their State Plans, which 

are subject to public comment 

requirements that include allowing for 

input from key stakeholders such as 

employers. This is further discussed in 

20 CFR part 676 (see Joint WIOA Final 

Rule) and the WIOA State Plan ICR. 

Therefore, commenters’ concerns about 

public comment during the 

development of the policies are already 

addressed. 

In response to commenters’ concerns 

about the Governor setting up a 

timetable for consultation with the 

public, the Department notes that 

§ 680.460(b)(3) requires the Governor to 

set up a time period for soliciting and 

considering recommendations from 

Local WDBs and providers and giving 

the public an opportunity for comment. 

However, this section of the regulation 

does not prescribe a specific time 

period. Therefore, the Governor has 

discretion to set up a timetable for 

considering recommendations and 

public comment. Per § 680.460(f)(4), the 

Governor must take into account the 

degree to which programs of training 

relate to in-demand industry sectors and 

occupations in the State. Further, as 

described in § 680.460(f)(11), the 

Governor may take into account other 

factors such as ensuring that one-stop 

centers are meeting the needs of local 

employers and participants. It is unclear 

what additional structure the 

commenter is recommending in order to 

gauge program quality by demanding 

standards of effective practice. WIOA 

performance accountability 

requirements, as addressed in the ETP 

performance reports in 20 CFR 677.230 

(see Joint WIOA Final Rule), are highly 

structured. Through technical 

assistance, States will have 

opportunities to share effective practices 

to gauge program quality. 

The Department modified proposed 

§ 680.460(c). In the NPRM, this 

paragraph required programs registered 

under the National Apprenticeship Act 

(NAA) to be included and maintained 

on the list for as long as the program 

was registered and required the 

Governor’s eligibility procedures to 

include a mechanism for registered 

apprenticeship programs to indicate 

interest in being on the list as described 

in § 680.470. The Department 

reorganized this paragraph for clarity, 

moving the sentence that procedures for 

including registered apprenticeship 

programs on the list are found in 

§ 680.470 to the beginning of the 

paragraph, instead of the end of the 

paragraph, and made a substantive 

revision for consistency with § 680.470. 

This section now provides that 

programs registered under the NAA are 

automatically eligible to be on the 

State’s list and must remain on the 

State’s list unless they are removed from 

the list for the reasons set forth in 

§ 680.470. This is a conforming edit to 

changes made in § 680.470 and more 

can be read about that change below. 

The Department also made a nonsubstantive edit to this section removing 

the word ‘‘corresponding’’ as it was 

unnecessary. 

Comments: Many commenters 

responded to our request for comment 

under proposed § 680.460(f)(1) on the 

alternate factors that may be used until 

performance data are available. The 

Department revised § 680.460(f), 

breaking the requirements into separate 

subsections for clarity and consistency 

with WIOA sec. 122(b)(1)(A)(i) and (ii). 

The flexibility for the Governor to use 

alternate factors until performance data 

are available is now located at 

§ 680.460(f)(1)(v). The regulation at 

§ 680.460(f)(1)(v) allows the Governor to 

use alternate factors for performance 

until performance information is 

available to establish continued 

eligibility. Several commenters 

suggested that alternate factors for 

performance be left to the Governor and 

Local WDBs to decide, while others 

offered a variety of specific alternate 

factors that the Governor could take into 

account. These suggestions included: 

WIA criteria; use of other information 

already supplied for State and Federal 

accountability measures, such as Carl D. 

Perkins Act performance indicators; 

three letters from local employers; 

completion rates; credentials; gainful 

employment measure; and graduation 

rates. 

Department Response: The 

Department acknowledges that the 

suggestions provided by commenters 

offer appropriate options for the 

Governor’s procedure, but has chosen 

not to include these in the regulation 

text to give Governors flexibility in 

choosing what performance information 

to use. In this way, the Governor’s 

procedure can be tailored to the best 

performance data available among 

applicant training providers in that 

State. 

Comments: A few commenters 

recommended a separate, lower set of 

performance standards for training 

providers who serve hard to serve 

participants, such as tribal colleges and 

programs specifically designed to 

provide combined workplace language 

and workplace skills to new Americans 

needing English literacy instructions. A 

few commenters recommended allowing 

States and local areas to grant waivers 

to CBOs for the reporting of data to 

ensure that these entities have the 

capacity to qualify as ETPs. However, a 

few other commenters stated that CBOs, 

including those serving hard to serve 

participants, must be held to the same 

standards as any other provider on the 

list. 

Department Response: The regulatory 

language authorizes the Governor to 

take into account such factors as 

meeting the needs of hard-to-serve 

participants and programs specifically 

designed to provide combined 

workplace language and workplace 

skills to new Americans needing 

English literacy instruction when 

developing the State’s continued 

eligibility procedures. Section 

680.460(f)(9) specifically requires the 

Governor to take into account the ability 

of providers to provide training services 

to individuals who are employed and 

individuals with barriers to 

employment. In addition, local areas 

may enter into contracts to provide 

training services under specific 

circumstances, including with CBOs. 

Because CBOs which are providing 

programs of training through contracts 

are not considered ETPs, they do not 

need to meet the initial and continuing 

eligibility requirements of this subpart. 

However, CBOs that are included in the 

State List of Eligible Training Providers 

and receive payment for the training 

services through ITAs, rather than 

contracts, are subject to the eligibility 

and reporting requirements of the State 

list. No changes to the regulatory text 

were made in response to these 

comments. 

Comments: Commenters addressed 

the performance information under 

§ 680.460(g) that the Governor must 

require for continued eligibility for the 

State list of ETPs. One commenter 

questioned whether 20 CFR 677.230, 

which requires reporting performance 

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information on all participants, is in 

conflict with § 680.460(g) which 

requires reporting on WIOA-participants 

only. 

Department Response: The 

Department does not consider these 

provisions as being in conflict as they 

are derived from different statutory 

provisions and serve different purposes 

under WIOA. The ETP annual 

performance report is required by WIOA 

sec. 116(d)(4) and explicitly requires 

information on the levels of 

performance for all individuals in a 

program of study. As explained above, 

more information about this 

requirement can be found in 20 CFR 

677.230 and its corresponding preamble 

(see Joint WIOA Final Rule). Separately, 

the requirements for a training provider 

to continue to be on the State List of 

Eligible Training Providers and 

programs are found in WIOA sec. 122, 

and sec. 122(b)(2)(A) explicitly 

identifies the performance information 

the ETP must provide for this purpose. 

Thus, the WIOA sec. 116(d)(4) annual 

report is for reporting on performance, 

while the requirements in § 680.460 are 

for staying on the State List of Eligible 

Providers and Programs. In order to 

continue to be eligible, the ETP must 

provide information on the performance 

accountability measures in sec. 116 of 

WIOA for ‘‘participants’’ whose training 

is funded under title I, subtitle B. 

However, the Department notes that 

both the Governor, under WIOA sec. 

122(b)(1)(J), and the Local WDB, under 

WIOA sec. 122(b)(3), have authority to 

require additional data from ETPs, 

which might include data on all 

students. In addition, WIOA sec. 

122(b)(1)(A)(ii) explicitly permits the 

Governor to require reporting on all 

individuals enrolled in the programs in 

which WIOA-funded participants 

studied. 

Comments: Several commenters cited 

the potential problem of a small number 

of participants (‘‘small in size’’) when 

providing WIOA-participant-only data. 

These commenters stated that the 

resulting data would be too small to 

yield useful outcome information and 

would risk revealing personally 

identifiable information (PII). Other 

commenters suggested that § 680.460(g) 

specifically include instructions similar 

to those found in WIOA sec. 

116(d)(6)(C), which states that the 

disaggregation of data for the State 

performance reports is not required 

when the number of participants is too 

small to yield statistically reliable 

information or when results would 

reveal PII about an individual 

participant. One commenter said that an 

alternative approach is needed for using 

performance results for management, 

provider selection, and public/

consumer information, but did not 

specify what the alternative approach 

would be. Some commenters suggested 

that the State List require reporting on 

all students in order to yield a larger 

data set. One commenter urged the 

Department to require biannual 

reporting of all completers and 

placement numbers for the previous 

year utilizing a standardized template to 

collect data to ensure an educated 

training program selection process. 

Several commenters recommended that 

the materials to be considered when 

determining ETP continued eligibility 

include information reported to State 

agencies on Federal and State training 

programs other than WIOA title I, 

subtitle B, and asked for submission of 

performance results for all students and 

not just those who received training 

subsidized by WIOA title I adult or 

dislocated worker funds. 

However, several commenters 

supported a requirement that 

performance reports include only 

WIOA-funded students. One commenter 

cautioned that the cost for reporting all 

students and not just WIOA-funded 

students by program could result in 

training providers not accepting WIOAfunded students to avoid the reporting 

burden. One commenter stated that in 

order to avoid revealing data on any 

individual, it would normally not be 

required to disclose performance 

information on any program with a 

small number of participants and that 

performance data would be relatively 

meaningless if too few individuals are 

in the performance cohort. This 

commenter recommended that the 

regulations specifically recognize that 

this information shouldn’t be revealed 

for those programs with low participant 

numbers. 

Department Response: With respect to 

the privacy concerns that arise from the 

small numbers in participant data, the 

Department notes that the regulation 

already addresses this issue. Paragraph 

(e) of § 680.500 addresses privacy 

concerns for the dissemination of the 

ETPL by requiring that the State List 

and accompanying information be made 

available in a manner that does not 

reveal personally identifiable 

information about an individual 

participant and that, in developing the 

information to accompany the State List 

of Eligible Training Providers and 

Programs, disclosure of personally 

identifiable information from an 

education record must be carried out in 

accordance with the Family Educational 

Rights and Privacy Act, including the 

circumstances relating to prior written 

consent. Accordingly, additional 

regulatory text for § 680.460 is not 

needed. While the Governor must take 

into account all of the information listed 

in WIOA sec. 122(b)(1) in setting the 

criteria for eligibility on the State ETPL, 

the Department interprets WIOA sec. 

122(b)(1)(A)(ii) to provide discretion to 

the Governor to determine whether 

reporting on all students is an 

‘‘appropriate’’ measure of performance 

outcomes under that paragraph. The 

Department is not regulating State 

eligibility procedures to require 

reporting on all students in order to 

yield a larger data set; however, the 

Governor may choose to do so as part 

of the State’s eligibility procedures. 

With respect to the minimum size of 

a data set that would ensure participant 

confidentiality and the reliability of 

outcomes data, the Department has 

determined that States will maintain 

confidentiality and reliability of data by 

complying with relevant State law and 

with WIOA itself. WIOA sec. 122(d)(3) 

states that the State List and 

accompanying information must be 

made available to such participants and 

to members of the public through the 

one-stop delivery system in the State in 

a manner that does not reveal PII about 

an individual participant. WIOA sec. 

122 does not require that the 

performance information that 

accompanies the State List be 

statistically reliable in the same way 

that WIOA sec. 116(d)(6)(C) does for the 

annual performance reports. Therefore, 

the Department has not regulated this as 

a requirement. 

In response to commenters suggesting 

that the Department require biannual 

reporting of all completers and 

placement numbers for the previous 

year utilizing a standardized template, 

the Department has chosen not to 

require a template for the State List of 

Eligible Training Providers. While a 

standardized template is required for 

the reporting of information in the ETP 

Performance Reports, as described in 20 

CFR 677.230 (see Joint WIOA Final 

Rule), the Department has concluded 

that WIOA intends the development of 

the State List to be at the State’s 

discretion in order to meet the needs of 

individuals seeking training in that 

State. In addition, the flexibility to 

determine the format and presentation 

of the State List enables the State to 

accommodate additional information 

that the Governor may choose to require 

as part of the State’s eligibility 

procedures. 

In response to commenters that 

suggested that eligibility information 

include materials submitted to State 

agencies on Federal and State training 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56137 

programs other than programs within 

WIOA title I, subtitle B, this is already 

reflected in the factors that the 

Governor’s continued eligibility must 

take into account under § 680.460(f)(3). 

The Department again wishes to 

clarify that reporting on all participants 

is a requirement of the ETP performance 

reports described in 20 CFR 677.230. 

Suggestions that the ETP performance 

reports include WIOA-funded students 

only, and related comments citing 

potential concerns by training 

providers, are addressed in that section. 

Comments: Several commenters 

requested that the Department add 

waiver provisions to ease the transition 

to WIOA or to adjust reporting 

requirements for providers applying for 

continued eligibility for the ETPL. Other 

commenters disagreed with the 

proposed continued eligibility 

procedures for ETPs eligible under WIA 

and described them as a timeconsuming burden for State and Local 

WDBs. 

Department Response: Because of 

WIOA’s emphasis on ensuring the 

provision of quality training, and the 

importance of using performance 

criteria to obtain such quality, the 

Department is not including waivers in 

the regulation. In transitioning to 

collection of WIOA data, § 680.460(f)(1) 

already provides sufficient flexibility by 

allowing the Governor to use alternate 

factors for performance until WIOA 

performance information is available for 

an ETP. No changes were made to the 

regulatory text in response to these 

comments. 

Comments: The Department received 

comments in response to the request for 

ideas on how to reduce the burden and 

avoid duplication of effort to meet 

reporting requirements under WIOA 

secs. 122 (provider eligibility) and 116 

(performance accountability). 

A few commenters responded to the 

requirement that the State criteria for 

continued eligibility take into account 

the timely and accurate submission of 

ETP performance reports. Several 

commenters commented on the ETP 

annual performance report requirements 

under WIOA sec. 116(d)(4). Comments 

related to this report are more fully 

addressed in the preamble to 20 CFR 

677.230 (see Joint WIOA Final Rule). A 

commenter cautioned that requiring 

training providers to submit 

appropriate, accurate, and timely 

information to the States to create the 

ETPL under § 680.460(f)(10) is an 

unnecessary burden because most case 

management systems already capture 

and validate this information as part of 

case management, and that collecting 

this information from training providers 

would compromise the accuracy, 

validity, and consistency of the 

information. This commenter 

recommended that States be granted 

flexibility to capture this information in 

the manner that best balances the 

validity of data and efficiency of 

progress, rather than strictly from 

training providers. Another commenter 

stated that the Governor and local WDBs 

should have the discretion to utilize 

alternative data sources in the interim to 

determine ETPs’ performance outcomes 

and that these data outcomes should not 

be prescribed by the Department 

because local case managers have realtime participant outcomes not subject to 

the lag time associated with DOL 

performance indicators. One commenter 

disagreed with the proposed WIOA 

continued eligibility requirements and 

recommended that the Department 

continue to use the WIA requirements. 

One commenter, referring to 

§ 680.460(l), questioned what qualifies 

as an ‘‘undue cost or burden’’ to remove 

a training provider from the 

performance requirement. 

Department Response: The 

information required under § 680.460 to 

maintain continued eligibility is 

separate from the ETP annual 

performance reports required under 20 

CFR 677.230 (see Joint WIOA Final 

Rule). Paragraph (e)(3) of 20 CFR 

677.230 addresses coordination and 

dissemination of the ETP performance 

reports and the State list of eligible 

training providers as described at 

§ 680.500. With respect to the 

commenter’s recommendation that the 

requirement to consider whether a 

provider timely and accurately submits 

information for the WIOA sec. 116(d)(4) 

ETP annual report to the State, the 

Department acknowledges that there 

will be some overlap in what is required 

for inclusion in the WIOA sec. 116(d)(4) 

report and the information the State 

already has in its case management files. 

The Department recommends that States 

work with training providers to 

minimize the reporting burden and 

utilize integrated systems as much as 

possible. No change in the regulation 

text was made in response to this 

comment. 

Additionally, the Department notes 

that the provision at § 680.460(l) does 

not allow a State to remove a training 

provider from this performance 

requirement based on undue cost or 

burden. Rather, this provision allows 

the Governor to establish procedures 

and timeframes for providing technical 

assistance to training providers that are 

failing to meet the criteria and 

information requirements due to undue 

cost or burden. The Governor’s 

procedures determine what constitutes 

undue cost or burden. The Department 

has chosen not to regulate what 

constitutes ‘‘undue cost or burden’’ in 

order to provide Governors the 

flexibility needed to best address the 

particular needs of the ETPs in each 

State. 

WIOA, not WIA, dictates the 

continued eligibility requirements and 

the Department declines to substitute 

WIA requirements for WIOA 

requirements. WIOA sets forth factors 

and the Governor’s continued eligibility 

procedures determine how these WIOArequired factors are taken into account. 

WIOA and the regulations further 

provide that the Governor’s criteria for 

eligibility and information requirements 

may include any appropriate additional 

information that the Governor may 

require. In addition, WIOA allows for 

WIA-eligible providers to remain 

eligible through December 31, 2015. 

Comments: One commenter requested 

clarification on the timeline for initial 

eligibility compared to the beginning of 

the biennial review and renewal period. 

Department Response: States have 

discretion in how they implement 

eligibility procedures and timelines for 

biennial review. Some States may find 

it efficient to review the entire State list 

every 2 years, while others may have a 

system for reviewing each provider on 

the second anniversary of when that 

provider established continued 

eligibility under WIOA. The timeline for 

how initially eligible training providers 

are deemed continued eligible training 

providers and thereby incorporated into 

the review system will vary from State 

to State. The Department made minor 

edits to § 680.460(i) for clarity regarding 

the requirement for biennial review of 

eligibility information by inserting the 

word biennial before the word 

‘‘review.’’ 

The Department modified § 680.460(j) 

on the biennial review to provide that, 

in addition to the verification of the 

registration status of registered 

apprenticeship programs, the biennial 

review also must include removal of any 

registered apprenticeship programs that 

are removed from the list under 

§ 680.470. This change was made to 

conform with changes to § 680.470. 

More can be read about the 

Department’s changes to proposed 

§ 680.470 below. 

Paragraph (f)(10) of § 680.460 

proposed to require the Governor, in 

establishing the eligibility criteria for 

continued eligibility, to take into 

account whether providers timely and 

accurately submitted the information 

needed for the WIOA sec. 116(d)(4) ETP 

report. The Department also revised this 

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56138 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

provision to require the Governor to 

take into account whether the provider 

timely and accurately submitted the 

information required for initial and 

continued eligibility. Additionally, the 

Department revised this provision to 

require that the Governor consider 

whether the provider submitted ‘‘all of 

the’’ information for the report and 

eligibility procedures, which means the 

Governor must take into account 

whether the information the provider 

submitted is complete. 

In response to comments and to 

ensure that providers comply with the 

requirement to timely and accurately 

submit all of this information, the 

Department added § 680.460(l) to 

require that the Governor’s procedure 

include what the Governor considers to 

be a substantial violation of 

§ 680.460(f)(10). And § 680.460(l)(2) 

requires those providers that 

substantially violate this requirement be 

removed from the State list of eligible 

training providers and programs 

consistent with § 680.480(b). 

These modifications were made for 

consistency with WIOA sec. 

122(f)(1)(B), which requires programs be 

removed from the State list of eligible 

programs and providers when a 

provider substantially violates any of 

the requirements of title I of WIOA. 

Given WIOA’s focus on performance 

accountability in WIOA sec. 116 and 

informed consumer choice in WIOA sec. 

122, the Department has concluded that 

failure to timely and accurately submit 

the information required for the WIOA 

sec. 116(d)(4) ETP report and the initial 

and continued eligibility constitutes a 

substantial violation of WIOA title I 

requirements. 

Because WIOA sec. 122(f)(1)(B) 

requires the determination of a 

substantial violation to be made by an 

individual or entity specified in the 

Governor’s procedures, § 680.460(l) 

gives the Governor the discretion to 

determine what constitutes a substantial 

violation of the requirement to timely 

and accurately submit all of the required 

information. Therefore, the Governor 

has the flexibility to take into account 

the specific circumstances in the State 

that affect a provider’s ability to submit 

the required information. Moreover, the 

Department notes that paragraph (l)(1) 

requires the Governor’s determination of 

what constitutes a substantial violation 

of the requirement to timely and 

accurately submit all of this information 

to take into account exceptional 

circumstances beyond the provider’s 

control, such as natural disasters, 

unexpected personnel transitions, and 

unexpected technology-related issues. 

The Department included this provision 

specifically to address instances in 

which, through no fault of its own, a 

provider may not be able to timely or 

accurately submit all of the information 

required. In those instances, the 

Governor may not determine that a 

substantial violation has occurred. 

Additionally, the Department notes that 

the list of the exceptional circumstances 

in this regulatory provision is not 

exhaustive and the Department 

encourages Governors to consider the 

particular needs of providers in the 

State in creating the policy and 

determining what constitutes 

exceptional circumstances beyond the 

provider’s control. 

The Department also has made a 

clarifying change to § 680.460(f)(10) 

adding the words ‘‘information required 

for completion of’’ between ‘‘submitted’’ 

and ‘‘eligible’’ to clarify that while the 

ETPs are required to provide accurate 

and timely information for purposes of 

completion of the ETP performance 

report required by WIOA sec. 116, an 

ETP will not have all of the information 

to complete that report. 

Finally, the Department removed 

paragraph (k) because the authority for 

the Local WDBs to require higher levels 

of performance for local programs is 

already referenced in § 680.430(e). 

Therefore, this provision was 

unnecessary. The Department 

renumbered what was previously 

proposed paragraph (l) to paragraph (k) 

to conform to this change. 

Section 680.470 What are the 

procedures for including and removing 

registered apprenticeship programs on a 

State list of eligible training providers 

and programs? 

Section 680.470 described the process 

for including and maintaining registered 

apprenticeship programs on the ETPL. 

The Department made non-substantive 

edits for consistency in how the 

Department uses terms throughout this 

section. The Department also made 

substantive changes to § 680.470(a) and 

(b), and added new paragraphs (c) and 

(f). The Department received comments 

regarding § 680.470(d), which is now 

renumbered as (e). 

Proposed § 680.470(a) provided that 

all registered apprenticeship programs 

would be automatically eligible to be 

included on a State Eligible Training 

Providers and Programs List and 

required the Governor to establish a 

mechanism by which registered 

apprenticeship programs may indicate 

whether they wish to be included on the 

State Eligible Training Providers and 

Programs List. The NPRM required 

registered apprenticeship programs to 

indicate interest to be included in the 

State Eligible Training Providers and 

Programs List. Due to concern that some 

registered apprenticeship programs may 

not wish to be on the State ETPL, 

proposed § 680.470(b) provided that 

registered apprenticeship programs will 

remain on the List until they are 

deregistered or have notified the State 

that they no longer wish to be included 

on the List. The proposed section was 

silent on whether a registered 

apprenticeship program could be 

subject to the provisions for removal 

from the ETPL under § 680.480, and 

§ 680.480 did not provide an express 

exclusion from those procedures for 

registered apprenticeship programs. 

Proposed § 680.470(d) encouraged 

Governors to consult with State and 

Local WDBs and other entities to 

establish voluntary reporting of 

performance information for registered 

apprenticeship programs, because 

WIOA sec. 122(a)(3) specifically 

exempts registered apprenticeship 

programs from the criteria and 

information requirements and Governorestablished procedures required for 

inclusion on the State ETPL, and 

therefore the NPRM did not require 

registered apprenticeship programs to 

provide performance information in 

order to be included on the ETPL. In 

addition, 20 CFR 677.230(b) of the Joint 

WIOA NPRM (regarding information 

required for the ETP performance 

report) exempted registered 

apprenticeship programs from reporting 

information for purposes of the ETP 

performance report required by WIOA 

sec. 116(d)(4) but specified that any 

such information submitted voluntarily 

to a State must be included by the State 

in the ETP annual performance report 

required by 20 CFR 677.230. A number 

of changes were made to this § 680.470 

in response to comments received and 

for purposes of clarity. 

Comments: Several commenters 

expressed support for automatic 

qualification of registered 

apprenticeship programs for the State 

ETPL. In addition, several commenters 

offered suggestions on how registered 

apprenticeship programs are added to 

and removed from a State List of 

Eligible Training Providers and 

Programs. One commenter urged the 

Department to create a uniform standard 

for all Governors to follow when 

developing a mechanism by which 

registered apprenticeship programs 

request inclusion on the List. The 

commenter warned that nationally 

registered apprenticeship programs that 

offer training in various States would 

need to assess each State’s process, 

which could prove overly burdensome 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56139 

if States have different mechanisms. 

Another commenter objected to placing 

the burden on registered apprenticeship 

training programs to ensure inclusion 

on the ETPL, in part because of the 

statutory mandate that registered 

apprenticeship programs be eligible to 

be included on the List. The commenter 

expressed concern that the added 

requirement to indicate interest would 

create confusion and cause delay in 

getting registered apprenticeship 

programs on the State List. A few 

commenters were concerned that States 

with a history of being unfriendly or 

hostile to unions or of having significant 

bureaucratic inertia may use the 

requirement as an excuse to disfavor 

registered apprenticeship programs. 

Another commenter recommended 

revising the regulations to create an optout framework rather than an opt-in 

framework, such that registered 

apprenticeship programs would be 

included on the ETPL unless the 

program took steps to be excluded. This 

commenter stated that an opt-out system 

would allow program sponsors that may 

not wish to be on the State List to 

remove themselves while avoiding illdesigned opt-in procedures that could 

preclude or delay, intentionally or 

accidentally, the sponsors of registered 

joint labor-management apprenticeship 

programs from appearing on the State 

ETPL. Other commenters supported the 

proposal to require registered 

apprenticeship programs to opt in. 

Some commenters suggested revising 

the regulation to clarify when registered 

apprenticeship programs may be 

removed from the State List of Eligible 

Training Providers and Programs and 

whether registered apprenticeship 

programs are exempt from the 

enforcement provisions of WIOA sec. 

122(f) that were set forth in proposed 

§ 680.480. One commenter asked how 

States should monitor registered 

apprenticeship programs for compliance 

and what the criteria are to qualify as a 

registered apprenticeship program. 

One commenter stated that proposed 

§ 680.480 was inconsistent with WIOA 

to the extent that it allows registered 

apprenticeship programs to be removed 

from the List for any reason other than 

deregistration because, in this 

commenter’s view, the requirement in 

WIOA sec. 122(a)(3) that registered 

apprenticeship programs shall be 

included and maintained on the State 

ETPL for so long as the program is 

registered precludes removal for any 

reason other than deregistration. 

According to the commenter, the 

standards for deregistration under the 

National Apprenticeship Act are 

sufficient to trigger removal from the 

ETPL where appropriate, and 

application of the enforcement 

provisions in WIOA sec. 122(f) is 

inappropriate and unnecessary. The 

commenter states that regulations 

implementing the National 

Apprenticeship Act already include 

clearly-defined, qualitative standards 

governing when such a program can be 

deregistered. The commenter suggested 

a change to the enforcement section of 

the ETP requirements at proposed 

§ 680.480 to affirm that registered 

apprenticeship programs are not subject 

to these enforcement provisions. The 

commenter suggested adding language 

to § 680.480(a) that states: ‘‘Except for a 

provider described in section 122(a)(3) 

of WIOA, a training provider may lose 

its eligibility pursuant to this section.’’ 

Department Response: The 

Department has made revisions to 

§ 680.470(a) to clarify the process for 

including registered apprenticeship 

programs on the State List of Eligible 

Training Providers and Programs. 

Through a mechanism established by 

the Governor, registered apprenticeship 

programs must be informed of their 

automatic eligibility and must be 

provided an opportunity to consent to 

their inclusion before being placed on 

the State Eligible Training Providers and 

Programs List. The Department chose 

this approach in order to ensure that the 

States include registered apprenticeship 

programs that are interested in 

accepting WIOA participants while at 

the same time ensuring that all 

registered apprenticeship programs are 

readily included with minimal burden. 

The Department chose to allow 

Governors to develop such a process, 

rather than create a uniform standard for 

all States, in keeping with the 

Governor’s discretion to implement 

procedures regarding the State List of 

Eligible Training Providers. This 

approach will also allow each Governor 

to establish a procedure that works best 

for the registered apprenticeship 

programs in that specific State. 

While the NPRM provided that the 

Governor’s mechanism ‘‘should’’ be 

developed based on guidance from the 

U.S. Department of Labor Office of 

Apprenticeship representative in the 

State or the assistance of the recognized 

State apprenticeship agency, 

§ 680.470(a) now requires the 

procedures to be developed based on 

such guidance. This guidance includes 

how to ensure that national registered 

apprenticeship programs are included 

as eligible training providers. Finally, 

this paragraph has been amended to add 

a requirement that the Governor develop 

a process to impose only minimum 

burden on registered apprenticeship 

programs. In response to commenters’ 

concerns that States with a history of 

being unfriendly or hostile to unions or 

of having significant bureaucratic inertia 

may use the requirement as an excuse 

to disfavor registered apprenticeship 

programs, these changes together with 

Departmental technical assistance and 

guidance ensures that States are 

inclusive of registered apprenticeship 

programs. 

These revisions will provide 

registered apprenticeship programs the 

opportunity to consent to being 

included on the State List of Eligible 

Training Providers and Programs while 

minimizing the affirmative burden 

placed on them to do so. The 

Department has concluded that this type 

of process will increase the 

participation rate of registered 

apprenticeship programs on the ETPL 

and further the aims of the registered 

apprenticeship program by having such 

programs included on the State List as 

soon and as easily as possible. The 

Department chose not to revise the 

regulation to require registered 

apprenticeship programs be included on 

this List unless they choose to opt out, 

in order to reduce the potential 

confusion for participants utilizing the 

List. Allowing for registered 

apprenticeship programs to consent 

allows States to ensure that only 

providers that are willing to accept 

WIOA participants are included on the 

State List of ETPs. 

The Department has also revised the 

regulation at § 680.470(b) and added a 

new § 680.470(c) to clarify that 

registered apprenticeship programs may 

be removed from the State List of 

Eligible Training Providers and 

Programs for violations of WIOA and 

that enforcement provisions may apply 

in such cases. The regulation now 

includes § 680.470(b)(3), which 

provides that a registered 

apprenticeship program may be 

removed from the State List of Eligible 

Training Providers and Programs for 

having intentionally supplied 

inaccurate information or substantially 

violated any provision of WIOA title I 

(e.g., civil rights or discrimination 

violations) or WIOA regulations. 

Section 680.470(c) provides that 

removal from the List for reasons under 

§ 680.470(b)(3) will result in a 

termination of eligibility for the ETPL 

for not less than 2 years and liability to 

repay all training funds received during 

the period of noncompliance, consistent 

with the requirements under § 680.480 

for all other ETPs. Section § 680.470(c) 

further provides that the Governor must 

specify in enforcement procedures 

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56140 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

established under § 680.480 the process 

for and the entity making the 

determination of ineligibility, and must 

provide an opportunity for hearing. The 

Department has concluded that the 

process used for all non-compliant 

eligible training providers must be 

applied to noncompliant registered 

apprenticeship programs, including 

removal from the State ETPL. This is 

needed to maintain the integrity and 

quality of the State ETPL. Application of 

the WIOA enforcement provisions to 

registered apprenticeship programs 

enables the State to take action to 

remove a registered apprenticeship 

program from the State List, if that 

program is in significant violation of 

WIOA. The Department wishes to avoid 

a scenario where a registered 

apprenticeship program that is in 

significant violation of WIOA could 

remain on the State List of ETPs until 

that program’s registered status is 

reviewed under the National 

Apprenticeship Act. 

In addition, the Department disagrees 

that WIOA requires the Department to 

exclude registered apprenticeship 

programs from the enforcement 

provisions of WIOA sec. 122(f). WIOA 

sec. 122 contains express statutory 

exceptions for registered apprenticeship 

programs from providing performance 

information as a requirement for 

inclusion and maintenance on the State 

ETPL but WIOA sec. 122 contains no 

similar exception for registered 

apprenticeship programs from the 

enforcement provisions. In fact, WIOA 

sec. 122(h) contains express exemptions 

from the enforcement provisions for 

several types of providers, but does not 

include registered apprenticeship 

programs on that list of exempted 

entities. The Department interprets this 

silence to mean that the regular WIOA 

enforcement provisions apply to 

registered apprenticeship programs. 

Accordingly, the Final Rule now allows 

the State to take action as appropriate, 

in addition to the enforcement and 

deregistration process under the 

National Apprenticeship Act. 

The Department has also revised the 

wording in the title of § 680.470 to 

reflect that this section addresses both 

inclusion and removal of registered 

apprenticeship programs from the State 

List of Eligible Training Providers and 

Programs. 

Comments: A few commenters 

encouraged mandatory reporting of 

performance information for all training 

programs, including registered 

apprenticeship programs, that seek to be 

included on a State’s List of Eligible 

Training Providers and Programs. 

Several commenters stated that 

registered apprenticeship programs 

should not be exempt from reporting 

ETP performance data, reasoning that 

this information is valuable in 

determining the effectiveness of 

registered apprenticeship programs in 

leading individuals to unsubsidized 

employment. One commenter supported 

exempting registered apprenticeship 

programs from the application 

procedures, information requirements, 

and performance reporting requirements 

of other training providers in light of the 

rigorous process for registering 

apprenticeship programs with the 

Department. Several commenters 

opposed any additional reporting for 

registered apprenticeship programs and 

requested that the regulation clearly 

describe applicable reporting 

requirements for registered 

apprenticeship programs. One 

commenter pointed out that States and 

local areas will have to determine and 

establish data collection for tracking for 

performance and asked whether the 

Department will define the measures for 

registered apprenticeship program 

performance. 

Department Response: The 

Department has decided to maintain the 

wording of proposed § 680.470(d) in the 

Final Rule, renumbered to § 680.470(e), 

because of the addition of new 

§ 680.470(c). The exception for 

registered apprenticeship programs from 

providing performance information to 

be included or maintained on the State 

ETPL is required by WIOA sec. 

122(a)(3). However, the Department is 

clarifying that voluntary reporting of 

performance information by registered 

apprenticeship programs is encouraged 

under the regulation. More information 

can be read on this in the preamble to 

20 CFR 677.230 (see Joint WIOA Final 

Rule). In addition, the Department is 

maintaining the exception for registered 

apprenticeship programs from providing 

performance information for the ETP 

performance report required under 20 

CFR 677.230 for the reasons discussed 

in the preamble to that section, but 

notes that outcomes for WIOA 

participants in WIOA-funded registered 

apprenticeship programs must still be 

included in the State’s annual 

performance report under WIOA sec. 

116(d)(2). 

Comments: A few commenters 

recommended that apprenticeship 

programs be required to demonstrate 

recruitment of underrepresented 

populations. One commenter suggested 

that a key qualification for 

apprenticeship programs’ integration 

into the use of ITAs be adherence to 

existing requirements under 29 CFR part 

30, which prohibits discrimination 

based on race, color, religion, national 

origin, or sex in apprenticeship 

programs. Another commenter 

suggested that the WIOA regulations 

should ensure that older workers are not 

discriminated against in apprenticeship 

programs. 

Department Response: The 

Department has concluded that putting 

additional requirements on registered 

apprenticeship programs in order to 

participate in the State List of ETPs or 

to use ITAs is outside the scope of this 

regulation because WIOA designates 

registered apprenticeship programs as 

eligible to serve as ETPs. In addition, 

registered apprenticeship programs are 

already required to comply with 20 CFR 

part 30 anti-discrimination provisions. 

Comments: Other commenters 

recommended that pre-apprenticeship 

programs be included on the State ETPL 

but with a performance measurement 

model that is more appropriate for the 

activity, for example, enrollment in an 

apprenticeship program or a community 

college program would both be positive 

outcomes. 

Department Response: The 

commenter did not specify whether it 

meant that pre-apprenticeship programs 

should be included under the exception 

for registered apprenticeship programs 

or included through the Governor’s 

eligibility procedures for eligible 

training providers. However, the 

Department acknowledges the need to 

clarify how pre-apprenticeship 

programs are treated for inclusion on 

the State ETPL. The Department has 

added a § 680.470(f) to clarify that 

because pre-apprenticeship programs 

are not registered under the National 

Apprenticeship Act and are not 

included in the exceptions for registered 

apprenticeship programs under WIOA 

sec. 122(a)(3), they must follow the 

Governor’s procedure for eligibility in 

this subpart. Pre-apprenticeship 

providers that wish to use WIOA funds 

to provide training services may go 

through the normal training provider 

program application procedure to be 

included on the State List of Eligible 

Training Providers and Programs. 

Therefore, such pre-apprenticeship 

programs would be subject to the 

eligibility and information 

reporting requirements of the State 

ETPs. 

Comments: One commenter expressed 

concern throughout the regulation that 

in defining how individual training 

accounts may be used, and defining the 

use of on-the-job training funds, 

preference is given to registered 

apprenticeship programs. The 

commenter urged the Department to 

revise the regulation to reflect the 

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importance of other OJT programs. The 

commenter emphasized the robust and 

valuable non-registered apprenticeship 

programs embraced by many 

manufacturers, and that training for indemand skills is available in multiple 

venues and that these programs should 

be considered based on the value of 

their training, rather than their 

registration status with a government 

entity. However, the commenter did not 

provide suggestions on how the 

Department could address the 

commenter’s concerns. 

Department Response: The 

Department has determined that no 

changes to the regulatory text are 

needed in response to this comment. 

Both the requirement that registered 

apprenticeship programs shall be 

included on the State ETPL and the 

exemption for registered apprenticeship 

programs from the requirement to 

submit performance information for 

inclusion on the State List are 

specifically limited to registered 

apprenticeship programs by WIOA sec. 

122(a)(3). Regarding the commenter 

suggesting a revision to the regulatory 

text to emphasize OJT, it is unclear what 

revisions to the regulation the 

commenter is suggesting. The 

Department has made revisions to 

§ 680.530 to clarify how exceptions to 

the eligible training provider List, which 

may provide training through contracts 

with the Local WDB, including OJT, are 

to be treated; more about this change 

can be read in the preamble to 

§ 680.530. The Department agrees with 

the commenter that non-registered 

apprenticeship programs and workbased training are important training 

options. 

Section 680.480 May an eligible 

training provider lose its eligibility? 

Section 680.480 describes the 

enforcement provisions available to 

apply to training providers who are not 

in compliance with WIOA and WIOA 

regulations. The Department made nonsubstantive edits for consistency in how 

the Department uses terms throughout 

this section. The Department also made 

substantive changes to paragraphs (b) 

and (c) which are further described 

below. 

The Department made a clarifying 

edit to § 680.480(a). The Department is 

deleting the phrase ‘‘deliver results’’ 

and replacing it with language to clarify 

that this provision requires that training 

programs meet the Governor’s eligibility 

requirements and that training providers 

provide accurate information. 

The Department also made a 

clarifying edit to § 680.480(e) to clarify 

that if a training program is removed 

from the eligible training providers in a 

local area because the training program 

failed to meet the local area’s higher 

performance standards, the training 

provider may appeal this eligibility 

denial under § 683.630(b). This 

provision no longer requires Local 

WDBs to create an appeals procedure for 

these purposes. 

Proposed § 680.480(b) provided that 

providers whose eligibility is terminated 

under this section are liable to repay all 

adult and dislocated worker funds 

received during the period of noncompliance. The Department revised 

this paragraph for consistency with 

§ 681.550 that permits youth funds 

to pay for training for out-of-school 

youth aged 16–24 and such funds are 

also subject to the requirement to 

repay funds received during noncompliance. 

Comments: The Department received 

only a handful of comments addressing 

proposed § 680.480. As discussed above, 

one commenter stated that proposed 

§ 680.480 was inconsistent with WIOA 

to the extent that it allows registered 

apprenticeship programs to be removed 

from the List for any reason other than 

deregistration. 

Department Response: The 

Department revised § 680.480(c) by 

adding language stating that registered 

apprenticeship programs may only be 

removed from the List for reasons set 

forth in § 680.470. The regulation 

includes registered apprenticeship 

programs within the enforcement 

provisions in WIOA sec. 122(f) for the 

reasons set forth in the preamble to 

§ 680.470. WIOA sec. 122 does not 

require registered apprenticeship 

programs to supply performance 

information in order to be determined 

eligible training providers, in light of 

the extensive vetting process that 

registered apprenticeship programs 

undergo in order to become registered. 

Therefore, the Department is not 

regulating that registered apprenticeship 

programs be removed from the State List 

of Eligible Training Providers for 

reasons related to performance. 

Comments: Another commenter stated 

that training providers should be 

considered to be noncompliant when 

less than 50 percent of those enrolled 

complete the program in the allotted 

training period or when less than 50 

percent of completers fail to find 

employment within 180 days of 

completion. The commenter stated that 

these statistics should be based on all 

enrolled students, not just WIOAfunded individuals. In addition, a 

commenter suggested that ETPs that do 

not provide performance information as 

required under WIOA should be 

removed from the State ETPL, as those 

that are non-compliant or intentionally 

provide inaccurate information. The 

commenter said that such providers 

should also be liable for repayment of 

adult and dislocated worker funds. 

Another commenter asked how 

monitoring of training providers will be 

conducted and who has ultimate 

responsibility for this task. 

Department Response: The Governor’s 

procedures for establishing eligibility 

may establish minimum performance 

standards for all providers other than 

registered apprenticeship programs. 

Under § 680.480(c), the Governor may 

remove provider programs from the 

State List during its biennial renewal 

procedure for failure to meet State 

eligibility criteria, including any 

minimum performance levels 

established. The Department has not 

regulated specific threshold amounts for 

compliance because it is within the 

Governor’s authority under WIOA to 

establish appropriate minimum 

standards through its procedure. Under 

§ 680.430(e), the Local WDB may 

establish higher levels of performance 

than those required by the Governor for 

a provider to be eligible to receive 

training funds from that local area. The 

Department made a minor revision to 

§ 680.480(e) for consistency with 

§ 680.430(e) to clarify that if the Local 

WDB has established higher 

performance standards pursuant to 

§ 680.430(e), the Local WDB can remove 

a program of training services from the 

eligible programs in that local area for 

failure to meet those higher performance 

standards. In response to the comment 

suggesting that ETPs who do not 

provide performance information 

should be removed from the State ETPL, 

the Department refers readers to 

§ 680.460 and its accompanying 

preamble. 

Regarding comments on which entity 

is responsible for monitoring ETPs, the 

Department notes that under WIOA sec. 

122, States and local areas are 

responsible for monitoring eligible 

training providers and for determining 

how such monitoring is conducted. Per 

§ 680.430(b)(2) and (c), the Governor or 

the Governor’s designated SWA (or 

appropriate State entity) is responsible 

for ensuring that programs meet 

eligibility criteria and performance 

levels established by the State, 

including verifying the accuracy of the 

information, and the Local WDB must 

carry out procedures assigned to the 

Local WDB by the State. 

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Section 680.490 What kind of 

performance and cost information must 

eligible training providers other than 

registered apprenticeship programs 

provide for each program of training 

services? 

Section 680.490 describes the 

information that training providers must 

submit to the State to meet initial and 

continued eligibility criteria for 

inclusion on the State List of Eligible 

Training Providers and Programs under 

§ 680.460(h). Proposed § 680.490(d) 

required the Governor to establish a 

procedure and methods to assist 

training providers who demonstrate that 

providing the required information is 

unduly burdensome or costly. This 

section has been adopted as proposed, 

with revisions for clarity and 

consistency of terms and one 

substantive change at paragraph (c). 

The Department revised proposed 

§ 680.490(a) for clarity. Proposed 

§ 680.490(a) provided that, in 

accordance with § 680.460(h), every 2 

years training providers are required to 

submit appropriate, timely, and accurate 

performance and cost information. 

However, the Department changed the 

reference to § 680.460(h) in this 

paragraph to § 680.460(i) to clarify that 

eligible training providers, except 

registered apprenticeship programs, 

must submit this information at least 

every 2 years in accordance with the 

State’s continued eligibility policy. 

The Department also modified 

§ 680.490(c) by adding that the Governor 

may require additional performance 

information if the Governor determines 

it is appropriate to better inform 

consumers. This paragraph originally 

provided that the Governor could add 

this information if the Governor 

determined it was appropriate for 

determining or maintaining eligibility. 

However, WIOA sec. 122(b)(1)(J)(iii) 

provides that the Governor’s criteria and 

information requirements can include 

other factors the Governor determines 

are appropriate to ensure informed 

choice of participants among training 

service providers, and the modification 

to this section reflects this authority. 

Comments: Several commenters 

agreed with the Department’s message 

that the Governor must assist providers 

in supplying the information required of 

them under WIOA and the NPRM. 

These commenters urged that the State 

ETPL coordinators at the State level be 

required to maintain a list of available 

technical assistance for training 

providers and that a probationary period 

be included for all those who may miss 

eligibility. One commenter encouraged 

the Department to ensure that the 

regulations provide maximum flexibility 

for the State to work with training 

providers to report on the primary 

indicators of performance. 

Department Response: The 

Department cannot require States to 

provide a probationary period or 

maintain technical assistance lists. 

However, the Governor has significant 

flexibility under § 680.490(d). For 

example, if a provider demonstrates that 

providing additional information 

required under this section would be 

unduly burdensome or costly, the 

Governor may provide additional 

resources from funds for State workforce 

investment activities reserved under 

WIOA secs. 128(a) and 133(a)(1) as 

provided in § 680.490(d)(2) to assist 

providers in the information collection. 

Further, in addition to the required 

factors, the regulations allow the 

Governor to take any appropriate 

additional factors into account when 

developing procedures for providers to 

be included and maintained on the State 

List of Eligible Training Providers and 

Programs. No changes to regulatory text 

were made as a result of these 

comments. 

Comments: Several commenters 

supported the § 680.490(d) requirement 

that Governors have a procedure in 

place to address the costs and burden of 

any increased reporting requirements. 

One commenter expressed appreciation 

for the Department’s recognition of the 

potential cost and burden of WIOA’s 

requirements for ETPs in meeting their 

performance reports and urged the 

Department to issue guidance to the 

States on how to streamline 

performance reporting for training 

providers and minimize the burden 

associated with reporting on multiple 

programs through the ETP performance 

reports required by WIOA sec. 116 and 

the performance information required 

by WIOA sec. 122 for inclusion and 

maintenance on the State ETPL. A 

number of comments appear to reflect 

confusion between these two types of 

performance information. 

A few commenters stated that many of 

the requested reporting elements are not 

valuable to the consumer and asserted 

that local areas should determine if a 

provider should continue to be listed on 

the ETPL because local areas’ 

performance is directly related to the 

quality of the training programs. One 

commenter suggested that for each 

program of study, the following 

information be collected: Number 

enrolled, number completed, number of 

completers employed at 90 and 180 

days after exit, and wage at placement 

of those employed. 

Department Response: WIOA sec. 122 

requires specific information that must 

accompany the State List of Eligible 

Training Providers and Programs. The 

Departments of Education and Labor are 

issuing joint guidance on data sharing. 

Submission of ETP performance reports 

is required by WIOA sec. 116(d)(4) and 

addressed in 20 CFR 677.230 of the 

regulations (see Joint WIOA Final Rule). 

This section of the preamble addresses 

§ 680.460 and is focused on the 

requirements for ETP eligibility and 

maintenance of the State ETPL. 

Comments related to the ETP annual 

performance reports required under 

WIOA sec. 116(d)(4) and other issues 

related to specific performance 

indicators are addressed in the Joint 

WIOA Final Rule preamble section 

relating to 20 CFR part 677. In addition, 

the Governor’s procedure for continued 

eligibility and for publishing the State 

List may include the specific 

information suggested by the 

commenter. No changes were made to 

the regulatory text in response to these 

comments. 

Comments: Several commenters 

stated that flexibility is needed in the 

performance reporting requirements for 

inclusion on the State ETPL to allow 

Local WDBs to assess providers at the 

course, program, or institutional level 

because the proposed ETP performance 

reporting requirements could raise data 

privacy concerns where PII is provided. 

One commenter suggested that 

performance information be maintained 

at the participant level and not across 

programs. 

Department Response: The 

Department has determined that 

reporting requirements for inclusion 

and maintenance of the State ETPL must 

be established at the program level only. 

WIOA clearly establishes initial and 

continued eligibility requirements for 

provider programs. Eligibility and 

performance reporting is thus 

determined on a program-by-program 

basis for each provider under the 

regulations. Therefore, reporting is done 

through the program of study, rather 

than the individual courses that make 

up the program. All performance 

reporting requirements must be carried 

out consistent with all applicable 

Federal and State privacy laws and the 

Department is issuing guidance to assist 

States in complying with these laws. 

In addition, the Department made a 

revision to the title of § 680.490 to 

clarify that registered apprenticeship 

programs are not subject to these 

performance reporting requirements. As 

the Department explained in the 

preamble addressing § 680.470, WIOA 

exempts registered apprenticeship 

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programs from ETP performance 

reporting requirements for inclusion on 

the ETP list. However, voluntary 

reporting of performance information by 

registered apprenticeship programs is 

encouraged under the regulation. The 

Department also modified § 680.490(a) 

to clarify, consistent with the decision 

that registered apprenticeship programs 

are exempt from the performance 

reporting requirements, that registered 

apprenticeship programs are not 

required to submit the performance and 

cost information required by this 

section. 

Finally, as noted in the preamble to 

§ 680.400, § 680.490(b) has been revised 

to require performance reporting on all 

WIOA participants enrolled in a 

program of training services and 

receiving funding through an ITA for 

the performance information on WIOA 

participants required by § 680.490(b). 

This includes OSY aged 16–24. As the 

Department is permitting youth program 

funds for OSY aged 16–24 to use ITAs, 

it is important that the performance 

information required encompass these 

WIOA participants. However, the ETPs 

will report based on the adult primary 

indicators of performance for these 

youth to provide comparability and to 

eliminate the burden that would be 

imposed if ETPs were required to report 

on separate performance indicators for 

adults and dislocated workers and for 

the subset of youth who may receive 

training through ITAs. 

Section 680.500 How is the State list 

of eligible training providers and 

programs disseminated? 

Section 680.500 describes the 

requirements for distributing the State 

List of Eligible Training Providers and 

Programs and accompanying cost and 

performance information to Local WDBs 

and to the general public. Other than 

non-substantive changes for consistency 

of terms, the Department has adopted 

this section as proposed. 

Comments: One commenter 

supported making the ETPL publicly 

accessible in a consumer friendly 

format. Another commenter stated that 

only one List per State should be 

permitted to be published because 

multiple publications within a State 

would be confusing for participants and 

ETPs. One commenter recommended 

that States be required to identify and 

list credentialing organizations and 

helpful information about key or high 

growth sectors on the homepages of the 

State Lists of Eligible Training Providers 

and Programs, including providing a list 

of high growth industries. This 

commenter stated that when a 

nationally-recognized, industry-driven 

credential has been discovered by a 

State or local entity, or the Federal 

government, this information should be 

shared publicly to raise the bar on 

training programs and help ensure that 

tasks are performed to the highest 

standards available, while maintaining 

and improving American 

competitiveness. 

Department Response: WIOA requires 

the State to generate and disseminate its 

List of ETPs that contains, at a 

minimum, the information required by 

WIOA sec. 122(d) and § 680.500. 

However, as provided at § 680.430(e), 

Local WDBs may establish higher 

performance standards or additional 

information and criteria, except with 

respect to registered apprenticeship 

programs. In addition, the Department 

notes that States have the discretion to 

identify credentialing organizations or 

to restrict the types of providers 

included on the State List. It is up to the 

State to determine what providers meet 

its initial and continued eligibility 

criteria in order to be included on the 

State List. Some of this information, 

including whether a provider 

organization provides an industryrecognized credential may be noted on 

the State List. No changes were made to 

the regulatory text in response to these 

comments. 

Comments: Several commenters 

responded to the Department’s request 

for comments on the value of a 

summary sheet to accompany the ETPL. 

A few commenters stated that a 

summary sheet was not necessary 

because applicants only need the 

following key data to make an informed 

choice: Completion rate, placement rate, 

credential, and wages. In contrast, 

another commenter encouraged the use 

of a uniform summary sheet to help 

prospective students compare 

information across all participating 

programs. This commenter 

recommended that the summary sheet 

include detailed information about the 

programs, including many data points 

that are part of the ETP performance 

reports, such as comparative 

information about costs, program 

completion, and job placement rates, 

average starting salaries, and debt upon 

completion. Other commenters 

recommended that each State be 

allowed to design its own 

accompanying information. One 

commenter suggested that the 

information required for the ETP be 

detailed in a simple chart format with 

cohort information for completion and 

placement information, and that the 

public site should include information 

that is pertinent to the customer. One 

commenter urged the Department to 

consider the work of Local WDBs that 

already have scorecards. Another 

commenter encouraged developing 

‘‘ease of use reports’’ that meet the 

needs of training seekers while 

minimizing the reporting burden on 

providers and States. Another 

commenter recommended allowing 

States to design their own display. 

Department Response: The 

Department has determined that no 

revisions to the regulatory text are 

needed in response to these comments. 

The list of ETPs and accompanying cost 

and performance information must be 

disseminated in coordination with the 

ETP annual performance reports in 

accordance with 20 CFR 677.230(e)(3) 

(see Joint WIOA Final Rule). The ETP 

annual performance report must include 

the information required under WIOA 

sec. 116(d)(4) and must be provided 

using a template created by the 

Department. In contrast, WIOA sec. 

122(d) does not require that the State 

List of Eligible Training Providers and 

Programs and accompanying 

information comport with a Federal 

template or format. The Department, 

therefore, has decided that the statutory 

mandate is best met by leaving it to the 

States’ discretion to determine: (1) What 

information should accompany the State 

ETPL provided that the accompanying 

information meets statutory 

requirements (including the 

requirement in WIOA sec. 122(d)(1) that 

the accompanying information identify 

the recognized postsecondary 

credential); (2) the best format to 

provide that information to users; and 

(3) how to coordinate its distribution 

with the ETP performance reports. The 

Department plans to issue further 

guidance to States regarding the 

relationship between ETP performance 

reports and the State List of Eligible 

Training Providers and Programs. 

Comments: One commenter stated 

that some State laws include additional 

restrictions on data sharing beyond the 

Federal law requirements and 

encouraged the Department to consider 

how regulations and guidance can help 

States interpret or revise their own laws 

to allow greater access to data for 

strategic planning and evaluation 

purposes. One commenter urged the 

Department to issue guidance and 

technical assistance on how data shared 

for WIOA performance reporting may be 

incorporated into Statewide 

Longitudinal Data Systems (SLDS) in 

compliance with both UI confidentiality 

provisions and the Family Educational 

Rights and Privacy Act (FERPA). The 

commenter stated that the data collected 

would be useful for a variety of 

stakeholders, including for longitudinal 

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research and evaluation to improve the 

mix and targeting of program services. 

Department Response: Privacy 

concerns in regard to how the State List 

and accompanying information are 

made available are addressed under the 

regulations in § 680.500(e). In 

developing the information to 

accompany the State List described in 

§ 680.490(b), disclosure of personally 

identifiable information from an 

education record must be carried out in 

accordance with the Family Educational 

Rights and Privacy Act, including the 

circumstances relating to prior written 

consent. No changes were made to the 

regulatory text in response to these 

comments. Instead, the Department 

intends to provide additional guidance 

on this issue and will also provide 

technical assistance to States who face 

legal barriers in complying with 

performance reporting requirements. 

Section 680.510 In what ways can a 

Local Workforce Development Board 

supplement the information available 

from the State list of eligible training 

providers and programs? 

The Department did not receive any 

comments addressing § 680.510 other 

than a general statement of support for 

the provision as drafted. The 

Department made non-substantive edits 

to the title of this section for uniformity 

in use of the term ‘‘State list.’’ The 

Department also modified § 680.510 to 

clarify that, as explained above, the 

Local WDB cannot supplement the 

criteria and information requirements 

established by the Governor for 

registered apprenticeship programs. 

Section 680.520 May individuals 

choose training providers and programs 

located outside of the local area or 

outside of the State? 

Section 680.520 governs when an 

individual can choose to attend a 

training program located outside of the 

local area or State. The Department has 

made non-substantive revisions to this 

section for consistency in the use of 

terms, and made revisions for clarity to 

this section. 

Section 680.520(a) provides that 

individuals may choose training 

providers and programs outside of the 

local area provided that the training 

program is on the State List and it is 

consistent with local policies and 

procedures. For State ETPs that are 

outside of the local area or that do not 

meet the local area’s criteria for 

eligibility, local policies and procedures 

determine whether participants in the 

local area may utilize ITAs for training. 

However, the local area may choose to 

make exceptions to its local eligibility 

criteria. The local policies and 

procedures must be consistent with 

State policies and procedures in order 

for the program to receive funds through 

an ITA. 

Section 680.520(b) provides that 

individuals may choose eligible training 

providers and programs outside of the 

State consistent with State and local 

policies and procedures and that State 

policies and procedures may provide for 

reciprocal or other agreements 

established with another State to permit 

eligible training providers in a State to 

accept ITAs provided by the other State. 

The State policies and procedures may 

allow training providers or programs 

located outside of that State to receive 

funds through a participant’s ITA 

within specific circumstances, or a State 

may enter into a broader agreement with 

another State to establish that ETPs in 

the other State are eligible in the 

‘‘home’’ State. State policies may 

determine whether the training 

providers and programs in another State 

must meet any or all of the ‘‘home’’ 

State’s eligibility criteria order to 

receive the ITA funds provided by the 

State. In either case, the local policies 

and procedures can have more stringent 

standards than the State policy, and 

therefore any use of ITAs for training 

providers and programs outside of the 

State must be consistent with both State 

and local policies and procedures. 

Comments: The Department received 

a handful of comments addressing 

proposed § 680.520. One commenter 

supported allowing participants to 

choose training located outside the local 

area or in other States. Another 

commenter agreed with allowing 

individuals to choose training providers 

located outside of the local area as long 

as the training providers meet the 

performance criteria set by the Local 

WDB in the local area where the person 

resides. 

One commenter urged the Department 

to work with inter-governmental 

organizations to develop guidance for 

the active inclusion of out-of-area and 

eLearning options into the training 

approaches of Local WDBs. This 

commenter stated that guidance would 

be preferable to reciprocity agreements 

to reduce the time required to 

understand and implement the specifics 

of interstate agreements. 

Department Response: The 

Department has concluded that 

reciprocity agreements will be 

maintained in § 680.520 because they 

are specifically authorized under WIOA 

sec. 122(g) and they further the goals of 

WIOA. Reciprocity agreements reduce 

the burden on States and providers by 

eliminating duplicative procedures. 

They also expand the array of training 

options available to individuals seeking 

training. The Department recommends 

that States consider how best to 

establish and implement reciprocity 

agreements, and how these agreements 

may be used to expand distance and 

online training options. The Department 

notes that its revisions to this section, in 

§ 680.520(b), permit the States to 

develop other agreements that permit 

ETPs in a State to accept ITAs provided 

by another State. This provides 

additional flexibility to the States as the 

agreement does not have to be 

reciprocal. The Department will 

consider whether there is a need for 

additional guidance on this issue in the 

future. 

Section 680.530 What eligibility 

requirements apply to providers of onthe-job training, customized training, 

incumbent worker training, and other 

training exceptions? 

Section 680.530 explains that 

providers of OJT, customized training, 

incumbent worker training, internships, 

paid or unpaid work experience, or 

transitional jobs are not subject to the 

same WIOA eligibility requirements of 

sec. 122(a) through (f) that are 

established for providers listed on the 

State List of Eligible Training Providers 

and Programs. Section 680.530 requires 

local one-stop operators to collect any 

separate performance information 

required by the Governor and determine 

whether these providers meet the 

Governor’s performance criteria. The 

Department made non-substantive edits 

for consistency in how the Department 

uses terms throughout this section and 

made substantive edits to the provision 

which are further explained below. 

The Department reorganized this 

section for clarity by breaking what was 

one paragraph into several paragraphs. 

Paragraph (a) now provides that 

providers of OJT, customized training, 

incumbent worker training, internships, 

paid or unpaid work experience, or 

transitional jobs are not subject to the 

requirements applicable to providers 

and programs which are included on the 

State ETPL. Paragraph (b) now provides 

that the Governor may establish 

performance criteria those providers 

must meet to receive funds through the 

adult or dislocated worker programs 

pursuant to a contract consistent with 

§ 680.320. Thus, while these kinds of 

programs cannot be paid for with ITAs, 

Local WDBs may enter into a contract 

with these entities to provide these 

training services. More information can 

be read about this in § 680.320 and its 

accompanying preamble. Paragraph (c) 

provides that one-stop operators must 

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collect any performance information 

required by the Governor and determine 

if the provider meets these performance 

standards. For those that meet the 

Governor’s standards, paragraph (d) 

requires the one-stop operator to 

distribute information about those 

programs, with the relevant 

performance information, throughout 

the system. 

Comments: Several comments 

requested clarification of whether these 

other training providers are exempted 

from the State eligibility process 

required by WIOA sec. 122 and/or from 

the ETP performance reporting process 

required by WIOA sec. 116, if they are 

not included on the State List of Eligible 

Training Providers and Programs. Other 

commenters supported allowing local 

areas to contract with providers not on 

the State List of Eligible Training 

Providers for customized training, 

incumbent worker training, internships, 

paid or unpaid work experience, and 

transitional employment. One 

commenter expressed support for 

exempting OJT, customized, and 

incumbent worker training from the ETP 

process but recommended that these 

training programs be subject to 

performance reporting. Another 

commenter recommended revising 

§ 680.530 to provide that OJT, 

customized training, incumbent 

working training, and other training 

exceptions are not exempt from rigorous 

performance standards even though 

they are exempt from the general 

performance metrics in WIOA sec. 122 

and must be subjected to rigorous 

performance standards suited to the 

type of program. This commenter 

recommended that § 680.530 be revised 

to emphasize that local one-stop 

operators must collect the performance 

information that the Governor shall 

require and to emphasize that local onestop operators must disseminate this list 

of training exceptions. This commenter 

recommends requiring inclusion of the 

Governor’s performance criteria for OJT, 

customized training, and incumbent 

worker training in the State Plan and 

annual reports and that the monitoring 

of these programs be referenced in 

§ 680.530. Further, this commenter 

recommended that performance of these 

programs be detailed by industry, 

company, and occupation at the 

quarterly meetings of Local and State 

WDBs Another commenter suggested 

the Local WDB must concur with the 

Governor that such information is worth 

collecting and that the Local WDB 

should determine how best to collect 

the information. This commenter felt 

that requiring the operator to collect 

such information is likely to be less 

efficient that obtaining the information 

directly from the service provider or 

UI wage records, and that local 

areas should decide if it is worth 

collecting data on every work-based, 

customized, incumbent worker training, 

internship, or work experience 

arrangement. 

One commenter recommended that 

work experience programs be excluded 

from reporting. Another commenter 

suggested that the Department require 

the Governor’s performance standards 

for these exceptions to be described in 

the State Plan. Some commenters 

recommended that these exceptions be 

subject to the same accountability, 

transparency, and monitoring standards 

that apply to all programs regulated by 

WIOA. One commenter recommended 

that where a Local WDB is using shortterm and/or eLearning assisted 

‘‘training,’’ these training services 

should be regarded as being provided by 

the Local WDB, and these approaches 

should be exempted from the ETP 

process. This commenter stated that 

these training programs should be 

subject to performance reporting. One 

commenter stated that OJT and 

customized training providers should 

not be included on the State ETPL 

because these should be matters of 

negotiation between Local WDBs and 

affected business entities. Finally, one 

commenter said that customized 

training, registered apprenticeship, or 

OJT are all work-relevant, but the 

section-by-section discussion in the 

regulation should clarify that these are 

examples and not an exhaustive list of 

the types of training that would have to 

be provided by a business. Such 

limitation could deem ineligible 

representatives of the business 

community who may successfully offer 

alternative types of training such as a 

non-registered apprenticeship. 

Department Response: The 

Department has made changes to the 

regulatory text of § 680.530 to clarify 

that the training providers listed in this 

section are not included on the State 

ETPL. The Department is including 

among these exceptions the types of 

work-based training included at WIOA 

section 122(h), which does not 

specifically identify non-registered 

apprenticeship programs but does 

include on-the-job training, customized 

training, incumbent worker training, 

internships, paid or unpaid work 

experience, and transitional jobs. There 

is no Federal restriction on States and 

Local WDBs including non-registered 

apprenticeship programs on the ETPL; 

however, these programs must apply 

through the Governor’s eligibility 

procedure to become an eligible training 

provider, just as any other potential 

eligible training provider would. 

Additionally, there is no restriction on 

non-registered apprenticeship programs 

participating in on-the-job training or 

customized training through contracts 

as described in § 680.530, if it is 

determined appropriate by the State and 

Local WDB. This decision is based on 

the exception in WIOA sec. 122(h) 

exempting these providers from the 

requirements for inclusion on the List, 

maintenance on the List, and removal 

from the List. Notwithstanding this 

exclusion, that exemption in WIOA sec. 

122(h) further authorizes the Governor 

to require the local area to collect 

performance information on these 

providers. That information can be the 

same as that required for ETPs or may 

be different information. 

Local WDBs may provide training 

services, including short-term and/or 

eLearning assisted training, if the Local 

WDB meets the conditions of WIOA sec. 

107(g)(1), which includes the 

information required in a written waiver 

request to the Governor. 

The revised regulatory text at 

§ 680.530(d) clarifies that one-stop 

operators must disseminate information 

identifying providers and programs that 

have met the Governor’s performance 

criteria and the relevant performance 

information as required by the Governor 

throughout the one-stop delivery 

system. Local WDBs are not required to 

concur with the Governor regarding the 

value of the performance information 

that the Governor chooses to require. 

While States are not required in their 

State Plans to describe the State’s 

performance standards for on-the-job 

training, incumbent worker training, 

transitional jobs, and customized 

training, the State is required to describe 

the State’s strategies for how these 

exceptions ensure high quality training 

for both the participant and the 

employer. State Plan requirements are 

fully described in the WIOA State Plan 

ICR and 20 CFR part 676 (see Joint 

WIOA Final Rule). 

The Department does not have the 

authority to require State or Local WDBs 

to review performance information by 

industry at quarterly meetings. 

Further, the regulatory text has been 

modified to clarify that these other 

training providers are eligible to receive 

WIOA funding through a contract for 

services rather than through ITAs. The 

regulatory text was also edited to 

remove the statement that approved 

providers under this section are 

considered eligible training providers 

services, which could inappropriately 

suggest that these entities may serve as 

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ETPs and receive funding through ITAs 

without going through the Governor’s 

eligibility procedures. As explained, 

this is not the case. The regulation text 

was also revised to clarify that these 

providers are not subject to the other 

requirements that training providers and 

programs which are on the State ETPL 

must fulfill. However, these providers 

are still subject to other requirements of 

WIOA outside of this subpart. 

The Department has also made a 

change to the terminology used in 

reference to transitional employment. 

For consistency with other areas of the 

WIOA Final Rule, the Department is 

using the term transitional jobs. 

Comments: One commenter 

recommended that § 680.530 be revised 

to ensure that non-credit training and 

education be included on the ETP, and 

that performance-related elements are 

consistent across all ETPs, including 

community colleges, to ensure better 

program outcomes and a level playing 

field for all ETPs. Two commenters 

suggested that work experience should 

be excluded from any reporting required 

of these training exceptions. 

Department Response: Section 

680.530 describes programs that are not 

included on the State ETPL. The 

programs listed in this section may or 

may not offer credit, and the eligible 

training providers included in the State 

List of Eligible Training Providers and 

Programs may or may not offer credit. 

For performance reporting, the 

performance-related elements required 

by WIOA are consistent across all 

eligible training providers, except for 

registered apprenticeship programs. For 

eligibility procedures, the performancerelated elements in the Governor’s 

procedure should be consistent across 

all programs in the State. However, the 

Governor’s performance criteria for the 

work-based training exceptions 

described at § 680.530 may be quite 

different and these programs are not a 

part of the State List of Eligible Training 

Providers. No changes were made to the 

regulatory text in response to these 

comments. 

Comments: Several commenters 

requested clarification of how the 

Governor may treat providers who fall 

within the exceptions to ITAs described 

at §§ 680.320 and 680.530 as to whether 

these excepted providers may use ITAs 

or only contracts, and what is required 

if they are to be on the State ETPL. 

Department Response: As described 

above, local areas may contract for these 

work-based training exceptions and 

these programs of training services do 

not need to be on the State List nor are 

they subject to the ETP eligibility 

procedures. However, these providers 

also could have programs of training 

that are not excepted under § 680.530 

and that the provider wishes to be 

eligible to use ITAs. As explained 

above, only ETPs on the State List are 

able to use ITAs. Therefore, when a 

provider that provides a program of 

training services through contract to a 

local area wishes to be eligible to 

receive students using ITA funding, the 

training provider would need to 

complete the ETP eligibility process 

described in this subpart. These 

programs would be subject to the 

Governor’s eligibility procedure. An 

example of such a case would be a 

company that provides OJT through a 

contract with a local area and also offers 

classroom training or credentialing; the 

classroom training could be a regular 

ETP while the company could have a 

contract for the OJT. More information 

about the ETP exceptions can be found 

in § 680.320. No changes were made to 

the regulatory text in response to these 

comments. 

6. Subpart E—Priority and Special 

Populations 

Introduction 

The services provided with adult 

funds can be a pathway to the middle 

class for low-income adults, public 

assistance recipients, and individuals 

who are basic skills deficient. The 

regulations implement the statutorilyrequired priority for the use of adult 

funds, and ensure any other priorities or 

designations are consistent with the 

statutory priority. This subpart contains 

regulations about how participants from 

certain populations are able to access 

adult and dislocated worker services, 

and regulations establishing priority 

access to these services. WIOA sec. 

134(c)(3)(E) provides that priority for 

adult training services and certain 

career services must be given to 

recipients of public assistance, other 

low-income individuals, and 

individuals who are basic skills 

deficient. Under WIOA, priority access 

to services by members of this group is 

always in effect regardless of funding 

levels. Nonetheless, WIOA allows onestop centers to provide individualized 

career services to individuals who are 

not members of these groups, if 

determined appropriate by the one-stop 

center. 

The Department encourages close 

cooperation between WIOA-funded 

programs and other Federal and State 

sources of assistance for job seekers. 

Coordination between WIOA-funded 

programs and the TANF program is a 

crucial element in serving individuals 

who are on public assistance. TANF is 

a required partner in the one-stop 

delivery system. Through close 

cooperation, each program’s 

participants will have access to a much 

broader range of services to promote 

employment retention and selfsufficiency than if they relied only on 

the services available under a single 

program. 

In this subpart, the Department 

explains how displaced homemakers 

may be served with both adult and 

dislocated worker funds. Under WIOA, 

a displaced homemaker qualifies as an 

‘‘individual with a barrier to 

employment’’ (see WIOA sec. 3(24)(A) 

and § 680.320(b)). Additionally, 

displaced homemakers meet the 

definition of a ‘‘dislocated worker,’’ as 

defined in WIOA sec. 3(15)(D). 

Displaced homemakers, whose work, 

albeit without a formal connection to 

the workforce, is recognized for its 

value, may need WIOA services to 

develop further work skills. WIOA also 

expands the definition of displaced 

homemakers to include dependent 

spouses of the Armed Forces on active 

duty to ensure they have access to 

WIOA title I services. 

This subpart ensures that veterans 

and certain service members have 

access to adult and dislocated worker 

programs. Under WIOA, as was the case 

under WIA, veterans receive priority of 

service in all Department-funded 

employment and training programs. The 

regulations in this subpart describe 

what is meant by ‘‘priority of service.’’ 

The regulation is consistent with 

guidance it issued in TEGL No. 22–04 

(‘‘Serving Military Service Members and 

Military Spouses under the Workforce 

Investment Act Dislocated Worker 

Formula Grant’’), dated March 22, 2005 

(http://wdr.doleta.gov/directives/ 

attach/TEGL22-04.pdf) and expanded in 

TEGL No. 3–15 (‘‘Guidance on Services 

Provided through the Adult and 

Dislocated Worker Program under the 

Workforce Innovation and Opportunity 

Act (WIOA or Opportunity Act) and 

Wagner Peyser, as Amended by WIOA, 

and Guidance for the Transition to 

WIOA Services’’), dated July 1, 2015 

(http://wdr.doleta.gov/directives/attach/

TEGL/TEGL_03-15.pdf) that separating 

service members meet the eligibility 

requirements for dislocated worker 

activities. This regulation will ensure 

that service members will have access to 

the full array of services available 

through the one-stop delivery system. 

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Section 680.600 What priority must be 

given to low-income adults and public 

assistance recipients and individuals 

who are basic skills deficient served 

with adult funds under title I? 

Comments: Several commenters 

expressed general support for giving 

priority for service to recipients of 

public assistance, other low-income 

individuals, and individuals who are 

basic skills deficient. In contrast, a few 

commenters expressed disagreement 

with the priority of service provisions, 

reasoning that the regulations fail to 

address employer needs and focus 

instead solely on the needs of the 

employee. Two commenter recognized 

the need to be responsive to both the 

employers and the employees. 

Department Response: The 

Department notes that WIOA sec. 

134(c)(3)(E) requires priority be given to 

individuals who are public assistance 

recipients, low income, or basic skills 

deficient, with regard to the provision of 

individualized career services and 

training services. This priority applies 

to funds allocated to a local area for the 

WIOA title I adult program, It is not an 

eligibility criterion for the program, but 

it is the means to ensure an emphasis on 

providing services to these populations. 

This priority is not required for the 

WIOA title I dislocated worker program. 

The Department recognizes the need to 

serve not only low-skilled individuals 

but also those with more advanced 

skills and training who also need 

assistance. The Department also 

recognizes the importance of the onestop delivery system’s employer 

customer, assisting them to find, hire, 

train, or upskill their workforces. The 

one-stop delivery system connects the 

provision of career services and training 

to help individuals get good jobs and 

build careers and the development of 

the skilled workers employers need and 

their match to employers. Work-based 

training focuses on employer workforce 

needs, particularly incumbent worker 

training, where the employer is the 

primary customer. 

Comments: A few commenters 

supported the removal of the WIA 

‘‘limited funding’’ exception. Two 

commenters strongly urged the 

Department to clarify in the Final Rule 

that the priority is in effect regardless of 

funding. Two commenters stated that it 

was preferential to apply the proposed 

priority of service provisions when 

funds are limited. One commenter 

questioned whether the regulations presuppose that limited funding exists and 

expressed support for the development 

of criteria that would give local areas 

the authority to set priority of service 

thresholds that would take effect only 

during times of limited funding. 

Department Response: The 

application of priority under the title I 

adult program applies at all times as 

required in WIOA sec. 134(c)(3)(E). 

Comments: A commenter 

recommended that the regulation allow 

for local definition of low income rather 

than the Federally defined Lower Living 

Standard Income Level (LLSIL), 

reasoning that an individual might not 

be below the low-income level as 

defined by the LLSIL, but still be far 

below the level of self-sufficiency in the 

local area. Another commenter asked 

what the definition of ‘‘family’’ would 

be when determining whether someone 

is considered low income in regard to 

priority of service. One commenter 

recommended incorporating the 

definition of family from WIA sec. 

101(15) into the regulations to clarify 

the meaning of low income. One 

commenter questioned how the priority 

groups included in the regulation relate 

to Equal Employment Opportunity 

(EEO) considerations and requested 

clarification within the regulation that 

EEO applies within the priority groups 

rather than before prioritization is 

considered. 

A few commenters asserted that 

insufficient detail was provided in the 

regulations (e.g., family income 

calculations) and expressed concern 

with an approach that provided these 

details through guidance, reasoning that 

guidance allows for requirements to 

change over time. 

Department Response: The term ‘‘lowincome individual’’ is statutorily 

defined in WIOA sec. 3(36); it includes 

language that the LLSIL is determined 

by the Secretary. The Department agrees 

with the commenters requesting a 

definition of ‘‘family’’ and has added 

language to the definitions in part 675 

of this Rule. Discussion of the added 

definition is provided in the preamble 

accompanying part 675. 

The non-discrimination provisions of 

WIOA sec. 188 do not provide for 

preference for services. They protect 

against discrimination in the provision 

of services and prevent individuals from 

being otherwise adversely affected 

because of their membership in a 

protected class. Therefore, the 

Department has declined to make 

changes in the regulatory text in 

response to this comment. 

Comments: Several commenters 

recommended a revision to proposed 

§ 680.600(c) to clarify that any 

designation of priority for other eligible 

individuals must be subject to both the 

veterans priority of service requirements 

at § 680.650 and the WIOA statutory 

priority of service requirements in sec. 

134(c)(3)(E). A commenter suggested 

that any guidance in this area, including 

guidance on expectations for State and 

local implementation, should support 

flexibility to allow States and localities 

to serve their unique and diverse 

populations best. One commenter 

questioned the relative priority that 

should be applied to other groups of 

individuals designated by the Local 

WDB or Governor as receiving priority 

of service compared to those explicitly 

listed in WIOA. 

Department Response: The 

Department agrees with the 

commenters’ suggestion that any 

additional priority populations 

identified by the Governor must be 

consistent with the statutory priority as 

well as the veteran’s priority of service. 

The Department has made changes to 

the regulatory text at § 680.600(c) to 

reflect this suggestion. The Department 

will issue guidance and technical 

assistance about the implementation of 

these priority requirements. 

Comments: Several commenters 

stated that the Department must revise 

proposed § 680.600(a) to align with 

WIOA and allow for priority to be given 

to ‘‘recipients of public assistance, other 

low-income individuals, and 

individuals who are basic skills 

deficient,’’ not ‘‘recipients of public 

assistance, other low-income 

individuals, who are basic skills 

deficient,’’ as was proposed. A 

commenter requested clarification as to 

whether being basic skills deficient 

alone would quality an individual for 

priority of service. 

Department Response: The 

Department agrees with the commenters 

and has modified the regulatory text in 

§ 680.600(a) to make clear that 

individuals who are basic skills 

deficient is its own category to be 

eligible for priority of service in the 

WIOA title I adult program. 

Basic Skills Deficient 

Comments: A commenter provided 

several recommendations about priority 

of service for individuals who are basic 

skills deficient: (1) Basic skills deficient 

should include computer literacy skills 

as a skill necessary to function on the 

job; (2) the process for identifying basic 

skills deficient should allow selfattestation and observation by one-stop 

staff; (3) a standard tool for measuring 

basic skills deficient should be 

developed and should include 

consideration of career-oriented 

employability skills; and (4) any 

individual who meets the definition of 

basic skills deficient should be eligible 

for services. 

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A few commenters cautioned against 

using a definition of basic skills 

deficient that considered how the 

individual’s skill set would allow them 

to ‘‘function on the job.’’ These 

commenters reasoned that such a 

definition could create a loophole that 

might diminish the priority of service 

requirement by permitting services to 

otherwise non-low- income individuals 

who simply lack some skill needed to 

do a specific job. A few commenters 

recommended that the methodology for 

determining basic skills deficiency 

should be identified in State or local 

policy, rather than in regulation or 

Department policy. 

Department Response: The term 

‘‘basic skills deficient’’ is defined in 

WIOA sec 3(5). States and Local WDBs 

have flexibility in determining when an 

individual meets this definition. 

Comments: A commenter stated that 

proposed paragraphs (a) and (c) of 

§ 680.600 included inconsistent 

language when describing individuals 

who are basic skills deficient, one 

paragraph using the term ‘‘basic skills 

deficient’’ and the other using the term 

‘‘individuals without basic work skills.’’ 

The commenter asserted that consistent 

terminology is important. 

Department Response: The 

Department agrees with these comments 

and has modified the regulatory text to 

incorporate this suggestion. 

Implementation of Priority of Service 

Requirements 

Comments: Several commenters 

requested guidance on the 

implementation of the priority of service 

requirements. A few commenters stated 

that guidance should include an 

explanation of how States and localities 

will be monitored to ensure that an 

appropriate process or protocol is 

established and details on what the 

protocols should include. Because the 

priority groups could be seen as a threat 

to successful performance tracking, one 

commenter stated that reporting and 

incentives should be put into place to 

ensure these participants are actually 

served and supported. 

Several commenters provided 

additional input on how to implement 

the priority of service requirements, 

including the following 

recommendations, building on the 

Department’s use of veterans’ priority of 

service, utilizing technical assistance 

and best practices, developing 

performance metrics and benchmarks, 

and coordination with immigration and 

refugee organizations and State Refugee 

Coordinators. 

A few commenters described how 

U.S. Census data could be used to 

implement or verify the priority of 

service requirements. To verify that the 

priority of service has been properly 

implemented, two commenters 

recommended that the Department 

require that State and local planning 

efforts utilize the most current Census 

and administrative data available to 

develop estimates of each priority 

service population in their planning 

efforts and update these data year to 

year. Additionally, these commenters 

recommended that this data be used in 

Federal reviews of State Plans to ensure 

that system designs and projected 

investments are equitably targeted to 

service priority populations. The 

commenters also stated that this data 

should be used to benchmark system 

performance in actual implementation 

of the priority of service from year to 

year. 

Department Response: The 

Department will provide further 

guidance to clarify how priority of 

service should be implemented and 

monitored. 

Section 680.610 Does the statutory 

priority for use of adult funds also apply 

to dislocated worker funds? 

Comments: A commenter sought 

clarification as to whether the same 

priority given to adult funds applied to 

dislocated worker funds that were 

transferred to the adult program. 

Department Response: The 

Department considers funds transferred 

from the dislocated worker program to 

the adult program to be adult program 

funds and fall under the priority 

requirements of the adult program. 

Likewise, any transfer of funds from the 

adult program to the dislocated worker 

program will fall under the 

requirements of the dislocated worker 

program. 

Comments: Commenting that older 

workers are more likely to show up in 

the dislocated worker program than in 

the adult program, one commenter 

recommended that priorities and 

protections should be established 

within the dislocated workers program. 

Department Response: There is no 

priority in the dislocated worker 

program, other than veteran’s priority of 

service. Participants must meet the 

dislocated worker eligibility criteria in 

order to participate in this program. No 

changes have been made to the 

regulatory text in response to the 

comments. 

Section 680.620 How does the 

Temporary Assistance for Needy 

Families program relate to the one-stop 

delivery system? 

Comments: A commenter suggested 

that the statement in the NPRM 

introduction to subpart E that the 

‘‘Department strongly encourages close 

cooperation’’ between WIOA-funded 

programs and other Federal and State 

sources of assistance for job seekers 

does not convey the strength needed to 

have full coordination between WIOAfunded programs and the TANF 

program. This commenter 

recommended changing the wording to 

‘‘mandates close coordination with 

funding tied to coordinated 

partnerships.’’ 

One commenter recommended that 

the Department seek out opportunities 

for increased alignment between WIOA 

common performance indicators and 

TANF. This commenter stated that one 

challenge is that TANF programs are not 

measured by the same accountability 

measures as the other core WIOA 

programs. 

Department Response: WIOA 

delegated the authority to Governors 

and Local WDBs, to decide how closely 

to align and coordinate their plans with 

WIOA programs and other sources of 

public assistance like TANF. The 

Department encourages strong 

partnership and close alignment with 

TANF at the State and local level. 

Comments: A commenter requested 

clarification on whether TANF funding 

had to be used, rather than WIOA funds, 

if available, and how TANF 

organizations should document that 

TANF funds are not available. 

Department Response: Under 

§ 680.230(b) and WIOA sec. 134(c)(3)(B), 

one-stop centers are required to 

consider the availability of other sources 

of grants to pay for training costs, which 

includes TANF funds. The Department 

will provide additional guidance and 

technical assistance to one-stop centers 

to answer questions about how to 

document whether funds from other 

sources such as TANF are available. 

Comments: Several commenters 

recommended that the Department 

ensure that Local WDBs or their 

standing youth committees identify how 

connections will be made with TANF 

partners at one-stop centers to ensure 

policy and programmatic alignment for 

the young adult population under 25, 

who may receive a different set of 

services if they are not served though 

WIOA title I youth programs. These 

commenters asserted that WIOA and 

TANF differ greatly from each other, 

requiring specific policy and 

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programmatic alignment by the State 

and Local WDBs to service TANF 

recipients in a WIOA program. 

Department Response: Coordination 

between TANF and WIOA services must 

take place at the State and local level 

and therefore, States and local areas are 

responsible for establishing policies and 

MOUs, and aligning plans wherever 

they deem to be appropriate to serve 

participants best. The Department 

recognizes that there are challenges 

associated with such planning and 

coordination and will continue to 

provide guidance and technical 

assistance to assist with these processes. 

No change is made in the regulatory 

text. 

Section 680.630 How does a displaced 

homemaker qualify for services under 

title I? 

Comments: A commenter expressed 

support for the inclusion of spouses of 

members of the Armed Forces on active 

duty as a displaced homemaker. Two 

commenters encouraged the Department 

to urge States to highlight the displaced 

military spouse homemakers in 

dissemination of information about 

services to this population. 

Department Response: The 

Department agrees with the 

commenters’ suggestion and encourages 

States and Local WDBs to highlight the 

eligibility for displaced military spouse 

homemakers in the information they 

disseminate about this program. No 

changes have been made to the 

regulatory text in response to the 

comments. 

Section 680.640 May an individual 

with a disability whose family does not 

meet income eligibility criteria under 

the Workforce Innovation and 

Opportunity Act be eligible for priority 

as a low-income adult? 

Comments: A few commenters 

expressed support for the provisions in 

§ 680.640 as proposed. One comment 

also expressed support for the 

provisions in proposed § 680.640 to 

keep a family’s income separate from 

the adult with a disability’s income to 

that services are provided to all 

individuals who need it and that 

another eligibility barrier is not created 

to ensuring access to these services. 

One commenter requested 

clarification on whether the provisions 

specifying the circumstances under 

which an individual with a disability 

may still qualify as a priority lowincome adult, even when family income 

does not meet the low-income eligibility 

criteria, also apply to persons receiving 

Social Security Disability Insurance. 

Another commenter recommended 

the Department clearly identify receipt 

of Social Security disability benefits as 

a barrier to employment. 

Department Response: The 

circumstances that allow these 

individuals to qualify still as a lowincome adult, regardless of family 

income, do not apply to persons 

receiving Social Security Disability 

Insurance (SSDI). The Department 

considers WIOA to be very specific 

about what does count and what does 

not with regard to income-based 

eligibility in its definition of ‘‘lowincome individual’’ in WIOA sec. 3(36). 

This definition allows individuals on 

Supplemental Security Income (SSI) to 

be considered low-income, but does not 

consider individuals on SSDI to be 

considered low-income of the basis of 

that status alone. Also, SSDI payment 

cannot be excluded when making 

income-based eligibility determinations. 

However, individuals receiving SSDI 

meets the definition of an individual 

with a disability, which means the 

individual meets the criteria of an 

individual with a barrier to employment 

under WIOA sec. 3(24) and § 680.320(b). 

The Department encourages individuals 

receiving SSDI who are seeking to 

return to employment to access services 

through the one-stop delivery system. 

WIOA is subject to 38 U.S.C. 4213, and 

therefore military benefits are excluded 

from income-based eligibility 

determinations under WIOA. 

7. Subpart F—Work-Based Training 

Sections 680.700 through 680.850 are 

regulations for work-based training 

under WIOA. The regulations apply to 

(OJT) training, customized training, 

incumbent worker training, and 

transitional jobs. The regulations 

include specific information about 

general, contract, and employer 

payment requirements. Work-based 

training is employer-driven with the 

goal of unsubsidized employment after 

participation. Generally, work-based 

training involves a commitment by an 

employer or employers to employ 

successful participants fully after they 

have completed the program. Registered 

apprenticeship training is a type of 

work-based training that can be funded 

in the adult and dislocated worker 

programs; additionally preapprenticeships may be used to provide 

work experiences that can help 

participants obtain the skills needed to 

be placed into a registered 

apprenticeship. 

Work-based training can be an 

effective training strategy that can 

provide additional opportunities for 

participants and employers in both 

finding high quality work and in 

developing a highly skilled workforce. 

Each of these work-based models can be 

effectively used to meet a variety of job 

seeker and employer needs. OJT is 

primarily designed to first hire the 

participant and provide them with the 

knowledge and skills necessary for the 

full performance of the job. Incumbent 

worker training is designed to ensure 

that employees of a company are able to 

acquire the skills necessary to retain 

employment and advance within the 

company or to provide the skills 

necessary to avert a layoff. Customized 

training is designed to provide local 

areas with flexibility to ensure that 

training meets the unique needs of the 

job seekers and employers or groups of 

employers. 

Both training providers and 

employers providing OJT opportunities 

must be providing the highest quality 

training to participants. OJT contracts 

must be continually monitored so that 

WIOA funds provided through OJT 

contracts are providing participants the 

training to retain employment 

successfully. It is important that OJTs 

provide participants with relevant skills 

and opportunities for career 

advancement and provides employers 

with a skilled workforce. 

Under WIOA, the statute enables a 

Governor or Local WDB to increase the 

reimbursement rate for OJT from 50 to 

75 percent. This is designed to give 

States and Local WDBs additional 

flexibility in developing OJT 

opportunities that work best with the 

participating employers and in the local 

economy. 

WIOA also explicitly allows for 

incumbent worker training at the local 

level. WIOA introduces incumbent 

worker training as an allowable type of 

training for a local area to provide. 

Incumbent worker training is designed 

to either assist workers in obtaining the 

skills necessary to retain employment or 

to avert layoffs and must increase both 

a participant’s and a company’s 

competitiveness. Local areas may use up 

to 20 percent of their local adult and 

dislocated worker funds for incumbent 

worker training. The Department seeks 

to ensure that incumbent worker 

training is targeted to improving the 

skills and competitiveness of the 

participant and increasing the 

competitiveness of the employer. The 

training should, wherever possible, 

allow the participant to gain industryrecognized training experience and 

ultimately should lead to an increase in 

wages. To receive incumbent worker 

funding under WIOA, an incumbent 

worker must have an employeremployee relationship, and an 

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established employment history, with 

the employer. Incumbent workers are 

employed at the time of their 

participation, and the contract funds are 

paid to the employer for training 

provided to the incumbent worker 

either to avert a lay-off or otherwise 

retain employment. A ‘‘model’’ 

incumbent worker training would be 

one where a participant acquires new 

skills allowing him or her to move into 

a higher skilled and higher paid job 

within the company, thus permitting the 

company to hire a job seeker to backfill 

the incumbent worker’s pre-training 

position. 

Comments: A commenter 

recommended that the regulations 

clarify that OJT, customized, and 

incumbent worker training are exempt 

from the ETP process. 

Department Response: Work-based 

training and work experiences are 

subject to the dissemination 

requirements of WIOA sec. 134 

(a)(2)(B)(v) and the requirements of 

WIOA sec. 122(h) as the Governor may 

require. These requirements are separate 

from the ETP section of WIOA sec. 

122(a) through (f). The Department has 

modified the language of the regulatory 

text in § 680.340(b), which requires 

Local WDBs to disseminate the list of 

ETPs, to make clear that the work-based 

training provider information 

requirements are separate from the 

requirements governing the ETPL. These 

provisions of WIOA sec. 122(h) apply to 

providers of work-based training. 

On-the-Job Training 

Comments: A commenter expressed 

support for the proposed requirements 

regarding OJT. Another asked the 

Department to earmark funding either 

on the national or State level for 

employer education as to the benefits of 

hiring after training is received. 

Department Response: The 

Department considers employer 

engagement to be critical to the success 

of these programs. It plans to provide 

additional guidance and technical 

assistance for this purpose. 

Comments: A commenter expressed 

concern that the different ‘‘employer 

match’’ requirements for OJT, 

customized training, and incumbent 

worker training would present a 

challenge to explain to employers, and 

recommended that the Department 

simplify the match requirements and 

lower them for small businesses to 

encourage their participation in the 

programs. Specifically, this commenter 

recommended that the match 

requirement be the same across all three 

types of training and be differentiated 

based on business size. 

Department Response: The matching 

requirements training for these three 

types of training are specified in WIOA, 

and are provided, consistent with 

WIOA, at: § 680.700 for OJT, § 680.760 

for customized training, and § 680.820 

for incumbent worker training. Each 

type of training emphasizes a different 

need of employers and individuals, and 

the employment match is designed to 

reflect the differences in those training 

types. No change is made in the 

regulatory text. 

Section 680.700 What are the 

requirements for on-the-job training? 

Comments: Two commenters asked if 

it would be permissible to enter into an 

OJT contract with a public non-profit 

agency such as a local fire department 

or board of education. 

Department Response: Yes, as long as 

the requirements of §§ 680.700 through 

680.730 are met, this type of OJT 

contract would be allowable. 

Comments: Regarding the 

circumstances under which adult and 

dislocated worker funding may not be 

used to enter into an OJT contract, two 

commenters recommended adding to 

§ 680.700(b) that OJT training contracts 

may not be entered into with employers 

that have unpaid unemployment 

insurance and workers compensation 

taxes. 

Department Response: The 

Department considers this to be at the 

discretion of State and Local WDBs and 

declines to modify the regulatory text to 

include this requirement. 

Comments: Two commenters 

recommended adding language to 

§ 680.700 requiring OJT contracts that 

cover ‘‘apprenticeable occupations’’ and 

pre-apprenticeship programs to be 

attached to registered apprenticeship 

programs. These commenters also 

recommended adding an additional 

condition to the list of factors that the 

Governor or Local WDB must take into 

account when exercising discretion to 

increase the reimbursement rate for OJT 

contracts in § 680.730(a). Specifically, 

these commenters recommended that 

the Department add a new subparagraph 

that would prohibit reimbursements for 

OJT programs for apprenticeable 

occupations unless they are part of a 

registered apprenticeship program. 

This commenter also suggested that 

this new regulatory provision require 

the Governor to consider whether the 

OJT contracts are harmonized with 

registered apprenticeship programs such 

that no OJT contract operates to train in 

an apprenticeable occupation unless it 

is part of a registered apprenticeship 

program (or comparable program 

determined by the Secretary not to 

undermine registered apprenticeship 

programs) and that any contract for preapprenticeship is articulated with at 

least one registered apprenticeship 

programs. 

Department Response: Section 

680.740 specifies how registered 

apprenticeship program sponsors or 

participating employers in registered 

apprenticeship programs may be 

contracted to provide OJT. The 

Department declines to add language 

that restricts the OJT portion of nonregistered apprenticeships from 

receiving OJT funds providing that they 

meet the requirements of §§ 680.700 

through 680.730 and any criteria 

established by the Local WDB. 

Comments: One commenter requested 

that the Department amend § 680.700 to 

include work-based learning activities 

that are identified and linked to training 

provided by ETPs. 

Department Response: There are no 

prohibitions to ETPs providing workbased learning activities, provided that 

those activities meet the conditions of 

§§ 680.700 through 680.730. 

Comments: To prevent hiring workers 

for the duration of the OJT with no job 

continuity afterwards, a commenter 

recommended there be a minimum 

standard to address performance 

relating to both employment and career 

pathways to which all Governors would 

be required to adhere. 

Department Response: OJT 

participants are part of the performance 

accountability system under WIOA 

which includes employment related 

outcomes, and performance information 

will be collected on all participants in 

OJT. This approach will help to ensure 

that States and local areas are utilizing 

high quality training providers for both 

ITAs and work-based training. In 

addition to the required performance 

information, Governors may set 

additional performance criteria for 

work-based training under WIOA sec. 

122(h). The Department will continue to 

support collaboration across all WIOA 

title I programs. 

Comments: Regarding the duration of 

an OJT contract, a commenter 

recommended that OJT be used for 6 to 

12 months with discretion resting with 

the Local WDB. 

Department Response: The 

Department is not requiring specific OJT 

duration limitations. The Department 

agrees with the comment that the 

discretion should be left to the Local 

WDBs and declines to make changes to 

the regulatory text at § 680.700(c). 

Comment: Two commenters requested 

that § 680.700 include a reference to 

agreements with registered 

apprenticeship programs under 

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§ 680.740(a), to make clear OJT can be 

provided by registered apprenticeship 

programs. 

Department Response: The 

Department has added language to 

§ 680.700 to be clear that OJT contracts 

may be written with registered 

apprenticeship program sponsors. 

Section 680.710 What are the 

requirements for on-the-job training 

contracts for employed workers? 

Comments: A commenter stated that 

the determination of a ‘‘self-sufficient 

wage’’ should be left to the State and 

local areas and driven by local 

circumstances. 

Department Response: The 

Department maintains the selfsufficiency standard. States may 

develop a State self sufficiency 

standard, and local areas may adjust the 

standard, within the set parameters of 

WIOA sec. 134(c)(3) and (d)(1)(a). 

Comments: A commenter 

recommended insertion of a reference to 

‘‘workers with barriers to employment, 

including people with disabilities’’ in 

§ 680.710(a) and broadening OJT 

contracts to include introduction of 

accessible technology and other 

workplace accommodations for workers 

with emerging disabilities in need to 

training to stay on the job. 

Department Response: Title I adult 

and dislocated worker funds are to be 

used to target services to individuals 

with barriers to employment as defined 

in WIOA sec. 3(24). Individuals with 

disabilities are a part of this definition. 

The Department has added ‘‘reasonable 

accommodations for individuals with 

disabilities’’ as an allowable supportive 

service in § 680.900, which can be used 

to help enable an individual to 

participate in OJT training. 

Section 680.720 What conditions 

govern on-the-job training payments to 

employers? 

Comments: Several commenters 

concurred with the Department’s 

decision not to define ‘‘extraordinary 

costs’’ through the regulation, allowing 

for flexibility. One commenter would 

leave the definition up to the States, 

while another recommended that it be 

left to local discretion to ensure their 

OJT arrangements are applicable to local 

market conditions. 

One commenter recommended that 

‘‘extraordinary costs’’ be defined 

according to the Association for Talent 

Development Guidelines, which divide 

expenses according to whether they are 

direct or indirect. The commenter 

suggested that at a minimum that the 

regulations provide explicit coverage of 

unrecoverable material expenses (i.e., 

materials and articles nonproductively 

expended in training that do not create 

a usable product) and of participant 

trainees and trainers lost from 

productive work. 

Two commenters recommended 

deleting proposed § 680.720(c), which 

specified that employers are not 

required to document the extraordinary 

costs associated with training OJT 

participants and replace it with a 

requirement that the Governor collect 

performance data regarding OJT to 

ensure that OJT contracts are fulfilling 

the purposes of WIOA. 

Department Response: The 

Department declines to require 

additional cost or other documentation 

from employers to avoid creating an 

unnecessary burden. States and local 

areas may further define what 

constitutes an ‘‘extraordinary cost’’ at 

their discretion. 

Section 680.730 Under what 

conditions may a Governor or Local 

Workforce Development Board raise the 

on-the-job training reimbursement rate 

up to 75 percent of the wage rate? 

Comments: A commenter requested 

clarification about when a Local WDB 

may increase the rate for OJT contracts 

up to 75 percent, and specifically asked 

if a Governor may limit the Local WDB’s 

authority to increase the reimbursement 

rate if all factors required in the 

regulation and under local policy are 

met. 

Department Response: The Governor 

may not limit the Local WDB’s authority 

to increase the reimbursement rate for 

OJT contracts provided with funds 

allocated to the local area. The 

difference between the Governor and 

the Local WDB with respect to OJT 

reimbursement rates is what funding 

source each is allowed to raise the 

reimbursement rate for. The Governor 

may increase the reimbursement rate for 

OJT contracts provided with Governor’s 

Reserve funds or NDWG funds. Local 

WDBs may increase the reimbursement 

rate for OJT contracts provided with 

funds allocated to the local area. 

Comments: A commenter suggested 

that employers paying above the median 

wage for the occupation should be 

eligible for increased reimbursement as 

follows: ‘‘Entry Level’’ at 50 percent, 

‘‘Median’’ at 60 percent, and 

‘‘Experienced’’ at 75 percent. 

Another commenter described its 

current waiver that allows for a 

graduated rate of OJT reimbursements 

based on the size of the company, which 

it asserted has helped small businesses 

gain funding and skilled employees. 

Department Response: The 

Department declines to add these factors 

into the regulatory text. They may be 

determined appropriate by the 

Governors or Local WDBs under 

§ 680.730(a)(4). 

Comments: One commenter asked if a 

State needs to seek a waiver to 

reimburse employers more than 75 

percent of the OJT wage, and if the 

waiver could be obtained before July 1, 

2015. This commenter described its 

current waiver to provide up to a 90 

percent employer reimbursement rate. 

Department Response: The 

Department is not considering waiver 

requests as part of this rule making. All 

WIOA title I adult and dislocated 

worker OJT projects going forward are 

expected to adhere to the 

reimbursement rates set forth in WIOA. 

Comments: A commenter urged the 

Department to provide guidance to State 

and Local WDBs on coordinating the 

increased reimbursement criteria with 

high-road economic development 

strategies that improve wages, benefits, 

and other job quality factors for frontline employment in a State and region. 

Department Response: The 

Department will issue guidance and 

technical assistance on work-based 

learning, including OJT, sector 

strategies, and industry partnerships. 

Comments: A commenter 

recommended that the Department 

include a reference to individuals with 

disabilities in § 680.730(a)(1) to provide 

an incentive to State and Local WDBs to 

focus on this population. 

Department Response: Paragraph 

(a)(1) of § 680.730 states that Governors 

may take the characteristics of the 

participants into consideration when 

raising the reimbursement rate, 

emphasizing ‘‘individuals with barriers 

to employment’’ as defined in WIOA 

sec. 3(24). Individuals with disabilities 

are included in this definition. No 

change is made to the regulatory text. 

Comments: Some commenters stated 

that the factors to be considered 

regarding the relation of training to the 

competitiveness of the participant 

should be the size of the employer or 

the characteristics of the participant as 

determined by the Governor or Local 

WDB. A commenter agreed that 

employer size should be a factor related 

to increasing an OJT reimbursements 

rate, stating that smaller employers 

often need additional support. 

Two commenters requested that the 

Department numerically clarify or 

define ‘‘small businesses’’ as it applies 

to the employer size factor under 

§ 680.730(a)(2). Similarly, two 

commenters recommended that the 

Department clarify the meaning of ‘‘with 

an emphasis on small businesses’’ in 

§ 680.730(a)(2). One commenter 

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recommended that the Department rely 

upon the Small Business 

Administration’s (SBA’s) definition of 

‘‘small business.’’ Another commenter 

requested that ‘‘size of the employer, 

with an emphasis on small businesses’’ 

be removed from § 680.730(a)(2), or at 

least clarified to ensure that it does not 

negatively impact medium and large 

employers seeking a higher OJT 

reimbursement rate. 

Department Response: The 

Department included ‘‘the size of the 

employer’’ as a factor that Governors 

and Local WDBs may take into account 

when deciding to raise the 

reimbursement rate for a particular OJT 

project. The Department recognizes that 

providing these services to small 

businesses, which may need additional 

support in providing OJT, is an 

important factor in determining the 

reimbursement rate for OJT. However, 

there is not requirement that only small 

businesses may receive a higher 

reimbursement rate. The Department 

recommends that Governors and Local 

WDBs refer to SBA’s definition of 

‘‘small business’’ as a guide which 

varies by industry; it can be found at 

https://www.sba.gov/content/summarysize-standards-industry-sector. 

Comments: A commenter stated that 

before entering training, all individuals 

should be thoroughly assessed to 

determine appropriateness of training— 

including demand of an occupation, 

post-training wages, and other 

individualized customer-level criteria— 

to be as efficient as possible with 

limited training resources. Several 

commenters specifically addressed the 

‘‘competitiveness of the participant’’ 

factor (proposed § 680.730(a)(4)); 

including, its use in the provision of 

incumbent worker training, a measure 

used in determining wages for eligibility 

purposes, job retention, and credential 

attainment. 

Department Response: In order for an 

individual to receive training, he or she 

must meet the criteria in WIOA sec 

134(c)(3)(A). The Department notes that 

there is no sequence of service 

requirement; however, the eligibility for 

training must be established by the 

Local WDB. An assessment is one 

appropriate ways of determining 

training eligibility. The Department 

considers the ‘‘competitiveness of a 

participant’’ to be an appropriate factor 

that Governors or Local WDBs may use 

when determining the OJT 

reimbursement rate, under 

§ 680.730(a)(4). The Department agrees 

with the commenters’ recommendation 

and declines to define ‘‘competitiveness 

of a participant’’ through regulation. 

Governors and Local WDBs may 

develop a policy or criteria to be used 

in determining ‘‘competitiveness of a 

participant.’’ 

Section 680.740 How can on-the-job 

training funds be used to support 

placing participants into a registered 

apprenticeship program? 

Comments: Many commenters 

addressed the issue of maximum 

amount of time for OJT funds to be used 

to support registered apprenticeships; 

including, what entity decides the 

duration, flexibilities in determining 

duration, and tailoring to the needs of 

the participant. 

Department Response: The 

Department has considered these 

comments and declines to make changes 

to the regulatory text that would limit 

the flexibility of States and local areas 

to determine the appropriate duration 

for OJT funds used to support placing 

apprentices into a registered 

apprenticeship program. These 

decisions to be best made on a case-bycase basis at the State and local level 

based on individual need. 

Comments: One commenter stated 

that WIOA funding for apprenticeship is 

useful only if it: (1) Could support a preapprenticeship class of 15 to 20 students 

for a 90-day training class; and (2) 

provide additional funding for Stateapproved apprenticeship training, and if 

funding could go directly to the program 

and not an intermediary like the State 

WDB. The commenter warned that most 

registered apprenticeship programs are 

multi-employer, which makes it 

difficult to offer OJT contracts to 

employers as a hiring incentive; instead, 

the commenter suggested that it would 

be more productive to use OJT contracts 

as an incentive to enroll OJT contracteligible individuals in their 

apprenticeship programs. 

Two commenters requested 

clarification regarding management of 

reimbursement to employers by the 

registered apprenticeship training 

program when relationships with 

multiple employers exist; for example, 

when registered apprenticeship 

participants work for multiple 

employers during an OJT to maintain 

full-time employment. 

A commenter urged the Department to 

revise § 680.740 to provide that OJT 

contracts may be written with a 

registered apprenticeship program, an 

employer participating in a registered 

apprenticeship program, or both. This 

commenter stated that having registered 

apprenticeship programs as signatories 

to OJT contracts guards against OJT 

becoming an employer subsidy without 

advancing the worker’s progress. 

Further, the commenter recommended 

that OJT funds initially be received by 

the apprenticeship program, then 

reimbursed to the participating 

employer for the ‘‘extraordinary costs.’’ 

Several commenters said that States 

would benefit from guidance and 

technical assistance on facilitation and 

implementation of apprenticeships. 

Department Response: The 

Department recognizes the value of preapprenticeships and encourages preapprenticeship programs to become 

ETPs through WIOA sec. 122(d). Preapprenticeship programs do not 

automatically qualify to be on the ETPL 

like RA programs do; however, if they 

meet the requirements under the 

provisions of sec. 122(a-f) to become 

ETPs, they can be funded using ITAs. 

To provide information and new 

technical assistance resources for 

starting and enhancing registered 

apprenticeship programs, the 

Department issued Training and 

Employment Notice No. 20–15, dated 

January 11, 2016 (http://wdr.doleta.gov/ 

directives/attach/TEN/TEN_20-15.pdf). 

The Department plans on issuing 

additional guidance and technical 

assistance clarifying pre-apprenticeship 

and registered apprenticeship use in the 

one-stop delivery system. The 

Department has changed the regulatory 

text in § 680.740(a) to make it clear that 

OJT contracts may be entered into with 

registered apprenticeship program 

sponsors or participating employers in a 

registered apprenticeship program for 

the OJT portion of the registered 

apprenticeship program. 

Comments: Commenters urged the 

Department to revise the regulation to 

allow OJT funding to be used for nonregistered apprenticeship programs. 

Similarly, two different commenters 

stated that § 680.740 should not limit 

OJT funds to registered apprenticeship 

programs. 

Department Response: WIOA sec. 

122(a)(2)(B) provides automatic 

qualification for registered 

apprenticeship programs on ETPLs and 

provides an overall emphasis on 

registered apprenticeship programs 

throughout the one-stop delivery 

system. The Department has used this 

emphasis to highlight the unique 

flexibilities the one-stop delivery system 

has in making use of registered 

apprenticeship programs to provide 

training services, including ITAs and 

OJT. The regulatory text in § 680.740 is 

designed to highlight those flexibilities 

for OJT. This in no way restricts other 

appropriate uses of OJT, including for 

use with non-registered 

apprenticeships. The Department 

declines to make a regulatory text 

change include all allowable training 

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types; however, because of WIOA’s 

emphasis on registered apprenticeship, 

the Department has determined it 

appropriate to highlight. 

Comments: A commenter expressed 

support for combining funds to support 

registered apprenticeship training under 

§§ 680.740 and 680.750. 

Department Response: This allows for 

the combined use of OJT and ITAs to 

support placing participants in a 

registered apprenticeship program. The 

Department notes that there is no 

prohibition on the combined use of 

ITAs and OJT as well as any other 

contracted training services under 

WIOA sec. 134(c)(3)(G)(iv). However 

these decisions must be based on 

individual need, and they must be 

paying for separate program elements. 

No changes have been made to the 

regulatory text in response to the 

comment. 

Section 680.760 What is customized 

training? 

Comments: A commenter requested 

clarification of the ‘‘commitment’’ by 

the employer to employ all individuals 

upon successful completion of 

customized training; specifically, 

whether it must be by written letter or 

verbal, and whether an employer may 

use a temporary agency for the first 90 

days of employment. Similarly, another 

commenter urged that the regulations 

address an employer’s expectation to 

commit to hire. 

Department Response: The 

‘‘commitment’’ is a statutory 

requirement in WIOA sec. 3(14) and 

134(c)(3)(g)(1) requires a contract 

between the employer and the Local 

WDB for customized training. Local 

WDBs have flexibility in determining 

what constitutes an appropriate 

commitment to hire the individuals on 

behalf of the employer. 

Comments: One commenter requested 

that the Department include language in 

§ 680.760 that would exempt the 

requirement that ‘‘the employer pays a 

significant cost of the training’’ when 

the Local WDB determines that the 

workers are ‘‘at-risk’’ for layoff. This 

commenter reasoned that customized 

training seems the most appropriate 

support to provide when workers are 

determined to be vulnerable to layoff or 

closure and have basic skills but may 

lack a preferred credential and/or 

industry-recognized certification. 

Department Response: WIOA sec. 

3(14) states that for customized training, 

employers must pay for a significant 

cost of the training, which is to be 

determined by the Local WDB. 

Customized training is generally for 

hiring new or recent employees and not 

for retraining existing employees. 

Incumbent worker training may be used 

to provide training for current 

employees as a layoff aversion strategy. 

No changes have been made to the 

regulatory text in response to the 

comments. 

Comments: Two commenters asked if 

the § 680.760(c) requirement that an 

employer pay a ‘‘significant cost of the 

training’’ means the employer must pay 

for more than 50 percent of the cost of 

training. One commenter recommended 

that ‘‘significant cost of the training’’ 

should be eliminated as a criterion for 

customized training under § 680.760 

because it is vague and arbitrary. 

Department Response: WIOA sec. 

3(14)(C) requires that employers pay a 

‘‘significant cost of the training’’ of 

WIOA. Local WDBs have the discretion 

to define the term ‘‘significant cost of 

the training’’ as is appropriate for their 

local areas. No change is made in the 

regulatory text. 

Comments: A commenter proposed 

adding a paragraph (d) to the definition 

of customized training in § 680.760 

stating, ‘‘For which the training results 

in a degree, certificate, or industryrecognized credential.’’ 

Department Response: The 

requirements for customized training 

are defined in WIOA sec. 3(14). No 

change is made to the regulatory text. 

The Department encourages the use of 

customized training that leads to 

credentials, but this is not a requirement 

of customized training. 

Section 680.770 What are the 

requirements for customized training for 

employed workers? 

Comments: Two commenters 

recommended that the Department 

remove the requirement for employed 

workers to be under the self-sufficient 

wage to participate in customized 

training because it is a deterrent for 

many companies and does not provide 

an optimal situation for new hires. 

Other commenters asserted that the 

provision would prevent dislocated 

workers reemployed at a lower wage but 

still above the self-sufficiency wage 

from participating in customized 

training that could help them reach 

their prior wage levels. One commenter 

recommended that the Department 

eliminate ‘‘self-sufficient wage’’ as a 

criterion or standard for use by Local 

WDBs in determining work-based 

training arrangements under § 680.770 

because it is arbitrary and holds 

different meanings in different 

communities. This commenter asserted 

that wage gain is a more objective 

measure. 

One commenter expressed concern 

that the self-sufficient wage requirement 

and the requirement for training to 

incorporate new technologies, 

processes, or procedures are too 

restrictive. 

Department Response: The 

Department is maintaining the selfsufficiency standard for employed 

workers to be eligible for customized 

training, consistent with eligibility for 

training services under WIOA sec. 

134(c)(3)(A). The Department considers 

wage gain an important measure that a 

Local WDB may consider when 

determining if customized training 

would be appropriate. 

Comments: A commenter 

recommended adding a criterion to the 

regulation that would allow customized 

training for individuals making more 

than self-sufficient wage if it would 

prevent them from being unemployed as 

a result of a layoff. 

Department Response: The 

Department considers incumbent 

worker training to be the most 

appropriate type of training for layoff 

aversion. Customized training is 

generally for hiring new or recent 

employees and not for retaining existing 

employees, although there may be 

instances where customized training is 

appropriate in that circumstance. In 

those instances customized training may 

be used for individuals making more 

than self-sufficient wages if all 

appropriate criteria are met. Lastly, 

customized employment can be used for 

individuals making more than selfsufficient wages as long as it leads to 

comparable to or higher than previous 

employment. 

Comments: A commenter cautioned 

that if customized training and 

incumbent worker training are 

differentiated for low-skilled workers 

below the self-sufficiency wage, the 

regulations should add language that 

requires local areas to fund and promote 

both options to employers. 

Department Response: Under WIOA, 

both incumbent worker training and 

customized training are permissible 

activities, each with specific eligibility, 

funding, and allowable criteria. Local 

WDBs have the flexibility to provide the 

appropriate types of training and 

services needed by their local area. 

Comments: One commenter 

recommended that small businesses and 

Local WDBs be given maximum 

flexibility to develop customized 

training programs tailored for their 

individual needs. This commenter 

stated that customized training should 

definitely include OJT. Expressing 

concern that proposed § 680.770 is 

overly burdensome and would erect a 

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significant barrier for access to training 

funds, another commenter stated that, 

by definition, if a manufacturer is 

providing the training then it is indemand and valuable in the workplace. 

Department Response: Customized 

training and OJT are two distinct types 

of allowable training. OJT participants 

learn on the job, while customized 

training is generally designed so that 

participants are trained by a third party 

for the employer. The regulatory text at 

§ 680.770 is consistent with WIOA sec. 

134(c)(3)(A) about how individuals may 

qualify to receive training services. 

Local WDBs determine training service 

investments based upon an analysis of 

the employment needs of the employers 

in current and emerging in-demand 

industry sectors and occupations and 

the needs of the area’s labor force. 

Comments: A commenter stated that 

for customized training involving 

multiple employers, opportunities must 

be offered to contract directly with a 

training provider without triggering 

procurement requirements. 

Department Response: Grant 

recipients and subrecipients must 

adhere to the procurement standards set 

forth by the Uniform Guidance at 2 CFR 

200.317 through 200.326. When 

procuring property and services under a 

Federal award, States must follow the 

same policies and procedures used for 

procurements from its non-Federal 

funds [2 CFR 200.317]. All entities that 

are not States must ensure that 

procurements are conducted in a 

manner that is consistent with 2 CFR 

200.318 through 200.326. 

Comments: Several commenters 

addressed the distinction between OJT 

and customized training; including, 

customization, use of classroom 

training, and needs of the participant 

and employer. 

Department Response: WIOA defines 

both customized training and OJT at 

WIOA sec. 3(14) for customized training 

and sec. 3(44) for OJT and provides the 

differentiation, which is primarily OJT 

is focused on learning on the job, while 

customized training is generally 

classroom based and is often provided 

by a third party for the employer. There 

have been no changes to the regulatory 

text in response to this comment. 

Section 680.780 Who is an 

‘‘incumbent worker’’ for purposes of 

statewide and local employment and 

training activities? 

Comments: One commenter expressed 

concern that the definition of 

‘‘incumbent worker’’ was unclear and 

stated that if the definition of incumbent 

worker is to be refined by Governors, 

factors such as hours worked and skill 

level should be considered. Another 

commenter stated that there was 

confusion under WIA about the 

distinctions between ‘‘employed’’ and 

‘‘incumbent’’ workers. 

Department Response: While the 

Department agrees that hours worked 

and skill level are appropriate 

considerations that may be used by 

Governors and the Local WDBs when 

deciding when an employer is eligible 

to receive incumbent worker training 

under § 680.810. Any further definition 

may occur outside of the regulation, 

including by Governors and Local 

WDBs. 

Incumbent worker training is 

designed to meet the workforce needs of 

an employer or group of employers. The 

employer must meet the eligibility 

criteria established in § 680.810. The 

incumbent worker must meet the 

requirements established in § 680.780 

and the incumbent worker training 

requirements described in § 680.790, 

which discuss the requirements for 

incumbent worker training for 

individuals receiving training and the 

standard by which incumbent worker 

training should be provided. An 

incumbent worker does not have to 

meet the eligibility criteria for WIOA 

title I adult and dislocated worker 

programs. An employed worker must 

meet title I eligibility criteria for adult 

and dislocated worker programs in 

order to receive career services, and/or 

must meet the wage requirements of 

WIOA sec. 134(c)(3)(A)(i) and 

§ 680.210(a)(1) and (2) to receive 

training services while also being 

employed at the beginning of 

participation in career and training 

services. No changes have been made to 

the regulatory text in response to these 

comments. 

Comments: Many commenters 

addressed the issue of the appropriate 

amount of time an employee must have 

worked for an employer before being 

eligible for incumbent worker training. 

There was a range of timeframes 

recommended, ranging from 3 months 

to 1 year, and some commenters 

recommending no minimum timeframe. 

Some commenters stated that it should 

be when an employee is off of 

probationary status or once the 

employer-employee relationship is 

established. One commenter discussed 

that new employees are often the most 

in need of training. One commenter 

wanted Local WDBs to develop policies 

on employee tenure with a company. A 

commenter recommended that the 

Department utilize a standard that is 

based on the company’s tenure in a 

community as the standard not to 

incentivize business relocation. Lastly, a 

commenter wanted the Department to 

ensure there was no maximum duration 

of time an employee could work for a 

company and not be eligible for 

incumbent worker training. 

Department Response: Incumbent 

worker training is intended for workers 

with an established work history with 

the current employer, and who have the 

knowledge, skills, and abilities needed 

by their current employer but because of 

changes in the necessary skills to 

remain in their position, to advance in 

the company, or to avoid a layoff, the 

employees now need additional 

training. Thus, the Department has 

decided to retain the 6-month 

requirement for incumbent workers. 

The Department does not consider 

incumbent worker training to be part of 

the occupational training for the 

position in which the new employee 

was hired. This type of training is most 

appropriate for an OJT or customized 

training. However, given that some 

incumbent worker training may be 

provided for a cohort of employees, the 

Department recognizes the concern 

about excluding certain members of a 

cohort based on this criterion and has 

added language into the regulatory text 

in § 680.780 to create an exception for 

cohort training, stating that a majority of 

the cohort must meet the 6-month 

requirement. 

Comments: Many commenters 

recommended adding specific language 

to § 680.780 recognizing the need for 

incumbent training services to assist 

long-term workers who were hired 

when skill level requirements were 

much lower. 

Department Response: While the 

Department has established a 6-month 

rule for the minimum duration of 

employment for incumbent worker 

training eligibility, it has not set a 

maximum duration of employment. 

Long-term workers who are looking to 

gain new skills may benefit from 

incumbent worker training. 

Comments: The Department received 

a number of comments on the 

requirement incumbent worker training 

‘‘must satisfy the requirements in WIOA 

sec. 134(d)(4) and § 680.790 and 

increase the competitiveness of the 

employee or employer.’’ Because this 

sentence is more properly included in 

§ 680.790, which discusses what 

incumbent worker training is, the 

Department removed the text from 

§ 680.780 and instead included it in 

§ 680.790. The comments received about 

this text are discussed below, in the 

discussion of § 680.790. 

The Department made one final 

clarifying change at the end of 

§ 680.780. The NPRM stated that an 

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incumbent worker does not necessarily 

have to meet the eligibility requirements 

for career and training services for 

adults and dislocated workers under 

WIOA. The Department has added 

language to make clear that if the worker 

is receiving other services in addition to 

incumbent worker training, the 

individual must meet the eligibility 

requirements like all other adult or 

dislocated worker participants. 

Section 680.790 What is incumbent 

worker training? 

Comments: Two commenters urged 

the Department to define how 

incumbent worker training should 

‘‘increase the competitiveness of the 

employee or employer’’ and 

recommended that such training be 

designed to retain a skilled workforce or 

avert the need to lay off employees. 

Another commenter urged the 

Department to define ‘‘improving the 

skills and competitiveness of the 

participant’’ and ‘‘increasing the 

competiveness of the employer’’ and to 

stipulate how competitiveness will be 

initially assessed and continuously 

measured. One commenter 

recommended that ‘‘increasing the 

competitiveness of the employee or 

employer’’ be defined in State policy to 

allow for flexibility or, alternatively, be 

defined as training that retains and 

advances a skilled workforce. 

Department Response: The 

Department agrees that the phrase 

‘‘increase the competitiveness of the 

employee or employer’’ may be defined 

under State and Local WDB policy, as 

consistent with the discussion below, 

and with any future guidance provided 

by the Department. No change is made 

to the regulatory text. 

Comments: A commenter stated that 

incumbent worker training should be 

‘‘employer driven’’ and 

‘‘competitiveness of the participant’’ 

should be a factor only for determining 

if incumbent worker training is 

appropriate. 

Another commenter recommended 

that States be allowed to develop 

incumbent worker training policies 

while the Department provides 

technical assistance and guidance. This 

commenter urged against relying on 

layoff aversion and recommended using 

available labor market data and sector 

strategies to target occupations for 

training. 

Some commenters urged the 

Department to omit layoff aversion as a 

criterion for incumbent worker training, 

asserting that it would have a chilling 

effect and would not be offered during 

healthy economic times. One 

commenter asserted that proposed 

§ 680.790 is too restrictive in focusing 

only on averting layoffs or retaining 

employment. This commenter 

recommended that the Department add 

specific language allowing incumbent 

training ‘‘to promote the 

competitiveness of both the participant 

and the employer’’ and ‘‘to ensure an 

employee’s skill set is advanced.’’ 

One commenter stated that incumbent 

worker training should be used for 

individuals who are at a self-sufficient 

wage and require training that helps the 

employer stay competitive and retain a 

skilled workforce or avert a layoff. 

Department Response: WIOA sec. 

134(d)(4)(B) states that incumbent 

worker training is to assist workers in 

obtaining the skills necessary to retain 

employment or avert layoffs. The 

Department considers these to be two 

distinct, although not mutually 

exclusive, types of requirements for the 

training, and the regulatory text retains 

the requirements at § 680.790. Further 

definition of these terms may be 

articulated in State and local policies. 

There have been no changes to the 

regulatory text in response to this 

comment. 

Comments: Some commenters 

recommended using earnings growth in 

the 6 months following incumbent 

worker training to measure increased 

competitiveness of the employee. One 

commenter recommended measuring 

increased competitiveness by higher 

wages 1 year after training, portability, 

layoff aversion, and progress toward 

self-sufficiency. 

Another commenter recommended 

measuring ‘‘competiveness of the 

employee’’ by documented wage 

increases; access to other documented 

benefits, bonuses, or commissions; 

obtaining industry-recognized 

certificates or credentials; or ascension 

of the worker into an advanced job 

classification or pay grade. This 

commenter stated that identifying 

opportunities for increased 

competitiveness of employers might 

require access to confidential business 

information. 

One commenter recommended that 

the Department require the following to 

‘‘increase the competitiveness of the 

employee and employer’’: (1) Training 

takes place on company time and 

trainees are compensated at no less than 

their normal rate of pay while attending 

training; (2) training is short-term and 

ideally 6 months or less; (3) training 

focuses on occupational skills; and (4) 

businesses must demonstrate that the 

costs of training are reasonable. 

Department Response: Section 

680.810 outlines the factors that a Local 

WDB must consider when determining 

eligibility for an employer to receive 

incumbent worker funds and provides 

flexibility to the Local WDB to establish 

other factors in making such a 

determination. The Department notes 

that some ideas commenters provided 

about how to provide incumbent worker 

training have merit, and the Department 

will include them in guidance and 

technical assistance. No changes have 

been made to the regulatory text in 

response to these comments. 

Comments: One commenter 

recommended the following metrics for 

evaluating the effectiveness of 

incumbent worker training: Revenue 

increase, contracts awarded, sales data, 

geographic expansion, wage increase, 

increased education attainment, and 

increased credential attainment. 

Another commenter stated that 

incumbent worker training arrangement 

should be flexible, with success 

measured by metrics such as earnings 

gains, new skills and competencies 

gained, new certifications received and/ 

or number of employees migrating into 

new employment, especially in the case 

of layoff aversion. One commenter 

recommended that an employer should 

demonstrate where incumbent worker 

training would increase revenue and 

lead to an increase in wage level within 

90 days of training completion. 

Department Response: With respect to 

eligibility for incumbent worker 

training, many of these metrics are what 

the Department considers to be possible 

factors for a State or local area in 

determining incumbent worker training 

eligibility for training providers, 

employers, and employees, as included 

under §§ 680.780 and 680.810. The 

Department may issue further guidance 

on this subject. 

The Department clarifies that, because 

of the unique nature of the Incumbent 

Worker Training Program, where the 

Local WDB only evaluates the 

employers for eligibility consistent with 

§ 680.810, individuals receiving 

Incumbent Worker Training are not 

subject to the eligibility criteria that 

apply to participants in the adult or 

dislocated worker programs, unless they 

are also receiving other services under 

those programs. Therefore, individuals 

who only receive incumbent worker 

training and no other WIOA title I 

service do not fall within the definition 

of ‘‘participant’’ in 20 CFR 677.150(a) 

(see Joint WIOA Final Rule). As such, 

they are not included in calculations for 

the State Primary Indicators of 

Performance. The Department is making 

a change to be consistent with this in 

§ 680.810(a) and (b) by removing the 

word ‘‘participant’’ and inserting 

‘‘individual’’ to reflect that incumbent 

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worker training eligibility is decided at 

the employer level. 

States and Local WDBs are, however, 

required to report on individuals who 

receive incumbent worker training, 

including employment status after 

training, wages after training, and 

credential attainment, the details of 

which are provided through the 

Department’s ICR process and 

subsequent guidance. As part of future 

collections and guidance, the 

Department may seek to collect 

additional employer data, such as 

employer size, industry, and other 

information that may be used to 

evaluate the effectiveness of Incumbent 

Worker Training programs for both the 

employer and employee. 

Regarding the development and 

provision of Incumbent Worker Training 

by States and local areas, the 

Department encourages States and local 

areas to cultivate opportunities and 

develop policies that can appropriately 

support employers in their efforts to 

develop a more competitive workforce 

or avert potential layoffs and that 

provide incumbent workers with 

opportunities for advancement and 

wage gains within their company. 

Incumbent Worker Training policies 

must be aligned with State and Local 

Plans, as well as with sector strategy 

approaches for in-demand occupations. 

In addition to the required 

performance indicators, WIOA sec. 

122(h)(2) says that the Governor may 

require and use performance 

information relating to incumbent 

worker training and other work-based 

training to determine whether providers 

meet such performance criteria as 

required by the Governor. More detailed 

information on performance definitions 

and metrics are in 20 CFR part 677 (see 

Joint WIOA Final Rule). 

Comments: Several commenters said 

that it is unrealistic to expect incumbent 

worker training to result in the 

employee being promoted; instead, local 

areas need flexibility on timing of 

training and hiring new workers that 

coincides with the needs of business. In 

response to the NPRM preamble 

statement that ideal incumbent worker 

training would result in promotion and 

hiring to backfill the incumbent 

worker’s position, two commenters 

asked if it is realistic to expect a 

company, through a round of training to 

retain workers, to also be able to add 

new employees. One of these 

commenters stated that this is an ideal 

structure that would be better served 

under customized training for employed 

workers. However, one commenter 

agreed with the Department’s goal of 

using incumbent worker training to 

‘‘advance-and-backfill’’ to benefit two 

employees. 

Department Response: The 

Department clarifies that the ideal 

incumbent worker training strategy of 

upskilling and backfilling employee 

positions is meant as an illustrative 

example of an ideal incumbent worker 

opportunity and not as the only type of 

successful incumbent worker training 

strategy. In a situation where incumbent 

worker training is needed to avert a 

layoff, the alternative of upskilling and 

backfilling positions would be unlikely. 

The Department is committed to 

ensuring that the regulations maintain 

flexibility for States and local areas to 

develop incumbent worker training 

strategies that best fit the needs of their 

State and community. 

Comments: One commenter asked if 

the definition of incumbent worker 

training would allow for contracted 

training through business and industry, 

adult education, etc. 

Department Response: The 

Department declines to specify all of the 

incumbent worker training contracting 

options in regulatory text. However, to 

secure incumbent worker training, grant 

recipients and subrecipients must 

adhere to the procurement standards set 

forth by the Uniform Guidance at 2 CFR 

200.317 through 200.26. When 

procuring property and services under a 

Federal award, States must follow the 

same policies and procedures it uses for 

procurements from its non-Federal 

funds [2 CFR 200.317]. All entities that 

are not States must ensure that 

procurements are conducted in a 

manner that is consistent with 2 CFR 

200.318 through 200.326. 

Comments: A commenter 

recommended that incumbent worker 

training be structured to incorporate the 

biggest return on investment for Local 

WDBs, workers, and businesses by using 

economies of scale to upskill many 

workers at a time. 

Department Response: The 

Department agrees with this concern 

and has added language to § 680.780 to 

clarify that cohort training is an 

acceptable use of incumbent worker 

training funds. 

Comments: A commenter stated that 

apprenticeship should be an approved 

expense for incumbent worker training 

if it would lead to a higher paid, higher 

skilled job. 

Department Response: The 

Department considers apprenticeship 

training to be an allowable incumbent 

worker training expense, provided the 

requirements for incumbent worker 

training in §§ 680.780 and 680.790 are 

met. 

Comments: A commenter 

recommended that cost reimbursement 

be limited to: Costs of outside vendors 

or in-house trainers; costs of textbooks 

and training materials; distance learning 

fees; and credentialing exam fees. This 

commenter stated that trainees should 

be full-time or part-time employees with 

a permanent, year-round attachment to 

the business, so that temporary 

employees, seasonal employees, public 

employees, and volunteers would not be 

eligible. 

Department Response: Allowable 

costs of incumbent worker training are 

consistent with the allowable costs rules 

for all types of training. The allowability 

regulations are explained in 

Departmental guidance. To be eligible, 

the incumbent worker must be 

employed, meet the Fair Labor 

Standards Act requirements for an 

employer-employee relationship, and 

have an established employment history 

for more than 6 months. The 

Department may utilize guidance to 

clarify specific types of employment 

relationships that are eligible for 

employers to receive incumbent worker 

training funds. 

Section 680.800 What funds may be 

used for incumbent worker training? 

Comments: A commenter asked the 

Department to clarify if the 20 percent 

in proposed § 680.800(a) refers to total 

dollars or program dollars and does not 

include administrative funds. Another 

commenter recommended that the 

regulations clearly indicate the 

difference between employed workers 

and incumbent workers and that the 20 

percent limitation on training for 

incumbent workers would not apply to 

employed workers. 

Department Response: WIOA sec. 

134(d)(4) allows Local WDBs to set 

aside up to 20 percent of their total 

allocation of title I adult and dislocated 

worker funds on incumbent worker 

training, this includes administrative 

funds. The Department agrees with the 

commenter about the 20 percent 

restriction only applying to incumbent 

workers and not employed workers. 

Comments: A commenter asked for 

clarification to distinguish customized 

from incumbent worker training, and 

commented that §§ 680.800, 680.810, 

and 680.820 seem to apply to 

customized training for employed 

workers rather than incumbent worker 

training. 

Department Response: Customized 

training, as defined in WIOA sec. 3(14), 

is used to train individuals who are not 

employed with the participating 

employer at the start of participation. 

Incumbent worker training, as defined 

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in WIOA sec. 134(d)(4), is used to 

enhance the competitiveness of the 

employee/employer and/or avert a 

layoff. Incumbent workers are employed 

with the participating company when 

the training begins consistent with 

§ 680.780. The Department will provide 

further clarification through guidance 

and technical assistance. 

Comments: A commenter stated that it 

may be difficult, if not impossible, to 

determine accurately the amount of 

administrative funds that were spent on 

incumbent working training and 

transitional jobs. 

Department Response: WIOA allows 

Local WDBs to set aside up to 10 

percent of their adult and dislocated 

worker funds on Pay-for-Performance 

contract strategies (see WIOA sec. 

134(d)(1)(A)(iii)), Up to 20 percent on 

incumbent worker training (see WIOA 

sec. 134(d)(4)), and up to 10 percent on 

transitional jobs (see WIOA sec. 

134(d)(5)). These provisions are 

discussed in § 680.140(b)(1)(v), (b)(4), 

and (b)(8). Administrative activities 

necessary to initiate or procure a Payfor-Performance contract strategies, 

incumbent worker training, and 

transitional jobs must be consistent with 

§ 683.215, which also discusses how to 

determine whether an activity is 

administrative or programmatic for 

purposes of WIOA. If the activity would 

be considered programmatic under 

§ 683.215, then the cost would be 

subject to the caps discussed above. If 

the activity would be considered 

administrative under § 683.215, it may 

be paid for out of the Local WDBs’ usual 

administrative funds, and it is not 

subject to the caps. Therefore, the Local 

WDB would not need to specifically 

account how much of the administrative 

funds are spent on these particular 

programs. 

Section 680.810 What criteria must be 

taken into account for an employer to be 

eligible to receive local incumbent 

worker funds? 

Comments: A commenter asserted 

that proposed § 680.810 would impose a 

burden on States to write a policy for 

use of funds for incumbent worker 

training and asked what is the 

requirement for performance. 

Department Response: The 

Department acknowledges that State 

and local policy must be developed to 

govern the use of funds for incumbent 

worker training; however, since this 

activity was required to properly 

perform incumbent worker training 

under WIA, it is not an increase in 

burden. Incumbent worker training is a 

permissible activity; if a State or Local 

WDB decide to utilize incumbent 

worker training as a workforce strategy 

for local businesses then they need to 

have clear State and local policies on its 

use. 

The Department declines to add 

specific language to the regulatory text 

addressing the concern about 

performance requirements. Specific 

definitions of metrics that will be used 

to evaluate performance are defined 

through the WIOA Joint Performance 

ICR. More detailed information on 

performance definitions and metrics are 

at 20 CFR part 677 (see Joint WIOA 

Final Rule). The Department plans to 

issue guidance on incumbent worker 

training, including how it is impacted 

by performance. 

The Department notes, as explained 

above, that it made a clarifying change 

to § 680.810 to replace the word 

‘‘participant’’ with ‘‘individual’’ to 

reflect that incumbent worker training 

eligibility is decided at the employer 

level; individual workers participating 

in incumbent worker training are not 

considered ‘‘participants’’ under 20 CFR 

677.150(a), unless they receive other 

adult or dislocated worker services (see 

Joint WIOA Final Rule). 

Comments: Two commenters 

requested that the Department add a 

paragraph (d) directing that incumbent 

worker training contracts may not be 

entered into with employers that have 

unpaid unemployment insurance and 

workers compensation taxes. 

Department Response: The 

Department declines to add specific 

language to the regulatory text 

addressing this concern. The 

Department considers the suggested 

factor to be an allowable consideration 

under § 680.810(c). 

Section 680.820 Are there cost sharing 

requirements for local area incumbent 

worker training? 

Comments: A commenter suggested 

that the required non-Federal share for 

incumbent training be waived for 

companies that are close to a layoff. 

Department Response: The nonFederal share for incumbent worker 

training is required under WIOA sec. 

134(d)(4). The Department expects Local 

WDBs to adhere to the requirements for 

non-Federal share contributions as set 

forth in WIOA. Thus, the Department 

declines to discuss waivers of this 

provision and makes no change to the 

regulatory text. 

Comments: A commenter asked if 

§ 680.820 is meant to ensure that no 

other funding source is contributing to 

the cost of the incumbent worker 

training or that the employer is paying 

100 percent of the cost from its own 

funds, excluding the Federal 

contribution. 

Department Response: Under WIOA 

sec. 134(d)(4) employers participating in 

incumbent worker training are 

responsible for paying the non-Federal 

share of the cost of providing training to 

their incumbent workers. Employers 

have flexibility in how they arrange to 

pay for these costs; however, the 

payments must not come out of any 

other Federal funds. 

Section 680.830 May funds provided 

to employers for work-based training be 

used to assist, promote, or deter union 

organizing? 

Comments: The Department received 

comments in support of § 680.850 

(renumbered as § 680.830) as proposed, 

regarding the relationship between 

work-based training funds and union 

organizing. 

Section 680.840 May funds provided 

to employers for work-based training 

and other work experiences be used to 

fill job openings as a result of a labor 

dispute? 

Comments: A commenter suggested 

that for transitional jobs there should be 

protections around the displacement of 

workers. 

Department Response: The 

Department has added a new section to 

the regulatory text at § 680.840 entitled 

‘‘May funds provided to employers for 

work-based training and other work 

experiences be used to fill job openings 

as a result of a labor dispute?’’ This 

section clarifies that funds for workbased training may not be used for this 

purpose. It is consistent with WIOA and 

with the Wagner-Peyser Act regulatory 

text in § 652.9 to remain neutral in 

matters relating to union organizing and 

activities that would promote or deter 

organization. 

8. Subpart G—Supportive Services 

This section defines the scope and 

purpose of supportive services and the 

requirements governing their 

disbursement. A key principle in WIOA 

is to provide local areas with the 

authority to make policy and 

administrative decisions and the 

flexibility to tailor the public workforce 

system to the needs of the local 

community. To ensure maximum 

flexibility, the regulations provide local 

areas the discretion to provide the 

supportive services they deem 

appropriate subject to the limited 

conditions prescribed by WIOA. Local 

WDBs must develop policies and 

procedures to ensure coordination with 

other entities to ensure non-duplication 

of resources and services and to 

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establish limits on the amount and 

duration of such services. Local WDBs 

are encouraged to develop policies and 

procedures that ensure that supportive 

services are WIOA-funded only when 

these services are not available through 

other agencies and that the services are 

necessary for the individual to 

participate in title I activities. 

Supportive services may be made 

available to anyone participating in 

WIOA title I activities. 

A commenter expressed support for 

the proposed regulations in subpart G. 

Section 680.900 What are supportive 

services for adults and dislocated 

workers? 

Comments: A commenter 

recommended that § 680.900 include an 

exhaustive list of available support 

services consistent with the approach in 

the section on support services for 

youth. Another commenter strongly 

supported the inclusion of legal aid 

services in the Department’s list of 

examples of supportive services, noting 

that legal aid can uniquely address 

certain barriers to employment, 

including access to driver’s licenses, 

expunging criminal records, and 

resolving issues with debt, credit, and 

housing. One commenter recommended 

that supportive services involving 

WIOA funding be available to cover all 

steps/aspects of the licensing process 

(e.g., testing and transcripts). 

Because access to many supportive 

services is an impediment to 

individuals with disabilities in entering 

or re-entering the workforce, one 

commenter recommended specific 

reference to this population in subpart 

G. 

Department Response: The 

Department agrees with the commenter 

that supportive services for adults and 

dislocated workers under WIOA title I 

programs be aligned with the supportive 

services available under the title I youth 

program. The Department has modified 

the regulatory text to include a list of 

supportive services that may be made 

available at § 680.900(a) through (l). 

This list is not intended to be 

exhaustive, but rather to illustrate the 

types of supportive services that may be 

made available. The changes to the 

regulatory text also include a couple of 

suggestions that commenters provided 

regarding the addition of providing 

assistance with books, fees, school 

supplies, and other necessary items for 

students enrolled in postsecondary 

education classes. The Department 

concurs that legal aid can uniquely 

address certain barriers to employment, 

as enumerated by the commenter. 

Therefore, the Department has included 

legal aid services under § 680.900 and 

made a corresponding change to the list 

of supportive services allowable in the 

youth program in § 681.570. 

Additionally, the Department added 

that payments and fees for employment 

and training-related applications, test, 

and certifications be covered, because 

these costs may be a barrier to entry for 

individuals looking for unsubsidized 

employment. The Department also has 

added ‘‘Reasonable accommodations for 

individuals with disabilities’’ as 

§ 680.900(g). 

Comments: Citing the requirement 

that participants first obtain supportive 

services through other programs before 

relying on WIOA title I funding, a 

commenter stated that it is vital that the 

programs covered by WIOA work 

closely together to ensure that job 

seekers receive all the benefits to which 

they are entitled under all aspects of the 

law. 

Department Response: The 

Department agrees with this comment 

and encourages that programs work 

closely together in order to align 

programs better and leverage resources 

as WIOA is intended to do to serve job 

seekers better. 

Section 680.910 When may supportive 

services be provided to participants? 

Comments: The Department received 

a comment regarding the importance of 

coordinating across programs allowed in 

§ 680.140, because § 680.910 states that 

supportive services must be provided 

through non-WIOA programs first. The 

commenter particularly emphasized the 

need for coordinating services with 

vocational rehabilitation programs so 

individuals with disabilities receive the 

supportive services they need. 

Department Response: The 

Department agrees with the commenter 

that coordinating services across the 

WIOA core programs, as well as noncore programs is vital to help 

individuals with barriers to 

employment, including individuals 

with disabilities, obtain the support 

they need to successfully participate in 

and complete WIOA career and training 

services and ultimately, obtain 

unsubsidized employment. Local WDBs 

are responsible for developing 

supportive service policies, and the 

Department considers how these 

services are coordinated to be a key part 

of those policies. 

Section 680.920 Are there limits on 

the amount or duration of funds for 

supportive services? 

Comments: A commenter 

recommended that the definition of 

supportive services and extended case 

management include ongoing, extended 

services as participants proceed through 

training and employment. 

Department Response: Supportive 

services under WIOA sec. 134(d)(2) are 

provided to allow an individual to 

participate in career and training 

services. The commenter was interested 

in extending supportive services after 

the period of exit from the WIOA title 

I adult and dislocated worker programs; 

however, this is outside of the authority 

of WIOA. Supportive services are 

provided to enable participation in 

career and training services. No changes 

have been made to the regulatory text in 

response to the comment. 

Comments: Two commenters raised a 

similar concern about the authority 

related to the one-stop center 

determining what supportive services 

may be provided if the one-stop center 

is not the WIOA service provider in a 

local area. 

Department Response: To guide 

supportive service determinations, the 

Local WDB ultimately is responsible for 

developing a supportive service policy 

for the area, including eligibility, types 

of supportive services to provide, and 

the methods of service delivery. 

Section 680.930 What are needsrelated payments? 

Comments: A few commenters 

provided input on needs-related 

payments. One commenter suggested 

that the Department consider whether 

the underemployed should be 

considered for needs-related payments. 

One commenter stated that funding 

levels are not adequate to support 

needs-related payments, which the 

commenter stated will result in these 

services being provided on a very 

limited basis. Some commenter focused 

on funding levels for needs-related 

payments. 

Department Response: To receive 

needs-related payments, individuals 

must be unemployed and must not 

qualify for (or have ceased to quality for) 

unemployment compensation. While 

underemployed individuals are not 

eligible for needs-related payments 

under WIOA sec. 134(d)(3), there is no 

prohibition on providing supportive 

services to the underemployed, other 

than needs-related payments. 

Additionally, WIOA sec. 134(d)(1)(B) 

allows for work support activities for 

low-wage workers. The Department may 

provide additional guidance on how to 

ensure quality services to individuals 

who are underemployed. No changes 

have been made to the regulatory text in 

response to the comments. The 

Department notes that needs-related 

payment levels are permissible and 

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thus, are left to the discretion of the 

Local WDB. 

Section 680.970 How is the level of 

needs-related payments determined? 

Comments: Two commenters 

recommended that States be allowed to 

determine the amount for needs-related 

payments for State funded projects. 

Department Response: The 

Department agrees with the suggestion 

that States be allowed to make 

determinations for needs-related 

payments for State funded projects and 

has added language to the regulatory 

text at § 680.970(a) to reflect this 

change. No other changes have been 

made to the regulatory text in response 

to the comments. 

Other Comments on Adult and 

Dislocated Worker Activities Under 

WIOA Title I 

Limited English Proficiency Individuals 

Comments: A commenter encouraged 

the Department to provide additional 

guidance, whether through regulation or 

other types of policy directives, to States 

and localities regarding the alignment of 

WIOA title I and title II services to 

improve services to immigrant and 

limited English proficiency (LEP) 

individuals. This commenter 

recommended that the guidance 

acknowledge and allow for differences 

in eligibility criteria across the titles, 

encouraging States and localities to 

align services without precluding 

participation by individuals who may 

be eligible for services under one title 

but not another. 

Department Response: The 

Department agrees with the commenter 

on the importance of aligning services 

among titles to ensure that individuals 

receive the services they need. The 

Department will provide guidance and 

technical assistance on this issue. 

Industry or Sector Partnerships 

Comments: A few commenters 

recommended the establishment of a 

new subpart H covering industry or 

sector partnerships. These commenters 

discussed at length the topics they 

believed should be addressed in this 

proposed new subpart, including, the 

purpose of industry and sector 

partnerships, permissible partners, who 

may lead partnerships, evaluating 

effective partnerships, and ensuring 

minimum standards. 

Department Response: The 

Department recognizes the importance 

of the industry and sector partnerships 

as an important strategy for economic 

and workforce development. Due to the 

constantly changing nature of business 

and industry, these partnership 

strategies continue to be most 

appropriately addressed through 

guidance and technical assistance 

issued by the Department. 

E. Part 681—Youth Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

1. Introduction 

WIOA affirms the Department’s 

commitment to providing high quality 

services for youth and young adults 

beginning with career exploration and 

guidance; continuing support for 

educational attainment, opportunities 

for skills training in in-demand 

industries and occupations; and 

culminating with a good job along a 

career pathway or enrollment in 

postsecondary education. All of the 

Department’s youth-serving programs 

continue to promote evidence-based 

strategies that also meet the highest 

levels of performance, accountability, 

and quality in preparing young people 

for the workforce. 

WIOA maintains WIA’s focus on outof-school youth (OSY) in Job Corps and 

YouthBuild, while greatly increasing the 

focus on OSY in the WIOA youth 

formula-funded program. The shift in 

policy to focus on those youth most in 

need is based on the current state of 

youth employment. In 2015, an 

estimated 5.5 million or 13.8 percent of 

16 to 24 year olds in our country were 

not employed or in school. WIOA youth 

programs provide a continuum of 

services to help these young people 

acquire skills and pursue careers. The 

Department, working with its 

Department of Education and Health 

and Human Services partners, plan to 

provide intensive technical assistance 

around meeting the needs of this 

population. 

WIOA calls for customer-focused 

services based on the needs of the 

individual participant. This includes 

the creation of career pathways for 

youth in all title I youth programs, 

including a connection to career 

pathways as part of a youth’s individual 

service strategy (ISS) in the youth 

formula-funded program. The ISS must 

directly link to one or more of the 

performance indicators. WIOA also calls 

for participants to be intimately 

involved in the design and 

implementation of services so the youth 

voice is represented and their needs are 

being met. 

This integrated vision also applies to 

the public workforce system’s other 

shared customer—employers. 

Employers have the opportunity to 

build a pipeline of skilled workers: 

They are critical partners that provide 

meaningful growth opportunities for 

young people through work experiences 

that give them the opportunity to learn 

and apply skills in real-world settings 

and ultimately jobs. 

WIOA includes a number of 

significant changes for the youth 

formula-funded program. WIOA shifts 

to focus resources primarily on OSY, 

increasing the minimum percentage of 

funds required to be spent on OSY from 

30 to 75 percent. The Department 

recognized the transition to serve more 

OSY would take time to implement, 

and, as explained in WIOA operating 

guidance TEGL No. 23–14 (‘‘Workforce 

Innovation and Opportunity Act (WIOA) 

Youth Program Transition’’), found at 

http://wdr.doleta.gov/directives/All_

WIOA_Related_Advisories.cfm, the 

Department has provided States and 

local areas a year to show progress 

towards meeting the 75 percent 

minimum OSY expenditure rate 

requirement. In addition, WIOA 

increases the focus on providing youth 

with work experience opportunities, 

with a requirement that local areas must 

spend a minimum of 20 percent of local 

area funds on work experience. 

Under WIOA, work experience 

becomes the most critical of the program 

elements. WIOA also introduces 5 new 

program elements: Financial literacy; 

entrepreneurial skills training; services 

that provide labor market and 

employment information about indemand industry sectors or occupations 

available in the local areas; activities 

that help youth prepare for and 

transition to postsecondary education 

and training; and education offered 

concurrently with and in the same 

context as workforce preparation 

activities and training for a specific 

occupation or occupational cluster. 

During the 60-day comment period for 

the NPRM, the Department received 

hundreds of comments that expressed 

general support for the proposed youth 

program regulations as well as some 

constructive feedback that made the 

Final Rule clearer. 

The most significant change between 

the NPRM and the Final Rule occurs in 

§ 681.400. This section clarifies that 

youth activities may be conducted by 

the local grant recipient and that only 

when the Local WDB chooses to award 

grants or contracts to youth service 

providers, such awards must be made 

using a competitive procurement 

process in accordance with WIOA sec. 

123. While this revision represents a 

significant change in that it provides 

Local WBDs with flexibility in 

determining which WIOA youth 

services to procure, the Department 

expects Local WDBs to continue to 

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contract with youth service providers to 

provide the program elements that 

youth service providers are best 

positioned to offer participants based on 

prior success in serving youth. 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

part 681 regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

2. Subpart A—Standing Youth 

Committees 

Section 681.100 What is a standing 

youth committee? 

This section describes a standing 

youth committee. WIOA does not 

require Local WDBs to establish a youth 

council; however, the Local WDBs are 

encouraged to establish a standing 

youth committee to provide information 

and to assist with planning, operational, 

and other issues relating to the 

provision of services to youth (WIOA 

sec. 107(b)(4)(A)(ii)). The Department 

received many comments on standing 

youth committees and in response to the 

comments made a small addition to the 

regulation text as explained here. 

Comments: One commenter expressed 

support for all of the proposed 

regulations regarding standing youth 

committees. Several commenters also 

supported the proposed language that 

would allow Local WBDs to maintain 

existing effective youth councils as 

standing youth committees. Several 

commenters recommended that the 

proposed language allow Local WDBs 

the flexibility to maintain existing 

effective youth councils, have the Local 

WDB secure the role of the standing 

youth committee, or create a new 

standing youth committee. 

Department Response: The 

Department notes the comments 

received about standing youth 

committees. The language in §§ 681.100 

and 681.110 provides Local WDBs with 

the flexibility to maintain existing 

effective youth councils; have the Local 

WDB take on the role of the standing 

youth committee; or create a new 

standing youth committee. 

Comments: One commenter expressed 

disappointment with the removal of 

mandated youth councils and stated 

that the Department should strongly 

encourage Local WDBs to establish 

standing youth committees. 

Department Response: The 

Department recognizes the challenges 

some local areas experienced in finding 

and retaining the required youth council 

members. In the final regulations, the 

Department accepted the suggestion to 

‘‘encourage’’ Local WDBs to establish 

standing youth committees rather than 

the proposed language, ‘‘a Local WDB 

may choose to establish a standing 

committee.’’ This change recognizes that 

Local WDB have a choice as to whether 

or not they have a standing youth 

committee while at the same time 

reflects the Department’s support of 

such entities. 

Comments: A couple of respondents 

stated that because the proposed 

regulations did not mandate the 

implementation of a standing youth 

committee or any other youth 

organization, a Local Workforce 

Development Board (WDB) should be 

able to assemble a group to oversee 

youth activities without having to 

formally create a standing youth 

committee that would be subject to 

regulations. 

Department Response: As discussed 

above, the Department recognizes the 

challenge of bringing together required 

partners and understands the local 

area’s interest in taking advantage of the 

flexibility under WIOA to form an ad 

hoc group that would informally advise 

the Local WDB on youth matters. The 

Department supports Local WDBs 

seeking outside youth expertise to 

inform the programs. If such groups do 

not have the required members as 

outlined in § 681.110, however, they 

may not call themselves standing youth 

committees. 

Comments: Second, a commenter 

raised the concern over how a Local 

WDB could efficiently oversee youth 

activities without the expertise of a 

standing youth committee with prior 

experience in handling the youth 

activities. This commenter requested 

additional clarification as to how the 

Local WDB would provide efficient 

oversight. The commenter further asked 

if the Department would provide 

recommended models in order to ensure 

that they were implementing youth 

activities effectively and if the 

Department will provide recommended 

approaches in future technical 

assistance activities. 

Department Response: If a Local WDB 

chooses not to delegate this function to 

a standing youth committee, it is still 

responsible under WIOA sec. 

107(d)(8)(A)(i) for conducting oversight 

in partnership with the CEO for the 

local area of youth workforce 

investment activities under WIOA sec. 

129(c). The Department notes the 

commenter’s concern and recognizes 

that without youth experts it may be 

hard for a local area to oversee its youth 

program properly. The Department will 

address this commenter’s concerns 

through technical assistance. 

Section 681.110 Who is included on a 

standing youth committee? 

This section describes the members of 

a standing youth committee. 

Comments: Two commenters 

recommended that Local WDBs be given 

the maximum flexibility possible when 

determining membership requirements 

for their standing youth committee, 

stating that the Local WDBs would have 

the best understanding of their local 

area’s needs. One of these commenters 

reasoned that there should be no rigid 

membership requirements for standing 

youth committees because the 

committees would be optional under the 

proposed language. Similarly, another 

commenter remarked that Local WDBs 

should be able to define the appropriate 

level of experience needed for members 

of the standing youth committee. This 

commenter stated that Local WDBs also 

should have the ability to establish the 

standards for what a community-based 

organization’s (CBO’s) ‘‘demonstrated 

record of success’’ must be. 

One respondent suggested that the 

Department provide more specific 

guidance on committee membership 

requirements. This commenter further 

recommended that the committee 

should include individuals from CBOs 

who serve youth with disabilities, as 

well as individuals from the local 

education system. 

Department Response: The 

Department concurs with the 

commenters that said the Local WDBs 

need the maximum flexibility possible 

when establishing membership 

requirements for their standing youth 

committee. The NPRM and Final Rule 

reflect the WIOA requirements found in 

sec. 107(b)(4)(A)(ii). The Department 

does not define a CBO’s demonstrated 

record of success in the proposed 

regulation or Final Rule. The 

Department did accept the suggestion to 

add disability organizations and local 

education entities to the list of possible 

standing youth committee members. 

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Section 681.120 What does a standing 

youth committee do? 

This section describes the duties of a 

standing youth committee. Commenters 

expressed support for the proposed 

roles of standing youth committees. 

Comments: Several commenters 

suggested that the Department include a 

list of suggested tasks in the final 

regulation that a standing youth 

committee could be charged with. These 

commenters recommended that the 

Department reemphasize that if the 

Local WDB chooses not to establish a 

youth council or standing youth 

committee, oversight of the suggested 

activities listed in the regulations will 

fall under the jurisdiction of the Local 

WDB, which will then be responsible 

for overseeing the activities and 

providing opportunity for stakeholder 

comment. These commenters also 

suggested that the Department should 

require that Local WDBs and/or their 

standing youth committees state how 

they will: 

• Facilitate co-enrollment of 

individuals across core programs, 

especially for those individuals between 

the ages of 18 and 24 who could be 

served under WIOA titles I, II, and IV. 

• Implement specific provisions 

related to career pathways requirements. 

• Adapt the procurement and request 

for proposal processes, in order to 

encourage longer-term and more 

thorough services for OSY. 

• Align Temporary Assistance for 

Needy Families (TANF) with WIOA 

youth programs, so that TANF 

recipients who are under 25 can benefit 

from OSY programs when appropriate. 

Department Response: The 

Department concluded that standing 

youth committees need as much 

flexibility as possible to reflect the 

needs of their local area. The 

Department will provide technical 

assistance to local areas and plans to 

incorporate many of the commenters’ 

ideas. No change to the regulatory text 

was made in response to these 

comments. 

3. Subpart B—Eligibility for Youth 

Services 

Section 681.210 Who is an ‘‘out-ofschool youth’’? 

This section describes how one meets 

the eligibility for an OSY for purposes 

of the title I WIOA youth program. OSY 

youth must not attend any school, be 

between the ages of 16 and 24 at time 

of enrollment, and meet one or more of 

a list of nine criteria. The section 

clarifies that age is based on time of 

enrollment and as long as the individual 

meets the age eligibility at time of 

enrollment he or she can continue to 

receive WIOA youth services beyond 

the age of 24. Low income is not a 

requirement to meet eligibility for most 

categories of OSY under WIOA. Low 

income is, however, a part of the criteria 

for youth who need additional 

assistance to enter or complete an 

educational program or to secure or 

hold employment. Also, WIOA has 

made youth with a disability a separate 

eligibility criterion. 

Comments: A few commenters 

expressed their support of the 

expansion of the age requirements from 

21 to 24. One commenter stated that this 

increase would be a positive change as 

it continues to see greater numbers of 

older young adults who are seeking 

employment and training services. 

Another commenter expressed support 

of the proposed regulations’ focus on 

the needs of OSY. The Department 

recognizes that many youth service 

providers moved to serving more OSY 

under WIA. In Program Years 2011 and 

2012, the national OSY expenditure rate 

was 57 percent. 

On the other hand, a number of 

commenters noted that the proposed 

regulations mark a substantial change in 

the delivery of services to youth, 

specifically shifting service priorities 

from ISY to OSY. These commenters 

stated that because of this significant 

change, Governors and Local WDBs 

should have jurisdiction over defining 

the eligibility requirements for OSY. 

Department Response: The 

Department acknowledges that WIOA’s 

focus on OSY represents a significant 

change in the focus of the youth formula 

program. The Department also 

acknowledges the important role State 

and local leaders play in implementing 

the law. Nonetheless, WIOA clearly 

defines the eligibility requirements for 

OSY. No change was made in the 

regulatory text in response to these 

comments. 

Comments: Several commenters 

proposed additions to the OSY 

definition. A few commenters offered 

that any individual who does not pass 

the high school exit exam should 

automatically be considered an OSY as 

well. 

Department Response: The impact of 

high school exit exams on individual 

youth represents only one reason why 

the Department has concluded that 

under WIOA, local areas will need to 

work closer than ever with the local 

education providers to ensure the 

success of their participants. In-school 

or out-of-school eligibility status is 

determined at the time of enrollment. 

Therefore, a student enrolled in high 

school when taking high school exit 

exam, would count as an ISY. 

Comments: Another commenter 

recommended that the definition of 

OSY be broadened to include ‘‘youth 

ages 16–24 who may be enrolled in 

school, but in fact are spending less 

than 10 hours per week at that school 

or adult education center,’’ noting that 

often students are technically enrolled 

in school but in reality hardly ever 

attend. Similarly, a commenter 

expressed concern that ‘‘if compulsory 

school attendance is defined by State 

law as 16, what happens to 14 and 15 

year olds who are out-of-school?’’ 

Department Response: The 

Department understands that many 

students attend high school irregularly 

and are at great risk of becoming 

disconnected. In the cases where 

compulsory-age students do not attend 

school on a regular basis, under WIOA 

they count as ISY. WIOA clearly defines 

the eligibility requirements for OSY. No 

changes were made to the regulatory 

text in response to these comments. 

Measuring Attendance by School Year 

Quarters 

WIOA includes a new criterion for 

determining OSY eligibility: A youth 

who is within the age of compulsory 

school attendance, but has not attended 

school for at least the most recent school 

year calendar quarter. The school year 

quarter is based on how a local school 

district defines its school year quarters. 

Comments: One commenter asked the 

Department to include an alternative 

definition for OSY requirements for 

schools that do not utilize school year 

quarters. This commenter suggested that 

the Department could use calendar year 

quarters as an alternative benchmark. 

Another commenter expressed a 

concern over the proposed language’s 

reliance on school year quarters as a 

benchmark to measure OSY eligibility 

because it would require local areas to 

have an understanding of the local 

school district’s school year quarters. 

Department Response: In Final Rule 

text, the Department added language 

clarifying that when schools do not use 

a quarter system, schools must use 

calendar year quarters. The Department 

encourages local areas to know their 

local school system’s leaders as a 

strategy to ensuring that all youth know 

about the public workforce system and 

maximizing the limited resources 

available in an area. Conversations 

around school year calendars may serve 

as an entry point for future 

collaboration. Both commenters 

requested further clarification from the 

Department as to the measurement of 

length of attendance by school year 

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56162 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

quarters. The Department will issue 

additional guidance on school year 

quarters. 

Definition of Attending 

Comments: A number of commenters 

recommended that the Department 

define what ‘‘attending’’ means when 

determining the eligibility of an 

individual. These commenters asked the 

Department for clarification as to 

whether taking one course at a 

community college would count as 

‘‘attending’’ and thus, render an 

individual ineligible for OSY services. 

These commenters also asked the 

Department whether or not being 

enrolled in a non-credit granting course 

or continuing education class would be 

classified as attending school, making 

those individuals ineligible for OSY 

services. 

Another commenter requested 

clarification around the definition of 

OSY and a concern that youth with 

disabilities who are involved in 

remedial, non-credit coursework would 

be excluded from title I youth programs 

under WIOA. The commenter noted that 

non-credit education and remedial 

coursework often provide a vital 

opportunity to strengthen basic skills 

needed in order to enroll in 

credentialing programs and to maximize 

independence. The commenter 

suggested the Department include 

language creating an exception to ensure 

that students with disabilities in need of 

remedial coursework will remain 

eligible for title I youth programs under 

WIOA. 

Another commenter noted that the 

OSY definition language includes ‘‘an 

individual that is not attending any 

school as defined under State law’’ and 

it creates inconsistency in the 

application of State regulations resulting 

in a different treatment of youth from 

one State to the next. The commenter 

proposed clarification to the regulation 

to include attendance at an alternative 

high school for eligibility in the OSY 

component, for all States. 

Department Response: The 

Department will provide further 

guidance around ‘‘attending’’ and noncredit granting courses, continuing 

education classes, and one community 

college course. 

General Education Development (GED) 

& Dropout Prevention/Recovery 

Program Eligibility 

Comments: A few commenters 

expressed support for the proposed 

language that would classify individuals 

enrolled in a GED class as OSY. These 

commenters further recommended that 

youth in GED programs be classified as 

‘‘high school drop-outs’’ in the proposed 

regulations so that they would not be 

subjected to compliance with the lowincome eligibility requirements, and 

suggested that because they did not 

complete their high school education, it 

would be illogical to define them as ISY. 

Two commenters recommended that 

individuals enrolled in GED or high 

school equivalency programs be 

considered OSY. 

Two other commenters suggested that 

individuals enrolled in a dropout reengagement program also be classified 

as OSY under the proposed regulations. 

Specifically, a commenter 

recommended adding the following 

language, ‘‘. . . for purposes of WIOA, 

the Department does not consider 

providers of dropout re-engagement 

programs or providers of adult 

education . . . to be schools.’’ This 

commenter stated that this language 

would provide clarification that after an 

individual has dropped out of school, 

he or she can continue his or her 

education in an alternative form without 

being considered an ISY. Another 

commenter suggested that youth in 

these programs are not participating in 

traditional schools and therefore should 

not be classified as ISY. 

Department Response: Based on the 

recommendation of commenters, the 

Department has added high school 

equivalency programs and dropout reengagement programs as additional 

types of programs in § 681.230 that are 

not considered ‘‘schools’’ for the 

purposes of determining school status. 

Comments: Other commenters asked 

for clarification from the Department as 

to whether an individual recruited and 

persuaded to return to school through a 

dropout recovery program would be 

considered an OSY under the proposed 

regulations, even if he or she had not 

missed an entire semester of school. 

One commenter also asked for 

clarification from the Department 

regarding why an individual would be 

required to wait an entire semester to be 

classified as an OSY. 

Department Response: As a point of 

clarification, WIOA does not require a 

person to miss an entire semester; 

rather, the law considers school year 

quarters. Further, the Department 

reminds service providers that ISY or 

OSY status determination occurs when 

a youth enrolls into the WIOA Youth 

Formula Program and does not change 

as the youth moves though the program. 

Therefore, an OSY who returns to 

school through a dropout recovery 

program remains classified as an OSY 

for WIOA purposes. 

Foster Care Individuals/Individuals in 

the Justice System 

Comments: Regarding the eligibility 

requirements for individuals in the 

foster care or justice systems, one 

respondent commented that the 

proposed regulation’s definition of OSY 

would not efficiently serve individuals 

in the foster care or juvenile justice 

systems, stating that the proposed 

language would require individuals in 

the juvenile justice system or foster care 

system to drop out of school in order to 

be eligible to receive WIOA youth 

services, which the commenter 

suggested would put them at an even 

greater risk. Another commenter 

recommended that the Department 

amend the OSY eligibility criteria 

regarding youth in foster care to include 

youth who were formerly in foster care, 

but may have returned to their 

biological families before turning 18, 

sharing that although these individuals 

are no longer in foster care and did not 

technically ‘‘age out’’ of the system, they 

are still disadvantaged and in need of 

assistance. Two commenters 

recommended that any incarcerated 

youth be automatically considered an 

OSY. 

Department Response: Although the 

Department recognizes that a few Statelevel foster care policies may result in 

this practice occurring, the Department 

does not interpret WIOA to require 

individuals in the juvenile justice 

system or foster care system to drop out 

of school in order to be eligible to 

receive WIOA youth services. Nor is it 

the Department’s intent to have youth 

leave school in order to receive WIOA 

youth program services. 

Relating to the comment that 

individuals who stay in foster care until 

late adolescence may not technically 

‘‘age out’’ of the system but remain 

disadvantaged, the Department agrees. 

The Department consulted with the 

Department of Health and Human 

Services John H. Chafee Foster Care 

Independence Program and added ‘‘or 

an individual who has attained 16 years 

of age and left foster care for kinship 

guardianship or adoption,’’ to the final 

regulation for §§ 681.210 and 681.220 to 

encompass this fragile population. 

Further, to make the regulation easier 

to understand, the Department 

separated foster care youth and 

homeless and runaway youth into two 

separate eligibility categories. In 

addressing the comments around 

individuals involved in the juvenile 

justice system, WIOA uses slightly 

different wording between ISY and OSY 

eligibility criteria. For OSY eligibility 

WIOA at sec. 129(a)(1)(B)(iii)(IV) states, 

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‘‘An individual who is subject to the 

juvenile or adult justice system,’’ while 

for ISY, sec. 129(a)(1)(C)(iv)(III) says, 

‘‘offender.’’ WIOA sec. 3(38) defines 

‘‘offender’’ as ‘‘an adult or juvenile— 

(A) who is or has been subject to any 

stage of the criminal justice process, and 

for whom services under this Act may 

be beneficial; or (B) who requires 

assistance in overcoming artificial 

barriers to employment resulting from a 

record of arrest or conviction.’’ The 

Department changed the wording in the 

Final Rule to use ‘‘offender’’ for the 

eligibility criteria for both ISY and OSY, 

to clarify that the OSY eligibility 

criterion at § 681.210(c)(4) includes all 

individuals who fit the definition of 

‘‘offender’’ under sec. 3(38). The 

Department concluded that the intent of 

the OSY eligibility criterion is not to 

treat youth who were subject to the 

juvenile or adult system differently from 

those who are currently subject, but 

rather to call attention to the fact that 

both the juvenile and adult justice 

systems may include OSY. 

Homeless Individuals 

Comments: A commenter expressed 

support for the inclusion of homeless 

individuals as one of the possible 

eligibility criteria for OSY in the 

proposed regulations. This commenter 

further recommended that the definition 

of homeless individual in 

§ 681.210(c)(5) be derived from the 

Runaway and Homeless Youth Act (42 

U.S.C. 5601 et seq.) and read ‘‘. . . a 

homeless child or youth (as defined in 

sec. 725(2) of the McKinney Vento 

Homeless Assistance Act (42 U.S.C. 

11434a(2))), a runaway or homeless 

youth (as defined by 42 U.S.C. 5601 et 

seq.) who is referred to the labor board 

by an RHY provider . . . .’’ This 

commenter also suggested that homeless 

status of an individual should be 

determined by referral from a runaway 

or homeless youth (RHY) or other 

homeless youth provider, but that pure 

self-attestation by the individual should 

also count as sufficient evidence of 

homelessness. 

Department Response: Runaway and 

Homeless Youth programs serve 

individuals as young as 12 years old, 

which is younger than permitted by 

WIOA youth formula program statute. 

Therefore, no changes were made in the 

regulatory text in response to these 

comments. The Department will provide 

future guidance and technical assistance 

around provider referrals and selfattestation when determining program 

eligibility. The Department did add 

language to clarify that for the OSY 

category, all homeless individuals 

qualify up to the age of 24. 

Individual Who Is Pregnant or Parenting 

Comments: A commenter asked the 

Department to clarify that an 

‘‘individual who is pregnant or 

parenting’’ includes noncustodial 

parents, such as fathers. Suggesting that 

re-engagement of fathers and 

noncustodial parents is critical to 

supporting children, this commenter 

pointed out that because youth served 

by its members often are parenting a 

child whose paternity has never been 

determined, these partners are in fact 

parenting, even if not legally custodial. 

Department Response: The 

Department recognizes the role all 

parents, custodial and non-custodial, 

play in the lives of their children and 

plans to provide future technical 

assistance on this subpopulation. 

Disability 

Comments: Another respondent noted 

that the NPRM defines OSY as an 

individual who meets criteria in 

paragraphs (a) and (b) in this section, as 

well as one or more of the criteria 

identified in paragraph (c). Two of the 

criteria described in this part are: (8) An 

individual with a disability; (6) a lowincome individual who requires 

additional assistance to enter or 

complete an educational program or to 

secure or hold employment. The 

commenter further described that low 

income is a part of the criteria for youth 

who need additional assistance to enter 

or complete an educational program or 

to secure or hold employment, and 

WIOA has made youth with a disability 

a separate eligibility criterion. The 

commenter asked the Department to 

state specifically that low income is not 

an eligibility requirement for serving 

youth with a disability. 

Department Response: The 

commenter’s observation does not 

necessitate a change to the Final Rule. 

For OSY, low income is not an 

eligibility requirement for serving youth 

with a disability. For ISY with 

disabilities, low-income eligibility 

requirements exist. However, for ISY 

with disabilities, WIOA sec. 3(36)(A)(vi) 

provides that the income level for 

eligibility purposes is based on the 

individual’s own income rather than 

his/her family’s income. The 

Department plans to provide additional 

technical assistance around serving 

youth with disabilities. 

Section 681.220 Who is an ‘‘in-school 

youth’’? 

This section describes how one meets 

the eligibility for an ISY for purposes of 

the WIOA title I youth program. ISY 

youth must be attending school, 

including secondary or postsecondary 

school, be between the ages of 14 and 

21 at time of enrollment, be low-income, 

and meet one or more of a list of eight 

criteria. These are essentially the same 

criteria as under WIA but the disability 

criterion has been separated from the 

‘‘needs additional assistance’’ criterion. 

The section clarifies that age is based on 

time of enrollment and as long as the 

individual meets the age eligibility at 

time of enrollment, he or she can 

continue to receive WIOA youth 

services beyond the age of 21. WIOA 

includes a youth as low-income if he or 

she receives or is eligible to receive a 

free or reduced-price lunch under the 

Richard B. Russell National School 

Lunch Act (42 U.S.C. 1751, et seq.). 

Foster Care Individuals 

Comments: A commenter 

recommended that the Department 

amend the OSY eligibility criteria 

regarding youth in foster care to include 

youth who were formerly in foster care, 

but may have returned to their 

biological families before turning 18 

because although these individuals are 

no longer in foster care and did not 

technically ‘‘age out’’ of the system, they 

are still disadvantaged and in need of 

assistance. 

Department Response: The 

Department concluded that same logic 

applies to § 681.220: Individuals who 

leave foster care after remaining there 

until late adolescence may not 

technically ‘‘age out’’ of the system and 

yet remain disadvantaged. The 

Department, in consultation with the 

Department of Health and Human 

Services John H. Chafee Foster Care 

Independence Program, added ‘‘or who 

has attained 16 years of age and left 

foster care for kinship guardianship or 

adoption,’’ to the final regulation for 

§§ 681.210 and 681.220 to encompass 

this fragile population. 

Homeless Individuals 

Comments: A commenter expressed 

support for the inclusion of homeless 

individuals as one of the possible 

eligibility criteria for OSY in the 

proposed regulations. This commenter 

further recommended that the definition 

of homeless individual in 

§ 681.210(c)(5) be derived from the 

Runaway and Homeless Youth Act 

(RHYA) (42 U.S.C. 5601 et seq.) and 

would read ‘‘. . . a homeless child or 

youth (as defined in sec. 725(2) of the 

McKinney Vento Homeless Assistance 

Act (42 U.S.C. 11434a(2))), a runaway or 

homeless youth (as defined by 42 U.S.C. 

5601 et seq.) who is referred to the labor 

board by an RHY provider. . . .’’ This 

commenter also suggested that homeless 

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status of an individual should be 

determined by referral from an RHY or 

other homeless youth provider, but that 

pure self-attestation by the individual 

should also count as sufficient evidence 

of homelessness. 

Department Response: The 

Department consulted with the 

Department of Health and Human 

Service’s Administration for Children 

and Families when considering this 

comment. The Department learned that 

the Runaway and Homeless Youth 

programs serve individuals as young as 

12 years old which is younger than 

permitted by WIOA youth formula 

program statute. No changes were made 

to the regulatory text in response to this 

comment. The Department will provide 

future guidance and technical assistance 

around provider referrals and selfattestation when determining program 

eligibility. 

Similar to the OSY criteria, the 

Department added language to clarify 

that for the ISY category, homeless 

individuals aged 14–21 qualify. Also 

similar to the OSY criteria, to make the 

regulation easier to understand, the 

Department separated foster care youth 

and homeless and runaway youth into 

two separate eligibility categories. This 

more accurately distinguishes between 

the types of barriers youth may 

experience. 

Individual Who Is Pregnant or Parenting 

Comments: A commenter asked the 

Department to clarify that an 

‘‘individual who is pregnant or 

parenting’’ includes noncustodial 

parents, such as fathers. Suggesting that 

re-engagement of fathers and 

noncustodial parents is critical to 

supporting children, this commenter 

pointed out that because youth served 

by its members often are parenting a 

child whose paternity has never been 

determined, these partners are in fact 

parenting, even if not legally custodial. 

Department Response: An individual 

who is pregnant or parenting does 

include noncustodial parents, such as 

fathers. The Department recognizes the 

role all parents, custodial and noncustodial play in the lives of their 

children and plans to provide future 

technical assistance on this 

subpopulation. 

Section 681.230 What does ‘‘school’’ 

refer to in the ‘‘not attending or 

attending any school’’ in the out-ofschool and in-school eligibility criteria? 

The eligibility criteria for the WIOA 

title I youth program for out-of-school 

youth at WIOA sec. 129(a)(1)(B)(i) 

requires that the individual is ‘‘not 

attending any school (as defined in State 

law),’’ and for in-school youth, sec. 

129(a)(1)(C)(i) requires that the 

individual is ‘‘attending school (as 

defined in State law).’’ The Department 

has changed the title of § 681.230 to 

clarify that the terms the section uses 

are from those eligibility criteria. The 

term ‘‘school’’ refers to both secondary 

and postsecondary school as defined by 

the applicable State law for secondary 

and postsecondary institutions. Section 

681.230 provides that for purposes of 

title I of WIOA, the Department does not 

consider providers of adult education 

under title II of WIOA, YouthBuild 

programs, or Job Corps programs as 

schools. Therefore, if the only ‘‘school’’ 

the youth attends is adult education 

provided under title II of WIOA, 

YouthBuild, or Job Corps, the 

Department will consider the individual 

an OSY youth for purposes of title I of 

WIOA youth program eligibility. 

Comments: The Department received 

comments on several provisions within 

this section. Some commenters 

expressed concern over the proposed 

allowance of State law to determine the 

definition of ‘‘school.’’ Discussing the 

fact that their particular State’s laws 

only apply to grades K–12 and do not 

include postsecondary school, these 

commenters suggested that the 

definition of ‘‘school’’ should be 

clarified, and amended to address 

potential inconsistencies that would 

arise due to varying State laws. One 

commenter recommended that each 

State WDB should be given the 

flexibility to determine whether to 

include postsecondary education as inschool or out-of-school, if the State does 

not specify it in its statutes. A number 

of commenters suggested that the 

definition of OSY be expanded to 

include individuals who are enrolled in 

postsecondary education. Similarly, a 

commenter stated that States do not 

support the definition in the proposed 

regulations that would classify youth 

engaged in postsecondary programs as 

ISY because the proposed language 

would lead to fewer youth in 

postsecondary education being served 

due to the 75 percent OSY expenditure 

requirement. Another commenter 

suggested that youth enrolled in 

postsecondary developmental education 

courses be considered OSY. 

Department Response: WIOA’s 

increased OSY expenditure rate is 

designed to increase focus on 

disconnected youth. All State education 

agencies recognize 2- and 4-year 

colleges as ‘‘schools,’’ and the 

Department has determined that both 

secondary and postsecondary 

institutions are considered ‘‘schools’’ for 

the purpose of determining school 

status for WIOA youth program 

eligibility. 

Comments: A number of commenters 

recommended that the definition of 

OSY include individuals attending 

alternative schools. One of these 

commenters stated that an individual 

who attends an alternative school is at 

as great a risk as those who are 

attending no school. Some of these 

commenters suggested that an 

individual’s enrollment at an alternative 

school is an implicit indicator of need 

for WIOA youth services because of the 

low graduation and high dropout rates 

associated with alternative schools. A 

commenter recommended that the 

Department enhance the definition of 

school to include: Individuals in courtmandated programs, alternative schools, 

community schools, incarcerated youth, 

those who have not passed the high 

school exit exam, and individuals who 

attend independent studies programs. 

Department Response: The 

Department did not incorporate the term 

‘‘alternative school’’ into the definition 

of an OSY because alternative school is 

a general term that may encompass 

many different types of programs. 

Rather, the Department has incorporated 

into the Final Rule additional types of 

programs that it does not consider 

schools, such as high school 

equivalency programs and dropout reengagement programs. 

Comments: A number of commenters 

recommended that youth participating 

in a dropout re-engagement program be 

considered out of school for the 

purposes of WIOA and suggested 

clarifying that in § 681.230. Another 

commenter encouraged the Department 

to clarify further that youth in high 

school equivalency programs, such as 

GED programs, also are considered 

dropouts. 

Department Response: Based on the 

recommendation of commenters, the 

Department has added high school 

equivalency programs and dropout reengagement programs as additional 

types of programs that are not 

considered ‘‘schools’’ for the purposes 

of determining school status. 

Comments: With regard to the 

eligibility of individuals who are 

enrolled in adult education programs, a 

number of commenters expressed 

support for these individuals’ eligibility 

as OSY. Several of these commenters 

stated that the potential for coenrollment would be very beneficial to 

youth in need of these services. Citing 

data from a survey that found low rates 

of co-enrollment, two commenters 

stated that because of this past evidence 

of low percentages of co-enrollment, 

they supported the proposed 

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regulations, which would not define 

adult education programs as schools. 

Another commenter recommended that 

the Department expand the provision to 

include those individuals who are 

officially enrolled in school, but who in 

actuality only are receiving an 

education at an adult education center. 

A number of commenters requested that 

individuals who are enrolled in an adult 

education program would be considered 

OSY under WIOA title I, regardless of 

how the adult education services are 

funded. Several commenters suggested 

that many individuals attend adult 

education programs that are not funded 

by title II of WIOA, and that limiting 

eligibility for OSY services solely to 

those who attend programs funded by 

title II would limit the number of youth 

who would be eligible for coenrollment. 

Department Response: The 

Department agrees that the 

determination of whether an adult 

education program is considered a 

‘‘school’’ should not be based on 

funding source. Providers of adult 

education under title II of WIOA do not 

need to be wholly funded by title II in 

order to meet the provision described in 

§ 681.230. 

Comments: Regarding the school 

status of individuals participating in 

YouthBuild programs not funded by the 

Department of Labor, a few commenters 

recommended that the Department 

revise the proposed regulation to apply 

to all YouthBuild programs regardless of 

how they are funded. Another 

commenter also stated that the 

exception of not classifying YouthBuild 

programs as schools should be applied 

to all YouthBuild programs, suggesting 

that many YouthBuild programs have a 

variety of funding sources outside of 

Department grants and that the 

individuals enrolled in those programs 

should not be penalized because of how 

their program is funded. 

Department Response: The 

Department agrees that the 

determination of whether a YouthBuild 

program is considered a ‘‘school’’ 

should not be based on funding source. 

All YouthBuild programs, whether 

funded by the Department of Labor 

wholly, partially, or not at all meet the 

provision described in § 681.230 and are 

not considered schools for purposes of 

WIOA youth program eligibility 

determination. 

Comments: One commenter stated 

that all individuals enrolled in Job 

Corps programs should be considered 

OSY for WIOA youth services. A 

number of commenters requested 

clarification from the Department as to 

whether individuals involved in all Job 

Corps programs would be considered 

OSY, since Job Corps students may 

finish accredited high school diploma 

program or complete a high school 

equivalency certificate or diploma. 

Department Response: The 

Department does not consider any Job 

Corps program to be a ‘‘school’’ for 

purposes of determining WIOA youth 

program eligibility regardless of whether 

students in the Job Corps program are 

pursuing a high school diploma a high 

school equivalency certificate. 

Section 681.240 When do local youth 

programs verify dropout status? 

This section provides that dropout 

status is determined at the time of 

enrollment for eligibility as an OSY and 

that once a youth is enrolled as an OSY, 

that status continues, for purposes of the 

minimum 75 percent OSY expenditure 

requirement, for the duration of the 

youth’s enrollment, even if the youth 

later returns to a school. 

Comments: Several commenters 

expressed their support for the proposed 

language. A number of these 

commenters specifically expressed their 

support for the allowance of youth who 

are determined eligible to receive 

services at the time of their enrollment 

to continue to receive services and 

maintain eligibility even if they are 

placed later in an alternative school. 

These commenters recommend that an 

individual’s status be portable when 

moving across other WIOA funding 

streams as long as that movement is part 

of the individual career plan and part of 

an articulated agreement among the 

partners. One commenter recommended 

changing an individual’s school status 

from ISY to OSY when a youth 

graduates from high school as this 

would assist States with achieving the 

required minimum 75 percent OSY 

expenditure rate and will accurately 

reflect the status of youth with WIOA 

expenditures. 

Department Response: The 

Department has concluded that the most 

straightforward and least burdensome 

approach is for school status to remain 

the same throughout the program. In 

addition, this policy will encourage 

local programs to assist OSY re-engage 

in school without concern that reengaging them in school would 

negatively impact their minimum OSY 

expenditure rate. 

Comments: A number of commenters 

expressed concerns over the provision 

that would allow States to define the 

term ‘‘alternative school.’’ Some of those 

commenters suggested that States with 

broad definitions of schools could end 

up preventing youth who have dropped 

out of school and are attending 

alternative schools from receiving 

WIOA OSY services. One of the 

commenters recommended that the 

Department not leave the definition of 

alternative schools up to States, saying 

that there should be a consistent 

definition across States. Another 

commenter recommended that, 

consistent with the State’s definition of 

alternative education, any youth that 

attends an alternative school also be 

considered an OSY. 

Department Response: The 

Department agrees on the importance of 

consistent definitions across States. 

Because the term ‘‘alternative school’’ is 

a general term that may encompass 

many different types of programs, the 

Department deleted all references to the 

term ‘‘alternative school’’ in § 681.240, 

and it is no longer required to be 

defined in State Plans. Rather, as 

discussed in § 681.230 above, the 

Department has added high school 

equivalency programs and dropout reengagement programs as additional 

types of programs that are not 

considered ‘‘schools’’ for the purposes 

of determining school status. 

Section 681.250 Who does the lowincome eligibility requirement apply to? 

This section discusses the low-income 

eligibility criteria for OSY and ISY. All 

ISY must be low-income with the 

exception that up to 5 percent of ISY 

youth who meet all the other eligibility 

requirements need not be low-income. 

The up to 5 percent is calculated based 

on all newly enrolled youth who would 

ordinarily be required to meet the lowincome criteria in a given program year. 

For OSY, only those youth who are the 

recipient of a secondary school diploma 

or its recognized equivalent and are 

either basic skills deficient or an English 

language learner and youth who require 

additional assistance to enter or 

complete an educational program or to 

secure or hold employment must be 

low-income. 

Comments: Commenters expressed 

support for the amended low-income 

eligibility requirements, and their 

streamlined documentation and process 

requirements, with one commenter 

remarking the change would be 

beneficial to youth. Another commenter 

stated that the OSY low-income 

eligibility criteria would be confusing. 

Department Response: The 

Department concurs with these 

commenters that the new low-income 

eligibility requirements will lead to 

streamlined documentation and process 

requirements. 

Comments: A commenter expressed 

concern over needing to document lowincome status for ISY, fearing it may 

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create a challenge in working with 

schools on career pathway activities. 

The commenter noted that schools 

prefer to provide all students with the 

same experience regardless of family 

income. 

Department Response: The 

Department notes the concern expressed 

about the compatibility between how 

schools and workforce partners 

approach youth. The Department cannot 

change the ISY income level 

requirements as WIOA defines them. 

The Department plans to provide tools 

on approaches to implementing career 

pathways. 

Comments: A commenter 

recommended that all OSY be exempt 

from having to meet low-income 

eligibility requirements, stating that 

there is a high correlation between being 

disconnected from school and work and 

the likelihood of entering poverty, 

especially at a young age. Similarly, a 

commenter recommended that the lowincome requirement be removed from 

the OSY eligibility criteria for 

individuals who need additional 

assistance to complete an educational 

program or to secure or hold 

employment, and for recipients of a 

secondary school diploma who are basic 

skills deficient or an English language 

learner, asserting that the OSY 

requirements would be more effective if 

the low-income criteria were removed 

from these two categories of individuals. 

Department Response: The 

Department recognizes the high 

correlation between being disconnected 

from school and work and the 

likelihood of entering poverty. It also 

understands that removing low-income 

criteria from all of the OSY eligibility 

criteria would simplify the program. 

Nonetheless, these eligibility 

requirements are statutory comments in 

WIOA, and therefore the Department 

cannot change them in regulation. 

Comments: Another commenter 

requested that the Department revise the 

proposed regulations so that OSY may 

be considered low-income if they 

receive or are eligible to receive free or 

reduced lunches, asserting that 

currently the proposed regulations are 

written so that only ISY who are eligible 

for free or reduced price lunches are 

considered to be low-income. 

Department Response: The 

Department considered the commenter’s 

suggestion that OSY may be considered 

low-income if they receive or are 

eligible to receive free or reduced 

lunches. The Department decided not to 

change the Final Rule because youth 

must be enrolled in school to be eligible 

for the Richard B. Russell National 

School Lunch Act. 

Comments: A commenter requested 

clarification from the Department 

concerning the criteria that would be 

used to determine if an individual is an 

English language learner for the 

purposes of the low-income eligibility 

requirement. 

Department Response: The 

Department understands the need for 

criteria for determining if an individual 

is an English language learner for the 

purposes of the low-income eligibility 

requirement. There will be guidance 

and technical assistance provided on 

this topic in the future. No regulatory 

change was made in response to this 

comment. 

Comments: A person commented that 

the proposed regulations would make 

youth with a disability a separate 

eligibility requirement from low-income 

requirements. This commenter and 

another commenter suggested that the 

Department specifically clarify that for 

youth with a disability, low income 

would not be an eligibility requirement 

under the proposed regulations for OSY 

with a disability. 

Department Response: Upon 

analyzing these comments the 

Department discovered a technical error 

in the NPRM. The Final Rule clarifies 

that OSY with disabilities do not need 

to meet low-income eligibility 

requirements and the Department has 

changed the regulatory text to read as 

follows: ‘‘All other OSY meeting OSY 

eligibility under § 681.210(c)(1), (2), (4), 

(5), (6), (7) and (8) are not required to 

be low-income. Additionally, the 

Department clarified in § 681.280 that 

OSY with disabilities are not required to 

be low income. For ISY with a 

disability, the youth’s own income 

rather than his or her family’s income 

must meet the low-income definition 

and not exceed the higher of the poverty 

line or 70 percent of the lower living 

standard income level. 

Comments: A commenter suggested 

that any youth who attends a school that 

is considered by the U.S. Department of 

Education to be a ‘‘designated lowincome school’’ should be considered a 

low-income youth for the purpose of 

WIOA services. Similarly, another 

commenter requested that the 

Department add to the regulations that 

any youth who attend a title I school 

would automatically be considered lowincome for eligibility purposes for 

WIOA youth services. 

Department Response: The 

Department analyzed these two similar 

suggestions and did not modify the 

regulation text. The Department 

reviewed the Department of Education’s 

title I designation and concluded that 

the WIOA high poverty threshold 

represents a more impoverished area 

than the Department of Education’s title 

I school status. 

Comments: A commenter asked for 

clarification as to whether this 5 percent 

of youth means new youth enrollees in 

a given program year or 5 percent of all 

youth enrolled. Another commenter 

asked whether the 5 percent who do not 

have to be low income includes youth 

that are eligible because of non-income 

applicable criteria such as being 

homeless, a member of the juvenile 

justice system, or having dropped out of 

high school. 

Department Response: The 

Department clarified in the regulation 

text that for the 5 percent low-income 

exception, the 5 percent of youth means 

new youth in a given program year. In 

addition, the Department has clarified 

in regulatory text that the calculation for 

the 5 percent exception is based on only 

those youth who would ordinarily need 

to be low income. It is not based on all 

youth since many of the OSY categories 

do not require low-income status. In 

fact, all nine categories at § 681.210(c) 

except for paragraphs (c)(3) and (9) do 

not require low-income status. Because 

not all OSY are required to be lowincome, the 5 percent low-income 

exception under WIOA is calculated 

based on the 5 percent of youth enrolled 

in a given program year who would 

ordinarily be required to meet the lowincome criteria. For example, a local 

area enrolled 200 youth and 100 of 

those youth were OSY who were not 

required to meet the low-income 

criteria, 50 were OSY who were 

required to meet the low-income criteria 

(i.e., either § 681.210(c)(3) or (9)), and 50 

were ISY. In this example the 50 OSY 

required to be low income and the 50 

ISY are the only youth factored into the 

5 percent low-income exception 

calculation. Therefore, in this example, 

5 of the 100 youth who ordinarily 

would be required to be low-income do 

not have to meet the low-income criteria 

based on the low-income exception. 

This percent is calculated at the end of 

a program year based on new enrollees 

in that program year. 

Comments: A few commenters were 

concerned that setting a limit on the 

percent of youth that may be deemed 

eligible based on needing additional 

assistance limits who can be served 

when there is not an abundance of 

youth that have one of the other 

eligibility characteristics. A number of 

commenters requested that the 

Department consider recommending 

that the 5 percent limitation be removed 

at such time that WIOA is amended that 

states that 5 percent of youth who meet 

all other WIOA youth services eligibility 

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requirements do not have to be low 

income. 

Department Response: While the 

Department did not include language in 

the NPRM relating to the 5 percent 

limitation on the ‘‘requires additional 

assistance’’ criterion for ISY, that was an 

unintentional omission. The 

Department has added § 681.310(b), 

which describes the 5 percent ISY 

limitation for the ‘‘requires additional 

assistance’’ criterion. The Department 

will take the concerns about the 5 

percent limitation into consideration 

when providing any technical assistance 

to Congress on WIOA reauthorization. 

Comments: A few commenters asked 

for clarification regarding a definition 

for ‘‘family’’ for the purposes of 

determining low-income eligibility for 

WIOA title I youth program. Another 

commenter recommended that the 

Department incorporate the definition of 

‘‘family’’ from WIA sec. 101(15) into the 

WIOA regulations. A request was made 

that the Department provide an updated 

version of the WIA definition that is 

more inclusive of all family types, 

including same-sex marriages and 

domestic partnerships. 

Department Response: In response to 

the comments seeking clarification of 

‘‘family’’ in WIOA, the Department 

added a definition of family in 20 CFR 

part 675, and it is further discussed in 

the preamble that applies to that part. 

Comments: Some commenters asked 

what items would be included for 

determining if an individual is in a 

family with total family income that 

does not exceed the poverty line. In 

particular, these commenters asked the 

Department if sources of funding such 

as pensions, foster care child payments, 

or unemployment compensation would 

be included when determining a 

family’s low-income status. A 

commenter asked the Department what 

the definition of a dependent child 

would be for purposes of determining 

income eligibility and up to what age 

could an OSY be considered a 

dependent child of the parent or 

guardian. 

Department Response: When 

determining up to what age an OSY 

could be considered a dependent child 

of the parent or guardian use the IRS 

definition of dependent. The 

Department will provide additional 

guidance on eligibility. 

Section 681.260 How does the 

Department define ‘‘high poverty area’’ 

for the purposes of the special rule for 

low-income youth in the Workforce 

Innovation and Opportunity Act? 

WIOA contains a new provision that 

allows for youth living in a high poverty 

area to meet automatically the lowincome criterion that is one of the 

eligibility criteria for ISY and for some 

OSY. 

Comments: The Department received 

many comments on how to define ‘‘high 

poverty area.’’ A number of the 

commenters focused on the 30 percent 

rate as set every 5 years using American 

Community Survey 5-Year data and if 

that was the appropriate threshold. For 

example, a few commenters expressed 

their support for the proposed language 

in this section, suggesting that the 30 

percent threshold for defining a high 

poverty area would be an accurate 

measure. In particular, an entity 

commented that the proposed regulation 

would help to relieve some of the 

burden of meeting income eligibility 

requirements on youth. 

However, another commenter wrote 

that the proposed 30 percent threshold 

would be unreasonable, and requested 

additional clarification regarding the 

calculation methods of contiguous tracts 

in determining high poverty areas. 

Specifically, this commenter asked the 

Department whether it would measure 

high poverty thresholds for a contiguous 

tract using an average of the contiguous 

tracts, or just whether a contiguous tract 

meets the threshold. 

Citing data from the American 

Community Survey, another commenter 

suggested that there are actually few 

census tracts that would meet the 30 

percent poverty threshold. This 

commenter further stated that census 

data, particularly for low-income 

neighborhoods, often includes a large 

margin of error. This commenter 

recommended that the Department 

modify the definition of high poverty 

area to reflect actual geographic 

concentrations of OSY better. 

A few commenters suggested that the 

definition of high poverty area should 

not be higher than 20 percent of the 

population meeting the low-income 

threshold. Other commenters 

recommended that the proposed high 

poverty area definition be lowered from 

30 percent of the population to 25 

percent. 

Citing statistics a commenter said that 

in Maine, there are no areas in which 

the 30 percent poverty threshold would 

be met, one commenter recommended 

that the Department lower the lowincome threshold from 30 percent in 

order to accommodate more rural and 

less densely populated States. 

One commenter recommended that 

the regulations be modified to state that 

if any measure of poverty in a census 

tract exceeds 30 percent, the census 

tract should be considered a high 

poverty census tract, stating that in 

some cases the overall high poverty may 

be under 30 percent but certain 

measures within the overall tract could 

be over 30 percent. 

Two commenters recommended that 

the Department allow States to define 

their own poverty area thresholds 

between 20 and 40 percent that is 

consistent with the State’s 

demographics. Another commenter 

recommended that the Department 

allow Local WDBs to determine the 

thresholds for poverty in their local 

areas. 

Another commenter recommended 

that Local WDBs submit documentation 

to the Department concerning 

extenuating circumstances in their area 

that would cause them to need to lower 

their low-income threshold. 

Department Response: After analyzing 

the many comments received on the 

proposed regulation, the Department 

concluded that a poverty rate of at least 

30 percent as set every 5 years using 

American Community Survey 5-Year 

data was too high. The regulation text 

was changed to reflect a poverty rate of 

at least 25 percent as set every 5 years 

using American Community Survey 5- 

Year data. Local areas must decide how 

to combine census tracts into larger 

contiguous areas and the weighted 

average of the poverty rates of the 

census tracts in each contiguous area to 

meet the threshold. The Census Bureau 

defines a ‘‘poverty area’’ as a census 

tract where at least 20 percent of the 

residents are poor. Therefore, the term 

‘‘high poverty’’ must be greater than 20 

percent; the Department concluded that 

25 percent was the most appropriate 

threshold. Because allowing States to 

define their own poverty threshold 

would lead to inconsistencies in eligible 

youth across the country, the 

Department did not include that 

recommendation in the Final Rule. 

Comments: Citing statistics regarding 

the high poverty rates in Merced County 

and all of San Joaquin valley, a 

commenter recommended that the 

‘‘area’’ measured when determining 

whether an area is high poverty, be 

amended from using counties to cities. 

A different commenter recommended 

that the Department modify the 

proposed regulations to include ‘‘city’’ 

as an additional geographical division 

that could be used when determining 

low-income status of an area. Another 

commenter recommended that any city 

with more than 20 percent of its census 

tracts considered ‘‘high poverty’’ should 

be considered a high poverty area, 

expressing that poverty areas are not 

always contiguous and can be separated 

by land occupied by government 

buildings, shopping malls, and colleges. 

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Department Response: Because most 

cities include multiple neighborhoods 

and census tracts that can vary greatly 

in their levels of poverty, the 

Department decided that using city as 

the geographical area is too large of an 

area to use. 

Comments: A commenter 

recommended that the Department 

should use zip codes to determine lowincome levels instead of census tracts, 

asserting that there are often sub-areas 

of high poverty within a census tract 

and that census tracts often do not 

reflect these concentrated area of high 

poverty. 

Department Response: The 

Department analyzed the effect of 

adding city and zip code as an 

additional geographic division and 

decided to stay with the proposed set of 

contiguous census tracts as the Census 

Bureau defines poverty areas using 

census tracts. The conclusion will result 

in a more consistent implementation of 

the regulation. 

Comments: A few commenters 

suggested that the Department revise the 

proposed regulations so that the 30 

percent poverty threshold is defined 

using the numbers from the population 

in an area who are eligible to participate 

in the program (ages 16 through 24), and 

not using the percentage from the 

general population. Two commenters 

also recommended that high poverty 

areas be defined by the youth poverty 

rate of an area, stating that census tract 

data are minimally useful for the 

purpose of determining the level of 

poverty in an area. Similarly, one 

commenter asserted that using the 

American Community Survey 5-Year 

data for all ages in an area could be 

limited in its usefulness. This 

commenter suggested that the data be 

limited to individuals who are under 18 

living in an area. This commenter 

recommended that the Department 

clarify whether the American 

Community Survey data should be 

limited to youth in an area or whether 

States have discretion to decide which 

data to use. 

Department Response: While the 

Department acknowledges the value 

behind using poverty data that reflect 

the population the program serves, it 

concluded that because this measure 

applies to ISY (14–21) and OSY (16–24), 

and these age ranges are not currently 

easily accessible with the American 

Community Survey, it would not 

specify that the data need to reflect a 

specific subpopulation as a requirement 

in the regulatory text. 

Comments: Another respondent 

sought clarification from the 

Department regarding the proposed 

method of defining high poverty areas. 

Similarly, one commenter stated that 

the Final Rule would need to be clearer 

as to how a local area can determine 

whether or not they are considered a 

high poverty area. Another commenter 

asked the Department to clarify how a 

service provider would document that 

an individual has met the income 

eligibility requirements for WIOA youth 

services by living in a high poverty area. 

One commenter asked if Local WDBs 

could use the U.S. Department of 

Housing and Urban Development (HUD) 

Web site to determine if an area is high 

poverty. 

Department Response: The 

Department recognizes that several 

commenters want directions and tools 

on how a local area could determine 

whether they are considered a high 

poverty area. The Department will 

provide technical assistance to youth 

service providers, making it easier to 

calculate if an area qualifies as a high 

poverty area for WIOA purposes. 

Comments: Several commenters 

recommended that the regulations 

include a variety of measures to 

determine whether an area is ‘‘high 

poverty.’’ Specifically, some of these 

commenters recommended that the 

Department revise the NPRM to include 

additional high poverty area proxies to 

capture low-income youth such as 

living in areas contiguous to high 

poverty areas, living in public housing, 

or living in an area where over a certain 

percent of the student population is 

eligible for free or reduced price 

lunches. An entity recommended using 

additional low-income proxies for high 

poverty area, sharing that the current 

proposed language would exclude 

individuals from participation in these 

services based on their zip code. 

One commenter suggested that school 

district borders be used to define areas 

of high poverty instead of State or 

county borders, asserting that this 

would decrease economic disparity 

between communities. 

Another commenter recommended 

that the Department use the most 

current data available to determine high 

poverty areas. This commenter 

suggested using data from other sources 

instead of solely relying on data from 

the American Community Survey, and 

recommended also using data from 

Empowerment Zones and other partner 

agency information systems. 

Department Response: The 

Department considered all of the 

alternative measures suggested and 

decided to use the proposed calculation 

method, with a slight adjustment to 25 

percent from 30 percent poverty rate in 

order to keep the calculation relatively 

straightforward, easy to understand, and 

not burdensome to document or 

implement. 

Comments: Another commenter stated 

that the proposed method of classifying 

high poverty areas is not consistent with 

WIOA’s intent of serving the neediest 

youth, asserting that eligibility should 

be based on individual needs instead. 

Department Response: The 

Department appreciates the concern 

regarding serving the neediest youth. 

WIOA sec. 129(a)(2) includes the phrase 

‘‘high poverty area,’’ which the 

Department interpreted to mean a 

geographic area and not an individual 

determination. 

Comments: Finally, a commenter 

suggested that the Department revise 

proposed § 681.260 to make it more 

precise and eliminate ambiguity in the 

term ‘‘tribal area.’’ 

Department Response: The 

Department accepted the commenter’s 

suggestion and replaced, ‘‘Indian 

Reservation, tribal land, or Native 

Alaskan Village’’ with ‘‘an American 

Indian Reservation, Oklahoma Tribal 

Statistical Area (as defined by the U.S. 

Census Bureau), Alaska Native Village 

Statistical Area or Alaska Native 

Regional Corporation Area, Native 

Hawaiian Homeland Area, or other 

tribal land as defined by the Secretary 

in guidance’’ in the Final Rule. 

Section 681.270 May a local program 

use eligibility for free or reduced price 

lunches under the National School 

Lunch Program as a substitute for the 

income eligibility criteria under title I of 

the Workforce Innovation and 

Opportunity Act? 

This section explains that WIOA sec. 

3(36) defines a low-income individual 

to include an individual who receives 

(or is eligible to receive) a free or 

reduced price lunch under the Richard 

B. Russell National School Lunch Act. 

Comments: A number of commenters 

expressed support for the proposed 

language’s acceptance of eligibility for 

free or reduced price lunch as a 

substitute for WIOA youth income 

eligibility requirements criteria. 

One commenter asked the Department 

whether an OSY with a sibling receiving 

free or reduced lunches would be 

considered eligible under the proposed 

regulations. Similarly, another 

commenter requested clarification from 

the Department regarding whether an 

OSY high school graduate could use 

their family’s participation in the 

National School Lunch Program as 

fulfillment of their low-income 

requirements. Yet another commenter 

recommended that a youth who lives in 

a household where his or her family 

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member(s) receive or are eligible to 

receive free or reduced price lunch 

should automatically also be eligible for 

WIOA youth services. 

Department Response: The 

Department analyzed the requests to use 

family member’s eligibility to receive 

free or reduced price lunch as a proxy 

allowing a youth not enrolled in school 

to automatically meet low-income 

eligibility criteria for WIOA youth 

services. The Department did not 

change the Final Rule because WIOA 

states ‘‘an individual must receive or is 

eligible to receive a free or reducepriced lunch’’ and youth must be 

enrolled in school to be eligible for 

Richard B. Russell National School 

Lunch Act. Furthermore, low-income is 

not an eligibility requirement for 

significant portions of the OSY program. 

Comments: A few commenters 

requested clarification from the 

Department as to whether in a city or a 

town in which 100 percent of students 

are eligible for free or reduced lunches, 

any student who lives in the area would 

be considered low-income automatically 

and therefore, eligible for WIOA youth 

services, and only would need to prove 

his or her residency. Further, these 

commenters requested clarification from 

the Department regarding whether an 

individual who attends a school that 

qualifies for a Community Eligibility 

Provision (CEP) under the Healthy, 

Hunger-Free Kids Act of 2010 would be 

considered low-income for WIOA youth 

program eligibility purposes. Another 

commenter also discussed the 

requirements of the CEP and asked how 

a school district’s participation in a CEP 

would affect the low-income eligibility 

of youth for WIOA services. 

Department Response: The Healthy, 

Hunger-Free Kids Act of 2010 (Pub. L. 

111–296, December 13, 2010, 124 Stat. 

3183) amends the Richard B. Russell 

National School Lunch Act which 

includes the CEP, but does not replace 

it. The Department found that many 

cities, towns, and schools that 

participate in the CEP have relatively 

low poverty rates as compared to the 

WIOA determined high poverty area. As 

a result of this research, the Department 

decided not to change the Final Rule to 

include the CEP. 

Section 681.280 Is a youth with a 

disability eligible for youth services 

under the Workforce Innovation and 

Opportunity Act if his or her family 

income exceeds the income eligibility 

criteria? 

This section reiterates the WIOA 

provision that, for an ISY with a 

disability, income level for eligibility 

purposes is based on his/her own 

income rather than his/her family’s 

income. For OSY with a disability, 

income is not an eligibility criterion. 

Comments: Two commenters 

expressed support for this provision, 

noting that it would eliminate barriers 

for individuals with disabilities for 

accessing necessary support services. 

Another commenter stated that there 

was an inconsistency between proposed 

§§ 681.250 and 681.280. Specifically, 

the commenter said that § 681.250 

indicates that the low-income 

requirement would not apply to OSY 

with disabilities. However, § 681.280 

states that for an individual with a 

disability, the income level for 

eligibility purposes would be based on 

the person’s individual income as 

opposed to his or her family’s income. 

This commenter recommended that the 

regulatory text be rewritten to clarify 

that the low-income requirement for 

individuals with disabilities would be 

applicable only to ISY and not OSY. 

Department Response: The 

Department concurs that the proposed 

regulation did not factor in the OSY 

eligibility criteria. To address the 

commenter’s concern, the final 

regulation includes the following line, 

‘‘Furthermore, only ISY with a disability 

must be low income. OSY with a 

disability are not required to be low 

income.’’ 

Section 681.290 How does the 

Department define the ‘‘basic skills 

deficient’’ criterion in this part? 

This section reiterates the basic skills 

deficient criterion that is part of the 

eligibility criteria for both OSY and ISY, 

for purposes of title I of WIOA. The 

section also provides that local 

programs must use valid and reliable 

assessment instruments and provide 

reasonable accommodations to youth 

with disabilities in the assessment 

process in making this determination. 

Comments: A commenter 

recommended that the Department 

revise the phrase provided in 

§ 681.290(a)(2), ‘‘(2) Are unable to 

compute or solve problems, or read, 

write, or speak English at a level 

necessary to function on the job, in the 

individual’s family, or in society. 

(WIOA sec. 3(5)).’’ 

Department Response: The 

Department declines to revise this 

language because it comes directly from 

the statutory language of WIOA. 

Comments: A commenter 

recommended that the Department 

include language in § 681.290(b), which 

governs the State WDBs’ policies to 

determine if a youth is basic skills 

deficient, to require the use of age and/ 

or developmentally appropriate criteria. 

Another commenter recommended that 

the Department clarify that local areas 

must state in the local plan how they 

will assess individuals, and that States 

should establish State policies for how 

to define basic skills deficient. 

Department Response: The 

Department addressed these comments 

in State planning guidance, TEGL No. 

14–15 (‘‘Workforce Innovation and 

Opportunity Act (WIOA) Requirements 

for Unified and Combined State Plan’’), 

which can be found at http://

wdr.doleta.gov/directives/All_WIOA_

Related_Advisories.cfm. 

Comments: One commenter requested 

clarification regarding the § 681.290(c) 

requirement that in assessing basic 

skills, local programs must use 

assessment instruments that are valid 

and appropriate for the target 

population. One commenter expressed 

its support for the explicit inclusion of 

‘‘valid and reliable assessment 

instruments’’ and ‘‘reasonable 

accommodations’’ for individuals with 

disabilities, saying that this language 

would create the opportunity for State 

and Local WDBs to put metrics-driven 

services and supports into place. This 

commenter recommended, however, 

that the § 681.290 language be further 

modified to provide State and Local 

WDBs with guidance on how to connect 

youth with disabilities with the 

resources they need if they are deemed 

skills deficient. A number of 

commenters asked about the types of 

basic skills assessments that are 

allowable. 

Department Response: The 

Department will provide guidance or 

technical assistance on ways to help 

youth with disabilities access the 

resources they need. 

Comments: A commenter 

recommended that the Department 

revise § 681.290(c) to include 

assessment instruments that are valid 

and appropriate for the target 

population and must provide reasonable 

accommodation in the assessment 

process, if necessary, for people with 

disabilities. 

Department Response: The 

Department concluded that local 

programs need flexibility to use 

assessments they choose as long as they 

are valid and appropriate. Requiring 

assessments only approved by the 

Department of Education’s National 

Reporting System would be overly 

burdensome for local youth programs. 

No change has been made to the 

regulatory text in response to the 

comment. 

Comments: A commenter suggested 

that the language of this section be 

amended to provide further guidance if 

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a youth with a disability is unable to 

demonstrate basic skills, and that 

language should be included that will 

guide State and Local WDBs as they 

work to meet the needs of youth who 

are basic skills deficient. The 

commenter suggested specific 

procedures should be put into place to 

connect skills deficient youth with 

disabilities with the training and 

resources they need in order to succeed. 

Department Response: The 

Department acknowledges the concerns 

about serving basic skills deficient 

youth, including those with disabilities, 

and will provide guidance and technical 

assistance to address these concerns. No 

change is made to the regulatory text in 

response to this comment. 

Comments: Another commenter 

suggested that local programs should be 

able to use the Individual Education 

Program (IEP) to determine individuals’ 

basic skills, because it is a summary of 

their reading, writing, and math skills. 

Finally, a commenter recommended that 

the Department remove the basic skills 

deficient criteria for the time being, 

noting that all other program 

requirements are beginning in July 2015. 

Department Response: Regarding the 

use of an IEP, the Department will issue 

further guidance describing the use of 

previously conducted assessments. In 

addition, the Department cannot remove 

the basic skills deficient criteria because 

the criteria are set forth in the statutory 

language of WIOA. No changes were 

made to the regulatory text in response 

to these comments. 

Section 681.300 How does the 

Department define the ‘‘requires 

additional assistance to enter or 

complete an educational program, or to 

secure and hold employment’’ criterion 

in this part for OSY? 

The Department added this section in 

the Final Rule to be more clearly 

consistent with the ‘‘requires additional 

assistance’’ eligibility criteria in WIOA 

secs. 129(a)(1)(B)(iv)(VIII) (for OSY) and 

129(a)(1)(C)(iv)(VII) (for ISY). The 

criterion is slightly different for ISY and 

OSY, in that the OSY section contains 

the phrase ‘‘to enter or complete an 

educational program’’ while the ISY 

language states ‘‘to complete an 

educational program.’’ Therefore, the 

Final Rule includes two separate 

sections for the ISY and OSY ‘‘requires 

additional assistance’’ criteria. The new 

§ 681.300 is the OSY section, while 

proposed § 681.300 is now § 681.310, 

the ISY section. Proposed § 681.310 has 

also been renumbered to § 681.320. 

Section 681.310 How does the 

Department define the ‘‘requires 

additional assistance to complete an 

educational program, or to secure and 

hold employment’’ criterion in this part 

for ISY? 

This section allows States and/or 

local areas to define the ‘‘requires 

additional assistance . . .’’ criterion that 

is part of the ISY eligibility. It clarifies 

that if this criterion is not defined at the 

State level and a local area uses this 

criterion in its ISY eligibility, the local 

area must define this criterion in its 

local plan. The Department received 

comments on this section as discussed 

below. 

Comments: A number of commenters 

recommended that the Department 

provide additional guidance, such as 

including an acceptable list of possible 

‘‘additional assistance’’ in order to set 

national standards for what ‘‘additional 

assistance’’ means. Many of these 

commenters expressed concern about 

the proposed language being overly 

broad, with the potential to expand 

services beyond the high-risk 

populations envisioned by WIOA. For 

this reason, these commenters 

recommended that the educational 

program that the individual needs 

should be geared to the achievement of 

basic skills at the secondary level and 

that ‘‘requiring additional assistance to 

secure or hold employment’’ should 

mean that there are deficits in basic 

academic skills (not technical skills, or 

advanced academic skills) that are 

needed to secure employment or 

succeed on the job. 

Another commenter recommended 

that States and/or local areas should 

have an established definition for an 

‘‘individual requiring additional 

assistance to complete an education 

program or to secure or hold 

employment’’ and include a student 

who is significantly over-aged and 

under-credited, (i.e., 2 or more years 

below grade level or off track from high 

school graduation). One commenter 

recommended that the Department 

require State and Local WDBs to 

establish policy using age and/or 

developmentally appropriate criteria to 

determine when a youth requires 

additional assistance to complete an 

educational program or to secure and 

hold employment. 

Department Response: The 

Department understands the need for 

more specific language to define the 

‘‘requires additional assistance’’ 

criterion and plans, and further 

guidance on the need for more specific 

definitions at the State and local level 

will be issued. No change to the 

regulatory text, however, was made in 

response to these comments. 

Comments: A few commenters asked 

about the 5 percent limitation on ISY 

using the ‘‘requires additional 

assistance’’ provision. 

Department Response: It was an 

oversight that the Department did not 

include this new limitation in the 

NPRM. Therefore, the Final Rule 

includes § 681.310(b) that describes the 

5 percent ISY limitation on the use of 

the ‘‘requires additional assistance’’ 

criterion. 

Section 681.320 Must youth 

participants enroll to participate in the 

youth program? 

This section clarifies that there is no 

self-service concept for the WIOA youth 

program and every individual receiving 

services under WIOA youth must meet 

ISY or OSY eligibility criteria and 

formally enroll in the program. It 

defines participation as an eligibility 

determination, the provision of an 

objective assessment, development of an 

individual service strategy, and 

participation in any 1 of the 14 program 

elements. 

Comments: The Department received 

a number of comments, as discussed 

below, recommending the Department 

clarify the point of participation for a 

WIOA title I youth program participant. 

Department Response: The 

Department has added § 681.320(b)(2) to 

clarify that the point of program 

participation does not begin until after 

the youth is determined eligible, the 

youth receives an objective assessment, 

and the youth participates in 1 of the 14 

program elements. In addition, the 

Department made a minor language 

change in § 681.320(b) in order to be 

consistent with language in the 

performance section of the Final Rule. 

Comments: A number of commenters 

expressed their support for the NPRM’s 

specification that there would be no 

self-service for WIOA youth and that 

every individual must enroll formally in 

the program. These commenters also 

stated that they support the proposed 

language’s definition of enrollment as 

the collection of information. 

Several commenters expressed 

concern regarding the burden placed on 

individuals who have to demonstrate 

their eligibility through documentation. 

Some of these commenters requested 

that the Department clarify and make 

explicit that the ‘‘collection of 

information’’ associated with 

enrollment can be supported with selfattestation, in order to ensure upfront 

eligibility, especially for high-risk 

individuals. Although acknowledging 

the improvements in burden associated 

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with certification of income eligibility 

brought about by WIOA, many 

commenters suggested that requiring 

individuals who are at high risk to 

prove their status before they receive 

services that they rely on would be 

detrimental to those in need. These 

commenters suggested that the 

Department use the guidance for selfattestation that was included in the 

‘‘Advisory Training and Employment 

Guidance Letter No. 6–14 Program Year 

(PY) 2013/Fiscal Year (FY) 2014 Data 

Validation and Performance 

Requirements and Associated 

Timelines.’’ Discussing how selfattestation is defined in this document, 

these commenters recommended that 

the Department amend the proposed 

language to state that the collection of 

information that triggers enrollment 

could include self-attestation, and that 

self-attestation is even preferable to 

other methods of information collection. 

Department Response: The 

Department does allow self-attestation 

for the collection of a number of data 

elements. The Department will provide 

further guidance on documentation 

requirements for data elements in the 

Department’s forthcoming data 

validation guidance. 

Comments: Commenters also 

recommended that the Department 

modify the proposed regulations to state 

that an individual is not enrolled in 

WIOA title I programs with the 

collection of information, and that local 

areas are allowed to begin assessment 

activities and other efforts through the 

one-stop delivery system. These 

commenters also recommended the 

Department apply a consistent 

definition of point of enrollment across 

all WIOA titles and recommended that 

the point of enrollment should be 

activated with the individual’s 

participation in a program activity, not 

just their involvement in initial 

assessment activities. 

A commenter recommended that the 

Department clarify that staff assisted 

activities such as assisting youth postexit in transition, navigation, and 

support are encouraged and do not 

trigger enrollment for individuals in 

WIOA youth programs. Another 

commenter stated that the point at 

which the Department defines when an 

individual is enrolled is critical to data 

collection and validation. This 

commenter suggested that collecting an 

individual’s data at the time of 

eligibility verification and at enrollment 

would be redundant and provide 

increased opportunity for inconsistent 

data reporting. 

Another commented that the time of 

enrollment needs to be clarified, as they 

were concerned that the proposed 

regulations as they stand would allow 

the process of taking a WIOA 

application and determining its 

eligibility to be categorized as a ‘‘basic 

career service’’, therefore, counting the 

individual as enrolled. This commenter 

recommended that the regulations be 

amended so that enrollment into WIOA 

title I services would be the first service 

provided, after eligibility has already 

been determined. 

Department Response: The 

Department has clarified in § 681.320(b) 

of this DOL WIOA Final Rule that the 

point of participation is after an 

eligibility determination, and added in 

§ 681.320(b) that the point of 

participation occurs after the provision 

of an objective assessment, development 

of an individual service strategy, and 

participation in any of the 14 WIOA 

youth program elements. In addition, 

the Department will ensure consistency 

in the point of participation across all 

WIOA titles through the performance 

section in 20 CFR 677.150(a)(2) (see 

Joint WIOA Final Rule). 

Other Eligibility Issues 

Comments: A commenter 

recommended that the Department 

explicitly clarify that youth who are 

eligible to work under Deferred Action 

for Childhood Arrivals (DACA) also 

would be eligible for WIOA programs. 

Department Response: The 

Department declines to address DACA 

in the WIOA Final Rule (due to pending 

court decisions). The Department issued 

guidance on DACA in TEGL No. 02–14 

(‘‘Eligibility of Deferred Action for 

Childhood Arrivals Participants for 

Workforce Investment Act and WagnerPeyser Act Programs’’), which can be 

found at https://wdr.doleta.gov/

directives/attach/TEGL/TEGL_2-14.pdf. 

Comments: Two commenters noted 

that WIOA sec. 132 (b)(1)(B)(v)(I) 

defines an adult to mean an individual 

who is not less than age 22 and not 

more than age 72. The commenters 

identified that in other instances (title I 

sec. 3, title II), adults are defined as 

being 18 and not 22. These commenters 

requested further clarification from the 

Department as to whether this age 

difference was an oversight on the part 

of the Department. 

Department Response: WIOA sec. 132 

discusses the allotment formula for 

States and outlying areas used each 

program year and refers to the adult age 

range used in the statutory formula to 

determine the amount of funds a State 

or outlying area receives in a given 

program year. The other references to 

WIOA titles I and II the commenters cite 

relate to eligibility age for specific 

services and is not a Department 

oversight. No changes have been made 

to regulatory text in response to these 

comments. 

4. Subpart C—Youth Program Design, 

Elements, and Parameters 

Section 681.400 What is the process 

used to select eligible youth service 

providers? 

This section clarifies that youth 

activities may be conducted by the local 

grant recipient and that when the Local 

WDB chooses to award grants or 

contracts to youth service providers, 

such awards must be made using a 

competitive procurement process in 

accordance with WIOA sec. 123. 

The Final Rule clarifies that the grant 

recipient/fiscal agent has the option to 

provide some or all of the youth 

workforce investment activities directly 

themselves rather than entering into a 

grant or contract to provide the 

activities. The competitive procurement 

provision discussed in WIOA sec. 123 is 

only applicable if the Local WDB 

chooses to award grants or contracts to 

youth service providers. The 

Department encourages Local WDBs to 

continue to award contracts to youth 

service providers when local areas have 

access to experienced and effective 

youth service providers. The revision 

also uses the terminology ‘‘youth service 

providers’’ consistently to refer to these 

providers. While this revision 

represents a significant change in that it 

provides Local WDBs with flexibility in 

determining which WIOA youth 

services to procure, the Department 

expects Local WDBs to continue to 

contract with youth service providers to 

provide the program elements which 

youth service providers are best 

positioned to offer. The intent of this 

flexibility is to allow for Local WDBs to 

directly provide the WIOA youth 

program elements that they can most 

efficiently and cost-effectively provide, 

such as labor market and employment 

information and framework services 

including assessment, intake, 

supportive services and follow-up 

services. The Department received a 

number of comments on this section as 

discussed below. Based on these 

comments, the Department has made a 

significant revision to this section in the 

Final Rule. 

Comments: A number of commenters 

asked the Department to provide 

specific guidance as to which WIOA 

youth services must be competitively 

procured and when this regulation 

would take effect. One commenter 

requested additional clarification from 

the Department regarding the 

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competitive selection requirement, 

specifically inquiring as to what the 

framework required by local areas 

would be. 

In addition, since the proposed 

regulation stated at § 681.400(b) that 

competitive selection requirements do 

not apply to ‘‘the design framework 

services when these services are more 

appropriately provided by the grant 

recipient/fiscal agent,’’ a couple of 

commenters asked the Department to 

clarify framework services. One of these 

commenters stated that framework 

services are described differently in the 

NPRM preamble discussion and the 

proposed regulatory text at 

§§ 681.400(b) and 681.420(a). One 

commenter asked the Department for 

clarification as to whether a county 

within a local area that is not a fiscal 

agent could perform framework 

activities, suggesting that disallowing 

this would not be cost effective. 

Department Response: The 

Department determined a need for 

greater clarity about the specific youth 

services that must be competitively 

procured. In addition, the concept of 

framework services in the NPRM was 

overly complex. The Final Rule clarifies 

that the competitive procurement 

requirements in sec. 123 of WIOA apply 

only if the Local WDB chooses to award 

grants or contracts to youth service 

providers to provide some or all of the 

youth program elements. For example, a 

Local WDB could choose to procure 

competitively all youth program 

elements or it could choose to 

competitively procure a few of the 

youth program elements, and provide 

the remaining program elements 

themselves. This simplification in the 

Final Rule eliminates the need for the 

discussion of framework services in 

§ 681.400(b). 

Comments: With regard to proposed 

§ 681.400(a)(3), which would allow a 

Local WDB to sole source awards if it 

determines there is an insufficient 

number of eligible training providers of 

youth activities in the local area, a 

commenter asked the Department how a 

Local WDB would determine that there 

is an insufficient number of youth 

providers. Further, this commenter 

asked if a determination that a local area 

is ‘‘rural’’—for example, by using the 

Census Bureau, Office of Rural Health 

Policy, or Office of Management and 

Budget definition—alone provides 

justification for sole sourcing. Some 

commenters recommended that the 

Department expand the proposed 

§ 681.400(a)(3) language to allow for the 

Local WDB to allow the grant recipient/ 

fiscal agent to deliver the elements 

when there are no eligible training 

providers available, as this would be 

most useful in rural areas. 

Department Response: The Final Rule 

in § 681.400(b)(4) does not address how 

to determine an insufficient number of 

eligible youth providers. Rather, the 

Local WDB should have a policy that 

defines what would constitute an 

insufficient number of eligible youth 

providers. Based on the changes made 

in the Final Rule, the grant recipient/

fiscal agent will have the flexibility to 

deliver youth program elements as 

recommended by the commenter. 

Comments: A number of commenters 

recommended that the Department 

expand the § 681.400 language to 

encourage Local WDBs to ensure that 

the competitive process does not 

discourage or limit co-enrollment of 

youth participants in other core or 

partner programs. One commenter 

recommended that the youth provider 

selection process should include 

suggested quality criteria for Local 

WDBs and/or States to use when 

selecting eligible training providers. 

This commenter also suggested that the 

Department provide in the regulation 

examples of public or private entities 

that have demonstrated effectiveness in 

providing regionally accredited 

secondary level educational programs 

providing entry-level workforce 

preparation and/or leading to 

recognized postsecondary education 

and training activities. 

Department Response: The 

Department agrees that it is important 

not to discourage co-enrollment and to 

incorporate quality criteria. The 

Department concluded that this type of 

language is more appropriate in 

guidance. The Department also agrees 

with the importance of competitively 

selecting high quality youth service 

providers, as appropriate, and will 

address this issue in future guidance. 

Comments: A commenter asked 

whether waivers for providing intake, 

assessment, development of ISS, case 

management, and follow-up services are 

still recognized under the regulation. 

Finally, one commenter observed that 

the term ‘‘local program’’ is used 

throughout subpart C without a clear 

definition, and recommended that the 

Department add a definition of ‘‘local 

program’’ to § 681.400. 

Department Response: Because of the 

revisions to the Final Rule that provide 

additional flexibility in delivering youth 

program elements, waivers related to 

WIOA sec. 123 are no longer necessary. 

In addition, the Department declines to 

add a new definition of ‘‘local 

program’’; the term ‘‘local program’’ 

refers to a local workforce area’s WIOA 

title I youth formula-funded program. 

No changes were made to the final 

regulation in response to these 

comments. 

Section 681.410 Does the requirement 

that a State and local area expend at 

least 75 percent of youth funds to 

provide services to out-of-school youth 

apply to all youth funds? 

This section describes the new 

requirement under WIOA that States 

and local areas must expend a minimum 

of 75 percent of youth funds on OSY. 

This section also clarifies the guidelines 

by which a State that receives a 

minimum allotment under WIOA sec. 

127(b)(1) or under WIOA sec. 132(b)(1) 

may request an exception to decrease 

the minimum expenditure percentage to 

not less than 50 percent. 

Comments: Numerous commenters 

expressed their support for the increase 

in mandatory minimum OSY 

expenditure from 30 to 75 percent, 

asserting that this change along with 

others would lead to improved 

outcomes for OSY. One commenter 

expressed its support for the proposed 

regulations, but further encouraged the 

Department to provide guidance as to 

how programs can transition to help the 

OSY population now that they are a 

priority. This commenter cautioned that 

without such guidance, providers with 

experience meeting Federal 

requirements and/or with expertise in 

hybridized ‘‘earn and learn’’ models 

could be excluded from the system. In 

addition to supporting the proposed 

regulations regarding the 75 percent 

funding requirement, one commenter 

expressed support for the Department’s 

attempts to limit opportunities for 

waivers that would reduce this funding 

requirement. A few commenters 

expressed their support of the language 

that would allow organizations a 

transition period before they have to 

reach the 75 percent OSY funding goal. 

One of these commenters suggested that 

allowing for this gradual transition 

would help public workforce systems to 

decrease their expenditures on ISY 

slowly. Another commenter was 

concerned about the 75 percent 

requirement because for its State and 

others with low-dropout rates, reaching 

the requirement would be unrealistic 

and would fail to serve many at-risk 

ISY. This commenter recommended that 

the requirement be reduced to 40 

percent for the first year after 

implementation and increased to 60 

percent at the third year and thereafter. 

Department Response: While the 

Department notes the commenters’ 

concerns about the shift to spending 

more funds on OSY, the Department 

issued TEGL No. 23–14 (‘‘WIOA Youth 

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Program Transition Guidance’’), which 

can be found at http://wdr.doleta.gov/

directives/All_WIOA_Related_

Advisories.cfm, on March 26, 2015. This 

guidance discusses transitioning to the 

minimum 75 percent OSY expenditure 

requirement that allows a gradual 

transition in the first WIOA program 

year. The Department plans to issue 

additional guidance and technical 

assistance to help programs serve more 

OSY. 

Comments: A commenter expressed 

concern that transitioning to the 75 

percent OSY requirement would 

decrease performance outcomes 

throughout the youth services system 

because the OSY population is often 

difficult to retain contact with, 

especially after they have exited the 

program. Therefore, this commenter 

predicted that local areas would enroll 

a limited number of youth, except that 

those youth have a relatively high 

prospect for success, and devote 

significant resources to tracking and 

reporting on that limited population. 

This commenter requested confirmation 

that the Department would prefer that 

local areas forgo volume considerations 

and do everything possible for the few 

OSY that could meet these expectations. 

Department Response: The 

Department recognizes that OSY may 

require additional resources for services 

and expects local programs to provide 

the necessary resources to ensure the 

success of OSY. There is no specific 

expectation on the number of OSY 

programs must serve, only on the 

percentage of funds spent on OSY. 

States and local areas will have the 

opportunity to set performance targets 

based on the population they serve. 

Comments: Commenting that many 

ISY are at risk regardless of the fact that 

they are attending school, a commenter 

stated that the proposed regulations 

would not give enough support to areas 

who want to continue to help serve ISY. 

Further, this commenter was concerned 

that some ISY may end up dropping out 

in order to be eligible for OSY services 

and assistance and, therefore, suggested 

that local areas should be able to 

determine the needs of their own areas 

and serve those individuals as such. 

Department Response: The 

Department recognizes the concerns 

about serving fewer ISY. However, the 

focus in WIOA is on expending 

additional resources on OSY. Local 

WDBs do not have the authority under 

WIOA to determine ISY and OSY 

expenditure rates based on the needs of 

their own area. Local areas must spend 

a minimum of 75 percent of youth funds 

on OSY, with the exception that local 

area administrative expenditures are not 

a part of the 75 percent OSY minimum 

expenditure calculation. 

Comments: Describing the impact the 

75 percent OSY minimum expenditure 

requirement would have on its summer 

transition program, one commenter 

opposed the OSY minimum expenditure 

requirement, stating that it would 

prevent 15 ISY who have been 

identified as high-risk from 

participating in its program due to a 

lack of funding for ISY. 

Department Response: The 

Department recognizes concerns 

regarding continuing to serve ISY and 

issued TEGL No. 23–14 (‘‘WIOA Youth 

Program Transition Guidance’’) on 

March 26, 2015, which can be found at 

http://wdr.doleta.gov/directives/All_

WIOA_Related_Advisories.cfm, which 

addresses transitioning ISY and ensures 

they can successfully complete the 

program and are not exited from the 

program prematurely. 

Comments: A number of commenters 

recommended that the Department 

provide additional detail about what is 

required in the analysis of ISY and OSY 

populations in a local area that would 

be required as part of the waiver process 

to reduce the OSY minimum 

expenditure percentage for States that 

receive the small State minimum 

allotment (proposed § 681.410(b)(1)). 

Department Response: The 

Department will provide guidance on 

what is required when submitting 

waivers to reduce the required OSY 

minimum expenditure rate for States 

that receive the small State minimum 

allotment. 

Section 681.420 How must Local 

Workforce Development Boards design 

Workforce Innovation and Opportunity 

Act youth programs? 

This section describes the framework 

for the WIOA youth program design. 

This section also describes the 

requirement that Local WDBs must link 

to youth-serving agencies and adds local 

human services agencies to the list that 

WIA required. 

Objective Assessment 

Comments: One commenter 

recommended that the Department 

clarify that the proposed § 681.420(a)(1) 

requirement that the youth program 

design framework services must provide 

for an individual objective assessment 

does not require testing to determine an 

individual’s Grade Level Equivalent or 

Educational Functioning Level unless 

needed to determine that the participant 

is basic skills deficient or to document 

a measurable skill gains for purposes of 

measuring performance. Another 

commenter recommended that the 

objective assessments and individual 

services planning process be completed 

using ‘‘strength-based’’ approaches that 

focus on the strengths of the individuals 

instead of their faults. 

Department Response: The 

Department has incorporated language 

into § 681.420(a)(1) to review youth 

strengths as part of the assessment 

process. It is also the intention of the 

Department to clarify the requirements 

around the youth program design 

framework in system guidance. 

Individual Service Strategy 

Comments: A commenter 

recommended that a participant’s ISS be 

developed with the individual’s needs 

in mind and not on the time constraints 

or structure of the provider. 

Department Response: The 

Department has incorporated language 

into § 681.420(a)(2) to develop the ISS 

based on the needs of the participant. 

Career Pathways 

Comments: Several commenters 

recommended that the Department 

clarify that the Local WDB may require 

that youth services be aligned with 

specific career pathways identified by 

the Local WDB. Further, these 

commenters suggested that the 

regulations should clarify that the 

requirement under WIOA sec. 3(7)(F) 

that a career pathway must enable an 

individual to attain a secondary school 

diploma or its equivalent, and at least 

one recognized postsecondary 

credential, does not limit the ability of 

local areas to serve youth who have 

already attained a secondary school 

diploma or its equivalent. 

A number of commenters requested 

clarification from the Department about 

the activities that States and Local 

WDBs must carry out regarding career 

pathways, and whether they have to 

establish specific processes and policies 

concerning career pathways. 

Additionally, many of these 

commenters requested that the 

Department clarify whether Local WDBs 

must implement each element outlined 

in the WIOA definition and stated that 

WIOA does not indicate whether the 

identification of career pathways as part 

of the assessment and individual service 

strategy would create any additional 

requirements for local areas or youth 

service providers. Some of these 

commenters also recommended that the 

regulation clarify that the WIOA sec. 

3(7)(C) requirement relating to 

counseling does not create an 

affirmative requirement for Local WDBs 

or youth service providers to provide 

counseling to every individual, but only 

to the extent that such counseling 

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would be consistent with the objective 

assessment and the ISS. 

One commenter agreed that Local 

WDBs should foster relationships with 

secondary and postsecondary education 

providers regarding the implementation 

of local career pathway strategies, 

stating that because of the shift in focus 

to OSY, Local WDBs should consult 

with experts that understand youth 

needs to design effective career pathway 

strategies. 

Department Response: The 

Department agrees that additional 

guidance is necessary to describe WIOA 

requirements for incorporating career 

pathways into the WIOA title I youth 

program, although the Department has 

determined that additional regulatory 

text on career pathways is not 

necessary. The Departments of Labor, 

Education, Health and Human Services 

in coordination with nine other Federal 

agencies plan to provide additional 

guidance and technical assistance on 

the implementation of career pathways 

in WIOA. 

Follow-Up Services 

Comments: A couple of commenters 

expressed concern that proposed 

§ 681.420(a) listed follow-up services as 

part of the design framework services 

and proposed § 681.460(a)(9) listed 

follow-up services as 1 of the 14 

program elements because design 

framework services do not have to be 

procured, while program elements do. 

These commenters requested that the 

Department clarify that youth program 

operators have the flexibility to include 

follow-up services in the design 

framework or as a youth program 

element. 

Department Response: The 

Department clarified the procurement 

requirements for all program elements, 

including follow-up services, in 

§ 681.400. 

Involvement of the Community 

Comments: One commenter requested 

that the Department clarify the term 

‘‘actively involved’’ in the proposed 

§ 681.420(g) requirement that Local 

WDBs ensure ‘‘that parents, youth 

participants, and other members of the 

community with experience relating to 

youth programs are actively involved in 

both the design and implementation of 

its youth programs.’’ Another 

commenter stated that requiring those 

individuals be ‘‘actively involved’’ is 

overly prescriptive and not required in 

legislation. The commenter expressed 

concern that public meetings allow 

open access and it would be impossible 

to ensure engaged participation. 

Department Response: The 

Department agrees with this comment 

and has deleted the word ‘‘actively’’ 

from the Final Rule. 

Comments: Another commenter 

recommended that the Department 

amend § 681.420 to better reflect the 

diverse range of stakeholders and 

perspectives of youth with disabilities. 

Specifically, this commenter 

recommended that the requirement that 

specific members of the community be 

involved with the establishment of 

program design should include youth 

with disabilities. 

Department Response: The 

Department has not added additional 

language based on this comment as 

§ 681.420(c)(6) already specifically 

names local disability-serving agencies. 

Pay-for-Performance 

Comments: One commenter asked 

about the performance and reporting 

requirements of the pay-for-performance 

provision, specifically whether the 

Department will change how States 

report. 

Department Response: The 

Department plans to issue further 

guidance about the Pay-for-Performance 

contract strategies provision of WIOA 

and the requirements of subpart E of 

part 683. 

Section 681.430 May youth participate 

in both the Workforce Innovation and 

Opportunity Act (WIOA) youth and 

adult programs concurrently, and how 

do local program operators track 

concurrent enrollment in the WIOA 

youth and adult programs? 

This section provides that youth may 

participate in both the WIOA youth 

program and the adult program at the 

same time if they are eligible for both 

and it is appropriate. The section also 

provides that youth who are eligible 

under both programs may enroll 

concurrently in WIOA title I and II 

programs. 

Comments: Several commenters 

expressed support for the proposed 

language that clarifies that youth may be 

co-enrolled in WIOA title I and II 

programs. However, many of these 

commenters also recommended that the 

Department strengthen the language to 

encourage Local WDBs to incorporate 

co-enrollment with other core programs 

as part of the overall youth program 

design. One of these commenters also 

stated that co-enrollment would create 

difficulties in terms of data collection 

and capacity. Specifically, this 

commenter said that to move 

successfully between systems without 

significant disruption, data collection, 

and storage must track the individual 

youth themselves, instead of just the 

programs they are in. This commenter 

suggested that additional funding and 

technical support may be necessary to 

assist States and local areas in 

developing comprehensive data 

systems. 

Some commenters also expressed 

their support of the proposed 

regulations’ encouragement of coenrollment, especially because of how it 

could extend more services to OSY. 

However, these commenters expressed 

concerns that potential disincentives for 

co-enrollment exist related to 

inconsistencies across funding streams 

in how enrollment, exit, and 

participation in activities are defined 

and how performance is measured in 

programs across the different titles. 

Department Response: The 

Department acknowledges the concerns 

regarding disincentives for coenrollment due to data tracking issues 

and performance measure implications. 

However, the Department intends to 

provide additional guidance and 

technical assistance to support coenrollment across core programs. No 

changes were made to the regulatory 

text to reflect these comments. 

Comments: One commenter expressed 

its support for the proposed regulation’s 

allowance of dual eligibility in WIOA 

title I and II programs, but 

recommended that the Department issue 

additional guidance to Local WDBs 

about how to coordinate their resources 

effectively for individuals who could 

co-enroll in both title I and title II 

services. Further, this commenter asked 

the Department for clarification as to 

whether co-enrolled individuals would 

need Individual Training Accounts 

(ITAs) and whether States should have 

to maintain documentation of providers 

who have expertise in services under 

both titles I and II. A few commenters 

expressed their support for the option of 

co-enrollment in WIOA title I and II 

programs, stating that this allowance 

would be particularly beneficial for 

youth under the Deferred Action for 

Childhood Arrivals policy who have not 

yet received their high school 

equivalency certificate because their 

participation in youth services under 

title I could further instill in them a 

greater educational work ethic. Further, 

these commenters recommended that 

the Department search for potential 

methods for how State and Local WDBs 

could recruit and ensure that they are 

providing services to eligible 

immigrants. 

Department Response: On November 

17, 2015, the Department provided 

preliminary guidance regarding 

partnering between WIOA titles I, II, 

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and IV in TEGL No. 08–15 (‘‘Second 

Title I WIOA Youth Program Transition 

Guidance’’), which can be found at 

http://wdr.doleta.gov/directives/All_

WIOA_Related_Advisories.cfm. 

The Department will provide 

additional technical assistance 

regarding partnering across the WIOA 

programs on an on-going basis, 

including services to eligible 

immigrants. No changes were made to 

the regulatory text in response to these 

comments. 

Comments: Another commenter 

recommended tracking expenditures 

individually by each program. 

Department Response: The 

Department already does require 

tracking expenditures by each program, 

and no changes were made to the 

regulatory text in response to this 

comment. 

Section 681.440 How does a local 

youth program determine if an 18 to 24 

year old is enrolled in the Workforce 

Innovation and Opportunity Act 

(WIOA) youth program or the WIOA 

adult program? 

Individuals aged 18 to 24 are eligible 

for the WIOA adult and youth programs. 

This section provides that local youth 

program needs to determine whether to 

enroll an 18 to 24 year old in the youth 

program or adult program based on the 

individual’s career readiness as 

determined through an assessment of 

his or her occupational skills, prior 

work experience, employability, and 

participant needs. 

Comments: A commenter 

recommended that, given the intent of 

WIOA, individuals should be able to 

determine the programs in which they 

will participate. However, this 

commenter further recommended that 

the Department modify the proposed 

language to give guidance to States in 

terms of how to present materials on 

program choice to individuals and 

ensure that the materials presented 

would be understood by a wide variety 

of individuals, including those with 

disabilities. 

Another comment stated that 

determining in which program an 18 to 

24 year old should enroll would impose 

a burden on local areas to establish 

processes to ensure that services are 

provided to an individual in the 

appropriate program. 

A commenter suggested that, in cases 

of eligibility for co-enrollment in WIOA 

title I and II activities, it would not be 

suitable for an 18 to 24 year-old youth 

to be enrolled in the adult program 

without first undergoing an assessment 

to determine whether the adult program 

would be appropriate for meeting his or 

her needs. 

Department Response: The 

Department does not intend to require 

local WDBs to establish specific 

processes to ensure that individuals are 

served in the appropriate program. 

Rather the Department wants to 

emphasize that youth may be served by 

either program depending on the young 

adult’s individual needs, knowledge, 

skills, and interests. Local WDBs need a 

process in place to assist in determining 

the appropriate program for participants 

between the ages of 18 and 24. 

Based upon the comments received, 

the Department updated the Final Rule 

and removed the word ‘‘objective’’ from 

in front of assessment to indicate that a 

formal evaluation is not needed and the 

Department removed the reference to 

WIOA sec. 129(c)(1)(A). 

Section 681.450 For how long must a 

local Workforce Innovation and 

Opportunity Act youth program serve a 

participant? 

The Department has continually 

provided guidance and direction that 

youth programs serve participants for 

the amount of time necessary to ensure 

they are successfully prepared to enter 

postsecondary education and/or 

unsubsidized employment. While there 

is no minimum or maximum time a 

youth can participate in the WIOA 

youth program, programs must link 

program participation to a participant’s 

ISS and not the timing of youth service 

provider contracts or program years. 

Comments: Some commenters 

expressed their support for the proposed 

regulations’ allowance to serve youth 

until their needs have been met, stating 

that this would alleviate stress on 

participants from having to deal with 

time constraints. 

A few of these commenters also 

stated, however, concerns about the use 

of the word ‘‘must.’’ These commenters 

recommended that the language be 

amended to say, ‘‘Local youth programs 

must provide service to a youth 

participating in their individual service 

strategy in good faith for the amount of 

time necessary to ensure successful 

preparation to enter postsecondary 

education, registered apprenticeships, 

and/or unsubsidized employment.’’ 

In addition to allowing an individual 

to remain enrolled in WIOA youth 

services until he or she completes his or 

her plan of service, a commenter 

recommended that youth may remain 

enrolled in their services regardless of 

whether they are experiencing a period 

of inactivity in a program, as long as 

they are active in their career counseling 

services. 

Another commenter stated that the 

proposed regulations would not allow 

individuals who do not abide by the 

rules of their program to discontinue 

services and re-enroll in the program as 

long as they were within the age 

requirement. This commenter 

recommended that the Department 

revise this regulation to focus on the 

needs of individuals who must 

temporarily suspend their services for 

legitimate reasons. 

Department Response: The 

Department recognizes that at times 

youth face obstacles that make it hard 

for them to commit to a program, 

however the services that all youth 

receive should still align with their ISS. 

The program should review the ISS with 

the youth and determine if the program 

has the appropriate services available 

for the young adult. Additionally a 

youth may remain in the program for as 

long as he or she is receiving at least one 

program element, other than follow-up 

services. Therefore, because WIOA sec. 

129(c)(2)(M) includes career counseling 

services, the scenario described above 

with a youth only participating in career 

counseling would be acceptable under 

the Final Rule. No change has been 

made in the regulatory text in response 

to these comments. 

Comments: Two commenters 

requested additional clarification from 

the Department about how they would 

measure and explicitly define 

‘‘successful preparation to enter 

postsecondary education and/or 

unsubsidized employment.’’ One of 

these commenters further recommended 

that they not measure successful 

preparation by an individual’s actual 

entry into either postsecondary 

education or unsubsidized employment, 

stating that there may be outside, 

uncontrollable factors that are 

preventing them from engaging in those 

activities, other than their level of 

readiness. 

Department Response: The required 

reported outcomes for individuals 

entering postsecondary education and/

or unsubsidized employment do not 

differ from the other WIOA youth 

program performance indicators. 

Additional information on required 

performance indicators is found in 20 

CFR part 677 (see Joint WIOA Final 

Rule). 

Section 681.460 What services must 

local programs offer to youth 

participants? 

This section lists the 14 program 

elements, including 5 new youth 

program elements in WIOA sec. 

129(c)(2) that were not included under 

WIA. These new elements are (1) 

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education offered concurrently with and 

in the same context as workforce 

preparation activities and training for a 

specific occupation or occupational 

cluster; (2) financial literacy education; 

(3) entrepreneurial skills training; (4) 

services that provide labor market and 

employment information about indemand industry sectors or occupations 

available in the local area, such as 

career awareness, career counseling, and 

career exploration services; and (5) 

activities that help youth prepare for 

and transition to postsecondary 

education and training. In addition, 

WIOA revised some of the WIA program 

elements. For example, the element on 

tutoring, study skills training, and 

instruction leading to the completion of 

secondary school, including dropout 

prevention strategies, has been revised 

to provide that the dropout prevention 

(and recovery) strategies must be 

evidence-based and to make clear that 

the completion of secondary school can 

be accomplished by attainment of a 

secondary school diploma or its 

recognized equivalent, including a 

certificate of attendance or similar 

document for individuals with 

disabilities. 

WIOA also combines the two WIA 

elements of summer youth employment 

programs and work experiences so that 

summer youth employment programs 

become one item in a list of work 

experiences and adds preapprenticeship programs to the list of 

work experiences. Finally, WIOA 

expands the description of the 

occupational skill training element to 

provide for priority consideration for 

training programs that lead to 

recognized postsecondary credentials 

that are aligned with in-demand 

industry sectors or occupations if the 

programs meet WIOA’s quality criteria. 

This change is consistent with WIOA’s 

increased emphasis on credential 

attainment. The section clarifies that 

while local WIOA youth programs must 

make all 14 program elements available 

to WIOA youth participants, local 

programs have the discretion to 

determine which elements to provide to 

a participant based on the participant’s 

assessment and ISS. 

The Department received many 

comments, which are discussed below, 

on provisions within § 681.460. 

Comments: A commenter asked for 

clarification from the Department 

regarding the reasons for WIOA’s 

increase in the number of required 

program elements that a local area must 

be able to provide. Another entity 

commented that not all of the 14 

proposed program elements are 

available in every local area, citing 

mentorship programs as a primary 

example. 

Another commenter stated that local 

areas should be allowed to choose 

which of the 14 program elements to 

provide, reasoning that local areas will 

have the best insight into what is 

needed for the individuals in their 

particular area. 

Department Response: The 

Department understands that in some 

local areas it takes effort to identify 

quality providers for all program 

elements; however, WIOA explicitly 

requires these 14 elements for youth 

programs. While all 14 program 

elements must be available in a local 

area, every youth does not have to 

receive every element. For instance, 

only youth that have mentoring 

included on their ISS need to receive 

the program element. 

The Department acknowledges that in 

some areas mentoring is particularly 

challenging and has changed § 681.490 

to allow case managers to serve as adult 

mentors. 

Comments: Another commenter 

recommended that the Department 

clarify that youth programs may bring in 

multiple public/private partners and 

evidence-based programs that support 

the attainment of a secondary school 

diploma or its recognized equivalent, 

entry into postsecondary education, and 

career readiness for participants. 

Department Response: The 

Department agrees that partnering with 

other organizations to provide some 

program elements can be valuable and 

has added § 681.460(c), that reads, 

‘‘When available, the Department 

encourages local programs to partner 

with existing local, State, or national 

entities that can provide program 

element(s) at no cost to the local youth 

program.’’ 

Comments: One commenter said that 

services offered to an individual must 

be in the area where the youth live 

because too often programs’ inability to 

relieve transportation challenges has 

resulted in program non-completion. 

The commenter suggested that the 

Department include language regarding 

the need for State and Local WDBs to 

support investments in transportation 

services and program operations beyond 

non-traditional hours of operation. 

Department Response: The 

Department recognizes the need for 

program operation during nontraditional hours as well as the 

challenge transportation presents across 

the country. As described in 

§ 681.570(b) supportive services may 

include transportation costs. The 

Department did not change the 

proposed regulation, though through 

technical assistance it will emphasize 

the possibility of using WIOA funds to 

cover transportation needs. 

Comments: Another commenter 

recommended that the Department 

clarify that providers must incorporate a 

number of items in their dropout 

recovery services (proposed 

§ 681.460(a)(2)), such as credit recovery 

opportunities leading to postsecondary 

education; flexible scheduling; various 

learning models; performance-based 

assessments; mentoring; and 

‘‘comprehensive’’ support service. 

Department Response: The 

Department recognizes the value of 

dropout recovery services for youth and 

its success in reconnecting disconnected 

youth. Because many of the items 

suggested by the commenter are either 

WIOA program elements or allowable 

under other program activities, the 

Department decided not to change the 

regulatory text about alternative 

secondary school services. The 

Department plans to provide technical 

assistance on the program elements, 

including those that contain dropout 

recovery services. 

Comments: One commenter 

recommended that, in order to clarify 

that neither the Governor nor the State 

WDB should impose policies that 

require a sequence of services, the 

Department should revise proposed 

§ 681.460(a)(3) to clarify that ‘‘academic 

and occupational education as a 

component of work experience’’ may be 

provided on a concurrent or sequential 

basis based upon a participant’s ISS, 

stating that local areas should have the 

flexibility to meet participants’ 

individual needs. 

Department Response: The 

Department concurs that youth may 

receive academic and occupational 

education as a component of work 

experience on a concurrent or 

sequential basis based upon the ISS. 

The Department included new language 

in the Final Rule text of § 681.600(b) 

that clarifies that the academic and 

occupational education of work 

experience may occur on a concurrent 

or sequential basis. 

Section 681.470 Does the Department 

require local programs to use Workforce 

Innovation and Opportunity Act funds 

for each of the 14 program elements? 

This section clarifies that local WIOA 

youth programs must make all 14 

program elements available to youth 

participants, but not all services must be 

funded with WIOA youth funds. Local 

programs may leverage partner 

resources to provide program elements 

that are available in the local area. If a 

local program does not fund an activity 

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with WIOA title I youth funds, the local 

area must have an agreement in place 

with the partner to offer the program 

element and ensure that the activity is 

connected and coordinated with the 

WIOA youth program if enrolled youth 

participate in the program element. 

Comments: A few commenters 

suggested the proposed language would 

require that local programs that are not 

using WIOA funds to fund an activity 

establish agreements with the partner 

with which they are engaging in the 

activity. These commenters stated that a 

referral should be sufficient in this case, 

adding that if services outside of WIOA 

funding streams are present in the 

community, an agreement would be 

unnecessary and is overly regulative. 

Department Response: While the 

Department does not require a local 

youth service provider to pay for all 

program elements, the Department does 

require the program elements provided 

to a youth to align with the goals the 

youth set forth in the ISS. Case 

managers must update the ISS on an ongoing basis and document, among other 

items, the services provided and 

participant’s progress, activities 

completed, benchmarks reached, and 

any other accomplishments. Case 

managers must document this 

information regardless of who provides 

the element. Therefore, the Department 

did not change the proposed regulation; 

the information needed for the ISS 

necessitates an agreement between the 

partner organization and the program. 

Comments: A couple of commenters 

asked for clarification regarding the 

proposed regulations’ requirement for 

the creation of agreements between 

youth services providers and partner 

organizations outside of WIOA funding. 

Specifically, these commenters asked 

for clarification from the Department 

about what ‘‘monitor’’ means in this 

language, and when this requirement 

would be necessary. 

Department Response: The 

Department notes that the term 

‘‘monitor’’ came from the NPRM 

preamble and was not a proposed 

requirement. It appeared in the 

following context, ‘‘By closely 

connected and coordinated, the 

Department means that case managers 

must contact and monitor the provider 

of the non-WIOA-funded activity to 

ensure the activity is of high quality and 

beneficial to the youth participant.’’ The 

case manager must check on the 

provider of the non-WIOA-funded 

activity and make sure the youth 

participant gets quality services that 

match the program, element 

requirements. 

Comments: A commenter 

recommended that the Department issue 

guidance on performance requirements 

and a reporting process for each of the 

required youth program elements to 

help local areas and States in the 

creation of their plans. 

Department Response: The 

Department is including guidance and 

specifics on the performance 

requirements and reporting through the 

ICR process, which was done for 20 CFR 

part 677 (see Joint WIOA Final Rule). 

The Department is providing additional 

information regarding the required 

reporting of data elements, including 

each of the 14 youth program elements 

through that process. More information 

is also available in the Joint WIOA Final 

Rule discussion of 20 CFR part 677. 

Section 681.480 What is a preapprenticeship program? 

A pre-apprenticeship is a program or 

set of strategies designed to prepare 

individuals to enter and succeed in a 

registered apprenticeship program and 

has a documented partnership with at 

least one, if not more, registered 

apprenticeship program(s). 

Comments: A couple of commenters 

requested clarification regarding what 

constitutes a partnership for the 

purposes of this section, asking further 

whether it is direct entry into a 

partnership or whether a form of 

collaboration would be sufficient for 

these purposes. Other commenters 

sought clarification regarding preapprenticeship and performance 

indicators. 

Department Response: The 

Department further edited the preapprenticeship regulation to provide a 

more detailed and consistent 

explanation of the components of preapprenticeship programs as described 

throughout this Final Rule. The type of 

required reported outcomes for 

individuals engaging in preapprenticeship programs do not differ 

from the other WIOA youth program 

performance indicators. Additional 

information on required performance 

indicators is found in 20 CFR part 677 

(see Joint WIOA Final Rule). 

Section 681.490 What is adult 

mentoring? 

This section describes the adult 

mentoring program element. The 

Department received many comments 

on proposed § 681.490 and made 

changes to the Final Rule as discussed 

below. 

Comments: A number of commenters 

recommended that the Department 

provide flexibility for States in how the 

mentoring programs are arranged and 

length of time participants receive 

mentoring. Some of these commenters 

reasoned that adult mentoring is 

difficult for small States to establish 

because mentoring services with which 

to partner are not widely available and 

because of limited funds. With regard to 

the language that would require the 

inclusion of a mentor other than the 

individual’s case manager (proposed 

§ 681.490(a)(3)), a commenter suggested 

that a case manager should be suitable 

for consideration as an individual’s 

mentor if he or she is providing the 

guidance and support that would be 

required of a mentor. This commenter 

explained that in rural areas, mentoring 

programs are rare and oversubscribed if 

they exist, so the WIOA case manager is, 

in fact, the chief adult mentor for the 

youth. 

In addition, several commenters did 

not like the proposed minimum 12- 

month requirement for adult mentoring 

(proposed § 681.490(a)(1)), 

recommending that the length of 

mentoring should instead be evaluated 

and defined on a case-by-case basis and 

determined by the individual, his or her 

mentor, and his or her case manager. 

One commenter said that the timeframe 

for adult mentoring is better suited for 

local control to allow for direct 

assessment of participant needs. 

Another commenter stated that the 

language in this section should be no 

more prescriptive than the WIOA 

statute. 

Department Response: Under WIA, 

most local areas were able to secure 

qualified mentors, other than case 

managers, for youth participants. 

Nonetheless, the Department 

acknowledges that in a few areas of the 

country finding mentors may present a 

burden to a program. While the 

Department strongly prefers that case 

managers not serve as mentors, it 

changed the final regulation deleting 

proposed § 681.490(a)(3), ‘‘include a 

mentor who is an adult other than the 

assigned youth case manager’’. The 

Final Rule allows case managers to 

serve as mentors in areas where adult 

mentors are sparse. Because WIOA 

defines the length of time required for 

mentoring as not less than 12 months, 

no changes were made in the regulatory 

text. 

Comments: Another commenter 

suggested that local areas study 

evidence-based models that they may 

implement when designing their 

mentorship programs. Suggesting that 

the purpose of adult mentoring should 

be clarified to indicate expected results 

of the mentor relationship and guide the 

types of activities and engagement that 

should result. A commenter 

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recommended that the Department 

revise § 681.490 to clarify that adult 

mentoring should result in effectively 

engaging students in high-quality, career 

relevant instructions and establishing 

clear connections between work-based 

learning and classroom experiences. 

Department Response: The 

Department supports the use of 

evidence-based models. The Department 

anticipates that the expected outcomes 

of a mentoring relationship will connect 

to the goals set forth in the individual 

participant’s ISS. Therefore, mentoring 

results will vary by participant. 

Citing their use of ‘‘advocates’’ in lieu 

of mentorship programs to engage with 

youth, one commenter recommended 

that the Department amend proposed 

§ 681.490 to include that mentorship 

services may include activities such as 

providing transportation or 

transportation assistance, aid in 

attaining work experience 

opportunities, court advocacy, foster 

care support, tutoring help, fostering of 

community relationships, and 

engagement with family. 

Department Response: The 

Department affirms activities such as 

providing transportation, aid in 

attaining work experience 

opportunities, court advocacy, foster 

care support, tutoring help, fostering of 

community relationships, and 

engagement with family care. However, 

other WIOA youth program elements 

cover several of these activities. While 

mentors may help participants attain 

their goals, the additional suggested 

activities above go beyond the basic 

WIOA adult mentoring requirements. 

No changes were made in the regulatory 

text in response these comments. 

Section 681.500 What is financial 

literacy education? 

This section describes the financial 

literacy program element, new under 

WIOA. The Department received many 

comments on the new program element. 

Several of the comments described 

below resulted in changes to the Final 

Rule text. 

Comments: A few commenters 

expressed their support for the proposed 

regulations’ description of the elements 

of financial literacy education. In 

particular, one expressed its support 

particularly for the inclusion of identity 

theft education. 

Some commenters stated that as the 

proposed language as written, it appears 

as though all of the elements listed are 

requirements that must be present 

within the financial literacy program 

element itself. These commenters 

recommended that the § 681.500 

introductory language be amended to 

State, ‘‘The financial literacy education 

program element may include activities 

which. . . .’’ Similarly, another 

commenter asked the Department to 

clarify that the list of activities for 

financial literacy education (proposed 

§ 681.500) and entrepreneurial skills 

training (proposed § 681.560) are 

illustrative and that each individual 

topic is not required for every 

participant. Other commenters 

expressed their support for the proposed 

language’s flexibility regarding the 

activities related to financial literacy 

education, and that the list included in 

the proposed regulations is not required, 

but provides guidance. Alternatively, 

one commenter recommended that the 

Department eliminate the requirements 

of proposed § 681.500(g) and (h), stating 

that these proposed requirements are 

overly prescriptive and limit flexibility. 

Department Response: The 

Department understands the 

commenters’ concern that providing all 

of the financial literacy sub-elements to 

every participant that receives this 

program element may be overly 

prescriptive. The Department 

anticipates each item will be available 

in locations implementing a robust 

financial literacy program. However, the 

Department did not intend for every 

youth to receive each sub-element. 

Instead, every youth, based on his/her 

individual needs, would receive many 

of the items included in this regulation. 

The actual services delivered may vary 

by program participant. As a result, the 

Department accepts the proposed 

language change and replaced ‘‘must’’ 

with ‘‘may’’ in the Final Rule. 

Comments: One commenter 

recommended the addition of an 

element to the list in proposed § 681.500 

to assist individuals about the impact 

that employment has on their receipt of 

public benefits. This commenter 

reasoned that educating individuals of 

this impact may lessen the fear they 

may have of losing their Medicaid or 

other public benefits if they are 

competitively employed. Another 

commenter recommended that § 681.500 

should specifically state that for youth 

who are receiving disability Social 

Security benefits, their financial literacy 

education must include benefits 

planning and work incentives 

counseling from a qualified provider. 

Department Response: The 

Department concurs with the suggested 

addition and added § 681.500(g), 

‘‘Support activities that address the 

particular financial literacy needs of 

youth with disabilities, including 

connecting them to benefits planning 

and work incentives counseling;’’ to the 

Final Rule text. 

Comments: One commenter shared 

that this proposed program element 

requirement would place a burden on 

local areas related to identifying a 

financial literacy program that includes 

an identity theft component. 

Department Response: By changing 

‘‘must’’ to ‘‘may’’ at the beginning of 

§ 681.500, the Department addresses 

this commenter’s concern about finding 

a local entity that addresses identity 

theft. 

Comments: Several commenters 

provided suggestions on how to 

implement the element. In response to 

the Department’s request for comments 

on how to achieve the goal of equipping 

workers with the knowledge and skills 

they need to achieve long-term financial 

stability, one commenter recommended 

that the Department survey programs 

that have been funded and implemented 

by companies and their foundations in 

the financial services sector. Another 

commenter responded that many banks 

have an effective financial literary 

curriculum and recommended that the 

Department foster partnerships with 

banks that would be willing to provide 

the curriculum for free to local 

organizations. 

Another commenter recommended 

that financial literacy education be 

implemented in an online or in-person 

classroom setting where retirement 

requirements, banking, debt, lease, and 

mortgage information are covered. This 

commenter also suggested that these 

programs must result in the issuance of 

certification of completion and should 

be developed by a recognized financial 

planning authority, but not an entity 

with investment products on the 

market. 

Department Response: The 

Department has found that a number of 

local and national entities want to help 

make this element relevant to youth and 

a success. Many financial literacy tools 

and curriculums are readily available 

for use and include formats that engage 

youth. The Department has begun to 

provide technical assistance on 

financial literacy element and has 

engaged with many Federal financial 

agencies about supporting the public 

workforce system in implementing this 

program element. 

Comments: Citing a 2014 Consumer 

Financial Protection Bureau report that 

described the components necessary for 

successful youth employment programs, 

one commenter recommended that the 

Department amend the language in this 

section from referring to ‘‘financial 

literacy education’’ to using the term 

‘‘financial capability services,’’ 

reasoning that the latter term would 

align more closely with the WIOA 

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requirement because it focuses on 

knowledge, skills, and access. Further, 

this commenter recommended that the 

Department use the definition provided 

by the President’s Council on Financial 

Capability to define financial capability 

services (‘‘the capacity based on 

knowledge, skills and access, to manage 

financial resources effectively’’). This 

commenter also recommended that the 

Department ensure it is connecting 

youth employment programs with 

resources that highlight best practices 

and financial institutions that could be 

key partners. Regarding the measuring 

of financial capability outcomes for 

youth programs, this commenter 

suggested that the Departments of Labor 

and Education provide youth programs 

with resources and guidance to ensure 

they are able to effectively track clients’ 

progress and outcomes and that 

workforce organizations also may need 

additional tools and resources to 

improve the financial education services 

they offer. Given the varied outcomes 

associated with the § 681.500 list of 

allowable financial literacy education 

activities, the commenter encouraged 

States and localities to collect outcome 

data as related to their provided service. 

Department Response: The 

Department decided that a name change 

from ‘‘financial literacy education’’ to 

the term ‘‘financial capability services’’ 

will confuse youth programs and did 

not change the regulatory text. The 

Department continues to work with the 

Consumer Financial Protection Bureau 

to help local areas implement this new 

WIOA requirement with the goal of 

connecting youth employment programs 

with resources, best practices, and 

financial institutions that can become 

workforce partners. The Department 

captures information about youth 

participating in this program element as 

described in WIOA State Plan ICR and 

uses the same youth WIOA performance 

indicators discussed in 20 CFR part 677 

(see Joint WIOA Final Rule). The 

Departments note that the Governor also 

has the authority to identify, in their 

Unified or Combined State Plan, 

additional performance accountability 

indicators. 

Comments: A few commenters 

recommended that the Department grant 

local areas the role of determining the 

necessary elements for financial literacy 

education programs. Similarly, a 

commenter recommended that the 

Department grant States the jurisdiction 

to create their own policies regarding 

financial literacy education. 

Department Response: With the 

change in the final regulation from 

‘‘must’’ to ‘‘may’’ at § 681.500, local 

areas may determine the necessary 

elements for financial literacy education 

programs. The Department analyzed the 

suggestion to give States the jurisdiction 

to create their own policies regarding 

financial literacy education and 

concluded that with the above 

regulation text change, it was not 

needed. 

Comments: Finally, a commenter 

requested clarification from the 

Department concerning the difference 

between personal financial literacy and 

entrepreneurial financial literacy. 

Further, this commenter suggested that 

youth would be best served by learning 

financial literacy through practice rather 

than pure instruction. 

Department Response: The 

Department concurs that a hands-on 

approach to financial literacy is best and 

entrepreneurial financial literacy is one 

way to provide a practical financial 

literacy application. The Department, 

along with other Federal partners, will 

provide further technical assistance 

around this element. 

Section 681.510 What is 

comprehensive guidance and 

counseling? 

Comprehensive guidance and 

counseling provides individualized 

counseling to participants. This 

includes drug and alcohol abuse 

counseling, mental health counseling, 

and referral to partner programs, as 

appropriate. (WIOA sec. 129(c)(2)(J).) 

When referring participants to necessary 

counseling that cannot be provided by 

the local youth program or its service 

providers, the local youth program must 

coordinate with the organization it 

refers to in order to ensure continuity of 

service. 

Comments: Citing the activities that 

YouthBuild offers about counseling 

services, a commenter stated the 

importance of counseling and its 

beneficial impact on youth’s success. 

Another commenter requested 

clarification from the Department as to 

the credentials and training that would 

be required for guidance counselors 

under the proposed regulations. 

Department Response: The 

Department acknowledges that 

accessing counseling services impacts 

the success of many youth who receive 

program services. The Department 

understands that counselors’ education 

and experience will vary depending on 

the type of guidance and counseling 

offered and did not address it in the 

final regulation. 

Comments: Citing the proposed 

language that would require that local 

youth programs ‘‘when referring 

participants to necessary counseling 

that cannot be provided by the local 

youth program or its service providers, 

the local youth program must 

coordinate with the organization it 

refers to in order to ensure continuity of 

service,’’ a commenter said that 

coordination with multiple 

organizations would be unnecessary and 

that a referral should be sufficient in 

and of itself. Along the same line, a 

commenter asked for clarification 

concerning the requirement that youth 

service providers collaborate with the 

outside services they use for counseling 

in order to ensure the continuity of 

service for individuals. This commenter 

requested that the Department provide 

additional guidance for how service 

providers should interpret these 

requirements. 

Department Response: The 

Department views a referral as one part 

of the comprehensive guidance and 

counseling element; the local service 

provider must coordinate with the 

organization to which the referral was 

made in order to ensure youth receive 

comprehensive services. The 

Department plans to provide additional 

technical assistance on comprehensive 

guidance and counseling. No changes 

were made to the regulatory text in 

response to this comment. 

Comments: A commenter asked for 

guidance from the Department about 

whether comprehensive guidance and 

counseling encompasses academic 

counseling as is stated in § 681.510, 

suggesting that it is not included in the 

language in § 681.460. 

Department Response: The 

Department considered this input and 

agreed with the commenter that the 

proposed regulation duplicated 

counseling types found in other 

program elements. As a result, the 

Department removed ‘‘career and 

academic counseling’’ from the 

comprehensive guidance and 

counseling element. 

Section 681.530 What are positive 

social and civic behaviors? 

While WIA included positive social 

behaviors as part of the description of 

leadership development opportunities, 

WIOA adds ‘‘civic behaviors’’ to the 

description of the leadership 

development program element. This 

section provides examples of positive 

social and civic behaviors. 

Comments: Citing the list of positive 

social and civic behaviors that 

YouthBuild programs are based on, a 

commenter expressed their support over 

the proposed list of behaviors and 

recommend that WIOA youth services 

programs incorporate their list into the 

proposed regulations. On the other 

hand, citing the language listing some of 

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the indicators of positive social and 

civic behaviors, a commenter stated that 

only paragraph (i), ‘‘positive job 

attitudes and work skills,’’ is 

measurable and relevant to the goal of 

workforce training. This commenter 

suggested that the other listed potential 

indicators of these behaviors are 

irrelevant, and that paragraphs (h) and 

(j) could be considered inappropriate. 

Department Response: 

Comprehensive in nature, the WIOA 

youth program provides a wide array of 

supports and services. The Department 

finds the sub-elements in positive social 

and civic behaviors relevant and 

connected to the workplace traits 

employers seek. It recognizes that the 

list is not all-inclusive and other 

personal attributes contribute to positive 

social and civic behavior. The 

Department did not add additional 

items to the final regulation. Noting the 

strong objection to proposed paragraphs 

(h) and (j), the Department did delete 

proposed paragraphs (h) (‘‘Postponing 

parenting and responsible parenting, 

including child support education’’) and 

(j) (‘‘Keeping informed in community 

affairs and current events’’) from the 

final regulation text. 

Comments: A commenter suggested 

that the behaviors in this section would 

be difficult to measure, which may 

result in the measurement through 

default indicators such as the individual 

didn’t get arrested or isn’t a youth 

parent. 

Department Response: The 

Department appreciates the commenters 

concerns about the difficulty of 

measuring positive social and civic 

behaviors. From the Department’s 

perspective these behaviors contribute 

to characteristics that businesses seek in 

their employees. No change is made in 

the regulatory text in response to this 

comment. 

Section 681.540 What is occupational 

skills training? 

This section provides a definition for 

the occupational skills training program 

element. WIOA sec. 129(c)(2)(D) further 

sharpens the focus on occupational 

skills training by requiring local areas to 

give priority consideration for training 

programs that lead to recognized 

postsecondary credentials that align 

with in-demand industries or 

occupations in the local area. 

Comments: Commenters expressed 

concern that the regulations in the 

section are too prescriptive, stating that 

the attainment of postsecondary 

credentials or other credential training 

would be inappropriate for some 

individuals. Further, this commenter 

suggested that as they are written, the 

proposed regulations would not allow 

for training that would be a step towards 

a postsecondary degree but does not in 

and of itself result in one. Similarly, a 

couple of commenters expressed their 

support for the proposed regulations’ 

emphasis on occupational skills 

training, but stated their concern with 

the language that requires that all 

occupational skills training result in a 

postsecondary level education. The 

commenters suggested that requiring 

postsecondary education would not be 

appropriate for everyone, and 

recommended that instead, the 

regulations allow for individuals to 

result in one of the three options instead 

of all three. This commenter further 

recommended that the language, ‘‘. . . 

result in the opportunity to obtain a 

recognized postsecondary credential, or 

a certificate of job readiness, or an 

industry credential,’’ be added to the 

section. 

Department Response: The 

Department notes the concerns around 

occupational skills training needing to 

result in attainment of a recognized 

postsecondary credential. The 

Department has changed this language 

in the Final Rule to state that 

occupational skills training must lead to 

the attainment of a recognized 

postsecondary credential. 

Comments: One commenter 

recommended that the Department 

clarify that service providers should put 

into effect activities that include work 

experience to prepare for employment 

that leads to self-sufficiency, a 

sequenced series of work-based learning 

opportunities, a college and career 

ready curriculum, dual enrollment, and 

supplemental instruction. 

This commenter also recommended 

that the implementation of these 

activities should result in collaboration 

between WIOA youth service providers, 

Local WDBs, and educational 

institutions. 

Department Response: The 

Department concluded that these 

recommendations are more appropriate 

for technical assistance; as such, no 

changes were made in the regulatory 

text in response to these comments. The 

Department will provide guidance and 

technical assistance on all program 

elements, including occupational skills 

training. 

Comments: A commenter 

recommended that the Department 

modify the proposed text to state, ‘‘. . . 

and result in attainment of a recognized 

postsecondary credential, job readiness 

certificate, or industry credential,’’ 

suggesting that this language would still 

encourage individuals to participate in 

experiences that will help them to gain 

certifications and credentials, but gives 

them flexibility they may need to 

demonstrate success, depending on 

their choice of field. 

Department Response: The 

Department modified Final Rule text, as 

discussed above, regarding the 

attainment of a recognized 

postsecondary credential. An ‘‘industry 

credential’’ is encompassed in the term 

‘‘recognized postsecondary credential.’’ 

A job readiness certificate relates to 

foundational work readiness skills and 

does not result from occupational skills 

training. Therefore, the Department did 

not incorporate language referring to a 

job readiness certificate in the 

regulatory text. 

Comments: Another commenter 

requested that the Department include 

entry-level career preparation training 

services that are taught or led by 

regionally accredited secondary-level 

education programs. 

Department Response: The 

Department determined that career 

preparation services are not a type of 

occupational skills training and did not 

make a change in the regulatory text in 

response to this comment. 

Section 681.550 Are Individual 

Training Accounts permitted for youth 

participants? 

This section allows ITAs for OSY 

aged 16 to 24. 

The Department received a number of 

comments about ITAs that resulted in a 

final regulation change discussed below. 

Comments: A number of commenters 

expressed their support for the 

allowance of OSY aged 18–24 to use 

ITAs in the proposed regulations. Many 

commenters suggested that the 

allowance of these ITAs is important for 

youth aged 18–24, as they may be 

receiving services from multiple WIOA 

title funding streams. A few commenters 

expressed their support for the use of 

ITAs for both ISY and OSY. Further, 

stating that it would reduce the burden 

of duplicative administrative work, a 

few commenters recommended that the 

proposed regulations be amended to 

allow ITAs for youth aged 18–24. 

A commenter offered that ITAs be 

expanded to include OSY 16–24 instead 

of 18–24. This commenter said that 

individuals who drop out of high school 

at 16 and have received their high 

school equivalency, are left dislocated 

until they reach the age of 18 and can 

then pursue an ITA, on-the-job training, 

or a career; therefore this commenter 

said that lowering the age limit to 16 

would allow these youth to remain 

engaged. 

A commenter requested clarification 

from the Department regarding whether 

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or not OSY with ITAs would have to use 

the State permitted Eligible Training 

Provider List (ETPL) under these 

proposed regulations. 

Two commenters requested 

clarification from the Department 

regarding ITAs for OSY. A commenter 

stated that the proposed regulations 

indicate that only OSY would be 

allowed to use ITAs, but that the 

regulations also include occupational 

skills training as one of the 14 required 

youth program elements. This 

commenter asked the Department to 

explain what the difference would be in 

using an ITA or occupational skills 

services for an ISY who has graduated 

from high school and wants to pursue 

a postsecondary education. This 

commenter further requested guidance 

from the Department concerning how 

providers could provide occupational 

skills training service to all WIOA 

eligible youth, regardless of whether 

they are ISY or OSY. 

Stating that ITAs can help to close the 

gap between Federal contracting 

requirements and individuals with 

disabilities, a commenter recommended 

that this section be modified to 

encourage State and Local WDBs to 

connect Federal contracts with youth 

with disabilities and use ITAs for 

meeting employer requirements. 

Department Response: The 

Department analyzed the comments 

received and expanded the ITA 

language to allow all OSY, ages 16–24, 

access to ITAs. Upon reflection of the 

above comments, the Department 

concluded the final regulation change 

made policy and administrative sense 

by expanding training options, 

increasing program flexibility, 

enhancing customer choice, and 

reducing paperwork for all OSY. When 

using youth funds for ITAs, the Eligible 

Training Provider List (ETPL) must be 

used. Accessing the ETPL allows the 

program to avoid further procurement 

processes. 

The Department did not expand ITAs 

to ISY. However, ISY ages 18 or older 

may access ITAs through the adult 

program. 

Finally, the Department did not 

change the regulatory text to encourage 

State and Local WDBs to connect 

Federal contracts with youth with 

disabilities because the request is 

outside the scope of ITAs. The 

Department will provide further 

guidance on youth ITAs and related 

topics. 

Section 681.560 What is 

entrepreneurial skills training and how 

is it taught? 

This section discusses entrepreneurial 

skills training, a new program element 

under WIOA. The Department received 

a number of comments on the proposed 

entrepreneurial skills training regulation 

which resulted in a minor word change 

in the final regulation as explained 

below. 

Comments: Two commenters 

expressed their support over the 

proposed examples of entrepreneurial 

skills training activity options. In 

contrast, a number of commenters stated 

that the Department should not be 

dogmatic in determining specific 

methods and processes for how 

entrepreneurial skills would be taught 

under the proposed regulations. 

Department Response: The 

Department did not intend to be 

limiting in the list of ways to develop 

entrepreneurial skills. To emphasize 

that this list is not all-inclusive, the 

Department added the word ‘‘may’’ to 

the final regulation at § 681.560(a). 

Comments: Several commenters 

provided thoughts on other skills to 

develop under this program element as 

discussed in the next several 

paragraphs. 

One commenter shared its support of 

the inclusion of entrepreneurial skills 

training, citing the programs it has 

created in its State and programs that 

engage with small business centers, 

suggesting that the Department should 

use such services and programs for 

teaching these skills. Another 

commenter recommended that the 

Department use Junior Achievement 

and other organizations in their 

entrepreneurial skills training services, 

and stated that the Department also 

should include presentations and 

training sessions from local 

entrepreneurs in their skills training 

programs. 

Similarly, a commenter expressed 

their support of the inclusion of 

entrepreneurial skills training in the 

proposed regulations. This commenter 

further cited: Experiences that provide 

individuals with the knowledge of how 

to start their own business, the creation 

of a business plan, education on 

applying for loans and grants for 

business operations, and experiences 

related to running a business day-today, as potential activities used to teach 

individuals entrepreneurial skills. 

A commenter recommended that 

healthy relationship skills classes be 

included in the entrepreneurial training 

program, stating that building strong 

and healthy relationships are a key 

component to being a successful 

entrepreneur. 

In addition, a commenter 

recommended that Local WDBs use 

experiential learning programs to teach 

individuals entrepreneurial skills, 

stating that using hands-on experiences 

is most effective for training 

individuals. Further, this commenter 

specifically recommended that 

entrepreneurial skills training include 

the following: Education assessment 

and pathway identification; leadership 

development activities; and soft skills 

training based on industry demand. 

A commenter expressed its support 

over the inclusion of these skills 

training, and recommended that it 

include the development of business 

plans and lessons on the various ways 

an entrepreneur can obtain start-up 

funding. 

Department Response: The 

Department acknowledges the many 

suggestions about how to local area may 

provide entrepreneurial skills training 

in a meaningful, relevant way to youth. 

The Department will provide technical 

assistance on this new element. 

Comments: A commenter 

recommended that the Department 

amend the proposed language so that 

‘‘enterprise development’’ is removed as 

a skill that would be included in this 

entrepreneurial training, and be 

replaced with ‘‘crowd-funding,’’ sharing 

that crowd sourced funding would be a 

more viable option if a youth individual 

were trying to build a business as he or 

she would be unlikely to secure a loan. 

Department Response: While the 

Department did not change the 

regulatory text, the Department agrees 

with suggestion to include skills such as 

‘‘crowd-funding’’ that may be more 

relevant for the youth population and 

will address them in future technical 

assistance. 

Comments: A commenter wondered 

about the reliability of wages for 

participants in these programs as well as 

how participants’ wages would be 

tracked, and requested clarification from 

the Department regarding these issues. 

Department Response: The 

Department notes that the performance 

indicators for youth engaged in this 

program element remain the same as the 

youth performance indicators explained 

in the joint regulation at 20 CFR part 

677 (see Joint WIOA Final Rule). 

Comments: A commenter requested 

clarification from the Department about 

the definition of entrepreneurial skills 

training and what the requirements are 

around certification at the program’s 

completion. Similarly, a commenter 

recommended that the skills and 

techniques involved with 

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entrepreneurial skills training should be 

in line with local postsecondary school 

curriculums and standards. 

Department Response: Postsecondary 

institutions and other training providers 

that develop entrepreneurial programs 

are best positioned to identify standards 

upon which certificates could be 

awarded. No changes were made in the 

regulatory text in response to this 

comment. 

Comments: Another commenter asked 

the Department if entrepreneurial skills 

training would only be provided to 

older youth. 

Department Response: 

Entrepreneurial skills training, similar 

to the other youth program elements, is 

available to youth regardless of age and 

must align with their ISS goals. 

Section 681.570 What are supportive 

services for youth? 

This section lists examples of 

supportive services for youth. The 

Department received a few comments 

on proposed §§ 681.570 and 680.900, 

which discusses supportive services in 

the context of adult programs. The 

Department chose to align these 

regulations which resulted in the 

addition of ‘‘Assistance with books, 

fees, school supplies, and other 

necessary items for students enrolled in 

postsecondary education classes’’; and 

‘‘Payments and fees for employment and 

training-related applications, tests, and 

certifications,’’ to the regulation at 

§ 681.570(k) through (l). 

Comments: One commenter 

recommended that the Department 

include groceries, on-site meals, hygiene 

products, clothing, and items for 

postsecondary education courses in the 

definition of supportive services. 

Another commenter recommended that 

transportation be provided to 

individuals in these programs, and that 

the transportation services available 

should include transportation to onestop centers. This commenter stated that 

in some areas the one-stop center may 

be miles away from where the youth 

providers are located, and reaching 

these one-stop centers to receive 

necessary services may be difficult for 

disengaged or homeless youth. This 

commenter also recommended that food 

services (other than food banks and 

soup kitchens) and subsidized services 

for document attainment be provided as 

support services for youth. 

One commenter recommended that 

healthy relationship skills should be 

included in the workforce development 

training programs for disconnected 

youth, including supportive services. 

This commenter reasoned that 

relationship skills help participants 

build crucial interpersonal skills that 

are valued by employers and 

specifically mentioned skills including 

communications, problem solving, 

conflict resolution, reliability, and 

teamwork. The commenter also stated 

that learning healthy relationship skills 

can help participants prevent 

unplanned pregnancy and therefore 

avoid dropping out of school due to 

pregnancy. A commenter recommended 

that the Department align supportive 

services across the youth, adult, and 

dislocated worker programs. Another 

commenter strongly supported the 

inclusion of legal aid services in the 

Department’s list of examples of 

supportive services in § 680.900, noting 

that legal aid can uniquely address 

certain barriers to employment, 

including access to driver’s licenses, 

expunging criminal records, and 

resolving issues with debt, credit, and 

housing. 

Department Response: The 

Department analyzed the suggested 

additions to supportive services and 

decided, as noted above, to add three 

new paragraphs (h), (k), and (l) to the 

Final Rule. The Department determined 

that some suggested items such as 

tutoring, apprenticeship programs, 

work-place interpersonal skills, workrelated hygiene products and clothing 

attire, and addiction may be 

encompassed by other program 

elements. Assistance with 

transportation is allowable under 

supportive service. As discussed above, 

the Department has included legal aid 

services under the list of supportive 

services in § 680.900 for the adult and 

dislocated worker programs; we made a 

corresponding change to the list of 

supportive services allowable for the 

youth program in § 681.570 for the same 

reason as for the addition to § 680.900 

and to align the list of supportive 

services across programs. Groceries and 

on-site meals for program participants 

are beyond the scope of WIOA. 

Comments: Citing the language about 

supportive services in this section, a 

commenter requested clarification from 

the Department concerning whether 

needs related payments are allowed for 

youth aged 18–24 in WIOA youth 

services. 

Department Response: Yes, the 

Department affirms that needs related 

payments are allowed for youth ages 

18–24 enrolled in WIOA youth services. 

Section 681.580 What are follow-up 

services for youth? 

This proposed section discusses the 

importance of follow-up services and 

lists examples of follow-up services for 

youth. 

The Department received a number of 

comments on this section as discussed 

below. 

Comments: A commenter expressed 

its support of the proposed regulations 

in this section and another commenter 

expressed support citing all of the 

benefits of follow-up services. Citing the 

benefits and purposes behind follow-up 

services, another commenter agreed that 

follow-up services can be extremely 

beneficial to youth and help to ensure 

that they focus on and accomplish their 

long-term goals. Another commenter 

expressed their support of the follow-up 

requirements, but recommended that 

the Department create and distribute 

guidance to States regarding how they 

should document an individual who is 

unresponsive under the proposed 

regulations. 

A couple of commenters expressed 

concern over the requirements for 

follow-up services, suggesting that often 

when youth no longer access services, 

they no longer communicate with their 

providers, regardless of the efforts of the 

case manager. Therefore, these 

commenters recommended that States’ 

youth follow-up activities be evaluated 

on the quality of follow up services 

provided to engaged youth and not be 

viewed negatively when follow up does 

not happen. Further, these commenters 

recommended that States be allowed to 

establish policies that when a provider 

has exhausted all options in an attempt 

to engage a youth individual in followup services with no results, he or she 

may end follow-up activities. Likewise, 

one commenter recommended that in 

instances where the service provider 

attempts to reach the individual with no 

contact made for 90 days, he or she 

should be able to receive an exemption 

or waiver for needing to provide followup services for that individual. 

A number of commenters expressed 

concern with the proposed regulations, 

suggesting that the language concerning 

follow-up services should give more 

flexibility and account for those 

individuals who have moved and 

provided no contact information. These 

commenters recommended that in 

situations such as those stated above, 

follow-up contact attempts should end, 

and the attempts to make contact should 

be documented. One of these 

commenters also suggested that if 

multiple attempts at contact are made 

with no response, the provider should 

not be punished for being unable to 

contact the individual. Further, some of 

these commenters recommended that 

the regulations be modified to reduce 

the 12-month minimum to 6 months. 

Another commenter stated that followup services should allow for decreasing 

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concentration for follow-up contact with 

individuals after 6 months after end of 

enrollment in the program. Further, this 

commenter stated that text messaging 

and contact through social media 

should be considered contact for the 

purposed of follow-up services. Another 

commenter recommended the 

Department not be overly prescriptive 

with its follow-up services 

requirements. 

Department Response: The 

Department recognizes the concerns that 

some youth may not be responsive to 

attempted contacts for follow-up, and 

other youth may be difficult to locate 

making it impossible to provide followup services for such individuals. Based 

on the comments received, the 

Department has added language to the 

regulatory text to § 681.580(c) clarifying 

that follow-up services must be 

provided to all participants for a 

minimum of 12 months unless the 

participant declines to receive follow-up 

services or the participant cannot be 

located or contacted. This alleviates the 

concern expressed by many commenters 

about youth who are not able to be 

located or who refuse follow-up. Local 

programs should have policies in place 

to establish when a participant cannot 

be located or contacted. The Department 

did not incorporate the recommendation 

to reduce follow-up to 6 months as 

WIOA sec. 129(c)(2)(I) requires followup services for not less than 12 months. 

The Department will issue further 

guidance on follow-up services. 

Comments: One commenter 

recommended that the Department 

create guidance that would allow local 

areas to establish orientations for youth 

participants that would inform them of 

the follow-up services and 

recommended that the Department 

provide incentives for an individual’s 

participation in follow-up services. 

Stating that WIOA does not list all of the 

youth services offerings as being 

available for follow-up services, one 

commenter recommended that all WIOA 

program services be available for any 

individual in their follow-up services. 

Another commenter recommended that 

follow-up services should begin while 

an individual is still enrolled in the 

program, suggesting that follow-up 

services include supportive and other 

services that could ensure a 

participant’s success after the program. 

One commenter noted that the followup services listed in this section are 

significantly more intensive than under 

WIA and more closely resemble active 

programming and recommended 

guidance on managing the transition 

from active programming to follow-up 

services, particularly under the 

proposed definition of ‘‘exit’’ in 20 CFR 

677.150 (see Joint WIOA Final Rule). 

Department Response: At 

§ 681.580(b), the Department clarified 

which specific program elements may 

be provided during follow-up. The 

Department plans to issue further 

guidance on follow-up services; it will 

clarify that follow-up services do not 

trigger re-enrollment in the WIOA youth 

program. 

Comments: Another commenter 

recommended that the follow-up 

services provided be concentrated on 

individuals gaining employment or 

postsecondary education. A couple of 

commenters also recommended that the 

Department clarify that incentive 

payments and supportive services 

would be allowed to be provided to 

youth during the period of follow-up 

services. Further, a commenter stated 

that in order to complete follow-up 

services as they are currently written, 

youth providers would need to be given 

additional funding. 

Department Response: The 

Department clarifies in the regulatory 

text that supportive services are allowed 

to be provided during follow-up. 

Incentive payments are covered in 

§ 681.640. 

Comments: One commenter 

recommended adding the following 

language to this section, ‘‘Follow-up 

plans should be set by youth and their 

case manager allowing the youth to have 

an active voice in setting such plans. 

Follow-up plans for youth should be reassessed and flexible and may include 

. . . ,’’ saying that this language would 

encourage case managers to educate the 

youth they are responsible for as to the 

benefit of follow-up services and allow 

youth to become more engaged with his 

or her services. This commenter also 

recommended that youth be able to opt 

out of their follow-up services due to 

relocation without negatively impacting 

the performance scores of their 

provider. 

One commenter recommended that 

the language that states that follow-up 

services must be ‘‘provided’’ by youth 

programs should be amended to say that 

they must be ‘‘offered.’’ Finally, one 

commenter recommended that during 

the required 12-month follow-up period, 

multiple employees be allowed to 

administer follow-up services. 

Department Response: As discussed 

above, the Department has amended 

regulatory text to state that follow-up 

services must be offered to all 

participants and added language to 

address participant relocation. 

Section 681.590 What is the work 

experience priority and how will local 

youth programs track the work 

experience priority? 

The section discusses the 20 percent 

minimum expenditure requirement on 

the work experience program element in 

WIOA sec. 129(c)(4) and how local 

WIOA youth programs track program 

funds spent on work experiences and 

report such expenditures as part of the 

local WIOA youth financial reporting. 

The Department received a few 

comments on this section as discussed 

below. 

Comments: Multiple commenters 

expressed their support for this section. 

One commenter requested that the 

Department clarify in the proposed 

regulations that career pathways must 

lead to a postsecondary credential, and 

that the requirements for these 

credentials will be aligned with the 

current State college and workplace 

readiness standards in place for each 

specific State. Another commenter 

expressed their support for the proposed 

regulations’ emphasis on work 

experiences; however, this commenter 

further recommended that the 

Department clarify in the regulations 

that youth service providers are strongly 

encouraged to ‘‘coordinate work 

experiences with employers 

participating in industry or sector 

partnerships developed and 

implemented in the local area.’’ 

Department Response: The 

Department agrees that career pathways 

in coordination with employers are 

important. The Department will 

continue to emphasize employer 

engagement in career pathways in future 

guidance or technical assistance. Please 

see TEN 17–15, building upon its 

‘‘Career Pathways Toolkit: A Guide for 

System Development’’ (2015) found at 

https://wdr.doleta.gov/directives/attach/

TEN/TEN_17-15_Attachment_Acc.pdf. 

Comments: A number of commenters 

expressed their concerns regarding 

whether the proposed 20 percent work 

experience expenditure requirement 

would include leveraged resources. 

These commenters stated the 

requirement would negatively impact 

the support they receive from nonWIOA funding streams and the 

proposed language would require them 

to spend their WIOA funds first on 

work-based experience programs, which 

could be detrimental to their ability to 

attract private funds. Thus, the 

commenters recommended that the 

proposed regulations be amended to 

allow waivers that would allow Local 

WDBs to count non-WIOA funds 

towards the 20 percent work experience 

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expenditure requirement. Similarly, a 

few commenters recommended that the 

20 percent work experience requirement 

be extended to include other funding 

sources, instead of relying only on 

WIOA funds to meet this requirement. 

Some of these commenters further 

stated that staff who are engaged in 

creating these strategies, as well as 

implementing them, should also be 

included in the minimum 20 percent 

expenditure requirement, while another 

commenters asked the Department to 

clarify if staffing or administrative costs 

count toward the expenditure 

requirement. Likewise, one commenter 

recommended that the academic 

component of the work experience 

requirements can be included in the 20 

percent expenditure requirement. 

Another commenter recommended that 

the proposed regulations be amended so 

that the minimum 20 percent work 

experience expenditure requirement 

also includes the administrative and 

recruitment costs spent in order to place 

an individual in his or her work 

experience. Conversely, a commenter 

suggested that staffing costs should not 

be an allowable expenditure in the 

minimum 20 percent work experience 

expenditure requirement; rather, funds 

should be focused on direct participant 

costs. 

Similarly, the Department received 

very few comments on § 681.610. One 

commenter noted that § 681.610 clearly 

states to not include administration in 

this calculation which should be made 

consistent with § 681.590 instead of in 

a separate section of the regulations. 

Another commenter recommended that 

the term ‘‘incentives payments’’ be 

added to this section in order to ensure 

consistency. Stating that in many cases 

local areas utilize funding from a variety 

of funding sources, a few commenters 

recommended that Local WDBs should 

be able to use these funds for the 

purpose of the costs included in work 

experiences such as wages for 

individuals and training, and that these 

funds should be included in the work 

experience minimum expenditure 

requirement. 

Department Response: The 

Department recognizes that it is 

important to clarify further the types of 

expenditures that count toward the 

work experience expenditure rate. The 

Department issued TEGL No. 08–15 

(‘‘Second Title I WIOA Youth Program 

Transition Guidance’’) in November 

2015, which can be downloaded at 

http://wdr.doleta.gov/directives/All_

WIOA_Related_Advisories.cfm. The 

TEGL discussed the types of costs that 

count toward the work experience 

expenditure requirement. The 

Department has added § 681.590(b) that 

describes the types of expenditures that 

count toward the work experience 

minimum expenditure requirement and 

how to calculate the minimum 

expenditure requirement. Leveraged 

resources cannot count toward the 

expenditure requirement; WIOA sec. 

129(c)(4) clearly states that the 

expenditure requirement is based on 

WIOA youth funds allocated to the local 

area. Because the Department has 

incorporated the language from 

proposed § 681.610 into § 681.590, the 

Department deleted proposed § 681.610 

and has renumbered proposed 

§§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

Comments: A commenter 

recommended that the Department 

allow a transition period for local areas 

to move funding to comply with the 

minimum 20 percent expenditure 

requirement. Another commenter 

expressed their support of the proposed 

emphasis on work experience, but 

recommended that the language be 

strengthened to emphasize the 

importance of connecting youth with 

disabilities to work experiences. 

Department Response: The 

Department did not provide for a 

transition period for the minimum 

expenditure requirement as part of its 

guidance. The Department agrees on the 

importance of connecting youth with 

disabilities to work experience 

opportunities and will emphasize it in 

future guidance or technical assistance. 

Section 681.600 What are work 

experiences? 

The section defines the work 

experience program element and 

includes the four work experience 

categories listed in WIOA sec. 

129(c)(2)(C). The Department received a 

few comments on this section as 

discussed below. 

Comments: A commenter expressed 

its support for this section, especially 

due to its inclusion of on-the-job 

training eservices. Another commenter 

expressed its support for the proposed 

language in this section, especially that 

the inclusion of both academic work 

experience and occupation training are 

important for an individual’s success. A 

commenter expressed its support of the 

inclusion of a variety of activities that 

could be included as work experience in 

the proposed regulations, and one 

commenter expressed its support over 

the allowance of on-the-job training as 

an appropriate work experience. 

A number of commenters requested 

clarification from the Department 

concerning the requirement that work 

experiences have to include academic 

and occupational education 

experiences, whether those education 

experiences can be provided by the 

individual’s employer, and whether the 

education experience has to be provided 

in the individual’s workplace. One of 

these commenters further recommended 

that these experiences be allowed to 

take place outside of the traditional 

workplace and could be provided by an 

educational provider other than the 

employer. A few commenters 

recommended that the language stating, 

‘‘Work experience must include 

academic and occupational education’’ 

be amended to state, ‘‘work experiences 

must not deter from a participant’s 

academic and occupational education 

goals. Ensuring all youth receive 

academic and occupational education is 

at the forefront of the goals of WIOA,’’ 

suggesting that the current language’s 

use of the words ‘‘and’’ and ‘‘must’’ may 

dissuade individuals from participating 

as they are at high risk and are 

concerned about feeding their families. 

A commenter requested clarification 

from the Department as to whom the 

occupational and academic training 

experiences must be provided by and 

recommended that the regulations allow 

for the employer to provide these 

training experiences. Further, this 

commenter recommended that if these 

training and educational experiences 

incur any costs, that they be included in 

the minimum 20 percent work 

experience expenditure requirement. 

Department Response: Based on 

comments requesting clarification on 

the academic and occupational 

education component of work 

experiences, the Department has added 

language to the Final Rule at 

§ 681.600(b) clarifying that the 

educational component may occur 

concurrently or sequentially with the 

work experience, and that the academic 

and occupational education may occur 

inside or outside the work site. The 

Department does not have any 

requirement about who provides the 

academic and occupational education, 

and such education may be provided by 

the employer. States and local areas 

have the flexibility to decide who 

provides the education. Because WIOA 

states this program element as ‘‘paid 

and unpaid work experiences that have 

as a component academic and 

occupational education,’’ the 

Department does not have the flexibility 

to amend the regulatory text to the 

suggested ‘‘work experiences must not 

deter from a participant’s academic and 

occupational education.’’ 

Comments: A commenter 

recommended that the Department 

remove the following language from the 

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section, ‘‘work experience may be paid 

or unpaid, as appropriate.’’ The 

commenter further recommended that 

the Department should clarify that 

youth will be protected under the Fair 

Labor Standards Act and wage and hour 

laws. 

Department Response: WIOA sec. 

129(c)(2)(C) states that work experiences 

may be paid or unpaid. The Final Rule 

contains language regarding the Fair 

Labor Standards Act at § 680.180. 

Comments: One commenter 

recommended that the Department 

clarify skills needs and how to assess 

skill mismatches. This commenter 

recommended more updates to the 

O*NET system and State/local work on 

job vacancies, analysis of ‘‘real time’’ 

labor market information, better 

projections data, new/emerging 

occupations, and wage record research 

on use of occupational title 

enhancements. 

Department Response: The 

Department agrees with the importance 

of using labor market information to 

plan work experiences and will 

continue to encourage its use in future 

guidance and technical assistance. 

Section 681.610 Does the Workforce 

Innovation and Opportunity Act require 

Local Workforce Development Boards to 

offer summer employment opportunities 

in the local youth program? 

This section discusses that while 

summer employment opportunities are 

an allowable activity and a type of work 

experience that counts toward the work 

experience priority, they are not a 

required program element as they 

previously were under WIA. Note that 

this provision was proposed as 

§ 681.620. However, as noted above, 

because the Department has 

incorporated the language from 

proposed § 681.610 into § 681.590, the 

Department deleted proposed § 681.610 

and has renumbered proposed 

§§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

The Department did not receive any 

comments on this section. No changes 

were made to the regulatory text. 

Section 681.620 How are summer 

employment opportunities 

administered? 

This section discusses how summer 

employment opportunities are 

administered. Note that this provision 

was proposed as § 681.630. However, as 

noted above, because the Department 

has incorporated the language from 

proposed § 681.610 into § 681.590, the 

Department deleted proposed § 681.610 

and has renumbered proposed 

§§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

The Department received only one 

comment on this section. The 

commenter stated that in rural areas it 

would be more cost effective for a case 

manager to arrange work experiences for 

youth than for the provider to arrange a 

work experience through the 

procurement process. This commenter 

asked for further clarification from the 

Department regarding whether or not a 

case manager would arrange a work 

experience during the school year. 

Department Response: As discussed 

in § 681.400, the Final Rule clarifies that 

Local WDBs have the option of 

competitively procuring youth service 

providers or providing services directly. 

This additional flexibility will allow 

case managers to arrange work 

experiences directly. This section 

includes language changes to be 

consistent with the changes in 

§ 681.400, and to make it clearer that the 

requirements of § 681.400 apply to the 

selection of youth service providers who 

administer the work experience program 

element in a local area. 

Section 681.630 What does education 

offered concurrently with and in the 

same context as workforce preparation 

activities and training for a specific 

occupation or occupational cluster 

mean? 

This section describes the new 

program element at WIOA sec. 

129(c)(2)(E): ‘‘education offered 

concurrently and in the same context as 

workforce preparation activities and 

training for a specific occupation or 

occupational cluster.’’ The Department 

notes that this provision was proposed 

as § 681.640. However, because the 

Department has incorporated the 

language from proposed § 681.610 into 

§ 681.590, the Department deleted 

proposed § 681.610 and has renumbered 

proposed §§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

The Department received a few 

comments on this section as discussed 

below. 

Comments: A few commenters 

expressed their support for the proposed 

language, particularly that the 

simultaneous offering of education 

service and workforce training can help 

individuals to gain skills at a much 

faster pace than if they were engaged in 

these activities separately. One 

commenter expressed its support with 

this proposed language and 

recommended that the Departments 

collaborate to ensure that the language 

in the WIOA title II regulation in 34 CFR 

463.37 is aligned with the title I 

regulation in § 681.630. 

One commenter requested 

clarification from the Department 

regarding the definitional language in 

this section. This commenter further 

stated that the definitions for this 

program element and the work 

experience program element need to be 

amended to provide more distinction 

between the two if they are meant to be 

separate. 

Another commenter recommended 

that the Department provide specific 

examples of ‘‘a high-quality, integrated 

education and training model that 

requires integrated education and 

training to occur concurrently and 

contextually with workforce preparation 

activities and workforce training.’’ This 

commenter further recommended a 

number of such examples. This 

commenter also suggested that the 

involvement of youth providers in these 

activities should help to create 

relationships between the providers and 

CBOs. 

A commenter suggested the 

Department include a statement that 

these educational programs include 

entry-level workforce preparation and/

or preparation for recognized 

postsecondary education and training 

activities. 

Department Response: The 

Department plans to provide future 

guidance on all of the WIOA youth 

program elements, including the 

education program element defined in 

this section. The Department will 

incorporate in the guidance some 

examples of high-quality integrated 

education and training models and 

ensure consistency with the language in 

34 CFR 463.37. While the Department 

did not incorporate any suggested 

additions to the regulatory text, it has 

made minor language changes to this 

section to make the section clearer. 

Section 681.640 Are incentive 

payments to youth participants 

permitted? 

This section clarifies that incentives 

under the WIOA youth program are 

permitted. The Department has 

included the reference to the Uniform 

Guidance at 2 CFR part 200 to 

emphasize that while incentive 

payments are allowable under WIOA, 

the incentives must be in compliance 

with the requirements in 2 CFR part 

200. For example, Federal funds may 

not be spent on entertainment costs. 

Therefore, incentives may not include 

entertainment, such as movie or 

sporting event tickets or gift cards to 

movie theaters or other venues whose 

sole purpose is entertainment. 

Additionally, there are requirements 

related to internal controls to safeguard 

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cash, which also apply to safeguarding 

of gift cards, which are essentially cash. 

As noted above, because the Department 

has incorporated the language from 

proposed § 681.610 into § 681.590, the 

Department deleted proposed § 681.610 

and has renumbered proposed 

§§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

Comments: A couple of commenters 

expressed support for the allowance of 

incentive payments for youth, citing the 

effect they can have on low-income and 

homeless individuals in WIOA youth 

services programs as well as the positive 

effect incentive payments have on 

YouthBuild programs. 

One commenter requested 

clarification about whether incentive 

payments would be allowed for 

activities other than just training and 

work experiences, and for short-term 

youth programs. Further, this 

commenter recommended that the 

Department give local areas flexibility in 

the creation of their own policies for 

providing incentives to youth. Another 

commenter recommended that the 

Department allow incentive payments 

for youth engaging in the literacy and 

numeracy post-tests for Program Year 

2015. 

A commenter expressed support of 

the inclusion of incentive programs and 

support services for individuals in the 

WIOA youth program, stating that the 

eligibility determination process is often 

difficult for youth as they sometimes 

struggle to obtain documentation, 

especially those who have experienced 

loss or abuse of their identity 

documentation in the past. Therefore, 

this commenter recommended 

providing incentives to youth for 

maintaining their documentation or 

attempting to obtain their 

documentation. Further, this commenter 

suggested that the Department should 

provide incentives to youth for 

providing word-of-mouth marketing to 

their peers about the WIOA youth 

services available, as incentives for 

referrals and recruitments could be very 

beneficial to the Department’s efforts to 

reach youth. 

One commenter expressed concern 

with this section due to its allowance 

for incentive payments only under the 

circumstances of work experience and 

training activities. This commenter 

suggested that incentive payments 

should be granted for achievements 

such as employment placement and 

retention, or improvements marked by 

testing. This commenter recommended 

that the incentive payments should be 

granted in those circumstances and not 

on the basis of engaging in training 

activities and work experiences. 

Similarly, a couple of commenters 

expressed concern with the proposed 

regulation’s allowance of incentives for 

activities only related to training and 

work experiences, and recommended 

that the language regarding incentive 

payments not be amended from its 

original form in WIA and suggesting 

that incentives are needed to reach and 

engage youth. 

Department Response: While the 

Department recognizes the importance 

of incentives as motivators for various 

activities such as recruitment, 

submitting eligibility documentation, 

and participation in the program, the 

Department concluded that incentives 

must be connected to recognition of 

achievement of milestones in the 

program tied to work experience or 

training. Such incentives for 

achievement could include 

improvements marked by testing or 

other successful outcomes. While WIOA 

funds cannot be used for incentives for 

recruitment and eligibility 

documentation, local areas may leverage 

private funds for such incentives. 

Comments: Another commenter 

recommended that the Department 

amend the proposed regulations to 

allow for incentive payment for ISY 

who graduate from a regular high 

school, suggesting the current language 

is inconsistent in its provision of 

incentives to students who receive their 

high school equivalency or GED 

certificates, but not to those who receive 

a traditional high school diploma. 

Further, this commenter recommended 

allowing for the provision of incentive 

payment for youth who participate or 

complete leadership activities, 

suggesting that not offering incentives 

for leadership activities will infringe 

upon the provider’s ability to engage 

youth. 

Department Response: There is no 

specific language in the regulatory text 

limiting incentive payments to students 

who receive their high school 

equivalency. Incentive payments may be 

provided to both ISY and OSY as long 

as they comply with the regulations 

stated in this section. 

Comments: One commenter 

recommended that the Department 

amend the language at the start of this 

section in order to make it more 

encouraging. Specifically, this 

commenter recommended that the 

section read, ‘‘Incentive programs are 

crucial to keeping homeless and 

disconnected youth engaged in 

programs and should be provided to 

youth participants for recognition.’’ 

Department Response: The 

Department agrees that incentives can 

be a critical tool to keep youth 

participants engaged in the program. 

However, no changes were made to the 

regulatory text in response to this 

comment. 

Comments: Another commenter 

recommended that a definition of 

incentive payments should be added to 

this section to retain consistency 

throughout the proposed regulations. 

Department Response: The 

Department concluded that the existing 

regulatory text adequately defines 

incentive payments. No further 

definition is necessary in the Final Rule. 

The Department did make minor edits 

to the first paragraph of the regulatory 

text to clarify this section. 

Section 681.650 How can parents, 

youth, and other members of the 

community get involved in the design 

and implementation of local youth 

programs? 

This section discusses the 

requirement in WIOA sec. 129(c)(3)(C) 

for the involvement of parents, 

participants, and community members 

in the design and implementation of the 

WIOA youth program and provides 

examples of the type of involvement 

that would be beneficial. The 

Department also has included in this 

proposed section the requirement in 

WIOA sec. 129(c)(8) that Local WDBs 

also must make opportunities available 

to successful participants to volunteer to 

help other participants as mentors or 

tutors, or in other activities. The 

Department notes that this provision 

was proposed as § 681.660. However, as 

noted above, because the Department 

has incorporated the language from 

proposed § 681.610 into § 681.590, the 

Department deleted proposed § 681.610 

and has renumbered proposed 

§§ 681.620 through 681.660 as 

§§ 681.610 through 681.650. 

Comments: The Department received 

a few comments on the proposed 

regulation. One commenter suggested 

that the language in this section be 

strengthened to show the importance of 

including individuals with disabilities 

in the design and implementation of 

these programs, stating that their 

involvement is vital. 

One commenter suggested that 

making opportunities available to youth 

peer volunteers be removed, and be 

replaced with language that would make 

the service an option for Local WDBs to 

choose to make, suggesting that the 

supervision and background 

investigation needed for volunteers to 

provide services to youth would be 

potentially too costly for WDBs and 

therefore shouldn’t be a requirement. 

Another commenter requested 

clarification from the Department 

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concerning the extent to which the 

population and community of an area 

must be involved in the creation of 

these programs and services and the 

type of involvement that is required of 

them, suggesting that requiring the 

community to be involved is 

contradictory to the intent of WIOA, 

which abolished the requirement of 

youth councils. 

Department Response: No changes 

were made in the regulatory text in 

response to these comments. The 

Department values the input of 

individuals with disabilities. Nothing in 

the proposed regulation precludes them 

from getting involved in the design and 

implementation of a local youth 

program. The populations identified in 

the regulation (parents, youth, and other 

members of the community) come 

directly from WIOA sec. 129(c)(3)(C), 

which clearly states the intent to have 

them involved in the design and 

implementation of the programs. The 

Department understands that this might 

seem to contradict the law’s approach to 

youth councils; however, this 

requirement does not have the time 

commitment and obligatory structures 

that were required of WIA’s youth 

councils. The Department will provide 

additional guidance and technical 

assistance on involvement in youth 

program design and implementation. 

5. Subpart D—One-Stop Center Services 

to Youth 

Section 681.700 What is the 

connection between the youth program 

and the one-stop delivery system? 

This section describes the WIOA 

youth program’s required role in the 

one-stop delivery system, and includes 

examples of the connections between 

the youth program and the one-stop 

delivery system. 

Comments: Several commenters 

expressed their support for these 

provisions and their focus on 

collaboration across programs and the 

requirement of WIOA youth programs to 

serve as a one-stop partner. A number 

of commenters expressed their support 

for the regulations’ encouragement of 

partnerships between WIOA youth 

programs and one-stop centers, 

suggesting that under WIA the one-stop 

delivery system was not encouraging of 

youth engagement. These commenters 

further recommended that the 

Department encourage training of onestop operator staff for effectively serving 

youth. Similarly, one commenter 

suggested that this proposed language 

would require either equipping and 

training staff at one-stop centers with 

information on serving youth, or 

colocation of WIOA youth service 

providers at one-stop centers. 

Department Response: The 

Department does encourage training of 

one-stop operator staff and added 

language to the Final Rule at 

§ 681.700(c) encouraging one-stop 

center staff be trained to build their 

capacity in serving youth. 

Section 681.710 Do Local Workforce 

Development Boards have the flexibility 

to offer services to area youth who are 

not eligible under the youth program 

through the one-stop centers? 

This section clarifies that Local WDBs 

may provide services to youth through 

one-stop centers even if the youth are 

not eligible for the WIOA youth 

program. 

The Department received a few 

comments on this section as discussed 

below. 

Comments: One commenter expressed 

their support of the proposed 

regulation’s requirement that one-stop 

centers provide services for individuals 

who are ineligible for WIOA youth 

programs, suggesting that providing 

these services would allow for youth to 

receive services they need while still 

working to obtain documentation that 

would make them eligible for WIOA 

youth services. 

A few commenters requested 

clarification regarding whether WIOA 

youth program funding would be 

allowed to support these services at onestop centers without enrollment and 

whether Local WDBs would provide 

youth services if they are ineligible for 

WIOA title I youth services, and if so, 

which program would be funded 

through the provision of those services. 

These commenters further 

recommended that the Department give 

States the authority to use WIOA 

funding for the purposes of supporting 

workforce market information and 

career awareness education to ISY, as is 

indicated in this section under the 

proposed regulations. Similarly, one 

commenter requested clarification from 

the Department about whether WIOA 

youth funds could be used to provide 

support for services if the support is for 

materials, general information, or 

relationships with local businesses. This 

commenter further recommended that 

the Department allow States to use 

WIOA youth funds to support general 

labor market information to promote 

career awareness for ISY, reasoning that 

providing this information would help 

to prepare these ISY for their transition 

out of school and into their career and/ 

or postsecondary school. 

Department Response: While 

providing labor market information and 

career awareness are allowable uses of 

WIOA youth funds, WIOA youth funds 

may be used to provide services only to 

eligible youth enrolled in the WIOA 

youth program. As described in this 

section, one-stop centers may provide 

basic labor exchange services such as 

the ones suggested under the WagnerPeyser Act to any youth. 

Comments: Suggesting that often 

times individuals who are not eligible 

for WIOA youth services fall within the 

eligibility of WIOA adult services, a 

number of commenters recommended 

that Local WDBs be required to ensure 

that youth aged 18–24 have access to 

one-stop center services and are not 

simply referred to WIOA youth services 

instead. 

Department Response: The 

Department agrees that youth aged 18– 

24 should have access to one-stop center 

services. The Department has concluded 

that this recommendation does not 

necessitate any changes to the Final 

Rule language and instead, will 

incorporate this recommendation in 

future guidance or technical assistance. 

The Final Rule adopts the provision as 

proposed. 

F. Part 682—Statewide Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

1. Introduction 

WIOA provides a reservation of funds 

from the adult, dislocated worker and 

youth programs to be undertaken by 

States, for statewide activities. States 

have both required and allowable 

activities to be undertaken on a 

statewide basis for adults, dislocated 

workers and youth. These funds support 

States to innovate, continually improve 

their comprehensive workforce 

programs, oversee a public workforce 

system that meets the needs of job 

seekers, workers and employers, and 

contribute to building a body of 

evidence to improve the effectiveness of 

services under WIOA. WIOA designates 

the percentage of funds that may be 

devoted to these activities from annual 

allotments to the States—up to 15 

percent must be reserved from youth, 

adult, and dislocated worker funding 

streams, and up to an additional 25 

percent of dislocated worker funds must 

be reserved for statewide rapid response 

activities. The up to 15 percent funds 

from the 3 funding streams may be 

expended on employment and training 

activities without regard to the source of 

the funding. For example, funds 

reserved from the adult funding stream 

may be used to carry out statewide 

youth activities and vice versa. 

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2. Subpart A—General Description 

This subpart describes what is 

encompassed by the term ‘‘statewide 

employment and training activities.’’ It 

explains that States have both required 

and allowable activities to be 

undertaken on a statewide basis for 

adults, dislocated workers and youth. 

States have significant flexibility in the 

development of policies and strategies 

for the use of their statewide funds. 

Section 682.110 How are statewide 

employment and training activities 

funded? 

The Governor has authority to use up 

to 15 percent of the adult, dislocated 

worker, and youth funds allocated to the 

State for statewide activities. The 

regulation provides that the adult, 

dislocated worker and youth 15 percent 

funds may be combined for use on 

required or allowed statewide activities 

regardless of the funding source. These 

activities are funded in the same 

manner as they were under WIA. 

Comments: Several commenters 

expressed concern regarding the 

appropriation-based restriction of 10 

percent availability for the required and 

allowable statewide activities. These 

commenters recommended that funding 

be increased to a level that covers the 

costs of the required activities and, at a 

minimum, that statewide funds be fully 

funded at the 15 percent level. In 

addition, the commenters recommended 

that the Department provide a waiver 

process for States on required activities 

if the full appropriation is not made 

available. Several of these commenters 

also suggested that the required State 

activities would necessitate resources in 

excess of Federal funding, and the 

program therefore could be considered 

an unfunded mandate. Lastly, one 

commenter expressed confusion about 

whether subrecipients may incur costs 

for administrative functions, as set forth 

in § 683.215, with statewide activities 

funds. 

Department Response: The allowable 

percentage of funding for statewide 

activities is governed by the 

authorizations and appropriations 

established by Congress, not by the 

Department. Furthermore, the regulation 

contains no unfunded mandates as 

defined in 2 U.S.C. 658(b). Waivers are 

covered at §§ 679.600 through 679.620, 

for waivers to States or local areas in a 

State, and at §§ 684.900 through 

684.920, for waivers relating to Indian 

and Native American programs. Waivers 

are considered on an individual basis 

and granted as appropriate, with such 

conditions as the Department may 

require. Subrecipients may incur costs 

for administrative functions consistent 

with the administrative cost limitation 

provisions at §§ 683.205 and 683.215. 

No changes have been made to the 

regulatory text as a result of these 

comments. 

3. Subpart B—Required and Allowable 

Statewide Employment and Training 

Activities 

This subpart first discusses required 

statewide activities. WIOA continues 

the activities that were required under 

WIA, but adds several additional 

required activities, such as assistance to 

State entities and agencies described in 

the State Plan, alignment of data 

systems, regional planning, and 

implementation of industry or sector 

partnerships. Required statewide 

activities under WIA and continued 

under WIOA include: Dissemination of 

information regarding outreach to 

businesses, dissemination of 

information on the performance and 

cost of attendance for programs offered 

by ETPs, and conducting evaluations. 

This subpart also discusses allowable 

statewide activities. The Department 

provides States with a significant 

amount of flexibility in how these funds 

may be used for statewide activities. 

States can test and develop promising 

strategies. The regulation at § 682.210 is 

not designed to be an exhaustive list, 

but more illustrative of the types of 

allowable statewide activities that may 

be provided with these funds. 

Section 682.200 What are required 

statewide employment and training 

activities? 

Comments: One commenter asked for 

a definition of ‘‘non-traditional 

training’’ services and for the statutory 

basis for the requirement that the ETPL 

include providers of nontraditional 

training services. This commenter 

further stated that § 682.200(b)(5) would 

require collection and dissemination of 

cost of attendance information for youth 

and for on-the-job and other training 

programs that is exempted from the ETP 

requirements (WIOA sec. 122(h)), and 

asked what the statutory authorization 

was for this requirement. Finally, this 

commenter asserted that there was a 

conflict over proposed requirements for 

these WIOA sec. 122(h) programs/data 

between proposed §§ 682.200 and 

680.340. 

Department Response: Nontraditional 

training is defined as training activities 

leading to employment in occupations 

or fields of work in which individuals 

of one gender comprise less than 25 

percent of the individuals so employed. 

The statutory basis for this definition is 

found in the definition of nontraditional 

employment at WIOA sec. 3(37). The 

statutory requirement for disseminating 

information regarding the State list of 

eligible training providers of training 

services (including those providing nontraditional training services) is found at 

WIOA sec. 134(a)(2)(B)(v)(I). The 

Department has revised § 682.200(b)(5) 

for consistency with §§ 680.490 and 

680.530, which specify the reporting 

requirements for certain providers of 

training services, such as providers of 

OJT. 

Comments: The commenter stated 

that there might be a conflict between 

proposed §§ 682.200 and 680.350 and 

referred to the title of § 680.350 as 

‘‘What is meant by ‘provision of 

additional assistance’ in the Workforce 

Innovation and Opportunity Act?’’ 

Department Response: There was no 

section numbered § 680.350 in the 

NPRM, and there is no conflict between 

the requirements of §§ 682.200 and 

682.350. However, the commenter may 

have been referring to the requirement 

of § 680.340, specifically paragraph (b), 

which states that the Local WDBs must 

make available to customers the State 

list of eligible training providers 

required in WIOA sec. 122(e), including 

local area information on work based 

training providers under WIOA sec. 

122(h). This could be read to conflict 

with § 682.200(b), which includes 

disseminating the list of ETPs and 

information identifying other eligible 

training providers of training as a 

required statewide activity. There are 

two sections of WIOA that cover the 

dissemination of the list of ETPs, secs. 

134(a)(2)(B)(v) and 134(c)(3)(F)(ii). The 

first requires the State to disseminate 

the list. The latter requires that Local 

WDBs make the list available through 

the one-stop centers. Operationally, 

States are tasked with maintaining the 

list and disseminating it to the Local 

WDBs. The task of the Local WDBs is to 

make sure that this information is 

readily available through the one-stop 

delivery system. No changes have been 

made to the regulatory text as a result 

of these comments. 

Comments: Two commenters also 

questioned the proposed § 682.200(b)(2) 

requirement to disseminate information 

identifying eligible training providers of 

work-based training, reasoning that 

disclosing information about employers 

could negatively impact the working 

relationships that case managers and 

business specialists have developed. 

Further, these commenters stated that if 

the Governor does not require collection 

of performance information from these 

training providers, it is not necessary to 

provide information about such 

providers to the public. A separate 

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commenter expressed concern that the 

performance reporting requirements 

could result in disclosure of personallyidentifiable information. 

Department Response: WIOA sec. 

122(h) exempts providers of on-the-job 

training and other employer-based 

training from the requirements at WIOA 

sec. 122(a)–(f). However, the identity of 

employers that access WIOA funds for 

employer-based training, as well as any 

performance information required by 

the State under WIOA sec. 122(h)(2), 

may not be kept from the public and is 

disclosable. This statutory disclosure 

requirement under WIOA sec. 122(h)(2), 

which applies to recipients of funds to 

provide training services, promotes full 

transparency, reduces instances of 

conflict of interest, and ensures 

compliance with the sunshine 

provisions of WIOA. Performance report 

made available to the pubic 

requirements do not include any 

information that could be considered 

personally identifiable. There are no 

names, addresses, dates of birth or 

Social Security numbers. WIOA sec. 

122(d)(4) prohibits disclosure of 

personally identifiable information 

without prior written consent of the 

parent or student. All other comments 

and responses involving eligible 

training providers are found at subpart 

D, §§ 680.400 through 680.530. No 

changes have been made to the 

regulatory text as a result of these 

comments. 

Comments: A commenter 

recommended that § 682.200(b) specify 

that information about physical and 

programmatic accessibility for 

individuals with disabilities (proposed 

§ 682.200(b)(7)) be made available in 

accessible formats. 

Department Response: The 

requirement to make this information 

available in accessible formats is already 

required under the Americans with 

Disabilities Act and other provisions of 

WIOA. Therefore, no changes were 

made as a result of this comment. 

Comments: Regarding proposed 

§ 682.200(d), commenters asserted that 

conducting evaluations is not the best 

use of limited State funds and 

recommended that it be an allowable 

statewide activity or reserved for the 

Federal government. 

Department Response: WIOA 

provides that evaluation is a required 

activity. Evaluation as a statewide 

activity is further discussed under 

§ 682.220. The Department notes that 

there was a small edit to § 682.200(d) 

moving the statutory reference to the 

end of the regulatory text. However, no 

changes have been made to the 

regulatory text as a result of this 

comment. 

Comments: One commenter 

recommended that the Department 

require that the one-stop delivery 

system receive technical assistance to 

help women entering apprenticeship 

and pre-apprenticeship programs, and 

recommended that § 682.200(f) be 

expanded to require technical assistance 

delivery to all front line and managerial 

staff at one-stop centers and to provide 

information on the economic benefits of 

nontraditional careers to one-stop 

participants. 

Department Response: The 

Department has determined that there 

are sufficient references and 

requirements throughout WIOA and this 

Rule that provide an improved linkage 

to apprenticeship and preapprenticeship programs and that this 

specific requirement is not needed. 

Furthermore, § 682.210(e) already 

allows for the implementation of 

programs to increase the number of 

individuals training for and placed in 

nontraditional employment. No changes 

have been made to the regulatory text as 

a result of these comments. 

Comments: A commenter 

recommended that § 682.200(f) 

specifically include individuals with 

disabilities in its statement of the 

requirement that States assist in local 

staff training to provide opportunities 

for individuals with barriers to 

employment. Also with regard to 

§ 682.200(f), this commenter 

recommended that States should 

examine Federal contractors doing 

business in their States, as doing so is 

particularly important for job seekers 

with disabilities because of the 

regulations implementing sec. 503 of the 

Rehabilitation Act of 1973, as amended, 

at 41 CFR part 60–741. 

Department Response: Individuals 

with disabilities are a target population 

of WIOA. The Department has 

determined that the reference to barriers 

to employment sufficiently includes 

individuals with disabilities based on 

the statutory definition contained in 

WIOA sec. 3(24)(D). With regard to 

States examining Federal contractors 

doing business in their area, they must 

follow the regulations governing the 

Rehabilitation Act of 1973, as amended. 

No changes have been made to the 

regulatory text as a result of these 

comments. 

Comments: Regarding proposed 

§ 682.200(g), several commenters 

recommended that the Department 

clarify how States are required to 

‘‘assist’’ local areas. One commenter 

requested clarification of what it means 

to assist local areas in regional planning 

and service delivery, and whether this 

includes financial assistance. 

Department Response: States must 

‘‘assist’’ local areas through a variety of 

methods. This will include the 

provision of technical assistance, 

compliance assistance, strategic 

planning initiatives, or other activities 

designed to improve or enhance the 

workforce development system at the 

local level. The Department declines to 

define explicitly ‘‘assist’’ further. Doing 

so might limit the types of technical 

assistance and other efforts that a State 

may seek to provide. With regard to the 

provision of financial assistance, yes, an 

allowable use of statewide activities 

funds under § 682.200 could include 

financial assistance related to regional 

planning efforts. 

Comments: Regarding proposed 

§ 682.200(h), a commenter 

recommended that the Departments 

issue additional guidance on 

implementation of the industry or sector 

partnerships that are a required activity 

at the State and local levels. This 

commenter also expressed concerns that 

the NPRMs provided little guidance on 

how States and local areas can meet 

their statutory requirements with 

respect to industry or sector 

partnerships. This commenter predicted 

that limited instruction may lead to 

confusion and delayed implementation 

among stakeholders. A separate 

commenter recommended an emphasis 

on the needs of and opportunities for 

immigrant and Limited English 

Proficient workers and business owners. 

Department Response: The 

Department is committed to the 

successful implementation of industry 

and sector partnerships throughout the 

nation’s workforce development system. 

To accomplish this, significant technical 

assistance activities will occur in this 

area. The Department has strategically 

chosen not to further define the 

requirements around industry and 

sector partnerships in regulations as 

effective models and solutions are likely 

will evolve over time. Instead, the 

Department’s efforts will be focused on 

the collection and dissemination of 

promising practices from States and 

local areas that have already developed 

successful models. The Department has 

determined that rather than a lack of 

instruction leading to confusion or 

delay, a lack of a more rigid definition 

will provide for the highest level of 

innovation possible. Additional 

guidance may be issued on this topic in 

the future. In addition, the Department 

will support various technical 

assistance efforts focusing on industry 

and sector partnerships based on 

successful models from around the 

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nation. Furthermore, there is no need to 

place additional emphasis on immigrant 

and Limited English Proficient 

populations since these individuals 

would generally be included in the 

definition of those with barriers to 

employment, whose needs are already 

emphasized throughout WIOA. No 

changes have been made to the 

regulatory text as a result of these 

comments. 

Comments: A commenter 

recommended that § 682.200(k) clarify 

that providing ‘‘additional assistance’’ 

to local areas with a high concentration 

of eligible youth may include creation of 

a central coordinating body or use of a 

‘‘qualified intermediary’’ defined as an 

entity with a demonstrated expertise in 

building partnerships. The commenter 

stated that qualified intermediaries 

serve an important role by streamlining 

services and filling gaps in support and 

services. Further, this commenter 

recommended that the Department 

clarify that ‘‘additional assistance’’ 

includes supporting development of 

credit transfers and articulation 

agreements between local education 

agencies (LEAs) and institutions of 

higher education within the State. The 

commenter reasoned that these 

programs bridge the connection between 

academics and career preparation, as 

well as between secondary and 

postsecondary school education. 

Department Response: WIOA allows 

States to engage in any of the activities 

described by the commenter, as the 

provision of additional assistance under 

§ 682.200(k). The regulation requires 

States to assist local areas with high 

concentrations of eligible youth. The 

assistance needed is likely to vary from 

local to local. This assistance might be 

provided in the areas of program design, 

partnering, resource sharing, and other 

areas. Providing a definitive list of 

assistance or specific examples might be 

limiting. Instead, the Department will 

continue its focus on technical 

assistance and regular guidance in the 

area of youth services. No changes have 

been made to the regulatory text as a 

result of these comments. 

Comments: One commenter requested 

that the Department develop a common 

intake at the Federal level that covers all 

required partners and test it for 

customer satisfaction. Similarly, another 

commenter asked if States would be 

developing and disseminating common 

intake procedures and related items, 

including registration processes, across 

core and partner programs. 

Department Response: Given the 

variety of State and local workforce 

development systems, a single, 

Federally mandated common intake 

process is not feasible. However, the 

Department remains committed to 

working with the Federal partners to 

limit the duplication of effort among 

and between core and partner programs 

relative to service design and eligibility 

requirements. The States are best 

positioned to develop common intake 

procedures through the State WDB. No 

changes have been made to the 

regulatory text as a result of these 

comments. 

Section 682.210 What are allowable 

statewide employment and training 

activities? 

In addition to the required statewide 

activities, States are provided with 

significant flexibility to innovate within 

the public workforce system with 

various allowable statewide 

employment and training activities. 

These allowable activities are vital to 

ensuring a high quality public 

workforce system, and can be used to 

ensure continuous improvement 

throughout the system. This regulation 

is not designed to be an exhaustive list, 

but more illustrative of the types of 

allowable statewide activities that may 

be provided with these funds. The 

Department has made a clarifying edit at 

the beginning of § 682.210. 

Comments: A commenter expressed 

support for proposed § 682.210(c) 

because it emphasizes the State’s role in 

developing and implementing strategies 

for serving individuals with barriers to 

employment and encourages States to 

partner with other agencies to 

coordinate services among one-stop 

partners. This commenter asserted that 

Governors have a vital role in 

coordinating different funding sources 

for training to enable effective service 

delivery. Another commenter supported 

the flexibility in § 682.210 for the types 

of statewide activities that States can 

implement using the Governor’s 

Reserve. However, this commenter 

recommended that the Department 

amend this section or provide 

additional guidance to encourage States 

to consider programs that will help 

align core WIOA title I programs with 

one another and with title II programs 

(e.g., career pathway programs and 

technology access programs). A separate 

commenter also expressed support for 

the Departments to issue guidance on 

the alignment of WIOA title I and title 

II services directed to immigrant and 

Limited English Proficiency individuals, 

and additionally in support of formal 

guidance affirming that all individuals 

with work authorization, including 

immigrant youth with Deferred Action 

for Childhood Arrivals (DACA) status, 

are eligible to participate in title I 

programs. 

Department Response: The 

Department agrees that the Governors 

have a vital role in coordinating the 

different funding sources for training 

available in their State. Furthermore, the 

Department has concluded that this role 

extends well beyond WIOA and should 

include the coordination of all funding 

sources (Federal, State, foundations, 

etc.) available within the State. 

Additional guidance will be issued by 

the Department, outside of the 

regulations, to help Governors 

strengthen alignment of all programs 

contained under WIOA and all those 

related to workforce development. 

Based on the planning requirements at 

the State, regional and local level 

already contained in this regulation, the 

Department has determined that a 

change to this section is not warranted. 

Nothing in this statute or regulations 

prohibits States from acting 

independently to align the programs 

covered under WIOA or outside of it. 

WIOA and the implementing 

regulations provide only the minimum 

of what States must do to be compliant. 

WIOA and regulations should be seen as 

a starting point for further alignment of 

the workforce development, economic 

development, and educational systems 

within a State. With regard to youth 

with DACA status, the Department will 

consider issuing guidance as necessary. 

No changes have been made to the 

regulatory text as a result of these 

comments. 

Comments: A commenter 

recommended that § 682.210 specify 

how activities can target individuals 

with disabilities wherever possible (e.g., 

in paragraphs (c), (k), (m), and (n)(2)). 

Further, this commenter recommended 

that the Final Rule specifically identify 

State programs relating to intellectual 

and developmental disabilities, 

Statewide Independent Living Councils, 

and centers for independent living so 

that they are not overlooked in program 

coordination. In regard to developing 

strategies to serve individuals with 

barriers to employment as permitted by 

proposed § 682.210(c), this commenter 

detailed several core areas for States to 

focus their partnership building efforts, 

including supporting businesses in their 

efforts to employ individuals with 

disabilities, building capacity of front 

line staff to implement evidence-based 

practices in serving employees with 

disabilities and the employers who hire 

them, and preparing youth with 

disabilities for careers that use their full 

potential. 

Department Response: The 

Department agrees that coordination 

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between and among the organizations 

listed by the commenter and the State 

and local workforce development 

systems are essential to improving 

services to individuals with disabilities. 

However, the Department has 

concluded that there is no need to list 

these organizations specifically in the 

regulatory text, and that each State and 

local area is uniquely positioned to 

determine which of these organizations 

and programs are included in their 

planning processes and service delivery 

models. However, the Department notes 

that WIOA sec. 3(24) defines 

‘‘individual with a barrier to 

employment’’ to include ‘‘individuals 

with disabilities,’’ and reminds the 

public that the emphasis throughout 

WIOA and this regulation on including, 

and tailoring services to meet the needs 

of, individuals with barriers to 

employment encompasses an emphasis 

on including, and tailoring services to 

meet the needs of, individuals with 

disabilities and other barriers to 

employment. By extension: the 

regulatory text at § 682.210(c), (k), and 

(m) should be understood to include 

programs carried out by local areas for 

individuals with disabilities. The 

Department also agrees that WIOA 

requires training for front-line staff and 

the identification and dissemination of 

promising practices on all areas of 

workforce development, including the 

provision of services to individuals with 

disabilities, including youth. [WIOA 

secs. 107(d)(11)(B), 108(b)(6)(C), and 

134(a)(2)(B)(i)(IV).] No changes have 

been made to the regulatory text as a 

result of these comments. 

Comments: Regarding the NPRM 

preamble discussion of § 682.210(d) and 

(e), a commenter requested that the 

Department clarify the term ‘‘real-time 

labor market analysis,’’ commenting that 

real-time LMI is a commonly used term 

that often refers to current data but that 

the term has a lot of associations that are 

not well-defined in terms of data items, 

levels, and area of detail. 

Department Response: Traditional 

labor market information (LMI) is based 

on data gathered through Federal and 

State surveys and administrative data. 

These surveys typically utilize rigorous 

sampling criteria and careful sampling 

frames. Traditional LMI provides 

significant insight into labor market 

trends and indicators, but the process of 

gathering the data is time-consuming 

and results in unavoidable lag-time for 

publication. Real-time labor market 

analysis, also referred to as real-time 

LMI, utilizes online job postings that are 

aggregated daily. Given the everincreasing use of technology in the LMI 

field, the Department has determined 

not to define the term ‘‘real-time labor 

market analysis.’’ The Department has 

supported previous evaluations and 

research products on real-time labor 

market analysis all of which are 

available online through the Web site of 

the Employment and Training 

Administration at www.doleta.gov and 

through the Workforce GPS platform at 

www.workforcegps.org. No changes have 

been made to the regulatory text as a 

result of these comments. 

Comments: Two commenters 

supported including NFJP grantees 

among entities with access to 

Governors’ 15 percent set-aside funds 

for statewide activities. 

Department Response: NFJP grantees 

are awarded funds through various grant 

programs. Furthermore, there is no 

restriction on additional partnerships 

that States can make with NFJP grantees 

under the statewide activities section. 

The Department has concluded that a 

special reference to NFJP grantees is not 

warranted and no changes have been 

made as a result of these comments. 

Comments: A commenter suggested 

that statewide activities funds should be 

accessible to a labor/management 

training fund of which the employer is 

a contributing member, and that 

apprenticeships should be an approved 

expense for incumbent worker training. 

Department Response: The regulation 

does not restrict the States from 

engaging in the activities described by 

the commenter related to labor/

management training funds and 

apprenticeship. The types of programs 

and partnerships that a State chooses to 

enter into are best left to the individual 

State WDBs to meet the specific 

workforce needs in their State. No 

changes have been made to the 

regulatory text as a result of these 

comments. 

Comments: A commenter 

recommended that Governors be 

authorized to approve automatically 

public higher education schools as 

eligible training providers under WIOA, 

in a similar manner to the authority for 

automatic approval of apprenticeship 

programs. The commenter further urged 

that such approval should cover all 

programs of study and that the school 

not be subject to initial or subsequent 

designation. 

Department Response: WIOA does not 

provide the authority for this type of 

automatic designation, so no changes 

have been made as a result of this 

comment. 

Section 682.220 What are States’ 

responsibilities in regard to evaluations? 

Comments: The Department received 

a number of comments on the proposed 

regulations in § 682.220, concerning 

State responsibilities on evaluations 

under WIOA sec. 116(e) and the 

required use of State set-aside funds 

under WIOA sec. 129(b)(1)(A) and sec. 

134(a)(2)(B)(vi) to conduct evaluations. 

Several commenters were supportive of 

provisions in this section, with one 

commenter expressing optimism about 

the possibility of States conducting 

longer-term impact studies of 

Vocational Rehabilitation. Another 

commenter supported the development 

of evaluations ‘‘to explore innovations 

surrounding integrated systems, 

coordinated services, career pathways, 

and multiple forms of engagement with 

businesses.’’ However, many comments 

were critical of the requirements that 

States conduct evaluations using the 

State set-aside funds and provide data 

for Federal evaluations. 

Regarding States’ conducting their 

own evaluations, commenters cited a 

lack of sufficient funds from the 

Governors’ set-aside as well as a lack of 

staff capacity. One commenter stated 

that the requirement ‘‘ignores the 

funding reality’’ and, along with other 

commenters, emphasized the many 

competing requirements for which setaside funds must be used—a problem 

noted to be particularly acute in States 

with a small amount of set-aside funds. 

The commenters also noted that many 

States lack staff with requisite 

knowledge and skills to conduct an 

evaluation and cannot afford to use 

consultants. Three commenters noted 

that, with the exception of evaluations 

conducted and published by a few 

States, there is no ‘‘established broadbased record of State knowledge of 

research principles sufficient to 

effectively manage an evaluation agenda 

under WIOA.’’ To remedy this situation, 

commenters suggested that States 

receive dedicated funding and Federal 

support to build their evaluation 

infrastructure and that the Department 

waive or suspend the requirement to 

conduct evaluations until States have 

sufficient funding and skills, and that 

the Department should assume primary 

responsibility for conducting 

evaluations. Another commenter 

suggested that conducting evaluations 

should be an allowable not a required 

statewide activity. 

Department Response: The 

Department acknowledges that States 

must balance many priorities in their 

use of the set-aside, including multiple 

required activities. The lack of sufficient 

funds (in the set-aside or from a 

dedicated funding stream of some kind) 

to conduct evaluations, as well as lack 

of staff capacity or, in some cases, lack 

of available or reliable data, will 

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constrain many States’ ability to 

conduct evaluations. However, WIOA 

sec. 129(b)(1)(A) and sec. 

134(a)(2)(B)(vi) require States to use 

funds reserved by the Governor for 

statewide activities to conduct 

evaluations. Further, the Department 

has determined that State-conducted 

evaluations have the potential to be of 

great practical value to States, including 

informing service delivery strategies, 

improving performance, and meeting 

other requirements under WIOA. For 

example, evaluation could be used to 

assist State WDBs in systematically 

identify promising or proven practices, 

as required under § 679.130(e), or for 

analyzing data on the quality, 

effectiveness, and/or assist the State to 

prepare its strategic planning process 

under 20 CFR 676.105 (see Joint WIOA 

Final Rule). It could further be used for 

exploring, with other State agencies, 

how well integration and coordination 

of services and data systems is 

proceeding. Therefore, the regulations 

retain the requirement that States 

conduct evaluations. 

Given the problems identified by 

commenters, the Department sees the 

development of States’ capacity to 

conduct evaluation projects as a longrange and iterative process, which the 

Department intends to aid through 

various forms of technical assistance 

and guidance. An initial, primary goal is 

to enhance capacity by building 

knowledge among State staff regarding 

various methodologies, approaches for 

enlisting expertise, and the potential 

role of evaluations and research in 

meeting State goals and priorities. 

Further, the regulations at § 682.220(e) 

and (f) identify areas for State discretion 

in the methodology, duration and 

funding of evaluations, all of which may 

assist States to target their investment in 

a manner appropriate to the funding 

available to the State. The paragraphs 

describe flexibilities that States may use 

to leverage other funding, and to 

conduct such evaluation over multiple 

program years. 

Despite flexibilities as to the types of 

evaluation, methodologies, phases, 

duration, and funding sources, some 

States may still be unable to fulfill the 

requirement to conduct evaluations and 

seek a waiver. Such a waiver request, 

like others submitted to the Department 

in regard to statutory provisions of 

WIOA, will be reviewed on a case-bycase basis, and will be subject to any 

appropriate conditions and limitations 

of the Secretary’s waiver authority and 

procedures found at WIOA sec. 

189(i)(3), and consistent with §§ 679.610 

and 679.620. No changes have been 

made to the regulatory text as a result 

of these comments. 

Comments: Several commenters 

objected to annual submission of 

evaluation reports, which they felt too 

excessive, given the requirements for 

annual submission of performance 

reports. One commenter suggested that 

States should instead make available to 

the public and to State and Local WDBs 

evaluation and research reports 

prepared by Federal evaluators with 

State-specific comments, in line with 

suggestions that evaluation be primarily 

a responsibility for the Federal 

government. 

Department Response: While WIOA 

sec. 116(e)(3) requires the State to 

annually prepare, submit, and make 

available to the public reports 

containing the results of evaluations 

conducted using State set-aside funds, 

the Department recognizes that 

evaluations may be lengthy and not end 

neatly within a program year. For this 

reason, the regulation has been revised 

to clarify that the reports are to be 

prepared, submitted to State and Local 

WDBs, and made available to the public 

when results become available. The 

revision to the regulation at § 682.220(c) 

is described in more detail below. Also, 

since States retain the responsibility to 

disseminate reports on State-conducted 

evaluation, the Department declines to 

adopt the suggestion that States only 

distribute Federal evaluations with State 

comments. 

Comments: Several commenters were 

critical of the regulation to implement 

the requirements in sec. 116(e) that 

States cooperate to the extent 

practicable in evaluations conducted by 

the Departments of Labor and Education 

(under WIOA secs. 169 and 242 and 

relevant sections of the Rehabilitation 

Act of 1973) by providing data, 

responding to surveys, allowing timely 

site visits, and informing the Secretary 

in writing if such cooperation was not 

practicable. A few commenters asserted 

that quantitative data was already 

available because the data elements and 

narrative reports provided to the 

Department and the other Federal 

agencies should provide an ample 

source of statistical data for evaluators 

without interrupting individual States 

with data requests. The commenters 

indicated that States’ responsibilities 

regarding evaluations and research are 

only ‘‘to allow on-site observation and 

in limited circumstances provide 

supplemental qualitative data.’’ Another 

commenter felt that the regulations were 

‘‘adversarial’’ and would result in 

minimum levels of cooperation from 

States. The commenter stated that the 

regulation did not define the term ‘‘to 

the extent practicable,’’ but noted that in 

the UI regulation, it is defined as noninterference ‘‘with the administration of 

State UC law.’’ The commenter also 

stated that the Department’s ‘‘intrusion 

into State evaluation activities is by its 

very nature ‘interference’ with non-UI 

State agency functions, since it is 

carried out pursuant to ‘‘adversarial 

rules’’ and for this reason, needed to be 

withdrawn. 

Department Response: The 

Department notes that the regulation at 

§ 682.220(d) implements a statutory 

requirement under WIOA sec. 116(e)(4) 

requiring State cooperation, to the 

extent practicable, in Federal 

evaluations. WIOA sec. 116(e)(4) 

specifically identifies such cooperation 

as including the provision of data and 

survey responses, and allowing site 

visits in a timely manner. As noted in 

the preamble to the NPRM, this 

requirement in WIOA sec. 116(e)(4) 

recognizes the vital role of States in 

providing various forms of quantitative 

and qualitative data and information for 

Federal evaluations that are not 

available at the Federal level. In order 

to conduct evaluations, individuals 

need to be tracked over time periods 

that do not align well with quarterly 

performance reporting. Depending on 

the research questions an evaluation is 

addressing, data on the same 

individuals or cohorts of individuals 

may be needed for timeframes within 

the same quarter or across multiple 

quarters, neither of which is feasible to 

track or match within the performance 

reporting structure of WIOA. High 

quality evaluations also involve the 

collection of data on control or 

comparison groups of individuals, so 

supplemental data may be needed to 

account for this. Frequently, individual 

level earnings information is critical for 

evaluations. Data, survey responses, and 

site visit information are often needed to 

understand, for example, participant 

characteristics, services, systems, labor 

market outcomes, the role of decisionmakers, implementation issues, and the 

quality of the customer experience. In 

response to the commenters’ 

suggestions, the Department notes that 

States may, in response to data requests 

for a Department of Labor or a 

Department of Education evaluation, 

identify other data already provided to 

the Federal government and of possible 

use in the evaluation, and the 

Departments will work with the State to 

determine if the other data are suitable. 

However, no change to the regulatory 

text has been made in response to the 

comments. 

Further, the Department disagrees 

with the characterization of these 

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regulations, which implement a 

statutory requirement by requiring 

cooperation to the extent practicable, as 

adversarial or as interference. The 

Department also declines to further 

define ‘‘to the extent practicable’’ in the 

regulation. Rather, if a State determines 

that timely cooperation in data 

provision is not practicable, the State 

may proceed according to 

§ 682.220(d)(3) and identify in writing 

the reasons it is not practicable, and 

cooperate with the Department to 

develop a plan or strategy to mitigate or 

overcome the problems preventing 

timely provision of data, survey 

responses and site visits, as statutorily 

required. The requirement at 

§ 682.220(d)(3) was intended to afford a 

relatively easy method for 

communicating with the Department 

and allowing for an amicable resolution 

of any problems. No changes have been 

made to the regulatory text as a result 

of these comments. 

Comments: Several comments were 

received regarding promoting specific 

evaluation and research projects to be 

conducted at the State level under sec. 

116(e) or at the Federal level under sec. 

169 (which sets forth the Department’s 

role in evaluation and research and 

authorizes a wide array of studies). One 

commenter recommended that the 

regulations require States to focus 

evaluations on services to individuals 

with disabilities under WIOA title I and 

that customer feedback be developed 

from this population be developed to 

determine if programs are truly 

responding to their needs. 

Department Response: The 

Department notes that while these 

proposed specific evaluation and 

research projects are permissible and 

desirable, WIOA sec. 116(e) allows 

States to determine the content of any 

evaluation. The Department will not 

reduce the States’ flexibility by 

requiring particular evaluation or 

research projects. No changes have been 

made to the regulatory text as a result 

of these comments. 

While the Department did not 

promulgate regulations for WIOA sec. 

169, the Department is addressing 

comments relating to Departmental 

evaluation and other research activity, 

since it is similar to the evaluation 

functions required of States under 

WIOA sec. 116(e). There are no changes 

to the regulatory text as a result of these 

comments. The comments and the 

Department’s response are as follows. 

Comments: Several commenters 

expressed support for the requirement 

under WIOA sec. 169(b)(4)(I) that the 

Department conduct a multi-State 

project to develop capacity for, 

implement, and build upon career 

advancement models and practices for 

low-wage health care providers and 

providers of early education and child 

care. 

Department Response: The 

Department notes that it has conducted 

and is currently engaged in research and 

evaluation projects related to career 

pathways programs in health care and 

child care occupations. Separately, the 

Department notes that developing and 

implementing career pathways is a 

function of State WDBs and Local WDBs 

under WIOA sec. 101(d)(3)(B) and sec. 

107(d)(5)and has been promoted by ETA 

in guidance and various forms of 

technical assistance to the public 

workforce system. 

Comments: Another commenter 

suggested that the regulations state that 

the Department undertake research into 

women’s representation in 

nontraditional jobs covering and the 

means by which barriers to women’s 

employment in these occupations can 

be removed. The commenter also 

suggested that guidance eventually be 

issued on the content of such studies 

and offered example of topics that could 

be covered in them, such one-stop 

capacity, training, and policies in regard 

to nontraditional careers for women. 

Department Response: The 

Department notes that it is currently 

conducting a research project, under 

prior legislative authority, on 

employment in nontraditional 

occupations in order to identify, and 

evaluate evidence-based strategies to 

increase opportunities for traditionally 

under-represented groups. 

For the convenience of the reader in 

understanding the totality of the 

regulation at § 682.220 and the changes 

made in the section, each part is 

discussed sequentially below. The 

revisions entailed reorganizing portions 

of the section to clarify the requirements 

and flexibilities for States, all in 

response to comments and to ensure 

conformity with statute. 

In particular, the revisions reflect the 

distinction between the requirement 

that States conduct evaluations of title 

I core program activities (as per WIOA 

secs. 129(b)(1)(A) and 134(a)(2)(B)(vi)) 

and the permissible ability of States to 

conduct research and demonstration 

projects as an allowable statewide 

activity under WIOA secs. 129(b)(2)(A) 

and 134(a)(3)(A)(ix) Accordingly, the 

title of this section has been revised as 

‘‘What are States’ responsibilities in 

regard to evaluations?,’’ with the 

concluding phrase ‘‘and research’’ 

removed. Likewise, the phrases 

‘‘evaluations and research projects’’ and 

‘‘evaluations and other research’’ have 

been consistently revised throughout 

this section to refer only to 

‘‘evaluations.’’ These revisions ensure 

that the requirements of § 682.220, 

including the coordination and 

reporting requirements, apply only to 

evaluations conducted as a required 

statewide activity. It should be noted 

that these the provisions of § 682.220 do 

not apply to research and demonstration 

projects conducted as an allowable 

statewide activity. 

The Department made a number of 

revisions to the regulatory text to clearly 

identify certain options that States may, 

but are not required to, use in fulfilling 

the statutory requirement to conduct 

evaluations as a statewide activity. 

Some of these options were identified in 

the NPRM, while others have been 

developed in response to comments 

received. In order to distinguish 

between regulatory requirements and 

regulatory flexibilities, this section has 

been reorganized so that these options 

are now stated in revised § 682.220(e) 

and in the new § 682.220(f). 

Section 682.220(a) 

Section 682.220(a) describes the 

requirement under WIOA sec. 

134(a)(2)(B)(vi) for States to use funds 

reserved by the Governor for statewide 

activities to conduct evaluations of 

activities under the WIOA title I core 

programs, according to the provisions of 

sec. 116(e). The paragraph has been 

revised to state that the purpose of 

evaluations is ‘‘to promote continuous 

improvement, research and test 

innovative services and strategies, and 

achieve high levels of performance and 

outcomes.’’ The first and third 

purposes—promoting continuous 

improvement, and achieving high levels 

of performance and outcomes—reflect 

the statutory requirement of WIOA sec. 

116(e)(1). The second purpose, as 

proposed by the Department in the 

NPRM, was to test innovative services 

and strategies. It has been revised to 

reflect the reality that rigorous tests of 

such services and strategies often are 

preceded or accompanied by related 

forms of research. This section has also 

been renumbered from § 682.220(a)(1) to 

§ 682.220(a). 

The paragraph proposed as 

§ 682.220(a)(2) has been deleted. This 

paragraph was deleted to avoid any 

confusion about research and 

demonstration projects conducted as an 

allowable statewide activity, to which 

the provisions of § 682.220 do not 

apply. Also, § 682.220(a)(3), regarding 

the use of funds other than the 

Governor’s Reserve, has been revised 

and relocated to a new § 682.220(f), as 

discussed below. 

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Section 682.220(b) 

The regulations under § 682.220(b) 

describe a number of requirements for 

evaluation under the State Set-aside. 

The language at § 682.220(b) was 

revised from that in the NPRM to 

remove the reference to ‘‘research 

projects’’ and thus to clarify that the 

requirements are statutorily required 

only for evaluations. In addition, the 

Department made a technical revision to 

replace the reference to evaluations 

‘‘funded in whole or in part with WIOA 

title I funds’’ with a reference to 

evaluations ‘‘conducted under 

paragraph (a).’’ The language was 

revised to clarify that the requirements 

in paragraph (b) apply to evaluations 

conducted pursuant to paragraph (a). 

Paragraph (b)(1) of this section 

implements the statutory requirement 

for States to coordinate and design 

evaluations in conjunction with State 

and Local WDBs and with other 

agencies responsible for core programs, 

as set forth in WIOA sec. 116(e)(2). 

Paragraph (b)(2) implements the 

requirement for States to include, where 

appropriate, analysis of customer 

feedback and outcome and process 

measures in the statewide workforce 

development system, as set forth in 

WIOA sec. 116(e)(2). Where the 

Department requires specific 

information related to these 

requirements, it will do so through the 

ICR process. Paragraph (b)(3) 

implements the requirement for States, 

in conducting evaluations, to use 

designs that employ the most rigorous 

analytical and statistical measures such 

as the use of control groups, as set forth 

in WIOA sec. 116(e)(2). The regulation 

clarifies that these approaches should be 

used when appropriate and feasible, 

thus indicating they are not intended as 

a ‘‘one-size-fits-all’’ checklist of 

requirements for every evaluation 

project. Paragraph (b)(4) implements the 

statutory requirement set forth in WIOA 

sec. 116(e)(1) for States, to the extent 

feasible, to coordinate the State’s 

evaluations with those provided by the 

Secretary of Labor and the Secretary of 

Education under the particular statutes 

as cited. These paragraphs are adopted 

as proposed. 

Section 682.220(c) 

Section 682.220(c) implements the 

statutory requirement for States to 

annually prepare, submit, and make 

available reports containing the results 

of the evaluations the States conduct, as 

set forth in WIOA sec. 116(e)(3). The 

Department has made two revisions to 

this section. First, as noted above, in 

response to comments received, the 

Departments has clarified that States 

must prepare, submit to the State and 

Local WDBs, and disseminate to the 

public results from these evaluations 

‘‘as available.’’ The Department 

recognizes that when evaluations are 

conducted over multiple program years, 

as permitted in revised paragraph (e)(3), 

results may not be available in every 

program year. Evaluation reports must 

be made publically available during the 

program year the final report is 

finalized. In light of the options States 

have in terms of the components and 

time needed for evaluations as clarified 

in § 682.220(e)(3), evaluations may 

extend into multiple program years. 

Second, the Department has revised this 

section to remove any reference to 

‘‘other research’’ to avoid any confusion 

with research as an allowable statewide 

activity, for which the reporting 

requirements are not statutorily required 

under WIOA. However, the Department, 

in recognition of the benefits of 

disseminating research, strongly 

encourages States to make publicly 

available the reports emanating from 

such other research that States conduct. 

Section 682.220(d) 

Section 682.220(d) implements the 

statutory requirement for States to 

cooperate, to the extent practicable, in 

evaluations and related research 

projects conducted by the Secretaries of 

Labor and Education. The Department 

has made minor revisions, for the sake 

of clarity, to three aspects of this 

section. First, the Department has 

removed the reference to the ‘‘agents’’ of 

the ‘‘Secretaries of Labor and 

Education’’ because a reference to the 

Secretaries always implicitly includes 

their agents, such as sub-agencies, 

contractors, or grantees. Second, the 

Department has replaced the reference 

to ‘‘sec. 116(e)(4) of WIOA’’ with a 

reference to the ‘‘laws cited in 

paragraph (b)(4) of this section.’’ This 

revision is non-substantive as the laws 

cited in paragraph (b)(4) of this section 

are those noted under sec. 116(e)(4) of 

WIOA, intended to simplify the 

language of the regulation. 

Paragraph (d)(1) of this section 

describes the particular data, 

information, and assistance that States 

must timely provide in cooperation with 

evaluations and related research 

projects conducted by the Secretary of 

Labor and Secretary of Education. 

Paragraph (d)(2) describes the 

requirement for the States to encourage 

cooperation in data provision by onestop partners at the local level. 

Paragraph (d)(3) describes the 

requirement for the Governor to provide 

written notification to the Secretary if it 

is not practicable for the State to timely 

provide the data described in paragraph 

(d)(1). 

No comments were received regarding 

these paragraphs. However, paragraph 

(d)(2) has been revised to correct an 

erroneous reference to paragraph 

(f)(1)(a)–(c) to the appropriate citation to 

paragraphs (d)(1)(i)–(iv). These 

paragraphs are adopted as proposed, 

with the described revision. 

Section 682.220(e) 

Section 682.220(e) has been revised to 

identify allowable flexibilities in the 

types of studies, phases, and time 

frames that are available to States in 

fulfilling their obligation to conduct 

evaluations, all in response to the 

concerns expressed in the comments 

about this requirement. 

Paragraph (e)(1) of § 682.220 clarifies 

that under WIOA sec. 116(e)(1) States, 

while required to use set-aside funds to 

evaluate activities under title I core 

programs, are permitted to conduct 

evaluations that jointly examine 

activities under title I and those under 

other core programs, so long as such 

evaluations are developed and designed 

in coordination with the relevant State 

agencies responsible for core programs 

under § 682.220(b)(1). Examples of 

evaluations of activities under multiple 

core programs include studies of referral 

processes, systems integration, or 

infrastructure cost sharing among the 

core programs. 

Paragraph (e)(2) provides a new 

flexibility to permit States to conduct 

evaluations similar to those authorized 

for, or conducted by, the Departments of 

Labor and Education under the laws 

cited in § 682.220(b)(4), and cites as 

examples ‘‘process and outcome studies, 

pilot and demonstration projects that 

have an evaluative component, analyses 

of programmatic data, impact and 

benefit-cost analyses, and use of 

rigorous designs to test the efficacy of 

various interventions.’’ 

Paragraph (e)(3) was added to clarify 

flexibilities for States to conduct 

evaluations over multiple program 

years, involving multiple phases ‘‘such 

as a literature or evidence review, 

feasibility study, planning, research, 

coordination, design, data collection, 

and analysis, and report preparation, 

clearance, and dissemination.’’ As noted 

above, the Department has added these 

flexibilities for States since, based on its 

own experiences in conducting 

evaluations, which have often entailed 

many such components and extended 

over multiple years. 

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Section 682.220(f) 

Section 682.220(f) describes allowable 

flexibilities for the States in funding 

evaluations in the use of funds from 

sources other than the State set-aside. 

Section 682.220(f)(1) permits States to 

use funds from any WIOA title I through 

IV core program to conduct evaluations, 

as determined through the coordinative 

processes associated with paragraph 

(b)(1). This paragraph was, for the sake 

of clarity, relocated from § 682.220(a)(3) 

of the NPRM. Further, consistent with 

the decisions discussed above, the 

reference to ‘‘other research’’ was 

removed. The Department also revised 

the paragraph to clarify that States may 

use funds from any WIOA title I through 

IV core program (per WIOA sec. 

116(e)(1)); the NPRM had referred to 

only title II through IV core programs. 

This revision clarifies that, while States 

must conduct evaluations using State 

set-aside funds under WIOA secs. 

129(b)(1)(A) and 134(a)(2)(B)(vi)), they 

may additionally use available funds 

from other core programs for such 

evaluations. This flexibility may be of 

particular interest to States planning 

evaluations that jointly study WIOA 

title I core program and other core 

program activities (a flexibility 

identified in § 682.220(e)(1) above). 

Section 682.220(f)(2) permits States to 

use or combine funds, consistent with 

Federal and State law, regulation and 

guidance, from other public or private 

sources, to conduct evaluations relating 

to activities under the WIOA title I 

through IV core programs. Such projects 

may include those funded by the 

Department of Labor and other Federal 

agencies, among other sources. This 

section was initially located at 

§ 682.220(e) of the NPRM. In response to 

concerns expressed by commenters, the 

Department has revised this section 

slightly by adding language to clarify 

that these additional public or private 

funding sources can include Department 

of Labor or other Federal agencies’ 

grants, cooperative agreements and 

contracts. The Department has also 

revised this section, consistent with the 

decisions discussed above, to remove 

the reference to ‘‘research, and other 

demonstration projects.’’ 

4. Subpart C—Rapid Response 

Activities 

Introduction 

This subpart discusses the important 

role that rapid response plays in 

providing customer-focused services to 

both dislocated workers and employers, 

ensuring immediate access to affected 

workers to help them quickly re-enter 

the workforce. The regulations reflect 

the lessons learned from the innovations 

by, and best practices of, various rapid 

response programs around the country 

in planning for and meeting the 

challenges posed by events precipitating 

substantial increases in the number of 

unemployed individuals in States, 

regions, and local areas. The regulations 

provide a comprehensive framework for 

operating successful rapid response 

programs in a way that promotes 

innovation and maintains flexibility to 

enable States to manage successfully 

economic transitions. 

The Department is making a technical 

correction to § 682.300(a). Proposed 

§ 682.300(a) made reference to rapid 

response being discussed in §§ 682.310 

through 682.370. The reference to 

§ 682.310 is corrected to reflect 

§ 682.300. This technical correction 

makes it clear that the regulatory text in 

§ 682.300 also is intended to be 

included in the description of rapid 

response. 

The remaining analysis that follows 

provides the Department’s response to 

public comments received on the 

proposed part 682 regulations. If a 

section is not addressed in the 

discussion below, it is because the 

public comments submitted in response 

to the NPRM did not substantively 

address that specific section and no 

changes have been made to the 

regulatory text. Further, the Department 

received a number of comments on this 

part that were outside the scope of the 

regulation and the Department offers no 

response. Lastly, the Department has 

made a number of non-substantive 

changes to correct grammatical and 

typographical errors to improve the 

readability and conform the document 

stylistically that are not discussed in the 

analysis below. 

Section 682.300 What is rapid 

response, and what is its purpose? 

Section 682.300 describes rapid 

response, which promotes economic 

development and vitality and delivers 

critically important solutions to workers 

and businesses in transition. 

Comments: The Department received 

comments on other areas of part 682, 

subpart C, relating directly to rapid 

response, (e.g., comments received on 

§ 682.330(i) regarding Trade Adjustment 

Assistance (TAA) and a comment 

regarding Worker Adjustment and 

Retraining Notification (WARN), both 

discussed later in this preamble). The 

nature of some of these comments led 

the Department to conclude that 

clarifying information is needed 

regarding the circumstances under 

which rapid response must be delivered 

as well as the term ‘‘mass layoff.’’ 

Department Response: In order to 

provide this clarification, the 

Department made the following 

revisions to § 682.300 and other sections 

of subpart C: (1) The Department made 

a correction to the regulatory text in 

several places by adding the word 

‘‘mass’’ to the text in §§ 682.330(j) and 

682.350 to align the regulatory text with 

the statutory language in WIOA sec. 

134(a)(2)(A)(i)(II), which refers to ‘‘mass 

layoffs,’’ whereas the proposed 

regulatory text only referred to 

‘‘layoffs’’; (2) The Department has added 

new sections to the regulatory text to 

clarify the circumstances under which 

rapid response must be delivered 

(§ 682.302) and to reflect the definition 

of the term ‘‘mass layoff’’ for purposes 

of rapid response (§ 682.305); and (3) 

The text at § 682.300(a)(1) has been 

revised to include a reference to new 

section, § 682.302. As a result of the 

addition of § 682.302, paragraphs (i) and 

(ii) of § 682.300(a)(1) were deleted and 

incorporated into § 682.302, since these 

items are more relevant to that section. 

The Department also notes that the text 

that was previously at § 682.300(a)(1)(i) 

and incorporated into § 682.302 at 

§ 682.302(a) has been revised. Where the 

previous text referred to 

‘‘announcement of a closure or a layoff,’’ 

the new text refers to ‘‘announcement or 

notification of a permanent closure, 

regardless of the number of workers 

affected.’’ The Department has 

determined that these revisions more 

clearly relay its intent that Rapid 

Response services are required to be 

delivered in the case of a permanent 

closure and irrespective of whether 

information about the layoff is received 

via an announcement or other 

notification method. The revision also 

makes it clear that there is no numerical 

threshold for delivering rapid response 

in these instances. Rapid Response is 

required, regardless of the number of 

workers affected by the closure. 

Additional information regarding the 

circumstances under which rapid 

response must be delivered, are further 

explained in the preamble discussion in 

§ 682.302 below. 

Section 682.302 Under what 

circumstances must rapid response 

services be delivered? 

This section explains the 

circumstances that trigger the delivery 

of rapid response. 

As previously noted in the preamble 

discussion on § 682.300, the Department 

received comments that led the 

Department to add § 682.302 in order to 

clarify the circumstances under which 

rapid response must be delivered. Rapid 

Response must be provided when one or 

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more of the following circumstances 

occur: 

(a) Announcement or notification of a 

permanent closure: 

An announcement or notification of a 

permanent closure of a facility, store, 

enterprise, or plant, regardless of the 

number of workers affected; 

(b) Announcement or notification of a 

mass layoff as defined in § 682.305 and 

discussed in that section of this 

preamble; 

(c) A mass job dislocation resulting 

from a disaster: 

Any natural or other disaster event, as 

defined by state or local emergency 

management policies, that results in job 

loss for a number of workers sufficient 

to meet a state’s definition for mass 

layoff (see the discussion under number 

4 below), or causing 50 or more workers 

to become dislocated. The Department 

encourages States to consider 

appropriate roles and responsibilities 

for rapid response activities following a 

natural or other disaster event and 

establish these roles and responsibilities 

as part of any emergency management 

plans that are developed; 

(d) The filing of a TAA petition: 

This is required in accordance with 

the requirement in sec. 221(a)(2)(A) of 

the Trade Act, which requires that the 

Governor ensure that rapid response 

services are delivered to all workers 

who are covered by the petition for 

TAA. Additionally, please see the 

discussion below in response to 

comments on § 682.330(i). 

Although the regulatory text now 

reflects the circumstances that require 

delivery of Rapid Response and the 

Final Rule preamble clarifies the 

circumstances under which rapid 

response must be provided, the 

Department is not suggesting that these 

are the only instances for which States 

and local workforce areas may provide 

rapid response. Instead, the Department 

strongly encourages States or their 

designated entities to deliver rapid 

response services to as many workers 

and companies as possible and to adopt 

policies that maximize the opportunities 

for rapid response services to be 

provided in a manner that best supports 

the businesses and workers in their 

communities. 

Section 682.305 How does the 

Department define the term ‘‘mass 

layoff’’ for the purposes of rapid 

response? 

This section explains the definition of 

the term ‘‘mass layoff’’ for the purposes 

of rapid response. 

As previously noted in the preamble 

discussion on § 682.300, the Department 

received comments that led the 

Department to define the term ‘‘mass 

layoff’’ for purposes of Rapid Response. 

A mass layoff will have occurred for 

the purposes of rapid response when at 

least one of the following conditions 

have been met: 

• A mass layoff, as defined by the 

State; however, under no circumstances 

may a State’s definition of mass layoff 

exceed a minimum threshold of 50 

workers. For example, in its definition, 

the State cannot set the minimum 

threshold of laid off workers at 75, but 

it can be set to as few as 1. The 

definition may be based upon factors 

such as the size of the company that is 

impacted, the percentage of workers 

impacted by a layoff, the income level 

of the employees, and other relevant 

factors; 

• Where a State has not defined a 

minimum threshold for mass layoff, any 

layoff affecting 50 or more workers; or, 

• Upon receipt of a WARN Act notice 

(see discussion in § 682.320 below in 

response to a comment on this subpart), 

regardless of the number of workers 

affected by the layoff announced. 

Additionally, the Department notes 

that the definition of ‘‘mass layoff’’ 

discussed in this subpart and included 

in the new regulatory text at § 682.305, 

differs from the definition used in part 

687, National Dislocated Worker Grants, 

which also refers to the term ‘‘mass 

layoff.’’ For Rapid Response, the 

Department allows States more 

flexibility in defining mass layoffs. 

Rapid Response services encompass 

strategies and activities that States can 

provide to assist workers affected by 

layoffs and closures as described at 

§ 682.300 (including information about 

available employment and training 

programs), and the Department 

encourages States to do so, regardless of 

the number of workers affected. In 

contrast, the DWG program is aimed at 

significant events that cannot 

reasonably be expected to be 

accommodated within the ongoing 

operations of the formula-funded 

dislocated worker program. 

Accordingly, for the purposes of the 

DWG program, the Department 

separately defines ‘‘mass layoff’’ as 

those affecting 50 or more workers from 

one employer in the same area. 

Additional details can be found in part 

687. 

Section 682.310 Who is responsible for 

carrying out rapid response activities? 

Section 682.310 clarifies that the State 

or an entity designated by the State is 

responsible for carrying out rapid 

response activities. 

The Department would like to clarify 

the intent in § 682.310(a). The 

regulatory text indicates that rapid 

response must be carried out by the 

State or by another entity designated by 

the State. The State or entity designated 

by the State must coordinate, 

communicate, and work with Local 

WDBs, CEOs, and other stakeholders as 

appropriate. The Department included 

‘‘other stakeholders’’ because it has 

determined that the intent of the law is 

to ensure coordination with all relevant 

parties so rapid response services can be 

delivered effectively. Paragraph (b) of 

§ 682.310 reinforces the requirement 

that regardless of whether a State 

designates a non-State entity or entities 

to carry out rapid response, the State 

must establish and maintain a rapid 

response unit to oversee this program. 

Section 682.320 What is layoff 

aversion, and what are appropriate 

layoff aversion strategies and activities? 

This section describes a 

comprehensive approach to layoff 

aversion, designed to prevent or 

minimize the duration of 

unemployment. 

Comments: The Department received 

a few comments requesting some 

additional changes be made to the text 

of the NPRM. 

One commenter requested an addition 

to § 682.320(b)(2) to insert language that 

States should work with both business 

and labor organizations in those 

instances where a collective bargaining 

agreement is in place and consult with 

unions in cases where no such 

agreement exists. The commenter also 

requested that language on partnering or 

contracting with labor organizations be 

added to § 682.320(b)(7). Lastly, the 

commenter recommended an additional 

provision that included language about 

working with labor organizations. 

Department Response: Paragraph 

(b)(2) includes the following as an 

allowable layoff aversion activity: 

‘‘ongoing engagement, partnership, and 

relationship-building activities with 

businesses in the community, in order 

to create an environment for successful 

layoff aversion efforts and to enable the 

provision of assistance to dislocated 

workers in obtaining reemployment as 

soon as possible.’’ Developing strong 

relationships with businesses is critical 

in layoff aversion, and the Department 

has concluded the proposed regulatory 

text best supports the intent of this 

paragraph by maintaining its sole focus 

on the business partnership, since 

businesses are often the most critical 

players in helping avert layoffs. 

However, developing relationships with 

unions is important as well, and 

language to this effect can be found at 

§ 682.330(h) which requires that States 

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develop partnerships with a variety of 

organizations, including unions, as 

appropriate, in order to exchange 

information among these partners so 

that rapid response is provided as early 

as possible. Information relating to the 

customization of layoff aversion 

activities is specifically highlighted in 

the regulation requiring these 

partnerships. No changes were made to 

the regulatory text in response to these 

comments. 

Comments: One commenter suggested 

that allowable layoff aversion activities 

be organized into ‘‘core’’ and 

‘‘complementary’’ activities. Core 

activities would be those that the 

commenter considers to be ‘‘true 

business disruption turn-around 

services,’’ and complementary would be 

those ‘‘that are important, but would not 

avert closure . . . in an emergency 

business disruption.’’ 

Department Response: The 

Department concluded that making 

distinctions between types of layoff 

aversion activities does not 

meaningfully impact the ability of States 

or local workforce areas to conduct 

layoff aversion activities, and operators 

of rapid response programs are best 

suited to determine how they organize 

or manage their layoff aversion activities 

in accordance with the requirements. As 

a result, the Department has determined 

that the proposed regulatory text 

permits State and local rapid response 

operators the flexibility to meet these 

requirements based on the specific 

needs of the companies and workers 

being served and the particular 

characteristics of each event. The 

categories suggested by the commenter 

imply that some activities listed are 

more important than others. The 

Department has concluded that any 

allowable activities that are designed to 

prevent or minimize the duration of 

unemployment are equally important 

and valuable, and encourages State and 

local rapid response teams to develop 

strategies that maximize the ability to 

deploy the appropriate layoff aversion 

solutions for the challenges they face. 

No changes were made to the regulatory 

text in response to this comment. 

Comments: A few commenters 

requested that the Department add 

language to § 682.320 that requires 

States to describe their layoff aversion 

strategies in their Combined State Plan 

or Unified State Plan. 

Department Response: The 

Department does not agree that this 

language should be added to the 

regulatory text. Instead, the joint 

planning guidelines issued by the 

Secretaries of Labor and Education in 

March 2016 in TEGL No. 14–15, 

provides the overall content 

requirements for the WIOA Unified or 

Combined State Plans. The guidance is 

in TEGL No. 14–15, released March 

2016, entitled ‘‘Workforce Innovation 

and Opportunity Act (WIOA) 

Requirements for Unified and Combined 

State Plans’’ and may be found at http:// 

wdr.doleta.gov/directives/All_WIOA_

Related_Advisories.cfm. No changes 

were made to the regulatory text in 

response to these comments. 

Comments: One commenter requested 

that language regarding the WARN Act 

be included in § 682.320 or § 682.330 

since WARN notification is an 

‘‘automatic trigger’’ to conduct rapid 

response. 

Department Response: The 

Department agrees that the receipt of a 

WARN notice is a trigger for rapid 

response as indicated previously and is 

clarifying that the issuance of a WARN 

notification, regardless of the number of 

workers affected by the layoff 

announced, generates the requirement 

to deliver rapid response. WARN Act 

notice is required generally for plant 

closures and mass layoffs as defined in 

the WARN Act or under State laws 

expanding the scope of notice 

requirements, and, thus, a WARN layoff 

meets the Department’s general 

requirements for mass layoffs and this is 

reflected in § 682.305. Because WARN 

notification is covered in this section, 

no change is being made to the text at 

§ 682.320 or § 682.330 to include WARN 

notice language. 

In § 682.320(b)(4), incumbent worker 

training is identified as one of the 

allowable layoff aversion activities. 

Although no comments were received 

with regard to this text, the Department 

has determined that a correction to the 

regulatory text at § 682.320(b)(4) to 

insert the word ‘‘funding’’ is needed in 

order to align the regulatory text with 

another section of the regulations 

(§ 680.800(b)) and to clarify that the 

Department intended rapid response 

funds to be used to pay for this training 

to help ensure workers have the skills 

needed to conduct the work of the 

employer and that businesses are able to 

build a skilled workforce commensurate 

to their needs. An additional correction 

is made to the regulatory text to make 

it clear that any incumbent worker 

training program conducted with rapid 

response funding must be tied to a 

broader layoff aversion strategy or must 

be intended for the purpose of 

preventing workers from losing their 

jobs. Incumbent worker training is a 

critical layoff aversion approach and our 

intent is to allow rapid response funds 

to pay for these activities in order to 

help ensure that rapid response meets 

its primary goal, which is to prevent or 

minimize the duration of 

unemployment. 

In order to demonstrate that the funds 

are being used as part of a layoff 

aversion strategy or activity, States must 

develop policies and procedures with 

respect to the use of rapid response 

funds for incumbent worker training, 

including the circumstances under 

which using rapid response funds for 

incumbent worker training would be 

applicable. As with all incumbent 

worker training funds, however, the use 

of rapid response resources to provide 

incumbent worker training as part of 

layoff aversion must be above and 

beyond the normal training offered by 

businesses to their employees. Rapid 

response resources must not supplant 

private funds in these situations. 

Section 682.330 What rapid response 

activities are required? 

This section describes the required 

rapid response activities. 

Comments: One commenter requested 

that the introductory sentence in the 

regulatory text at § 682.330 be changed 

from ‘‘Rapid response activities must 

include’’ to ‘‘Rapid response services 

that must be made available include.’’ 

The commenter explained that the 

reason for this request is due to the fact 

that the State cannot be compelled to 

deliver services if businesses refuse 

them. 

Department Response: The 

Department understands that businesses 

might not always be open to 

participating in the rapid response 

process; however, the proposed 

regulatory text reflects a requirement 

that was also in effect under WIA and 

shows the significant responsibility that 

States have to ensure that rapid 

response staff establish relationships 

and develop the skills needed to be able 

to work with businesses that will enable 

successful delivery of rapid response 

services. No changes in regulatory text 

were made in response to these 

comments. However, the Department 

recognizes that businesses are under no 

obligation to allow or help ensure the 

smooth delivery of rapid response 

services, and this can present a 

significant challenge for rapid response 

staff. Therefore, the Department 

determined that States which make all 

reasonable efforts to deliver services to 

affected workers, will be determined to 

have met the requirements of this 

section. However, the Department 

considers reasonable efforts to include 

more than just cursory attempts. For 

example, if a business refuses to allow 

services to be delivered on site or during 

business hours, rapid response teams 

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should make every effort to ensure 

worker access to rapid response services 

at off-site locations and during 

convenient hours. As previously noted, 

the requirement that Rapid Response 

services include services to businesses 

existed under WIA and during the 

administration of that law the 

Department never found a State who 

had made all reasonable efforts to 

deliver services to be out of compliance. 

Comments: One commenter remarked 

that the language at § 682.330(i) gives 

the impression that rapid response must 

be provided in parallel to Trade 

Adjustment Assistance (TAA), and this 

is often not the sequence. The 

commenter stated that these services are 

usually decoupled and that rapid 

response may occur prior to TAA 

application. 

Department Response: The provision 

at § 682.330(i) is consistent with the 

requirement in the Trade Act and is 

included in this regulation to help 

ensure that this requirement is met. The 

regulatory text requires that, as 

appropriate, rapid response services be 

provided to trade-impacted workers for 

whom petitions have been filed. Rapid 

response operators, of course, may assist 

in coordinating with State TAA staff, 

local one-stop staff, employers, workers, 

or unions in filing a petition for TAA on 

behalf of a worker group negatively 

impacted by foreign trade. Thus, a delay 

between petition filing and petition 

certification will occur, and as petitions 

may be filed up to 1 year after a worker 

separation, there may be delays between 

a worker separation, a petition filing, 

and the petition certification. The 

regulatory text is not meant to imply 

that rapid response services may only be 

provided once the Trade petition has 

been filed. Like other workers impacted 

by layoffs, rapid response services may 

be provided upon notification of layoffs 

consistent with State or local procedure. 

A worker may receive rapid response 

services prior to the TAA petition filing 

and re-delivery of rapid response 

services may or may not be appropriate, 

depending on the individual 

circumstances or timing of the events. 

Additionally, the content of information 

provided to the worker group through 

rapid response may change due to the 

circumstances or timing of the event, or 

additional information, such as a TAA 

Orientation, may occur after petition 

certification. No changes were made to 

the regulatory text in response to this 

comment. 

Comments: The Department received 

several comments on the provision at 

§ 682.330(g)(3) regarding the tracking of 

information related to rapid response 

activities. The commenters expressed 

that it is difficult to track rapid response 

activities and funds separately. 

One commenter opined that this level 

of detail should not be included as a 

requirement. 

Department Response: The 

Department expects that its programs 

must be evidence-based, whenever 

possible, and rapid response is no 

different. Capturing and tracking 

performance and outcome data and 

information is critical for continuous 

improvement, for identifying promising 

practices, and for reporting, and this 

tracking is required to be done for rapid 

response activities, as appropriate. No 

changes were made to the regulatory 

text in response to this comment. 

Comments: Another commenter gave 

an example of the difficulty involved in 

tracking rapid response activities. The 

example provided was visiting with the 

employer to present affected workers 

with services. The commenter noted 

that unless there is a way to track the 

employees’ participation, it would be 

difficult to determine the outcomes of 

that activity. 

Department Response: The 

Department does not specify what 

programmatic data and information 

States must capture and track; States are 

best suited to determine what they 

capture and track based upon the 

specific circumstances in each State. 

But, States are required to report to ETA 

some programmatic information (in 

accordance with § 682.360, further 

explained in the preamble) and report 

expenditure information, through the 

ETA 9130 form. Both of these 

requirements remain consistent from 

requirements under WIA. However, 

given the nature of some rapid response 

activities, the Department agrees that 

tracking outcome and performance data 

for all rapid response activities might 

prove difficult in some instances and 

the Department will provide, as 

necessary, guidance or technical 

assistance to support States with this 

requirement. No changes were made to 

the regulatory text in response to this 

comment. 

Regarding the requirement at 

§ 682.330(j) to provide additional 

assistance to local areas, although no 

comments were received about this text, 

the Department wishes to clarify the 

connection between WIOA and the 

regulatory text. WIOA refers to events 

‘‘that precipitate substantial increases in 

the number of unemployed individuals’’ 

as the trigger for potential additional 

assistance. In the regulatory text, the 

Department has interpreted this to mean 

that additional assistance may be 

provided ‘‘when such events exceed the 

capacity of the local area to respond 

with existing resources’’ to address 

situations such as significant increases 

in unemployment that have resulted in, 

or have the potential to cause, a 

significant impact on the local area’s 

resources. Therefore, additional 

assistance also may be used to support 

responses to major dislocation events, to 

provide layoff aversion efforts, and 

other allowable activities when these 

activities exceed the capacity of a local 

area’s formula resources. 

Finally, the Department is making 

several corrections to the regulatory text 

that includes an edit to § 682.330(e), to 

delete the reference to WIOA secs. 

101(38) and 134(a)(2)(A). Because the 

paragraph is specifically referencing 

national dislocated worker grants, it 

now cites only to the part governing 

those grants, to be more clear. Also, an 

edit to § 682.330(h) was made by 

inserting the word ‘‘and’’ between 

§ 682.330(h)(1) and (2) to reflect that 

both are expected benefits of developing 

and maintaining partnerships described 

at § 682.330(h). 

Section 682.360 What rapid response, 

layoff aversion, or other information 

will States be required to report to the 

Employment and Training 

Administration? 

Section 682.360 requires the reporting 

of rapid response information on the 

WIOA individual record. 

Comments: The Department received 

several comments on the issue of 

reporting. One commenter requested 

that States and locals be given the 

opportunity to respond to proposed data 

collection requirements before they are 

enacted. 

Department Response: The 

Department solicited feedback on 

proposed data collection requirements 

through the ICR process governed by the 

Paperwork Reduction Act (see 80 FR 

43474 (July 22, 2015) and 80 FR 52798 

(Sept. 1, 2015)) to ensure that those 

impacted by collection requirements 

would have an opportunity to comment 

on them. Should additional 

performance data reporting elements be 

required for rapid response, the 

Department will work with States and 

local areas to ensure that reporting 

burdens are minimized while still 

meeting program reporting goals. Any 

additional reporting requirements 

would be subject to public comment 

through the ICR process. No changes 

were made to the regulatory text in 

response to this comment. 

Comments: Another commenter 

requested that the services required to 

be captured match the WIASRD. 

Department Response: Much of what 

was collected and reported under WIA 

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will continue under WIOA. States will 

be required to collect and report in 

accordance with sec. 116 of WIOA and 

20 CFR part 677 (see Joint WIOA Final 

Rule). In order to provide clarity on the 

performance data reporting expectations 

for rapid response, the Department has 

revised the text at § 682.360. The former 

text required States to report the receipt 

of rapid response services of individuals 

enrolled as dislocated workers on the 

WIOA individual record,’’ whereas the 

text in the Final Rule clarifies that 

States are required to report the receipt 

of rapid response services for those 

individuals who have an existing WIOA 

individual record or for whom a WIOA 

individual record is created under 

programs that report through this 

mechanism. The new text also clarifies 

the population to be reported by 

revising the text from ‘‘individuals 

enrolled as dislocated workers on the 

WIOA individual record’’ to 

‘‘individuals served under programs 

reporting through the WIOA individual 

record.’’ These changes account for and 

align with the performance definitions 

for participant and reportable individual 

located at 20 CFR 677.150(a) and (b), 

provide consistency with the language 

on the reports, and also place a 

parameter to more clearly align with 

those programs that are required to 

fulfill reporting requirements under 20 

CFR part 677 (see Joint WIOA Final 

Rule). The Department notes that 

§ 682.360 does not independently 

require the creation of a WIOA 

individual record for individuals on 

account of their receipt of rapid 

response, layoff aversion, or other 

services under subpart C of this part; 

rather, § 682.360 requires that where a 

WIOA individual record exists for an 

individual served under programs 

reporting through the WIOA individual 

record, States must also report 

information regarding the receipt of 

services under subpart C. The 

Department has also added paragraph 

(b) to § 682.360, which relays that States 

are required to comply with these 

reporting requirements, as explained in 

the Department’s guidance. The DOL 

Performance ICR contains further 

specifications regarding the collection 

and reporting of receipt of services 

under subpart C of this part. 

Comments: A few commenters noted 

that there are difficulties involved with 

reporting rapid response activities 

through the WIOA individual record 

because rapid response services are not 

necessarily individualized. The 

commenters stated that the rapid 

response services are primarily 

employer and worksite based and that 

this information is collected 

retroactively at best and not likely to 

produce an accurate report. 

Department Response: While the 

Department understands the challenges 

of using the individual record to report 

data on rapid response activities, which 

are often group-based rather than 

individualized, there are various 

methods by which rapid response 

operators may identify and report on 

individuals who receive rapid response 

services. The Department will provide 

States with technical assistance on this 

topic as needed. Additionally, the 

Department recognizes the challenges 

associated with retroactive collection of 

information from employers or 

worksites on rapid response activities 

and services; the importance of valid 

and reliable collection is an area that 

was established as a priority under WIA 

and continues to be under WIOA. The 

Department will continue to work 

across programs to identify best 

practices and effective means of 

collecting data and ensuring valid, 

accurate, and reliable reporting. No 

changes were made to the regulatory 

text in response to these comments. 

Section 682.370 What are the 

statewide activities for which rapid 

response funds remaining unobligated 

after the first program year for which the 

funds were allotted may be used by the 

State? 

Section 682.370 describes the 

statewide activities for which rapid 

response funds that are unobligated 

after the first program year for which the 

funds were allotted may be used. 

Comments: The Department received 

a few questions from a commenter 

regarding this section. The commenter 

asked whether the term ‘‘unspent’’ (used 

in § 682.370 of the NPRM) means 

unobligated or unexpended. 

Department Response: The 

Department agrees that using the term 

unspent was confusing and, as a result, 

has changed the regulatory text to use 

the term ‘‘unobligated’’ to reflect the 

provision in WIOA at sec. 

134(a)(2)(A)(ii) in order to avoid 

confusion. The regulatory text was 

further changed to more closely align 

with the statutory text, providing a 

clearer explanation that the Governor 

may use these unobligated funds to 

carry out statewide activities as 

described in both §§ 682.200 and 

682.210. For consistency with the WIOA 

provision, the section header has also 

been changed and now reads ‘‘What are 

the statewide activities for which rapid 

response funds remaining unobligated 

after the first program year for which the 

funds were allotted may be used by the 

State?’’ 

Comments: The commenter also 

requested to know whether the 

provision at § 682.370 required 

governors to use unobligated rapid 

response funds for statewide activities, 

and whether statewide activities are 

only for ‘‘15 percent funds.’’ 

Department Response: To address the 

first question, the use of unobligated 

funds by the Governor for statewide 

activities is allowed, but is not a 

requirement. The Governor is not 

required to use the unobligated rapid 

response funds to carry out statewide 

activities, but has the option of doing so. 

In response to the commenter’s second 

comment, the Final Rule text clarifies 

that the statewide activities for which 

the funds may be used include the 

required statewide activities described 

at § 682.200 and the allowable statewide 

activities described at § 682.210, which 

are often referred to informally as the 15 

percent funds. 

G. Part 683—Administrative Provisions 

Under Title I of the Workforce 

Innovation and Opportunity Act 

This part establishes the 

administrative provisions for the 

programs authorized under title I of 

WIOA. Some of the provisions are also 

applicable to grants provided under the 

Wagner-Peyser Act, as indicated in 

specific sections of this part. The 

remaining Wagner-Peyser Act 

administrative rules are located in 20 

CFR part 658. The Department notes 

that administrative provisions for Job 

Corps (subtitle C of title I of WIOA) 

contracts are addressed separately in 20 

CFR part 686. The analysis that follows 

provides the Department’s response to 

public comments received on the 

proposed regulations for Administrative 

Provisions Under Title I of WIOA. If a 

section is not addressed in the 

discussion below, it is because the 

public comments submitted in response 

to the NPRM did not substantively 

address that specific section and no 

changes have been made to the 

regulatory text. Further, the Department 

received a number of comments on this 

part that were outside the scope of the 

regulation and the Department offers no 

response. The Department has made a 

number of non-substantive changes to 

correct grammatical and typographical 

errors to improve the readability and 

conform the document stylistically that 

are not discussed in the analysis below. 

Lastly, the terms ‘‘performance 

measure’’ and ‘‘performance 

accountability measure’’ have been 

replaced throughout with ‘‘performance 

indicator’’ and references to the 

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implementing regulations for WIOA sec. 

188 at 29 CFR part 37 have been 

updated to refer to 29 CFR part 38 per 

the Department’s recent 

nondiscrimination rulemaking. 

1. Subpart A—Funding and Closeout 

Section 683.100 When do Workforce 

Innovation and Opportunity Act grant 

funds become available for obligation? 

Section 683.100 describes the 

statutory requirements for the 

Department’s release of formula funds 

under title I of WIOA and the WagnerPeyser Act. 

Comments: A commenter requested 

clarification on whether there is 

consideration for agencies that are not 

one-stop operators to operate after June 

30, 2016, because their agency received 

‘‘WIA’’ (Workforce Investment Act) 

funds from the State and were informed 

that they can no longer perform direct 

services. 

Department Response: It is unclear 

from the comment to what agencies and 

what services the commenter is 

referring. Because the Department is 

unable to determine the meaning of the 

comment, the Department has adopted 

the provision as proposed. However, for 

additional information that may be 

useful, the commenter should see WIOA 

sec. 107(d)(10), which provides the local 

Workforce Development Boards’ (WDBs) 

responsibilities in selecting operators 

and providers. WIOA sec. 107(d)(10) is 

further discussed in 20 CFR part 679. 

Additionally, WIOA sec. 122 details 

requirements for identifying eligible 

training providers. This section is 

further addressed in 20 CFR part 680. 

Finally, the Department provided 

guidance and instructions on the 

transition of participants, funds, 

performance reports, grants, and 

subrecipient contracts under title I of 

the Workforce Investment Act of 1998 

and under the Wagner-Peyser Act to 

WIOA. This guidance can be found at 

TEGL No. 38–14 (‘‘Operational 

Guidance to Support the Orderly 

Transition of Workforce Investment Act 

Participants, Funds, and Subrecipient 

Contracts to the Workforce Innovation 

and Opportunity Act’’) issued on June 8, 

2015; www.doleta.gov/WIOA/. 

The Department also received 

comments concerning the required 

obligation rate of WIOA funds and the 

reallotment process. The Department 

addresses these comments in § 683.135. 

No changes were made to regulatory 

text in response to these comments. 

Section 683.105 What award 

document authorizes the expenditure of 

funds under title I of the Workforce 

Innovation and Opportunity Act and the 

Wagner-Peyser Act? 

This section recognizes the use of the 

three funding instruments that conform 

with the Uniform Guidance: Grant 

agreements, cooperative agreements, 

and contracts. 

Comments: A few commenters 

requested the Department provide 

clarification to paragraph (e)(3) of this 

part regarding the length of time 

allowed for each award for research, 

studies, or multi-State projects under 

WIOA sec. 169. 

Department Response: The 

Department added additional language 

in (e)(3) to clarify the timeline and 

application of competitive reevaluation. 

Awards made under WIOA sec. 169 that 

do not fall under the exceptions at 

paragraph (e)(3)(ii) or (iii) will require a 

competitive reevaluation after a 3 year 

period. This practice is generally 

consistent with the practices at other 

major Federal grantmaking agencies. 

Through this competitive reevaluation, 

the Department will ensure that the 

awardee would be competitive should 

the award be recompeted. The actual 

details of the competitive reevaluation 

process may vary by award. However, 

competitive reevaluations generally will 

consist of an examination of whether 

the awardee is meeting its performance 

goals and financial reporting 

obligations. The Department will not 

require competitive reevaluation for the 

types of awards described in paragraphs 

(e)(3)(ii) and (iii) because pursuant to 

the provisions of WIOA sec. 

169(b)(6)(A), awards that meet these 

requirements do not need to be 

competitively evaluated when initially 

awarded. However, the regulation 

includes criteria that must be met for 

these types of awards to avoid the 

competitive reevaluation requirement. 

The Department notes that there will be 

a transition period while the 

Department puts in place the processes 

and procedures for competitive 

reevaluation described in this Final 

Rule. 

Additionally, the Department clarified 

where the language in § 683.105 applies 

to grants, contracts, and cooperative 

agreements. 

Comments: A commenter requested 

the Department provide clarification on 

whether local areas can utilize only 

funding to serve customers in their 

jurisdictions or if the State can set 

policy to allow a broader use of funds. 

Department Response: WIOA does not 

prohibit or require local residency for an 

individual to receive services from a 

local area. Instead, whether a local area 

can serve individuals living outside 

their local area boundaries depends on 

State law and policy. Because the 

comment does not request a change to 

the language, no changes were made in 

the regulatory text. 

Aside from the changes discussed 

above, the Final Rule adopts the 

remainder of the section as proposed 

with a technical edit to § 683.105(e)(4) 

to correct language that was 

inadvertently retained from the WIA 

regulations and make this regulation 

more reflective of the statutory language 

at sec. 169(b)(6)(D) of WIOA, and 

additional technical edits for clarity to 

§ 683.105(f). 

Section 683.110 What is the period of 

performance of Workforce Innovation 

and Opportunity Act title I and WagnerPeyser Act funds? 

This section describes the period of 

performance for different types of WIOA 

title I and Wagner-Peyser Act grant 

awards. 

Comments: The Department received 

several comments requesting 

clarification concerning § 683.110. One 

commenter requested clarification 

regarding the period of time in which 

funds are available to carry out a Payfor-Performance contract strategy. 

Department Response: As provided in 

WIOA sec. 189(g)(2)(D) and discussed in 

§ 683.530, funds used for a WIOA Payfor-Performance contract strategy are 

available until expended. Because 

WIOA sec. 189(g)(2)(D) and § 683.530 

provide the period of availability for 

funds used for WIOA Pay-forPerformance contract strategies, no 

changes were made in the regulatory 

text. The Department expects to provide 

future guidance on carrying out WIOA 

Pay-for-Performance contract strategies. 

Comments: Several commenters 

discussed the applicability of § 683.110 

to the National Farmworker Jobs 

Program (NFJP) grant recipients. 

Specifically the commenters 

recommended that the Department be 

consistent across programs when 

considering modifications to allow 

carryover of funding and not add 

restrictions for National Farmworker 

Jobs Program (NFJP) grant recipients. 

One commenter recommended that 

NFJP grant recipients have the same 

performance standard stringency as 

others and be offered in § 683.110(e) the 

carryover provisions that approximate 

available expenditure allowances by 

States in § 683.110(b), and that NFJP 

have the same flexibility as the 

Governor to adjust on-the-job training 

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(OJT) employer reimbursement levels 

from 50 to 75 percent. 

Department Response: The 

Department addresses the issues 

concerning the NFJP program in the 

preamble discussion in part 685. 

Comments: The Department also 

received comments concerning the 

applicability of § 683.110 for title II 

programs and State Adult Education 

and Family Literacy Act (AEFLA) 

agencies. 

Department Response: The provisions 

found in § 683.110 are applicable to 

funds authorized under title I of WIOA 

and the Wagner-Peyser Act. The 

Department refers the commenters to 

the Department of Education’s 

regulations for Programs and Activities 

Authorized by the Adult Education and 

Family Literacy Act at 34 CFR parts 462 

and 463.for additional information 

regarding AAFLA and title II programs. 

Because § 683.110 only applies to WIOA 

title I and Wagner-Peyser Act funds, this 

DOL WIOA Final Rule adopts the 

provision as proposed. 

The Department received no 

comments on the remaining provisions 

of § 683.110, and the Final Rule adopts 

the section as proposed with technical 

corrections. The Department has 

corrected the reference in 

§ 683.110(c)(1)(ii) so that it refers to the 

provision governing the availability of 

funds used for WIOA Pay-forPerformance contract strategies, and it 

clarifies that this provision is referring 

specifically to WIOA Pay-forPerformance contract strategies, as 

defined in sec. 3 of WIOA and in 

subpart E of this part. The Department 

notes that the term ‘‘used’’ in 

§ 683.110(c)(1)(ii) refers to the 

reservation and use of funds mentioned 

in WIOA secs. 129(c)(1)(D) and 

134(d)(1)(A)(ii). Additionally, the 

Department has corrected § 683.110(f) so 

that it refers to award documents 

instead of terms and conditions of 

award. 

Section 683.120 How are Workforce 

Innovation and Opportunity Act title I 

formula funds allocated to local areas? 

This section describes the timeframe 

and formula factors a Governor must 

employ when allocating fund to local 

areas under secs.128 and 133. It also 

specifies the steps a Governor must take 

when issuing allocations, including 

consulting with Local WDBs and elected 

official prior to issuing the allocation. 

Comments: The Department received 

a comment in support of this section. 

The Department also received several 

comments concerning the applicability 

of § 683.120 to title II programs and 

State AEFLA agencies. 

Department Response: The provisions 

found in § 683.120 are applicable to 

funds authorized under title I of WIOA 

and the Wagner-Peyser Act. The 

Department refers the commenters to 34 

CFR parts 462 and 463 for additional 

information regarding AEFLA and title 

II programs. Because § 683.120 does not 

apply to title II and AEFLA agencies, the 

Final Rule adopts the provision as 

proposed, with a technical amendment 

to § 683.120(a) to correct list format and 

an additional technical amendment to 

§ 683.120(b) clarifying the application of 

WIOA secs. 129(b) and 134(a). 

Section 683.125 What minimum 

funding provisions apply to Workforce 

Innovation and Opportunity Act adult, 

dislocated worker, and youth 

allocations? 

This section addresses the minimum 

funding thresholds for States funded 

under title I, subtitle B of WIOA. 

Comments: The Department received 

several comments regarding § 683.125. 

A few comments raised concerns about 

the application of a fiscal year basis 

versus a program year basis for the 

minimum funding provisions. Another 

comment raised a concern on the 

application of the minimum funding 

thresholds in local areas that have been 

impacted by geographical boundary 

changes. 

Two commenters stated that 

§ 683.125(a) should take effect Oct. 1, 

2015, for fiscal year (FY) 2016. These 

commenters stated that the proposed 

regulations are silent on whether 

§ 683.125(a) refers to program year (PY) 

or FY, but that the Department through 

TEGL No. 29–14 (‘‘Workforce 

Innovation and Opportunity Act (WIOA) 

Adult, Dislocated Worker and Youth 

Activities Program Allotments for 

Program Year (PY) 2015; Final PY 2015 

Allotments for the Wagner-Peyser Act 

Employment Service (ES) Program 

Allotments; and Workforce Information 

Grants to States Allotments for PY 

2015’’) has specified that this section 

refers to PY 2016. 

Department Response: The 

Department’s fiscal year monies are 

distributed to grant recipients on a 

program year basis, as described in 

§§ 683.100 and 683.125. The youth and 

adult minimum funding provisions 

existed under WIA. The minimum 

funding provisions under the WIOA 

statute go into effect when the FY 2016 

funds become available on July 1, 2016, 

consistent with TEGL No. 29–14 (see 

http://wdr.doleta.gov/directives/All_

WIOA_Related_Advisories.cfm). 

However, the Department agrees that the 

language proposed for § 683.125 was 

confusing and has made changes to 

clarify the relationship between the 

fiscal year appropriations and the 

program year availability in relation to 

the minimum funding provisions. 

Comments: A commenter also 

recommended that local areas that 

change boundaries should still be 

eligible for the minimum percentage 

provisions for the adult, dislocated 

worker, and youth programs. 

Department Response: The 

Department agrees that this was a gap in 

the language of the proposed regulation 

and has added § 683.125(c) to address 

this issue. States may use WIOA 

minimum funding procedures even 

where the geographical boundaries of 

some or all local areas are different from 

the previous allocation. For example, 

this can be done for the PY 2016 WIOA 

allotment by (1) taking the amount 

allocated to WIOA local areas; (2) 

calculating the amount each local area 

would have received using the PY 2015 

and PY 2015 WIA allocations (WIA 

proxy amounts); and (3) calculating 90 

percent of the average WIA proxy 

amounts for each local area. Under 

either the permitted WIA hold harmless 

or the WIOA minimum funding (hold 

harmless) provision, the amount needed 

to provide the increased allocation(s) to 

the affected local areas is to be obtained 

by ratably reducing the allocations to 

the other local areas. 

Section 683.130 Does a Local 

Workforce Development Board have the 

authority to transfer funds between the 

adult employment and training 

activities allocation and the dislocated 

worker employment and training 

activities allocation? 

This section provides flexibility to 

local WDBs to provide services in the 

areas of greatest need by allowing fund 

transfers of up to 100 percent of a 

program year allocation between the 

local adult and the local dislocated 

worker allocations. 

Comments: The Department received 

several comments regarding § 683.130. 

Some commenters were concerned with 

the Governor’s approval of the transfer 

request and whether the Governor 

would complete the request timely or 

would unreasonably deny a request. 

Department Response: The 

Department agrees that additional 

language ensuring that requests are 

timely and reasonably evaluated would 

be beneficial. Consequently, the 

Department has adopted new regulatory 

text for § 683.130 to address the 

comments regarding the grounds or 

criteria a Governor must consider when 

approving or denying a request for 

transfer. The modified text requires the 

Governor to establish written policy that 

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provides the criteria the Governor will 

utilize for approving a request to 

transfer adult or dislocated worker 

employment and training activity funds. 

Comments: Another commenter 

expressed concern that the flexibility in 

§ 683.130 could lead to local areas 

transferring 100 percent of funding 

away from title I adult programs and 

could result in drastic reduction in 

services to those who need them most. 

This commenter recommended a waiver 

requirement as a prerequisite to gaining 

funding transfer flexibility between 

adult and dislocated worker programs. 

Department Response: The 

Department considered the comments 

and determined that a transfer of 100 

percent of funds out of one program to 

another may drastically reduce services 

to that program. This recommendation 

is inconsistent with the statutory 

language for two reasons. First, sec. 

133(b)(4) of WIOA explicitly states that 

100 percent of the allocated adult and 

dislocated funds can be transferred. 

Second, WIOA states that the Governor 

is responsible for approving transfers 

between the adult and dislocated 

worker funds, which makes an 

additional waiver requirement 

inappropriate. With the exception of the 

previous paragraph, the regulatory text 

is unchanged. 

Comments: Other commenters 

expressed concern regarding the 

performance of local areas and sought 

clarification whether performance 

indicator targets would be rescinded if 

100 percent of funds were transferred 

from one program to the other. 

Department Response: As addressed 

in 20 CFR part 677 Performance 

Accountability (see Joint WIOA Final 

Rule), the negotiated levels of 

performance for the primary indicators 

remain in effect and a local area must 

consider how it will meet adjusted 

levels of performance for the primary 

indicators before requesting such 

transfer. If the local area transfers 100 

percent of a certain type of funding, it 

would still be responsible for meeting 

the adjusted levels of performance for 

any participants that it is required to 

serve. The Department also reiterates 

that when funds are transferred from 

one program to another, the transferred 

funds adopt the identity of the new fund 

source and are bound by all of the 

requirements of that source. The 

concerns of this commenter are 

addressed in part 680. No change was 

made in the regulatory text for part 683 

in response to these comments. 

Section 683.135 What reallotment 

procedures does the Secretary use? 

This section implements secs. 127(c) 

and 132(c) of WIOA, and explains the 

Department’s process for recapture and 

reallotment of formula funds awarded to 

the States under title I. 

Comments: The Department received 

several comments requesting general 

clarification regarding the Department’s 

procedure for recapturing and realloting 

WIOA funds. Additionally, the 

Department also received comments 

asking whether rapid response funds are 

considered obligated and whether the 

amounts allocated to the local areas 

must be reported as obligated on the 

ETA 9130 form. 

Department Response: Upon 

reviewing the proposed language, the 

Department concluded that the 

proposed language was ambiguous 

because it (1) implied that certain 

interagency transfers and amounts 

allocated by the States to the local areas 

under secs. 128(b) and 133(b) of WIOA 

were not obligations under 2 CFR 

200.71; and (2) inaccurately stated that 

certain obligations needed to be 

reported on the DOL financial form. 

Consequently, the Department has 

revised the language at § 683.135(c). 

The Department has simplified the 

language at § 683.135(c) so that it simply 

states that the ‘‘term ‘obligation’ is 

defined at 2 CFR 200.71.’’ This change 

was made because comments revealed 

that the specific inclusion of the items 

in paragraphs (c)(1) and (2) of the NPRM 

led readers to question why other 

obligations were not included in this 

list. This change is meant to clarify that 

everything that qualifies as an obligation 

under 2 CFR 200.71, including rapid 

response obligations under sec. 

133(a)(2) of WIOA and the transfers and 

allocations referenced in paragraphs 

(c)(1) and (2) of the proposed regulation, 

should be counted for the purposes of 

the reallotment calculation in 

§ 683.135(a). 

In addition to simplifying 

§ 683.135(c), the Department added 

§ 683.135(d), which states that 

obligations must be reported on 

Department financial forms unless 

otherwise noted in guidance. Evaluation 

of the proposed language done in 

response to questions about whether 

amounts allocated to local areas must be 

included on the ETA 9130 form 

revealed that not all obligations for the 

purposes of reallotment calculation in 

§ 683.135(a) need to be reported on the 

9130 form. The Department has clarified 

the regulation so that it says all 

obligations must be reported on 

Department financial forms unless 

subsequent guidance from the 

Department includes instructions to the 

contrary. 

Section 683.140 What reallocation 

procedures must the Governors use? 

This section describes procedures for 

reallocating youth, adult, and dislocated 

worker funds among local areas in the 

State, in accordance with secs. 128(c) 

and 133(c) of WIOA. 

Comments: The Department received 

a comment requesting clarification on 

who makes the funding reallocation 

decision and what is the maximum time 

frame for decision-making. 

Department Response: WIOA secs. 

128(c) and 133(c) provides that the 

Governor, after consultation with the 

State WDB, may reallocate to eligible 

local areas youth, adult, and dislocated 

worker funds. Section 683.140(a) 

mirrors the statutory language and 

provides that the Governor may 

reallocate local funds after consulting 

with the State WDB. Because WIOA 

identifies the reallocation decisionmaker as the Governor, no change was 

made in the regulatory text in response 

to this comment. 

Section 683.140(b) and (c) provide 

that the reallocation determination 

occurs for the prior program year after 

an evaluation of all local areas’ 

obligation rates has occurred. However, 

there is no required timeframe for a 

Governor to make a decision as the 

regulation maintains the Governor’s 

flexibility and responsibility to make 

reallocation decisions regarding the 

WIOA grant funds. No change was made 

to the regulatory text. 

Section 683.145 What merit review 

and risk assessment does the 

Department conduct for Federal 

financial assistance awards made under 

Workforce Innovation and Opportunity 

Act title I, subtitle D? 

This section includes requirements 

mandated by the Uniform Guidance. 

Comments: The Department received 

several comments requesting a 

clarification of ‘‘merit review.’’ 

Department Response: Section 

683.145(a) includes the requirements 

mandated by the Uniform Guidance at 

2 CFR 200.204 that the Department 

utilize a merit review process when 

awarding competitive awards. Title 2 

CFR 200.204 states that the process for 

merit review will be described in the 

funding opportunity announcement. 

The Department has determined that 

because the process necessary for 

ensuring a fair merit review may vary by 

competition, additional description of 

‘‘merit review’’ is not appropriate for 

this regulation. No change was made to 

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the regulatory text in response to these 

comments. 

Section 683.150 What closeout 

requirements apply to grants funded 

with Workforce Innovation and 

Opportunity Act title I and WagnerPeyser Act funds? 

This section addresses closeout, 

which is an important component to 

complete the grant lifecycle. This 

section paraphrases the Uniform 

Administrative requirement sections on 

closeout and post-closeout adjustments 

(2 CFR 200.343 through 200.344). 

Comments: The Department received 

a comment requesting clarification of 

the period of time that the Federal 

government can disallow costs and for 

which the grant recipient remains liable 

for a Federal debt after grant closeout. 

Department Response: Because WIOA 

of limitations for collection of a Federal 

debt depends on many variables not 

appropriate to regulate, no changes were 

made to the regulatory text in response 

to this comment. 

2. Subpart B—Administrative Rules, 

Costs, and Limitations 

Section 683.200 What general fiscal 

and administrative rules apply to the 

use of Workforce Innovation and 

Opportunity Act title I and WagnerPeyser Act funds? 

This section describes the application 

of Uniform Guidance and the 

corresponding exceptions authorized by 

the Department at 2 CFR part 2900 for 

all grant recipients and sub recipients, 

including for-profit organizations and 

foreign entities. 

Comments: One commenter requested 

that an appeal process should be 

required when the State (pass-through 

entity) implements requirements 

outside the Federal guidelines in 2 CFR 

part 200. 

Department Response: The 

Department has decided not to require 

an appeals process when pass-through 

entities implement requirements outside 

the Federal guidelines in the Uniform 

Guidance at 2 CFR part 200. This is 

consistent with 2 CFR part 200, which 

provides necessary flexibility to States 

by extending special considerations 

when administering grant funds. The 

Department determined that requiring 

an appeals process when a pass-through 

entity implements requirements not 

included in 2 CFR part 200 would be 

unduly burdensome and counter to the 

effective administration of the grants. 

The commenter should note that 

§ 683.600 offers protections for 

subrecipients if a requirement imposed 

by a pass-through entity violates the 

requirements of title I of WIOA. 

Consequently, because the Department 

has determined that the proposed 

appeals process would not support the 

effective administration of the grants 

and adequate protections are already in 

place, no change was made in the 

regulatory text. 

Comments: One commenter requested 

an explanation of the addition method 

in § 683.200(c)(6). 

Department Response: The 

Department has determined that the 

description in § 683.200(c)(6) and 

reference to 2 CFR 200.307 adequately 

describes the addition method for the 

purposes of the regulation and that any 

additional description of the method 

would be better suited to guidance and 

technical assistance. No change was 

made to the regulatory text in response 

to comments. 

Comments: One commenter requested 

clarification on how a State should 

determine compliance with the Buy 

American provisions. The same 

commenter also asked whether State 

oversight and monitoring 

responsibilities under § 683.200 include 

programmatic monitoring of local areas 

or simply financial monitoring and 

oversight, and if the latter, where 

programmatic monitoring expenses 

should be charged. Several commenters 

asked for clarification regarding the 

applicability of the section to title II 

funds, specifically to the requirement to 

use the addition method and the Buy 

American Act. 

Department Response: Upon 

reviewing the commenter’s request, the 

Department determined that the 

proposed language about ‘‘Americanmade equipment and products’’ was 

confusing. Consequently, the 

Department replaced this language with 

a reference to the relevant section of the 

Buy American Act. Additionally, the 

Department directs the commenter to 

§ 683.410 of this part which addresses 

the issue concerning the classification of 

costs as either programmatic or 

administrative for purposes of WIOA. 

Section 683.200 describes the 

application of the Uniform Guidance 

and the corresponding exceptions 

authorized by the Department at 2 CFR 

part 2900 for all title I WIOA and 

Wagner-Peyser Act grant recipients and 

subrecipients, including for-profit 

organizations and foreign entities. The 

Department also directs the commenter 

to § 683.215(b)(2), which provides that 

monitoring and oversight activities 

related to administrative functions are 

defined as administrative. Because these 

issues are addressed elsewhere, no 

change was made to the regulatory text 

in response to this comment. 

The Buy-American requirements 

apply to funds made available under 

title I, title II, or under the WagnerPeyser Act. However, § 683.200(f) only 

applies to funds authorized under title 

I of WIOA and the Wagner-Peyser Act; 

no change was made in the regulatory 

text in response to this comment. 

Section 683.205 What administrative 

cost limitations apply to Workforce 

Innovation and Opportunity Act title I 

grants? 

This section specifies the statutory 

administrative cost limitations of title I 

grant funds. 

Comments: The Department received 

a comment requesting clarification on 

whether it is allowable to combine the 

10 percent administrative cost 

limitation in § 683.205 for all three 

WIOA programs into one pool as long as 

the administrative costs for all three 

combined do not exceed the pooled 

amount. 

Department Response: Section 

683.205(a)(2) mirrors the language in 

WIOA secs. 128(b)(4) and 134(a)(3) and 

provides flexibility to States and local 

areas by allowing administrative funds 

from the three WIOA formula funding 

streams awarded under title I, subtitle B 

of WIOA to be pooled and used together 

for administrative costs for any of the 

three programs at the State and locals’ 

discretion. The statutory and regulatory 

language clearly state that local areas 

may pool funds for administrative costs. 

No changes were made to regulatory text 

in response to this comment. 

Section 683.215 What Workforce 

Innovation and Opportunity Act title I 

functions and activities constitute the 

costs of administration subject to the 

administrative cost limitation? 

This section defines the functions and 

activities that constitute administration 

in accordance with sec. 3(1) of WIOA, 

and therefore are subject to the 

administrative cost limitations 

discussed in § 683.205. 

Comments: In issuing the NPRM, the 

Department requested comments on 

whether the Department should issue 

the proposed administrative costs list as 

a regulation or as a general description 

or guidance, whether the list should be 

stable or subject to periodic review, and 

whether indirect costs should be 

programmatic or administrative. 

The Department received numerous 

and varied responses regarding its 

solicitation. The majority of the 

comments received concerned whether 

the regulation should use a static list to 

define administrative costs or whether 

the regulation should include a more 

flexible definition, with a majority of 

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the comments stating a preference to 

maintain a static list to define 

administrative costs. 

Department Response: The 

Department reviewed and analyzed the 

comments received and decided to 

maintain a list of administrative 

functions in a defined, succinct list 

instead of adopting a more flexible 

definition because it agreed with 

commenters that it ensures consistency 

and clarity in the treatment of the 

expenditures for WIOA title I grant 

funded activities. No change was made 

in the regulatory text in response these 

comments. 

Comments: Additionally, commenters 

also responded to the inquiry as to 

whether the Department should treat 

indirect costs as administrative or 

programmatic costs with many 

commenters suggesting that costs 

should be charged to administration or 

program depending on activity and 

function. 

Department Response: After 

reviewing the comments, the 

Department concluded that charging of 

direct and indirect costs as 

administrative or programmatic 

depending on the function is consistent 

with statute. This results in an accurate 

classification of costs and is consistent 

with the Uniform Guidance at 2 CFR 

part 200. Consequently, indirect costs 

will be charged as administrative or 

program costs depending on activity 

and function. The proposed language 

was consistent with this conclusion. No 

changes were made to the regulatory 

text in response to these comments. 

Comments: Several commenters 

suggested that the language in 

§ 683.215(a) was an expansion from 

WIA and should not apply to one-stop 

operators. 

Department Response: Section 

683.215(a) provides that administrative 

costs are those expenditures incurred by 

State and Local Development WDBs, 

Regions, direct grant recipients, local 

grant subrecipients, local fiscal agents, 

and one-stop operators for the overall 

management of the WIOA system and 

are listed among the functions 

enumerated in the list in § 683.215(b). 

This definition is substantially the same 

as it was in WIA. The entities listed in 

§ 683.215(a) are the same entities, with 

the exception of Regions, that are 

explicitly included in the definition of 

administrative costs in sec. 3(1) of 

WIOA. WIOA clearly requires the 

inclusion of one-stop operators, no 

change was made in the regulatory text 

in response to these comments. 

Comments: Commenters suggested 

deleting certain language in 

§ 683.215(b)(4) related to which travel 

costs should be considered 

administrative costs. Commenters 

suggested that the Department delete the 

language referring to overall 

management of the WIOA system as it 

was vague and potentially required 

certain program costs to be counted as 

administrative costs. 

Department Response: Section 

683.125(b)(4) defined administrative 

travel costs as travel costs ‘‘incurred for 

official business in carrying out 

administrative activities or the overall 

management of the WIOA system.’’ The 

Department reviewed the section and 

determined that it agreed with the 

commenters. Consequently, the 

Department modified the language in 

§ 683.215(b)(4). Two changes have also 

been made to § 683.215(c) from the 

proposed language. 

Comments: The Department received 

a comment requesting a change to 

§ 683.215(c)(2) so that grant recipients 

are not required to track personnel 

expenditures based on documented 

distributions of actual time worked or 

other equitable cost allocation methods 

because the language is inconsistent 

with the Uniform Guidance in 2 CFR 

part 200. 

Department Response: The 

Department agreed with the commenter 

and removed the language from the 

Final Rule. 

Comments: The Department received 

several comments concerning 

§ 683.215(c)(4), asking for clarification 

as to which subgrantees are responsible 

for tracking administrative costs and are 

subject to administrative cost 

limitations; specifically, some 

commenters were inquiring about the 

treatment of local grant subrecipients. 

Department Response: The 

Department determined that the 

proposed language was ambiguous 

about how costs incurred for the 

functions and activities of local grant 

subrecipients, as identified in 

§ 683.215(a), should be categorized. 

Consequently, the Department modified 

§ 683.215(c)(4) and added language to 

clarify how the administrative costs of 

subrecipients listed in § 683.215(a) 

should be categorized. The added 

language states that costs of contractors 

and subrecipients that meet the 

requirements of (c)(4), other than 

subrecipients listed in (a), are program 

costs. The addition of the language in 

the Final Rule will ensure that the 

intent of WIOA for the entities 

responsible for the management of the 

public workforce system to track their 

administrative expenses is clear. The 

change also reflects that incidental 

administrative costs incurred by a 

contractor or subgrantee whose 

intended purpose is to provide 

identifiable program services do not 

have to be identified, broken out from 

other costs incurred under the contract 

or subaward, and tracked against the 

administrative cost limitation. Finally, 

this change does not alter the 

requirement provided in § 683.215(c)(1) 

that costs incurred under contracts 

whose intended purpose is 

administrative must be charged to the 

administrative cost category. 

Comments: The Department received 

a request to clarify the guidelines on 

infrastructure funding. The Department 

also received several comments 

concerning the applicability of 

§ 683.215 to title II programs and State 

AEFLA agencies. 

Department Response: The 

Department notes that infrastructure 

funding is discussed in 20 CFR part 678 

(see Joint WIOA Final Rule). Because 

another part governs infrastructure 

funding, no change was made to the 

regulatory text. The provisions found in 

§ 683.215 are applicable to funds 

authorized under title I of WIOA. The 

Department refers the commenters to 34 

CFR part 462 and 463 for additional 

information regarding AEFLA and title 

II programs. No changes were made to 

the regulatory text in response to this 

comment. 

Section 683.220 What are the internal 

control requirements for recipients and 

subrecipients of Workforce Innovation 

and Opportunity Act title I and WagnerPeyser Act funds? 

This section describes the internal 

controls that recipients and 

subrecipients must install and have in 

place when expending WIOA and 

Wagner-Peyser Act funds, and is based 

on 2 CFR 200.303. 

Comments: The Department received 

comments requesting clarification with 

regard to the internal control 

requirements of § 683.220. One 

commenter requested a clear definition 

of the personally identifiable 

information (PII) and sensitive 

information, including documentation 

allowed for financial and program data 

and participant-specific verification. 

Another commenter requested 

clarification of the ‘‘tools and 

assistance’’ for improving internal 

control structure under § 683.220. 

Department Response: The 

Department determined that additional 

guidance on the definition of PII and 

available tools and assistance are not 

appropriate regulatory text because of 

the detail that would be required and 

the flexibility that is necessary for these 

definitions. The Department previously 

issued guidance on handling Personally 

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Identifiable Information (PII) which is 

found in TEGL No. 39–11 (‘‘Guidance 

on the Handling and Protection of 

Personally Identifiable Information 

(PII)’’), issued on June 28, 2012 (see 

http://wdr.doleta.gov/directives/attach/

TEGL/TEGL_39_11.pdf). 

The Department will provide 

additional guidance on this issue. No 

change was made to the regulatory text. 

Section 683.230 Are there special rules 

that apply to veterans when income is 

a factor in eligibility determinations? 

This section addresses the laws 

governing the determination of 

eligibility for veterans and their spouses 

for WIOA funded services with income 

qualification requirements. 

Comments: Two commenters 

expressed concern about simply 

referring questions to the Veterans’ 

Employment and Training Service 

(VETS) without further guidance and 

recommended that the Department 

explicitly state the procedures and 

exceptions in regulations. These 

commenters also recommended specific 

training for one-stop operators and onestop staff. 

Department Response: The 

Department agrees with the commenters 

that language clarifying procedures and 

exceptions would be more appropriate 

to the regulation than the language 

referring questions to VETS. 

Consequently, the Department has 

struck the language referring questions 

regarding the applicability of 38 U.S.C. 

4213 to VETS. In its place, the 

Department added language that states 

that a veteran must still meet each 

program’s eligibility criteria to receive 

services under the respective 

employment and training program. This 

same language also appears in part 680 

(Adult and Dislocated Worker Activities 

Under Title I of the WIOA). Changing 

the language in part 683 compliments 

what is provided in the regulations for 

the adult and dislocated worker section 

and ensures that both sections are 

congruent with regard to the Military 

Pay Disregard for Eligibility 

Determination. The added language also 

clarifies that a veteran must meet all 

eligibility criteria to receive services. 

Finally, although the Department 

deleted the language referring questions 

about the applicability of 38 U.S.C. 4213 

to VETS from the text of the regulation, 

the Department encourages interested 

parties to reach out to VETS if they have 

any questions about 38 U.S.C. 4213. 

The Department does not agree with 

the necessity of adding eligibility and 

income procedures to the regulation 

because their detailed and technical 

nature is better suited for guidance 

developed with the Assistant Secretary 

for VETS. The Department will consider 

the request future for training. No 

change to the regulatory text was made 

in response to these comments. 

Section 683.235 May Workforce 

Innovation and Opportunity Act title I 

funds be spent for construction? 

This section is based on the 

requirements in the Uniform Guidance 

at 2 CFR 200.439(b)(3), and states that 

WIOA title I funds must not be spent on 

construction, purchase of facilities or 

buildings, or other capital expenditures 

for improvements to land or buildings 

except with prior approval of the 

Secretary. 

Comments: A few commenters 

requested the Department add language 

to this section to clarify the allowability 

of WIOA funds for construction. 

Department Response: Section 

683.235 is written to allow the Secretary 

to approve the use of title I WIOA funds 

in the circumstances provided for in 

WIOA, including, disaster relief projects 

under WIOA sec. 170(d), YouthBuild 

programs under WIOA sec. 

171(c)(2)(A)(i), grant recipients’ 

responsibilities in meeting obligations 

to provide physical and programmatic 

accessibility, reasonable 

accommodations, and the provision of 

repairs, renovations, alterations, and 

capital improvements of property, as 

well as for other projects that the 

Secretary determines necessary to carry 

out WIOA, as described by under sec. 

189(c) of WIOA. 

The Department intended to provide 

the Secretary with the flexibility 

authorized under WIOA to use funds for 

construction in any situation where it 

might be necessary and has determined 

that it would not be prudent to limit this 

flexibility by imposing any 

requirements or exclusive lists of use of 

funds. No change is made in the 

regulatory text in response to these 

comments. 

Comments: One commenter suggested 

that the Department amend this section 

to impose a requirement that WIOA 

funding only be allowed if the recipient 

confirms that all contractors and 

subcontractors that support a registered 

apprenticeship program meet the onthe-job training contract requirements of 

§ 680.700, and are deemed ‘‘responsible 

contractors’’ under E.O. 13673 and the 

related Federal Acquisition Regulations 

(FAR). 

Department Response: The 

Department will provide additional 

guidance on using funds for 

construction. Because the Department 

concludes that the detailed nature of the 

suggested addition is better suited to 

guidance and technical assistance, no 

change was made to the regulatory text. 

Section 683.240 What are the 

instructions for using real property with 

Federal equity? 

This section provides rules on State 

Employment Security Act (SESA) 

properties, Reed Act-funded properties, 

and JTPA-funded properties. 

Comments: The Department received 

two comments requesting the 

Department to give priority to UI and 

WP when transferring or disposing of 

real property with Federal equity. 

Department Response: The 

Department does not agree with the 

commenters’ suggestion to establish 

priority upon transfer or disposition as 

this would undermine the language in 

sec. 192(a) of WIOA that allows for the 

portion of real property that is 

attributable to the Federal equity to be 

used to carry out UI, WP, or WIOA 

activities. The use of the buildings, 

including the proceeds related to their 

disposition or transfer, is intended to 

maximize available resources and 

provide flexibilities to UI, WP and 

WIOA programs. However, the 

Department recognizes that the 

proposed regulation language did not 

include guidance as to how proceeds 

from the disposition of property with a 

Reed Act equity should be treated. 

Consequently, the Final Rule contains 

language that clarifies that when there is 

a disposition of Reed Act property, that 

Reed Act equity must be returned to the 

State’s account in the Unemployment 

Trust Fund. 

Section 683.245 Are employment 

generating activities, or similar 

activities, allowable under title I of the 

Workforce Innovation and Opportunity 

Act? 

This section implements sec. 181(e) of 

WIOA, which restricts the use of WIOA 

funds for employment generating 

activities except where the activities are 

directly related to training for eligible 

individuals. 

Comments: Several commenters 

requested that the Department define 

‘‘employment generating activities’’ to 

guide relationships with economic 

development partners that also assist 

with business outreach and services. 

Department Response: Section 

683.245 identifies several examples of 

employer outreach and job development 

activities that are considered ‘‘directly 

related to training for eligible 

individuals,’’ including employer 

outreach and job development activities 

and therefore, are not prohibited 

employment generating activities. The 

list is an illustrative, but not an 

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exhaustive list of examples because the 

Department does not want to be overly 

prescriptive, limiting the discretion of 

grant recipients in making decisions 

about what is ‘‘directly related to 

training for eligible individuals’’ in their 

areas. The Department has determined 

that additional definition of 

‘‘employment generating activities’’ is 

not necessary. However, the Department 

will provide future guidance or 

technical assistance on this subject. 

Comments: Additionally, commenters 

also recommended that the Department 

clarify that business services are an 

allowable activity for WDBs and are 

chargeable to the program cost category. 

Department Response: It is unclear as 

to what business services activities the 

commenters are referring. However, the 

Department has determined that WIOA 

and regulations provide sufficient 

guidance about which activities are 

allowable and whether those activities 

qualify as program costs. In addition to 

the guidance found in this section, 

WIOA sec. 107(d)(4) provides that local 

WDBs shall conduct business 

engagement and lead efforts to engage 

with a diverse range of employers. The 

employer engagement activities are 

further defined in § 679.370(e). 

Furthermore, the determination of 

whether an activity is administrative or 

programmatic for purposes of WIOA is 

discussed in § 683.215. Because WIOA 

and regulation already provide 

sufficient clarity, no change was made 

in the regulatory text. 

Section 683.250 What other activities 

are prohibited under title I of the 

Workforce Innovation and Opportunity 

Act? 

This section describes other activities 

that are expressly prohibited in title I of 

WIOA, including foreign travel paid for 

by WIOA formula funds (sec. 181(e) of 

WIOA), payment of wages of incumbent 

workers participating in economic 

development activities (sec. 181(b) of 

WIOA), contracts with persons falsely 

labeling products as made in America 

(sec. 502(c) of WIOA) and others. 

Comments: The Department received 

comments requesting the Department 

clearly define prohibited economic 

development activities in § 683.250. 

Department Response: The language 

in § 683.250 mirrors the language in 

WIOA sec. 181(b)(1) in prohibiting 

WIOA funds from being used for the 

wages of incumbent employees during 

their participation in economic 

development activities provided 

through a statewide workforce 

development system. The Department 

determined that additional clarification, 

because of its technical and detailed 

nature, is not appropriate for the 

regulatory text. However, the 

Department will provide additional 

guidance on this subject. 

No changes were made to the 

regulatory text in response to these 

comments. 

Section 683.260 What prohibitions 

apply to the use of Workforce 

Innovation and Opportunity Act title I 

funds to encourage business relocation? 

This section describes the 

prohibitions on the use of WIOA title I 

funds to encourage business relocation, 

including specific timeframes when 

entities can begin working with such 

businesses. This section also describes 

the States’ obligation to develop 

procedures to implement these rules. 

Comments: The Department received 

a comment recommending that the 

Department add language to 

§ 683.260(b) to indicate that a State’s 

pre-award review criteria must be 

explained in their Unified or Combined 

State Plan, which is available for review 

by all stakeholders. 

Department Response: Section 

683.260(b) requires States to complete a 

pre-award review to verify that WIOA 

funds are not used to encourage or 

induce a business to relocate from 

another area if the relocation results in 

any employee losing his or her job at the 

original location. Section 683.260(b) 

permits States to develop the criteria for 

the pre-review but also requires, in 

§ 683.260(b)(1), that certain elements 

must be included. 

The Department has determined that 

it is not necessary to require that the 

pre-award criteria be explained in the 

State’s unified or combined State plan 

because § 683.260 already requires the 

State to create a standardized procedure. 

The Department will provide additional 

guidance and technical assistance on 

this matter. No change was made to the 

regulatory text. 

Comments: The Department also 

received a comment requesting 

clarification regarding whether a 

company that relocates one of its offices 

to another State is eligible for WIOA 

funds to train workers that are 

relocating, as long as funds are used to 

upgrade skills and not to induce 

relocation or displace workers, or if this 

prohibited under § 683.260. 

Department Response: The 

Department has determined that it is not 

appropriate to address such a detailed 

and fact-specific scenario in regulatory 

text. However, the Department will 

provide additional guidance on this 

concern. No change was made in the 

regulatory text in response to this 

comment. 

Section 683.275 What wage and labor 

standards apply to participants in 

activities under title I of the Workforce 

Innovation and Opportunity Act? 

This section describes the wage and 

labor standards that apply to WIOA title 

I participants, including the 

requirements under the Federal Fair 

Labor Standards Act (FLSA) and State 

and local minimum wage laws. 

Comments: Comments requested that 

the Department define and distinguish 

which types of work-based learning, 

including apprenticeship and preapprenticeship, are subject to the wage 

and labor standards in § 683.275. 

Department Response: Section 

683.275(a) states that it is applicable to 

individuals in the work-based learning 

opportunities who are determined to be 

employed in activities under title I of 

WIOA. The FLSA, as amended, 29 

U.S.C. 201, et seq., applies in 

determining whether participants are 

employees who are covered by the 

FLSA’s minimum wage and overtime 

provisions. The Department plans to 

provide detailed guidance on when 

participants must be considered 

employees protected under the FLSA. 

Consequently, the Department has 

determined that it would not be 

appropriate to contain additional 

clarification on this point in the text of 

the regulation. 

Section 683.275(c) applies to workbased learning and employment under 

title I of WIOA. As described above, 

whether a particular job triggers these 

requirements and protections is a factspecific enquiry. The Department has 

determined it would not be appropriate 

to analyze the application of this 

provision to the two types of jobs 

submitted by the commenter. Such 

analysis is better suited for guidance 

and technical assistance. 

Section 683.275(d) applies to all 

allowances, earnings, and payments to 

individuals participating in programs 

under title I of WIOA. Because the 

application of this provision does not 

depend on the types of jobs involved, 

the Department has determined that this 

provision does not need additional 

clarification. Consequently, for the 

reasons described above, the 

Department adopts the provision as 

proposed. 

The commenter should note that the 

Department previously issued guidance 

on the application of the FLSA to workbased training programs. In addition, 

the Department will provide additional 

guidance on this section. 

No changes were made to the 

regulatory text in response to these 

comments. 

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Section 683.280 What health and 

safety standards apply to the working 

conditions of participants in activities 

under title I of the Workforce Innovation 

and Opportunity Act? 

This section explains what health and 

safety standards and workers 

compensation laws apply to WIOA title 

I participants. 

Comments: The Department received 

a comment requesting a change in the 

regulatory text of § 683.280 to specify 

that the health and safety protections in 

the regulation are also applicable to 

student workers. 

Department Response: Section 

683.280 mirrors the language in WIOA 

sec. 181(b)(4). WIOA and this regulation 

provide that the health and safety 

standards established under Federal and 

State law otherwise applicable to 

working conditions of employees are 

equally applicable to working 

conditions of participants engaged in 

programs and activities under title I of 

WIOA. 

WIOA utilizes the word ‘‘participant’’ 

throughout the statute and specifically 

in sec. 181(b)(4). The term ‘‘participant’’ 

encompasses the student workers 

referred to by the commenter and the 

students are covered by health and 

safety laws to the extent that those laws 

cover students. Because whether 

students are covered by the protections 

at sec. 181(b)(4) and § 683.280 depends 

the applicable Federal and State laws 

and regulations and cannot be 

succinctly summarized, the Department 

has determined to retain the use of 

‘‘participant’’ in this section. No 

changes were made to the regulatory 

text in response to this comment. 

Section 683.285 What are a recipient’s 

obligations to ensure nondiscrimination 

and equal opportunity, and what are a 

recipient’s obligations with respect to 

religious activities? 

This section describes the 

nondiscrimination, equal opportunity, 

and religious activities requirements 

that, as defined in WIAO sec. 188 and 

at 29 CFR part 38, must adhere to when 

using WIOA title I funds. 

Comments: The Department received 

a comment in support for this provision 

as well as two comments requesting the 

Department to provide boilerplate 

language as technical assistance for the 

required provision under § 683.285 

because it is useful to the States. 

Department Response: The 

Department intends to provide 

additional guidance and ongoing 

technical assistance. Additionally, the 

Department is not modifying the nondiscrimination provisions in the section 

because this subject is covered in much 

greater detail in the WIOA sec. 188 

nondiscrimination regulations at 29 CFR 

part 38. Finally, the grant agreements 

issued by the Department, as described 

in § 683.105, describe the terms and 

conditions applicable to the award of 

title I WIOA funds and Wagner–Peyser 

funds, including the non-discrimination 

provisions of § 683.285. No changes 

were made to the regulatory text in 

response to these comments. 

WIOA sec. 188(a)(5) refers to 

immigrants authorized by the Attorney 

General to work in the United States. 

Pursuant to the Homeland Security Act 

of 2002, Pub. L. 107–296, that authority 

has been transferred to the Department 

of Homeland Security. Section 1517 of 

the Homeland Security Act (codified at 

6 U.S.C. 557) provides that reference in 

any other Federal law to any function 

transferred by the Homeland Security 

Act ‘‘and exercised on or after the 

effective date of the Act’’ shall refer to 

the official to whom that function is 

transferred. Consequently, the Final 

Rule contains a reference to the 

Secretary of Homeland Security. 

Section 683.295 Is earning of profit 

allowed under the Workforce 

Innovation and Opportunity Act? 

This section addresses earning profit 

under WIOA. 

Comments: The Department received 

a comment requesting confirmation that 

WIOA allows profit for a one-stop 

operator. 

Department Response: The 

Department has outlined in 

§ 683.295(a)(2) a requirement for grants 

and other Federal financial assistance 

awarded under secs. 121(d), 122(a), and 

134(b) of WIOA, which allows awardees 

of Federal financial assistance, such as 

one-stop operators, service providers, or 

ETPs, to earn profit. The pass through 

entity must follow 2 CFR 200.323 to 

ensure that the entities’ charges are 

reasonable and fair. No changes were 

made to the regulatory text in response 

to this comment. 

3. Subpart C—Reporting Requirements 

683.300 What are the reporting 

requirements for programs funded 

under the Workforce Innovation and 

Opportunity Act? 

Section 683.300 specifies the 

reporting requirements for programs 

funded under WIOA and the deadlines 

for such reports. 

Comments: The Department received 

comments regarding what data 

standards and performance indicators 

the Department should require and how 

to define and assess the data standards 

and performance indicators. 

Department Response: Section 

683.300 does not detail the program 

performance elements that a grant 

recipient should report to the 

Department; these elements are 

discussed in 20 CFR part 677 (see Joint 

WIOA Final Rule). The Department will 

also provide additional guidance on this 

section and 20 CFR part 677. No 

changes were made to the regulatory 

text in response to these comments. 

Comments: The Department received 

several comments on § 683.300 

concerning the amount of data 

collection required under WIOA and the 

value of the data collected. The 

commenters suggested that agencies 

instead share the information they 

already have and also periodically 

review the reported data to ensure its 

value to the program and eliminate any 

unnecessary reporting of data. 

Department Response: The 

Department’s goal is to promote the 

government’s initiative to manage 

information as an asset to increase 

operational efficiencies, reduce costs, 

improve services, support mission 

needs, safeguard personal information, 

and increase public access. The 

Department intends to use data 

collected from the financial, 

performance, and annual reports to 

empower our public workforce system 

while providing transparency and 

accountability to our stakeholders. The 

Department is not seeking to burden the 

public workforce system by the data 

collection. While the Department 

implements its reporting requirements, 

it will work to ensure that the reporting 

is not unnecessarily duplicative while 

still ensuring that the interest described 

above is protected. However, the 

Department has determined that 

additional detail on reporting 

requirement implementation is not 

appropriate for regulation. 

Consequently, the Final Rule adopts the 

provision as proposed. 

Comments: A comment was received 

that requested that the Department 

explicitly clarify that reporting 

requirements may be waived for 

libraries when developing lists of ETPs 

during the first year of WIOA 

implementation. 

Department Response: WIOA sec. 122 

details requirements for identifying 

eligible training providers. This section 

is further addressed in 20 CFR part 680. 

The Department did not receive any 

other comments on this section. The 

Final Rule adopts the provision as 

proposed with a technical amendment 

made to § 683.300(a), because it is 

unnecessary to clarify that the 

Department’s reporting requirements 

would be consistent with governing 

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statutes, and a technical amendment to 

§ 683.300(e)(2) and the addition of 

§ 683.300(h), so as to more clearly 

reflect the requirements in 2 CFR part 

200. 

4. Subpart D—Oversight and Resolution 

of Findings 

Section 683.410 What are the oversight 

roles and responsibilities of recipients 

and subrecipients of Federal financial 

assistance awarded under title I of the 

Workforce Innovation and Opportunity 

Act and the Wagner-Peyser Act? 

This section defines the roles and 

areas in which oversight must be 

conducted by the recipients and 

subrecipients, including ensuring 

compliance with relevant rules and 

developing a monitoring system. 

Comments: The Department received 

several comments in support of this 

section and explicitly in support of the 

Department’s requirements for 

recipients and subrecipients to comply 

with the EEO requirements of WIOA as 

well as the Assistive Technology Act of 

1998. A comment was received 

recommending that the Department be 

notified to work with their State 

Assistive Technology Act Program 

(ATAP) with regard to physical and 

programmatic accessibility issues. 

Department Response: It is unclear 

from the comment what notification to 

the Department the commenter is 

requesting. No changes were made to 

the regulatory text in response to the 

comments regarding ATAP. However, 

the Department will consider State 

ATAPs as potential resources while 

implementing this section. 

Comments: A comment received 

requested clarification on what kind of 

grant monitoring is proposed under 

§ 683.410 and whether recipients and 

subrecipients will have access to clear 

monitoring and oversight standards. 

Department Response: Section 

683.410(a) requires that each recipient 

and subrecipient of title I WIOA funds 

and Wagner-Peyser Act funds conduct 

regular oversight and monitoring of its 

WIOA and Wagner-Peyser Act funded 

programs to ensure compliance with the 

stated requirements of title I of WIOA, 

the Wagner-Peyser Act, the Uniform 

Guidance at 2 CFR part 200, and the 

Department exceptions to the Uniform 

Administrative Requirements at 2 CFR 

part 2900. Section 683.410(b) further 

requires that Governors are responsible 

for developing a State monitoring 

system that meets the requirements set 

forth in § 683.410(b)(2). 

The Department is providing grant 

recipients the flexibility with designing 

the monitoring process and procedures 

to meet the requirements of § 683.410 

and does not want to limit this 

flexibility by imposing a specific 

monitoring process. However, the 

Department will continue to provide 

technical assistance and guidance on 

this subject. 

No changes were made to the 

regulatory text in response to these 

comments. Additionally, the 

Department would like to note that 

although § 683.410(b)(2)(iii) requires 

States to have a monitoring system that 

enables Governors to determine if 

subrecipients and contractors have 

demonstrated substantial compliance 

with Wagner-Peyser Act requirements, 

violations of Wagner-Peyser Act 

requirements will be handled pursuant 

to the authority and processes in the 

Wagner-Peyser Act, as amended, and 

the implementing regulations at 20 CFR 

part 658. 

5. Subpart E—Pay-for-Performance 

Contract Strategies 

Section 683.500 What is a Workforce 

Innovation and Opportunity Act Payfor-Performance contract strategy? 

This section describes the 

components of a WIOA Pay-forPerformance contract strategy and 

describes WIOA Pay-for-Performance 

contract as a specific type of 

performance-based contract. 

Comments: The Department received 

several comments regarding § 683.500. 

Several comments requested 

clarification as to what was required for 

a WIOA Pay-for-Performance contract 

strategy. Some of the comments 

received inquired as to the meaning of 

‘‘independently’’ validating in 

§ 683.500(a)(3) and requested 

clarification and guidance as to the 

Department’s intended definition of 

independent. Additionally, commenters 

questioned the affordability of 

conducting the feasibility study given 

the 10 percent funding limitation. 

Finally, commenters asked the 

Department to allow local areas to use 

existing studies instead of 

commissioning new studies. Many of 

the comments received concerned the 

feasibility study requirements. Some 

comments requested the elimination of 

the feasibility study; some comments 

questioned its affordability; some 

comments requested the Department 

prescribe what is contained in the 

feasibility study, and other comments 

requested that the Department allow 

local areas to use existing studies 

instead of commissioning new studies. 

Department Response: The 

Department decided against prescribing 

a definition of independent validation 

in order to retain flexibility. The WIOA 

Pay-for-Performance contract strategy is 

one of several innovative strategies 

WIOA adopts to place a higher 

emphasis on performance outcomes and 

provider accountability, drive better 

results, and incorporate rigorous 

evaluation and evidence-based practice 

into the delivery of workforce services. 

The WIOA Pay-for-Performance contract 

strategy can benefit local areas, job 

seekers, and business customers when 

used to support interventions that either 

have a high probability of success based 

on prior evidence or that have potential 

as a promising innovation; have 

measurable outcomes supported with 

authoritative data and strong evaluation 

methodologies; and are overseen by 

experienced managers that have 

flexibility to adjust their approach. As 

authorized by WIOA, the Department 

intends to provide local areas with the 

flexibility needed to implement a WIOA 

Pay-for-Performance contract strategy 

that meets the needs and challenges in 

each local area. The Department will 

provide additional guidance on this 

subject to address the scope and 

minimum requirements of independent 

validation. 

WIOA sec. 3 provides that the WIOA 

Pay-for-Performance contract strategy is 

a procurement strategy for funds 

allocated to local areas for the provision 

of adult, dislocated worker, or youth 

training services. WIOA limits the 

amount of local allocations available for 

WIOA Pay-for-Performance contract 

strategies to 10 percent of the local 

area’s allocation available under secs. 

128(b) and 133(b)(2)–(3) of WIOA. 

WIOA sec. 189(g)(2)(D) specifies that 

funds used for WIOA Pay-forPerformance contract strategies shall 

remain available until expended. 

The NPRM defined the WIOA Pay-forPerformance contract strategy as having 

four distinct characteristics, including 

in § 683.500(a)(2) a feasibility study to 

determine whether the proposed 

intervention is suitable for a WIOA Payfor-Performance contract strategy. The 

Department required the feasibility 

study because it determined that, prior 

to beginning a WIOA Pay-forPerformance contract strategy, a local 

area needs to conduct an analysis to 

determine whether a WIOA Pay-forPerformance contract strategy is the 

right approach. Upon reviewing the 

comments, the Department retains its 

conclusion that the feasibility study is 

necessary. Consequently, the regulatory 

text retains the feasibility study 

requirement. 

In analyzing the comments received 

and reviewing the proposed language, 

the Department concluded that the 

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definition of a WIOA Pay-forPerformance contract strategy and the 

requirement of a feasibility study as part 

of the strategy could potentially limit 

the availability of this innovative 

strategy because local areas would not 

have enough funds available under the 

10 percent limit to do both the 

feasibility study and the rest of the 

WIOA Pay-for-Performance contract 

strategy. 

To address this issue, the Department 

modified that language in § 683.500(a) 

and removed the feasibility study 

requirement from the WIOA Pay-forPerformance contract strategy 

definition. However, because the 

Department has determined that a 

feasibility study is necessary, the 

Department added a new paragraph (b) 

in § 683.500 that requires a local area to 

conduct a feasibility study prior to 

implementing a WIOA Pay-forPerformance contract strategy. Because 

the feasibility study is not included in 

the definition of ‘‘WIOA Pay-forPerformance contract strategy’’ in the 

Final Rule, the feasibility study is not 

subject to the 10 percent limitation. 

In addition, the Department decided 

against prescribing what should be 

included in a feasibility study in order 

to retain flexibility. The Department 

intends to provide local areas with 

flexibility authorized under WIOA 

needed to implement a WIOA Pay-forPerformance contract strategy that meets 

the needs and challenges in each local 

area. The Department does not want to 

limit this flexibility by imposing any 

other requirements or exclusive 

definitions for WIOA Pay-forPerformance contract strategies. 

However, the Department will provide 

additional guidance on this subject to 

address the scope and minimum 

requirements of the feasibility study. 

The Department decided against 

prescribing whether local areas can use 

existing studies for the reasons 

described in the previous paragraph. 

Comments: Other commenters 

recommended adding a phrase to 

proposed § 683.500(b) to indicate that a 

WIOA Pay-for-Performance contract 

strategy must include a prohibition 

against a short-term training activity and 

placement into low-wage job strategy for 

harder to serve participants. 

Department Response: The 

Department decided against prescribing 

prohibitions or outcomes for locals who 

employ the use of a WIOA Pay-forPerformance contract strategy in order 

to retain the local areas’ flexibility 

authorized under WIOA. However, the 

Department will provide additional 

guidance on this subject. 

Comments: Commenters also asked 

for clarification on whether NFJP 

providers or WIOA title II providers are 

included in WIOA Pay-for-Performance 

contracting strategy. 

Department Response: WIOA sec. 

3(47) is clear that WIOA Pay-forPerformance contract strategies only 

include strategies for the provision of 

training services under WIOA secs. 

134(c)(3) and 129(c)(2). Neither the 

NFJP program nor title II are located at 

sec. 134(c)(3) or 129(c)(2). Because 

WIOA is clear that NFJP and title II 

providers are not included in the 

definition of a WIOA Pay-forPerformance strategy, the Final Rule 

adopts the provision as proposed. 

However, as described in the NPRM, a 

WIOA Pay-for-Performance contracting 

strategy is only one specific type of a 

performance-based contract strategy. 

Neither WIOA nor the Final Rule is 

meant to foreclose NFJP providers, title 

II providers, or any other providers from 

pursuing performance-based contracts 

or strategies as they are generally 

understood, and they are encouraged to 

do so. The strategies are considered 

WIOA Pay-for-Performance contract 

strategies only if they fit within the 

strict requirements of WIOA sec. 3(47) 

and this subpart. 

No changes were made to the 

regulatory text in response to these 

comments. 

Section 683.510 What is a Workforce 

Innovation and Opportunity Act Payfor-Performance contract? 

This section defines the requirements 

associated with a WIOA Pay-forPerformance contract, which would be 

awarded under a WIOA Pay-forPerformance contract strategy. 

Comments: The Department received 

numerous comments regarding 

§ 683.510 and what is an allowable 

WIOA Pay-for-Performance contract. 

Several comments either equated the 

WIOA Pay-for-Performance contract 

strategies in WIOA to a Pay for Success 

financing strategy (sometimes referred 

to as social impact bonds) or inquired as 

to the allowability of a Pay for Success 

financing model in WIOA, specifically 

the allowability of social impact bonds. 

Other comments recommended that the 

Department specify in greater detail the 

WIOA Pay-for-Performance contract 

requirements and that the Department 

issue requirements for applications. 

Department Response: Pay for 

Success financing models are an 

available WIOA Pay-for-Performance 

contract type under § 683.510 as long as 

the requirements of § 683.500 are met; 

the Department will issue future 

guidance. The Department intends to 

provide local areas with flexibility 

authorized under WIOA needed to 

implement a WIOA Pay-for-Performance 

contract strategy that meets the needs 

and challenges in each local area. The 

Department does not want to limit this 

flexibility by imposing any other 

requirements or exclusive definitions 

for WIOA Pay-for-Performance contracts 

and contract strategies. However, the 

Department will provide additional 

guidance on this subject. Because 

§ 683.510 does not prohibit the use of a 

Pay for Success model and the 

Department wants to maintain 

flexibility, the Department has 

determined that no additions to the 

proposed text are necessary. No changes 

were made to the regulatory text. 

Comments: A few commenters 

requested that the Department eliminate 

the requirement that organizations be 

eligible service providers to qualify for 

WIOA Pay-for-Performance contract 

funding. 

Department Response: WIOA sec. 

3(47) limits the WIOA Pay-forPerformance contractors to those 

organizations that are eligible under 

WIOA secs. 122 or 123. Because this 

requirement is part of WIOA, the 

Department cannot eliminate it. No 

changes to the regulatory text were 

made in response to these comments. 

Comments: One comment requested 

clarification on what providers are 

eligible service providers and whether 

YouthBuild could form a consortium in 

an area to provide the services. 

Department Response: The 

requirements for Eligible Training 

providers are discussed in 20 CFR part 

680. Because another part governs 

eligible training providers, the Final 

Rule adopts the provision as proposed. 

Comments: Another comment sought 

clarification on whether for-profits and 

not-for-profits are treated the same 

under this section. 

Department Response: Section 

683.510(f) provides that local entities 

may enter into WIOA Pay-forPerformance contracts with training 

providers that are eligible under WIOA 

secs. 122 or 123. Because WIOA secs. 

122 and 123 state, and § 683.295 further 

clarifies, that for-profit agencies are 

eligible to be an eligible training 

provider, the Department has 

determined that these provisions do not 

need additional clarification regarding 

the treatment of for-profits and non-forprofits agencies. No changes were made 

in the regulatory text in response to this 

comment. 

Comments: One commenter requested 

clarification on whether the § 683.510(e) 

requirement that the primary indicators 

of performance in sec. 116(b)(2)(A) of 

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WIOA be used for performance 

outcomes means that these primary 

indicators of performance are the only 

indicators that may be utilized. 

Department Response: Section 

583.510(e) mirrors the language the 

WIOA sec. 3(47) which states that the 

performance elements that must be 

included in any WIOA Pay-forPerformance contract are the primary 

indicators of performance described in 

WIOA sec. 116(b)(2)(A). As WIOA 

requires the elements at sec. 

116(b)(2)(A), they are mandatory for all 

WIOA Pay-for-Performance contracts. 

The Department will provide additional 

guidance on whether additional 

performance outcomes can be used in 

determining the amount to be paid a 

service provider under a WIOA Pay-forPerformance contract. 

Comments: Another comment stated 

that WIOA Pay-for-Performance 

contracts should give priority to 

innovative interventions that aim to 

help hard-to-serve participant 

populations find jobs and careers that 

lead to family-sustaining wages. 

Department Response: The 

Department intends to provide local 

areas with flexibility authorized under 

WIOA that is necessary for the 

implementation of a WIOA Pay-forPerformance contract strategy that meets 

the needs and challenges in each local 

area. For that reason, the Department 

has decided against adding the 

proposed priority to the regulation. The 

Department does not want to limit this 

flexibility by imposing any other 

requirements or exclusive definitions 

for WIOA Pay-for-Performance 

contracts. However, the Department will 

provide additional guidance on this 

subject. 

Comments: A commenter 

recommended replacing ‘‘must’’ in 

§ 683.510(d) with ‘‘may only’’ because 

the use of WIOA Pay-for-Performance 

contracts for adult training services or 

youth activities is optional under 

WIOA. 

Department Response: The 

Department is maintaining the language 

as proposed because although the WIOA 

Pay-for-Performance contracts strategy 

is optional under WIOA, if it is 

implemented, it must be used to provide 

the services as described in 

§ 683.510(d). 

Comments: Commenters urged the 

Department to clarify the use of the 

bonus payments as described in 

§ 683.510(h). 

Department Response: The 

Department has determined that the 

inclusion of incentive payments in this 

provision confused the Department’s 

description of bonuses. Consequently, 

the Department has removed references 

to incentive payments from this 

provision. Because the Department has 

determined that any additional 

clarification would result in an amount 

of detail not appropriate to this 

regulation, the Final Rule adopts the 

remainder of paragraph (h) as proposed. 

Comments: Another comment 

suggested that requiring independent 

validations from an independent 

evaluator without providing adequate 

funding would force local areas to cut 

services. This commenter recommended 

that the Department contract for 

nationwide local area evaluation and 

rotate areas every year that are 

evaluated. 

Department Response: As discussed 

in the preamble to § 683.500, the 

parameters of independent validation 

will be addressed in future guidance. 

However, the local areas will have 

flexibility in entering into strategies to 

validate independently the outcomes 

achieved under the WIOA Pay-forPerformance contracts, which should 

allow local areas to manage the cost of 

this external validation while 

maximizing the benefits Pay-forPerformance can yield. Independent 

validation must meet the statutory 

requirement of ensuring the 

performance outcomes were achieved, 

thus ensuring the integrity of the 

payments. No changes were made to the 

regulatory text in response to this 

comment. 

Section 683.520 What funds can be 

used for Workforce Innovation and 

Opportunity Act Pay-for-Performance 

contract strategies? 

This section restates the WIOA 

requirements that funds allocated under 

secs. 133(b)(2) and (3) of WIOA can be 

used for WIOA Pay-for-Performance 

contract strategies providing adult and 

dislocated worker training, and funds 

allocated under sec. 128(b) of WIOA can 

be used for WIOA Pay-for-Performance 

contract strategies providing youth 

activities. 

Comments: The Department received 

several comments requesting 

clarification regarding § 683.520. 

One commenter requested 

clarification concerning the WIOA Payfor-Performance contract strategy limits 

and performance-based contracting. 

This same commenter requested 

clarification of on what expenses are 

included in the 10 percent limit for 

WIOA Pay-for-Performance contract 

strategies. 

Department Response: Ten percent of 

the local adult, dislocated, and youth 

funds allocated under WIOA secs. 

128(b) and 133(b)(2)–(3) are available for 

WIOA Pay-for-Performance contract 

strategies, as described in § 683.520. 

However, these caps only are applicable 

to WIOA Pay-for-Performance contract 

strategies, as discussed in this subpart, 

and do not impact a local area utilizing 

performance-based contracting. Under 

WIA, many Workforce Investment 

Boards (Workforce Development Boards 

(WDBs) under WIOA) utilized elements 

of performance-based contracts with 

training providers. These contracts 

incorporated performance outcomes that 

contractors were required to meet to 

obtain payment. However, these 

contracts did not contain required 

elements of a WIOA Pay-forPerformance contract strategy 

articulated in this subpart. 

Performance-based contracts are still 

an available option for local areas and 

there is no limit on the use of funds for 

typical performance-based contracts, as 

defined in the Federal Acquisition 

Regulations (FAR). Contracts that are 

not executed under the WIOA Pay-ForPerformance contracting authority may 

continue to include performance 

incentives, either positive or negative or 

both, in compliance with the Federal 

Acquisition Regulations. However, 

funds used for performance-based 

contracts that do not qualify as Pay-ForPerformance contracts do not remain 

available until expended under WIOA 

sec. 189(g)(2)(D). The Department does 

encourage local areas to refocus these 

traditional performance-based contracts 

to place an emphasis on the contractor 

achieving outcomes like participants 

obtaining and retaining good jobs, rather 

than outputs like the number of people 

served. 

The Department has determined 

additional clarification on what is 

included in the 10 percent limit is not 

necessary because the regulation already 

contains this information. The 10 

percent limit applies to WIOA Pay-forPerformance contract strategies, a term 

that is defined in § 683.500(a). Because 

the regulation already describes what 

expenses are included in the 10 percent 

limit, the Final Rule adopts the 

provision as proposed. 

Comments: Another commenter 

requested clarification as to whether 

Individual Training Accounts (ITA) are 

viewed as typical performance-based 

contracts and, thus, there is no limit on 

use of funds for them under § 683.520. 

Department Response: ITAs are 

defined in § 680.300 and are payment 

agreements established on behalf of an 

individual participant with a training 

provider for the provision of training 

services. ITAs are not contracts entered 

into by a local area for the provision of 

services to multiple people for the 

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provision of all of the performance 

outcomes in sec. 116(b)(2)(A) of WIOA; 

therefore they do not meet the 

requirements of this subpart. 

Comments: A commenter requested 

clarification on whether the 10 percent 

limitation in § 683.520 references 

allotment of funds at the local level. 

Department Response: The Final Rule 

makes changes to § 683.520(b) to replace 

the word ‘‘expended’’ with ‘‘reserved 

and used,’’ to be more consistent with 

WIOA secs. 129(c)(1)(D) and 

134(d)(1)(A)(iii). Section 683.520(b) 

provides that no more than 10 percent 

of the total local adult and dislocated 

worker allocations can be reserved and 

used on the implementation of WIOA 

Pay-for-Performance contract strategies 

for adult training services described in 

sec. 134(c)(3) of WIOA. Section 

683.520(b) further provides that no more 

than 10 percent of the local youth 

allocation can be reserved and used on 

the implementation of WIOA Pay-forPerformance contract strategies for 

youth training services and other 

activities described in sec. 129(c)(2) of 

WIOA. Sections 129(c)(1)(D) and 

134(d)(1)(A)(iii) of WIOA make clear 

that this limitation applies to funds 

allocated to the local areas. Therefore, 

the regulation as proposed is clear that 

the 10 percent limits apply to 

allocations at the local level. The Final 

Rule adopts the remainder of 

§ 683.520(b) as proposed, with technical 

corrections to better align it with secs. 

129(c)(1)(D) and 134(d)(1)(A)(iii) of 

WIOA. The Department will issue 

guidance to explain these new practices 

in § 683.520. 

Section 683.530 How long are funds 

used for Workforce Innovation and 

Opportunity Act Pay-for-Performance 

contract strategies available? 

This section discusses how long funds 

used for WIOA Pay-for-Performance 

contract strategies are available. 

Comments: The Department received 

several comments requesting that the 

Department clarify the length of time 

funds are available for Pay-forPerformance contract strategies. 

Department Response: WIOA sec. 

189(g)(2)(D) specifies that funds used for 

WIOA Pay-for-Performance contract 

strategies are available until expended. 

This is meant to allow local areas to 

structure contracts that include timeintensive service delivery strategies 

and/or to structure payments based on 

outcomes that may take longer to 

achieve, measure, and validate than the 

typical 2-year funding availability of 

local area funds. Funds that are 

obligated but not expended due to a 

contractor not achieving the levels of 

performance specified in a WIOA Payfor-Performance contract may be 

reallocated for further activities related 

to WIOA Pay-for-Performance contract 

strategies only. The Department will 

issue guidance to explain these new 

practices. WIOA and regulation 

sufficiently describe the length of time 

funds are available for WIOA Pay-forPerformance contract strategies. No 

changes were made to the regulatory 

text in response to these comments. 

Section 683.540 What is the State’s 

role in assisting local areas in using 

Workforce Innovation and Opportunity 

Act Pay-for-Performance contract 

strategies? 

This section describes both allowable 

and required State activities related to 

WIOA Pay-for-Performance contract 

strategies. 

Comments: Commenters requested 

clarification if WIOA Pay-forPerformance contracts would need to be 

reported under a new line item on the 

Summary of Expenditures Report, or if 

this is tracked during the procurement 

process. 

Department Response: This 

information is being issued under 

separate Paperwork Reduction Act ICRs. 

Additionally, the Department expects to 

put performance and implementation 

requirements in place in the future and 

will issue guidance to explain these new 

practices. Because the Department is 

still analyzing how to implement the 

reporting requirements, no changes 

were made to the regulatory text. 

Comments: Another commenter urged 

the Department to align the regulations 

at § 683.540 with WIOA and 

Congressional intent in order to make 

clear that the Governor’s statewide 

reserve is an acceptable funding source 

for Pay-for-Performance core endpayments—which the commenter 

defines as the success payments at the 

end of a Pay-for-Success contract. 

Department Response: This comment 

raises two potential issues: (1) the use 

of Governor’s Reserve funds to pay for 

State performance-based contract 

strategies that do not fit within the strict 

requirements of WIOA ‘‘Pay-forPerformance contract strategies’’ as 

defined in WIOA sec. 3(47) and this 

subpart and (2) the use of Governor’s 

Reserve funds to support WIOA Pay-forPerformance contract strategies. 

This part of the regulation does not 

limit the ability of the State to use the 

statewide reserve funds to carry out 

various kinds of performance-based 

contracts, as defined in the Federal 

Acquisition Regulations (FAR). Rather, 

this part of the regulation addresses how 

Governor’s reserve funds may be used to 

support WIOA Pay-for-Performance 

contract strategies, a term defined in 

sec. 3(47) of WIOA and § 683.500. State 

and local funds may be used to support 

performance-based contracting, 

including projects that involve ‘‘coreend payments’’ so long as these funds 

are used consistently with any 

restrictions and requirements that might 

govern those funding sources. However, 

grantees should note that unlike the 10 

percent of local funds identified in 

WIOA secs. 129(c)(1)(D) and 

134(d)(1)(A)(iii) as being available for 

WIOA Pay-for-Performance contract 

strategies, funds used for other types of 

performance-based contracting do not 

have the potential extended period of 

availability identified in WIOA sec. 

189(g)(2)(D) as applying to the 10 

percent of funds described in WIOA 

secs. 129(c)(1)(D) and 134(d)(1)(A)(iii). 

In response to the issue of the use of 

Governor’s Reserve funds to support 

WIOA Pay-for-Performance contract 

strategies, the Department has added a 

paragraph (a)(3) to clarify that the items 

listed in § 683.540(a) are not an 

exhaustive list of ways in which 

Governor’s Reserve funds can be used to 

support WIOA Pay-for-Performance 

contract strategies. As the addition 

explains, Governor’s Reserve funds can 

be used for other activities supporting 

WIOA Pay-for-Performance contract 

strategies if those uses otherwise 

comply with limitations that govern the 

use of those funds. 

For example, as provided in 

§ 683.540(a), Governors may provide 

technical assistance to local areas, 

including assistance with structuring 

WIOA Pay-for-Performance contract 

strategies, performance data collection, 

meeting performance data entry 

requirements, and identifying levels of 

performance. This technical assistance 

can help local areas move forward in 

using this contract strategy. 

Additionally, the State may either 

conduct evaluations of such strategies 

and/or provide technical assistance to 

locals regarding the importance of 

evaluation of WIOA Pay-forPerformance contract strategies. The 

State and local areas may conduct their 

own evaluations of the WIOA Pay-forPerformance contracts, or procure an 

independent evaluator. 

Governor’s Reserve funds used to 

support Pay-for-Performance contract 

strategies, like Governor’s Reserve funds 

used for other types of performancebased contracting, do not have the 

potential extended period of availability 

identified in WIOA sec. 189(g)(2)(D). 

The Department will issue additional 

guidance on how these funds may be 

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Performance contract strategies, 

including utilizing the Governor’s 

Reserve for ‘‘core-end payments,’’ in 

compliance with the law. No other 

changes were made to the regulatory 

text in response to these comments. 

6. Subpart F—Grievance Procedures, 

Complaints, and State Appeals 

Processes 

Section 683.600 What local area, State, 

and direct recipient grievance 

procedures must be established? 

This section requires local areas, 

States, outlying areas, and direct grant 

recipients of WIOA title I funds to 

establish and maintain a procedure for 

grievances and complaints, including 

appeals as appropriate, and describes 

what the procedure must include, as 

required by WIOA sec. 181(c)(1). 

Comments: The Department received 

a comment in support of the regulation 

as proposed and another comment 

requesting clarification whether Local 

WDBs or CEOs are considered ‘‘other 

interested parties affected’’ by the 

recipient’s WIOA programs under 

§ 683.600. 

Department Response: Local WDBs 

and CEOs are among the parties that 

qualify as ‘‘other interested parties.’’ 

The Department has determined that no 

additional changes to the regulatory text 

are necessary to clarify that the broad 

term ‘‘other interested parties’’ includes 

Local WDBs and CEOs. No changes 

were made to the regulatory text in 

response to this comment. 

7. Subpart G—Sanctions, Corrective 

Actions, and Waiver of Liability 

Section 683.700 When can the 

Secretary impose sanctions and 

corrective actions on recipients and 

subrecipients of title I Workforce 

Innovation and Opportunity Act funds? 

This section describes the procedures 

and circumstances under which the 

Department will impose sanctions or 

take corrective actions, as described in 

WIOA sec. 184(b) and (e), against States, 

local areas, and grant recipients and 

subrecipients. 

Comments: The Department received 

several comments on § 683.700 that 

cited a reference to the ‘‘amount that 

would be reserved by the Governor’’ and 

stated that this is currently the 

Governor’s 5 percent set-aside, then 

asked for clarification of what portion of 

funds are subject to the 5 percent 

reduction and if this amount is affected 

by failure to meet performance 

standards under Vocational 

Rehabilitation. The commenters also 

requested clarification as to which 

programs the 5 percent reduction 

affected. 

Department Response: Section 

683.700 clarifies that the procedures 

described at 20 CFR part 677 will be 

used to impose a sanction or corrective 

action for a violation of WIOA sec. 116 

(see Joint WIOA Final Rule). The cited 

language in the comment is not in 

§ 683.700 and appears to reference 

sanctions for a violation of WIOA sec. 

116 and the procedures established in 

20 CFR part 677. The preamble to 20 

CFR part 677 addresses issues 

concerning performance and any 

applicable sanctions related to WIOA 

sec. 116. Because these comments do 

not appear to relate to this section, no 

changes were made to the regulatory 

text in response to these comments. 

Section 683.710 Who is responsible for 

funds provided under title I and the 

Wagner-Peyser Act? 

This section identifies the recipient as 

the responsible party for title I and 

Wagner-Peyser Act funds. 

Comments: The Department received 

a comment requesting clarification as to 

§ 683.710’s application to planning 

regions. Specifically, the commenter 

requested clarification as to what 

protections exist if one service area in 

a region has a corrective action plan in 

place. 

Department Response: Section 

683.710(a) provides that the recipient of 

funds is responsible for all funds under 

its grant award. Section 683.710(b) 

further provides that where a planning 

region includes two separate units of 

local government, the chief elected 

official (CEO) of each unit of local 

government is the responsible party and 

that the individual jurisdictional 

liability must be established in a written 

agreement between the CEOs. The 

regulation as proposed clearly states 

that the potential liability of any unit of 

general local government in a planning 

region is dependent on what the CEOs 

agree to in the written agreement 

required under § 683.710(b)(2). No 

changes were made to the regulatory 

text in response to these comments. 

Section 683.720 What actions are 

required to address the failure of a local 

area to comply with the applicable 

uniform administrative provisions? 

This section requires the Governor to 

take corrective action and impose 

sanctions on a local area if it fails to 

comply with the requirements described 

in this section. 

Comments: The Department received 

a comment requesting a change to 

§ 683.720(a)(2) to add language that 

prior to imposing sanctions, the 

Governor should find a substantial 

violation and that the local area has 

failed to take corrective action. The 

commenter suggested that the additional 

language would align to § 683.720(a)(2) 

with WIOA sec. 184(b)(1). 

Department Response: The 

Department analyzed the comment as 

well as all of the language in WIOA sec. 

184 and determined that § 683.720(a)(2) 

is consistent with WIOA sec. 184. WIOA 

sec. 184(a)(5) provides that if a Governor 

determines that a local area is not in 

compliance with the uniform 

administrative requirements, the 

Governor must require corrective action 

to secure prompt compliance with the 

requirements and impose the sanctions 

found at WIOA sec. 184(b). WIOA sec. 

184(a)(5) requires corrective action 

regardless of whether the violation of 

the Uniform Administrative 

Requirements is substantial. In contrast, 

WIOA sec. 184(b) only requires action 

by the Governor for violations of title I 

of WIOA if those violations are 

substantial. WIOA clearly requires 

corrective action for violations of the 

Uniform Administrative Requirements 

even if those violations are not 

substantial. No changes were made to 

the regulatory text in response to this 

comment. 

Comments: The Department received 

a comment requesting a change in 

§ 683.720(c)(1) to add language stating 

that if the Secretary finds that a 

Governor has failed to meet the 

requirements in § 683.720(c)(1), then the 

Secretary must take the action required 

in § 683.700(b) consistent with 

procedures established in § 683.440. 

Department Response: The 

Department determined that adding the 

language in § 683.720(c)(1) is not 

necessary as § 683.700 adequately 

outlines the necessary actions the 

Secretary should take if a Governor fails 

to take actions against a local area and 

includes the requirement that the Grant 

Officer use the procedures outlined in 

§ 683.440 (except in certain 

circumstances not applicable to 

violations of WIOA sec. 184(a)). No 

changes were made to the regulatory 

text in response to this comment. 

Section 683.730 When can the 

Secretary waive the imposition of 

sanctions? 

This section permits a recipient to 

request a waiver of liability, and 

describes the factors the Grant Officer 

will consider when determining 

whether to grant the request. 

Comments: The Department received 

comments regarding § 683.730. The 

comments requested the Department fix 

a clerical error in § 683.730(b)(1) by 

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removing the word ‘‘is’’ after the word 

‘‘waiver’’ to better clarify the meaning of 

the provision. 

Department Response: The 

Department agrees about the need to 

make a non-substantive textual edit to 

§ 683.730(b)(1) and has made the 

suggested change. 

The Department received no 

comments on the remaining provisions 

in § 683.730, and has adopted each as 

proposed. 

H. Part 684—Indian and Native 

American Programs Under Title I of the 

Workforce Innovation and Opportunity 

Act 

1. Introduction 

This part of the Final Rule governs the 

Indian and Native American Programs 

authorized under sec. 166 of WIOA. 

This Final Rule section-by-section 

discussion details the Department’s 

responses to public comments on the 

proposed part 684 regulations. The 

analysis that follows provides the 

Department’s response to public 

comments received on proposed part 

684 regulations. If a section is not 

addressed below, it is because the 

public comments submitted did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

of the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number on 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

In this part, one conforming edit was 

made throughout to replace the term, 

‘‘performance measures’’ with the term 

‘‘performance indicators.’’ 

2. Subpart A—Purposes and Policies 

Section 684.110 How must Indian and 

Native American programs be 

administered? 

Comments: Multiple commenters 

recommended that § 684.110 include 

language that would require the 

Department to utilize staff with a 

particular competence in Federal 

policies that have tribal implications 

and address the government-togovernment relationship between the 

United States and Indian tribes. 

Department Response: The 

Department agrees with the commenter 

that it is in the best interest of the INA 

program to utilize employees that have 

a particular competence in INA 

employment and training programs. The 

Department makes every effort to ensure 

staff are fully competent in the relevant 

field to administer all of the 

Department’s programs, including the 

INA program authorized by sec. 166 of 

WIOA. As part of this effort, the 

Department actively recruits 

experienced and knowledgeable staff, 

including through recruitment of 

individuals eligible for Indian hiring 

preference for positions within the 

Division of Indian and Native American 

Programs. This effort also targets those 

who have experience in working with 

Indian tribes and communities in the 

development and administration of INA 

employment and training programs. 

The Department seeks to hire 

competent individuals for all of its 

programs and has determined that it is 

not appropriate to include a competency 

requirement in regulation for just the 

INA program. No changes to the 

regulatory text were made in response to 

these comments. 

Section 684.120 What obligation does 

the Department have to consult with the 

Indian and Native American program 

grantee community in developing rules, 

regulations, and standards of 

accountability for Indian and Native 

American programs? 

Comments: A commenter expressed 

concern about whether the WIOA 

primary indicators of performance had 

been developed with input from the 

INA communities and the Native 

American Employment and Training 

Council (NAETC) and whether the new 

WIOA indicators removed the 

requirement of consultation. This 

commenter further stated that the 

NAETC has been working to develop 

realistic performance goals and 

suggested that INA programs should not 

be evaluated on national standards that 

cannot be attained in Native 

communities. 

Department Response: Per secs. 

166(h) and 166(i)(2) of WIOA and 

§§ 684.120, 684.460, 684.620, and 

684.940, the Department is required to 

consult with NAETC and INA 

communities. The Department 

conducted town hall meetings, tribal 

consultations, and listening sessions 

with the NAETC and INA communities 

and will continue to ensure that INA 

programs and the NAETC be consulted. 

No changes to the regulatory text were 

made in response to this comment. 

Comments: The comment also 

references the requirement that INA 

program grantees report on the primary 

indicators of performance described in 

sec. 116(b)(2)(A) of WIOA. 

Department Response: As described 

in sec. 116(b)(2)(A) of WIOA, the 

performance indicators are mandated by 

WIOA. The Department does not have 

the authority to change the statutorily 

required performance indicators in 

WIOA. However, it fully intends to 

continue meaningful discussions and 

consultation with the NAETC as well as 

with INA program grantees and other 

stakeholders in the implementation of 

the indicators, including the 

establishment of targets and levels of 

performance for each indicator as well 

as the potential for waivers. 

Section 684.130 What definitions 

apply to terms used in this part? 

Comments: Regarding the ‘‘highpoverty area’’ definition’s reference to 

the American Community Survey (ACS) 

5-year data, one commenter said that 

this is misstated because the 

Department has not initiated using the 

ACS 5-year data as it has not replaced 

the Census 2000 tab with more recent 

required data. 

Another commenter stated that ACS 

raises questions about the reliability of 

data for the Indian population, asserting 

that State Data Centers and Census 

Information Centers nationwide express 

concerns for the high margin of error in 

small populations and small geographic 

areas. Stating that changes were made in 

2011 to improve the data and that the 

full effect of these improvements will 

not be known until 2017, this 

commenter urged the Department to 

allow tribes to use their own census 

statistics in the interim until reliable 

data are available. 

Multiple commenters also proposed a 

different definition of ‘‘high-poverty 

area’’ that uses specific terms as defined 

by the U.S. Census Bureau: ‘‘a Census 

tract, a set of contiguous Census tracts, 

an American Indian Reservation, 

Oklahoma Tribal Statistical Area (as 

defined by the US Census Bureau), 

Alaska Native Village or Alaska Native 

Regional Corporation Area, Native 

Hawaiian Homeland Area or country.’’ 

In addition, these commenters 

recommended that in the Native 

American supplemental youth services 

program, the definition of ‘‘high-poverty 

area’’ should relate specifically to 

poverty rates for the Native American 

population as that is the target 

population for this program. 

Department Response: As of the date 

of these Final Rules, the Department is 

using special tabulations from the 

Census Bureau for the INA funding 

formulas described at §§ 684.270(b) and 

684.440(a). As stated by the commenter, 

these special tabulations are based on 

2000 decennial census data and have 

not been updated with ACS 5-year data; 

however, the special tabulations for the 

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formula are a different calculation than 

the one for determining high-poverty. 

The calculation for determining highpoverty can be obtained by INA program 

grantees using ACS 5-year data from the 

Census Bureau’s Web site. 

Comments: A commenter raised 

concerns regarding the use of ACS 5- 

year data in determining the poverty 

rate for a given census tract. 

Department Response: The 

Department recognizes there will be 

margins of error inherent to the ACS 5- 

year data and that the margin of error is 

likely to be greater for census tracts with 

smaller sub-populations, such as Native 

Americans living in rural and remote 

reservation areas. The ACS 5-year data 

are administered by the U.S. Census 

Bureau and is subject to a uniform 

methodology for collecting population 

and poverty data for all census tracts 

throughout the United States. 

Conversely, allowing tribes to use their 

own census statistics does not provide 

for such uniformity, as the method that 

one tribe uses to count individuals 

could be different than how another 

tribe counts individuals. Because the 

methodology for counting individuals 

must be the same across all of the 

United States to ensure fairness, and 

because the U.S. Census Bureau is the 

only source that can provide such 

uniformity, the Final Rule continues to 

reference ACS 5-year data. 

Regarding the remainder of the 

definition of ‘‘high-poverty area,’’ the 

Department agrees with the commenter 

and has adopted more precise U.S. 

Census Bureau language. The 

Department also has added language 

that permits the Secretary to identify 

other areas that an applicant can use to 

calculate the poverty rate, which allows 

flexibility in case the areas change for 

which ACS5-Year data are available. 

The Department also agrees that INA 

program grantees should be able to look 

to the poverty rate of INA individuals 

when determining if an area is ‘‘highpoverty.’’ The Department recognizes 

that it is possible for the overall poverty 

rate in a census tract to be below the 25 

percent poverty threshold for the 

general population while the poverty 

rate among the INA sub-population in 

that same census tract is greater than 25 

percent. Consequently, the Department 

added language to the definition of 

high-poverty area permitting INA 

program grantees to claim ‘‘highpoverty’’ status for a particular area if 

the poverty rate of the INA population 

is at least 25 percent; however, the 

Department has retained language that 

allows an area to be considered highpoverty where 25 percent or more of the 

general population is in poverty. The 

Final Rule retains this language in order 

to allow INA program grantees the 

flexibility of selecting the methodology 

that is more advantageous for its 

participants. Therefore, grantees may 

calculate the poverty rate using the 

following two methodologies: (1) The 

number of low-income individuals in a 

census tract divided by the total number 

of individuals in the same census tract; 

or (2) the number of low-income INA 

individuals in a census tract divided by 

the total number INA individuals in the 

same census tract. 

While no comments were received on 

this section about the 30 percent 

threshold used in determining high 

poverty, the Department received many 

comments about the 30 percent 

threshold in a similar section of the 

regulation (§ 681.260). As a result of the 

numerous comments on § 681.260 and 

the analysis of the comments, the 

Department determined that a poverty 

rate of at least 30 percent was too high, 

and the Final Rule requires a poverty 

rate of at least 25 percent. Consequently, 

the Department has changed the 

percentage requirement for this section 

to be consistent with § 681.260. 

The Department also made clarifying 

edits to § 684.130 to the meaning of and 

Indian-Controlled Organization. 

3. Subpart B—Service Delivery Systems 

Applicable to Section 166 Programs 

Section 684.200 What are the 

requirements to apply for a Workforce 

Innovation and Opportunity Act grant? 

Comments: A commenter requested 

that the Department eliminate or lower 

the $100,000 threshold in proposed 

§ 684.200(a)(2). This commenter stated 

that the proposed threshold would 

eliminate 36 small, long-time grantees 

and would leave many rural people 

unserved on their reservations. The 

commenter also questioned the 

reasoning behind allowing tribes 

participating in the consolidation 

program under Public Law 102–447 to 

receive funding under sec. 166 for less 

than $100,000 but greater than $20,000 

but not afford a similar exception for 

INA program grantees that are not 

participating in Public Law 102–447 but 

receive funds from multiple sources. 

Department Response: The 

Department has determined that grants 

of less than $100,000 are not sufficient 

to operate an employment and training 

grant effectively. The Department has 

made an exception for certain 

incumbent grantees whose funding was 

less than $100,000, because the 

Department recognizes that many of 

these entities are well-established in the 

community and have been operating an 

employment and training program for 

many years. Because incumbent 

grantees can continue to operate grants 

even if those grants are for less than 

$100,000, the Department has 

determined that implementation of this 

provision as proposed would not 

eliminate the 36 incumbent grantees to 

which the commenter refers. 

As for allowing tribes that participate 

in the Public Law 102–477 program to 

have a lower funding threshold than 

grants administered through the 

Department, the Department reached 

this decision because Public Law 102– 

477 allows for Federal employment and 

training related funds to be consolidated 

into one grant. This consolidation 

results in administrative savings that 

make smaller grant amounts 

administratively manageable. Therefore, 

while the WIOA portion of the 

consolidated grant can be as low as 

$20,000, all Federal resources combined 

under the plan must total at least 

$100,000. Because the Department has 

determined that § 684.200(a)(2) would 

not eliminate the 36 incumbent grantees 

and because tribes participating in 

Public Law 102–477 also have the same 

$100,000 Federal funding threshold 

under a consolidated grant, no changes 

have been made to regulatory text 

except for re-numbering and nonsubstantive edits to paragraphs (c), (d), 

and (g) for clarity. 

Section 684.220 What is the process 

for applying for a Workforce Innovation 

and Opportunity Act grant? 

Comments: As part of a Council 

resolution submitted as a public 

comment, the NAETC wrote ‘‘the 

NAETC agrees and recommends that 4 

year eligibility of American Indian, 

Alaska Native and Native Hawaiian 

grantees may be designated for such 

periods, except as the Secretary may 

choose to waive competition for select 

grantees who have performed 

satisfactorily.’’ 

Department Response: The NAETC’s 

resolution suggests that the Secretary 

may choose to waive competition for 

select INA program grantees that have 

performed satisfactorily. Although that 

authority existed under sec. 166(c)(2) of 

WIA, WIOA removed that provision. 

Accordingly, sec. 166(c) requires a grant 

competition to be held every 4 years for 

all grantee service areas, and § 684.220 

is consistent with sec. 166(c) of WIOA. 

No changes to the regulatory text were 

made in response to this comment. 

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4. Subpart C—Services to Customers 

Section 684.310 What are Indian and 

Native American program grantee 

allowable activities? 

Comments: A commenter indicated 

that the allowable activities reference to 

20 CFR 678.430 could not be found. 

Department Response: The 

Department has determined that the 

reference to 20 CFR 678.430 was correct. 

Proposed regulations for WIOA were 

issued in two separate NPRMs in the 

Federal Register. One NPRM includes 

proposed rules for Department of Labor 

programs only; this NPRM included 

regulations for the INA program. The 

other NPRM provides proposed joint 

rules for the Department of Education 

and the Department of Labor. Language 

referenced at 20 CFR 678.430 was 

published in the Joint WIOA NPRM (80 

FR 20574, Apr. 16, 2015). No changes to 

the regulatory text were made in 

response to this comment. 

Section 684.350 What will the 

Department do to strengthen the 

capacity of Indian and Native American 

program grantees to deliver effective 

services? 

Comments: A commenter requested 

that the Department expand on the 

language that the Department will 

provide technical assistance and 

training (TAT) to ‘‘assist INA program 

grantees to improve program 

performance and improve the quality of 

services to the target population(s), as 

resources permit.’’ Specifically, this 

commenter asked for clarification 

regarding available resources to provide 

such TAT and asked how the ‘‘quality 

of services’’ would be defined— 

specifically and culturally appropriate— 

within Indian country. 

Department Response: The 

Department has decided to retain the 

regulatory text as proposed to preserve 

flexibility if additional resources 

become available. The Department notes 

that the regulatory text identifies two 

resources that can be used for TAT: (1) 

Funds reserved under § 684.270(e) and 

(2) unawarded funds under § 684.260. 

Comments: The commenter also asked 

about the definition of ‘‘quality of 

services.’’ 

Department Response: Quality 

services can take many forms such as 

high quality career and guidance 

counseling, helping individuals with job 

search and job placement assistance, 

mentoring, financial support for quality 

training and education, and providing 

the necessary supportive services to 

help individuals overcome barriers, etc. 

The Department notes that grantees are 

required to describe the quality of 

services that will meet their customers’ 

needs in their 4-year strategic plan and 

provides guidance on the content of that 

plan. The Department then monitors 

grantees to ensure they are providing 

the quality services reflected in their 

plan, provides rigorous technical 

assistance to improve quality in the 

course of these reviews and ongoing, 

and disseminates best practices that 

exemplify quality services. 

5. Subpart D—Supplemental Youth 

Services 

Section 684.410 What entities are 

eligible to receive supplemental youth 

services funding? 

Comments: Multiple commenters 

opposed the exclusion of Federally 

recognized tribes that do not have a land 

base, commenting that this limitation 

fails to recognize the unique history of 

California Indians and would adversely 

impact the Federally recognized tribal 

communities that do not yet have land 

in trust but have been eligible for 

funding and have received services 

under prior workforce legislation. 

Explaining some of the land history of 

California tribes, a commenter suggested 

that Federally recognized tribes without 

a land base in California should not be 

prevented from receiving funding or 

offering supplemental youth services to 

their members and asserted that the 

exclusion of the California tribal 

communities within the service area 

would have discriminatory effects on 

Federally recognized tribes without a 

land base in California. 

Department Response: Upon review 

of the comments, the Department has 

included new language similar to the 

regulatory language that was in effect 

under WIA. The Department notes that, 

currently, recipients of youth funding 

are limited to entities with a land base 

per the formula that The Department 

has established with the input of the 

NAETC pursuant to the requirements of 

§ 684.440. The youth funding formula is 

based on demographic data from the 

U.S. Census Bureau using the 

geographic boundaries of American 

Indian reservations, Oklahoma Tribal 

Statistical Areas (OTSAs), Alaska Native 

Village Statistical Areas (ANVSAs), 

Alaska Native Regional Corporations 

(ANRCs), and the State of Hawaii. 

During the conversion process from the 

1990 census to the to the 2000 census 

under WIA, the Department consulted 

with the NAETC’s census workgroup on 

the youth funding formula. The 2000 

census workgroup made no 

recommendations to change this 

methodology. Therefore, the 

methodology of awarding youth grants 

continues to be based on American 

Indian reservations, OTSAs, ANVSAs, 

ANRCs, and the State of Hawaii. 

Finally, INA program grantees should 

note that even if they are not required 

to have land base to receive youth 

supplemental funds, sec. 166(d)(2)(A)(ii) 

still limits participants in INA youth 

programs to ‘‘youth on or near Indian 

reservations and in Oklahoma, Alaska, 

or Hawaii.’’ 

Section 684.430 What individuals are 

eligible to receive supplemental youth 

services? 

Comments: A commenter supported 

the increase in age from 21 to 24 and 

asked whether additional funding will 

be considered to best serve this 

population that has been defined by the 

Department as most in need and having 

barriers to employment. 

Department Response: Program 

funding is ultimately determined by 

Congress through annual funding 

appropriations for Federal employment 

and training programs. Consequently, 

there is not necessarily a relationship 

between an increase in the number of 

individuals eligible for a program and 

an increase in funding. No changes to 

the regulatory text were made in 

response to this comment. 

Section 684.460 What performance 

indicators are applicable to the 

supplemental youth services program? 

Comments: Several commenters 

expressed concerns with the 

performance accountability indicators 

applicable to the Native American 

supplemental youth services program. 

These concerns fall into three 

categories: (1) Concerns about the 

feasibility of implementing the 

performance indicators given the 

limited amount of funding available for 

the youth supplemental program, (2) 

concerns about the applicability of the 

youth performance indicators given that 

most tribes use INA youth funds operate 

a summer employment program only, 

and (3) specific concerns about 

regulation language. Several 

commenters suggested that the 

Department retain the WIA performance 

measures or waive the WIOA 

performance indicators. 

Multiple commenters raised concerns 

about expense and feasibility of data 

collection for the performance 

indicators, particularly that the current 

performance reporting system used by 

INA program grantees (Bear Tracks) is 

not adequate for the proposed 

performance requirements and would be 

costly to upgrade. Specifically, a 

commenter asserted that the total 

update cost may exceed $1 million, 

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stating that the current Microsoft Access 

platform does not allow the Department 

to obtain real-time data across the INA 

grant community because it is not Webbased. This commenter also asserted 

that training would be necessary for INA 

program grantees on a nationwide basis 

on the new performance reporting 

system. 

Multiple commenters stated that, 

given the disparity in funding between 

the INA youth grants and the State 

grants, it is not reasonable or practical 

to require the same level of service and 

effort in collecting performance data 

given the small median size of grants. A 

commenter stated that the INA youth 

program currently does not have the 

ability to do wage matching through the 

Wage Record Interchange System 

(WRIS). This commenter expressed 

concern regarding the burden on INA 

program staff over following up with 

participants to determine the 

‘‘unsubsidized employment’’ aspect of 

certain performance indicators. 

A commenter expressed concern that 

maintaining current regression models 

for the INA program grantees that factor 

in local economic conditions is an 

additional cost that must be considered. 

A commenter said that such programs 

are not conducive to meeting several of 

the State performance indicators, stating 

that most INA program grantees only 

operate summer employment programs 

for high school-aged youth,. Because the 

INA program is not a core program, a 

commenter suggested that the 

‘‘effectiveness in serving employers’’ 

performance indicator should not apply 

to INA programs, citing WIOA sec. 

116(b)(2)(A)(iv). 

A commenter proposed that the 

Department allow the INA program to 

modify the definitions for the indicators 

to better fit a summer employment 

program that primarily serves high 

school-aged youth that return to high 

school in the fall and that the 

regulations or ETA policy clarify that 

the indicators cannot be used to 

determine INA program grantee 

performance. This commenter suggested 

that while the Department develops 

performance indicators for the INA 

youth programs in consultation with the 

INA program grantee community and 

the NAETC, the Department should 

establish a waiver process under which 

INA program grantees would continue 

to use the current Tribal Supplemental 

Youth Services performance indicators 

and goals under WIA as part of the 4- 

year strategic plan. 

Commenter concerns about other 

specific regulation language included: 

Multiple commenters asked for more 

specificity on what is considered an 

‘‘education or training’’ activity and 

whether high school is considered an 

‘‘education’’ activity. Another 

commenter expressed opposition to 

proposed § 684.460(b), which would 

require the Secretary, in consultation 

with the NAETC, to develop additional 

performance indicators (in addition to 

the primary indicators of performance). 

A commenter encouraged the expansion 

of the median earnings performance 

measure in § 684.460(a) to include 

consideration of a participant’s 

economic self-sufficiency level or 

economic security level in addition to 

median earnings. Another commenter 

stated that the reference in 

§ 684.620(a)(6) to WIOA sec. 

116(b)(2)(A)(iv) is incorrect. Instead, the 

reference should be to sec. 

116(b)(2)(A)(i)(VI). 

Department Response: The 

Department held two tribal and grantee 

consultations on WIOA in which 

stakeholders raised concerns with the 

youth performance indicators similar to 

the concerns expressed in these 

comments. The Department recognizes 

that there are significant challenges in 

implementing the youth performance 

indicators at sec. 116(b)(2)(A)(ii) of 

WIOA. While the Department cannot 

change statutory requirements such as 

performance indicators, consideration 

has been given to how youth 

performance indicators can be 

implemented in a way that is realistic 

and feasible for INA program grantees 

while also maintaining the requirements 

in WIOA. 

Because WIOA requires the use of the 

performance indicators at WIOA sec. 

116(b)(2)(A) for the recipients of funds 

under WIOA sec. 166, including the 

youth performance indicators at 

116(b)(2)(A)(ii), no changes have been 

made to the regulatory text in response 

to these comments.. However, the 

Department notes that recipients of 

youth funds under sec. 166 of WIOA 

may request a waiver of the youth 

indicators of performance pursuant to 

waiver procedures that will be 

established under sec. 166(i)(3) of 

WIOA. The waiver procedures 

established pursuant to sec. 166(i)(3) of 

WIOA generally will be consistent with, 

but not identical to, the waiver 

requirements under sec. 189(i)(3)(B) of 

WIOA. The Department will consult 

with the NAETC before developing 

guidance on the waiver process. The 

Department anticipates that this 

guidance will include youth 

performance indicators that may be 

substituted for the performance 

indicators identified at WIOA sec. 

116(b)(2)(A). Finally, the Department 

also envisions that waivers to the youth 

performance indicators will be 

requested at the beginning of a 4-year 

grant award cycle, in the 4-year strategic 

plan and will waive youth performance 

indicators for the duration of the 4-year 

grant cycle plan. Through this process, 

the Department anticipates that 

recipients of youth INA funding can 

establish performance indicators that 

address both the grantees’ feasibility 

and applicability concerns. 

Comments: Commenters’ requested 

more specificity on what is considered 

an ‘‘education or training’’ activity and 

whether high school is considered an 

‘‘education’’ activity. 

Department Response: The 

Department will provide clarification on 

this and other performance-related 

terms in guidance. Finally, the 

Department also will work with the 

NAETC to update the INA programs’ 

current MIS system or develop a new 

MIS system to collect the data necessary 

(including wage records) to report on 

the outcomes of the INA youth 

indicators, (as well as the outcomes of 

INA adult performance indicators). 

Comments: Commenters expressed 

concerns about establishing a statistical 

regression model. 

Departments Response: The 

Department acknowledges the 

commenters concerns about the cost of 

maintaining a statistical regression 

model. The cost of developing a 

statistical adjustment model is the 

responsibility of the Department and the 

Department continues to seek ways to 

develop accurate and fair statistical 

adjustment models that are cost 

effective and maintainable. As the 

Department continues to implement 

WIOA and refine the application of the 

model for sec. 166 grantees the 

Department will provide additional 

information. 

As for the concern about the 

applicability of the performance 

indicator regarding effectiveness of 

serving employers under § 684.460(a)(6), 

the Department has determined that 

WIOA sec. 166(h) requires the use of all 

performance indicators under WIOA 

sec. 116(b)(2)(A), including the 

indicator on effectiveness in serving 

employers at sec. 116(b)(2)(A)(i)(VI). 

That WIOA sec. 116(b)(2)(A)(iv) 

references the core programs does not 

limit the applicability of the indicator 

on the effectiveness in serving 

employers to the core programs. 

Because WIOA clearly requires the 

application of the indicator on 

effectiveness of serving employers for 

recipients of funds under sec. 166, no 

changes have been made to the 

regulatory text. 

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Regarding the incorrect reference in 

§ 684.620(a)(6), the Department has 

examined the reference to sec. 

116(b)(2)(A)(iv) in § 684.460(a)(6) and 

has determined that the reference is 

correct. 

Concerning the opposition to 

§ 684.460(b), which requires the 

development of performance indicators 

that are in addition to the primary 

indicators of performance, this is a 

statutory requirement and cannot be 

altered here.. However, as part of a 

waiver request, the Department 

envisions that these additional 

indicators which will be developed in 

consultation with the NAETC, may be 

used in lieu of the primary indicators of 

performance specified at 

§§ 684.460(a)(1)–(6) and 684.620(a)(1)– 

(6). Please see further discussion of the 

adult performance indicators in the 

preamble corresponding to § 684.620. 

Comments: A commenter encouraged 

the Department to expand the median 

earnings performance indicator at 

§ 684.460(a)(3), to include a 

participant’s economic self-sufficiency 

level or economic security level. 

Department Response: The 

Department determined that there is not 

an accurate way of converting a selfsufficiency/economic security level into 

an average earnings amount. No changes 

have been made to regulatory text in 

response to these comments. 

6. Subpart F—Accountability for 

Services and Expenditures 

Section 684.620 What performance 

indicators are in place for the Indian 

and Native American program? 

Comments: The comments on the 

performance indicators in § 684.620 

raise many of the same issues as the 

comments on the youth performance 

indicators in § 684.460. For example, 

many commenters expressed concerns 

about the cost of implementing the 

performance indicators and suggested 

that the Department should develop 

performance indicators with the help of 

INA program grantees. Additionally, 

commenters noted challenges with the 

proposed use of reporting following the 

State reporting mechanisms and urged 

the Department to negotiate with and 

assist INA program grantees in 

developing a culturally amenable 

system of reporting that does not 

impede grantees ability to prioritize 

services to participants. 

Another commenter expressed 

concerns that the proposed performance 

indicators would require a significant 

re-design (or replacement) of the current 

performance reporting system used by 

INA program grantees (Bear Tracks). 

A commenter noted that more than 

one-third of the WIOA sec. 166 INA 

program grantees are allocated less than 

$100,000. The commenter expressed 

concerns that WIOA increases the 

reporting burden for WIOA sec. 166 

programs by using a more complex set 

of indicators and expressed concern for 

the statistical regression model. 

A commenter suggested that INA 

programs should have their own 

performance indicators that they help to 

develop and another commenter 

suggested that a waiver provision for 

performance is necessary. 

Additionally, a commenter suggested 

that the Department may have violated 

E.O. 13175’s requirements to consult 

with tribal officials in the development 

of Federal policy that has tribal 

implications. This commenter reasoned 

that the WIOA-mandated primary 

indicators of performance removes the 

step of consultation with WIOA sec. 166 

INA programs and the NAETC to 

develop performance indicators in 

accordance with the purpose and intent 

of WIOA sec. 166. 

A commenter also expressed concern 

that WIOA could be construed to 

require greater reporting requirement of 

INA program grantees than States and 

municipalities. This commenter 

requested that the regulations clarify 

that tribes and tribal organizations do 

not have any greater reporting 

requirements than States or local 

governments. 

Finally, a commenter suggested that 

§ 684.620(a)(6) contains an incorrect 

reference. 

Department Response: The 

Department continues to seek an 

appropriate balance of being 

accountable for Federal funds through 

tracking and reporting outcomes while 

not over-burdening the recipients of 

Federal funds with undue reporting 

costs and other administrative 

requirements. Maintaining such a 

balance between performance 

accountability and burden will be 

important to WIOA implemented. 

The performance indicators at 

§ 684.620 implement six statutorily 

required performance indicators and 

also require the Department (in 

consultation with the NAETC) to 

develop an additional set of 

performance indicators and standards 

that are applicable to the INA program. 

To the extent that a commenter 

requested that the Department clarifies 

in the regulations that sec. 166 

recipients do not have reporting 

requirements in addition to those of 

recipients of State adult, youth and 

dislocated worker funds, the 

Department notes that such a 

clarification would be contrary to the 

statutory language of WIOA. Section 

166(h)(1)(A) of WIOA requires that a set 

of performance indicators be developed 

‘‘in addition’’ to the performance 

indicators described in sec. 116(b)(2)(A). 

Therefore, WIOA requires that INA 

program grantees be subject to 

additional performance indicators. 

However, to the extent that 

commenters are asking for the 

Department to waive performance 

indicators for the INA adult program, 

the Department recognizes that there are 

challenges in applying the indicators to 

the INA program. As discussed in the 

preamble to § 684.460, the Department 

is considering a waiver policy for the 

youth program for these indicators 

pursuant to the waiver process at 

§ 684.910. The Department recognizes 

that WIOA provides broad waiver 

authority for the INA program; however, 

WIOA sought to hold programs 

accountable for performance by 

requiring common performance 

indicators to compare across programs. 

Any waivers for the adult program will 

be considered on a case-by-case basis to 

account for the needs and circumstances 

of individual grantees. 

The Department also recognizes that 

updates will need to be made to the 

information collection and reporting 

software known as Bear Tracks and 

understands that an investment may 

need to be made in the software to move 

it from a Microsoft Access platform to 

a web-based platform. Training also will 

need to be provided to grantees on the 

new performance indicators and the 

new updates to the software. In 

addition, baseline data will need to be 

established before target levels for 

performance can be established. The 

Department is providing technical 

assistance and guidance to support 

grantees in transitioning to the new 

performance indicators under WIOA. 

Additionally, as noted in the response 

to § 684.620, the Department has taken 

the commenters concerns about 

establishing a statistical regression 

model under consideration. As the 

Department continues to implement 

WIOA and refine the application of the 

model for sec. 166 grantees, the 

Department will provide additional 

information. 

Additionally, a commenter proposed 

that § 684.620(a)(6) contains an 

incorrect reference. The Department has 

reviewed the provision and determined 

that the reference is correct. 

The Department also will ensure 

compliance with the requirements of the 

Privacy Act. Because the Department is 

already bound by the requirements of 

the Privacy Act, the Department has 

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determined that it is not necessary to 

add language to the regulation 

confirming this requirement. No 

changes to the regulatory text were 

made in response to these comments. 

As for the comments on E.O. 13175, 

the Department notes that E.O. 13175 

requires each Federal agency to have an 

accountable process to ensure 

meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications. The primary indicators of 

performance are required by WIOA and 

are not the result of a policy or 

regulation implemented by the 

Department. Therefore, the Department 

did not violate E.O. 13175 or the 

consultation requirement at sec. 

166(i)(2). Please see the DOL WIOA 

NPRM preamble and the introductory 

text at the beginning of the preambles 

for the Joint and DOL WIOA Final Rules 

for additional discussion of the steps 

taken to fulfill the Department’s 

consultation requirements. In its 

implementation of the primary 

indicators of performance, the 

Department will continue to comply 

with the requirements of E.O. 13175 by 

ensuring input by tribal officials and the 

NAETC, which represents Indian tribes, 

tribal organizations, Alaska Native 

entities, Indian-controlled organizations 

serving Indians, and Native Hawaiian 

organizations. 

7. Subpart I—Miscellaneous Program 

Provisions 

Section 684.910 What information is 

required in a waiver request? 

No public comments were received 

for this section; however, the 

Department has made changes to this 

regulation in response to comments on 

§§ 684.460 and 684.620 to clarify that 

the requirements for submitting a 

waiver under sec. 166(i)(3) are not 

identical to the waiver requirements 

under sec. 189(i)(3)(B) of WIOA. 

Instead, they generally follow the 

requirements under sec. 189(i)(3)(B). 

The Department will address this issue 

further in overall guidance on the 4-year 

strategic plan. 

Section 684.950 Does the Workforce 

Innovation and Opportunity Act 

provide any additional assistance to 

unique populations in Alaska and 

Hawaii? 

Comments: A commenter urged the 

Department to issue Requests for 

Proposal (RFPs) as soon as possible to 

implement WIOA sec. 166(k), which 

authorizes additional funding for 

competitive grants ‘‘to entities with 

demonstrated experience and expertise 

in developing and implementing 

programs for the unique populations 

who reside in Alaska and Hawaii . . . 

to improve job training and workforce 

investment activities for such unique 

populations.’’ As part of this 

competitive RFP process, this 

commenter urged the Department to 

prioritize the expertise and cultural 

sensitivity of tribes, tribal organizations, 

and Native Hawaiian-serving 

organizations, particularly any WIOA 

sec. 166 grantees. The commenter 

asserted that such a preference priority 

would ensure that the entities with the 

greatest experience and success in 

addressing employment and training 

issues in Alaska Native and Hawaiian 

populations would drive the programs. 

Department Response: The 

Department plans to issue a Funding 

Opportunity Announcement (FOA) in 

PY 2016 (beginning July 1, 2016) to 

award grant funding to entities in 

accordance with WIOA sec. 166(k). The 

Department will consider establishing a 

priority under advisement when 

creating the FOA. 

I. Part 685—National Farmworker Jobs 

Programs Under Title I of the Workforce 

Innovation and Opportunity Act 

1. Introduction 

The purpose of part 685 is to 

implement WIOA sec. 167, which 

authorizes migrant and seasonal 

farmworker (MSFW) programs. MSFW 

programs include career services and 

training, housing assistance, youth 

services, and related assistance to 

eligible MSFWs. In drafting these 

regulations, the Department consulted 

with States and MSFW groups during 

stakeholder consultation sessions 

conducted in August and September 

2014, as required by WIOA sec. 167(f). 

The Department received numerous 

comments on part 685. Many 

commenters supported the Department’s 

focus on serving MSFW youth and the 

broad definition of ‘‘dependents,’’ who 

can be served through the program. 

General concerns raised regarding part 

685 included how the Department treats 

the NFJP operationally and 

administratively compared to other 

WIOA programs, and the need for 

additional emphasis on co-enrollment 

opportunities for NFJP participants with 

other WIOA authorized programs, 

including the dislocated worker 

program. 

Based on the comments received, the 

Department made the following 

significant changes to part 685 as 

proposed: 

• The Final Rule permits an NFJP 

grantee some flexibility to increase the 

OJT reimbursement rate up to 75 

percent of the wage rate of a participant, 

provided that such reimbursement rates 

are consistent with the rates set by the 

Governor in the State or Local WDB(s) 

in the Local Area(s) which the grantee 

operates in accordance with WIOA sec. 

134(c)(3)(H)(i); 

• The Final Rule revises § 685.360(d) 

to clarify that NFJP-funded permanent 

housing development activities that 

benefit eligible MSFWs do not require 

individual eligibility determinations; 

• The Final Rule clarifies in § 685.360 

that development of on-farm housing 

located on property owned and operated 

by an agricultural employer is an 

allowable activity; and 

• In response to commenters’ 

concerns regarding the negative impact 

that would result on performance 

indicator calculations by including 

individuals who receive only certain 

minimal ‘‘related assistance’’ services 

which do not require a significant 

investment of staff time and resources, 

the Department has added language to 

§ 685.400 that puts the NFJP program in 

alignment with other WIOA authorized 

programs regarding performance 

accountability. 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

INA program regulations. If a section is 

not addressed in the discussion below, 

it is because the public comments 

submitted in response to the NPRM did 

not substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

2. General Comments on NFJP 

The Department received a number of 

comments on NFJP addressing the 

following issues: Administration of the 

NFJP, co-enrollment of participants, 

portable eligibility and a national 

records system, uniform program 

branding, treatment of NFJP as 

compared to other WIOA programs, and 

one-stop infrastructure payments. 

Administration of the NFJP 

Several commenters expressed 

concerns regarding the administration of 

the NFJP. One NFJP grantee commented 

on the lack of consistency it has 

experienced when interacting with 

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Federal representatives from different 

regions and said there is often a 

disconnect in regulatory interpretation 

among these representatives. To address 

this confusion, the commenter 

suggested that multi-regional grantees 

should be assigned only one Federal 

Project Officer based on the grantee’s 

primary location. Multiple commenters 

stated that the Department should not 

allow grant officers to place additional 

administrative or operational 

restrictions on NFJP grantees. 

The Department has not revised part 

685 in response to these comments. The 

Department is committed to ensuring 

that grantees are treated consistently 

across regions. The Department’s 

national office coordinates with all 

Employment and Training 

Administration (ETA) regional offices to 

identify program issues and technical 

assistance needs, and coordinates 

guidance with Federal Project Officers 

(FPO) on a regular and ongoing basis. A 

regulatory fix is not required to ensure 

uniformity. 

Co-Enrollment 

Comments: Several commenters 

requested the Department emphasize 

the importance of co-enrollment 

opportunities across programs. One 

commenter remarked that they would 

like co-enrolled farmworkers to receive 

training and cost support from other 

Department programs for which they are 

eligible, in addition to NFJP. Another 

commenter said that one-stop centers 

should increase co-enrollment 

opportunities for NFJP-enrolled 

farmworkers, and asserted that grantees 

often are not able to provide these 

opportunities and resources. Similarly, 

a few commenters suggested that onestop centers should provide services to 

unemployed farmworkers instead of 

automatically referring them to NFJP 

services, and urged adult, youth, and 

dislocated workers programs to open 

their services to farmworkers. 

Department Response: The 

Department strongly encourages service 

delivery alignment across the one-stop 

delivery system and other workforce 

partner programs to ensure that services 

are tailored to meet each individual’s 

needs. As described further in 20 CFR 

part 678 (see Joint WIOA Final Rule), to 

better align service delivery and 

coordination between the one-stop 

delivery system and other workforce 

partner programs, the Department 

encourages NFJP grantees and other title 

I programs to develop specific language 

in the memoranda of understanding 

(MOUs) with Local Workforce 

Development Boards (also referred to as 

Local WDBs) and other partners 

addressing co-enrollment. The MOU 

may describe how co-enrollments will 

be accomplished to meet the needs of 

participants best, address operational 

issues such as eligibility determination 

and documentation, co-case 

management, specific services provided 

by each partner, and coordinated fiscal 

and performance tracking. Additionally, 

20 CFR 678.500 (see Joint WIOA Final 

Rule) provides a detailed description of 

what must be included in the required 

MOU between the Local WDBs and 

required one-stop partners. No change 

has been to the regulatory text here in 

response to these comments. 

Portable Eligibility and a National 

Records System 

Comments: Two commenters stated 

that if NFJP grantees had a unified, 

Department-supported data collection 

system, not only would it be easier to 

help farmworkers qualify for service, 

but it also would establish a more 

unified national presence for the NFJP 

and ensure continuity of services and 

eligibility across regions. One 

commenter remarked that issues of 

confidentiality and privacy should be 

considered during the creation of a 

common eligibility system. 

Department Response: The 

Department agrees that an integrated 

performance reporting system would 

assist farmworkers to qualify for service, 

and facilitate co-enrollment and 

assessment of WIOA performance across 

States and programs. Section 116(d)(1) 

of WIOA requires the Departments to 

provide a performance reporting 

template and the Departments will seek 

public comment on the reporting 

templates through the Paperwork 

Reduction Act (PRA) process. Aligning 

reports and performance definitions will 

create a performance accountability 

system that is easier to understand and 

assess the effectiveness of all service 

providers in achieving positive 

outcomes for individuals served across 

WIOA programs. 

The regulations also established an 

integrated, individual record system. 

Comments: Elaborating on continuity 

of services and emphasizing the 

inherent migratory nature of farmwork, 

some commenters urged the Department 

to establish a clear mechanism that 

ensures that grantees’ performance will 

not be negatively affected when 

farmworkers leave or transfer to another 

grantee or State, and a few commenters 

stated that farmworkers, especially 

migratory farmworkers, should be 

allowed to transfer services easily if 

they move to a new State. Some 

commenters suggested creating a 

uniform branding so that farmworkers 

can locate services in different States 

more easily. 

Department Response: The 

Department acknowledges that 

providing a continuity of program 

services to migrant farmworker 

populations moving from State to State 

may be challenging, and tracking 

participants and reporting on grantee 

performance indicator outcomes may be 

difficult in cases where an NFJP 

participant has moved to another State. 

The Department is continually 

looking to improve performance 

reporting policies and systems, and is 

interested in additional feedback on 

assistance the Department can provide 

for establishing mechanisms to track the 

eligible MSFWs they serve in the NFJP 

and reporting program outcomes. 

Uniform Program Branding 

Commenters suggested creating a 

uniform branding so that farmworkers 

can locate services in different States 

more easily. 

Department Response: The term NFJP 

provides nationwide uniformity across 

employment and training grants and 

housing grants while providing 

flexibility for grantees to tailor their 

outreach efforts to the unique needs of 

the farmworker communities they serve. 

The use of one-stop center brand for 

one-stop centers nationwide will also 

help farmworkers find services. The 

Department encourages grantees in one 

State or service area to consider 

establishing memoranda of 

understanding (MOUs) with partner 

grantees in other States or service areas, 

or a joint MOU with multiple grantees, 

to ensure continuity of program services 

to participants, and support outcome 

tracking as participants move from State 

to State. 

Treatment of NFJP as Compared to 

Other WIOA Programs 

Comments: Many commenters 

expressed concern that farmworkers are 

considered a niche population and, 

thus, do not have the same access to the 

public workforce system as do other 

workers, and further commented that 

there should not be more restrictions on 

MSFWs or the NFJP system than there 

are on the main workforce development 

system. Discussing equalization of 

treatment of NFJP with other WIOA 

programs, some commenters expressed 

concern that the Department allows 

carryover funds for grantees of adult, 

youth, and dislocated workers but not 

for NFJP grantees, and one commenter 

suggested that the Department allow 

line item budget variance with no more 

restrictions than those placed on the 

mainline public workforce system. Two 

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commenters remarked that because the 

NFJP grant period is 4 years under 

WIOA, the Department should stop 

treating NFJP grants as one-time 

discretionary grants. And finally, one 

commenter, commenting on proposed 

§ 685.430 (grantee program plan 

modifications) stated that NFJP grantees 

should be allowed to spend out the 

grant over the entire period of 

performance, using oldest funds first, 

just as States are permitted to do in 

proposed § 683.110 (period of 

performance of WIOA title I and 

Wagner-Peyser Act funds.) 

Department Response: The NFJP is 

authorized under sec. 167 of WIOA, and 

is not included as a core formula 

program as defined in WIOA sec. 3(12). 

Therefore, the NFJP does not have the 

all of the same requirements, 

obligations, and flexibilities as States or 

core programs. As described in 

§ 683.110(e) ‘‘funds awarded by the 

Department under WIOA sec. 167 are 

available for expenditure for the period 

identified in the grant award document, 

which will not exceed 4 years,’’ which 

is consistent with other National 

Programs authorized under WIOA title I, 

subtitle D. NFJP grantees currently have 

the ability to use carry over funds 

through the current grant cycle which 

ends June 30, 2016, and the Department 

will continue to establish guidelines for 

the use of carry-over funds through the 

grant award documents as described in 

§ 683.110(e). 

Comments: Some commenters 

mentioned the 1974 Judge Richey Court 

Order when discussing their arguments 

for providing farmworkers with equal 

access to system services. Multiple 

commenters urged the Department to 

allow farmworkers to be eligible for the 

dislocated worker program, and some of 

those commenters stated that the 

dislocated worker program should not 

be considered an exclusively 

‘‘mainline’’ resource. Commenters 

remarked that many farmworkers are 

unlikely to return to agricultural work 

because of inconsistent employment, 

seasonal layoff, and low income, and 

commented that these conditions 

should make farmworkers eligible for 

dislocated worker services. 

Department Response: The 

Department is committed to ensuring 

that farmworkers have equal access to 

the public workforce system via the 

State Monitor Advocate System 

established in the 1974 Judge Richey 

Court Order. Farmworkers qualify to 

receive career services as a dislocated 

worker in adult and dislocated worker 

program if they meet the definition of 

‘‘dislocated worker’’ at WIOA sec. 3(15). 

However, as described in § 680.130, 

Governors and Local WDBs have 

discretion to establish policies and 

procedures for one-stop operators to use 

in determining an individual’s 

eligibility as a dislocated worker, 

consistent with the definition at WIOA 

sec. 3(15), and this flexibility may result 

in interstate differences in who may 

qualify for dislocated worker services. 

No changes have been made to 

regulatory text in response to these 

comments. 

Comments: Several commenters 

opposed NFJP grantees’ lack of access to 

Unemployment Insurance (UI) records. 

Commenters stated that allowing NFJP 

grantees to access UI records as other 

programs do would decrease the amount 

of time and resources that staff expends 

to find the necessary wage record 

information. 

Department Response: Part 603 

(confidentiality and disclosure of State 

Unemployment Compensation (UC) 

information) of the Final Rule permits 

State agencies to disclose confidential 

UC information, including UI wage 

information, to ‘‘public officials,’’ 

defined at § 603.2(d) (UC program 

definitions), under limited 

circumstances. These limitations are in 

place to ensure that confidential UC 

information including personally 

identifiable information, such as Social 

Security numbers, are appropriately 

safeguarded. Any NFJP grantees that are 

included in the § 603.2(d) definition of 

public official may request UI wage 

information from State agencies. NFJP 

grantees who are not included in the 

definition of public official have 

indirect access to UI wage records 

through a common reporting 

information system (CRIS) administered 

by the Department. The Department 

anticipates providing extensive 

guidance on part 603 throughout the 

implementation of WIOA. 

One-Stop Infrastructure Payments 

Comments: Multiple commenters 

urged the elimination of the one-stop 

delivery system proposed infrastructure 

payments described in 20 CFR 678.700 

(one-stop infrastructure costs) (see Joint 

WIOA Final Rule), and some remarked 

that the NFJP should be exempt from 

this requirement because NFJP grantees 

often operate in satellite locations in 

rural areas where the communities face 

transportation barriers. Several 

commenters stated that, if deemed 

necessary, infrastructure payments 

should be no greater than the value 

received by NFJP programs, and some 

commenters suggested that in-kind 

contributions should be an acceptable 

payment option towards infrastructure 

costs. One commenter suggested that 

NFJP grantees should continue to be 

required partners on State and Local 

WDBs if the NFJP is required to 

contribute to the one-stop infrastructure 

costs. 

Department Response: As described 

in WIOA sec. 121(b)(1)(B), NFJP 

grantees are a required one-stop partner, 

and as such, must contribute to the 

infrastructure funding of one-stop 

operations in the local workforce areas 

in which they operate. The Department 

does not require that NFJP grantees be 

in every affiliate one-stop center 

(described in 20 CFR 678.310 (what is 

an affiliated site and what must be 

provided there) of this Final Rule); 

however, all one-stop partners must 

provide access to their programs and 

activities through the comprehensive 

one-stops described in 20 CFR 678.305 

(one-stop centers and what they must 

provide), as defined in 20 CFR 

678.305(d), and therefore should be 

contributing their proportionate share to 

the one-stop infrastructure costs based 

on the relative benefit received by the 

program in these centers (see Joint 

WIOA Final Rule). Regarding the 

suggestion that in-kind contributions be 

an acceptable payment option towards 

infrastructure costs; 20 CFR 678.700 

(one-stop infrastructure costs) describes 

infrastructure costs, shared costs, and 

in-kind contributions, and includes the 

non-personnel costs necessary for the 

general operation of the one-stop center. 

In-kind contributions may be used to 

cover additional costs relating to the 

operation of the one-stop delivery 

system as described in 20 CFR 678.760 

(funding of one-stop partner’s shared 

costs). Regarding the suggestion that 

NFJP grantees should continue to be 

required partners on State and Local 

WDBs if the NFJP is required to 

contribute to the one-stop infrastructure 

costs, under WIOA sec. 101(b) and sec. 

107(b), NFJP grantees are no longer 

required members of State or Local 

WDBs, and the Department does not 

have the authority to require their 

membership. No changes have been 

made to the regulatory text here in 

response to these comments. 

3. Subpart A—Purposes and Definitions 

This subpart describes the general 

purpose and definitions relevant to 

MSFW programs authorized under 

WIOA sec. 167, the role of the 

Department in providing technical 

assistance and training to grantees, and 

the regulations applicable to grantees. 

Section 685.110 What definitions 

apply to this program? 

Proposed § 685.110 provided 

definitions of terms relevant to the 

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implementation and operation of 

workforce investment activities 

authorized for MSFWs and their 

dependents under WIOA. 

The Department received comments 

on several definitions in this section 

and these comments are discussed 

below. All other definitions in § 685.110 

did not receive substantive comments; 

therefore, they are not discussed below. 

The definition of family included in 

§ 685.110 did not receive any 

comments: However, it is important to 

note that this definition is specific to 

this part. The term is included for the 

sole purpose of reporting NFJP housing 

assistance grantee indicators of 

performance as described in § 685.400 

(indicators of performance for the NFJP), 

and differs from the definition of family 

found at § 675.300 (applicable 

definitions for WIOA title I regulations). 

The definition of family found at 

§ 675.300 applies to the regulations in 

20 CFR parts 675 through 688. For 

example, if an NFJP grantee is using 

‘‘family income’’ to determine if an 

MSFW qualifies as ‘‘low income’’ as 

defined in WIOA sec. 3(36), the 

definition of family at found at 

§ 675.300 should be utilized. 

Additionally, the Department added 

the term ‘‘supportive services’’ as 

defined by WIOA sec. 3(59) to the list 

of defined terms provided in § 685.110 

to clarify how the term is used in the 

preamble to part 685 and specifically in 

§§ 685.330, 685.420, 685.440, and 

685.510. 

Eligibility Determination Period 

Comments: Proposed § 685.110 

defined eligibility determination period 

as ‘‘any consecutive 12-month period 

within the 24-month period 

immediately preceding the date of 

application for the MSFW program by 

the applicant MSFW.’’ The definition 

was adopted from the first clause of 

WIOA sec. 167(i)(3)(A)(i), which defines 

‘‘eligible seasonal farmworker.’’ 

Numerous commenters suggested that 

the definition of eligibility 

determination period should include an 

exception to the consecutive 12-month 

period in situations when a farmworker 

has been hospitalized or incarcerated 

during the 24-month period preceding 

the date of the application. In those 

cases in which a farmworker has been 

hospitalized or incarcerated during the 

most recent 24-month period, one 

commenter recommended that the 

Department extend the qualifying 24- 

month period to include the balance of 

the time the farmworker was unable to 

work. 

Department Response: ‘‘Eligibility 

determination period’’ is defined by 

statute as any consecutive 12-month 

period within the 24-month period 

immediately preceding the date of 

application for the MSFW program by 

the applicant MSFW. The definition 

was adopted from the first clause of 

WIOA sec. 167(i)(3)(A)(i), which defines 

‘‘eligible seasonal farmworker.’’ 

Eligible Seasonal Farmworker 

Comments: Proposed § 685.110 

defined Eligible Seasonal Farmworker 

as a low-income individual who for 12 

consecutive months out of the 24 

months prior to application for the 

program involved, has been primarily 

employed in agricultural or fish farming 

labor that is characterized by chronic 

unemployment or underemployment; 

and faces multiple barriers to economic 

self-sufficiency; and dependents of the 

seasonal farmworker as described in 

WIOA sec. 167(i)(3). 

One commenter asked the Department 

to provide a definition of chronic 

unemployment/underemployment as 

that term is used in the definition of 

‘‘eligible seasonal farmworker.’’ This 

commenter also requested clarification 

as to whether the condition of chronic 

unemployment/underemployment 

applies to the individual or to an 

industry. 

Department Response: These terms as 

used in WIOA sec. 167(i)(3)(A)(i) refers 

to the nature of the agricultural or fish 

farming labor force as a whole and 

whether it experiences either chronic 

unemployment or underemployment. In 

the past, the Department has issued 

additional guidance explaining NFJP 

participant eligibility and will continue 

to issue such guidance under WIOA. 

Emergency Assistance 

Comments: Proposed § 685.110 

defined Emergency Assistance as a form 

of ‘‘related assistance’’ and means 

assistance that addresses the immediate 

needs of eligible MSFWs and their 

dependents, provided by grantees. An 

applicant’s self-certification is accepted 

as sufficient documentation of 

eligibility. 

One commenter, while agreeing with 

the acceptance of self-certification, 

suggested that the Department reinforce 

self-certification rather than increase 

documentation standards when 

developing any TEGL on data 

validation. 

Department Response: The 

Department will address WIOA data 

validation requirements in future 

guidance. Additionally, the Department 

clarified the definition for ‘‘Emergency 

Assistance’’ by adding language that 

mirrors the statute and the definition for 

‘‘Related Assistance.’’ 

National Farmworker Jobs Program 

(NFJP) 

Comments: Some commenters 

suggested that the program’s name be 

changed to the ‘‘National Farmworker 

Opportunity Program’’ so that the 

program’s name is consistent with the 

Workforce Innovation and Opportunity 

Act, and to acknowledge the NFJP 

program’s origins via the Economic 

Opportunity Act of 1964. 

Department Response: The term NFJP 

was initially developed in 1999 by the 

Secretary’s MSFW Advisory Committee 

to distinguish the NFJP from the other 

workforce investment grants and 

activities funded under WIA sec. 167, 

such as the farmworker housing 

assistance grants; however, since that 

time the NFJP has come to be the 

accepted term for both employment and 

training grants and housing grants. 

Rebranding the program in the initial 

years of WIOA could create confusion 

for the MSFW populations the program 

serves who have come to know the 

program as the NFJP. No changes have 

been made to the regulatory text in 

response to these comments. 

Section 685.140 What Workforce 

Innovation and Opportunity Act 

(WIOA) regulations apply to the 

programs authorized under WIOA? 

The Department did not receive any 

comments on this section; however, 

because the list of applicable regulations 

is not meant to be exhaustive, and to 

avoid any inference otherwise, the 

Department revised § 685.140 in the 

Final Rule to make clear that the list is 

not all-encompassing. 

4. Subpart B—The Service Delivery 

System for the National Farmworker 

Jobs Program 

This subpart describes the service 

delivery system for the MSFW programs 

authorized by WIOA sec. 167 including 

who is eligible to receive grants and the 

role of the NFJP in the one-stop delivery 

system. Termination of grantee 

designation is explained. This subpart 

also discusses the appropriation of 

WIOA sec. 167 funds and establishes 

that a percentage of the total funds 

appropriated each year for WIOA sec. 

167 activities will be used for housing 

assistance grants. 

Section 685.200 Who is eligible to 

receive a National Farmworker Jobs 

Program grant? 

Proposed § 685.200 set forth the three 

characteristics required of an entity in 

order to be eligible to receive NFJP 

grants. Paragraph (a) stated that an 

eligible entity must have an 

understanding of the problems of 

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eligible MSFWs. Paragraph (b) required 

eligible entities to have a familiarity 

with the agricultural industries and the 

labor market needs of the proposed 

service area. Paragraph (c) stated that an 

eligible entity must have the ability to 

demonstrate a capacity to administer 

and deliver effectively a diversified 

program of workforce investment 

activities, including youth workforce 

investment activities, and related 

assistance for eligible MSFWs. 

Comments: The Department received 

numerous comments regarding the 

eligibility requirement set forth in 

proposed paragraph (c) of this section. 

In particular, these commenters 

recommended that this requirement 

should take into account the relative 

youth farmworker population in each 

State. 

Department Response: The 

Department agrees that the relative 

youth MSFW population in each State 

should be accounted for when 

considering an applicant’s ability to 

demonstrate a capacity to administer 

and deliver effectively a diversified 

program of workforce investment 

activities. This issue is more 

appropriately addressed through the 

NFJP funding allocation formula. 

Currently funds for NFJP career services 

and training grantees are dispersed 

based on the funding formula the 

Department published in the Federal 

Register on May 19, 1999. Job Training 

and Partnership Act: Migrant and 

Seasonal Farmworker Programs; Final 

Allocation Formula, 64 FR 27390. The 

Department intends to revise this 

funding formula through a public 

comment process and plans to address 

this and other issues. 

Section 685.210 How does an eligible 

entity become a grantee? 

Proposed § 685.210 described the 

process by which an entity may become 

a grantee under this part and explained 

that an applicant whose application for 

funding has been denied in whole or in 

part may request an administrative 

review per § 683.800 of this title. 

Comments: The Department received 

one comment suggesting that this 

section include measures of 

accountability for purposes of selecting 

a grantee. 

Department Response: Measures of 

accountability for purposes of selecting 

a grantee will be described in the 

Funding Opportunity Announcement 

(FOA) for NFJP grantees following the 

process described in this section. No 

changes have been made to the 

regulatory text in response to this 

comment. 

Section 685.220 What is the role of the 

grantee in the one-stop delivery system? 

Proposed § 685.220 described the role 

of the grantee in the one-stop delivery 

system and provided that in those Local 

WDBs where the grantee operates the 

NFJP, as described in its grant 

agreement, the grantee is a required onestop partner, and is subject to the 

provisions relating to such partners 

described in 20 CFR part 678 

(description of the one-stop delivery 

system under title I of the Workforce 

Innovation and Opportunity Act) of this 

title (see Joint WIOA Final Rule). 

Consistent with those provisions, the 

grantee and Local Workforce 

Development Board must develop and 

enter into an MOU which meets the 

requirements of 20 CFR 678.500 of this 

title (regarding what must be included 

in the Memorandum of Understanding) 

and sets forth their respective 

responsibilities for providing access to 

the full range of NFJP services through 

the one-stop delivery system to eligible 

MSFWs (see Joint WIOA Final Rule). 

Comments: The Department received 

several comments concerning this 

section. Some commenters 

acknowledged the importance of 

establishing roles and responsibilities 

through MOUs and urged the 

Department to provide additional 

guidance on the specific requirements of 

an MOU between the NFJP grantees and 

key partners, such as the Local WDB or 

State Monitor Advocates (SMAs). One of 

these commenters reasoned that because 

Local WDBs do not always understand 

or fully appreciate the needs of the 

farmworker population, they do not 

aggressively ensure that community and 

partner agencies provide meaningful 

services, suggesting that the creation 

and implementation of MOUs would 

help. 

Department Response: Title 20 CFR 

part 678, subpart C (Memorandum of 

Understanding for the One-Stop 

Delivery System), provides information 

regarding the required MOU(s) that 

must be established between Local 

WDBs and required one-stop partners 

(see Joint WIOA Final Rule). Title 20 

CFR 678.500 describes what must be 

included in the MOU executed between 

the Local WDB and the one-stop 

partners relating to the operation of the 

one-stop delivery system in the Local 

Area, and 20 CFR 678.510 describes the 

collaborative and good-faith approach 

Local WDBs and partners are expected 

to use to negotiate MOUs, including 

fully and repeatedly engaging partners, 

transparently sharing information, and 

maintaining a shared focus on the needs 

of the customer. The Department 

intends to issue additional guidance 

regarding the development of MOUs 

between Local WDBs and required onestop partners as well as between NFJP 

grantees and State Monitor Advocates. 

Comments: Regarding the NFJP 

grantee serving as a required one-stop 

partner, two commenters stated that the 

decision to colocate services can be 

beneficial but grantees need to consider 

the financial viability of colocation. If it 

is more beneficial to locate NFJP 

programs outside of a one-stop center, 

these commenters maintained that 

grantees should be given the flexibility 

to do so, and that grantees can still 

develop a close partnership with the 

one-stop delivery system without 

necessarily being colocated. Another 

commenter remarked that traditionally 

there has been a cost increase associated 

with operating NFJP services in 

conjunction with a one-stop delivery 

system, leaving less funding available 

for training programs and participant 

services. 

Department Response: Title 20 CFR 

678.305 (see Joint WIOA Final Rule) 

provides a description of the services 

that must be provided in a one-stop 

center, including access to partner 

programs and activities carried out by 

required one-stop partners. One-stop 

partner program services may be 

provided through the one-stop center 

either by: (1) Having partner program 

staff physically present at the one-stop 

center to provide information to 

customers about the programs, services, 

and activities available through partner 

programs; or (2) providing direct linkage 

through technology to program staff 

who can provide meaningful 

information or services. NFJP grantees, 

in collaboration with Local WDBs, must 

determine on a case-by-case basis, 

whether colocation, or another form of 

direct linkage, is the most effective 

approach in the local workforce area in 

which they operate. A description of 

what the Department means by direct 

linkage is found at 20 CFR 678.305(d)(3) 

(see Joint WIOA Final Rule). 

Section 685.230 Can a grantee’s 

designation be terminated? 

Proposed § 685.230 explained that a 

grantee may be terminated for cause by 

the Department in emergency 

circumstances when such action is 

necessary to protect the integrity of 

Federal funds or ensure the proper 

operation of the program, or by the 

Department’s Grant Officer, if the 

recipient materially fails to comply with 

the terms and conditions of the award. 

Comments: The Department received 

one comment requesting that the 

Department define the ‘‘emergency 

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circumstances’’ under which the 

Department may terminate a NFJP 

grantee’s designation for cause in 

proposed § 685.230. 

Department Response: The term 

emergency circumstances may cover a 

variety of contingencies that are too 

broad to include specifically in a 

definition; no changes have been made 

to regulatory text in response to this 

comment. When emergency 

circumstances arise in which the 

Department deems it necessary to 

protect the integrity of Federal funds or 

to ensure the proper operation of the 

program, the Department would 

undertake further investigation and 

thoroughly document the circumstance 

before termination for cause would be 

considered. Under WIOA sec. 184(e), 

any grantee so terminated would be 

provided with written notice and an 

opportunity for a hearing within 30 days 

after the termination. 

Section 685.240 How does the 

Department use funds appropriated 

under the Workforce Innovation and 

Opportunity Act for the National 

Farmworker Jobs Program? 

Proposed § 685.240 established that in 

accordance with WIOA sec. 167(h), of 

the funds appropriated each year for 

MSFW programs, at least 99 percent 

must be allocated to service areas, based 

on the distribution of the eligible MSFW 

population determined under a formula 

established by the Secretary. This 

provision further provided that a 

percentage of funds allocated for State 

service areas would be set aside for 

housing grants and that up to 1 percent 

of the appropriated funds would be 

used for discretionary purposes, such as 

technical assistance to eligible entities 

and other activities prescribed by the 

Secretary. 

Comments: One commenter asked if 

there would be a minimum amount or 

a designated percent of funds allocated 

for housing grants. 

Department Response: The annual 

percentage of housing grant funds is 

determined through the Federal 

budgeting process and final funding for 

housing grants is determined by the 

Fiscal Year Appropriations Act, and 

may vary from year to year. In the two 

program years prior to the release of this 

Final Rule the total percent of funds 

allocated to housing grants was 

approximately 6.74 percent of the total 

annual NFJP funding. This percentage 

may change from year to year based on 

the needs of the program and the annual 

budget enacted by Congress; therefore, 

the Department has not established a 

minimum amount or designated 

percentage of funds allocated for 

housing grants in the regulatory text. 

Comments: One commenter also 

stated the Department should recognize 

that grantees were not specifically 

authorized to serve eligible farmworker 

youth, and no resources were provided 

to do so. 

Department Response: Grantees are 

authorized to serve eligible farmworker 

youth. WIOA sec. 167(d) specifically 

states that funds made available through 

WIOA secs. 167 and 127(a)(1) must be 

used for workforce investment activities 

(including youth workforce investment 

activities) and related assistance for 

eligible MSFWs and eligible farmworker 

youth are therefore included. 

5. Subpart C—The National Farmworker 

Jobs Program Services to Eligible 

Migrant and Seasonal Farmworkers 

This subpart describes the 

responsibilities of grantees, and 

workforce investment activities 

available to eligible MSFWs, including 

career services and training, housing 

assistance, youth services, and related 

assistance. 

Section 685.340 What career services 

may grantees provide to eligible migrant 

and seasonal farmworkers? 

Proposed § 685.340 established in 

paragraph (a) that eligible MSFWs must 

be provided the career services 

described in WIOA secs. 167(d) and 

134(c)(2), and 20 CFR part 680. 

Proposed paragraph (b) stated that the 

grantees must provide other career 

services identified in the grantee’s 

approved program plan. The 

Department also included language in 

paragraph (c) to clarify that while career 

services must be made available through 

the one-stop delivery system, grantees 

also may provide these types of services 

through other sources outside the onestop delivery system. Examples include 

non-profit organizations or educational 

institutions. Finally, paragraph (d) 

required that the delivery of career 

services to eligible MSFWs by the 

grantee and through the one-stop 

delivery system must be discussed in 

the required MOU between the Local 

Workforce Development Board and the 

grantee. 

Comments: A number of commenters 

recommended that the Department 

delete proposed paragraph (c). 

Commenters noted that NFJP grantees, 

as required one-stop partners, are 

required to provide services through the 

one-stop delivery system as described in 

statute, regulation, and required MOUs 

and therefore, this particular provision 

is not necessary. 

Department Response: The 

Department is revising § 685.340 in 

response to these comments. The 

Department agrees that proposed 

paragraph (c) of this section is not 

required in the context of describing 

what career services grantees may 

provide to eligible MSFWs. 

Accordingly, the paragraph has been 

struck from § 685.340 and the remaining 

paragraph has been re-lettered from (d) 

to (c). A full description of the roles and 

responsibilities of NFJP grantees, as 

required one-stop partners, is found at 

20 CFR 678.420 (see Joint WIOA Final 

Rule). 

In addition, the Department has 

revised the title of this section and 

paragraphs (a) and (b) of § 685.340 in 

the Final Rule by replacing the term 

‘‘must’’ with ‘‘may’’ to make the titles in 

§§ 685.340 through 685.380 consistent, 

and to clarify that the Department does 

not require NFJP grantees to make all 

the services described in this section 

available to participants. Rather, the 4- 

year program plan described in 

§ 685.420 must indicate the specific 

career services that will be made 

available to all participants and 

provided based on the individual needs 

of each participant. 

Section 685.350 What training services 

may grantees provide to eligible migrant 

and seasonal farmworkers? 

Proposed § 685.350 identified the 

training services that grantees provide to 

eligible MSFWs. Paragraph (a) 

established that the training activities 

provided by grantees are those in WIOA 

secs. 167(d) and 134(c)(3)(D), and 20 

CFR part 680 (Adult and Dislocated 

Worker Activities Under Title I of 

WIOA). These activities include, but are 

not limited to, occupational-skills 

training and OJT. The Department also 

emphasized that eligible MSFWs are not 

required to receive career services prior 

to receiving training services, as 

described in WIOA sec. 134(c)(3)(iii). 

This section also reinforced the intent of 

WIOA and stated in paragraph (b) that 

training services be directly linked to an 

in-demand industry sector or 

occupation in the service area, or in 

another area to which an eligible MSFW 

receiving such services is willing to 

relocate, consistent with WIOA sec. 

134(c)(3)(G)(iii). The Department also 

established in paragraph (c) that training 

activities must encourage the attainment 

of recognized postsecondary credentials 

as defined in § 685.110 (which refers to 

WIOA sec. 3(52)), when appropriate for 

an eligible MSFW. This requirement is 

in alignment with WIOA secs. 

116(b)(2)(A)(i)(IV) and 

116(b)(2)(A)(ii)(III), which include ‘‘the 

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percentage of program participants who 

obtain a recognized postsecondary 

credential, or a secondary school 

diploma,’’ as a primary indicator of 

performance for both the adult and 

youth programs. 

Comments: Numerous commenters 

remarked that training services should 

be linked with careers that are ‘‘indemand,’’ but suggested that the 

regulation provide for the flexibility to 

consider customer needs, choices, and 

circumstances, so that individuals may 

be placed in careers that will help them 

gain economic stability, even if the 

career is not defined as ‘‘in-demand.’’ 

Several commenters also noted that the 

requirement in proposed § 685.350(b) 

that training services ‘‘must be directly 

linked to an in-demand industry sector 

or occupation in the service area’’ may 

be unintentionally limiting. 

Department Response: This section 

reinforces the intent of WIOA that 

training services be directly linked to an 

in-demand industry sector or 

occupation in the service area, or in 

another area to which an eligible MSFW 

receiving such services is willing to 

relocate, consistent with WIOA sec. 

134(c)(3)(G)(iii). WIOA sec. 3(23) 

broadly defines ‘‘in-demand industry 

sector’’ and maintains flexibility. 

NFJP grantees may determine that a 

sector or occupation is in-demand in the 

context of where the grantee operates its 

NFJP program, and this may be at the 

State, regional or local service area 

level. Additionally, activities designed 

to assist eligible MSFWs establish a 

work history, demonstrate success in 

the workplace, and develop the skills 

that lead to entry into and retention in 

unsubsidized employment do not need 

to be in an in-demand industry sector or 

occupation in the service area where the 

NFJP operates. Examples of these types 

of activities may include, but are not 

limited to, career services such as 

internships and work experiences and 

transitional jobs as defined in WIOA 

sec. 134(d)(5) which provide timelimited work experiences that are 

subsidized and are in the public, 

private, or nonprofit sectors. 

Comments: One commenter also 

suggested that emerging careers should 

be considered when determining 

training options for NFJP participants. 

Department Response: The 

Department agrees that emerging careers 

should be taken into consideration 

when establishing participant training 

options consistent with the § 685.350. 

The Department encourages training in 

emerging sectors when the sector or 

occupation is in-demand in the service 

area, or in another area to which an 

eligible MSFW receiving such services 

is willing to relocate. 

Comments: A number of commenters 

asserted that NFJP grantees should have 

the flexibility to provide up to a 75 

percent reimbursement rate to 

employers for on-the-job training (OJT) 

as Governors and Local Workforce 

Development Boards do under WIOA 

sec. 134(c)(3)(H)) . A few commenters 

stated that many programs work with 

competitive employers who will favor 

the workforce programs that provide 

them the greatest benefit. As explained 

by one commenter, because NFJP is not 

always operated by a State or Local 

WDB, NFJP grantees who are not a State 

agency or Local WDB need this 

flexibility to use the same 

reimbursement rate that Governors and 

Local Workforce Development Boards 

use in the Local Area(s) in which they 

operate, otherwise they will be unable 

to compete for OJT placements in highdemand fields within the same 

communities. 

Department Response: The 

Department is revising § 685.350 in 

response to these comments. The 

Department continues to encourage 

grantees to use work-based learning as 

an effective service strategy to assist job 

seekers in entering and advancing along 

a career pathway, including OJT and 

registered apprenticeship, among others. 

Under WIOA, grantees may always 

reimburse employers for the 

extraordinary costs of training by up to 

50 percent of the wage rate of the 

participant for OJT (WIOA sec. 3(44)). 

The Department maintains that grantees 

must be working in collaboration, rather 

than competition, with the State and 

Local Workforce Development Boards 

when meeting the needs of participants, 

but acknowledges that the flexibility 

offered Governors and Local Workforce 

Boards (WIOA sec. 134(c)(3)(H)) to 

account for factors such as the 

characteristics of the participants; the 

size of the employer; the quality of 

employer-provided training and 

advancement opportunities; and other 

factors, may encourage the participation 

of employers who may otherwise be 

deterred from working with MSFW 

populations. To address commenters’ 

concerns regarding the OJT employer 

reimbursement rate the Department 

adds paragraphs § 685.350(a)(1) and (2), 

which provide NFJP grantees the 

flexibility to increase the OJT 

reimbursement rate up to 75 percent of 

the wage rate of a participant under 

certain conditions, provided that such 

reimbursement is being provided 

consistent with the reimbursement rates 

used under WIOA sec. 134(c)(3)(H)(i) 

(use of funds for employment and 

training activities) for the Local Area(s) 

in which the grantee operates its 

program. 

In addition, the Department has 

revised the title of this section and 

§ 685.350(a) in the Final Rule by 

replacing the term ‘‘must’’ with ‘‘may’’ 

to make the titles in §§ 685.340 through 

685.380 consistent, and to clarify that 

the Department does not require NFJP 

grantees to make all the services 

described in this section available to 

participants. Rather, the 4-year program 

plan described in § 685.420 must 

indicate the specific training services 

that will be made available to all 

participants and provided based on the 

individual needs of each participant. 

Section 685.360 What housing services 

may grantees provide to eligible migrant 

and seasonal farmworkers? 

Proposed § 685.360 required in 

paragraph (a) that housing grantees must 

provide housing services to eligible 

MSFWs and in paragraph (b) that career 

services and training grantees may 

provide housing services to eligible 

MSFWs as described in their program 

plan. The proposed section established 

in paragraph (c) the definitions of 

permanent housing and temporary 

housing services that are available to 

eligible MSFWs and provided examples 

of each type of housing services in 

paragraphs (d) for permanent housing 

and (e) for temporary housing. In 

paragraph (f), the proposed section 

stated that housing services may be 

provided only when the services are 

required to meet the needs of eligible 

MSFWs to occupy a unit of housing for 

reasons related to seeking employment, 

retaining employment, or engaging in 

training. 

Comments: Several commenters 

remarked that permanent housing 

requirements should differ from 

temporary housing requirements 

because of the timing of the services 

delivered. These commenters stated that 

many of the eligible housing services for 

permanent housing take place before an 

MSFW is identified for occupancy and 

therefore if Department funds are not 

used to support the on-going 

management of the project, there is no 

way for the NFJP grantee to ensure that 

only NFJP-eligible MSFWs would 

benefit from the eventual housing 

services. In addition, commenters noted 

that other funding sources complement 

NFJP resources, including United States 

Department of Agriculture (USDA) 514/ 

516 Farm Labor Housing funds. Because 

providers of these funds have slightly 

different eligibility criteria for 

farmworker tenants, the commenters 

warned that it would be difficult to 

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ensure that all MSFWs on a property are 

NFJP-eligible. Accordingly, these 

commenters recommended revising the 

language in proposed § 685.360 to 

accommodate these realities and allow 

for more flexibility with regard to 

eligibility for permanent housing 

services, by stating, for instance, that 

permanent housing units developed 

with NFJP funds be available to lowincome MSFWs per the eligibility 

criteria of the primary provider(s) of 

capital funding, rather than limiting 

primary housing services to eligible 

MSFWs exclusively. These commenters 

also suggested adding language to limit 

emergency housing assistance payments 

or vouchers (both temporary housing 

services) to eligible MSFWs only, and to 

make permanent housing units 

developed with NFJP funds available to 

low-income MSFWs per the eligibility 

criteria of the primary provider(s) of 

capital funding. 

Department Response: The 

Department is revising § 685.360 in 

response to these comments. The 

Department acknowledges the difficulty 

of supporting permanent farmworker 

housing development and renovation 

projects and ensuring that eligible 

MSFWs receive the benefits of these 

projects after they are completed. These 

projects may occur over multiple years 

and include funding from a variety of 

Federal and non-Federal sources such as 

USDA and United States Department of 

Housing and Urban Development 

(HUD). To address commenters 

concerns and recognize the distinction 

between permanent and temporary 

housing services the Department has 

revised the text set forth in proposed 

§ 685.360(d) to read: ‘‘Permanent 

housing developed with NFJP funds 

must be promoted and made widely 

available to eligible MSFWs, but 

occupancy is not restricted to eligible 

MSFWs. Temporary housing services 

must be provided only to eligible 

MSFWs.’’ As a result of this revision, 

the following sentence has been added 

to § 685.400(c): ‘‘Additionally, grantees 

providing permanent housing 

development activities will use the total 

number of individuals served and the 

total number of families served as 

indicators of performance’’ to capture 

permanent housing development 

outcomes. The Department also 

provided operating guidance for NFJP 

Grantees, including a clarification on 

housing assistance services, through 

TEGL No. 35–14 (‘‘Operating Guidance 

for National Farmworker Jobs Program 

(NFJP) Employment and Training and 

Housing Grantees’’), dated June 13, 

2016, and will provide additional 

technical assistance and guidance as 

needed. 

Comments: Additionally, some 

commenters suggested that the 

definition of housing assistance should 

account for the different types of 

assistance available and the times at 

which the services are provided. These 

commenters said that either the word 

eligible should be removed from the 

definition or the differences between the 

two primary types of housing assistance 

under § 685.360 should be clarified. The 

commenters offered two definitions of 

housing assistance: ‘‘Housing assistance 

means housing-related services 

provided to MSFWs’’ or ‘‘Housing 

assistance means emergency housing 

assistance payments or vouchers 

provided to meet the needs of eligible 

MSFWs and/or development of 

permanent housing units available to 

low-income MSFWs.’’ 

Department Response: The 

Department is revising § 685.110 in 

response to these comments. The 

Department has updated the definition 

of housing assistance found in § 685.110 

as follows: ‘‘Housing assistance means 

housing services which contribute to 

safe and sanitary temporary and 

permanent housing constructed, 

supplied, or maintained with NFJP 

funding.’’ 

Comments: Two commenters 

expressed concern that some areas may 

not have local non-profit organizations 

willing to operate on-farm housing, 

which may prevent the development or 

improvement of critically needed onfarm housing in areas where there are 

no local non-profit organizations willing 

to serve in this capacity. The specific 

paragraph referred to by two 

commenters is § 685.360(e) of the 

NPRM, which describes allowable 

temporary housing services. The 

commenters suggest that grantees 

should be permitted to use program 

funds to provide matching grants for onfarm housing improvement or 

development to be owned by the farm 

operator and suggest criteria for 

providing grants for on-farm housing 

improvement or development to be 

owned by the farm operator including a 

requirement that the farm operator 

provide at least 51 percent of project 

funds and that housing must pass 

inspections for 3 to 5 years and continue 

to be occupied by farmworkers. 

Department Response: The 

Department is revising § 685.360 in 

response to these comments. The 

section provides examples rather than 

an exhaustive list of allowable housing 

activities. The example of temporary 

housing services provided at proposed 

§ 685.360(e) (‘‘off-farm housing operated 

independently of employer interest or 

on-farm housing operated by a 

nonprofit’’) does not preclude a grantee 

from providing funds to agricultural 

employers for on-farm housing 

improvement or developments owned 

by an agricultural employer. To clarify 

that grantees may provide funding for 

on-farm housing improvement or 

development owned by the agricultural 

employer, the language (now found at 

§ 685.360(c)(2)(i)) has been revised to 

indicate that temporary housing may 

include on-farm housing located on 

property owned by an agricultural 

employer and operated by an entity 

such as an agricultural employer or a 

nonprofit organization. Furthermore, to 

clarify that the list of examples is not 

meant to be exhaustive, the following 

additional language has been added to 

the end of paragraph 685.360(c)(2)(i): 

‘‘and other housing types that provide 

short-term, seasonal, or temporary 

housing opportunities in temporary 

structures.’’ Paragraph (i) to 

§ 685.360(c)(1) has been revised to 

indicate that permanent housing 

services may include dormitory, 

modular structures, manufactured 

housing, or mobile units placed on 

permanent foundations and supplied 

with appropriate utilities, and other 

infrastructures that provide short-term, 

seasonal housing opportunities in 

permanent structures. This list includes 

the types of housing that would likely 

be made available through on-farm 

housing improvements or development 

and that would benefit eligible MSFWs. 

The Department has determined that it 

is not necessary to formalize criteria in 

the Final Rule restricting when grantees 

may provide funds to agricultural 

employers for on-farm housing 

improvement or developments owned 

by the employer and will provide 

additional guidance and technical 

assistance. The Department has revised 

§ 685.360 ‘‘What housing services may 

grantees provide to eligible migrant and 

seasonal farmworkers?’’ by removing 

‘‘tents and yurts’’ to be consistent with 

the Federal housing standards 

established in 20 CFR part 654 and 29 

CFR 1910.10. 

Additionally, the Department has 

added paragraph (e) to clarify that 

except as provided in (f), NFJP funds 

used for housing assistance must ensure 

the provision of safe and sanitary, 

temporary and permanent housing that 

meets the Federal housing standards at 

20 CFR part 654 (ETA housing for 

farmworkers) or 29 CFR 1910.10 (OSHA 

housing standards); and paragraph (f) 

which clarifies that when NFJP grantees 

provide temporary housing assistance 

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56226 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

that allows the participant to select the 

housing, including vouchers and cash 

payments for rent, lease, and utilities, 

NFJP grantees are not required to ensure 

that such housing meets the Federal 

housing standards at 20 CFR part 654 or 

29 CFR 1910.10. 

Section 685.370 What services may 

grantees provide to eligible migrant and 

seasonal farmworkers youth participants 

aged 14–24? 

Proposed § 685.370 outlined the 

services grantees may provide to eligible 

MSFW youth. In paragraph (a), the 

proposed regulation described the 

services that grantees may provide to 

eligible MSFW youth participants aged 

14–24 based on an evaluation and 

assessment of their needs. These 

services include the career and training 

services described in §§ 685.340 through 

685.350; youth workforce investment 

activities specified in WIOA sec. 129; 

life skills activities that encourage 

development of self and interpersonal 

skills; and community service projects. 

Paragraph (b) provided that other 

activities that conform to the use of 

funds for youth activities described in 

20 CFR part 681 (youth activities under 

title I of WIOA) may also be provided 

to eligible MSFW youth. Finally, in 

paragraph (c) the proposed regulation 

stated that grantees may provide these 

services to any eligible MSFW youth, 

regardless of the participant’s eligibility 

for WIOA title I youth activities as 

described in WIOA sec. 129(a). 

Comments: Some commenters 

expressed overall support for serving 

farmworker youth, and remarked that a 

lesson learned from the previously 

funded NFJP youth program was to 

focus on early intervention. One 

commenter requested clarification on 

which service components may be 

provided to adults versus youth 

participants in light of the provisions in 

proposed § 681.430 (concurrent youth 

participation in the WIOA youth and 

adult programs and how local program 

operators will track concurrent 

enrollment) and § 681.590 (how local 

WIOA youth programs will track the 

work experience priority), and on how 

financial and performance reporting 

should be tracked, in particular when a 

participant is enrolled in both youth 

and adult services. This commenter 

noted that youth services are not 

currently considered in NFJP reporting. 

Additionally, the commenter urged the 

Department to allow service areas to 

tailor their short-term service options to 

meet the needs of local migrant youth. 

Department Response: A description 

of services that can be provided to adult 

NFJP participants is found in §§ 685.340 

through 685.360 of the Final Rule. 

Youth services that can be provided 

through the NFJP are described in this 

section, and all services provided to 

adult NFJP participants, may also be 

provided to eligible MSFW youth. 

Sections 681.430 and 681.590 regarding 

certain WIOA youth formula 

requirements are not applicable to NFJP 

grantees. The NFJP is a National 

Program authorized under sec. 167 of 

WIOA and grantees may enroll 

participants as either a MSFW adult or 

a MSFW youth participant as described 

in § 685.320, but not in both categories. 

Regarding financial reporting, NFJP 

grantees that provide employment and 

training services (career services, 

training, youth services, and related 

assistance) administer a single grant 

award for each State they serve, and all 

expenses associated with the grant are 

tracked and reported together. As noted 

by a commenter, current NFJP reporting 

systems do not consider youth elements; 

the Department will be updating 

reporting systems to track youth 

measures as required in statutory 

language. 

Comments: One commenter suggested 

that funds be specifically allocated to 

farmworker youth services, instead of 

requiring providers to compete for funds 

that are already limited. 

Department Response: The 

Department does not have the statutory 

authority to allocate specific NFJP youth 

funds except as described in § 685.500 

of the Final Rule. 

Section 685.390 When may eligible 

migrant and seasonal farmworkers 

receive related assistance? 

Proposed § 685.390 established that 

eligible MSFWs may receive related 

assistance services when the need for 

the related assistance is identified and 

documented by the grantee. A statement 

by the eligible MSFW may be included 

as documentation. 

Comments: One commenter asked the 

Department to clarify whether States 

would have the authority to determine 

the process for identifying an MSFWs 

need for related assistance. This 

commenter also asked the Department 

to clarify whether MSFWs must be coenrolled to receive related assistance. 

Department Response: Under WIOA 

sec. 167(a), every 4 years NFJP grantees 

are procured through a competitive 

process to carry out NFJP activities and 

are responsible for determining when 

eligible MSFWs may receive related 

assistance services. If a State agency 

responds to an NFJP FOA and is 

selected as a grantee, they would be able 

to determine the process to identify 

related assistance needs. With regard to 

the comment addressing co-enrollment, 

farmworkers do not need to be coenrolled with other programs to receive 

related assistance services, but must be 

eligible to receive NFJP services as 

described in § 685.320. 

6. Subpart D—Performance 

Accountability, Planning, and Waiver 

Provisions 

This subpart describes indicators of 

performance for grantees, required 

planning documents, and the 

information required in program plans 

required under WIOA sec. 167. The 

subpart also explains waiver provisions 

and clarifies how grant costs are 

classified under WIOA sec. 167. 

Section 685.400 What are the 

indicators of performance that apply to 

the National Farmworker Jobs Program? 

Proposed § 685.400 described the 

indicators of performance that apply to 

grantees. Paragraph (a) stated that 

grantees providing career services and 

training are to use the indicators of 

performance common to the adult and 

youth programs, described in WIOA sec. 

116(b)(2)(A), as required by WIOA sec. 

167(c)(2)(C). In paragraph (b), the 

proposed regulation explained that for 

grantees providing career services and 

training, the Department will reach 

agreement on the levels of performance 

for each of the primary indicators of 

performance described in WIOA sec. 

116(b)(2)(A), taking into account 

economic conditions, characteristics of 

the individuals served, and other 

appropriate factors, and using, to the 

extent practicable, the statistical 

adjustment model under WIOA sec. 

116(b)(3)(A)(viii). The levels agreed to 

will be the levels of performance 

incorporated in the program plan, as 

required in WIOA sec. 167(c)(3). As for 

grantees providing housing services 

only, proposed paragraph (c) required 

that such grantees are to use the total 

number of eligible MSFWs served and 

the total number of eligible MSFW 

families served as indicators of 

performance. In proposed paragraph (d) 

the regulation advised that the 

Department may develop additional 

performance indicators with appropriate 

levels of performance for evaluating 

programs that serve eligible MSFWs and 

which reflect the State service area 

economy, local demographics of eligible 

MSFWs, and other appropriate factors. 

Finally, proposed paragraph (e) 

permitted grantees to develop additional 

performance indicators and include 

them in the program plan or in periodic 

performance reports. 

Comments: Some commenters raised 

concerns that enrollment and comstockstill on DSK3G9T082PROD with RULES6

Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56227 

enrollment of disadvantaged 

farmworkers could be jeopardized by 

performance standards, performance 

contracts, recognized credentials, and 

Ability-to-Benefit regulations because of 

partners’ concerns that their 

performance indicators would decrease 

when farmworkers participate. These 

commenters stated that the models used 

to determine expected performance for 

WIOA title I programs (adult, youth, and 

dislocated workers) should be adjusted 

to consider the barriers MSFWs face, 

and that the NFJP in each service area 

should be subject to these adjusted 

performance standards. 

Department Response: Establishing 

viable performance standards are crucial 

to program and fiscal accountability, 

evaluation of program effectiveness, and 

continuous quality improvement. The 

Department will negotiate performance 

goals for NFJP grantees providing career 

services and training based on several 

factors, including previous performance, 

economic conditions, characteristics of 

the individuals served, and other 

appropriate factors that are supported 

with data, as described in § 685.400(b). 

Comments: A few commenters 

suggested that NFJP negotiated 

performance standards should not be 

more stringent than those established 

for the Local Areas in which the NFJP 

is operated. 

Department Response: State title I 

formula programs differ from those of 

the NFJP program in the diversity of job 

seekers served, the types of services 

offered, and the number of individuals 

served annually; therefore, the 

Department does not support the 

suggestion that NFJP grantees should 

have the same performance levels as 

those of the local areas in which they 

operate. The Department will provide 

additional information on the WIOA 

performance accountability system and 

primary indicators of performance for 

NFJP grantees. 

Comments: Some commenters 

expressed concern about the inclusion 

of credential attainment in the new 

performance indicators for NFJP, as 

rural areas often lack credentialing 

programs. These commenters warned 

that, as written, the credential 

attainment indicator may deter service 

providers from targeting the rural 

MSFW population. Another commenter 

urged the Department to encourage but 

not require the attainment of 

credentials. 

Department Response: WIOA sec. 

167(c)(2)(C) requires that the NFJP 

utilize the primary indicators of 

performance described in WIOA sec. 

116(b)(2)(A), including postsecondary 

credential attainment and high school 

completion, therefore the Department 

cannot waive this measure for NFJP 

grantees. Some commenters warned 

that, as written, the postsecondary 

credential attainment indicator may 

deter service providers from targeting 

rural MSFW populations. However, as 

specified in § 685.350(c), NFJP training 

activities must encourage the attainment 

of recognized postsecondary credentials 

as defined in § 685.110 when 

appropriate for an eligible MSFW, but it 

is not required that all training provided 

to NFJP participants lead to a 

postsecondary credential. Therefore lack 

of credentialing programs in a given 

service area should not be a deterrent to 

providing needed training to eligible 

MSFWs. 

Comments: Many commenters noted 

that WIOA authorizes related assistance 

services for eligible MSFWs. One 

commenter added that related assistance 

provides support for farmworkers 

allowing them to stabilize and find 

agricultural work as they move within 

the harvest season, but rarely results in 

more than short term seasonal 

placements. Many commenters 

expressed concerns that including 

individuals who only receive related 

assistance services in performance 

indicator calculations would undermine 

the ability of grantees to provide these 

needed authorized services, and would 

contribute to negative results from the 

performance indicator evaluation 

system. 

Department Response: The 

Department is revising paragraph (b) of 

§ 685.400 in response to these 

comments. The Department 

acknowledges that related assistance is 

an important component of workforce 

services that assist eligible MSFWs 

retain or stabilize their agricultural 

employment. The term ‘‘related 

assistance’’ encompasses a range of 

services and activities, which require 

varying levels of involvement by NFJP 

grantees and their staff. In particular, 

§ 685.110 defines ‘‘emergency 

assistance’’ as a form of related 

assistance that addresses the immediate 

needs of eligible MSFWs and their 

dependents, provided by grantees. 

Emergency assistance may include the 

provision of necessary items, like 

garments of clothing. While providing 

clothing to a farmworker in need 

provides a significant benefit to the 

farmworker, it does not require a 

significant investment of grantees’ 

resources. Therefore, the Department 

has determined that including 

individuals who receive emergency 

assistance or other short-term related 

assistance that does not involve a more 

extended intervention, in the 

performance calculations would not 

necessarily measure the success of a 

grantee in providing WIOA services to 

eligible MSFWs. For example, the 

Department does not consider pesticide 

and worker safety training to be the kind 

of related assistance that requires the 

individual to be included in the 

performance metrics. The Department 

may request information regarding the 

number of individuals who received 

types of related assistance that are not 

included in the performance indicators. 

In order to clarify how individuals 

who only receive short term related 

assistance, such as emergency 

assistance, will be tracked and included 

in performance under WIOA, the 

Department has added the following 

language to § 685.400(b) clarifying that 

eligible MSFWs who receive any career 

services, youth services, training, or 

certain related assistance are considered 

participants as defined in 20 CFR 

677.150 of this chapter and must be 

included in performance calculations 

for the indicators of performance 

described in WIOA sec. 116(b)(2)(A); 

and additionally, that eligible MSFWs 

who receive only those services 

identified in 20 CFR 677.150(a)(3)(ii) or 

(iii) of this chapter are not included in 

performance calculations for the 

indicators of performance. The 

Department uses the term ‘‘certain 

related assistance’’ to indicate that 

individuals that received forms of 

related assistance that require a more 

significant involvement by the grantees’ 

staff, may be included in the 

performance metrics. In particular, as 

set forth in § 685.380, the related 

assistance includes those activities 

identified in WIOA sec. 167(d), which 

include school dropout prevention and 

recovery activities, self-employment and 

related business or micro-enterprise 

development or education, and 

customized occupational career and 

technical education. To the extent such 

forms of related assistance require a 

more significant involvement by the 

grantees’ staff, and are forms of related 

assistance related to education, training, 

career, or employment outcomes, these 

forms of related assistance will be 

included in performance calculations 

for the indicators of performance. The 

Department provides specific directions 

regarding the forms of related assistance 

to be included in performance 

indicators through guidance. Including 

all NFJP participants who receive career 

services, youth services, training, or 

certain related assistance that involves a 

significant investment of a grantee’s 

staff time in performance calculations 

also allows the Department to evaluate 

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fully the effectiveness of the services 

provided to farmworkers through the 

NFJP. Finally, in order to align this 

provision with 20 CFR 677.150(a)’s 

definition of participant, the 

Department notes that § 685.400(b) 

excludes individuals who only receive 

the services identified in 20 CFR 

677.150(a)(3)(ii) (accessing the selfservice system) or (iii) (information 

services or activities) (see Joint WIOA 

Final Rule). The Department does not 

agree with the assertion that the 

inclusion of eligible MSFWs who 

receive related assistance that involves 

more than a minimal amount of staff 

assistance in performance calculations 

for the indicators of performance would 

undermine the ability of grantees to 

provide these services, but rather, that 

NFJP grantees will now be evaluated for 

the related assistance they provide that 

is appropriately measured by the 

performance indicators. 

Section 685.460 Are there regulatory 

and/or statutory waiver provisions that 

apply to the Workforce Innovation and 

Opportunity Act? 

Proposed § 685.460 described the 

regulatory and/or statutory waiver 

provisions that apply to NFJP Programs, 

WIOA sec. 167. Paragraph (a) stated that 

the statutory waiver provision at WIOA 

sec. 189(i) and discussed in § 679.600 

(the general statutory and regulatory 

waiver authority in WIOA) does not 

apply to WIOA sec. 167. Paragraph (b) 

established that grantees may request a 

waiver of any regulatory provisions only 

when such regulatory provisions are (1) 

not required by WIOA; (2) not related to 

wage and labor standards, nondisplacement protection, worker rights, 

participation and protection of workers 

and participants, and eligibility of 

participants, grievance procedures, 

judicial review, nondiscrimination, 

allocation of funds, procedures for 

review and approval of plans; and (3) 

not related to the basic purposes of 

WIOA, described in 20 CFR 675.100. 

Comments: Several commenters 

expressed support for the continuation 

of a supposed selective service waiver 

process for male farmworkers who were 

unaware of the Selective Service 

registration requirement. One of these 

commenters reasoned that it can take up 

to 30 days to receive a response from 

Selective Service, which is a challenge 

for farmworkers who must regularly 

travel during short intervals to support 

themselves and their family. Another 

commenter stated that as a consequence 

of MSFW males not registering for 

Selective Service, many are denied 

services that are needed to assist them 

on their way to other employment. A 

different commenter suggested that the 

Department automatically waive male 

farmworkers who are past the age of 

military participation, especially if they 

were not born or educated in the United 

States. 

Department Response: The 

Department cannot waive this WIOA 

statutory requirement. WIOA sec. 189(h) 

requires that each individual 

participating in any program or activity 

established under title I of WIOA, or 

receiving any assistance or benefit 

under title I of WIOA, has not violated 

sec. 3 of the Military Selective Service 

Act (50 U.S.C. App. 453) by not 

presenting and submitting to 

registration. Allowing a selective service 

waiver would be inconsistent with 

WIOA sec. 189(h). 

7. Subpart E—Supplemental Youth 

Workforce Investment Activity Funding 

Under Workforce Innovation and 

Opportunity Act Sec. 127(a)(1) 

This subpart describes the purpose of 

supplemental youth workforce 

investment activity funding that may 

become available under WIOA sec. 

127(a)(1). Included is a description of 

how the funds may become available, 

and what requirements apply to grants 

funded by WIOA sec. 127(a)(1). 

Section 685.500 What is supplemental 

youth workforce investment activity 

funding? 

Proposed § 685.500 described that if 

Congress appropriates more than $925 

million for WIOA youth workforce 

investment activities in a fiscal year, 4 

percent of the excess amount must be 

used to provide workforce investment 

activities for eligible MSFW youth 

under NFJP Programs, WIOA sec. 167. 

Comments: One commenter asked the 

Department to clarify whether or not 

there are requirements or restrictions if 

the State is providing over 4 percent. 

Department Response: The 

Department is revising § 685.500 in 

response to this comment. There are no 

requirements or restrictions to States if 

Congress appropriates more than $925 

million for WIOA youth workforce 

investment activities in a fiscal year. 

This section of the Final Rule describes 

that if this funding threshold is met in 

any fiscal year under WIOA, the 

Department must make 4 percent of the 

excess amount available exclusively for 

workforce investment activities for 

eligible MSFW youth under WIOA sec. 

167. To accomplish this, as described in 

§ 685.520 (the application process for 

obtaining a grant funded by the WIOA), 

the Department will issue separate 

FOAs for grants funded by WIOA sec. 

127(a)(1). The selection of grantees will 

be made in accordance with the 

procedures described in § 685.210, 

except that the Department reserves the 

right to provide priority to applicants 

that are WIOA sec. 167 grantees. The 

term ‘‘by the Department’’ has been 

added to § 685.500 to clarify that if 

Congress appropriates more than $925 

million for WIOA youth workforce 

investment activities in a fiscal year, 4 

percent of the excess amount must be 

used by the Department to provide 

workforce investment activities for 

eligible MSFW youth under WIOA sec. 

167. 

J. Part 686—The Job Corps Under Title 

I of the Workforce Innovation and 

Opportunity Act 

1. Introduction 

This part establishes regulations for 

the Job Corps program, authorized in 

title I, subtitle C of WIOA. The 

regulations address the scope and 

purpose of the Job Corps program and 

provide requirements relating to site 

selection, protection, and maintenance 

of Job Corps facilities; funding and 

selection of center operators and service 

providers; recruitment, eligibility, 

screening, selection and assignment, 

and enrollment of Job Corps students; 

Job Corps program activities and center 

operations; student support; career 

transition services and graduate 

services; community connections; and 

administrative and management 

requirements. The regulations 

incorporate the requirements of title I, 

subtitle C of WIOA and describe how 

the Job Corps program is operated in 

order to deliver relevant academic and 

career technical training (CTT) that 

leads to meaningful employment or 

postsecondary education. The 

regulations also serve to explain clearly 

the requirements necessitated by the 

unique residential environment of a Job 

Corps center. The major changes from 

the existing regulations reflect WIOA’s 

effort to enhance the Job Corps program, 

provide access to high quality training 

and education, create incentives for 

strong contractor performance, and 

promote accountability and 

transparency. 

The analysis that follows provides the 

Department’s response to public 

comments received on the proposed Job 

Corps regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

address that specific section and the 

Department made no changes to the 

regulatory text. Further, the Department 

received a number of comments on this 

part which were outside the scope of the 

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regulation and therefore the Department 

offers no response. Lastly, the 

Department has made a number of nonsubstantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not all 

discussed in the analysis below. 

2. Subpart A—Scope and Purpose 

This subpart contains regulatory 

provisions that describe the Job Corps 

program, its purpose, the role of its 

Director, and applicable definitions. All 

references in this part to the Secretary 

issuing guidelines, procedures or 

standards means that they will be issued 

by the National Job Corps Director. This 

subpart also describes the Policy and 

Requirements Handbook (PRH), which 

provides the operating policies and 

procedures governing day-to-day 

activities of the Job Corps program. The 

subpart describes the scope and purpose 

of the program, along with the 

responsibilities of its National Director. 

It promotes accountability and 

transparency by making readers aware 

of exactly what the Job Corps program 

plans to achieve and the procedures for 

doing so, as well as the role its 

leadership plays in its operation. 

The analysis that follows provides the 

Department’s response to public 

comments received on the proposed Job 

Corps regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

address that specific section and no 

changes were made to the regulatory 

text. 

Section 686.110 What is the Job Corps 

program? 

This section generally describes the 

Job Corps program as administered by 

the Department. 

Comments: One commenter noted 

that formally teaching healthy 

relationship skills would satisfy the 

intensive social education described in 

the NPRM preamble discussion of 

proposed § 686.110. 

Department Response: The 

Department acknowledges the 

importance of teaching healthy 

relationship skills to Job Corps’ students 

and notes that such skills are currently 

provided in the Job Corps program. 

Section 686.110, as drafted, reflects the 

increased focus in sec. 141 of WIOA on 

connecting young people to the labor 

force by providing them with intensive 

social, academic, career and technical 

education, and service-learning 

opportunities. No changes to regulatory 

text were made in response to this 

comment. 

Section 686.120 What definitions 

apply to this part? 

This section explains the definitions 

applicable to this Final Rule. The 

Department received comments on 

several of the definitions. 

Comments: One commenter expressed 

support that the definition of an 

‘‘individual with a disability’’ aligns 

with the definition in sec. 3 of the 

Americans with Disabilities Act (ADA) 

because it provides ease of use for the 

WIOA programs and recommended that 

it be maintained and applied throughout 

WIOA. 

Several commenters remarked that 

‘‘participant’’ is appropriately defined 

as graduates, enrollees, and former 

enrollees who have completed the 

Career Preparation Period (CPP) or who 

have been on center for 60 days. These 

commenters also stated that Job Corps is 

likely to modify the requirements of the 

CPP to be more flexible as part of its 

modernization of the PRH and 

expressed concerns about creating 

incentives to extend CPP in order to 

prevent certain students from being 

included in the performance pools. 

Department Response: The definition 

of participant not only includes 

graduates and those enrollees and 

former enrollees who have completed 

the CPP, but also those who have 

remained in the program for 60 days or 

more, regardless of whether they have 

completed their CPP. Thus there is little 

incentive to extend the CPP simply for 

the purposes of trying to manipulate 

participant counts. No change to 

regulatory text was made in response to 

these comments. 

The same commenters noted that 

there is no mention of Zero Tolerance 

(ZT) Level 1 separations and whether 

these students will continue to be 

defined as participants or former 

enrollees following their mandatory 

dismissal from the program. These 

commenters stated that all ZT Level 1 

separations, regardless of length of stay, 

should be excluded from the definition 

of participant because it is critical for 

Job Corps to maintain a safe 

environment for its students and staff. 

The commenters explained that 

counting Level 1 ZT separators as 

participants for performance 

measurement counterintuitively 

penalizes centers and the program for 

taking actions that are necessary and 

mandated by WIOA to ensure the safety 

of students and holds Job Corps to a 

different standard than other training 

programs, making it difficult to compare 

Job Corps’ performance fairly to that of 

other programs. 

Department Response: WIOA’s 

performance accountability system was 

designed so that WIOA programs would 

be held accountable to the same primary 

indicators of performance. In order to 

implement Congress’ intent, the term 

‘‘participant,’’ as it applies to the Job 

Corps program, is designed to align with 

the definition of participant in 20 CFR 

677.150 (see Joint WIOA Final Rule), 

ensuring that the performance of the Job 

Corps program could be accurately 

compared with the performance of the 

other title I programs. The Department 

acknowledges the commenters’ concern 

regarding not penalizing Job Corps 

centers for maintaining safe 

environments and enforcing the 

program’s zero tolerance policy. 

However, compliance with and 

enforcement of the zero tolerance policy 

is required as part of the operation of a 

Job Corps center by every Job Corps’ 

operator. Any positive or negative effect 

the zero tolerance policy may have on 

the performance of a center under the 

primary indicators of performance does 

not change the requirement. In 20 CFR 

part 677 (see Joint WIOA Final Rule) 

and this part, the intent of the definition 

of participant is to capture all 

individuals that are engaged in, and 

receiving services from, the relevant 

program, regardless of when, and under 

what circumstances, they exit from the 

program. Adopting the commenters’ 

proposal would eliminate the 

conformance in the definitions of 

participant in both parts. Any exclusion 

from the definition of participant in 

regard to Job Corps for the purpose of 

calculating performance under the 

metrics described in § 686.1010 is 

provided in the annual performance 

guidance described in § 686.1000, and 

will be consistent with any applicable 

policies and guidance issued by the 

Employment and Training 

Administration. Accordingly, no change 

was made to the regulatory text in 

response to these comments. 

Comments: One commenter noted 

that knives of any length should be 

prohibited, not just those with blades 

longer than 2 inches as defined in 

‘‘unauthorized goods,’’ noting that 

knives of any blade length are 

dangerous. 

Department Response: The 

Department concurs with this 

commenter and has revised the 

definition of ‘‘unauthorized goods’’ in 

the regulatory text at § 686.120 to 

include all knives. 

Section 686.130 What is the role of the 

Job Corps Director? 

Comments: Several commenters noted 

that Job Corps’ authorities are currently 

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split among three offices (the Office of 

Job Corps, the Office of Contracts 

Management, and the Office of 

Financial Administration), which has 

effectively separated procurement, 

contracting, and budget authority from 

the Job Corps Director, despite the fact 

that guidelines and standards related to 

these authorities provide that they are 

the responsibility of the Job Corps 

Director. The commenters proposed that 

the Department clarify the regulation to 

state that the Job Corps Director retains 

the authority to set guidelines and 

standards related to secs. 147 and 159(a) 

of WIOA. One additional commenter 

echoed this proposal, noting that it 

would help Job Corps realize program 

management efficiencies. 

Department Response: The 

Department has concluded that the 

delegation of functions in regard to the 

Job Corps is more appropriately 

addressed in administrative orders as is 

done with other Department of Labor 

functions and therefore § 686.130 is 

being deleted from the regulation. 

3. Subpart B—Site Selection and 

Protection and Maintenance of Facilities 

This subpart describes how sites for 

Job Corps centers are selected, the 

handling of capital improvements and 

new construction on Job Corps centers, 

and responsibilities for facility 

protection and maintenance. The 

Secretary must approve the location and 

size of all Job Corps centers, and 

establish procedures for requesting, 

approving, and initiating capital 

improvement and new construction on 

Job Corps centers, which serves to 

strengthen and enhance the program as 

a whole. The requirements in this 

subpart are not significantly different 

from the corresponding requirements in 

the WIA Job Corps regulations at 20 CFR 

part 686, subpart B, and no comments 

were received on this subpart 

4. Subpart C—Funding and Selection of 

Center Operators and Service Providers 

This subpart implements new 

requirements of WIOA with regard to 

the operators of high-performing 

centers, the length of contractual 

agreements to operate Job Corps centers, 

and how entities are selected to receive 

funding to operate Job Corps centers and 

to provide outreach, admissions, and 

career transition support services. In 

addition to adding to the list of 

considerations currently used in 

selecting Job Corps center operators and 

service providers, WIOA emphasizes 

competition to increase the performance 

and quality of the Job Corps program. 

WIOA also provides that an entity, in its 

role as incumbent operator of a center 

deemed to be high performing, may 

compete in any competitive selection 

process carried out for an award to 

operate that center, even in cases where 

the selection of the operator is set aside 

for small businesses as required by the 

Federal Acquisition Regulation. This 

serves to ensure continued access to 

high quality training and education for 

Job Corps students. WIOA also provides 

that a center operations contract cannot 

exceed 2 years, with three 1-year 

options to renew. This codifies current 

Job Corps practice. Furthermore, WIOA 

precludes the Secretary from exercising 

an option to renew a center operations 

contract for an additional 1-year period 

if certain criteria are not met, with 

limited exceptions. All of these new and 

expanded provisions follow WIOA’s 

theme of enhancing the Job Corps 

program and providing access to high 

quality training and education by 

ensuring Job Corps centers are staffed 

with high quality service providers. 

Section 686.300 What entities are 

eligible to receive funds to operate 

centers and provide training and 

operational support services? 

Comments: A commenter 

recommended that the regulations 

clarify that an ‘‘entity’’ eligible to 

become a contractor must be a 

corporation, LLC, or other similar 

corporate structure, not just an 

individual. The commenter also 

suggested that the business as a whole, 

not just the individuals or principals of 

the entity, should have the requested 

experience. 

Department Response: WIOA clearly 

identifies the entities eligible to operate 

or provide services to a Job Corps 

center. To further limit those entities 

would be inconsistent with WIOA sec. 

147(a)(1)(A). Accordingly, no change 

was made to the regulatory text in 

response to these comments. 

Section 686.310 How are entities 

selected to receive funding to operate 

centers? 

This section describes how entities 

are selected to receive funding to 

operate Job Corps centers. WIOA 

contains new provisions intended to 

strengthen the Job Corps contracting 

process by requiring specific criteria 

that emphasize quality, performance, 

and accountability to be addressed as 

part of the selection process for center 

operators. The Department invited 

comment on how to best embed this 

focus. 

Comments: One commenter was 

concerned that the proposed framework 

for developing RFPs will result in 

conflicts of interest, stating that a 

workforce council that was established 

by the incumbent contractor should not 

have a say in the development of an 

RFP. The commenter stated that the 

regulations should clarify the topics on 

which the Local WDB and Governor 

may be consulted since either or both 

may have a relationship with the 

incumbent operator or other bidding 

contractors that could influence their 

responses. 

Department Response: The selection 

process for operators and service 

providers, and the roles of the Local 

WDB and the Governor in that process, 

are clearly laid out in WIOA sec. 

147(a)(2)(A). Limiting the topics on 

which the Local WDB or Governor may 

be consulted is inconsistent with this 

section of WIOA. Note that while WIOA 

does require consultations with various 

parties, the final content of the 

solicitation is at the discretion of the 

Department. No changes were made to 

the regulatory text in response to this 

comment. 

Comments: One commenter stated 

that robust application of the selection 

criteria is particularly important in the 

context of small-business set-asides 

under the Federal Acquisition 

Regulation (FAR). The comment stated 

that the Department frequently applies 

the FAR’s small business set-aside 

provision in a way that circumvents 

statutory selection criteria by setting 

aside a Job Corps contract whenever 

there are two or more small businesses 

expected to apply, without regard to the 

qualifications of those businesses. The 

commenter stated this has led to a 

significant decline in the quality of 

some centers, particularly where highly 

qualified and successful operators have 

been displaced by substantially lessqualified small businesses. The 

commenter recommended that the 

Department clearly specify in the 

regulations that contracting officers 

must apply the statutory selection 

criteria at each step of the contracting 

process, including when determining 

whether to engage in small business setasides, to ensure that only fully 

qualified entities are selected to operate 

Job Corps Centers. Further, the 

commenter suggested that the 

regulations emphasize that contracting 

officers must exercise their discretion 

under the FAR to cancel set-asides 

wherever doing so would be in the best 

interest of the program and its users and 

provide protection to incumbent 

operators at centers that routinely place 

in the top 10–15 centers. 

However, another commenter said 

that, as required by the FAR, the 

Department should operate within the 

law to promote participation by small 

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businesses in the Job Corps contracting 

arena. The commenter stated that it is 

incumbent upon the Department to 

apply the requirements of the FAR as 

they relate to sources sought and small 

business set asides in order to avoid 

creating monopolies that limit 

competition and result in cost 

inefficiencies and lower quality and 

performance. 

Department Response: The selection 

factors it considers in the sources sought 

process are a matter of program 

administration and are not statutorily 

required. The Department will include 

the statutory selection criteria in the 

sources sought process as it deems them 

to be applicable. In conducting its 

procurement actions, the Department 

complies with all applicable statutes 

and regulations, including the 

Competition in Contracting Act, the 

Small Business Act, and the FAR. This 

legal framework limits the Department’s 

ability to provide any exception to these 

processes beyond what is provided in 

WIOA. The Department cannot do what 

is proposed and no changes were made 

to the regulatory text. 

Comments: Several commenters noted 

that the RFP process must be timely; 

transparent, with the evaluation process 

clearly articulated; objective; and 

focused on proven past performance in 

delivering student outcomes to 

measurably differentiate between 

entities. Another stated that the best 

way to embed a focus on quality, 

performance, and accountability in the 

selection process is to ensure that the 

procurement process is under the full 

control of the National Office of Job 

Corps, and that past performance be 

based upon Job Corps-specific student 

outcomes. The commenter also 

suggested that procurement proposals 

be evaluated by Job Corps’ staff with 

technical knowledge of the Job Corps 

program. 

Multiple commenters suggested 

making all stakeholders involved in the 

procurement process, including 

procurement staff and decision-makers, 

accountable for student outcomes. 

These commenters noted that for the 

procurement process to be missionfocused, all procurement personnel 

must know and understand the Job 

Corps mission and its indicators of 

success. 

Department Response: The majority of 

the comments that were submitted 

relate to the agency’s internal 

organizational structure and personnel 

policies and actions, which the 

Department declines to address in this 

regulation. Further, the Department will 

consider past performance during the 

procurement process consistent with 

WIOA sec. 147(a). 

Comments: Some commenters 

specifically expressed concerns that the 

proposed regulations will allow bidders 

with inadequate experience in achieving 

high student outcomes to apply to 

operate Job Corps facilities. Other 

commenters recommended that the 

entire procurement, evaluation, and 

award process be overhauled so the 

primary criterion for evaluation in a 

procurement process focus on the past 

effectiveness of the offeror. These 

commenters recommended the use of 

adjectival ratings (e.g., excellent, very 

good, good) in each section of the 

proposal, with a rubric to define the 

adjectives. 

Department Response: In order to 

ensure flexibility in the operation of the 

Job Corps program, no changes will be 

made to the language in this part. 

Furthermore, the Department makes Job 

Corps award decisions based on the 

established criteria stated in the 

solicitation, many of which are statutory 

or decided on a best value basis. The 

best value approach allows the 

Department to consider the stated 

evaluation factors, which include 

various elements, such as technical 

approach, past performance and 

proposed price. 

Comments: Multiple commenters 

stated that the questions asked in the 

RFPs often have no direct relevance to 

the Job Corps center for which the 

solicitation is being conducted. They 

also recommended that the Department 

include language in the RFPs specifying 

how the combined records of a prime 

contractor and their subcontractors will 

be weighed and considered. One 

commenter noted that the Department 

should not only better define the 

applicable selection criteria, but it also 

should provide clear guidance 

concerning the points during the 

selection process that the criteria should 

be applied. This would create a more 

transparent framework and allow 

would-be center operators to understand 

the process better. In addition, the 

commenter believed the public could 

hold contracting officers accountable for 

their operator choices. 

Department Response: In order to 

ensure flexibility in the operation of the 

Job Corps program, no changes will be 

made to the language in this part. The 

Department issues guidance regarding 

the procurement process through the Job 

Corps’ PRH and other guidance issued 

by the Secretary. 

Comments: One commenter noted 

that offerors should have demonstrated 

experience and partnerships with State 

and local workforce boards, one-stop 

centers, employer organizations and 

labor organizations. 

Department Response: The 

Department notes that § 686.310(c)(3) 

requires proposals to address the degree 

to which the offeror demonstrates these 

relationships. 

Comments: Commenters also 

addressed the criteria in proposed 

§ 686.310(c)(4) requiring that an 

offeror’s past performance relating to 

operating or providing activities to a Job 

Corps center, including information 

included in any reports developed by 

the Department of Labor’s Office of the 

Inspector General (OIG), be considered 

during the evaluation process. Two 

commenters recommended that if a 

center is randomly selected as part of an 

audit and the audit reveals a systemic 

issue that impacts all centers regardless 

of operator, the offeror should not be 

viewed unfavorably during the 

procurement process. Another 

commenter suggested that the 

Department use multiple past 

performance indicators based on 

student outcomes beyond information 

about an offeror in Department of Labor 

Office of Inspector General (OIG) 

reports. The commenter recommended 

that past performance incorporate a 

contractor’s past Job Corps performance 

as measured by the Outcome 

Measurement System; the Department’s 

automated Contractor Past Effectiveness 

Report; the proposed annual Operator 

Performance Assessment; and the 

Contractor Performance Assessment 

Reports (developed for each Job Corps 

contract). 

Department Response: The 

requirement at § 686.310(c)(4) is a 

statutory requirement at sec. 

147(a)(2)(B)(i)(IV) of WIOA that 

describes the use of OIG reports on the 

offeror’s demonstrated effectiveness and 

cannot be changed. Further, the 

Department’s use of non-statutory 

criteria in the selection process is policy 

related and no changes were made to 

this regulatory text. 

Comments: In response to proposed 

§ 686.310(c)(5) and the Department’s 

request for comments on how to assess 

potential offerors’ past records in 

assisting at-risk youth to connect to the 

workforce, multiple commenters 

proposed that Job Corps use the 

Automated Past Effectiveness score 

issued to each contractor based on the 

Outcome Measurement System (OMS) 

report card. The commenters suggested 

that this assessment method ensured a 

consistent and understandable approach 

for evaluating an offeror’s record in 

assisting at-risk youth, and 

recommended that this system, or a 

similar system, be implemented to 

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ensure consistency and fairness. They 

also suggested that the Department 

include language specifying how the 

combined records of a prime contractor 

and its subcontractor(s) will be weighed 

and considered with respect to this 

provision. 

Several commenters recommended 

that to assess and differentiate past 

performance in assisting at-risk youth to 

connect to the workforce, the 

Department should conduct a review of 

both the interim and final contract 

performance assessment reports 

(CPARs) of an entity, if available, or 

other comparable information. One 

commenter also recommended that 

technical assistance in the area of 

connecting at-risk youth to the 

workforce be required. 

One commenter noted that the nature 

of the Job Corps program necessitates 

specialized experience that only can be 

obtained through experience in 

operating Job Corps or similar centers. 

Another commenter stated that the 

Department should require and evaluate 

at least 3 years of third-party validated 

outcomes related to Job Corps’ primary 

indicators of performance. The 

commenter noted that 3 years is 

suggested because 3 years of 

performance is used in this section of 

WIOA to evaluate and define highperformance among operators. 

A commenter recommended that the 

regulations call for entities to provide 

reports from objective sources to 

demonstrate performance results. The 

commenter stated that data collected 

solely by the offeror that cannot be 

independently verified should never be 

accepted as evidence of performance 

ability. For offerors with previous Job 

Corps experience, the commenter 

recommended that sources including 

the OMS, OBS, Student Satisfaction 

Survey, and Management Performance 

Outcome (MPO) be used to demonstrate 

performance results; for those offerors 

with no direct Job Corps experience, 

documentation from the funder, 

Common Measures outcomes, or thirdparty reports of the entity’s previous 

success in meeting its contractual 

obligations and achieving results should 

be submitted to support the entity’s 

ability to operate the center. 

Department Response: The 

Department continues to explore the 

most effective and reliable sources of 

information in assessing effectiveness 

and past performance in the operator 

selection process This requires 

flexibility to meet the changing needs of 

the Job Corps program and no changes 

have been made to the regulatory text. 

The criteria for effectiveness and past 

performance will be included in each 

solicitation. 

Comments: In response to the 

Department’s request for additional 

selection factors, multiple commenters 

noted that to ensure that potential Job 

Corps center operators are high-quality 

providers with documented outcomes 

and proven performance, the 

qualification requirements should be 

further refined and offered various 

additional selection factors to include in 

the solicitation. 

Department Response: Consistent 

with applicable procurement statutes 

and regulations the Department does not 

want to unduly restrict competition, and 

needs to maintain the flexibility to 

adjust its requirements for the changing 

needs of the Job Corps program and for 

each center when necessary to do so. No 

changes have been made to regulatory 

text in response to these comments. 

Comments: Several commenters noted 

that the delivery of quality services to 

students is dependent on hiring and 

maintaining qualified staff, and 

recommended that the procurement 

process include an evaluation that 

compares the costs proposed by an 

offeror to those identified in a market 

analysis. 

Department Response: The 

procurement process already includes 

an evaluation of these factors. In order 

to ensure flexibility in the operation of 

the Job Corps program, no changes will 

be made to the language in this part. 

Section 686.320 What if a current 

center operator is deemed to be an 

operator of a high-performing center? 

This section describes the criteria that 

an incumbent operator must meet in 

order to be considered the operator of a 

high performing center. If an entity is 

deemed to be the operator of a highperforming center, the entity is 

permitted to compete in any 

competitive selection process carried 

out for an award to operate that center, 

including those set aside for small 

businesses as required by the FAR. 

Comments: One commenter 

recommended that the language of 

§ 686.320(a) be amended so that it 

cannot be interpreted as allowing a 

high-performing incumbent operator to 

bid on an 8(a) set-aside procurement 

even if it is not in the Small Business 

Administration’s (SBA’s) 8(a) business 

development program. The commenter 

specifically recommended that the 

Department change the wording in 

§ 686.320(a) from ‘‘. . . that operator 

will be allowed to compete in any 

competitive selection process carried 

out for an award to operate that center’’ 

to ‘‘. . . that operator will be allowed to 

compete in full and open competitions, 

as well as procurements that are set 

aside for small business.’’ The 

commenter also recommended that the 

Department clarify that when a large 

business is awarded a contract set aside 

for small businesses, it cannot count 

toward the procuring agency’s small 

business contracting goals. 

Department Response: Section 

147(b)(1) permits a high-performing 

incumbent operator to compete in any 

competitive procurement process for the 

operation of that center. This includes 

competitive procurements set aside for 

participants in the SBA’s 8(a) business 

development program. Making the 

change suggested by the commenter 

would be inconsistent with the statutory 

requirement. As written, WIOA allows a 

high performing incumbent operator to 

bid on a competitive 8(a) set-aside 

procurement regardless of whether it is 

part of the SBA’s 8(a) business 

development program. The Department 

has also determined it is not necessary 

to clarify the language regarding large 

businesses receiving a contract set aside 

for small business. 

Comments: One commenter stated 

that the standard for high performing 

centers in proposed § 686.320(b) is 

currently unattainable, while several 

other commenters asserted that no 

center currently meets the standard. 

One commenter stated that the language 

is confusing and recommended that it 

be simplified, adding that high 

performing centers be those in the top 

30 percent ‘‘overall’’ on the OMS report 

at the time of procurement solicitation. 

Another commenter stated that the 

criteria for determining a highperforming contractor must be clear and 

use objective performance criteria. 

Department Response: The high 

performing criteria are established by 

statute; therefore, to be considered a 

high performing center under this 

section, an incumbent operator must 

meet the standards identified. No 

changes have been made to the 

regulatory text in response to these 

comments. 

Comments: Several commenters 

stated that not all centers have a career 

transition services (CTS) contract 

attached to the center; as such, these 

centers do not have complete control 

over their short- and long-term 

placement outcomes. These commenters 

recommended that the Department 

ascertain whether it is possible through 

statistical methods to isolate the impact 

of operators on the primary indicators of 

performance from those of their CTS 

contractor. 

Department Response: The 

Department acknowledges that not 

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every center has a CTS contract attached 

to it, nor does WIOA require that the 

CTS contracts be included as part of the 

center operations contract. Sec. 

159(c)(1) of WIOA and § 686.1050 of 

these regulations require the 

Department to establish expected levels 

of performance for each center and the 

method for calculating those levels via 

annual guidance issued by the 

Department. The Department has 

concluded that to maintain the 

necessary flexibility in the annual 

performance guidance for the Job Corps 

program the commenters’ suggestion is 

best considered as part of the yearly 

process of establishing the expected 

levels of performance and no changes to 

the regulatory text have been made in 

response to these comments. 

Section 686.330 What is the length of 

an agreement entered into by the 

Secretary for operation of a Job Corps 

center and what are the conditions for 

renewal of such an agreement? 

Comments: Commenters requested the 

Department to clarify the conditions 

that trigger the denial of an option year, 

specifically how the average of 50 

percent or higher of the expected level 

of performance for each of the six 

primary indicators will be calculated. 

Department Response: The 

Department provided a detailed 

description of the circumstances under 

which it will exercise an option in 

§ 686.330(c). The Department also 

identified a circumstance under which 

an option year will not be exercised in 

§ 686.330(d); however, there may be 

other circumstances under which an 

option year may not be exercised. 

Regarding the question of how the 

average of the expected levels of 

performance will be calculated, the 

Department has determined that, 

pursuant to sec. 147(g)(1) of WIOA, it 

will average the most recent 2 years of 

data, consistent with § 686.330(e), for 

each of the six primary indicators of 

performance. The Department will 

consider the standard outlined in 

§ 686.330(d)(2) met if the average on 

each of the six primary indicators for 

performance is below 50 percent. No 

changes have been made to the 

regulatory text in response to these 

comments. 

Comments: Several commenters noted 

that because it takes an average of 2 full 

years to improve the performance of a 

center, the first option year should 

always be granted to an operator taking 

over a low performing center so that any 

decision regarding renewal is based 

solely on the performance of the new 

operator and not the previous operator. 

Relatedly, regarding the availability of 

information when there has been a 

change of center operators 

(§ 686.330(e)), several commenters 

expressed concern that 6 months is an 

inadequate amount of time to assume 

full responsibility for the performance 

of the previous operator if the center is 

a low performing center (bottom 20 

percent). These commenters noted that 

in order to improve performance, new 

operators are required to install new 

leaders, set up a new management team 

and strategic plan, hire and train new 

employees, set up a new behavior 

management system, develop strong 

student leaders, establish a positive 

student culture, and undertake other 

time consuming tasks in order to 

successfully improve center 

performance. The commenters stated 

that the point at which the performance 

of the center reflects the performance of 

the current operator is contingent on 

vastly different conditions and 

deficiencies, and noted that if a calendar 

date must be used to reflect this, it 

should be no less than 2 years for the 

new operator of a low performing center 

and at least 1 year for other operators. 

One commenter noted that the point at 

which the performance of a center 

reflects the performance of the current 

operator will vary based on numerous 

conditions, including the shortcomings 

of the previous operator. As such, the 

commenter recommended that the 

length of time should be determined on 

a case-by-case basis. 

Department Response: The 

Department has considered these 

comments and agrees that, given that it 

takes at least a year for a new operator 

to improve the performance of a center, 

the possibility exists that a center with 

a new operator may continue to meet 

the definition of a low-performing 

center despite the change in operator. 

Accordingly, the Department added a 

clause to § 686.330(e)(1) to provide that 

when an operator takes over a center 

that was previously low performing, the 

first contractual option year will not be 

denied based on the performance 

criteria described in paragraph (d). This 

will provide the operator time to 

improve the performance of the center 

and ensure that the available data 

accurately reflects the performance of 

the current operator. 

Comments: Several commenters 

stated that ‘‘or’’ should be changed to 

‘‘and’’ in § 686.330(f)(1)(vii) in order to 

align with WIOA sec. 147(g), noting that 

the law and the regulations apply 

different criteria for performance that 

triggers an option year denial. 

Department Response: The 

Department agrees with the commenters 

and has made two changes to 

§ 686.330(f). First, paragraph (f)(2) has 

been reordered and moved to paragraph 

(f)(1) in order to maintain the same 

order of criteria as the previous section 

for ease of reading. In addition, the ‘‘or’’ 

between paragraphs (f)(1) and (2) has 

been changed to an ‘‘and’’ to indicate 

that in order for an option year to be 

denied under this provision both 

criteria must be met. 

Comments: Several commenters 

recommended that the Department 

define the term ‘‘significant 

improvements’’ in § 686.330(g)(1) to 

improve transparency, make 

expectations clear, and avoid charges of 

favoritism. 

Department Response: The 

Department has determined that 

because each performance improvement 

plan (PIP) is unique and tied to a 

specific set of factors that pertain to a 

specific contractual situation, it will not 

further define the term ‘‘significant 

improvements’’ here as those 

improvements will necessarily vary by 

PIP. 

Section 686.340 How are entities 

selected to receive funding to provide 

outreach and admission, career 

transition and other operations support 

services? 

Comments: One commenter stated 

that the proposed regulation does not 

adequately implement the rigorous 

service provider selection criteria 

prescribed by Congress in WIOA and 

takes insufficient steps to ensure that 

Job Corps users will receive the highest 

quality services and training possible. 

Another commenter suggested that the 

Department utilize OMS outcome 

information when evaluating career 

transition service (CTS) contract 

proposals and set up a report to assess 

students’ connection to the workforce 

after leaving the Job Corps center. 

Department Response: The selection 

criteria described in § 686.340(c) are 

taken directly from sec. 147(a)(2)(B)(i), 

which are the criteria required to be 

used in selecting an outreach and 

admissions (OA) or career transition 

services provider (CTS). The 

Department has included § 686.340(c)(6) 

to provide flexibility to include 

additional selection criteria if the 

Department determines such criteria are 

necessary to ensure the highest quality 

service providers. No changes have been 

made to the regulatory text in response 

to these comments. 

Comments: Another commenter 

recommended that all CTS contracts be 

attached to prime Job Corps center 

contracts because it would provide a 

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cost-effective method to afford 

accountability to Job Corps results. 

Department Response: The Job Corps 

contracting processes and structure 

regarding center operations contracts 

and CTS contracts require flexibility as 

they are driven by the program’s 

evolving needs. The Department 

declines to make changes to the 

regulatory text in response to this 

comment, and will issue guidance as 

necessary. 

Section 686.350 What conditions 

apply to the operation of a Civilian 

Conservation Center? 

Comments: Commenters expressed 

concern regarding proposed 

§ 686.350(e), which allows the Secretary 

of Labor, in consultation with the 

Secretary of Agriculture, to select an 

entity to operate a CCC in accordance 

with the requirements of § 686.310 if the 

Secretary of Labor determines it is 

appropriate. The commenters 

recommended that CCCs continue to be 

managed by the USDA Forest Service. 

Commenters stated that USDA-operated 

CCCs should not be able to be replaced 

by a private for-profit entity; one 

commenter specifically stated that there 

is potential for contract centers to 

misuse resources and that contract 

centers do not have the additional layer 

of oversight that CCCs have. 

Several commenters opposed 

§ 686.350(f), which provides that the 

Secretary of Labor has the discretion to 

close CCCs if the Secretary determines 

it to be appropriate. Commenters stated 

that the CCC National Director, the 

Forest Service Chief, and Secretary of 

the United States Department of 

Agriculture (USDA) need to have 

control and the final say as to the 

performance and closure of any CCC, as 

opposed to closure being at the sole 

discretion of the Secretary of Labor. 

Some commenters stated that proposed 

§ 686.350(f) gives authority to one 

person—the Secretary of Labor—to 

make a unilateral decision that would 

affect thousands of people. Commenters 

suggested that there should be a wider 

range of people involved and time to 

present a case against closure of any 

particular center, as the closure of 

centers have a devastating effect on 

surrounding communities. Other 

commenters expressed concern that this 

proposed regulation would give one 

agency the ability to make employment 

decisions about another agency’s 

personnel and would take away the 

personnel’s ability to appeal 

employment decisions within their own 

agency. One commenter stated that this 

proposed provision would damage 

morale and create uncertainty among 

the CCC workforce. Another commenter 

remarked that taxpaying residents of the 

community where the CCC is located 

should be involved and/or their 

opinions be taken into consideration 

when making decisions regarding CCCs. 

Still another commenter stated that the 

proposed language focuses solely on 

closure. The commenter noted that with 

no clearly defined, objective assessment 

system in place that includes obtainable 

benchmarks, the language in proposed 

§ 686.350(f) would create an 

unaccountable system without hope for 

improvement. The commenter further 

noted that the valuations made on the 

data collected by the Department’s 

systems use flawed assumptions within 

a system biased toward contractors. 

Some commenters suggested that 

instead of allowing the Department to 

close a CCC if it deems appropriate, the 

regulations should implement the text 

in WIOA regarding low performing 

CCCs exactly as written. 

Department Response: The 

Department is committed to improving 

the performance of CCCs by using the 

numerous tools provided by WIOA, 

including the procedures outlined in 

WIOA sec. 159(f)(2) and (f)(4), which are 

incorporated into the regulations at 

§ 686.1070. However, the Department is 

constantly working to ensure that its 

limited resources are used to deliver the 

best possible results for students. As 

part of ongoing efforts to ensure its 

resources are best utilized, the 

Department may conclude that closing a 

CCC or selecting an entity to operate it 

on a competitive basis will allow it to 

provide the highest quality program to 

its students more effectively. In order to 

better serve the nation’s youth in 

acquiring career skills through quality 

job training and education, the 

Department must retain all of its options 

with regard to improving its centers and 

the program as a whole, including, but 

not limited to, considering for closure or 

private operation through a competitive 

procurement process those Job Corps 

centers marked with consistent and 

entrenched poor performance. While 

§ 686.350(f) does provide that the 

Secretary of Labor has the discretion to 

close CCCs if determined appropriate, 

any decision to close a CCC will be 

made in full accordance with the 

Department’s published closure criteria 

and the procedural requirements 

outlined in WIOA. No changes have 

been made to the regulatory text in 

response to these comments. 

5. Subpart D—Recruitment, Eligibility, 

Screening, Selection and Assignment, 

and Enrollment 

This subpart describes who is eligible 

for Job Corps under WIOA and provides 

additional factors that are considered in 

selecting eligible applicants for 

enrollment. It describes how applicants 

who meet eligibility and selection 

requirements are assigned to centers, 

reflecting WIOA’s new requirements 

that the assignment plan consider the 

size and enrollment level of a center, 

including the education, training, and 

supportive services provided, and the 

performance of the Job Corps center 

related to the newly established 

expected levels of performance. WIOA 

also amended the assignment plan to 

provide for assignments at the center 

closest to home that offers the type of 

career and technical training selected by 

the individual rather than just the center 

closest to home, which improves access 

to high quality training for Job Corps 

students. These regulations serve to 

enhance the Job Corps program overall 

by ensuring that the individual training 

and education needs of applicants and 

enrollees are met in accordance with the 

requirements of WIOA. They also 

ensure that applicants and enrollees are 

provided accurate information about the 

standards and expectations of the Job 

Corps program and are fully prepared to 

be successful. 

In addition to changes described 

below, in § 686.470 the Department has 

updated the citation to the regulations 

implementing sec. 188 of WIOA from 29 

CFR part 37 to 29 CFR part 38. 

Section 686.410 Are there additional 

factors which are considered in 

selecting an eligible applicant for 

enrollment? 

Comments: To accomplish its mission 

to provide disadvantaged youth a path 

to self-sufficiency, two commenters 

recommended that admissions 

counselors have the discretion to 

determine whether an applicant’s Career 

and Technical Education needs can best 

be met through the Job Corps program. 

The commenters stated that Job Corps 

centers must provide a safe and 

supportive environment for young 

people who have the desire and ability 

to take advantage of its services, and to 

do this Job Corps cannot be considered 

a treatment program or a vocational 

rehabilitation program. These 

commenters noted that they favor the 

direction described by a Department 

official at the National Job Corps 

meeting in April 2015, that math, 

reading, interest, and aptitude 

assessments were in the offing for 

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admissions counselors to use when 

making their determinations. 

They also suggested that in order to 

determine whether an applicant is likely 

to be successful in group situations, 

admissions counselors must have access 

to information about the applicant’s past 

performance in schools or other group 

settings because, if the applicant has a 

history of fighting or disruptive 

behavior, it is likely that this behavior 

will be brought to Job Corps and be even 

more disruptive in a residential setting, 

impeding the safety of others. The 

commenters noted that admissions 

counselors need access to mental health 

reports in cases where significant 

behavior problems could preclude 

successful interactions in group settings, 

and need to be on the medical/mental 

‘‘need to know’’ list so they can 

complete a thorough review of the 

additional factors in determining that 

Job Corps is the best fit for an applicant. 

Department Response: The 

Department has determined that 

§ 686.410(a) and (b) provide the 

authority for admissions counselors to 

consider all available, relevant 

information in determining whether an 

applicant is eligible and well suited for 

Job Corps. More specifically, these two 

paragraphs provide admissions 

counselors with the discretion to make 

the determination, consistent with the 

process outlined in Job Corps’ PRH, that 

an applicant has the desire and ability 

to take advantage of the services offered 

by the Job Corps program and that the 

applicant will not create an unsafe 

learning environment if admitted into 

the program. Ultimately, retaining the 

language proposed in the NPRM while 

providing additional guidance and 

detail in the PRH provides both the 

Department and admissions counselors 

the necessary flexibility and appropriate 

framework to administer the admissions 

process. No changes were made to 

regulatory text in response to these 

comments. 

Comments: Commenters suggested 

that applicants should be required to 

participate in a pre-orientation program 

as part of their eligibility assessment 

and should, where feasible, visit a Job 

Corps center in their local area. The 

commenters noted that a process to 

document the outcomes of all 

assessments should be developed, with 

the explanation of outcomes fully 

documented. In addition, when a 

determination is made that Job Corps is 

not the best program to meet an 

applicant’s needs, a referral to a more 

suitable program should be made. 

Department Response: As discussed 

above, the PRH provides the detailed 

procedures governing the admissions 

process, including procedures for 

documenting the process and actions 

that should be taken if an applicant is 

denied enrollment. 

Comments: The Department received 

several comments about proposed 

§ 686.410(d), which requires that all 

applicants submit to a background 

check and that those who have been 

convicted of a felony consisting of 

murder, child abuse, or a crime 

involving rape or sexual assault be 

found ineligible for participation in Job 

Corps. Commenters suggested that Job 

Corps consider what procedures to put 

in place during the admissions process 

to ensure that it is not reflexively 

enrolling students with felony 

convictions or other violent and serious 

crimes not explicitly mentioned in 

WIOA, including attempted murder, 

robbery, assault/battery, and drug 

trafficking. The commenters 

acknowledged that while Job Corps 

cannot legally exclude these applicants 

from the program based solely on these 

convictions, the admissions process 

should include clear and universal 

standards for assessing and determining 

whether Job Corps will best meet these 

students’ career goals and stated that a 

residential environment like Job Corps 

may not be a productive environment 

for these youth to pursue their career 

development, particularly the 

development of 21st century skills, 

given their past history. 

The commenters stated that clear 

standards and processes must be 

defined for assessments and 

determinations related to cases in which 

a background check reveals that an 

applicant is on probation, parole, under 

a suspended sentence, or under the 

supervision of any agency as a result of 

court action or institutionalization. The 

commenters also suggested that there 

should be a 6-month waiting period for 

an applicant after the individual is 

released from juvenile detention, drug 

rehab, or an adjudicated group home 

prior to being enrolled in the program 

in order to allow the individual to 

demonstrate successful engagement 

with the community at-large without 

court or other oversight and increase the 

likelihood that the individual can 

participate successfully in the program 

without jeopardizing the safety of other 

students. 

One commenter was concerned that 

this provision would give Job Corps too 

much discretion with little or no 

guidance to aid in the decision to admit 

an individual with a criminal record, 

and suggested that the Department 

provide additional guidance to aid Job 

Corps in determining whether an 

individual with a criminal history that 

does not include one of the identified 

felonies is eligible for participation. 

Without such guidance, this commenter 

expressed concern that there would be 

considerable risk that some applicants 

would be the victims of unfairness, 

arbitrariness, and perhaps 

discrimination. 

Department Response: As drafted, 

§ 686.410(a) and (b) provide the 

authority for admissions counselors to 

consider all relevant, available 

information in determining whether an 

applicant may be selected for 

enrollment, including information 

obtained from background checks and 

from the applicant. In addition, Job 

Corps’ PRH provides guidance and 

standards on how to assess the 

applicant’s past behavior in the 

admissions screening process, including 

prior felony convictions and all other 

interaction with the criminal justice 

system. These factors are designed to 

identify applicants that can benefit from 

and succeed in the program and to 

screen out individuals who are not 

suited for the program. In making the 

relevant eligibility determinations, the 

admissions counselor must follow the 

guidance and standards in the PRH. No 

changes were made to the regulatory 

text in response to these comments. 

Section 686.450 How are applicants 

who meet eligibility and selection 

criteria assigned to centers? 

This section describes how applicants 

who meet eligibility requirements are 

assigned to centers. Paragraph (a)(4) of 

§ 686.450 provides that the performance 

of a Job Corps center with respect to the 

expected levels of performance should 

be taken into account when assigning 

new students to centers. 

Comments: Several commenters 

expressed concern that this would 

require admissions counselors to give 

preference to high-performing centers, 

which would be impossible to 

implement for Outreach and 

Admissions (OA) contracts that are 

attached to and responsible for 

recruitment for a single Job Corps 

center, and challenging for OA contracts 

that are responsible for assignment to 

multiple centers across a State or region. 

The commenters questioned how the 

assignment plan would account for 

changing performance levels and how 

this will be reflected in the performance 

goals specified in OA contracts. The 

commenters noted that the Department 

has indicated that one of its 

requirements to exit a Performance 

Improvement Plan (PIP) will be to 

achieve a minimum on-board strength 

(OBS) threshold, and denying or 

limiting enrollments to a center on a PIP 

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could result in that center never meeting 

these goals despite otherwise improving 

performance. One commenter 

questioned how the assignment of 

students under the requirements of this 

section would account for changing 

performance levels since assessments 

are done on such a long term cycle, 

stating that experience has shown that 

it takes on average 2 full years to 

improve the performance of a lowperforming center. The commenter 

further stated that it often takes 18 to 24 

months to recruit, hire, and develop 

staff, train and cultivate student leaders, 

change the student culture, and 

ultimately improve performance. The 

commenter expressed concern with the 

perceived conflict of interest that is 

generated when a single contractor 

handles OA and career transition 

services (CTS) functions and is the 

center operator. 

Department Response: Paragraph 

(a)(4) of § 686.450 mirrors the 

requirements of WIOA at sec. 

145(c)(2)(D). WIOA sec. 145(c) requires 

that the Secretary develop and 

implement a plan for assigning enrollees 

to Job Corps centers based on targets 

and analysis of specific criteria outlined 

under sec. 145(c)(1) and (2). The 

performance analysis requirement under 

WIOA sec. 145(c)(2)(D) relates to the 

expected levels of performance for 

indicators described in sec. 159(c)(1) 

and whether any actions have been 

taken with respect to the center under 

sec. 159(f)(2) and (f)(3). While the Final 

Rule mirrors the statutory requirements, 

Job Corps is required under this 

provision to consult with center 

operators in analyzing the factors 

described in WIOA sec. 145(c)(2)(D). 

The Department has modified 

§ 686.450(a) to clarify that the list of 

factors identified is non-exclusive. This 

addition clarifies that all of the 

challenges can be raised and discussed 

as part of the required analysis. Finally, 

on-board strength is not a component of 

the Performance Improvement Plan and 

is therefore irrelevant to this provision. 

Accordingly, no changes were made to 

the regulatory text in response to these 

comments. 

6. Subpart E—Program Activities and 

Center Operations 

This subpart describes the services 

and training that a Job Corps center 

must provide. Job Corps provides 

residential services in combination with 

hands-on training and experience 

aligned with industry standards. While 

education, training, and job placement 

are core components of what the 

program offers, this section of the 

regulations describes how Job Corps 

provides a comprehensive service 

model that also includes life skills, 

emotional development, personal 

management, and responsibility. New 

regulations addressing advanced career 

training programs are included; such 

programs provide broader opportunities 

for higher wages and career 

advancement. 

This subpart also establishes the 

requirements for a student 

accountability system and behavior 

management system. Job Corps’ policy 

for violence, drugs, and unauthorized 

goods is described. Requirements to 

ensure students are provided due 

process in disciplinary actions, to 

include center fact-finding and review 

board and appeal procedures are 

outlined. These systems and 

requirements serve to enhance the Job 

Corps program by ensuring that Job 

Corps centers are safe and secure 

environments that promote the 

education and training of students. 

Approved experimental, research and 

demonstration projects related to the Job 

Corps program are authorized in this 

subpart, which also serves to enhance 

the program. 

In addition to changes described 

below, in § 686.560 the Department has 

updated the citations to the regulations 

implementing sec. 188 of WIOA from 29 

CFR part 37 to 29 CFR part 38. 

Section 686.500 What services must 

Job Corps centers provide? 

Comments: One commenter 

recommended that the regulatory text 

contain a statement that academic 

instruction includes entry-level 

workforce preparation and/or 

preparation for recognized 

postsecondary education and training. 

Department Response: The added 

detail to academic instruction suggested 

by the commenter is currently included 

at § 686.505(b), which describes 

academic instruction in preparation for 

postsecondary education and training. 

Additionally, § 686.505(c) further 

describes programs that must be 

provided to students in order to learn 

workforce preparation skills such as 

independent learning and living skills, 

including: Job search and career 

development, interpersonal relations, 

driver’s education, study and critical 

thinking skills, financial literacy, and 

other skills specified in program 

guidance. In addition, after further 

review of § 686.500, the Department 

decided to provide additional clarity in 

the language at § 686.500(a)(1) by 

changing ‘‘(iii) Employability and 

independent learning and living skills 

development’’ to ‘‘(iii) Employability 

and skills training; and (iv) Independent 

learning and living skills development.’’ 

Section 686.505 What types of training 

must Job Corps centers provide? 

This section describes the training 

that Job Corps centers must provide to 

students. Commenters stated that Job 

Corps must continuously seek to 

improve student academic and technical 

credential attainment, workforce 

connectivity, and postsecondary 

attainment results to put graduates on 

the road to self-sufficiency. 

Comments: The commenters had 

multiple recommendations that fell 

under four broad categories: (1) 

Improving academic outcomes; (2) 

improving technical training and 

placement outcomes; (3) improving 

critical thinking, problem solving, 

decision-making, and other 21st century 

skills; and (4) cultivating a safe living 

and learning environment. Commenters 

recommended that Job Corps develop 

policies and requirements to, among 

other things, increase active and 

personalized learning through the use of 

digital tools and proper teacher training; 

expand partnerships with 

postsecondary institutions and 

apprenticeships; enhance employer 

relationship and in-demand credential 

attainment; and improve mental health 

and healthy relationship services and 

resources available to students. 

Department Response: The 

Department has determined that the 

requirements in sec. 148 of WIOA and 

§ 686.505 already capture and 

encompass many of the proposed and 

valuable suggestions. Additional 

training requirements and policies 

related to training will be implemented 

through updates to the Job Corps PRH. 

As such, no changes were made to the 

regulatory text in response to these 

comments. 

Comments: One commenter noted 

that teaching healthy relationship skills 

will make students more economically 

self-sufficient and views them as an 

essential part of employability, living 

skills, and interpersonal relationship 

skills. 

Department Response: Healthy 

relationship and living skills training 

are included in the list of training 

activities at § 686.505(c); all of the skills 

suggested by the commenter may be 

provided to students under this section. 

Comments: One commenter 

recommended that high school 

diplomas be regionally accredited and 

that secondary education programs 

include entry-level workforce 

preparation activities that lead to 

recognized postsecondary credentials in 

in-demand occupations and should be 

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included in the regulatory text under 

§ 686.505. 

Department Response: In order to 

retain flexibility to adjust to evolutions 

in accreditation, the Department issues 

guidance through the Job Corps’ PRH. 

Section 686.510 Are entities other than 

Job Corps center operators permitted to 

provide academic and career technical 

training? 

Comments: Expressing support for 

proposed § 686.510, a commenter 

remarked on the importance of allowing 

unions to provide academic, career, and 

technical training, pointing out that 

unions have successfully transitioned 

students into apprenticeship programs. 

The commenter further stated that they 

are pleased that the NPRM envisions 

continued Job Corps participation by 

other entities that are not center 

operators but that do have a proven 

record of facilitating the entry of young 

people into careers that are a pathway 

to the middle class. Another commenter 

suggested that the Department revise 

this section to require that academic 

education be provided by public or 

regionally accredited private 

educational organizations that have 

demonstrated effectiveness in providing 

programs that include entry-level 

workforce preparation and/or 

postsecondary education and training. 

Department Response: The 

Department agrees that the career 

technical and academic education of Job 

Corps students should be provided by 

entities ‘‘with demonstrated 

effectiveness’’ and has changed this 

section to include this requirement. The 

Department will not limit the entities to 

the suggested ‘‘public or regionally 

accredited organizations’’ because all of 

the entities described in this section are 

statutorily required, per sec. 148(b) of 

WIOA, to provide academic instruction. 

The regulatory text was changed 

accordingly. 

Section 686.515 What are advanced 

career training programs? 

Comments: A few commenters 

suggested ACT programs should be 

restored at Job Corps centers that 

eliminated them or downsized them due 

to budget cuts, noting that in many 

cases the programs could be restored 

with minimal costs. These commenters 

requested that the Department provide 

guidance to centers on how to restore 

their ACT programs or to establish new 

programs. 

Department Response: The 

Department acknowledges concerns 

about ACT programs; however, its 

decision to eliminate or downsize these 

programs was due to budget cuts and 

any decision to restore ACT programs 

will be based on available funds and 

will be handled on a case-by-case basis. 

Comments: Regarding the § 686.515(c) 

provision that permits a center to 

exceed the approved capacity of the 

program under certain circumstances, 

two commenters requested that the 

Department provide clarification on 

what it means to achieve ‘‘satisfactory 

rate of training and placement in 

training-related jobs.’’ These 

commenters recommended that 

programs that exceed the centers’ 

overall completion and placementrelated goals over the preceding 

program year qualify for expansion 

without approval from the Department. 

The commenters also requested 

clarification as to how or whether center 

operators qualify if they have been 

operating the center for less than 2 

program years when their performance 

is likely more reflective of the previous 

operator. 

Department Response: The 

Department is not making any 

substantive changes to the language in 

this part in response to these comments, 

but has made a minor change to align 

with the corresponding WIOA 

provision. The Department 

acknowledges the suggestion that Job 

Corps provide guidance regarding what 

it means to achieve a satisfactory rate of 

training and placement. The 

Department’s change in the provision at 

§ 686.515(c)(1) revised the text from 

‘‘participants in such a program have 

achieved a satisfactory rate of training 

and placement in training-related jobs’’ 

to ‘‘participants in such a program have 

achieved a satisfactory rate of 

completion and placement in trainingrelated jobs’’ to align this provision with 

WIOA sec. 148(c)(3)(A). After 

consideration, the Department has 

determined that defining a satisfactory 

rate of completion and placement, 

including the relevant data that will be 

reviewed in making this decision, falls 

under program administration. In order 

to ensure flexibility in the operation of 

the Job Corps program, because the 

Department continually reviews and 

revises the performance management 

system to effectively manage and best 

serve Job Corps’ needs. Regarding the 

commenters’ question about how or 

whether center operators qualify if they 

have been operating the center for less 

than 2 program years and the 

recommendation that if completion and 

placement goals are exceeded for a 

preceding program year the center 

should qualify for expansion, the 

Department acknowledges the 

commenters’ concerns. However, the 

requirement for additional enrollments 

in the ACT program, which includes 2 

program years of performance data, is 

statutorily required at WIOA sec. 

148(c)(3)(b), regardless of how long an 

operator has been operating a center. 

The change to the provision at 

§ 686.515(c)(1) is the only change made 

to the regulatory text in response to 

these comments. 

Section 686.520 What responsibilities 

do the center operators have in 

managing work-based learning? 

Comments: Requesting clarification 

that Job Corps centers should be 

allowed to act as employers for workbased learning, two commenters 

recommended that the wording in 

§ 686.520(a) be changed to the 

following: ‘‘The center operator must 

emphasize and implement work-based 

learning programs for students through 

center program activities, career 

technical skills training, and through 

arrangements with employers . . . .’’ 

Department Response: The 

Department is not making any changes 

to the regulatory text in response to 

these comments. Paragraph (a) of 

§ 686.520 reads, ‘‘The center operator 

must emphasize and implement workbased learning programs for students 

through center program activities, 

including career and technical skills 

training, and through arrangements with 

employers. Work-based learning must 

be under actual working conditions and 

must be designed to enhance the 

employability, responsibility, and 

confidence of the students. Work-based 

learning usually occurs in tandem with 

students’ career technical training.’’ The 

Department has determined that the 

language at § 686.520(a) is identical in 

meaning to the language suggested by 

commenters. Under this provision 

centers may serve as employers for 

work-based learning. However, per the 

requirements of this provision, the 

work-based learning must be under 

actual working conditions, designed to 

enhance the employability of the 

student, and occur in tandem with the 

student’s career technical skills training. 

Section 686.530 What residential 

support services must Job Corps center 

operators provide? 

Comments: A few commenters 

recommended that the Department add 

clarifying language on medical services 

stating that, with the exception of a 

direct reference to the requirement for 

Trainee Employee Assistance Program 

(TEAP) services that related to Job 

Corps’ zero tolerance policy, required 

medical services, should be limited to 

comparable services that exist on most 

college campuses. These commenters 

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further stated that Job Corps, in 

conjunction with community partners, 

should be required to educate enrollees 

regarding insurance access and 

requirements with respect to the 

Affordable Care Act and to connect 

enrollees to the appropriate insurance. 

Department Response: Section 

686.530, with regard to medical 

services, states that medical services 

must be provided through provision or 

coordination of a wellness program that 

includes access to basic medical, dental, 

and mental health services, as described 

in the PRH, for all students from the 

date of enrollment until separation from 

the Job Corps program. Making the 

changes suggested by the commenters in 

the regulation would reduce the 

flexibility quickly to adjust the medical 

services and other residential support 

services required to be provided at a 

center. Accordingly, no changes were 

made to the regulatory text in response 

to these comments, but the PRH will 

continue to be modified as needed. 

Comments: Additionally, two 

commenters urged clarification in 

§ 686.530(g) to ensure that student 

welfare associations can use fundraisers 

to secure funds. 

Department Response: The 

Department agrees with the request to 

include language to § 686.530(g) 

clarifying that student welfare 

associations can use fundraisers to 

secure funds as an activity to support 

the association in addition to the 

specific activities listed to raise funds, 

as described in this section. As such, the 

section has been edited to include a 

reference to ‘‘and other fundraising 

activities.’’ 

Section 686.545 What is Job Corps’ 

zero tolerance policy? 

Comments: A few commenters 

recommended changing the wording in 

§ 686.545(c) to read as follows: ‘‘The 

zero tolerance policy specifies the 

offenses that result in the separation of 

students from the Job Corps. The center 

director is expressly responsible for 

determining when there is a violation of 

this policy.’’ 

Department Response: The 

Department agrees with the commenters 

and has included new language at 

§ 686.545(c) for clarity, so that the 

revised paragraph now provides that the 

center director is responsible for 

determining when there is a violation of 

the policy, as opposed to a violation of 

a specified offense. 

Section 686.565 Is Job Corps 

authorized to conduct pilot and 

demonstration projects? 

Comments: Some commenters 

suggested that Outcome Measurement 

System (OMS) results should be put on 

hold for centers implementing pilot and 

demonstration projects until the project 

is completed, stating that this worked 

well with the ‘‘Centers for Excellence’’ 

pilot. 

Department Response: The 

Department has determined that the 

decision of whether the OMS results 

will be placed on hold for centers 

implementing pilots is best addressed 

on a case-by-case basis, as there may be 

multiple, unique factors to consider in 

each project at different center 

locations, requiring flexibility in the 

operation of the pilot or demonstration 

project. No changes were made to the 

regulatory text in response to these 

comments. 

7. Subpart F—Student Support 

Subpart F discusses the support 

services provided to Job Corps enrollees, 

including transportation to and from Job 

Corps centers, authorized student leave, 

allowances and performance bonuses, 

and student clothing. In addition to 

being eligible to receive transportation 

to and from Job Corps centers, students 

are eligible for other benefits, including 

basic living allowances to cover 

personal expenses, in accordance with 

guidance issued by the Secretary. 

Students are also provided with a 

modest clothing allowance to enable 

them to purchase clothes that are 

appropriate for the classroom and the 

workplace. These proposed regulations 

will again work to strengthen the Job 

Corps program and provide access to 

high quality training by ensuring that 

Job Corps students are placed in the best 

possible position to prepare them for 

learning, and that they are rewarded for 

their success in the program. 

No public comments were submitted 

in response to the NPRM for this 

subpart. 

8. Subpart G—Career Transition and 

Graduate Services 

This subpart discusses career 

transition and graduate services for Job 

Corps enrollees. Job Corps focuses on 

placing program graduates in full time 

jobs, postsecondary education, 

advanced training programs, including 

registered apprenticeship programs, or 

the Armed Forces. In an effort to further 

integrate the Job Corps program with the 

greater public workforce system and 

align it with the core programs, 

§ 686.820 specifically focuses on how 

Job Corps will coordinate with other 

agencies, where emphasis is placed on 

utilizing the one-stop delivery system to 

the maximum extent practicable. This 

subpart also outlines a center’s 

responsibilities in preparing students 

for career transition services; the career 

transition services that are provided for 

enrollees; who may provide career 

transition and graduate services, in 

addition to one-stop centers; and 

services provided for graduates and 

former enrollees. 

Section 686.760 What services are 

provided to former enrollees? 

Comments: Three commenters noted 

that Job Corps’ reputation is damaged 

when employers are connected with 

students who left the program early (for 

mostly drug, behavioral, or voluntary 

reasons) without obtaining their 

academic and technical training 

credentials and stated that these 

students are unlikely to advance along 

a viable career pathway without further 

education. These commenters proposed 

that the regulations clarify that the CTS 

provided to former enrollees be focused 

primarily on enrolling former enrollees 

in other education or training programs, 

which will maximize the resources that 

can be used to support Job Corps’ 

graduates. The commenters proposed 

that no additional services should be 

provided to former enrollees following 

their placement. 

One commenter noted that all young 

people have access to the services 

available at one-stop centers and WIOA 

sponsored youth programs, and 

recommended that Job Corps’ services to 

former enrollees be limited to 

documented referrals to one-stop 

centers or other WIOA programs. The 

commenter explained that this approach 

would allow Job Corps to focus 

resources on assisting committed 

graduates find employment or enroll in 

postsecondary or apprenticeship 

programs or the military. According to 

this commenter, such an approach also 

would increase the amount of time 

devoted to securing better housing, 

transportation, clothing, and other 

transition services that students need to 

attain self-sufficiency. The commenter 

proposed eliminating services for 90 

days and only providing referrals to 

one-stop centers and other WIOA 

programs. 

Department Response: No change to 

the regulatory text was made in 

response to these comments. The 

statutory language provides the 

Secretary with discretion to determine 

what services are appropriate for former 

enrollees and this provision reiterates 

that Job Corps has discretion in 

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providing these services. The 

Department is issuing guidance 

regarding the provision of services to 

former enrollees through the PRH. 

9. Subpart H—Community Connections 

This subpart highlights WIOA’s focus 

on community relationships and further 

integration with the public workforce 

system. In both the new contracting 

provisions in subpart C and in this 

subpart, there is more emphasis on 

connections with one-stop centers, 

Local WDBs, and State and local plans. 

While WIA’s requirement for a Business 

and Community Liaison has been 

eliminated, the responsibility for 

establishing beneficial business and 

community relationships and networks 

now lies with the director of each Job 

Corps center. Moreover, WIOA contains 

a new requirement that in a single-State 

local area, a representative of the State 

WDB must be included on the 

workforce council. Section 686.810 also 

states, consistent with sec. 154(b)(2) of 

WIOA, that the workforce council may 

include employers from outside the 

local area that are likely to hire center 

graduates. The new requirements for the 

workforce council seek to provide 

greater access to high quality training 

for Job Corps students, in part by 

ensuring that Job Corps is providing 

training for in-demand industry sectors 

and occupations. 

Section 686.800 How do Job Corps 

centers and service providers become 

involved in their local communities? 

This section describes the Job Corps 

center responsibilities regarding the 

establishment and development of 

mutually beneficial business and 

community relationships and networks. 

Comments: Two commenters stated 

that center directors should be involved 

in the community and in establishing 

connections to entities described in this 

section, but noted that without these 

duties assigned to a specified staff 

person, it becomes difficult for a center 

director to maintain these relationships. 

The commenters recommended that the 

regulations clarify that the center 

director will designate a staff member to 

coordinate these activities, appreciating 

that the nature of the community (i.e., 

the time and effort required to establish 

these relationships will be different in 

rural vs. urban areas) as well as the size 

and staffing of the center will influence 

whether the designee should be a full 

time Business and Community Liaison 

(BCL) or whether the duties can be 

assigned to another person on staff. 

Another commenter made a similar 

statement, noting that while center 

directors are involved in the community 

and in establishing connections to the 

entities described § 686.800, without the 

assistance of a staff person such as a 

BCL, it will be difficult for a center 

director to personally maintain these 

beneficial community relationships and 

networks. The commenter proposed that 

the center director designate a staff 

member to coordinate these activities. 

Department Response: The regulatory 

language states that each center director 

must ensure the establishment and 

development of business and 

community relationships, but does not 

specify who must perform the work. 

Ultimately, assignment of these 

responsibilities is left to the discretion 

of each center director. It is acceptable 

for a center director to delegate this 

responsibility to a member of their staff 

provided that they are properly 

overseeing that staff member’s work to 

ensure that the requirements of this 

provision are being met. No change was 

made to the regulatory text in response 

to these comments. 

Section 686.810 What is the makeup of 

a workforce council and what are its 

responsibilities? 

Comments: One commenter noted 

that this section requires that the 

majority of workforce council members 

be business owners, chief executives 

(CEOs), or chief operating officers 

(COOs) of non-governmental employers 

or other private sector employers. The 

commenter stated that it is unrealistic to 

expect that owners, CEOs, and COOs 

will be the active workforce council 

participants and noted that they find 

human resources representatives from 

major employers often offer the best 

perspective on employment 

opportunities and qualifications. The 

commenter proposed that the regulation 

be modified to include representatives 

of employers that are in a position to 

hire Job Corps students and/or are 

responsible for training and 

development of the organization’s 

employees. 

Department Response: After 

considering these comments, the 

Department agrees with the logic 

presented by the commenters. The 

Department has changed paragraph 

§ 686.810(b) to clarify that business 

owners, CEOs, COOs of nongovernmental employers, and other 

private sector employers may designate 

the staff person they feel is best suited 

to represent their entity on the 

workforce council, provided that the 

designee meets the requirements in 

§ 686.810(b). 

Comments: Several commenters noted 

that Job Corps is required to draw upon 

many of the same agencies for 

individuals to sit on its workforce 

councils that provide members to the 

Local WDBs. These commenters 

recommended that § 679.360 allow, or 

even encourage, workforce councils to 

be a subcommittee of the most 

appropriate regional or Local WDBs, 

where applicable. The commenters 

noted that this would eliminate 

competition for membership and 

encourage greater collaboration between 

Job Corps, the Workforce Investment 

Board (now Workforce Development 

Board), and the one-stop delivery 

system. Other commenters further noted 

that § 686.810(d) requires a center’s 

workforce council to work with all 

applicable Local WDBs to review labor 

market information and make 

recommendations to the Secretary for 

career technical training offerings. The 

commenters recommended that where a 

workforce council is not affiliated with 

a regional or Local WDB, it may make 

sense to designate a regional or Local 

WDB staff member to sit on the 

workforce council to facilitate these 

actions. 

Department Response: No change to 

the regulatory text was made in 

response to these comments. Each Job 

Corps center director must establish and 

develop mutually beneficial business 

and community relationships and 

networks with entities, including Local 

WDBs. Under WIOA sec. 154(b)(2), 

members of the Local WDB are 

permitted, though not required, to sit on 

center workforce councils provided they 

meet the membership requirements 

outlined in § 686.810(a) and (b). Section 

679.360 implements WIOA sec. 

107(b)(4) and establishes the roles and 

responsibilities of standing committees 

within the Local WDB structure. 

Comments: With respect to 

§ 686.810(d)(2), commenters also 

recommended that a rapid-response 

system be developed to change career 

technical training offerings quickly to 

meet employer demands as identified 

and recommended by the workforce 

council. 

Department Response: The 

Department is not changing 

§ 686.810(d)(2) to include a requirement 

that a rapid-response system be 

developed to change career technical 

training offerings quickly to meet 

employer demands as identified by the 

workforce council. Paragraph (d)(2) of 

§ 686.810 states that the workforce 

council must review all relevant labor 

market information, including related 

information in the State Plan or the 

local plan, to: Recommend in-demand 

industry sectors or occupations in the 

area in which the center operates; 

determine employment opportunities in 

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the areas in which enrollees intend to 

seek employment; determine the skills 

and education necessary to obtain the 

identified employment; and recommend 

to the Secretary the type of career 

technical training that should be 

implemented at the center to enable 

enrollees to obtain employment 

opportunities identified. The 

Department will provide additional 

guidance on how the workforce council 

will provide this information. 

Comments: One commenter also 

recommended that Job Corps—whether 

through a designated center employee or 

through members of the workforce 

council—be mandated partners in State, 

regional, and local sector partnerships 

as required by 20 CFR 678.435(a) (see 

Joint WIOA Final Rule) because this 

could significantly enhance employer 

partnerships and provide employerdriven recruitment, training, and 

placement services. 

Department Response: The 

Department strongly encourages sector 

partnerships that include a variety of 

industries and career pathways that may 

be included in a sector strategy. Given 

the variety of industries and career 

pathways that may be included in a 

sector strategy, which includes Job 

Corps, the Department at 20 CFR 

678.435 (see Joint WIOA Final Rule) is 

not placing regulatory requirements 

around partnerships. 

10. Subpart I—Administrative and 

Management Provisions 

This subpart provides requirements 

relating to tort claims, Federal 

Employees Compensation Act (FECA) 

benefits for students, safety and health, 

and law enforcement jurisdiction on Job 

Corps center property. It also addresses 

whether Job Corp operators and service 

providers are authorized to pay State or 

local taxes on gross receipts, and details 

the financial management 

responsibilities of center operators and 

other service providers. The 

management of student records, as well 

as procedures applicable to the 

disclosure of information about Job 

Corps students and program activities 

are outlined. Finally, procedures 

available to resolve complaints and 

disputes and how Job Corps ensures that 

complaints or disputes are resolved in a 

timely fashion are addressed in this 

subpart. The entirety of this subpart 

addressing administrative and 

management principles that apply to the 

operation of the Job Corps program 

serves to promote its accountability and 

transparency. 

No public comments were submitted 

in response to the NPRM for this 

subpart. However, in §§ 686.960 and 

686.985 the Department has updated the 

citations to the regulations 

implementing sec. 188 of WIOA from 29 

CFR part 37 to 29 CFR part 38. 

11. Subpart J—Performance 

This subpart incorporates WIOAspecific requirements related to 

performance assessment and 

accountability, as well as requirements 

for performance improvement plans for 

Job Corps center operators who fail to 

meet expected levels of performance. 

The Job Corps program is now required 

to report on the primary indicators of 

performance common to all WIOA 

programs that provide key outcome 

information on how many students 

attained employment or were placed in 

education or training, their median 

wages, whether they attained 

credentials, their measurable skill gains, 

and the effectiveness in serving 

employers. The entirety of this proposed 

subpart serves to promote the 

accountability, performance, and 

transparency of the Job Corps program. 

Section 686.1000 How is the 

performance of the Job Corps program 

assessed? 

Comments: Regarding which shortterm measures should be retained in the 

new Outcome Measurement System 

(OMS), some commenters recommended 

that HSD/E, literacy and numeracy 

gains, CTT completion, credential 

attainment, and HSD/E and CTT 

combinations be retained. One 

commenter recommended that all 

current OMS categories be retained in 

order to measure student progress and 

noted that it is important to develop 

measures to evaluate how much a 

student has gained from entrance to exit 

from Job Corps (i.e., growth measures). 

Commenters stated that maintaining the 

current 15 OMS measures while adding 

new measures would be too 

cumbersome to manage and would take 

away from the quality of the programs 

provided. These commenters noted that 

Job Corps has been criticized by the 

Office of Inspector General (OIG) for 

having too many required performance 

indicators, the corollary of which is 

burdensome data collection, 

verification, and reporting requirements. 

These commenters suggested that the 

current emphasis on obtaining an 

academic credential not be diminished 

and recommend that Job Corps utilize 

measures to track the number of 

credentials being earned, as well as the 

size of ‘‘measurable gains’’ to reflect 

students that earn multiple credentials 

or make significant learning gains. 

Department Response: Job Corps’ 

performance will be assessed in 

accordance with required procedures 

and standards issued by the Secretary 

through the national performance 

management system, which will take 

into account the performance metrics 

described in § 686.1000(b). The 

Department has determined that it will 

not add any additional performance 

indicators in this section. In order to 

effectively operate and evaluate the Job 

Corps program, performance indicators 

are regularly examined and necessary 

changes are made to the performance 

management system in annual 

performance guidance. It is important 

for the performance system to remain 

malleable and open to change on an 

annual basis to ensure that the 

Department is collecting the 

performance data that most accurately 

measures the performance of the 

program. Accordingly, rather than 

specify specific performance indicators 

in this section, the Department has 

decided to incorporate additional 

performance indicators in the yearly 

performance guidance described in 

§ 686.1000(b), as necessary. 

Comments: Regarding post-center 

performance indicators, one commenter 

stated that it will be important for Job 

Corps to determine how it will reliably 

obtain employment and wage 

information because the current survey 

system will not provide the National 

Office of Job Corps, the Department, or 

Congress with the reliable information 

they require to determine the efficacy of 

the program. This commenter also noted 

that Job Corps does not currently have 

access to unemployment insurance (UI) 

or social security information that will 

provide reliable information. Two other 

commenters stated that Job Corps 

should comment on how it intends to 

ensure that Job Corps has complete 

access to UI data so that Job Corps can 

report performance in accordance with 

the requirements for primary indicators 

of performance. 

Department Response: The 

Department recognizes the need to 

transition to the use of administrative 

data in order to obtain accurate 

employment and wage data in the most 

efficient way possible. The Department 

is working to obtain access to individual 

UI wage records and other 

administrative data to meet the 

requirements under WIOA sec. 159(e). 

The specific means by which this access 

will be acquired is under development 

and is expected to change over time; 

however, over the next few years the 

Department will work with other 

Federal and State agencies, consistent 

with State UI laws, to gain access to this 

information. In addition to calculating 

the performance of participants, access 

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to administrative data will allow the 

Department to begin collecting valuable 

information on employment outcomes 

for enrollees who began receiving 

services under the Job Corps program 

but did not remain in the program long 

enough to meet the definition of 

participant. As such, flexibility in the 

process is important and the mechanism 

for retrieval will not be prescribed by 

regulation. The annual performance 

guidance described in § 686.1000 will 

describe how such records will be 

accessed and used. While State UI wage 

record data are one relevant data set, the 

Department anticipates using a variety 

of available, reliable data to assess a 

center’s performance under all of the 

metrics comprising the performance 

management system. 

Section 686.1010 What are the primary 

indicators of performance for Job Corps 

centers and the Job Corps program? 

Comments: One commenter noted 

that this section requires the inclusion 

of recognized postsecondary credential 

attainment 1 year after separation as one 

of the primary indicators of performance 

for Job Corps centers. The commenter 

stated that this is confusing as written 

and difficult, if not impossible, to track 

and monitor because centers themselves 

do not track post-center indicators: This 

is the responsibility of CTS contractors. 

The commenter suggested that to 

resolve this issue, along with other 

issues with tracking performance of Job 

Corps centers and equating that 

performance with placement and wages, 

all CTS contracts be attached to center 

operating contracts. 

Department Response: The regulation 

mirrors WIOA’s primary indicators of 

performance in WIOA sec. 

116(b)(2)(A)(ii), and sec. 159(c)(1) which 

require that each center’s performance 

be measured under the WIOA primary 

indicators of performance for youth. As 

discussed in the preamble to § 686.340, 

the suggestion that CTS contracts 

should be attached to center operation 

contracts is better addressed as a matter 

of program administration because Job 

Corps contracting processes and 

structure regarding center operations 

contracts and CTS contracts require 

flexibility as they are driven by the 

program’s needs. 

Comments: A commenter suggested 

that Job Corps use both an employment 

rate and a retention rate in the new 

performance management system. The 

commenter also expressed concern with 

how Job Corps career transition service 

(CTS) providers will be able to verify 

high school diploma, high school 

equivalency, or postsecondary 

credential attainment if the student 

achieves these outcomes after exiting 

from the center. 

Department Response: As noted 

above, in order to effectively operate 

and evaluate the Job Corps program, 

performance indicators are regularly 

examined and necessary changes are 

made to the performance management 

system in the annual performance 

guidance described in § 686.1000(b). 

Regarding how verification of high 

school diploma, high school 

equivalency, or postsecondary 

credential attainment will occur if the 

student achieves these outcomes after 

exiting from the center, the specific 

means by which this information will be 

collected is under development and 

may change over time and will not be 

prescribed by this regulation. 

Section 686.1020 What are the 

indicators of performance for Job Corps 

outreach and admissions providers? 

Comments: Several commenters asked 

whether, like the performance 

indicators for centers, there will be 

other indicators for outreach and 

admissions. The commenters stated that 

if there are other indicators, they 

recommend that total arrivals be 

retained as a short-term indicator. 

Further, these commenters 

recommended that if female arrivals are 

measured, they should be weighted 

much lower. The commenters also 

stated that the placement measures in 

the current OMS be retained and 

weighted higher to fulfill the purpose of 

Job Corps to connect youth to the 

workforce. 

Department Response: As discussed, 

performance indicators and weights of 

performance measurements for OMS are 

not statutorily mandated and require 

continued flexibility, including the 

measures to overcome historic trends in 

enrollment. The Department continually 

reviews and revises the performance 

management system to manage 

effectively and best serve Job Corps’ 

needs. Accordingly, in response to these 

comments, the Department has added 

§ 686.1020(e) providing that other 

indicators of performance will be 

adopted by the Secretary as necessary. 

These indicators are outlined in the 

annual performance guidance issued by 

the Secretary described in § 686.1000(b), 

and may change over time to meet 

program administration needs. 

Comments: These commenters also 

stated that it is important to keep in 

mind the various constraints in the local 

market when setting the expected level 

of performance under § 686.1020(c) for 

the OA indicator that measures the 

maximum achievable percentage of 

students that reside in the state where 

the center is located and that reside in 

the surrounding regions, as compared to 

the targets set by the Secretary for each 

of those measures. They also stated that 

these constraints include, but are not 

limited to: Whether the center is in a 

rural or urban area; what other 

providers offer similar training; whether 

the population of 16–24 year olds is 

projected to grow or shrink over time; 

and the poverty rate and unemployment 

rates in the local area. In addition, the 

commenters noted that it is critical that 

the expected levels of performance take 

into account the size of the local area 

because a national goal superimposed 

on a sparsely populated local area may 

cause significant multiplier effects and 

result in goals that are unattainable 

under any circumstance. 

Department Response: No change was 

made to this regulatory text in response 

to these comments; however, the 

Department has made a change to 

§ 686.450 which addresses these 

concerns. As described in § 686.450, 

when developing an assignment plan 

related to the maximum percentage of 

students at a center from the State and 

region in which the center is located the 

Department is required, in consultation 

with center operators, to analyze a 

number of relevant factors. The 

Department has changed § 686.450(a) to 

indicate that the list of factors identified 

for consideration is non-exclusive; 

therefore, the constraints identified by 

these commenters could be discussed as 

part of the analysis. 

Comments: Commenters also stated 

that regarding [the OA indicator] under 

§ 686.1020(d) that measures the cost per 

enrollee calculated by comparing the 

number of enrollees at the center in a 

program year to the total budget for such 

center in the same program year, that 

they were unclear how this would be 

measured since outreach and 

admissions providers recruit for 

multiple centers, and questioned how 

they would be held accountable for cost 

per enrollee at a particular center and 

how a goal would be set for this 

measure. The commenters stated that 

much more needs to be provided on 

how this measure will be reported on 

the new OMS and recommended that 

instead of adding the cost per enrollee 

to OMS the cost for each center be 

included in the Secretary’s report to 

Congress, similar to the cost per 

graduate that is required to be part of 

this report. The commenters noted that 

if the decision is made to add the cost 

per enrollee to OMS, outreach and 

admissions contracts should be attached 

to center contracts so that the center 

director is held accountable for 

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reasonable costs per enrollee at his/her 

center. 

Department Response: WIOA sec. 

159(c)(2) requires that the cost per 

enrollee as described in WIOA sec. 

159(d)(1)(M) be included as a 

performance indicator for OA providers, 

and the Department does not have 

authority to change this statutory 

measure. Additional detail on reporting 

cost per enrollee is provided in 

guidance. Finally, regarding the 

suggestion that outreach and admissions 

contracts be attached to center 

operations contracts, the Department 

determined that this recommendation is 

better addressed through procurement 

and administrative processes. 

Comments: Commenters noted that 

WIOA requires Job Corps to assess 

whether an applicant’s needs and career 

goals can be best met by Job Corps or 

another local program, and if Job Corps 

is not deemed a best fit for the 

applicant, outreach and admissions 

counselors must refer and facilitate 

enrollment in alternative programs. 

There is currently no provision in the 

regulations for this to be measured. 

Commenters also recommended that 

OMS measure the efficacy of admissions 

counselors in conducting these 

assessments, including the rate of 

referrals and enrollment in other 

programs. Commenters further stated 

that the proposed indicators of 

performance for Job Corps outreach and 

admissions providers also should 

include the number of students retained 

for 30 and 60 days, since a center’s 

performance is negatively impacted 

when students leave during their first 30 

and 60 days, and center OBS is affected 

during this period due to zero tolerance 

violations for drugs and violence. The 

commenters also suggested OMS 

include goals and measures related to 

minimizing the number of Medical 

Separation with Reinstatement Rights 

(MSWR) terminations and fraudulent 

enrollments. 

Department Response: As discussed 

above in the preamble to § 686.1000, the 

Department continually reviews and 

revises the performance management 

system to effectively manage and best 

serve the students’ needs. In response to 

these comments, as noted above, the 

Department has added § 686.1020(e), 

providing that additional indicators of 

performance for outreach and 

admissions providers will be adopted by 

the Secretary as necessary. These 

indicators will be outlined in the annual 

performance guidance issued by the 

Secretary described in § 686.1000(b), 

and may change over time to meet 

program administration needs. 

Section 686.1030 What are the 

indicators of performance for Job Corps 

career transition service providers? 

Comments: Three commenters noted 

that because CTS providers are 

responsible for the same performance 

indicators as Job Corps centers and also 

other indicators that measure the type of 

placement received (the number of 

graduates who entered the Armed 

Forces, apprenticeship programs, job 

training matches, and average wages), 

they recommend that the Department 

attach CTS contracts to center contracts 

to hold the center director accountable 

to closely link education and training to 

connecting youth to the workforce and 

postsecondary education. Another 

commenter disagreed with this 

suggestion, stating that it is a blatant 

attempt on the part of center operators 

who are large businesses to exclude 

small businesses that fall under the OA/ 

CTS size standard. Further, this 

commenter stated that bundling CTS to 

center contracts cannot be shown to 

improve placement and associated 

statistics. 

Department Response: As discussed 

in the preamble to § 686.340, the 

suggestion that CTS contracts should be 

attached to center operation contracts is 

better addressed as a matter of program 

administration because Job Corps 

contracting processes and structure 

regarding center operations contracts 

and CTS contracts require flexibility as 

they are driven by the program’s needs. 

Comments: Commenters 

recommended that Job Corps include 

performance indicators for the number 

of education placements and the 

number of postsecondary placements in 

addition to the performance indicators 

for CTS required by WIOA. 

Department Response: As discussed 

above in the preamble to § 686.1000, the 

Department continually reviews and 

revises the performance management 

system to effectively manage and best 

serve Job Corps’ needs. Accordingly, in 

response to these comments, the 

Department has added § 686.1030(h) 

providing that additional indicators of 

performance will be adopted by the 

Secretary as necessary. These indicators 

will be outlined in the annual 

performance guidance issued by the 

Secretary described in § 686.1000(b), 

and may change over time to meet 

program administration needs. 

Comments: One commenter stated 

that they would like clarification on 

how quarters and the strict 12-month 

service window, as required under 

statute, will be established specifically 

for the purposes of measuring Job Corps 

outcomes. The commenter stated that 

the Job Corps system under WIA 

conflicts with WIOA with respect to 

CTS timelines and performance 

measurements, noting that CTS 

contracts have a 9-month window to 

place students and that 6 and 12 month 

placement follow ups are conducted 

based on the date of placement, not 

separation. The commenter noted that 

this creates a Job Corps CTS service 

window that can extend 18 months after 

graduation from Job Corps and would 

like to know whether the service 

window is changed to 12 months only. 

Department Response: As reflected in 

§ 686.740, WIOA sec. 148(d) states that 

the Secretary shall arrange for the 

provision of job placement and support 

services to graduates for up to 12 

months after the date of graduation and 

multiple resources, including one-stop 

partners, may support the provision of 

these services. In addition, as noted by 

the commenter, the indicators of 

performance indicator the percentage of 

program participants in education or 

training activities or unsubsidized 

employment during both the second and 

fourth quarters after exit from the 

program. Regardless of the length or 

extent of services provided to graduates 

under WIOA sec. 148(d), the 

Department is required to track a 

participant’s participation in education/ 

training activities or in unsubsidized 

employment 6 and 12 months after exit 

from the program. 

Comments: A commenter also asked 

the Department to clarify whether 

WIOA and the proposed rules would 

treat former enrollees and graduates the 

same in terms of post-center services 

provided and the primary indicators of 

performance. Another commenter 

suggested that former enrollees and 

graduates should not be treated the 

same regarding post-center services 

provided and performance indicators 

under WIOA, as is done under WIA. 

Department Response: Regarding the 

commenter’s request for clarification on 

post-center services provided for 

graduates and former enrollees, WIOA 

sec. 148(d) states that the Secretary shall 

arrange for the provision of job 

placement and support services to 

graduates for up to 12 months after the 

date of graduation and multiple 

resources, including one-stop partners, 

may support the provision of these 

services. WIOA sec. 150(c) states that 

the Secretary may arrange for the 

provision of up to 3 months of 

employment services for former 

enrollees. These provisions are reflected 

in §§ 686.740 and 686.760, which mirror 

WIOA requirements for services 

provided. Further information regarding 

the services available to graduates and 

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former enrollees is included in the Job 

Corps PRH. Regarding the commenter’s 

request for clarification on whether 

WIOA and the proposed rules would 

treat former enrollees and graduates the 

same in terms of the primary indicators 

of performance, former enrollees and 

graduates are treated the same if they 

meet the definition of participant, 

which includes both former enrollees 

and graduates who have completed their 

career preparation period and who have 

remained in the program for at least 60 

days. 

Section 686.1070 How and when will 

the Secretary use Performance 

Improvement Plans? 

Comments: Commenters noted that 

while 90 percent of the expected level 

of performance is an admirable goal, the 

percentage ‘‘distance traveled’’ toward 

improvement (e.g., from 50 to 75 

percent versus from 84 to 90 percent) 

should be taken into consideration 

when evaluating a center’s progress on 

their PIP. These commenters suggested 

that although a center might not have 

reached 90 percent of the national 

average, they might have achieved 

significant improvement under their 

PIP. 

Department Response: As noted in 

§ 686.1070(b), the criteria that must be 

met before a PIP is completed and the 

center removed will be included in the 

plan itself. 

Comments: Commenters stated that 

specific criteria should be established 

when a PIP under WIOA sec. 159(f)(3) 

would be initiated so that if a Job Corps 

center is placed on a PIP, there is a 

transparent and logical reason for the 

PIP, expected outcomes, and the length 

of the PIP. 

Department Response: To ensure that 

the PIP system is responsive to the 

changing needs of the program, the 

criteria for PIPs established under 

WIOA sec. 159(f)(3) for centers that fail 

to meet criteria established by the 

Secretary, other than the expected levels 

of performance required under WIOA 

sec. 159(f)(2), are included in the 

Department’s PIP system guidance in 

the PRH. No changes were made to 

regulatory text in response to these 

comments. 

Comments: One commenter suggested 

that 3 years of data be used to assess 

performance before placing a center on 

a PIP as is done to assess highperforming centers. Several commenters 

recommended that if a new operator 

takes over a low performing center, 

there be a 2-year grace period for that 

operator to make improvements before 

the Department considers the center in 

need of a PIP. Other commenters also 

recommend that the regulation include 

a reference to the process by which an 

operator may appeal its designation of 

requiring performance improvement 

based on extenuating circumstances. 

One commenter recommended that the 

regulations clearly state that the 

Regional Offices would be responsible 

for managing PIPs. 

Department Response: WIOA sec. 

159(f)(2) specifies that if a Job Corps 

center fails to meet the expected levels 

of performance relating to the primary 

indicators of performance, which are 

established and measured annually, the 

Secretary must develop and implement 

a PIP with action to be taken during a 

1-year period. Because WIOA requires 

the Department to annually establish 

expected levels of performance and to 

take action to improve the performance 

of those centers that fail to meet the 

expected levels of performance, the 

Department does not have the authority 

to wait 3 years to place an 

underperforming center on a PIP or to 

provide a new operator a 2-year grace 

period to make improvements. The 

Department does not consider a PIP to 

be punitive in nature. It provides an 

opportunity for the Department, 

consistent with the requirements of 

WIOA, to provide assistance and 

guidance to centers that are 

underperforming. Any guidance 

regarding a center’s designation of 

requiring performance improvement 

would be provided in the PRH. 

Comments: Commenters urged the 

Department to use a progressive 

approach that seeks to improve 

performance at centers with as little 

disruption to staff, students, and the 

community as possible. 

Department Response: The 

Department is committed to improving 

the performance of Job Corps centers 

and has the authority under WIOA to 

take the following statutory actions after 

centers fail to meet the expected levels 

of performance: Providing technical 

assistance to the center; changing the 

career and technical education and 

training offered at the center; changing 

the management staff of the center; 

replacing the operator of the center; 

reducing the capacity of the center; 

relocating the center; or closing the 

center. The Department further lays out 

its approach to taking these actions in 

the PIP guidance published in the PRH. 

K. Part 687—National Dislocated 

Worker Grants 

1. Introduction 

National Dislocated Worker Grants are 

discretionary awards that temporarily 

expand service capacity at the State and 

local levels through time-limited 

funding assistance in response to 

significant dislocation events. These 

grants are governed by sec. 170 of 

WIOA. The Department received 

comments in support of part 687 of the 

NPRM, as well as comments requesting 

clarification or revisions. Additionally, 

the Department has made technical and 

clarifying changes to some of the 

sections. All changes to the regulatory 

text, and the Department’s responses to 

the comments received, are explained 

below. 

The Department has made several 

global changes to this part for clarity 

and technical accuracy. First, ‘‘National 

Dislocated Worker Grants’’ will be 

referred to by the acronym ‘‘DWGs’’ in 

this part for simplicity. 

Second, the Department has 

determined it is necessary to alter the 

labels of what the NPRM called 

‘‘Regular’’ and ‘‘Disaster’’ DWGs to more 

accurately describe their purpose and 

intended use. ‘‘Regular’’ DWGs have 

been renamed ‘‘Employment Recovery’’ 

DWGs, and ‘‘Disaster’’ DWGs have been 

renamed ‘‘Disaster Recovery’’ DWGs. 

Third, the term ‘‘career services’’ in 

§ 687.100(a) and (b) is changed to 

‘‘employment and training activities’’ to 

clarify that the use of DWG funds is not 

limited to only career services. Training 

and supportive services also may be 

provided as appropriate and in 

accordance with the requirements of 

this part. For the same reason, this 

change has also been made in other 

applicable sections in this part 

(§§ 687.170(a)(1) and (b)(2) and 

687.180(b)(2) and (3)) where the NPRM 

referred to ‘‘career services’’ or 

‘‘employment-related assistance.’’ 

Fourth, the term ‘‘temporary 

employment’’ at § 687.100(b) has been 

replaced with the term ‘‘disaster relief 

employment’’ to better align the text of 

this part with that of sec. 170 of WIOA. 

This change also has been made to 

§§ 687.170(b)(2) and 687.180(b)(2). 

Fifth, the Department removed the 

word ‘‘additional’’ from references to 

‘‘additional guidance’’ in §§ 687.150, 

687.160, and 687.200(b)(1). This word 

was unnecessary. 

Finally, the Department has made a 

technical correction to §§ 687.180(b)(1) 

and 687.200(b)(2) by replacing the 

phrase ‘‘by the State’’ or ‘‘by the States’’ 

with a reference to § 687.120(b) to 

ensure consistency with that provision, 

which provides that Indian tribal 

governments and outlying areas are 

eligible entities for Disaster Recovery 

DWGs in addition to States. 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

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part 687 regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not all 

discussed in the analysis below. 

2. Discussion of Public Comments and 

Changes to Individual Rules 

Section 687.100 What are the types 

and purposes of National Dislocated 

Worker Grants (DWGs) under the 

Workforce Innovation and Opportunity 

Act? 

Four technical corrections have been 

made to the text of this regulation. First, 

the section heading is corrected from 

‘‘National Disclosed Worker Grants’’ to 

‘‘National Dislocated Worker Grants.’’ 

Second, the word ‘‘purposes’’ is added 

in the introductory paragraph of 

§ 687.100 to align with the section 

heading. Third, the Department has 

removed the word ‘‘significant’’ in 

§ 687.100(a) and replaced it with the 

phrase ‘‘major economic dislocations or 

other events’’ in order to be consistent 

with the header for this section. Finally, 

the Department has simplified the 

wording at § 687.100(b) by removing ‘‘in 

certain situations as provided’’ and 

replacing it with ‘‘in accordance with.’’ 

Section 687.110 What are major 

economic dislocations or other events 

which may qualify for a National 

Dislocated Worker Grant? 

Comments: The Department received 

a comment on proposed § 687.110 

asking that plant closures be added to 

the list of qualifying events. 

Department Response: WIOA sec. 

170(b) lists plant closures as an event 

for which the Department could 

authorize DWG funds. The regulation 

has been revised to include plant 

closures explicitly in § 687.110(a)(1) and 

(3). In § 687.110(a)(1), the Department 

has concluded that a plant closure that 

results in a mass layoff of 50 or more 

workers from one employer in the same 

area is a qualifying event. Under 

§ 687.110(a)(3), the Department may 

determine that a plant closure affecting 

fewer than 50 workers is a qualifying 

event if it significantly affects the 

designated community, such as what 

may happen, for example, if a closure 

occurs in a rural or other area with a 

small population. Additional 

requirements are set out in guidance, 

which will be updated as necessary. 

Additionally, the Department notes 

that the definition of ‘‘mass layoffs’’ in 

part 687 differs from the definition used 

in part 682, subpart C, where the 

Department provides a definition of 

‘‘mass layoff’’ for the purposes of Rapid 

Response activities. For Rapid 

Response, the Department allows States 

more flexibility in defining mass layoffs. 

Rapid Response services encompass 

strategies and activities that States can 

provide to assist workers affected by 

layoffs and closures as described at 

§ 682.300 (including information about 

available employment and training 

programs), and the Department 

encourages States to do so regardless of 

the number of workers affected by the 

layoff. 

In contrast, the DWG program is 

aimed at significant events that cannot 

reasonably be expected to be 

accommodated within the ongoing 

operations of the formula-funded 

dislocated worker program. 

Accordingly, for the purposes of the 

DWG program, the Department 

separately defines ‘‘mass layoff’’ as 

those affecting 50 or more workers from 

one employer in the same area. 

However, the Secretary may determine 

other events eligible for an Employment 

Recovery DWG under § 687.110(a)(5) for 

layoffs affecting fewer than 50 

employees, such as those related to a 

separate and larger layoff of 50 or more 

employees. Department guidance 

provides policy for these circumstances. 

Comments: The Department received 

several comments on data applicants 

may use to demonstrate ‘‘higher-thanaverage demand’’ for employment and 

training activities for certain members of 

the Armed Forces and their spouses. 

Under WIOA sec. 170(b)(1)(D)—and 

§ 687.110(a)(4) of the NPRM—this 

demand must exceed State and local 

resources to be a qualifying event for 

DWG funds. In proposing part 687, the 

Department included examples of what 

data sources could be used to determine 

whether a ‘‘higher-than-average 

demand’’ exists. 

Some commenters requested the 

Department be specific regarding what 

data it will accept for showing higherthan-average demand. The Department 

also received several comments on its 

proposal that it may use Unemployment 

Compensation for Ex-servicemembers 

(UCX) data for defining higher-thanaverage demand. Commenters were 

concerned the Department using UCX 

data would give areas with military 

bases an unfair advantage in competing 

for limited resources. 

Department Response: The 

Department has concluded that, given 

the importance of providing services to 

transitioning service members and their 

spouses, it must be flexible in what 

administrative data sources it allows 

applicants to use to demonstrate higherthan-average demand. The Department 

will not provide a specific, proscribed 

list of what data sources it will accept, 

but instead set out illustrative examples 

of allowable data sources in Department 

guidance. 

The Department has concluded that 

allowing UCX data to demonstrate 

higher-than-average demand does not 

provide an unfair advantage to areas 

with military bases. As stated above, 

grantees may use other administrative 

data sources for demonstrating higherthan-average demand. UCX data thus is 

not the only acceptable source or among 

a small, closed group of acceptable data 

sources the Department will use to 

determine higher-than-average demand 

for services. Furthermore, potential 

grantees may apply for a DWG once an 

eligible event or situation occurs in 

accordance with § 687.130 without 

having to compete against other entities 

for these funds. Most DWGs will be 

awarded on this basis; thus, the 

Department has determined its 

allowance of UCX as one of many 

administrative data sources that 

applicants may use to show higher-thanaverage demand does not create unfair 

competition for DWG funds. The 

Department has concluded no changes 

to the text of § 687.110(a)(4) are 

necessary in response to these 

comments. 

Comments: Another commenter on 

§ 687.110(a)(4) requested that 

contractors be included in the higherthan-average threshold because 

contractor layoff rates are at times 

higher than those of the Armed Forces. 

Section 170(b)(1)(D)(i) of WIOA allows 

DWGs to be awarded to a State or Local 

WDB serving an area for which a higherthan-average demand for employment 

and training activities for certain 

members of the Armed Forces, or 

certain spouses of members of the 

Armed Forces, exists. 

Department Response: WIOA sec. 

170(b)(D)(i) specifically defines the 

members of the Armed Forces and 

spouses who are included in assessing 

the higher-than average demand; 

contractors are not included. As a result, 

contractor layoff rates cannot be 

considered when determining whether a 

DWG can be awarded under 

§ 687.110(a)(4). No change is being 

made to the regulatory text in response 

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to this comment. However, military 

contractors who have suffered a layoff 

may be able to be served under other 

types of DWGs, such as those involving 

dislocations or events described in 

§ 687.110(a)(1) (mass layoffs of 50 or 

more workers) or § 687.110(a)(3) (layoffs 

significantly increasing the total number 

of unemployed individuals in a 

community). 

Regarding spouses, as it stated in 

proposing § 687.110(a)(4), the 

Department has determined it will not 

require applicants to determine the 

specific subset of military spouses 

included in the higher-than-average 

demand for services in an area. Sec. 

170(b)(1)(D)(i) of WIOA specifically 

limits the military spouses included in 

this analysis to ‘‘spouses described in 

sec. 3(15)(E) [of WIOA].’’ Under sec. 

3(15)(E) of WIOA, these are spouses of 

members of the Armed Forces on active 

duty who are dislocated specifically 

because they have experienced a loss of 

employment as a direct result of 

relocation to accommodate a permanent 

change in duty station of the member of 

the military, or are unemployed or 

underemployed and experiencing 

difficulty in obtaining or upgrading 

employment. To avoid unnecessary 

burden on applicants, the Final Rule at 

§ 687.110(a)(4) only requires applicants 

for these DWGs to assess whether 

military spouses dislocated under any of 

the factors in sec. 3(15) of WIOA 

contribute to the higher-than-average 

demand for services, specifying that 

these spouses must be spouses of Armed 

Forces members on active duty. As 

stated previously, the Department has 

determined that this implements the 

intent of the WIOA provision while 

avoiding unnecessary administrative 

hardship. 

Comments: Another commenter asked 

that ‘‘Other events, as determined by the 

Secretary’’ in § 687.110(a)(5) allow 

entities to apply for regional or 

statewide grants to address issues 

affecting a particular industry or target 

population. 

Department Response: Under WIOA, 

the Secretary has broad authority to 

award DWGs for circumstances the 

Secretary deems appropriate. The 

Secretary will continue to use this 

authority to make determinations about 

the awarding of DWG funds for other 

events. No change was made to the 

regulatory text in response to this 

comment. 

Comments: A commenter submitted 

several comments on what disasters 

qualify for Disaster Recovery DWGs. 

Proposed § 687.110(b)(2) stated that 

qualifying events for a Disaster Recovery 

DWG include ‘‘an emergency or disaster 

situation of national significance that 

could result in a potentially large loss of 

employment, as declared or otherwise 

recognized by the chief official of a 

Federal Agency with jurisdiction over 

the Federal response to the emergency 

or disaster situation.’’ Previously, under 

the Workforce Investment Act, only 

Federal Emergency Management Agency 

(FEMA) declarations qualified an event 

for a disaster National Emergency Grant. 

The commenter requested the 

Department define what disasters are 

‘‘of national significance.’’ 

Department Response: WIOA sec. 

170(a)(1)(B) grants authority to Federal 

agencies with jurisdiction over the 

response to an emergency or disaster 

situation to determine and declare 

which disasters or emergencies meet the 

‘‘national significance’’ threshold. As 

such, the Department has determined it 

will defer to those agencies’ expertise, 

and a declaration of an emergency or 

disaster situation by such an agency is 

the threshold for whether a disaster or 

emergency is one ‘‘of national 

significance.’’ 

However, to clarify what disasters 

qualify for the purpose of applying for 

Disaster Recovery DWGs, the 

Department has altered § 687.110(b)(2) 

to require that any declarations or 

recognitions of disasters or emergencies 

be issued in writing. This change will 

allow the Department to verify 

independently the declaration relied 

upon by eligible entities to request 

Disaster Recovery DWG funds. The 

Department is not specifying the form of 

publication, which could include Web 

sites or other digital mediums. The 

regulatory text has been revised by 

adding ‘‘and issued in writing’’ to 

§ 687.110(b)(2). 

Comments: Another comment 

requested that States be informed of the 

mechanisms that will be in place to 

notify them when a Federal agency 

other than FEMA declares or recognizes 

a disaster or emergency. The commenter 

also requested the Department allow the 

emergency or disaster declarations or 

recognitions of Governors to qualify a 

disaster event for DWG funds. 

Department Response: The 

Department encourages applicants to 

work with Federal and other State 

agencies so States are quickly notified 

once a published declaration or 

recognition is made by the responsible 

agency. 

Additionally, WIOA sec. 170(a)(1)(A) 

and (B) authorizes DWG funds for 

disasters or emergencies declared by 

FEMA or other Federal agencies with 

jurisdiction over the response. There is 

no provision in the law for the funds to 

be provided for disasters or emergencies 

based on declarations by Governors. As 

a result, no change was made to the 

regulatory text in response to this 

comment. 

Comments: Another commenter 

requested both natural and man-made 

disasters be major economic 

dislocations or other events that qualify 

for a Disaster Recovery DWG. 

Department Response: In defining 

qualifying disasters or emergencies, 

WIOA sec. 170(a)(1)(A) incorporates by 

reference the definitions of 

‘‘emergency’’ and ‘‘major disaster’’ as 

defined by the Stafford Act at 42 U.S.C. 

5122. According to the Stafford Act, a 

‘‘major disaster’’ is any natural 

catastrophe (including any hurricane, 

tornado, storm, high water, winddriven 

water, tidal wave, tsunami, earthquake, 

volcanic eruption, landslide, mudslide, 

snowstorm, or drought), or, regardless of 

cause, any fire, flood, or explosion, in 

any part of the United States, which in 

the determination of the President 

causes damage of sufficient severity and 

magnitude to warrant major disaster 

assistance under this chapter to 

supplement the efforts and available 

resources of States, local governments, 

and disaster relief organizations in 

alleviating the damage, loss, hardship, 

or suffering caused thereby. 

Because WIOA incorporates the 

Stafford Act’s above definition of ‘‘major 

disaster,’’ the Department has 

determined that, for § 687.110(b)(1), 

DWG funds may be used for disasters 

declared by FEMA that are either 

natural or man-made. The Department 

has concluded that for consistency, an 

emergency or disaster situation in 

§ 687.110(b)(2) declared or recognized 

by Federal agencies with jurisdiction 

over the Federal response also may be 

either natural or man-made and this 

change is reflected in the regulatory text 

at § 687.110(b)(2). 

Other textual and technical 

corrections, as discussed in the 

Introduction above, were made to 

§ 687.110. 

Section 687.120 Who is eligible to 

apply for National Dislocated Worker 

Grants? 

Comments: The Department received 

several comments indicating that 

National Farmworker Jobs Program 

(NFJP) grantees should be eligible 

entities for DWGs. One commenter 

stated that it would be appropriate to 

add a phrase in § 687.120 including 

entities that serve special populations. 

A few commenters noted that NFJPs 

have successfully responded to freeze, 

drought, and floods affecting 

farmworkers in the past. 

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Department Response: WIOA sec. 

170(b)(1)(B) through (D) identifies 

eligible entities for qualifying events for 

disasters, emergencies, or certain 

higher-than-average demand. The list of 

entities for these qualifying events is 

very specific, and the NPRM aligns with 

this list. WIOA sec. 170(b)(1)(A) and 

sec. 170(c)(1)(B) identifies those 

applicants eligible for major economic 

dislocations. These eligible entities 

include States, Local WDBs, an entity 

described in WIOA sec. 166(c), and 

‘‘any other entity that demonstrates to 

the Secretary the capability to 

effectively respond to circumstances 

relating to particular dislocations.’’ 

Although NFJPs are not specifically 

mentioned in the law, they are not 

excluded, as the law states that other 

entities may be determined eligible by 

the Secretary. In order to maintain 

flexibility and responsiveness, it is not 

prudent to list all of the possible entities 

that may be considered eligible 

applicants. The Department has 

determined that no changes are 

necessary to the regulatory text at 

§ 687.120(a). In those instances in which 

DWGs are awarded to States, Local 

WDBs or entities described in WIOA 

sec. 166(c), the Department encourages 

NFJPs and other entities to coordinate 

with these recipients as appropriate to 

help address the need. 

A technical correction was made to 

§ 687.120(a)(3) to use the phrase ‘‘Indian 

and Native American’’ to be consistent 

with part 684 of the Rule. Also, the 

Department has made a technical 

correction to § 687.120(b), restructuring 

the format of the list of eligible 

applicants for Disaster Recovery DWGs 

for clarity and alignment with the 

format used at § 687.120(a). 

Section 687.140 What activities are 

applicants expected to conduct before a 

National Dislocated Worker Grant 

application is submitted? 

The Department has adopted text that 

includes technical edits to § 687.140(a) 

in order to clarify what activities 

applicants are expected to conduct 

before submitting an Employment 

Recovery DWG application. As the 

Department stated in proposing the 

regulation, § 687.140(a) requires 

applicants to identify the needs of the 

affected workers and their interest in 

receiving services. Thus, the technical 

edits made to § 687.140(a)(2) clarify that 

agencies should use the information 

gathered through rapid response 

activities in § 687.140(a)(1) to provide 

available services as appropriate,— 

including other rapid response 

activities. 

Comments: The Department received 

comments on data gathering on 

available workers required in the 

application for a Disaster Recovery 

DWG. Proposed § 687.140(b) requires 

applicants to conduct a preliminary 

assessment of the work needed and ‘‘put 

a mechanism in place to reasonably 

ascertain’’ whether sufficient eligible 

individuals are available to conduct the 

planned work. One commenter agreed 

that the collection of data, as well as 

other activities are important, but 

requested that the Department exercise 

the flexibility so the application and 

award process are not delayed. Another 

commenter stated that the requirement 

to put a mechanism in place to 

determine worker availability is 

unrealistic because it is difficult to 

identify eligible and willing dislocated 

workers due to the type of clean-up 

work and the challenging work 

environment. The commenter suggested 

that the problem of inadequate supply 

to meet a community’s demand for 

recovery workers would be addressed 

by allowing States to define ‘‘long-term 

unemployed’’ and that the Department 

should award funds in increments to 

allow for a more streamlined process. 

Department Response: WIOA sec. 

170(d)(2) states that the individuals 

eligible to receive disaster relief 

employment include the long-term 

unemployed. Further, guidance issued 

for DWGs specifies that long-term 

unemployed individuals, as defined by 

the State, are eligible participants. 

Regarding the commenter’s request that 

funds be issued in increments, the 

Department typically funds DWGs on an 

incremental basis and will continue to 

do so as appropriate. 

The Department understands that in 

the aftermath of significant disasters, 

acquiring data may be extraordinarily 

difficult. Still, the Department has 

determined it is necessary to require a 

reasonable assessment to ascertain the 

number of eligible workers available to 

conduct the planned work. It is critical 

that grantees make good-faith efforts to 

gather this data to provide the 

Department information it needs to 

ensure the proper amount of funding is 

awarded to assist the eligible areas. 

However, to address the commenter’s 

concern and reflect the Department’s 

flexibility, the Department has removed 

the ‘‘put a mechanism in place’’ 

information from the Final Rule at 

§ 687.140(b)(2). The Final Rule instructs 

awardees to ‘‘reasonably ascertain’’ that 

there are a sufficient number of eligible 

individuals available to conduct the 

work. The Department will take the 

particular circumstances of a disaster 

into account during the application 

review process. 

Section 687.150 What are the 

requirements for submitting 

applications for National Dislocated 

Worker Grants? 

No substantive comments were 

received on this section; however, the 

Department made changes to the Final 

Rule that provide clarity to allow the 

Department to appraise the variety of 

needs and services under the new 

statute and tailor application 

requirements accordingly. The 

Department has added a sentence to this 

section reflecting that the application 

requirements may vary based on the 

category of DWG. The Department also 

has qualified the requirement that a 

project implementation plan be 

submitted after receiving a DWG award 

by adding the phrase ‘‘unless otherwise 

specified.’’ The project implementation 

plan requirement may not apply to all 

DWGs at all times. Requirements will be 

noted in grant terms and conditions. 

Section 687.160 What is the timeframe 

for the Department to issue decisions on 

National Dislocated Worker Grant 

applications? 

Comments: The Department received 

several comments on this section, which 

discusses the 45-calendar-day timeframe 

for the Department to issue final 

decisions on DWG applications that 

meet the requirements of this part, and 

strongly encourages applicants consult 

with their Regional Offices on all 

requirements. One comment supported 

the provision, but the remaining 

commenters were concerned that the 45- 

day timeframe is too long for Disaster 

Recovery DWGs. Commenters also 

requested a 72-hour timeframe for 

decisions. 

Department Response: The 45-day 

timeframe is the maximum amount of 

time the Department has to issue a final 

decision, not the minimum. The 

Department typically prioritizes Disaster 

Recovery DWGs applications for 

immediate review, and the Department 

will make every effort to ensure they are 

processed as quickly as possible. Again, 

applicants should work with their 

Regional Offices to ensure submissions 

are complete. No change was made to 

regulatory text in response to this 

comment. 

Comments: One commenter asked for 

clarification on how and to whom the 

Notice of Obligation (NOO) (now called 

the Notice of Award (NOA)) will be 

disseminated. 

Department Response: The NOA 

typically will be disseminated 

electronically to the entity identified as 

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the applicant on the SF–424. The 

Department will provide specific 

technical assistance and guidance as 

necessary. No change was made to the 

regulatory text in response to this 

comment. 

Section 687.170 Who is eligible to be 

served under National Dislocated 

Worker Grants? 

Comments: The Department received 

a few comments on this section, which 

addresses participant eligibility. Two 

commenters discussed the eligibility of 

underemployed individuals to be served 

under Disaster Recovery DWGs. One 

commenter asked whether the definition 

of underemployed in § 684.130 applies 

to DWGs with respect to 

underemployed self-employed 

individuals as discussed at WIOA sec. 

170(d)(2)(D) and § 687.170(b)(1)(iv) and 

(b)(2)(iv) of this regulation. This 

commenter also asked how adding the 

term ‘‘significantly’’ to 

‘‘underemployed’’ impacts the 

definition of underemployed as it 

relates to the self-employed at sec. 

170(d)(2)(D) of WIOA and other sections 

of part 687. Another commenter relayed 

concern that employed individuals 

whose hours have been significantly 

reduced could not receive a temporary 

job under a Disaster Recovery DWG and 

requested that these individuals be 

added to the eligibility category. This 

commenter stated that doing so would 

align with text of WIOA sec. 

170(d)(2)(D) by allowing self-employed 

individuals who become unemployed or 

significantly underemployed to be 

eligible for disaster relief employment. 

Department Response: The 

Department has determined that the 

definition for self-employed individuals 

who become unemployed or 

significantly underemployed as a result 

of an emergency or disaster does not 

automatically extend to those who are 

not self-employed. Regarding the 

question about § 684.130, the needs to 

be addressed by Disaster DWG funds 

also are different than those discussed 

in part 684, which deals with Indian 

and Native American program grants. 

Therefore, the definition of 

‘‘underemployed’’ at § 684.130 does not 

apply to this section. Neither 

‘‘underemployed’’ nor ‘‘significantly 

underemployed’’ are defined in sec. 3 

(Definitions) of WIOA or in part 687. 

The Department has concluded it will 

remain flexible in determining the 

needs of underemployed individuals in 

the wake of a disaster and provide 

guidance as necessary. 

Regarding § 687.170(b)(2), the 

Department has made a technical 

correction to remove the words 

‘‘humanitarian-related’’ to ensure that 

the Department does not restrict the 

disaster relief employment to only 

humanitarian-related employment and 

not allow for the possibility of clean-up 

and repair-related employment. Since it 

is likely that most individuals who 

relocate from a disaster area will move 

to an area that is not affected by a 

disaster, the Department expects 

disaster relief employment activities to 

be rare in DWGs awarded for this 

qualifying event, and relocated 

individuals likely will participate in 

only employment and training 

activities. 

Comments: One commenter requested 

clarification regarding the individuals 

who relocate to another area from a 

disaster area as discussed in 

§ 687.170(b)(2). The comment suggested 

the regulatory text state that these 

individuals may receive services in both 

the disaster area and in the area to 

which they relocate. 

Department Response: The 

Department has added § 687.170(c) to 

clarify that eligible individuals may 

receive services from DWG funds in 

either the State, tribal area, or outlying 

area affected by a disaster or the State, 

tribal area, or outlying area to which 

they relocate as a result of that disaster. 

Under this provision, a single 

individual may not be served in both 

the area affected by a disaster and the 

area to which they relocated because of 

the disaster. However, the Department 

also has included language in 

§ 687.170(c) to account for such a 

situation, where individuals eligible for 

services are capable of seeking services 

in both the State, tribal area, or outlying 

area in which a disaster occurred and 

the State, tribal area, or outlying area to 

which that individual has relocated as 

a result of that disaster. In these 

circumstances, the Secretary will make 

a determination as to whether 

individuals may be served with DWG 

funds in the disaster-affected area as 

well as the area to which those 

individuals relocated as a result of that 

disaster. Departmental guidance will set 

out requirements under these 

provisions. As discussed in the 

Introduction, the Department has made 

textual changes to this section to make 

this section and its requirements clearer 

and in better alignment with WIOA’s 

text. Also, paragraphs (a)(1)(iii)(C) and 

(D) have been edited to reflect the 

correct cross-reference, to paragraph 

(a)(1)(iii)(B). 

Section 687.180 What are the 

allowable activities under National 

Dislocated Worker Grants? 

The Department has made several 

technical corrections to this section. 

First, in § 687.180(a)(1), the term, 

‘‘employment and training activities’’ 

was changed to ‘‘employment and 

training assistance’’ for consistency with 

the wording at WIOA sec. 170(b)(1)(A). 

Second, § 687.180(a)(2) was revised to 

add ‘‘and the terms and conditions of 

the grant’’ to make it clear that 

supportive services, including needsrelated payments, also are subject to any 

restrictions reflected in the terms and 

conditions of the grant. Third, 

§ 687.180(a)(2)(ii) was revised by 

inserting the word ‘‘guidance’’ to clarify 

that the other circumstances would be 

specified in guidance governing DWG 

application requirements. Fourth, in 

§ 687.180(b) the Department removed 

the second DWG acronym to eliminate 

redundancy. Fifth, the word 

‘‘emergency’’ was added to 

§ 687.180(b)(1) and (2) to make it clear 

that these sections cover not only 

declared disaster areas, but declared 

emergency areas as well. 

Finally, the Department placed the 

proposed § 687.180(b)(4) into 

§ 687.180(c) in the Final Rule. Unlike 

the other provisions of § 687.180(b), this 

provision does not describe Disaster 

Recovery DWG activities but instead the 

entities through which DWG funds may 

be expended to carry out these 

activities. The Department also 

simplified this provision by replacing 

the phrase ‘‘disaster relief, humanitarian 

assistance, and clean-up projects’’ with 

‘‘activities’’ discussed in § 687.180(b). 

Comments: The Department received 

several comments on this section, which 

discusses the activities that may be 

conducted with DWGs. One commenter 

requested that the Department issue 

guidance on the required coordination 

with FEMA. WIOA sec. 170(d)(1)(A) 

requires funds awarded for disasters be 

used in coordination with FEMA. The 

commenter stated that it is more likely 

that a State would have more immediate 

access to and communication with their 

State emergency management agencies 

than FEMA. 

Department Response: Coordination 

of funding with FEMA is critical in 

helping ensure funding is used to 

provide a broad range of assistance 

while preventing duplication of 

services. The Department has 

determined that because each disaster is 

unique, and responses must be tailored 

to the disaster; decisions regarding how 

States, tribal, or outlying areas 

coordinate with FEMA should be made 

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by entities within affected communities. 

The Department declines to be 

prescriptive or proscriptive about 

grantees’ coordination with FEMA, but 

expects that grantees will establish 

appropriate policies and procedures to 

meet this requirement. The Department 

supports and strongly encourages 

grantees’ coordination with State 

emergency management agencies and 

other entities participating in the 

recovery process. 

Comments: A commenter requested 

that the Department solicit input on 

disaster relief and/or career services 

authorized under DWGs when a Federal 

agency other than FEMA declares a 

disaster or emergency situation. 

Department Response: This input was 

solicited during the comment period on 

the NPRM, which has since closed. The 

NPRM provided a list of allowable 

disaster relief employment activities 

and also stated that career services 

could be provided to eligible 

individuals. Examples of career services 

were provided in the Joint WIOA NPRM 

and are in 20 CFR 678.430. 

Comments: Another commenter asked 

whether subgrantees would be required 

to report expenditures for career 

services as a whole. 

Department Response: In order to 

maintain flexibility, the Department will 

not provide information on such 

reporting in these regulations, but 

reserves the right to issue details in 

guidance. However, guidance on 

reporting for subgrantees is typically 

issued by the direct recipient of the 

funds; the level of detail for subgrantees 

the commenter requested might not be 

included in guidance issued by the 

Department. 

Comments: One commenter asked 

whether the NOA will indicate whether 

a grant has been authorized for a needsrelated payment. 

Department Response: In most 

instances, authorization of needs-related 

payments likely will be relayed through 

the grant’s Terms and Conditions 

document. Other forms of 

communication may be used as 

necessary. 

Section 687.190 How do statutory and 

regulatory waivers apply to National 

Dislocated Worker Grants? 

Comments: One commenter requested 

that the waiver process be short and 

efficient to expedite decision-making. 

Department Response: WIOA only 

allows the Department to waive certain 

statutory and regulatory requirements of 

WIOA title I, subtitles A, B, and E; the 

Department cannot waive any 

requirements of DWGs set out in sec. 

170 of WIOA (which is in subtitle D) or 

the regulatory requirements of this part. 

For DWG funds, proposed § 687.190 

allowed the use of waivers under 

subtitles A, B, and E that the 

Department already has approved. It 

delineated two processes for requesting 

that the Department apply these waivers 

to a DWG. 

For those applying for DWG funds, 

proposed § 687.190 stated that the 

application must describe the alreadyapproved waivers the applicant wishes 

to apply to the project and that the 

Department will consider the request as 

part of the application review and 

decision process. Proposed § 687.190 

required grantees seeking utilization of 

existing waivers to request a grant 

modification and include the provision 

to be waived, the operational barrier to 

be removed, and the effect on the 

outcome of the project. 

In response to the comment, the 

Department has restructured and 

revised § 687.190 to clarify and better 

describe the waiver limitations, and to 

simplify the basic requirements for 

requesting to use waivers in DWG 

projects. The Final Rule at § 687.190(a) 

articulates that the requirements of 

WIOA title I, subtitle D cannot be 

waived, but that already-approved 

waivers of the requirements under 

subtitles A, B, and E may be utilized in 

DWG projects. The Final Rule revises 

§ 687.190(b) to more clearly state that 

applicants with already-approved 

waivers under WIOA must describe the 

waiver in the application and request at 

the time of application that the specific 

waiver be applied to the DWG. The 

Department has simplified the 

requirements for requesting waiver 

utilization during the operation of the 

DWG in § 687.190(c). The grantee must 

describe the existing waiver in a grant 

modification and request that the waiver 

be applied to the project. This removes 

the proposed § 687.190(b)’s requirement 

that a grantee describe the provision to 

be waived, the operational barrier to be 

removed, and the effect on the outcome 

of the project. For added clarity, both 

§ 687.190(b) and (c) state that applicants 

may not use this process to request new 

waivers. The Department will not 

consider requests for new waivers as 

part of the application or modification 

for a DWG. 

Section 687.200 What are the program 

and administrative requirements that 

apply to National Dislocated Worker 

Grants? 

Comments: The Department received 

comments on proposed § 687.200(b)(2), 

which stated that in extremely limited 

circumstances, funds available for 

expenditure from Disaster Recovery 

DWGs may be used for additional 

disasters or situations of national 

significance within the same program 

year the funds were awarded. 

One commenter expressed that the 

Rule was overly restrictive. The 

commenter remarked that there was no 

indication in WIOA’s text that the 

subsequent disaster must occur during 

the same year of the award, and that the 

regulation should allow for more 

flexibility and permit these funds to be 

used beyond the program year. WIOA 

sec. 170(d)(4) allows the Secretary to set 

conditions under which these funds 

may be used, and the Department has 

concluded the program year restriction 

in the NPRM is the best method to help 

ensure the proper management and 

distribution of Disaster Recovery DWG 

funds. The Department made no 

changes to § 687.200(b)(2) in response to 

these comments. 

Comments: The Department received 

a few comments concerning the DWG 

administrative costs addressed in 

§ 687.200(b)(3). One commenter asked 

whether the administrative cost limit is 

calculated against the full award 

amount, the summation of the 

incremental amounts received, or the 

amount expended. Another commenter, 

discussing part 683, advocated for 

consistency in how the administrative 

funds are applied in the formula 

program and the DWG; essentially, the 

commenter requested that the 

administrative costs be calculated 

against the award and not the 

expenditure amount. 

Department Response: The 

Department has concluded that it will 

follow this approach, and the 

administrative cost limit will be 

calculated against the award and not the 

expenditure amount. The Department 

has included this provision in the Final 

Rule at § 687.200(b)(3). The Department 

expects that in most cases, these cost 

limits will likely be proportionate to 

those established for the formula funds. 

The Department also encourages 

potential DWG recipients to review their 

cost per participant to ensure that it is 

reasonable or falls within normal limits 

based on the circumstances of the 

qualifying event and comparable grants 

that were previously awarded. If the 

cost per participant falls outside of 

normal limits, the grantee should 

submit a justification to explain the 

costs to reduce delays in the review 

process. The Department concluded 

there was no need to alter the text of 

§ 687.200 for this policy. 

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L. Part 688—Provisions Governing the 

YouthBuild Program 

1. Introduction 

The Department wants to emphasize 

the connections across all of our youthserving programs under WIOA, 

including the WIOA youth formula 

program and associated boards and 

youth committees, connections to preapprenticeship and registered 

apprenticeship programs, and Job Corps 

centers across the country. WIOA is an 

opportunity to align and coordinate 

service strategies for these ETA youth 

training programs, as well as to align 

with our Federal partners that serve 

these same customers. WIOA also 

ensures that these programs are using 

common performance indicators and 

standard definitions, which includes 

aligning the definitions for homeless 

youth, basic skills deficient, 

occupational skills training, and 

supportive services. Additionally, the 

YouthBuild regulation adopts the six 

new performance indicators that apply 

to all youth-serving WIOA programs and 

aligns YouthBuild with the WIOA youth 

formula program. 

WIOA affirms the Department’s 

commitment to providing high-quality 

education, training, and employment 

services for youth and young adults 

through YouthBuild grants by 

expanding the occupational skills 

training offered at local YouthBuild 

programs. YouthBuild programs can 

offer occupational skills training in indemand occupations, such as health 

care, advanced manufacturing, and IT, 

as approved by the Secretary and based 

on the maturity of the program and local 

labor market information. 

In addition to the changes to the 

program required by WIOA, the 

Department makes several additional 

changes to the program, including 

revisions to the duration of the 

restrictive covenant clause (as detailed 

in the preamble at § 688.730), clarifying 

eligibility criteria for participation, and 

describing qualifying work sites and 

minimum criteria for successful exit 

from the YouthBuild program. Beyond 

these regulations, the Department will 

continue to develop guidance and 

technical assistance to help grantees and 

the workforce development community 

operate highly-effective YouthBuild 

programs. The Department received 

several comments that expressed 

general support for the proposed 

YouthBuild regulations. Comments on 

specific sections of the NPRM are 

described in each relevant section 

below. 

The analyses that follows provides the 

Department’s response to public 

comments received on the part 688 

regulations. If a section is not addressed 

in the discussion below, it is because 

the public comments submitted in 

response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below analysis 

below. 

2. Subpart A—Purpose and Definitions 

Section 688.100 What is YouthBuild? 

This section describes the YouthBuild 

program. YouthBuild is a workforce 

development program that provides 

employment, education, leadership 

development, and training opportunities 

to disadvantaged youth. The program 

also benefits the larger community by 

providing new and rehabilitated 

affordable housing, thereby decreasing 

the incidence of homelessness in those 

communities. The program recruits 

youth between the ages of 16 and 24 

who are school dropouts and are either: 

A member of a low-income family, a 

youth in foster care, a youth who is 

homeless, a youth offender, a youth who 

is an individual with a disability, a 

child of an incarcerated parent, or a 

migrant youth. 

Comments: Several commenters 

advocated that the YouthBuild program 

be emphasized as one of the 

Department’s strategies to engage 

disconnected youth, due to the 

YouthBuild program’s high number of 

court-involved youth. These same 

commenters emphasized the focus 

within YouthBuild on a counseling and 

case management approach in order to 

support participant success in 

employment and education and 

recommended modifying the 

Department’s definition of YouthBuild 

to read: 

YouthBuild is a workforce development 

program that provides employment, 

education, leadership development, service 

to the community, and training opportunities 

for disadvantaged youth. The program 

benefits the larger community by decreasing 

the incidence of homelessness and 

addressing issues of disconnection, violence, 

and lack of opportunities in those 

communities. YouthBuild also increases the 

affordable housing stock in these 

communities. 

Department Response: The 

Department has concluded that the 

definition of YouthBuild, as provided 

under § 688.100, is accurate. The 

description of the YouthBuild program 

accurately defines the intent, target 

population, and anticipated outcomes of 

the program model. However, given the 

program’s focus on increasing access to 

affordable housing through building or 

rehabilitating of low-income properties, 

the Department has revised the 

definition of ‘‘YouthBuild Program’’ in 

§ 688.120 to specifically emphasize the 

inclusion of service to the community, 

as described in the commenter’s 

proposed definition. 

Additionally, the YouthBuild program 

serves a wide variety of eligible youth, 

of which court-involved youth are just 

one population, and programs funded 

by the Department vary widely in the 

ratio of court-involved youth they serve. 

The Department supports the 

YouthBuild program model as one of 

several approaches that can provide 

positive change and expanded 

opportunity to disadvantaged youth; 

however, court-involved youth are not 

the sole population targeted by this 

program. Therefore, it is not accurate to 

focus on court-involved youth as a 

predominant population served. Aside 

from the addition of service to 

community as described above, no 

changes were made to the regulatory 

text in response to these comments. 

Section 688.120 What definitions 

apply to this part? 

Comments: Several commenters 

recommended revisions to the proposed 

definitions in the YouthBuild NPRM, 

while others recommended the 

inclusion of additional definitions not 

included in the NPRM. Several 

commenters also expressed general 

approval of the definitions, specifically 

the definition of ‘‘Adjusted income’’ and 

‘‘Homeless individual’’ and ‘‘Homeless 

child and youth.’’ 

One commenter recommended 

revising the numbering within the 

existing definition of ‘‘Adjusted 

income’’ as the commenter believed it 

could lead to confusion as numbered. 

The commenter further recommended 

the inclusion of the rationale for the 

exclusion of earned income, at the 

discretion of a Housing Development 

Agency, from adjusted income, as 

defined. 

Department Response: After 

reviewing the definition of ‘‘Adjusted 

income’’ as written in the NPRM, the 

Department realized that the section 

numbering of the definition was 

inadvertently mislabeled, which made 

the numbering appear inconsistent, and 

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created confusion. The definition 

numbering has been revised in the final 

text of § 688.120. The exclusion of 

earned income from the definition of 

adjusted income is part of the definition 

of ‘‘Adjusted income’’ in sec. 3(b) of the 

United States Housing Act of 1937 (42 

U.S.C. 1437a(b)). As sec. 171(b)(1) of 

WIOA incorporates that definition of 

‘‘Adjusted income,’’ it cannot be 

changed by the Department in these 

regulations. 

Comments: One commenter requested 

that the definition of ‘‘Eligible Entity’’ 

clarify what counts as an eligible State 

under WIOA. In particular, the 

commenter was seeking clarity on how 

territories and outlying areas qualify as 

eligible entities under WIOA and asked 

that the Department clarify the language 

to permit territories and outlying areas 

to apply for YouthBuild grants. 

Department Response: The definition 

of ‘‘Eligible Entity’’ as provided in 

§ 688.120 includes ‘‘any. . .entity 

eligible to provide education or 

employment training under a Federal 

program’’ to be eligible to apply for 

YouthBuild awards. Territories and 

outlying areas that meet this part of the 

definition will be considered eligible 

entities in this part. The Department has 

concluded that no further clarity to the 

definition is necessary. 

Comments: One commenter requested 

the addition of a definition for ‘‘EnergyEfficient Improvements’’ as ‘‘all 

measures recognized by the 

Weatherization Assistance Program 

including general heat waste reduction 

weatherization materials.’’ 

Department Response: The 

Department has concluded that the 

definition of energy-efficient 

improvements should be provided 

through guidance rather than the 

regulatory process in order to ensure 

greater flexibility, as this is an emerging 

industry and standards are still being 

developed. 

Comments: One commenter indicated 

a misprint in the definition of ‘‘Exit’’ in 

which the incorrect section of the 

regulation was cited. 

Department Response: The 

Department has corrected the definition 

with the correct section reference. 

No comments were received regarding 

the definitions of ‘‘Homeless 

individual’’ and ‘‘Homeless child or 

youth;’’ however, these definitions were 

revised for added clarity to fit the Final 

Rule text as the definitions for these two 

terms come from existing legislation. 

Specifically, the definition of 

‘‘Homeless individual’’ comes from sec. 

41403(6) of the Violence Against 

Women Act of 1994 (42 U.S.C. 14043e– 

2(6)) and the definition of ‘‘Homeless 

child or youth’’ comes from sec. 725(2) 

of the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11434a(2)). 

Comments: One commenter requested 

that the definition of ‘‘Needs-based 

payments’’ be modified to state: 

‘‘beyond wage[s] or stipends which may 

be provided by the program,’’ as such 

payments are not required but only 

allowed. The commenter expressed 

concern that needs-based payments 

should be allowable no matter how 

funds paid to participants are 

characterized. 

Department Response: Although the 

preamble section of the NPRM does 

refer to wages or stipends, the actual 

definition of ‘‘Needs-based payments’’ 

under § 688.120 does not refer to wages 

or stipends. The Department cannot 

modify the language related to wages 

and stipends because neither were 

actually mentioned in the regulatory 

text of the NPRM and so there is not 

anything to modify regarding wages and 

stipends in § 688.120. However, the 

Department agrees that both wages and 

stipends are allowable but not required 

and this will be addressed through 

guidance. 

Comments: One commenter suggested 

that the definition of ‘‘Preapprenticeship’’ should be clarified to 

ensure that YouthBuild programs 

continue to be considered preapprenticeship programs, even where 

they do not meet all of the requirements 

of a qualifying pre-apprenticeship 

program and are not funded by the 

Department. The commenter suggested 

keeping the definition provided in 

Training and Employment Notice (TEN) 

13–12, but allowing for additional 

flexibility in the TEN 13–12 definition 

to develop alternative strategies for 

career pathways for youth where the 

requirement for registered 

apprenticeship partnerships or 

pathways cannot be met. 

Department Response: In response to 

this comment, the Department has 

revised the definition of preapprenticeship in § 688.120 to clarify, 

consistent with TEN 13–12, ‘‘Defining a 

Quality Pre-Apprenticeship Program 

and Related Tools and Resources’’ 

which can be found at http://

wdr.doleta.gov/directives, the 

YouthBuild programs receiving funding 

from the Department under this part 

meet the definition of preapprenticeship as described in that 

section. The Department further edited 

this definition to provide a more 

detailed and consistent explanation of 

the components of a pre-apprenticeship 

program as described throughout this 

Final Rule. 

However, the Department cannot 

broadly categorize YouthBuild programs 

as pre-apprenticeship programs beyond 

those funded under this part as the 

Department is not in a position to 

determine that programs not funded by 

the Department meet the requirements 

to be considered a pre-apprenticeship 

program. However, this does not 

preclude the Department from 

subsequently making such a 

determination on a case-by-case basis. 

Comments: One commenter requested 

the addition of a definition of 

‘‘Substantive Construction’’ as 

construction of affordable housing, 

major renovations, and/or 

deconstruction. 

Department Response: Substantive 

construction is defined in TEGL No. 06– 

15, ‘‘Qualifying Work Sites and 

Construction Projects for YouthBuild 

Grantees and Their Role in Training,’’ 

which can be found at http://

wdr.doleta.gov/directives/All_WIOA_

Related_Advisories.cfm. The 

Department has decided not to include 

this definition in the regulation to 

ensure the flexibility necessary to adapt 

the definition as the industry develops 

and new certifications emerge. 

The Department received no 

comments on the definition of 

‘‘Supportive services,’’ but has revised 

the language in the regulatory text to be 

consistent with the definition in 

§ 681.570. 

Comments: One commenter 

questioned whether the definition of 

‘‘Underemployed’’ in § 684.130 applied 

to YouthBuild. 

Department Response: The definition 

of ‘‘Underemployed’’ in § 684.130 does 

not apply to this part. 

The Department received no 

comments on the definition of ‘‘youth in 

foster care,’’ but has revised the 

language in the regulatory text to be 

consistent with the definition in 

§ 681.210. 

3. Subpart B—Funding and Grant 

Applications 

Section 688.220 How are eligible 

entities selected to receive grant funds? 

Comments: Several commenters 

expressed concern that YouthBuild 

programs that outsource core program 

elements may compromise the youth’s 

experience by having to go to several 

providers for different components of 

the program model. Further, there was 

concern that this can have a detrimental 

effect on the overall performance 

outcomes for the program compared to 

those that offer all core components of 

the program in-house. One commenter 

further expressed a fear that an 

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applicant that provides all core 

components in-house could be 

penalized in the grant selection process 

due to the added emphasis on 

partnerships in this section. 

Department Response: The 

Department recognizes that there are 

many different permutations of the 

YouthBuild model, all of which provide 

the required program components, but 

which provide such components in 

many different ways. Emphasizing the 

importance of partnerships does not 

diminish the focus on quality service 

delivery to participants, nor does it 

require that components be outsourced. 

This instead represents recognition of 

the many strong public workforce 

system partners that contribute to a 

safety net of services for at-risk youth. 

Encouraging active partnerships to 

provide a full array of services necessary 

to help youth succeed ensures that 

YouthBuild programs are actively 

accessing all available community 

resources so that such resources can 

stretch further. However, there is no 

requirement that a program must 

partner across each of the highlighted 

areas (education and training providers, 

employers, the workforce development 

system, the juvenile and adult justice 

systems, and faith-based and 

community organizations) but rather, 

where it fills a gap in services or 

opportunities, such partnerships must 

be pursued. As such, applicants must be 

able to demonstrate the ability to 

develop a comprehensive network of 

partners to provide services, both inhouse and out, to support successful 

outcomes. This is a core value of the 

Workforce Innovation and Opportunity 

Act. 

4. Subpart C—Program Requirements 

Section 688.300 Who is an eligible 

participant? 

Comments: One commenter expressed 

concern related to TEGL No. 11–09 

(‘‘Expanded Participant Eligibility for 

the YouthBuild Program’’), which 

allowed YouthBuild programs to 

expand the definition of a dropout to 

include youth who had dropped out of 

school but had subsequently enrolled in 

a YouthBuild Charter School prior to 

enrollment in the YouthBuild program, 

so long as this was part of a sequential 

service strategy. The commenter stated 

that they believed this set a precedent 

for allowing WIOA to enroll participants 

who meet this criterion as out-of-school 

youth. Further, the commenter 

recommended that the definition of outof-school youth should be applied to 

those youth attending alternative 

school. 

Department Response: TEGL No. 11– 

09 was guidance under the Workforce 

Investment Act (WIA), which included 

a provision for the sequential service 

strategy. WIOA expanded the 

YouthBuild participant eligibility to 

allow youth who were high school 

dropouts but had subsequently 

reenrolled to be eligible for the 

YouthBuild program. This eligibility 

expansion rendered the guidance in 

TEGL No. 11–09, and its related 

Changes 1 and 2, void. Further, 

§ 681.230 clarifies that youth attending 

alternative education programs 

provided under title II of WIOA, 

YouthBuild, or Job Corps are considered 

out-of-school youth. No changes were 

made to the regulatory text in response 

to this comment. 

Section 688.320 What eligible 

activities may be funded under the 

YouthBuild program? 

Comments: One commenter 

recommended adding two additional 

eligible activities that may be funded 

under YouthBuild: 

• Energy-efficient improvements; 

• The rehabilitation of housing that is 

in need of renovation for health and 

safety reasons. 

Department Response: The 

Department has concluded that there is 

no prohibition on the above named 

activities as eligible activities of the 

YouthBuild program. These two 

activities fall under the broad categories 

of work experience and skills training as 

described in § 688.320. The NPRM does 

not go into specific detail regarding the 

types of construction training that are 

eligible; such detail can be addressed 

through separate guidance as necessary. 

Comments: One commenter expressed 

concern regarding the ‘‘provision of 

wages, stipends or benefits to 

participants. . .’’ as allowed under 

§ 688.320. The commenter was 

specifically concerned about the use of 

wages for YouthBuild participants and 

the Internal Revenue Service (IRS) 

provisions that may be triggered. The 

commenter stated that several recent 

IRS rulings for local YouthBuild 

programs had determined that 

YouthBuild participants are not 

employees and therefore do not earn 

wages but stipends. However, as wages 

are an allowable payment to YouthBuild 

participants, the commenter requested 

that the Final Rule further explain the 

difference between participants who are 

paid wages and participants who are 

paid stipends and the additional costs 

that programs may incur by using a 

wage payment structure (such as 

required payment into Medicare or 

FICA or liability for unemployment 

expenses, for example), and that the 

Department urge grantees to avoid using 

grant funds for the provision of wages. 

Department Response: The 

Department has concluded the 

provision of wages and stipends are 

subject to the authority of the 

Department’s Wage and Hour Division 

and the IRS. YouthBuild programs will 

continue to be required to reach out to 

the appropriate Federal office to 

determine the allowable provision of 

payments to participants as well as any 

financial responsibilities that entails. 

Additionally, the Department will not 

discourage programs from choosing one 

method of payment over another as 

there is a diverse body of YouthBuild 

program models operating across the 

country, and while some may find that 

payment of wages is too onerous, in 

other organizations there may be 

benefits to such a payment structure. 

Additional information to grantees will 

be provided through guidance. 

Comments: One commenter 

recommended that the Final Rule 

encourage disconnected youth to be 

taught healthy relationship skills as part 

of workforce development training. The 

commenter expressed the importance of 

youth developing healthy relationship 

skills as these can benefit them across 

a broad spectrum of life areas, including 

soft skill areas such as communication, 

conflict resolution, and problem 

solving. The commenter also referenced 

the response provided on the WIA 

YouthBuild Final Rule (77 FR 9112, 

Feb. 15, 2012), in which the Department 

concurred with a similar request and 

indicated that such activities were 

included under the broad category of 

‘‘activities designed to develop 

employment and leadership skills.’’ 

Department Response: WIOA has not 

modified this section of the allowable 

activities. The Department reiterates the 

2012 YouthBuild Final Rule response. 

The Department agrees that healthy 

relationships and development of 

interpersonal skills are important for the 

disconnected youth served under 

WIOA. These activities are supported 

under § 688.320 as part of the 

employment and leadership skills 

development, which has been revised to 

read: ‘‘which may include. . .peercentered activities encouraging 

responsibility, interpersonal skills, and 

other positive social behaviors.’’ 

Section 688.330 What level of training 

qualifies a construction project as a 

qualifying work site under the 

YouthBuild program? 

Comments: Several commenters 

recommended using the term ‘‘skill 

area(s)’’ in lieu of ‘‘module’’ in reference 

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to the description of the construction 

skills training curriculum in which 

youth are trained on the work site. The 

commenters stated that the term ‘‘skill 

area’’ is broader than a module as a 

module is a component of a skill area 

and the term module is likely to be 

confused with sections of a particular 

curriculum. These same commenters 

also requested clarification of whether it 

is assumed that all projects must 

include energy-efficient enhancements 

as it is one of the five goals of the 

YouthBuild program as described in 

§ 688.110. They further requested that if 

this cannot be assumed, it be included 

in the criteria for a qualifying work site. 

One commenter also recommended 

including additional fields within the 

construction industry as additional 

aspects of qualifying work sites, 

including those of deconstruction and 

environmental protection, such as radon 

testing. 

Department Response: The 

Department has revised § 688.330 to 

clarify that qualifying work sites must 

include both multiple modules and 

skills areas. The Department requires 

that YouthBuild participants receive 

quality and comprehensive construction 

training in a real-life setting on a work 

site, such that the participant will attain 

sufficient construction experience to 

enter into a career pathway after 

program exit. Therefore, work sites must 

provide the opportunity for youth to 

have hands-on training and experience 

of both breadth and depth in order to 

qualify. In TEGL No. 06–15 (‘‘Qualifying 

Work Sites and Construction Projects for 

YouthBuild Grantees and Their Role in 

Training’’), found at www.doleta.gov/

WIOA/, the Department defines 

modules as specific training sections 

within the curriculum of each of the 

industry-recognized credentials that 

relate to specific skill areas of 

construction. These skill areas could 

include brick masonry, carpentry, 

painting, or plumbing, as examples. 

While it may be allowable for 

programs to also provide more general 

rehabilitation work, such as 

deconstruction, landscaping, screen 

repair, fence building, etc., if a program 

offers training in these activities at a 

work site, the work site will not qualify 

under this section unless the program 

also includes experience in two or more 

modules within two or more skill areas. 

Any work site that does not include 

exposure to multiple modules and skill 

areas will not be considered a qualifying 

work site. Additional explanation and 

guidance regarding qualifying work sites 

is provided in TEGL No. 06–15. 

Energy-efficient enhancements are 

described as part of the fifth YouthBuild 

goal as it relates to improving the energy 

efficiency specifically of community 

and non-profit and public facilities. The 

Department has concluded that this 

cannot be interpreted broadly to mean 

that all work sites must include energyefficiency enhancements in order to 

qualify, nor can it interpret this to mean 

that all community and non-profit and 

public facilities must include energyefficiency enhancements. Such 

enhancements are included as part of 

the allowable activities, as explained in 

§ 688.320 above, but they are not 

required for all qualifying work sites, 

including community and non-profit 

and public facilities. 

The Department defines the fields of 

deconstruction and environmental 

protection, such as radon testing and 

mitigation, as fields outside the 

immediate construction focus of 

YouthBuild. None of these fields 

directly supports the goal of increasing 

affordable housing so they are not standalone skill areas; however, as with 

landscaping or painting, these are areas 

in which youth can receive hands-on 

work experience as long as it is in 

conjunction with the broader 

requirement of qualifying work sites in 

which hands-on training and experience 

in two or more modules, each within a 

different skill area, in a construction 

skills training program that offers an 

industry-recognized credential is 

provided. 

Comments: Finally, several 

commenters sought clarity related to the 

preamble language of § 688.330 that 

described the expectation that 

participants must pass a certain number 

of modules in order to attain industryrecognized construction certification. 

The commenters noted that the 

regulation language for § 688.330 does 

not require the attainment of a 

credential or certification. 

Department Response: A goal of 

training should be the attainment of an 

industry-recognized credential; 

however, the factors affecting whether a 

work site qualifies for the purposes of 

the YouthBuild program, as described in 

§ 688.330, do not include a requirement 

that participants attain an industryrecognized credential. Qualifying work 

sites should provide training that 

supports the hands-on experience 

participants will need to attain industryrecognized construction credentials, but 

the attainment of a credential is not a 

requirement in order for a work site to 

qualify. No changes were made to the 

regulatory text in response to these 

comments. 

Section 688.380 What is the role of the 

YouthBuild grantee in the one-stop 

delivery system? 

Comments: Several commenters 

expressed concern with the requirement 

that YouthBuild grantees take all actions 

required of required partners as 

described in sec. 121 of WIOA. 

Specifically, the commenters were 

concerned with 20 CFR 678.420(b) (see 

Joint WIOA Final Rule), which provides 

that required partners use a portion of 

funds made available to the partner’s 

program to provide applicable career 

services and work collaboratively with 

the State and Local WDBs to establish 

and maintain the one-stop delivery 

system, including by jointly funding 

one-stop infrastructure. 

The commenters indicated that if this 

language is interpreted to mean that 

YouthBuild programs must pay into the 

one-stop delivery system, it would put 

an undue burden on small discretionary 

programs. At the same time, the 

commenters expressed support for the 

opportunity to partner with local onestop programs, particularly around 

mutual referrals to services, but do not 

expect this to require a funding 

relationship. 

One commenter expressed support for 

actively developing partnerships with 

the one-stop delivery system, which 

they consider critical for success and 

beneficial to streamlining services to 

youth. However, they recommended 

that the language related to this 

requirement be strengthened to ensure 

that both the one-stop operators and 

YouthBuild program administrators 

recognize it as a required partnership 

and meet to develop mutual parameters 

for the partnerships. Past experience of 

the commenter demonstrated that 

YouthBuild programs are sometimes 

rebuffed when seeking partnership with 

one-stop operators. The commenter 

stated that ensuring the requirement is 

mutual will lead to greater success. 

Department Response: As YouthBuild 

grantees are required partners in the 

one-stop delivery system, they are 

responsible for complying with the 

requirements in sec. 121 of WIOA and 

20 CFR part 678 of these regulations (see 

Joint WIOA Final Rule). While 

compliance with these requirements 

may require a financial commitment 

from the grantee, any costs incurred 

would be an allowable cost under the 

grant. Ensuring that YouthBuild 

programs are required partners with the 

one-stop delivery system serves to 

strengthen the safety net for 

disconnected youth through stronger 

connection points to recruitment, 

referral, and provision of services to 

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such youth. The Department will be 

issuing further guidance regarding the 

requirements of partnership within the 

one-stop delivery system separate from 

the Final Rule. No changes were made 

to the regulatory text in response to 

these comments. 

5. Subpart D—Performance Indicators 

Section 688.400 What are the 

performance indicators for YouthBuild 

grants? 

Comments: One commenter expressed 

support for the inclusion of two separate 

placement measures under WIOA as 

they felt this would allow them to report 

on all enrollees, rather than a subset that 

was initially placed, as with WIA. This 

commenter further provided a 

recommendation that the proposed 

earnings measure should take into 

account the local minimum wage 

standards since these can vary greatly 

by location and, without context, may 

skew the reporting outcomes. This 

commenter also expressed concern that 

the counting of a secondary diploma 

only when youth are subsequently in 

employment or in an education or 

training program leading to a recognized 

postsecondary credential within 1 year 

after exit from the program will 

inadvertently devalue the importance of 

a high school diploma or equivalency 

degree and discourage programs from 

the necessary investment that must be 

made to get good secondary diploma 

outcomes. 

One commenter expressed general 

concern over the requirement of social 

security numbers, which will negatively 

impact the serving of English language 

learners who will be able to access 

programs that could lead to citizenship 

and which further places nearly 

unattainable accountability and 

performance standards on adult 

education programs. 

Department Response: Section 171(f) 

of WIOA applied the common 

performance indicators applicable to all 

youth programs authorized under title I 

of WIOA described in sec. 

116(b)(2)(A)(ii) of WIOA to the 

YouthBuild program. The regulations 

implementing and describing the youth 

performance indicators are at 20 CFR 

677.155(c) of these regulations (see Joint 

WIOA Final Rule). Because the 

comments suggesting changes to the 

primary indicators of performance are 

general comments on the primary 

indicators for youth programs, they have 

been addressed in the preamble to that 

20 CFR 677.155. Further, there is no 

reference to required collection of social 

security numbers in part 688. The 

Department has concluded that this 

comment is outside the scope of this 

part. 

No changes were made to the 

regulatory text in response to these 

comments. 

6. Subpart E—Administrative Rules, 

Costs, and Limitations 

Section 688.520 What cost limits 

apply to the use of YouthBuild program 

funds? 

Comments: One commenter requested 

clarification regarding the percentage of 

the grant award that could be used to 

rehabilitate community facilities, as 

separate sections of the NPRM showed 

a discrepancy. 

Department Response: The 

Department has revised the NPRM 

under § 688.520 to correctly state that 

the percentage of the grant award that 

can be expended toward rehabilitation 

of community facilities is 15 percent, as 

stated in § 688.550. 

Section 688.540 What are considered 

to be leveraged funds? 

Comments: One commenter requested 

clarification on leveraged funds and 

whether they can be used to pay for 

meals for youth. The commenter 

interpreted leveraged funds to allow the 

purchase of food because they are 

separate from the grant funds and 

required 25 percent match requirement 

of YouthBuild. 

Department Response: Per the NPRM, 

leveraged funds are funds used for 

allowable costs under the cost 

principles. Additional guidance on the 

definition of and allowable use of 

leveraged funds is provided through the 

‘‘Uniform Administrative Requirements, 

Cost Principles, and Audit 

Requirements for Federal Awards’’ 

regulation. The Department does not 

have the ability to predetermine the 

allowability of specific costs through 

these regulations. No changes were 

made to the regulatory text in response 

to this comment. 

Section 688.550 How are the costs 

associated with real property treated in 

the YouthBuild program? 

Comments: One commenter asked the 

Department to clarify the definition of 

costs associated with real property and 

what such costs constitute. 

Department Response: The 

Department describes the application of 

real property as it relates to allowable 

costs in this section. Further, TEGL No. 

05–10, ‘‘Match and Allowable 

Construction and Other Capital Asset 

Costs for the YouthBuild Program,’’ 

provides additional guidance on the 

costs associated with real property 

within the YouthBuild program. No 

changes were made to the regulatory 

text in response to this comment. 

Section 688.560 What participant costs 

are allowable under the YouthBuild 

program? 

While the Department did not receive 

any comments on this section, the final 

clause of the section has been revised to 

clarify that the meaning of ‘‘sponsored 

health programs’’ as those sponsored by 

employers or the government. 

Section 688.600 Are YouthBuild 

programs subject to the Davis-Bacon Act 

labor standards? 

Comments: The Department received 

many comments related to the DavisBacon Act labor standard provisions. 

Several commenters requested that the 

Department affirm the ‘‘12 unit rule’’ 

under the HOME Investment 

Partnerships (HOME) program and the 

‘‘8 unit rule’’ under the Community 

Development Block Grant (CDBG) 

program as they relate to the DavisBacon Act labor standards. These rules 

provide exceptions to the requirement 

that construction workers be paid 

prevailing wages when working on 

construction sites funded in whole or in 

part with Federal funds when the 

number of units within the project that 

are funded with Federal funds fall 

below the unit threshold of the rule. The 

commenters expressed that, in the past, 

YouthBuild participants have been able 

to train on such projects without 

triggering the prevailing wage 

requirement and are seeking the 

Department’s affirmation of the 

allowance of these rules. 

One commenter requested that the 

Department reconsider the YouthBuild 

Trainee Apprenticeship Program 

(YB–TAP), which was a formal 

certification of the YouthBuild program 

to allow participants to be designated as 

trainees, rather than employees, on any 

Davis-Bacon-related project. This 

designation as a Certified Training 

Program of the Department of Labor 

allowed YouthBuild participants to be 

paid the standard wages or stipends as 

established by their program during 

their time on Davis-Bacon work sites, 

rather than the required prevailing 

wage. This commenter suggested that, 

while the YB–TAP was not wellreceived by many areas of the 

construction industry, this sentiment 

may have changed since YB–TAP was 

dismantled as there is a greater need 

across the construction industry for 

qualified employees than previously 

existed. 

One commenter expressed support for 

the continued recognition in the NPRM 

that YouthBuild programs are subject to 

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the Davis-Bacon Act standards, 

including prevailing wage rates, when 

participants work on projects subject to 

such standards. Specifically, this 

commenter stated that the Department 

has recognized that YouthBuild program 

participants are not considered trainees 

and therefore must be paid the 

prevailing wage rate when on Federallyfunded projects. The commenter 

supports this NPRM as they believe that 

allowing YouthBuild participants to be 

paid a lower wage on a Davis-Bacon 

work site than the prevailing wage 

would undercut registered apprentices 

and incumbent workers. 

Department Response: Davis-Bacon 

prevailing wage rate rules are quite 

complex and cover a number of 

different statutes within the U.S. 

Department of Housing and Urban 

Development (HUD). Within some of 

these statutes, there are exemptions 

under which prevailing wage rates do 

not apply. HOME and CDBG are two 

HUD program examples cited by 

commenters for which, if the number of 

units within the building that have HUD 

funding assistance are small enough, the 

prevailing wage rules do not apply and 

YouthBuild participants may be 

considered active training participants. 

Determining exactly which units of a 

construction project may be funded 

with HUD assistance is quite 

complicated. It does not necessarily 

mean the construction itself is funded 

by a HUD project, but instead could 

mean rental assistance to residents is 

supplemented by HUD. Due to the 

complexity of determining the number 

of units on a construction site that are 

or are not funded with HUD assistance, 

the Department is unable to provide 

further guidance which could be 

misconstrued to provide approval for 

exempting YouthBuild participants 

from Davis-Bacon wage rules. 

While the Department supports 

training YouthBuild participants on 

HUD-funded projects where viable, a 

determination of whether YouthBuild 

participants on such projects must be 

paid the relevant prevailing wage for 

that project cannot be made by the 

Employment and Training 

Administration (ETA). Rather, HUD 

consulted extensively with the 

Department’s Wage and Hour Division 

on this topic so that HUD can address 

such inquiries. YouthBuild programs 

that are seeking assistance to determine 

whether there may be a viable 

Federally-funded work site on which 

participants may train without paying 

participants the prevailing wage under 

the Davis-Bacon Act should consult 

with HUD’s Labor Standards and 

Enforcement Regional/Field staff. 

Contact information for this staff can be 

found here: http://portal.hud.gov/

hudportal/HUD?src=/program_offices/

labor_standards_enforcement/

laborrelstf. 

The YB–TAP was intended to support 

the training of YouthBuild participants 

on Federally-funded work sites, in order 

to provide greater opportunities for 

youth to work on low-income housing 

stock that was managed or owned by 

HUD. However, as discussed in the 

preamble to the 2012 YouthBuild Final 

Rule (77 FR 9112, 9126, Feb. 15, 2012), 

as a result of implementing YB–TAP, 

the Department found unintended 

consequences arose that were a concern 

for YouthBuild programs. Many of the 

organizations that YouthBuild seeks to 

partner with saw YB–TAP as being in 

direct competition because programs 

were allowed to pay their participants, 

as trainees, less than the prevailing 

wage rate. The lower ratio of 

journeyworkers to trainees approved in 

the YB–TAP program made it less 

expensive for a contractor to hire a 

YouthBuild-sponsored construction 

crew versus a journeyworker-staffed 

crew, and the YB–TAP standards, in 

effect, created a competing program 

approved by the Department. 

Accordingly, the Department 

dismantled YB–TAP. Therefore, while 

the provisions for trainees who may be 

paid less than Davis-Bacon journeyman 

wage rates remain in effect as part of the 

Davis-Bacon Act labor standards, they 

do not apply to a YouthBuild program 

because there is no YouthBuild program 

that is a training program approved by 

ETA for purposes of § 688.600(c) and 29 

CFR 5.5(a)(4)(ii). No changes were made 

to the regulatory text in response to 

these comments. 

7. Subpart F—Additional Requirements 

Section 688.730 What requirements 

apply to YouthBuild housing? 

Comments: One commenter stated 

that the statement ‘‘. . . to increase the 

stock of affordable homes. . .’’ should 

include ‘‘safe, healthy, durable, resource 

efficient affordable homes.’’ This same 

commenter expressed support for the 

proposed reduction in the duration of 

the restrictive covenant from a 

minimum of 10 years to a minimum of 

5 years. 

Department Response: This statement 

does not appear in the NPRM but only 

in the preamble. The NPRM recognizes 

the importance of safe and healthy 

housing as it requires that ‘‘[a]ll 

transitional or permanent housing for 

homeless individuals or families or lowincome families must be safe and 

sanitary. The housing must meet all 

applicable State and local housing codes 

and licensing requirements in the 

jurisdiction in which the housing is 

located.’’ No changes were made to the 

regulatory text in response to this 

comment. 

M. Part 651—General Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

1. Background on the Wagner-Peyser 

Act Employment Service 

The Wagner-Peyser Act of 1933 

established the Employment Service 

(ES), which is a nationwide public labor 

exchange that provides employment 

services. The ES seeks to improve the 

functioning of the nation’s labor markets 

by bringing together individuals seeking 

employment with employers seeking 

workers. The Wagner-Peyser Act was 

amended in 1998 to make ES part of the 

one-stop delivery system under WIA 

and has undergone further changes to 

integrate services under WIOA. 

Parts 651, 652, 653, 654, and 658 

update the language and content of the 

regulations to implement amendments 

made by title III of WIOA to the WagnerPeyser Act. In some areas, these 

regulations establish entirely new 

responsibilities and procedures, in other 

areas, the regulations clarify and update 

requirements already established. The 

regulations make important changes to 

definitions, data submission, and 

increased collaboration, among other 

requirements of WIOA. 

These regulations also address the 

court order from National Association 

for the Advancement of Colored People 

(NAACP), Western Region, et al. v. 

Brennan et al, No. 2010–72, 1974 WL 

229 (D.D.C. Aug. 13, 1974) which 

resulted in a detailed mandate for 

various Federal and State actions 

[referred to as the Judge Richey Court 

Order (Richey Order) in the remainder 

of this preamble]. The Richey Order 

required the Department to implement 

and maintain a Federal and State 

monitoring and advocacy system and set 

forth requirements to ensure the 

delivery of employment services, 

benefits, and protections to Migrant and 

Seasonal Farm Workers (MSFW) on a 

non-discriminatory basis, and to 

provide such services in a manner that 

is qualitatively equivalent and 

quantitatively proportionate to those 

provided to non-farmworkers. 

2. Introduction to Part 651 

Title 20 CFR part 651 sets forth 

definitions for 20 CFR parts 652, 653, 

654, and 658. 

The Department received several 

comments regarding these definitions 

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and has eliminated, revised, and added 

definitions, as needed. All changes to 

the definitions and the Department’s 

responses to the comments received 

(whether changes were made in 

response to the comments or not) are 

explained below. Additionally, the 

Department has made technical and 

clarifying changes. For the remaining 

definitions that are not discussed below, 

the Department received no comments 

and made no changes to the regulatory 

text. 

3. Explanation of Changes and 

Responses to Public Comments 

At the beginning of part 651, the 

Department added clarifying text which 

states, ‘‘In addition to the definitions set 

forth in sec. 3 of WIOA, the following 

definitions apply to the regulations in 

20 CFR parts 652, 653, 654, and 658.’’ 

This text is consistent with the 

discussion of proposed part 651 

contained in the NPRM preamble. The 

Department added it to the regulatory 

text to ensure there is no confusion as 

to the application of these definitions 

and to make clear that the WIOA sec. 3 

definitions also apply to these parts. 

Agricultural Employer 

The Department added this term and 

its definition in response to 

commenters’ concerns with the 

proposed definition of ‘‘employer.’’ The 

Department’s rationale is described 

below, in the paragraph that responds to 

the comments on the term ‘‘employer.’’ 

This added definition of ‘‘agricultural 

employer’’ parallels that of the 

definition in the Agricultural Worker 

Protection Act. 

Applicant Holding Office 

The Department received no 

comments on this definition; however, 

it changed ‘‘U.S.-based workers’’ to 

‘‘U.S. workers’’ for clarification and 

uniformity across the definitions in this 

part. See further clarification of the 

Department’s interpretation of ‘‘U.S. 

workers’’ below, in the Department’s 

response to comments regarding the 

Clearance System definition 

Applicant Holding State 

The Department received no 

comments on this definition; however, 

it changed ‘‘U.S.-based workers’’ to 

‘‘U.S. workers’’ for clarification and 

uniformity across the definitions in this 

part. See further clarification of the 

Department’s interpretation of ‘‘U.S. 

workers’’ below, in the Department’s 

response to comments regarding the 

Clearance System definition. 

Career Services 

The Department received no 

comments on this definition, but the 

Final Rule includes a technical 

correction to ensure the definition refers 

to the correct section of WIOA. 

Clearance System 

Comments: A commenter urged the 

Department to revise this definition to 

make clear that it refers to the ‘‘orderly 

movement of U.S.-based job seekers’’ 

because the Agricultural Recruitment 

System (ARS) is specific to U.S.-based 

workers only. 

Department Response: The 

Department agrees that the reference to 

job seekers in the definition of clearance 

system could be clearer. The 

Department is partially adopting the 

commenter’s suggestion by revising the 

regulatory text to refer to job seekers in 

this definition as, ‘‘U.S. job seekers.’’ 

The Department notes that § 653.500 

outlines the requirements for the 

acceptance of intrastate and interstate 

job clearance orders seeking U.S. 

workers to perform farmwork on a 

temporary, less than year-round basis. 

The term, ‘‘U.S. workers’’ means those 

workers defined at 20 CFR 655.5. 

The term, ‘‘U.S. job seekers’’ means a 

U.S. worker who is interested in 

obtaining a job. Therefore, a ‘‘U.S. 

worker’’ would not be a ‘‘job seeker’’ if 

that individual is not interested in 

obtaining a job. The change from ‘‘job 

seekers’’ to ‘‘U.S. job seekers’’ in this 

definition clarifies the intent of the 

clearance system, which is to recruit 

U.S. job seekers at the intrastate and 

interstate level when no U.S. job seekers 

were identified for an agricultural job 

order placed at the local level through 

the ARS. 

Employer 

Comments: A commenter 

recommended that the definition of 

employer include all employers or jointemployers of H–2A workers under 20 

CFR part 655, subpart B, as well as the 

relevant Federal laws protecting 

farmworkers, including the Migrant and 

Seasonal Agricultural Workers 

Protection Act (AWPA), 29 U.S.C. 1801. 

In particular, this commenter suggested 

that, to allow meaningful and accurate 

employment determinations for 

MSFWs, the definition of employer 

should be further expanded to parallel 

AWPA’s definition of ‘‘agricultural 

employer’’ as ‘‘any person who owns or 

operates a farm, ranch, processing 

establishment, cannery, gin, packing 

shed or nursery, or who produces or 

conditions seed, and who either 

recruits, solicits, hires, employs, 

furnishes, or transports any migrant or 

seasonal agricultural worker.’’ Stating 

that incorporating this definition of 

agricultural employer into the employer 

definition would help ensure that 

MSFWs are given the tools to hold those 

who use their services and labor 

accountable when a violation occurs, 

this commenter concluded that a broad 

definition of employer that reflects the 

unique economic realities of agricultural 

employment is crucial for workers to 

assert their rights and force growers and 

contractors to honor their obligations. 

Department Response: Although the 

commenters requested a revised and 

broadened definition of ‘‘employer,’’ the 

Department has decided to retain the 

current definition of ‘‘employer’’ and 

add a separate definition of 

‘‘agricultural employer’’ which parallels 

that of the Agricultural Worker 

Protection Act. The Department 

anticipates this approach will 

effectively allow for meaningful and 

accurate employment determinations for 

MSFWs. 

Employment-Related Laws 

Comments: Two commenters said that 

the proposed definition was circular in 

that it used the term ‘‘employmentrelated laws’’ in the definition of 

employment-related laws; they 

requested clarification and stated it is 

necessary to know the definition of 

employment-related laws to identify the 

agencies that enforce them. 

Department Response: The 

Department agrees with the 

commenters’ suggestion and has revised 

the definition by deleting the reference 

to ‘‘employment-related laws’’ within 

the definition and replacing it with, 

‘‘laws that relate to the employment 

relationship.’’ The Department clarifies 

that ‘‘laws that relate to the employment 

relationship’’ means laws such as, but 

not limited to, the Fair Labor Standards 

Act, the Migrant and Seasonal 

Agricultural Worker Protection Act, the 

Civil Rights Act, and other similar 

Federal, State, and local laws. The 

regulatory text provides examples of 

some of the agencies that enforce these 

laws to give guidance to help identify 

the enforcing agencies. However, the 

Department cannot identify all the 

agencies that enforce employmentrelated laws because such agencies may 

extend to each State’s respective 

enforcement agencies, which vary and 

may change over time as well as Federal 

enforcement agencies. Maintaining the 

reference generally to agencies that 

enforce these laws will ensure the 

definition of ‘‘employment-related 

laws’’ maintains flexibility over time. 

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Comments: Another commenter 

expressed concern about the proposed 

definition of employment-related laws, 

asserting it would force untrained SWA 

staff to issue actions regarding perceived 

issues rather than act on provisions that 

are within their statutory authority and 

stating that State agency staff’s activities 

should relate solely to the statutory 

provisions of the authorizing Act. 

Department Response: The 

Department notes that the proposed 

definition does not require any action 

for SWA staff. For further discussion of 

SWA staff responsibilities to refer 

perceived violations of employmentrelated laws to the appropriate 

enforcement agencies, please see the 

regulations and accompanying preamble 

at § 653.500 and subpart E of part 658. 

Employment Service (ES) 

In the NPRM, the Department added 

the definition of ‘‘Employment Service 

(ES) System.’’ The Department received 

no comments on this definition, but the 

DOL WIOA Final Rule makes a nonsubstantive change to include the 

complete term ‘‘Wagner-Peyser 

Employment Service (ES) also known as 

Employment Service (ES),’’ and other 

non-substantive editorial changes. 

Employment Service Office 

In the NPRM, the Department defined 

‘‘Employment Service Office’’ as ‘‘a 

local office of a State Workforce 

Agency.’’ The Department received no 

comments on this definition, but the 

rule makes a clarifying change to 

enhance consistency with the 

regulations at §§ 652.215 and 678.305 

through 315. 

Farmwork 

Comments: Two commenters 

expressed support for the elimination of 

references to North American Industry 

Classification System (NAICS) codes to 

reduce complexity and support for the 

addition of ‘‘fish farming’’ to allow for 

alignment with WIOA sec. 167. Further, 

these commenters supported the 

inclusion of ‘‘food processing,’’ which 

they asserted would allow for the 

elimination of ‘‘migrant food processing 

workers,’’ allow the SWA to more easily 

train staff to identify MSFWs, and create 

stronger alignment with Wage and Hour 

Division (WHD) and Office of Foreign 

Labor Certification (OFLC) regulations. 

One commenter urged the Department 

to define who is included under ‘‘fish 

farming.’’ 

One commenter opposed the 

elimination of the NAICS codes from 

the proposed definition of farmwork, 

stating that the NAICS code is updated 

on a regular basis to address changes in 

work activities. This commenter further 

asserted that including the phrase ‘‘and 

any service or activity so identified 

through official Department guidance 

such as a Training and Employment 

Guidance Letter’’ in the farmwork 

definition would make the current 

definitional structure even more 

difficult to understand and follow. 

Department Response: The 

Department is not making substantive 

changes to the regulatory text in 

response to these comments, but has 

made a technical edit that makes clear 

that the definition of ‘‘agricultural 

commodity’’ applies to this definition 

throughout parts 651, 652, 653, 654, and 

658. The Department notes that what 

activities are covered under ‘‘fish 

farming’’ is addressed through guidance. 

The Department has determined that 

while the NAICS codes may be updated, 

the Department seeks to maintain 

consistency across its agencies. Aligning 

the definition at part 651 with the 

definition used at 29 CFR 500.20 and 

655.103(c) is intended to help clarify 

and streamline the definition for 

practitioners who are otherwise forced 

to rely upon a variety of definitions 

depending on the program. The 

Department has determined it will be 

more beneficial for practitioners to draw 

upon a homogenous definition rather 

than to refer to a different and changing 

set of codes. Additionally, the 

Department acknowledges that issuing 

guidance to clarify or update aspects of 

the definition of farmwork is essential to 

maintain consistency with current 

practices and terminology that may 

change over time. 

Comments: One commenter expressed 

support for broadening the definition of 

farmwork to correspond with the 

AWPA. This commenter also supported 

broadening of the definition of 

‘‘agricultural commodities,’’ by 

removing the phrase ‘‘produced on a 

farm’’ be removed from the agricultural 

commodities definition. In addition, 

this commenter stated the proposed 

agricultural commodities definition is 

different from the original source of the 

language at 12 U.S.C. 1141j(f) and that 

this difference could potentially exclude 

the type of workers that should be 

included in the movement toward 

inclusiveness: The commenter 

suggested the definition include 

downstream activities such as the 

handling, packing, and cultivating of 

commodities that may not traditionally 

be grown on land or on farms. This 

commenter suggested that such a change 

is necessary to achieve several of the 

proposed goals of the WIOA regulations. 

Department Response: The 

Department has determined that, in 

order to maintain consistency with the 

definitions used by other DOL agencies, 

‘‘on a farm’’ should be retained. Workers 

who perform ‘‘downstream activities’’ 

should be covered by the protections 

offered to all other non-farmworkers. 

Farmworker 

The definition of ‘‘farmworker’’ was 

proposed in the NPRM to replace the 

definition of ‘‘agricultural worker.’’ 

Comments: One commenter objected 

to removing ‘‘who is legally allowed to 

work in the United States,’’ from the 

definition and urged the Department to 

retain and strengthen this language. 

Department Response: The removal of 

the phrase ‘‘who is legally allowed to 

work in the United States’’ from the 

definition aligns this definition with 

definitions for the other programs. The 

Department has determined that it is 

unnecessary to mention immigration 

status in the definitions for only a 

subset of programs. No changes have 

been made to regulatory text in response 

to this comment. 

The term ‘‘farmworker’’ is used 

throughout this regulation, except that 

the Department uses the term 

‘‘agricultural worker’’ where discussing 

OSHA standards or provisions limited 

to H–2A workers or regulations in order 

to maintain consistency with OSHA and 

H–2A terminology. 

Field Checks 

Comments: Expressing concern with 

the proposed definition’s reliance on the 

term ‘‘placements,’’ a few commenters 

recommended that, if the Department 

intends to use placements as a means to 

grant SWA staff jurisdiction to conduct 

field checks, the Department should 

require participating employers in the 

agricultural clearance system to report 

placements after work has begun to the 

SWA as a condition of participation. 

These commenters asserted that 

requiring State workforce agencies to 

seek out placements could impose a 

burden that is not expected from other 

job orders because many agricultural 

employers do not immediately report 

placements during busy harvest periods. 

Department Response: The previous 

definition of ‘‘placements’’ included the 

requirement that the ‘‘employment 

office verif[y] from a reliable source, 

preferably the employer, that the 

individual had entered on a job.’’ The 

definition of ‘‘field checks’’ in the Final 

Rule continues this requirement and 

does not place any additional burden on 

the SWA. The Department further notes 

that the ES office has the responsibility 

to report placements after work has 

begun, because it is facilitating the 

service to the employer, and follow-up 

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on such a service is a normal course of 

action. No change has been made to the 

regulatory text in response to these 

comments. 

Field Visits 

Comments: Two commenters 

expressed support for the proposed 

definition of field visits, stating it would 

allow SWA staff and employers to 

understand better the difference 

between a field check and a field visit. 

One commenter asked for clarification 

of the following language in the 

proposed definition: ‘‘The monitor 

advocate or outreach personnel must 

keep records to discuss ES services . . . 

.’’ 

Department Response: The 

Department acknowledges that the 

sentence ‘‘The monitor advocate or 

outreach personnel must keep records to 

discuss ES services . . .’’ is not clear 

enough. To clarify, the Department has 

rearranged the text to refer to record 

keeping requirements at the end of the 

definition. 

Full Application 

Comments: One commenter expressed 

concern with the removal of a definition 

of ‘‘full application’’ because of its use 

of ‘‘full registration,’’ which the 

commenter stated helps to ensure State 

agency staff understand the importance 

of getting all demographic information 

from participants. 

Department Response: The 

Department has determined that State 

agencies will continue to collect all 

pertinent demographic information 

through online systems (versus the more 

antiquated paper-based systems) 

because State agencies will eventually 

need to submit such information to the 

Department. 

Individual With a Barrier to 

Employment 

Comments: Another commenter 

recommended the Department clearly 

identify receipt of Social Security 

disability benefits as a barrier to 

employment. 

Department Response: The 

Department’s response to this 

recommendation that an individual in 

receipt of a Social Security Disability 

Insurance (SSDI) payment be considered 

an ‘‘individual with a barrier to 

employment’’ is discussed in the 

preamble text corresponding to 

§ 680.640. 

Individual With a Disability 

Comments: The Department received 

comments which recommended the 

addition of a definition for ‘‘individual 

with a disability’’ in alignment with the 

definition from sec. 3 of the Americans 

with Disabilities Act of 1990 to ensure 

uniform protection of the class. 

Department Response: To emphasize 

that employment services are universal 

and available to everyone, the 

Department added the definition of an 

‘‘individual with a disability’’ which is 

the same as the definition in WIOA sec. 

3(25). All the definitions in sec. 3 of 

WIOA apply to parts 652, 653, 654, and 

658; however, because of the 

importance of stressing the universal 

nature of employment services, the 

Department has chosen to repeat the 

definition in part 651, as noted above. 

Job Development 

The Department has changed the 

word ‘‘applicant’’ to ‘‘participant’’ in 

this definition in order to conform to the 

new definition of ‘‘participant’’ in this 

part, which replaced the term 

‘‘applicant.’’ No other changes were 

made to this definition. 

Comments: One commenter 

recommended revising this definition to 

include job development with an 

employer that does not have a job 

opening on file with the ES office. 

Department Response: Revising the 

definition of ‘‘job development’’ to 

include ‘‘an employer that does not 

have a job opening on file with the ES 

service office’’ would be overly 

restrictive, because a job development 

could occur with an employer who has 

an opening on file with the ES office, 

but the ES office may be working with 

the employer to develop a different job. 

Scenarios like this would create 

unwanted limitations on the prospects 

for assisting job seekers. 

Comments: Another commenter 

recommended the Department revise the 

‘‘job development’’ definition as a labor 

exchange service. 

Department Response: The 

Department acknowledges that the 

service is indeed a labor exchange 

service, and labor exchange services are 

considered career services. However, 

the Department has determined that this 

revision would not substantively 

improve the definition of ‘‘job 

development.’’ 

Job referral 

The Department received no 

comments on this definition, but the 

regulation changes the word 

‘‘applicant’’ to ‘‘participant,’’ 

conforming to the new definition of 

‘‘participant.’’ 

Migrant Farmworker 

Comments: A few commenters 

recommended revising the proposed 

definition to clarify what is meant by 

‘‘unable to return to his/her permanent 

residence within the same day.’’ Two 

commenters stated the term ‘‘unable’’ is 

overly restrictive and the intent of the 

regulation is to consider farmworkers 

who are ‘‘not reasonably able’’ to return 

to their permanent residence within the 

same day as migrant farmworkers. 

Department Response: The 

Department agrees with the commenters 

that ‘‘not reasonably able,’’ as 

recommended by the commenter, is 

more suitable and has changed the 

regulatory text accordingly. The 

Department will provide guidance on 

how it interprets ‘‘not reasonably able’’ 

to return to his/her residence within the 

same day. 

One-Stop Center 

The Department received no 

comments on this definition, however 

the regulation clarifies that the term 

one-stop center refers to the physical 

center described in sec. 121(e)(2)(A) of 

WIOA, in contrast with the broader 

definition of one-stop delivery system. 

Order Holding Office 

The Department received no 

comments on this definition; however, 

it changed ‘‘U.S.-based workers’’ to 

‘‘U.S. workers’’ for clarification and 

uniformity across the definitions in this 

part. See further clarification of the 

Department’s interpretation of ‘‘U.S. 

workers’’ under the Department’s 

response to comments regarding the 

Clearance System definition above. 

Outreach Contact 

Comments: Expressing support for the 

proposed definition, two commenters 

stated this term would provide clarity, 

particularly when considering the 

inclusion of the word ‘‘each,’’ and 

would raise the importance of the work 

done by MSFW outreach staff when 

considering outreach contacts do not 

always result in the registration of a 

participant. 

Other commenters recommended 

revising the definition to clarify what 

type of contacts would qualify as an 

outreach contact. One commenter stated 

the lack of reference to the quality or 

depth of follow-up and lack of 

specification regarding whether the 

contact needs to be made outside of the 

one-stop center makes the proposed 

definition overly broad. Another 

commenter asked the Department to 

allow for in-office activity to be 

included as an outreach contact when 

the follow-up activity is being 

conducted on an MSFW who was 

initially contacted while on outreach. 

Department Response: The 

Department notes the definition of 

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‘‘outreach contact’’ identifies three 

qualifying activities: the presentation of 

information, the offering of assistance, 

and follow-up activities; however, the 

definition does not specify where these 

activities need to occur. Outreach duties 

can take place both inside and outside 

the office space. The Department will 

provide further guidance on this subject. 

Outreach Worker 

Comments: A commenter suggested 

the Department add a definition of 

‘‘outreach worker’’ to clarify that an 

outreach worker includes only 

employees of a State agency, which this 

commenter stated is inferred from 

proposed § 653.107(b)(10). To 

accommodate the reality that many 

nonprofit organizations provide services 

to migrant and seasonal farmworkers 

(MSFWs), this commenter also 

suggested the Department add the term 

‘‘nonprofit organization outreach 

worker’’ to mean ‘‘an employee of, 

volunteer for, agent of, or contractor for 

a nonprofit organization that provides 

health, educational, social, legal, or 

financial services to MSFWs.’’ 

Department Response: The 

Department declines to add a definition 

of outreach worker to indicate they are 

State agency employees. Paragraph 

(a)(1) of § 653.107 clearly states that 

outreach workers are employed by State 

agencies: ‘‘each State agency must 

employ an adequate number of outreach 

workers to conduct MSFW outreach in 

their service areas.’’ Paragraph (a)(3) of 

§ 653.107 further supports that outreach 

workers are only State agency 

employees by stating, ‘‘for purposes of 

hiring and assigning staff to conduct 

outreach duties, and to maintain 

compliance with State agencies’ 

Affirmative Action programs, State 

agencies must seek, through merit 

system procedures, qualified 

candidates. . . .’’ Finally, 

§ 653.107(b)(10) indicates that ‘‘outreach 

workers must be provided with, carry 

and display, upon request, 

identification cards or other material 

identifying them as employees of the 

State agency.’’ These references 

throughout § 653.107 explicitly indicate 

that outreach workers referenced at 20 

CFR parts 653 and 658 are employees of 

a State agency. 

The Department also declines to add 

a definition of ‘‘nonprofit organization 

outreach worker.’’ As explained in the 

preceding paragraph, the regulation sets 

out requirements of outreach workers 

who are State agency employees. The 

Department does not have authority 

over the outreach workers employed by 

nonprofit organizations that do not 

receive funding from the Department, 

and including a definition of them 

would cause unnecessary confusion. 

Participant 

Comments: A few commenters 

disagreed with the NPRM’s replacement 

of the term ‘‘applicant’’ with 

‘‘participant’’ throughout the ES 

program regulations, stating that both 

employers and individual job applicants 

would find the term change odd. Two 

commenters asserted the NPRM 

contained insufficient justification to 

change terms in this way. One 

commenter suggested the alignment of 

definitions would help one-stop 

partners. 

Department Response: The 

Department disagrees that replacing the 

term ‘‘applicant’’ with ‘‘participant’’ 

will be odd for employers and job 

applicants because the term primarily is 

for internal data collection purposes. 

However, the Department has aligned 

these definitions with those used more 

broadly under WIOA at 20 CFR 

677.150(b) (see Joint WIOA Final Rule). 

The term ‘‘reportable individual’’ is 

used to cover those individuals who 

receive employment services but do not 

meet the definition of participant in 20 

CFR 677.150(a). This term will 

accurately capture those individuals 

formerly referred to in this part as 

‘‘applicants.’’ With the addition of the 

term ‘‘reportable individual,’’ and by 

modifying the definition of 

‘‘participant,’’ the Department has 

aligned these terms with the definitions 

of ‘reportable individual’ and 

‘participant’ under the rest of WIOA. 

Reportable Individual 

Comments: Multiple commenters 

raised concerns regarding the proposed 

replacement of the term ‘‘applicant’’ 

with ‘‘participant,’’ as is addressed 

above. This is linked to the definition of 

Reportable Individual as well. 

Department Response: As outlined in 

the ‘‘participant’’ definition in this 

section, the Department also has added 

the definition of ‘‘reportable individual’’ 

in order to capture the individuals who 

apply for and/or receive Wagner-Peyser 

Act funded employment services and to 

ensure alignment across the programs. 

Respondent 

The Department received no 

comments on this definition, but the 

Final Rule adds the word ‘‘individual’’ 

to the definition of respondent. A 

respondent is not limited to an 

employer or a State agency; rather the 

respondent can be any individual (such 

as a field manager, a co-worker, or a 

labor contractor) who responds to a 

complaint filed pursuant to 20 CFR part 

658, subpart E. The Department 

determined it prudent to add 

‘‘individual’’ to the definition for 

clarification. 

Seasonal Farmworker 

Comments: Some commenters 

expressed concern that the proposed 

definition would eliminate thresholds 

tied to number of days (25) and 

proportion of total wages (majority in 

farmwork) that an individual must have 

to qualify as a farmworker. These 

commenters expressed concerns that, 

under the proposed definition, a person 

employed in farmwork for 1 day during 

the past 12 months would qualify as a 

farmworker and that this proposed 

definition might make it difficult to 

implement integrity processes that 

validate the SWA’s classification of 

individuals as MSFWs. 

Department Response: The 

Department acknowledges commenters’ 

concerns regarding the removal of the 

days and total wages originally included 

in the seasonal farmworker definition. 

However, for the purposes of the ES and 

the Department’s Monitor Advocate 

System, if a farmworker qualifies as a 

seasonal farmworker because he or she 

worked 1 day in farmwork during the 

previous 12 months, that is acceptable. 

The Department understands that a 

myriad of circumstances could have led 

to the reason why that farmworker was 

able to work for only 1 day. For 

example, the worker could have been 

unable to find other employment and 

only was able to work 1 day, or, as 

another example, the worker could have 

been injured on the job and needed not 

to return to work in order to heal. As 

such, the Department will maintain its 

proposed definition. 

Supply State(s) 

The Department received no 

comments on this definition; however, 

it changed ‘‘U.S.-based workers’’ to 

‘‘U.S. workers’’ for clarification and 

uniformity across the definitions in this 

part. 

Supportive Services 

Comments: One commenter suggested 

the definition of ‘‘supportive services’’ 

should specify whether Wagner-Peyser 

Act funds can be spent on supportive 

services, noting that such clarification is 

critical to avoiding disallowed costs. 

Department Response: The 

Department received several comments 

about alignment across programs, 

especially aligning supportive services 

across title I and Wagner-Peyser Act (as 

amended by WIOA title III) services. 

The Department has modified the 

definition of ‘‘supportive services’’ at 

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§ 680.900 to include an inclusive, 

though not exhaustive, list of types of 

supportive services. To ensure 

consistency, the Department is 

modifying the definition of supportive 

services to be the same as the definition 

used in § 680.900 relating to the WIOA 

title I formula programs. The list is not 

intended to be exhaustive, but rather 

illustrative of the types of supportive 

services that may be available. The 

Department notes, however, grantees 

must not use Wagner-Peyser Act sec. 

7(a) funds, but may use Wagner-Peyser 

Act sec. 7(b) funds, to provide 

supportive services. 

Tests 

Comments: Some commenters 

objected to the proposed elimination of 

the definition of ‘‘tests,’’ arguing that 

assessments and tests continue to be 

integrated into career assessments and 

planning, and citing proposed 

§ 678.430(b), which defines one-stop 

career services and addresses skills 

assessments and diagnostic testing (see 

Joint WIOA Final Rule). 

Department Response: The 

Department agrees with the 

commenters’ concerns that tests are 

integrated into career assessments and 

planning. As a result, the Department 

changed the proposed definition to add 

the previous definition of ‘‘tests’’ back 

into this section. 

United States Employment Service 

(USES) 

While no comments were received 

regarding this definition, the 

Department has deleted this definition 

because it is redundant with the 

definition of Wagner-Peyser Act 

Employment Service (ES), above. 

Because ES is used throughout the 

chapter and USES is not, the 

Department has determined that the 

definition for USES is not necessary. 

Veteran 

Comments: The Department received 

a few comments requesting clarification 

of the term ‘‘veteran.’’ 

Department Response: In response to 

these comments, the Department has 

added the definition of ‘‘veteran’’ to the 

Final Rule. The definition is the same as 

the definition in WIOA sec. 3(63)(A), 

which in turn is the same as the 

definition in 38 U.S.C. 101. 

Workforce and Labor Market 

Information (WLMI) 

Comments: A couple commenters 

suggested the Department identify the 

types of labor market ‘‘participants’’ that 

make the ‘‘employment, training, and 

business decisions’’ referenced in the 

proposed definition of WLMI, including 

employers, educators and trainers, 

workers, students, and public and 

private organizations that invest in 

workforce development. These 

commenters also recommended 

additional WLMI examples to add to the 

20 examples provided in the proposed 

definition. 

Another commenter recommended 

the Department consult the Workforce 

Information Advisory Council and 

develop guidelines by area of LMI 

regarding this balance of demand for 

detailed localized data and data quality. 

Department Response: ‘‘Workforce 

and Labor Market Information’’ is a term 

used to describe what types of data, 

information, and analysis may be used 

at the national, State, and local level to 

make policy decisions, develop strategic 

plans, and implement decisions. While 

the broad parameters of the system 

content are laid out in Wagner-Peyser 

Act sec. 15, as amended by sec. 308 of 

WIOA, the term WLMI is not itself 

defined in either statute. The 

Department based the proposed WLMI 

definition on several factors including: 

(1) Data that are commonly considered 

to be part of the WIA LMI system; (2) 

additional items of information that 

should be considered to meet the new 

vision of WIOA; (3) potential types of 

information that could be included 

based on the consultations with the 

Workforce Information Advisory 

Council; and (4) data on outcomes of 

local employment and training 

activities. The Department is 

intentionally broadening the system’s 

understanding of what information can 

and should be considered in strategic 

planning. However, the Department is 

not implying that State labor market 

information agencies are required to 

produce all of the information included 

in the definition: such information may 

be derived from other sources, such as 

educational agencies and institutions, or 

economic development agencies. LMI 

agencies and WIOA partners should 

share and compare data with these other 

entities to obtain a fuller picture of the 

labor market, particularly the supply 

side. 

Comments: One commenter described 

the proposed definition of WLMI as a 

list of products resulting from an extant 

system usually referred to by itself as 

Labor Market Information (LMI) and 

recommended removing the word 

‘‘workforce,’’ stating that it adds 

confusion. Stating LMI should be 

defined as a scientific process focusing 

on the domain of the labor market rather 

than an open ended list of products, this 

commenter recommended that § 651.10 

instead define LMI as follows: ‘‘Labor 

Market Information (LMI) is an applied 

science; it is the systematic collection 

and analysis of data which describes 

and predicts the relationship between 

labor demand and supply.’’ 

Department Response: The 

Department examined the 

recommendation to shorten and 

simplify this simplified definition. The 

commenter’s recommended definition is 

more restrictive than the statutory 

language describing WLMI in sec. 15(a) 

of the Wagner-Peyser Act. No change 

was made to the regulatory text in 

response to this comment. 

Comments: Commenters also 

suggested that additional items be 

added to the proposed WLMI definition 

to expand what can be considered 

within the scope of WLMI for purposes 

of strategic planning and public 

workforce system operations. 

Department Response: The 

Department agrees that clarifications 

were needed to the proposed WLMI 

definition, and as a result, the Final 

Rule reflects several changes. The 

wording of the first and second sentence 

of the introductory paragraph was 

modified to define WLMI and eliminate 

reference to the WLMI programs and 

system. This is not a policy change; 

rather, it reinforces the fact that WLMI 

programs do not produce all of the 

information items in the list, and DOLfunded agencies should not be held 

accountable for doing so. The proposed 

WLMI definition also was changed to 

add some of the items suggested by 

commenters and some wording was 

revised to clarify the purpose of each 

listed item. 

Workforce and Labor Market 

Information System (WLMIS) 

Comments: Two commenters 

suggested that the Department identify 

the Federal and State agencies that 

actively participate in the WLMIS as 

part of the definition. One of these 

commenters stated that doing so would 

be consistent with the text of proposed 

§ 652.300(b)(2) and (5), as well as the 

NPRM preamble discussion of part 652, 

subpart D (Workforce and Labor Market 

Information), under the heading 

‘‘Continuous improvement, in part 

through consultation.’’ Both 

commenters also suggested that the 

WLMIS definition should include the 

words ‘‘Federal-State cooperative’’ 

before ‘‘system.’’ 

Department Response: ‘‘Federal-State 

cooperative’’ is often used before 

‘‘system,’’ to specifically refer to the 

nature of certain existing agreements 

with the Bureau of Labor Statistics and 

may not apply more broadly. 

Additionally, because the list may 

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change over time based on changes in 

agency data collection and data sharing 

policies and procedures, the Department 

declines to include a list of the Federal 

and State agencies that participate in 

WLMIS. 

N. Part 652—Establishment and 

Functioning of State Employment 

Service 

1. Introduction 

The regulations at 20 CFR part 652 set 

forth standards and procedures 

regarding the establishment and 

functioning of State ES operations. 

These regulations align part 652 with 

the WIOA amendments to the ES 

program, and with the WIOA reforms to 

the public workforce system that affect 

the ES program. The WIOA-amended 

Wagner-Peyser Act furthers 

longstanding goals of closer 

collaboration with other employment 

and training programs by mandating 

colocation of ES offices within one-stop 

centers or affiliated sites; aligning 

service delivery in the one-stop delivery 

system; and ensuring alignment of State 

planning and performance indicators in 

the one-stop delivery system. Other new 

provisions are consistent with long-term 

Departmental policies, including 

increased emphasis on reemployment 

services for UI claimants (sec. 7(a)); 

promotion of robust Workforce and 

Labor Market Information (WLMI); the 

development of national electronic tools 

for job seekers and businesses (sec. 3(e)); 

dissemination of information on best 

practices (sec. 3(c)(2)); and professional 

development for ES staff (secs. 3(c)(4) 

and 7(b)(3)). 

Inadvertently, the preamble 

explanation for § 652.215 was 

duplicated in the regulatory text. That 

has been removed and the intended 

regulatory language, which is the 

original language from the WIA 

regulations at § 652.215, has been added 

except for a nonsubstantive change to 

the last sentence. The WIOA regulatory 

text at § 652.215 is not substantively 

different from the language 

inadvertently used in the NPRM. 

The analysis that follows provides the 

Department’s response to public 

comments received on the proposed 

part 652. If a section is not addressed in 

the discussion below, it is because the 

public comments submitted in response 

to the NPRM did not substantively 

address that specific section and no 

changes have been made to the 

regulatory text. Further, the Department 

received a number of comments on this 

part that were outside the scope of the 

regulation and the Department offers no 

response. Lastly, the Department has 

made a number of non-substantive 

changes to correct grammatical and 

typographical errors to improve the 

readability and conform the document 

stylistically that are not discussed in the 

analysis below. 

Comments: Several comments 

prompted the Department to make 

minor changes to parts of the 

regulations in this section, as discussed 

below. One of the major areas in which 

the Department received comments was 

regarding colocation. 

The Department received several 

varying comments regarding colocation. 

This part clarifies the intent of 

colocation and how ES-only affiliate 

sites do not meet the intent of WIOA. 

Department Response: The 

Department broadened language in 

§ 678.315(b) (see Joint WIOA Final Rule) 

to allow multiple programs to meet the 

more than 50 percent threshold by 

combining the time their staff members 

are physically present and to emphasize 

the expectation that colocation should 

be completed as expeditiously as 

possible. The Department will issue 

additional guidance on this topic. 

Comments: Many commenters also 

raised questions and provided 

comments regarding Wagner-Peyser Act 

funds usage. 

Department Response: The 

Department clarified that there are no 

changes in the activities that may be 

funded by Wagner-Peyser Act funds. 

Specifically, training services may not 

be provided with sec. 7(a) of the 

Wagner-Peyser Act funding; however, 

appropriate career services and labor 

exchange services may be provided to 

individuals in training and to clarify 

there is no restriction on funding 

training services with sec. 7(b) funds 

under the Wagner-Peyser Act. 

Comments: In terms of reemployment, 

a few commenters suggested including 

developing and documenting 

reemployment plans and adding Worker 

Profiling and Reemployment Services 

(WPRS) to the list of required WagnerPeyser Act activities for UI claimants. 

Department Response: The 

Department noted that providing 

assistance to UI claimants in the 

development of a reemployment plan is 

not just for claimants served by the 

RESEA or the WPRS program. Such 

assistance can be provided to any 

unemployed worker; providing such 

assistance is an allowable WagnerPeyser Act cost. 

Comments: Some commenters 

expressed concern with the regulation at 

§ 652.209 requiring that reemployment 

services provided by State agencies 

must include conducting eligibility 

assessments and referring UI claimants 

to and providing application assistance 

for training and education resources and 

programs. 

Department Response: The 

Department reiterates that this approach 

is consistent with the approach that 

existed under WIA, and will be 

continued under WIOA; States will be 

provided flexibility to leverage UI 

funds, W–P funds, and RESEA funds in 

States with RESEA programs for these 

purposes. 

With regard to workforce labor market 

information, some of the clarifications 

identified in this part include: there is 

a need to provide extensive education 

and technical assistance with regard to 

accessing wage record data; the 

Workforce Information Advisory 

Council (WIAC) will advise on WLMI 

and may consider what kind of 

information is needed for planning, but 

it is not involved in developing State 

Plans; and the Departments of Labor and 

Education will issue joint guidance 

about use of wage data for performance 

in the context of the confidentiality 

requirements for the use UI wage record 

data and education data under the 

Family Educational Rights and Privacy 

Act (FERPA). In order to address 

concerns regarding ‘‘continuous 

improvement’’ as it pertains to the 

WLMI systems (WLMIS), § 652.300 was 

edited to reflect that the parameters for 

continuous improvement will be 

identified in consultation with the 

WIAC. Additionally, the edits to this 

section align with WIOA and reference 

the Secretary’s responsibility to prepare 

a 2-year plan for WLMIS. 

2. Overarching Comments on Part 652 

Comments: A few commenters 

recommended that the Department 

require that the UI and ES programs be 

given priority for any remaining Federal 

equity to help address chronic 

underfunding, especially the need to 

modernize State computer systems. 

Department Response: The 

Department’s response to this 

recommendation to require that UI and 

ES programs be given priority for any 

remaining Federal equity is addressed 

in the preamble text corresponding to 

§ 683.240. 

Comments: One commenter 

recommended additional funding to 

improve systems for reporting purposes 

to facilitate system alignment between 

core programs. The Department also 

received several comments on funding. 

Department Response: The 

Department notes that funding levels are 

determined by Congress and cannot be 

resolved through this regulatory 

process. 

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The Department also made one 

clarifying change throughout this part. 

Previously, the regulatory text in part 

652 has used the words ‘‘the Act’’ to 

refer to the Wagner-Peyser Act. Because 

of the ES system’s integration in the 

public workforce system, which is 

governed by a number of different Acts 

such as WIOA, this reference has caused 

some confusion. To make references to 

the Wagner-Peyser Act clear, the 

Department has replaced ‘‘the Act’’ with 

‘‘the Wagner-Peyser Act’’ throughout the 

text of the regulations in this part. The 

definition of ‘‘the Act’’ in part 651 has 

also been amended to reflect this 

change. In the titles of the regulatory 

sections, ‘‘the Act’’ has been replaced 

with ‘‘the Wagner-Peyser Act.’’ 

3. Subpart A—Employment Service 

Operations 

Comments: One commenter expressed 

support for §§ 652.1 through 652.8 as 

proposed. Another commenter urged 

States, localities, and one-stop centers to 

make staff-assisted services (ideally 

provided by coaches or older worker 

specialists) available to older workers 

and other individuals with barriers to 

employment. Citing data, the 

commenter explained that older workers 

use self-service and ‘‘automated’’ 

services the least, and that access to staff 

makes all the difference. This 

commenter suggested that, at minimum, 

all front-line staffers should be required 

to have adequate training in 

generational competencies in order to 

provide quality staff-assisted services to 

older workers with varied backgrounds 

and needs at every stage of the process. 

Furthermore, this commenter explained 

that older workers who may be more 

likely to qualify for and exhaust their UI 

benefits, also benefit from staff-assisted 

services such as assessment and 

reemployment services early in an 

episode of unemployment. 

Department Response: The 

Department agrees that States, localities, 

and one-stop centers must make staffassisted services available to older 

workers and other individuals with 

barriers to employment and that these 

individuals can benefit from these 

services. 

Front-line staff training is addressed 

in the Wagner-Peyser Act sec. 3(b)(4) (as 

amended by sec. 303(b)(4) of WIOA), 

which requires State agencies and their 

staff to assist in the planning and 

implementation of activities to enhance 

the professional development and career 

advancement opportunities of staff. The 

Department strongly encourages such 

training to include competencies related 

to serving populations with barriers to 

employment and to accessing services, 

including older workers. Additionally, 

the Department added direct language 

from the Wagner-Peyser Act sec. 3(b)(4) 

to § 652.204 to indicate that professional 

development and career advancement 

may be supported by the Governor’s 

Reserve. 

Section 652.3 Public Labor Exchange 

Services System 

Comments: A commenter urged the 

Department to work with States to make 

the Wagner-Peyser Act program as 

flexible as possible to integrate it into 

the service delivery design of that State. 

While expressing support for the 

alignment of labor exchange services 

under WIOA with those provided by the 

ES program, some commenters urged 

that the alignment should reflect and 

seek to preserve the unique structures 

and functions of the various providers, 

including ES. Some of these 

commenters provided examples, 

including encouraging partners to work 

out arrangements to accommodate legal 

requirements that State public 

employees assist with the filing of UI 

claimant applications, and having ES 

staff conduct one-stop orientations as a 

first entry point for job seekers. 

Department Response: While § 652.3 

focuses on the statutory intent and 

minimum required functions of the ES 

program, the regulation provides 

flexibility in how services are provided 

and what other services are provided. 

The Department acknowledges the 

commenter’s examples of ES and UI 

functions. The regulation provides 

flexibility for States and locals to 

consider effective strategies for 

providing meaningful assistance to 

individuals in filing their UI claims, and 

other intake functions. 

Comments: A commenter suggested 

that the alignment of definitions would 

help for one-stop partners. 

Department Response: The 

Department agrees with the commenter 

about the benefit of aligning definitions 

across the core programs, and as a result 

the terms ‘‘reportable individual’’ and 

‘‘participant’’ have been aligned with 

the performance accountability of the 

other core programs. 

Comments: A commenter noted that 

ES is focused on providing ‘‘UI relief,’’ 

job placement, and reemployment 

services, whereas WIOA focuses on 

training workers and providing wraparound services. Multiple commenters 

further discussed how the WagnerPeyser Act and WIOA are two different 

laws with different public policy 

objectives. Related to this point, two 

commenters urged the Department to 

use the word ‘‘Act’’ when referring to 

the Wagner-Peyser Act throughout the 

regulation (e.g., ‘‘Wagner-Peyser Act 

services’’ rather than ‘‘Wagner-Peyser 

services’’), reasoning that it is a separate 

and distinct enacted law. 

Department Response: The 

Department recognizes the vital role the 

ES has in the public workforce system, 

often serving as the ‘‘front door’’ to the 

one-stop centers, ensuring universal 

access to all job seekers, and in 

providing labor exchange services that 

help job seekers and unemployed 

workers gain or return to employment. 

The Department notes, as the 

commenters mentioned, that the 

Wagner-Peyser Act is a separate law 

from WIOA, but is a critical component 

of the reforms that WIOA envisions. 

Recognizing this, the Department has 

added the word ‘‘Act’’ behind the 

references to ‘‘Wagner-Peyser’’ to 

accurately reflect the distinction 

between the Wagner-Peyser Act and 

WIOA. 

Comments: In response to the 

Department’s request for comments on 

challenges in aligning labor exchange 

services described under WIOA with 

those provided by the ES, one 

commenter asserted that additional 

funds would be needed to create a 

cohesive, collective reporting system for 

WIOA implementation. 

Department Response: The 

Department received several comments 

on funding; however, funding levels are 

determined by Congress and beyond the 

scope of the NPRM; therefore they 

cannot be resolved through this 

regulatory process. 

Comments: Some commenters 

suggested that the Department revise 

§ 652.3(f) to refer to sec. 7(a) of the 

Wagner-Peyser Act, and thus ES labor 

exchange services. Although 

acknowledging that the referenced 

career services under WIOA are similar, 

these commenters asserted that they are 

not a substitute for Wagner-Peyser Act 

sec. 7(a) services. 

Department Response: The 

Department agrees with the commenters 

that career services under WIOA are not 

a substitute for Wagner-Peyser Act sec. 

7(a) services; § 652.3(f) has been 

amended to add reference to sec. 7(a) of 

the Wagner-Peyser Act. 

Comments: A commenter asked 

whether business service 

representatives are required to 

‘‘facilitate the match between job 

seekers and employers’’ (§ 652.3(c)) or 

whether this provision referred to the 

overall ES program responsibility. 

Department Response: The 

Department considers the facilitation of 

the match between job seekers and 

employers to be a part of the overall 

responsibility of the ES program. 

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Business services are an important 

component of the one-stop delivery 

system. While the Wagner-Peyser Act is 

responsible for facilitating the match 

between job seekers and employers, 

local areas may implement business 

services teams that include staff funded 

by the Wagner-Peyser Act and other 

partner programs to ensure quality 

services to area businesses and to avoid 

duplication of services. 

Section 652.8 Administrative 

Provisions 

The Department simplified the 

language in § 652.8(j)(1) by removing 

‘‘including laws prohibiting 

discrimination on the basis of age, race, 

sex, color, religion, national origin, 

disability, political affiliation or belief’’ 

because this is redundant with the 

phrase immediately preceding it, ‘‘any 

applicable nondiscrimination law.’’ 

Conforming edits were also made at 

§§ 653.501(c)(ii), 658.411(c)(1) and (2), 

and 658.420(b)(1). 

The Department made a clarifying 

change to § 652.8(i) by removing the 

sentence ‘‘Similarly, all complaints 

involving such matters should also be 

reported to the Secretary directly and 

immediately’’ and changing the first 

sentence to read ‘‘Any persons having 

knowledge of fraud, criminal activity or 

other abuse must report such 

information directly and immediately to 

the Secretary, including all complaints 

involving such matters.’’ This clarifies 

that complaints related to fraud and 

abuse must be reported to the Secretary 

directly and immediately. The change 

reduces confusion about whether the 

requirement to report complaints is 

different from the requirement to report 

information to the Secretary; the 

requirement is the same for both. 

Section 652.9 Labor Disputes 

Comments: Stating that proposed 

§ 652.9(a) could be misinterpreted by 

States and Workforce Development 

Boards, two commenters recommended 

that the provision be revised to say, 

‘‘State agencies must not make’’ instead 

of ‘‘State agencies may not make.’’ 

Department Response: The 

Department considers job referrals on 

job orders which aid directly or 

indirectly in the filling of a job opening 

which is vacant because of a strike, 

labor dispute, or work stoppage to be 

inconsistent with the Department’s 

policy of neutrality in activities that 

may impact union organizing. The 

Department proposed no changes to this 

section, as WIOA did not make any 

amendments to the Wagner-Peyser Act 

relevant to this section. This language— 

‘‘State agencies may not make’’ was 

used under previous practice and there 

were no apparent misinterpretations or 

issues. No change was made to the 

regulatory text in response to this 

comment. 

4. Subpart B—Services for Veterans 

Comments: Some commenters 

expressed support for proposed 

§ 652.100, particularly the inclusion of 

the statement regarding veterans’ 

priority of service. 

However, several commenters 

recommended that the Department 

define the term ‘‘veteran’’ by specifying 

that, as provided in 38 U.S.C. 101, ‘‘the 

term veteran means a person who 

served in the active military, naval, or 

air service, and who was discharged or 

released therefrom under conditions 

other than dishonorable.’’ In addition to 

urging a definition of ‘‘veteran,’’ a 

commenter also recommended that the 

Department establish definitions for 

‘‘eligible spouse,’’ ‘‘significant barriers 

to employment,’’ and ‘‘priority of 

service.’’ Additionally, this commenter 

recommended that the regulation state 

veteran referral qualifications to the 

Disabled Veterans Outreach Program 

(DVOP) because these referrals are 

Wagner-Peyser Act funded services and 

not charged to the Jobs for Veterans 

State Grants (JVSG). 

A commenter recommended that the 

Department include an option for 

LWDBs to require that one-stop 

operators adhere to labor standards for 

staff that work in the one-stop delivery 

system. 

Department Response: The 

Department agrees with the commenters 

that adding a definition of ‘‘veteran’’ to 

the ES regulations would be beneficial, 

showing the consistent definition across 

multiple programs. The definition under 

38 U.S.C. 101 applies to the WagnerPeyser Act, WIOA, and veterans’ 

Priority of Service under 38 U.S.C. 4215. 

(The definition of ‘‘eligible veteran’’ 

used in the JVSG program authorized 

under chapter 41 of title 38 of the 

U.S.C., is a different definition.) The 

Department added the definition of 

‘‘veteran’’ consistent with 38 U.S.C. 101 

and sec. 3(63)(A) of WIOA to the 

regulation at § 651.10. 

In response to the commenters’ 

suggestions to state veteran referral 

qualifications to DVOP, as well as 

define ‘‘eligible spouse,’’ ‘‘significant 

barriers to employment,’’ and ‘‘priority 

of service,’’ these concerns are already 

covered by joint guidance from the 

Veterans’ Employment and Training 

Service and the Employment and 

Training Administration. See TEGL No. 

19–13 (‘‘Expansion and Clarification of 

Homeless Definition as a Significant 

Barrier to Employment (SBE)’’), Change 

2 and TEGL No. 10–09 (‘‘Implementing 

Priority of Service for Veterans and 

Eligible Spouses in all Qualified Job 

Training Programs Funded in whole or 

in part by the U.S. Department of Labor 

(DOL)’’), which can be found at http:// 

wdr.doleta.gov/directives). Also, 

‘‘eligible spouse’’ and ‘‘priority of 

service’’ are fully described in the 

regulations governing the JVSG program 

at 20 CFR parts 1001 and 1010. No 

change was made to the regulatory text. 

The Department’s response to the 

recommendation for LWDBs to require 

that one-stop operators adhere to labor 

standards is addressed in the Joint 

WIOA Final Rule preamble discussion 

for 20 CFR part 678, subpart C. 

5. Subpart C—Wagner-Peyser Act 

Services in a One-Stop Delivery System 

Environment 

Section 652.201 What is the role of the 

State Workforce Agency in the one-stop 

delivery system? 

Comments: The Department received 

a few comments stating that this section 

should clarify that Wagner-Peyser Act 

services must be colocated in at least 

one one-stop center in each local area 

and requested that the Department 

provide additional direction on what 

should be included in the MOU to make 

sure that local Wagner-Peyser Act 

operations are closely connected with 

Local WDB priorities. 

Department Response: The 

requirements for Wagner-Peyser Act 

services to be colocated are outlined in 

§§ 652.202, 678.310, and 678.315 (see 

Joint WIOA Final Rule). The 

Department expects that the entity that 

administers the ES system, in 

consultation with LWDBs and one-stop 

partners, may need to make the 

necessary changes to comply with this 

requirement. Additionally, the specific 

requirements for MOUs are contained in 

20 CFR 678.500, which outlines what 

must be included in the MOU executed 

between the LWDBs, with the agreement 

of the CEO, and the one-stop partners 

relating to the operation of the one-stop 

delivery system in the local area. No 

change was made to the regulatory text. 

Section 652.202 May local 

employment service offices exist outside 

of the one-stop delivery system? 

Comments: Some commenters stated 

that either the existing § 652.202(b) 

should be retained or that § 652.202 

should specify that ‘‘one-stop centers in 

this rule refer to both comprehensive 

and affiliate one-stop centers.’’ These 

commenters reasoned that the WagnerPeyser Act requires State workforce 

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agencies to provide ES ‘‘statewide in 

underserved areas.’’ They cited two 

Department-sponsored studies that they 

stated demonstrate that the ES program 

in affiliated sites was the backbone and 

core component of these technologically 

linked one-stop center sites in many 

rural communities where LWDBs could 

not establish full-service one-stop 

centers. Further, these commenters 

asserted that maintaining current 

§ 652.202(b) would be consistent with 

proposed § 680.100(b)(1), which permits 

services at ‘‘affiliated sites or at 

specialized centers.’’ Expressing similar 

concerns about ES access in rural areas, 

a commenter asked whether proposed 

§ 652.202 means that affiliate ES offices 

may no longer physically exist. 

One commenter explained that the 

WIOA NPRM’s proposed requirements 

relating to colocation would do little to 

improve efficiencies and stabilization of 

facilities costs. For example, this 

commenter stated that adding one 

partner program staff to the ES office 

simply for complying with the NPRM 

against stand-alone ES offices (proposed 

at 20 CFR 678.315(b)) would be fairly 

simple to accomplish, but meaningless 

as far as the stated goals for improved 

service and coordination, less 

duplication, and greater access. This 

commenter stated that a requirement to 

colocate adult and dislocated worker 

with ES into full centers would likely be 

sufficient impetus over time to have the 

major core program partners concentrate 

on finding suitable facilities, although it 

would pose a difficult problem in many 

localities. This commenter and another 

stated that although proposed § 652.202 

and related discussion in §§ 678.310 

and 678.315 (see Joint WIOA Final Rule) 

is intended to address greater partner 

integration where ES are delivered, the 

discussion is confusing with 

overlapping references to one-stop 

centers, affiliated sites, and even 

affiliated sites. These commenters 

suggested that perhaps WIOA and the 

ES program should be required to 

colocate in proportion to participants 

served, forming over time the basis of a 

more financially sound, center-based 

system with fewer affiliates and locally 

unique inviting core and non-core 

program partners as space is available. 

Department Response: Colocation is 

intended to achieve several purposes: 

improved service delivery and 

coordination, less duplication of 

services, and greater access to services 

in underserved areas. While the 

Department understands that it may be 

difficult to establish full-service onestop centers in some rural communities, 

it has concluded that retaining the 

previous § 652.202(b) and allowing local 

ES offices to operate solely as affiliated 

sites or through electronically or 

technologically linked access points 

contradicts the intent of WIOA. No 

change was made to the regulatory text 

in response to these comments. 

Additionally, § 678.315(b) (see Joint 

WIOA Final Rule) allows multiple 

programs to meet the more than 50 

percent threshold by combining the 

time their staff members are physically 

present. This is further discussed in the 

preamble accompanying 20 CFR 

678.315. 

Additionally, the Department has 

determined that requiring colocation of 

WIOA and ES program services in 

proportion to participants served would 

be too burdensome a requirement to 

impose on States. 

Comments: Two commenters asked if 

there was a timeline for the requirement 

that ES offices must be colocated in onestop centers. 

Department Response: The 

Department expects colocation to be 

completed as expeditiously as possible. 

However, it acknowledged that there are 

legitimate concerns about the timeline 

for the requirement that ES offices must 

be colocated in one-stop centers, due to 

factors such as real property issues, 

decisions on site locations, discussions 

with municipal or county governments, 

and development of memoranda of 

understanding. Therefore, as indicated 

in 20 CFR 678.310 (see Joint WIOA 

Final Rule), a State in such 

circumstance must be prepared to 

provide the Department with a plan that 

details the steps the State will take to 

achieve colocation of ES and a timetable 

showing how the State will achieve this 

within a reasonable amount of time. The 

Department is issuing guidance on the 

approach it will use to obtain required 

plans and timelines for completion. 

Section 652.203 Who is responsible for 

funds authorized under the WagnerPeyser Act in the workforce 

development system? 

The Department did not receive any 

comments on this section. No changes 

were made to this section of the 

regulatory text. 

Section 652.204 Must funds 

authorized under section 7(b) of the 

Wagner-Peyser Act (the Governor’s 

Reserve) flow through the one-stop 

delivery system? 

Comments: Some commenters 

recommended that this section should 

include activities that enhance the 

professional development and career 

advancement for ES staff as an activity 

that can be supported by the Governor’s 

Reserve following the amendment of 

sec. 3(b)(4) of the Wagner-Peyser Act 

(amended by sec. 303(b)(4) of WIOA) to 

make such activities required. One 

commenter emphasized the importance 

of training activities to enhance the 

professional development of ES staff, 

given WIOA’s expansion of services and 

the central role of ES staff in providing 

referrals and application and assistance 

for training and education programs and 

resources. 

Expressing support for proposed 

§ 652.204, one commenter urged the 

Department to promote the training of 

staff on how to assist older workers. 

Department Response: The 

Department acknowledges and supports 

professional development for ES staff, 

and considers it to be essential in 

building staff capacity and ensuring 

staff are fully equipped to provide 

seamless and high-quality service to all 

customers who need ES services. The 

commenters’ recommendations and 

support for front-line staff training are 

addressed in the Wagner-Peyser Act at 

sec. 3(b)(4) (as amended by sec. 

303(b)(4) of WIOA), which requires 

State agencies and their staff to plan and 

implement opportunities to enhance the 

professional development of staff to 

ensure quality service delivery. This is 

consistent with the uses of funds under 

sec. 7(b)(3) of the Wagner-Peyser Act, 

which allow the funds to be used for 

‘‘models for enhancing professional 

development and career advancement 

opportunities of State agency staff.’’ The 

Department has added language to 

§ 652.204 to clarify that professional 

development and career advancement of 

SWA staff can be supported by funds 

under sec. 7(b) of the Wagner-Peyser Act 

(the Governor’s Reserve). The 

Department also has added language to 

the title of § 652.204 to clarify that 

§ 652.204 refers to the sec. 7(b) funds. 

Additionally, the Department added 

language to § 652.204 to clearly state 

that under sec. 7(b) of the WagnerPeyser Act, 10 percent of the State’s 

Wagner-Peyser Act allotment is reserved 

for these activities. 

With regard to the suggestion to train 

front-line staff on assisting older 

workers, the Department expects that 

staff are trained and equipped with the 

knowledge, skills, and motivation to 

provide superior service to all job 

seekers, including older workers. 

Section 652.205 May funds authorized 

under the Wagner-Peyser Act be used to 

supplement funding for labor exchange 

programs authorized under separate 

legislation? 

Comments: A commenter asked 

which other programs would be funded 

by the Wagner-Peyser Act, specifically 

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56264 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

whether training would be funded and 

asked how this is consistent with 

§ 652.206. 

Department Response: Section 

652.205 made no changes in the 

activities that may be funded by 

Wagner-Peyser Act funds. Although 

§ 652.205(a) states that States may use 

such funds to supplement any work 

activity carried out under WIOA, the 

paragraph clearly applies to ‘‘funds 

authorized under 7(a) or 7(b) of the 

Wagner-Peyser Act.’’ Section 7(b) of the 

Wagner-Peyser Act allows for the 

provision of training services, however 

that is not the primary purpose of 7(b), 

and any training services provided with 

these funds must be consistent with the 

allowable activities in 7(b). These 

allowable 7(b) activities include services 

for groups with special needs as well as 

the extra costs of exemplary models for 

delivering labor exchange services, as 

well as the other services under sec. 7(a) 

of the Wagner-Peyser Act. 

Section 652.206 May a State use funds 

authorized under the Wagner-Peyser Act 

to provide applicable ‘‘career services,’’ 

as defined in the Workforce Innovation 

and Opportunity Act? 

Comments: Some commenters 

recommended that the Department 

revise § 652.206 to make clear that the 

labor exchange services under WIOA 

and under the Wagner-Peyser Act are 

distinct. They proposed removing the 

phrase ‘‘funds under sec. 7(a) of the Act 

must be used,’’ so that this section 

would be amended as follows: 

‘‘Yes, 90 percent of the funds allotted 

to States under the Wagner-Peyser Act 

must be used for services identified 

under sec. 7(a) of the Act to assist job 

seekers and employers and to provide 

career services as identified in 

§ 678.430(a) of this chapter and secs. 

134(c)(2)(A)(i)–(xi) of WIOA . . . .’’ 

Department Response: The 

Department has determined that it is not 

necessary to amend the regulation as the 

commenters have requested, because 

§ 652.206 states that career services 

must be provided consistent with the 

requirements of the Wagner-Peyser Act, 

which specifies that 90 percent of the 

funds allotted to States may be used for 

services identified under sec. 7(a) of the 

Wagner-Peyser Act to assist job seekers 

and employers. In addition, sec. 7(b) 

states that 10 percent of the State’s 

allotment under the Wagner-Peyser Act 

is reserved for 7(b) activities. As 

discussed above, the Department has 

added language to § 652.204 to clarify 

the amount of funds reserved for 7(b) 

activities. 

Comments: In response to the 

Department’s request for comments on 

how services provided by the ES can be 

more aligned with other services in the 

one-stop delivery system, two 

commenters suggested that the 

Department: (1) Require, over time, 

maximum colocation of ES and title I 

adult and dislocated worker staff 

forming full one-stop centers with 

foundations of at least these two core 

programs in each labor market area 

(which may be sub-areas of local areas); 

(2) implement standardized triage 

processes/forms used by staff that are 

voluntary for customers; (3) require 

mandatory coordination of business 

services; and (4) encourage more 

purposeful and deliberate ongoing joint 

staff development training. 

Department Response: The 

Department notes the comments about 

the alignment of ES services and those 

of the one-stop delivery system. The 

Department intends to ensure colocation 

of ES and title I adult and dislocated 

worker staff over time. The Department 

has determined that requiring these 

specific activities in the regulation as 

suggested by the commenters would 

limit flexibility. The Department will 

provide guidance on allowable activities 

and may address this topic in future 

technical assistance. No changes were 

made to regulatory text in response to 

these comments. 

Comments: One commenter asked for 

clarification regarding the statement that 

‘‘career services must be provided 

consistent with requirements of the 

Wagner-Peyser Act,’’ particularly 

whether this means that career services 

are charged to the Wagner-Peyser Act 

only and how supportive services 

should be charged. Some commenters 

requested that the Department clarify 

that career services can be delivered 

remotely using technology due to the 

limited number of Wagner-Peyser Act 

staff that are available for traditional 

services. 

Department Response: Funds under 

sec. 7(a) of the Wagner-Peyser Act may 

be used to provide career services, 

whereas funds under sec. 7(b) may be 

used to provide career services, 

supportive services, and training, as 

discussed above. The Department 

encourages Local WDBs to coordinate 

ES with title I and other partner 

programs to have a full range of training 

and supportive services available to 

participants. The Department 

understands the importance of 

providing staff-assisted services virtual 

and clarifies that facilitated self-help 

can be provided in-person or virtually. 

The Department emphasizes, however, 

that, as stated in 20 CFR 678.305(d)(3) 

(see Joint WIOA Final Rule), to meet the 

definition of providing sufficient 

‘‘access’’ through the one-stop center, 

services provided through a 

technological ‘‘direct linkage’’ must be 

meaningful, available in a timely 

manner, and not simply a referral to 

additional services at a later date or 

time. While virtual services that do not 

meet this definition may be provided, 

they must supplement the ‘‘access’’ to 

services provided by other means, and 

cannot stand-alone as the only access 

provided through the one-stop center. 

Comments: Requesting clarification 

regarding what services would qualify 

as ‘‘individualized career services,’’ a 

commenter agency urged the 

Department to provide joint training 

with the one-stop partners to carry out 

the intent of § 652.206. 

Department Response: 

‘‘Individualized career services’’ are 

defined in 20 CFR 678.430(b) (see Joint 

WIOA Final Rule) and include: (1) 

Comprehensive and specialized 

assessments of the skill levels and 

service needs of adults and dislocated 

workers; (2) development of an 

individual employment plan; (3) group 

counseling; (4) individual counseling; 

(5) career planning; (6) short-term prevocational services; (7) internships and 

work experiences that are linked to 

careers (as described in 20 CFR 

680.180); (8) workforce preparation 

activities; (9) financial literacy services 

(as described in sec. 129(b)(2)(D) of 

WIOA and 20 CFR 681.500); (10) out-ofarea job search assistance and relocation 

assistance; and (11) English language 

acquisition and integrated education 

and training programs. 

The Department has issued guidance 

with regard to the provision of career 

services under the ES program in TEGL 

No. 03–15 (‘‘Guidance on Services 

Provided through the Adult and 

Dislocated Worker Program under the 

Workforce Innovation and Opportunity 

Act (WIOA or Opportunity Act) and 

Wagner Peyser, as Amended by WIOA, 

and Guidance for the Transition to 

WIOA Services’’) (see http://

wdr.doleta.gov/directives/All_WIOA_

Related_Advisories.cfm); the 

Departments may provide additional 

training, guidance, and technical 

assistance on this subject. 

Comments: One commenter asked 

under what conditions the WagnerPeyser Act program is no longer 

authorized for funding and/or 

transferred to another funding source 

and if the ‘‘line of demarcation’’ is when 

the participant initiates training. 

Department Response: WIOA 

provides flexibility in what WagnerPeyser Act funds may be used and when 

referrals to other programs take place; 

however, training is not an allowable 

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activity under sec. 7(a) funds. 

Coordination among programs including 

the transfer or referral of participants, is 

a local decision. Therefore, the referral 

process to other programs must 

generally be determined at the local 

level consistent with State one-stop 

policies. 

Section 652.207 How does a State 

meet the requirement for universal 

access to services provided under the 

Wagner-Peyser Act? 

Comments: A couple commenters 

recommended expanding the 

characterization of virtual services to 

include facilitated self-help services in 

which ES staff are proactive; for 

example, ES staff initiating email 

invitations to consider applying for 

matched job openings. One commenter 

disagreed with proposed §§ 652.207 and 

652.208’s reference to services provided 

remotely or via online self-service as 

‘‘virtual services.’’ Stating that these are 

‘‘real services’’ and that staff-assisted 

services can also be provided via online 

mechanisms, this commenter 

recommended that these provisions 

instead reference provision of services 

in person, remotely, or via other online 

mechanisms, whether staff-assisted or 

self-service. 

Department Response: Facilitated 

self-help can be provided in person or 

virtually. However, the Department 

emphasizes that as stated in 20 CFR 

678.305(d)(3) (see Joint WIOA Final 

Rule), services provided through 

technology must be meaningful, 

available in a timely manner and not 

simply a referral to additional services 

at a later date or time. Additionally, 

while the Department agrees that 

‘‘virtual services’’ are actual services 

and that staff-assisted services may also 

be provided via online mechanisms, to 

prevent potential confusion with a 

change in this terminology, no change 

was made in the regulatory text. 

Comments: A commenter 

recommended that § 652.207(b)(1) 

provide further detail regarding how 

States are required to serve individuals 

with disabilities, such as a specific 

reference to WIOA sec. 188, ensuring 

programmatic and physical accessibility 

of all services, and other applicable 

sections of the Americans with 

Disabilities Act. This commenter 

expressed concern that the delay in the 

issuance of sec. 188 nondiscrimination 

regulations could create possible 

misunderstandings concerning States’ 

legal obligations to serve individuals 

with disabilities. 

Department Response: The 

Department acknowledges the 

commenter’s concern about ensuring 

States are required to serve individuals 

with disabilities and ensuring 

programmatic and physical accessibility 

of all services. The ES program, like all 

services funded by the Department, 

must be physically and 

programmatically accessible to 

individuals with disabilities, as further 

described in 20 CFR 678.800 and 

678.305(e) (see Joint WIOA Final Rule), 

WIOA sec. 188 at 29 CFR part 38, and 

any subsequent Civil Rights Center 

regulations which govern one-stop 

center accessibility. 

Section 652.208 How are applicable 

career services related to the methods of 

service delivery described in this part? 

Comments: A commenter 

recommended that access points should 

be defined in § 652.208 as a means to 

link job participants back to the onestop center to ensure area-wide service. 

Department Response: The 

Department has determined that the 

commenter’s suggested definition for 

‘‘access points’’ would not provide 

enough clarity and consistency in the 

intent of this term. Instead, an 

applicable example of ‘‘access points’’ is 

contained in 20 CFR 678.310 (see Joint 

WIOA Final Rule), which states that, in 

addition to the requirement for a 

physical center in each local area where 

required one-stop partners must provide 

access to their programs, services, and 

activities, the one-stop delivery system 

may also provide access to programs, 

services, and activities through a 

network of eligible one-stop partners 

that provide at least one or more of the 

programs, services, and activities at a 

physical location or through an 

electronically or technologically linked 

access point, such as a library. 

Comments: One commenter asked at 

which point registration must occur for 

purposes of Wagner-Peyser Act 

accountability. 

Department Response: The 

Department understands the commenter 

is referring to the point performance 

accountability begins when they asked 

about registration. For the core WIOA 

programs, of which the ES system is 

one, performance accountability begins 

after a determination of eligibility and 

an individual receives a service beyond 

a self-service or information-only 

service consistent with 20 CFR 

677.150(a) (see Joint WIOA Final Rule) 

and § 680.110. For the Wagner-Peyser 

Act, which is a program that provides 

‘universal access,’ there are no 

eligibility criteria. All job seekers meet 

the eligibility criteria of the WagnerPeyser Act, so for performance 

accountability purposes, it is when an 

individual becomes a ‘‘participant’’ as 

discussed in part 651 and 20 CFR 

677.150(a). An individual needs to 

receive a service beyond self-service or 

information-only services either in 

person or remotely through virtual 

services in order to be considered a 

participant in 20 CFR 677.150(a). 

Comments: Noting that proposed 

§ 652.208 appears to contradict 

regulations in other sections by use of 

the word ‘‘may,’’ some commenters 

urged the Department to ensure that 

regulations governing how career 

services are delivered are consistent for 

all sections. 

Department Response: The word 

‘‘may’’ is used in § 652.208 to 

communicate that the States have 

different methods by which they may 

choose to deliver services under the 

Wagner-Peyser Act. This is consistent 

with the different options in delivering 

services under other WIOA title I 

programs. Regarding the consistency 

between Wagner-Peyser Act services 

and career services in other programs, 

the Department notes that the primary 

function of the Wagner-Peyser Act 

under sec. 7(a) is to provide labor 

exchange services to job seekers. Labor 

exchange services are considered a type 

of career services under WIOA, and 

other WIOA career services may be 

provided consistent with the WagnerPeyser Act regulations at § 652.206, or 

through other programs. 

Section 652.209 What are the 

requirements under the Wagner-Peyser 

Act for providing reemployment 

services and other activities to referred 

unemployment insurance claimants? 

Comments: Several commenters 

recommended that § 652.209(b)(2) 

should include developing and 

documenting reemployment plans as 

another reemployment services activity 

provided by ES staff. 

Some of these commenters stated that 

the reemployment plan is a component 

of the Worker Profiling and 

Reemployment Services (WPRS) and 

Reemployment and Eligibility 

Assessment (REA) programs, and 

consists of an agreement between the 

claimant and the SWA that requires 

participation by claimants in selected 

reemployment services. Commenters 

observed that in those programs the 

failure of the claimant to agree to, 

attend, or satisfactorily complete a plan 

may result in the denial of benefits. A 

State agency asked for clarification 

regarding how the use of Wagner-Peyser 

Act funds to support reemployment and 

related services to UI claimants fits with 

the State’s REA and Reemployment 

Services and Eligibility Assessments 

(RESEA) programs. In particular, this 

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commenter asked if a claimant starts 

with UI versus ES, whether the State 

can assist them in a comprehensive 

center. 

Department Response: Providing 

assistance to UI claimants in the 

development of a reemployment plan is 

not just for claimants served by the 

RESEA or the WPRS program, but can 

be for any unemployed worker, and 

providing such assistance is an 

allowable Wagner-Peyser Act cost. The 

Department plans to address these 

issues in guidance. 

Wagner-Peyser Act funds may be used 

to support reemployment services to UI 

claimants fits with the State’s RESEA 

program, States have considerable 

flexibility to effectively leverage these 

two funding sources. The Department 

notes that not all States have RESEA 

programs and RESEA only serves a 

small percentage of UI claimants. 

Therefore, the Department expects that 

Wagner-Peyser Act funds will be used to 

serve all UI claimants more broadly. 

States have flexibility under UI and 

ES to provide services through a 

comprehensive center. Two activities 

that can be funded with either funding 

source are conducting eligibility 

assessments and reviewing compliance 

with the State’s work search 

requirements as a condition of UI 

eligibility. 

Comments: Two commenters 

disagreed with the proposed 

requirement that reemployment services 

provided by State agencies must include 

conducting eligibility assessments and 

referring UI claimants to and providing 

application assistance for training and 

education resources and programs. 

Stating that WIOA does not require 

including these services as required 

reemployment services provided to UI 

claimants but merely requires that when 

these services are provided, States must 

use Wagner-Peyser Act sec. 7(a) funds to 

pay for them, these commenters stated 

that proposed §§ 652.209 and 652.210 

go beyond what is in the Wagner-Peyser 

Act and reduce States’ flexibility in 

designing reemployment services. 

Expressing concern that activities for UI 

claimants should not pull ES staff from 

providing career services and other 

MOU responsibilities, one commenter 

recommended that the 20 CFR part 652, 

subpart C regulations emphasize that 

both basic career services and 

reemployment services must be 

provided under ES. 

Department Response: The approach 

the Department is taking is to serve UI 

claimants and other unemployed 

workers consistent with the approach 

that existed under WIA, and will be 

continued under WIOA. States must 

have the capacity to deliver these 

services as part of the Wagner-Peyser 

Act services. However, it is also the 

Department’s intent to provide States 

with flexibility to leverage UI funds, ES 

funds, and RESEA funds, in States with 

RESEA programs, for these purposes 

and will clarify that flexibility in future 

guidance. 

Comments: One commenter requested 

clarification regarding ‘‘referrals and 

application assistance’’ for training and 

education resources in proposed 

§ 652.209(b)(3), asking whether ES staff 

will be required to provide application 

assistance for Pell grants and other 

student assistance grants. 

Department Response: The 

Department has determined that the 

language in the Wagner-Peyser Act sec. 

7(a)(3), as amended by sec. 305(b) of 

WIOA, regarding providing UI claimants 

with referrals to and application 

assistance for training and education 

programs is clear; no change was made 

in the regulatory text. Because training 

and education program application 

processes vary in complexity, the 

Department chooses not to be overly 

prescriptive, giving States flexibility 

with regard to implementing this 

requirement. 

Comments: Another commenter asked 

whether the Profiling Reemployment 

Program (PREP) and the RESEA 

programs would satisfy the requirement 

to provide ‘‘reemployment services and 

other activities’’ to UI claimants. 

Department Response: The 

Department assumes the Profiling 

Reemployment Program referenced in 

the comment is a State name for the 

Federally required WPRS program. 

Neither the RESEA program nor the 

WPRS program fully satisfies the 

requirement to provide reemployment 

services and other activities to UC 

claimants. The RESEA program is a 

relatively small temporary program that 

currently serves only a small percentage 

of UI claimants and is not operational in 

all States. The WPRS program is 

similarly small in scope. The 

Department will clarify this issue in 

future guidance. No changes were made 

to the regulatory text in response to 

these comments. 

Comments: Stating that UI claimants 

are core customers of the ES, one 

commenter expressed support for the 

proposed expanded definition of 

‘‘enhanced career services’’ in the onestop centers to include assistance with 

UI claim filing and eligibility 

assessments. This commenter discussed 

recent occurrences of UI claimants 

flooding one-stop centers seeking help 

with claim filing because they are 

unable to file claims remotely during 

periods of service disruption or 

seasonally high unemployment. 

Department Response: The 

Department notes the commenter’s 

support and no change was made to the 

regulatory text. 

Section 652.210 What are the WagnerPeyser Act’s requirements for 

administration of the work test, 

including eligibility assessments, as 

appropriate, and assistance to 

unemployment insurance claimants? 

Comments: Expressing concern that 

‘‘necessary guidance and counseling’’ is 

a very intensive service, a few 

commenters requested clarification 

about what is required under this term, 

and recommended that the Department 

make clear that using technology to 

provide services remotely is allowable. 

Department Response: The 

Department acknowledges the 

commenters’ concerns that ‘‘necessary 

guidance and counseling’’ can be an 

intensive service. This particular section 

of the regulation only applies to UI 

claimants ‘‘requiring assistance,’’ and, 

therefore, it is not the entire universe of 

claimants. If the claimant ‘‘requires 

assistance,’’ he/she is likely to need 

staff-assisted services. The Department 

intends to address this in future 

guidance. 

Comments: One commenter asked 

who would administer the work test and 

eligibility assessments and to what 

degree are States required to assist UI 

claimants if they are a call center State. 

Another commenter asked whether the 

services provided in the WPRS and the 

RESEA programs would satisfy the 

requirements of § 652.210. 

Department Response: With regard to 

using Wagner-Peyser Act resources to 

support the work test and eligibility 

assessments, the Department is 

consistent with the approach that 

existed under WIA, and will be 

continued under WIOA; this approach 

requires that States have the capacity to 

deliver these services as part of the 

Wagner-Peyser Act endorsement 

services program. It is also the 

Department’s intent, however, to 

provide States with flexibility to 

leverage UI funds, Wagner-Peyser Act 

funds, and RESEA funds in States that 

operated RESEA programs for these 

purposes, and will clarify that flexibility 

in future guidance. 

Neither the RESEA program nor the 

WPRS program fully satisfies the 

requirement to provide reemployment 

services and other activities to UC 

claimants. The RESEA program is a 

relatively small temporary program that 

serves currently only a small percentage 

of UI claimants and is not operational in 

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all States. The WPRS program is 

similarly small in scope. This will be 

clarified in future guidance from the 

Department. 

Section 652.211 What are State 

planning requirements under the 

Wagner-Peyser Act? 

The Department received only 

supportive comments on this section, so 

no changes were made to the regulatory 

text. 

Section 652.215 Do any provisions in 

the Workforce Innovation and 

Opportunity Act change the 

requirement that State merit staff 

employees must deliver services 

provided under the Wagner-Peyser Act? 

Comments: Several commenters 

requested that the Department continue 

to allow the exemptions for 

Massachusetts, Colorado, and Michigan 

from the merit-based staffing 

requirements under sec. 3(a) of the 

Wagner-Peyser Act that the Secretary of 

Labor granted prior to WIA. According 

to some of these commenters, because 

the exemptions pre-date WIA, WIOA 

does not specifically address or rescind 

the merit staff exemptions granted 

under the Wagner-Peyser Act, and the 

Department’s WIOA NPRM was silent 

on the status of the exemptions, the 

existing State merit staff exemptions for 

the demonstration sites remain in full 

effect. Some commenters discussed how 

their one-stop operators chartered under 

the existing exemption are performing 

well and have met or exceeded 

performance standards. 

One commenter said that in some of 

the Massachusetts local areas, WagnerPeyser Act services are provided by 

State employees (employed by the State 

university) and that the State university 

meets all the requirements of merit staff, 

although it is not part of the SWA. This 

commenter recommended that the 

Department allow any State employees 

currently providing Wagner-Peyser Act 

services whose employing agency meets 

the definition of merit staff (5 CFR part 

900) to be able to continue providing 

those services. According to this 

commenter, allowing these employees 

to continue providing Wagner-Peyser 

Act services would meet all of the 

objectives associated with the 

Department’s State merit staffing 

requirement. 

Two commenters cited a Department 

comparative evaluation of the three 

merit staff exemption States that they 

asserted did not conclude that 

alternative delivery was improved, and 

suggested that, if one of the three 

demonstration States ceases using nonState government staff, the temporary 

demonstration authority should lapse 

and not be further authorized by the 

Department. 

Several other commenters indicated 

that § 652.215 should re-affirm that no 

additional demonstrations of alternative 

delivery of Wagner-Peyser Act services 

by non-State government employees 

should be authorized. Another 

commenter requested that § 652.215 

specify whether additional 

demonstrations would be authorized. 

Some commenters urged the 

Department to remove the State merit 

staffing requirement from the Final Rule 

or, at a minimum, allow for a waiver 

whereby States can apply to ‘‘opt out’’ 

of the requirement. These commenters 

stated that given that the ‘‘core services’’ 

under WIA, the ‘‘career services’’ under 

WIOA and the ‘‘employment services’’ 

under the Wagner-Peyser Act are 

essentially the same services, there no 

policy or economic rationale for 

maintaining a State merit staff 

requirement in the ES program while 

city, county, and non-governmental 

employees simultaneously provide the 

same services in the WIOA programs. 

According to these commenters, the 

Michigan v. Herman court ruling (81 F. 

Supp. 2nd 840 (W.D. Mich. 1998)) 

established that continuing or 

eliminating the merit staffing policy was 

at the discretion of the Department, 

meaning that the Department could 

modify or eliminate the merit staffing 

policy simply by changing its 

regulations. 

Department Response: The 

Department acknowledges the varying 

concerns and points of view regarding 

the State merit staffing requirement. The 

benefits of merit staffing in promoting 

greater consistency, efficiency, 

accountability, and transparency have 

been well established, and the 

Department intends to continue 

Wagner-Peyser Act merit staffing 

requirements under WIOA. To further 

clarify the merit staffing requirement, 

the Department, as noted above, has 

replaced the preamble language that was 

duplicated inadvertently in the NPRM 

with the WIA regulatory text of 

§ 652.215, which is not different 

substantively from the preamble 

description in the NPRM. The only 

change in the regulatory text from that 

used in that section of WIA is that in 

place of the original last sentence from 

WIA regulations at § 652.215, the 

Department has revised the last 

sentence to read: ‘‘No additional 

exemptions, other than the ones 

previously authorized under the 

Wagner-Peyser Act as amended by WIA, 

will be authorized.’’ The Department 

does not consider this a substantive 

change from the language in the WIA 

version of § 652.215 since the last 

sentence in the WIA regulations at 

§ 652.215 was that ‘‘No additional 

demonstrations will be authorized.’’ 

Section 652.216 May the one-stop 

operator provide guidance to State merit 

staff employees in accordance with the 

Wagner-Peyser Act? 

Comments: In response to the 

Department’s request for comments 

about whether any other changes are 

needed to allow one-stop operators to 

ensure the efficient and effective 

operations of the one-stop center, some 

commenters urged that the purview of 

one-stop operators over ES staff should 

not be expanded because it would 

undermine the impartial and unbiased 

delivery of public labor exchange 

services to job seekers and employers 

throughout the State. Some of these 

commenters stated that just as UI staff 

members located in one-stop centers are 

not under the authority of non-State 

government management, so too should 

ES staff not be under the authority of 

private entity one-stop operators. These 

commenters reasoned that undue 

influence or pressure by non-State 

government operators could adversely 

affect the integrity of the labor exchange 

process and undermine the integrity of 

work test activities that are mandated 

under the Wagner-Peyser Act. 

Some commenters expressed concerns 

that a mandatory competitive process 

for choosing operators would increase 

the chance for private entities as 

operators overstepping their span of 

control over State agency staff from 

guidance to operational direction for ES 

programs. These commenters urged the 

Department to make clear in the 

regulations that the role of operators 

should not be management of other 

entity program staff and especially of 

processes operated by State merit staff. 

Some commenters expressed support 

for this proposed section. 

Department Response: The 

Department clarifies that the regulations 

for this section did not expand the 

purview of one-stop operators over State 

merit staff. These regulations are 

unchanged from before WIOA, with the 

exception of an added reference to 

§ 678.500 (see Joint WIOA Final Rule), 

which provides the requirements for the 

local MOU. 

Regarding concern about the 

competitive process for choosing 

operators and its impact on guidance to 

and oversight of State merit staff, the 

Department reiterates that one-stop 

operators only may provide State merit 

staff employees guidance that is 

programmatic in nature regarding the 

provision of labor exchange services, 

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56268 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

and such guidance must be consistent 

with the Wagner-Peyser Act, local MOU, 

and collective bargaining agreements. 

All personnel matters remain under the 

authority of the State agency. No 

changes were made to the regulatory 

text in this section. 

6. Subpart D—Workforce and Labor 

Market Information 

Overarching Comments on Part 652, 

Subpart D 

Comments: In the event wage record 

reporting requirements are changed, one 

commenter emphasized the importance 

of a strong educational effort tailored 

towards State agencies and employers 

on new data elements and adapting data 

systems. 

Department Response: The 

Department agrees with the need to 

provide extensive education with regard 

to accessing wage record data and is 

issuing guidance on this issue, and will 

provide necessary technical assistance. 

Comments: One commenter asked for 

clarification regarding the Workforce 

Information Advisory Council’s (WIAC) 

role under WIOA, including whether 

the Council is involved in developing 

State Plans or whether it is an 

independent activity. 

Department Response: The WIAC will 

provide input and recommendations 

regarding Unified and Combined State 

Plans, but it will not be involved in 

developing them. 

Comments: One commenter asked 

about the references to work with other 

‘‘Federal agencies’’ in §§ 652.300 and 

652.302; in particular, to which agencies 

does this term refer and how will this 

partnership be tied to the Federal WIOA 

process (if at all)? 

Department Response: The 

Department has determined it is not 

necessary to list the Federal and State 

agencies that participate in the WLMIS, 

because it is inadvisable to create a list 

that may change over time based on 

changes in agency data collection and 

data sharing policies and procedures. 

Comments: One commenter suggested 

that one area needing additional work is 

comparing real-time LMI data with State 

and local area job vacancy surveys to 

better understand labor market 

operations. This commenter urged that 

Federal support must be continued at 

adequate levels for key infrastructure 

groups, such as Analyst Resource Center 

(ARC), Local Employment and Wage 

Information Systems (LEWIS), and 

Projections Managing Partnership 

(PMP). Another commenter urged the 

Department to require that 

improvements to the WLMIS include a 

more effective and more widely used 

national job advertising system that 

allows employers to quickly and easily 

post job openings to any and all onestop centers located in regions from 

which they would hire. 

Department Response: The 

Department also acknowledges the 

commenter’s concern regarding 

adequate Federal funding; however, 

funding levels are determined by 

Congress and cannot be resolved 

through this regulatory process. 

The WLMIS already includes or 

directs employers and job seekers to 

some job-posting tools, such as the 

National Labor Exchange (NLX), which 

allows employers to request that their 

job openings be posted nationwide. 

Comments: One commenter 

recommended that UI records be 

available to NFJP grantees. 

Department Response: The 

Department is reviewing the needs for 

wage record access by a wide array of 

public workforce system grantees and is 

working with States on mechanisms to 

provide aggregate performance data, 

including through systems designed to 

facilitate data sharing of wage record 

information. 

Section 652.300 What role does the 

Secretary of Labor have concerning the 

Workforce and Labor Market 

Information System? 

Comments: Expressing concerns about 

the inability to confirm job matches in 

neighboring States, one commenter 

stated that accuracy on WIOA 

performance indicators would be greatly 

improved if the Department encouraged 

and supported sharing of UI data across 

State lines. This commenter encouraged 

a Department-led initiative for data 

exchange in multi-State economic and 

workforce regions. Similarly, a 

commenter encouraged the Department 

to facilitate a timely process for Wage 

Record Interchange System (WRIS) 

renegotiation to allow States to more 

easily exchange wage records across 

State lines and improve overall 

performance. The letter also urged the 

Departments of Labor and Education to 

issue joint guidance on how to match 

administrative data from education, 

training, and wage systems while 

maintaining important privacy 

protections, such as those provided 

under the Family Educational Rights 

and Privacy Act (FERPA) and UI 

confidentiality regulations. 

Department Response: The 

Department is working with States on 

improved mechanisms to provide wage 

data through systems designed to 

facilitate data sharing of wage record 

information. The Department also is 

exploring the feasibility of providing 

cross-State data to enable States to 

produce better labor market 

information, such as labor shed analysis 

in regions that cross State borders. 

The Departments of Labor and 

Education are issuing joint guidance 

with regard to use of wage data for 

performance in the context of the 

confidentiality requirements for the use 

UI wage record data and education data 

under FERPA. 

Comments: One commenter expressed 

support for the proposed language at 

§ 652.300 that codified the WLMI 

requirements in WIOA and created a 

platform for their implementation. 

Regarding the codification of the 

Secretary’s duties related to 

‘‘continuous improvement’’ of the 

WLMIS, a commenter stated that there 

is no clear definition of ‘‘continuous 

improvement’’ and asked how the 

Secretary will determine what is 

considered an improvement and how 

much funding will be made available to 

provide measurable improvement of 

local area LMI. Another commenter 

similarly stated the importance that 

adequate funding be maintained for LMI 

programs to produce the information 

required to support WIOA under part 

652, subpart D. 

Department Response: The 

Department understands the importance 

of identifying what is considered 

‘‘continuous improvement’’ as it 

pertains to the WLMIS. As a result, 

§ 652.300(a) has been updated to reflect 

that, ‘‘The Secretary will consult with 

the Workforce Information Advisory 

Council on these matters and consider 

the council’s recommendations.’’ This 

regulatory text contemplates using the 

WIAC consultation process to inform 

the continuous improvement of the 

WLMIS. The Department also 

acknowledges the comments regarding 

funding; however, funding levels are 

determined by Congress and cannot be 

resolved through this regulatory 

process. 

Comments: A commenter suggested 

that, in § 652.300(b), the Department 

add a reference to or text from 29 U.S.C. 

49l-2(c) concerning the Secretary’s 

responsibility to prepare a 2-year plan 

for the WLMIS. 

Department Response: The Final Rule 

has been updated to reflect this 

responsibility, adding the following 

language: ‘‘Prepare a 2-year plan for the 

workforce and labor market information 

system, as described in the WagnerPeyser Act sec. 15(c), as amended by 

WIOA sec. 308(d).’’ 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56269 

Section 652.301 What are wage 

records for purposes of the WagnerPeyser Act? 

Comments: In objecting to the 

proposed changes in the wage record 

confidentiality provisions at 20 CFR 

part 603, a couple of commenters 

explained that providing wage records 

to educational entities creates too many 

opportunities for mistaken use or 

misuse of UI confidential information to 

be of benefit to the State’s need for 

efficiency and integrity in performance 

reporting. These commenters asserted 

that the inclusion of the Federal 

Employer Identification Number (FEIN) 

and availability of employer name and 

address only creates the opportunity for 

training providers to misuse that 

information as part of direct marketing 

campaigns. These commenters asserted 

that FEIN data elements are not 

essential to the calculation of common 

measures, because a unique identifier 

for each employer could be a State UI 

account number instead. Moreover, 

these commenters suggested that the 

only reason to include a FEIN as part of 

a State wage record definition is the 

capacity to integrate wage records into 

a national database. 

Department Response: The 

Department is committed to ensuring 

the confidentiality of UI wage data. The 

regulations in 20 CFR part 603 establish 

the permissible disclosures and 

allowable uses of the data and include 

non-disclosure requirements. These 

requirements must be embedded in the 

MOU between the State agency that 

collects wage record data and the entity 

that receives the data in accordance 

with the regulation. The Department 

notes that many public educational 

institutions were already able to access 

wage record data and, therefore, does 

not consider the more explicit 

identification of public institutions of 

higher education as a ‘‘public official’’ 

to be a significant expansion of entities 

that are permitted to receive the data. 

With regard to the concern for the use 

of the FEIN, the commenter is correct 

that the FEIN is not necessary for 

performance purposes; it has the 

potential to be valuable in the context 

of creating labor market information. No 

changes were made to the regulatory 

text in response to these comments. 

Section 652.302 How do the Secretary 

of Labor’s responsibilities described in 

this part apply to State wage records? 

Standardizing Definitions of Wage 

Information Elements 

Comments: Commenting that standard 

definitions would help wage records be 

more consistent across States, a few 

commenters expressed support for the 

proposed language at § 652.302 that 

directs the Department, in consultation 

with other Federal agencies, States, and 

the Workforce Information Advisory 

Council, to develop standard definitions 

for wage records and help improve their 

collection and reporting. A commenter 

stated that standard definitions are the 

most critical potential contribution of 

any Federal regulations, both from the 

perspective of employers (for whom 

diverse definitions create complexity in 

recordkeeping systems) and for the 

national LMI system, which also faces 

complexity and uncertainty if core 

elements are defined differently by 

States. Some commenters noted the 

difficulty of standardizing definitions, 

emphasizing the need for substantial 

and ongoing outreach, guidance, 

training, and audit support for 

employers to implement them correctly. 

This commenter also discussed how 

enhancement of wage records could 

involve considerable costs to update the 

systems, while one other commenter 

indicated that there could be 

efficiencies, costs savings, and 

reduction in reporting burden if systems 

used by States were standardized, rather 

than needing to contain customized 

elements for each State. Another 

commenter added that standard 

definitions would require changes to 

Federal law and/or regulations, which 

would likely necessitate changes to 

State laws and/or regulations. 

Several commenters expressed 

contrasting views on the workload 

burden of wage record changes on both 

State workforce agencies and employers, 

some saying it would reduce the burden 

and others saying it would increase it 

and also inquiring on the source of 

funds for the costs incurred to make 

such changes. 

Department Response: The 

Department acknowledges the positive 

comments concerning standardization 

of data definitions for wage record data 

and improved process for collection of 

the data. The Department notes that 

moving to standardized definitions and 

new reporting requirements for wage 

record data will involve some burden on 

employers, payroll associations and 

other third-party administrators, and 

States, and it will also require resources 

to support it. Therefore, the Department 

is committed to approaching this effort 

in a highly inclusive and consultative 

manner that recognizes the realities of 

the changes that will need to be made 

by all the impacted stakeholders and the 

resources required to accomplish the 

change. The Workforce Information 

Advisory Council’s work may also help 

inform this effort. Noting that there are 

significant benefits to achieving 

standardization of data definitions and 

reporting processes, the Department 

made no changes to regulatory text in 

response to these comments. 

New Wage Information Data Elements 

Comments: While acknowledging the 

potential benefits of receiving additional 

information through the wage record 

reporting process, some commenters 

urged the Department to consider the 

costs and potential burden of any 

change to wage record reporting for both 

employers and State agencies. These 

commenters and others suggested that 

increased data elements could result in 

missing or inaccurate data resulting in 

costs for State agencies to follow-up on 

rejected wage reports. 

When considering additional data 

elements, one commenter cautioned that 

the Department should examine 

whether certain data are already being 

provided in some other format (e.g., new 

hire reporting) such that requiring as 

part of quarterly wage records could 

create duplicative reporting 

requirements. 

Two commenters expressed concerns 

that more onerous reporting 

requirements would decrease timely 

filing compliance that could make it 

more difficult to set up timely and 

accurate initial monetary 

determinations, which could lead to an 

increase in improper payments. 

One commenter asked for clarification 

regarding whether new data that might 

be added to wage record reports would 

be governed by different confidentiality 

standards (other than 20 CFR part 603). 

Another commenter urged the 

Department to include all impacted 

stakeholders in the review of the costs 

and benefits of enhancing wage records. 

Similarly, one commenter encouraged 

the Department to seek employer input 

on any changes to the wage records 

process and to add employers to the list 

of stakeholders with which the 

Secretary is required to consult 

included in § 652.302(b). 

Department Response: The language 

in the preamble of the NPRM with 

regard to the potential for adding data 

elements to wage records simply 

signaled the Department’s intent to 

continue exploration of adding new data 

elements to wage records to support 

improved labor market information. It 

acknowledged the need for continued 

work with the Workforce Information 

Advisory Council and consultation with 

the full range of stakeholders. There also 

was an acknowledgement that to 

implement a requirement for new data 

elements would require legislation. 

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56270 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

There is no regulatory text on this issue; 

therefore, a change is not necessary. 

Section 652.303 How do the 

requirements of part 603 of this chapter 

apply to wage records? 

The Department received only 

supportive comments on this section. 

No changes were made to the regulatory 

text in this section. 

O. Part 653—Services of the WagnerPeyser Act Employment Service 

In subparts B and F, the Department 

is implementing the WIOA title III 

amendments to the Wagner-Peyser Act, 

as well as streamlining and updating 

certain sections to eliminate duplicative 

and obsolete provisions. The 

Department is also updating the 

regulations to maintain consistency 

with the Judge Richey Court Order 

(‘‘Richey Order’’), NAACP v. Brennan, 

1974 WL 229, at *7, as it pertains to 

services to migrant and seasonal 

farmworkers. 

1. Subpart B—Services for Migrant and 

Seasonal Farmworkers 

Section 653.102 Job Information 

The Department made several changes 

to § 653.102, including a requirement 

that State Workforce Agencies (SWAs) 

make job order information conspicuous 

and available to migrant and seasonal 

farmworkers (MSFWs) ‘‘. . . by all 

reasonable means’’ rather than ‘‘in all 

local offices’’ to reflect the obligation of 

State agencies to contact MSFWs who 

are not being reached by the normal 

intake activities including at their 

working, living, or gathering areas to 

explain the services available at the 

local one-stop center. 

Comments: One commenter suggested 

the Department add a bulleted list to 

provide clarification on what is meant 

by ‘‘all reasonable means.’’ 

Department Response: In order to 

maintain flexibility for the Department 

and SWAs to continue to serve MSFWs, 

the Department will provide guidance 

on what is meant by making job order 

information conspicuous and available 

by ‘‘all reasonable means.’’ No changes 

were made to the regulatory text in 

response to this comment. 

Section 653.103 Process for Migrant 

and Seasonal Farmworkers To 

Participate in Workforce Development 

Activities 

Comments: One commenter asked for 

clarification regarding the § 653.103(b) 

requirement for SWAs to ensure MSFWs 

who are English Language Learners 

(ELLs) receive, free of charge, language 

assistance necessary to afford them 

meaningful access to the programs, 

services, and information offered by 

one-stop centers. Specifically, this 

commenter asked whether this would 

require access to interpreters or that an 

interpretive language phone line should 

be made available. 

Department Response: SWAs must 

satisfy this requirement by making 

interpretive language phone lines 

available and free of charge to the 

individual who needs or requests such 

services. See Executive Order 13166 

(‘‘Improving Access to Services for 

Persons with Limited English 

Proficiency’’) and TEGL No. 26–02 

(‘‘Publication of Revised Guidance 

Regarding the Title VI Prohibition 

Against National Origin Discrimination 

Affecting Limited English Proficient 

(LEP) Persons’’) for further guidance. 

Section 653.107 Outreach and 

Agricultural Outreach Plan 

Comments: One commenter urged the 

Department to ensure all State Monitor 

Advocate (SMA) and outreach staff fulltime equivalent (FTE) efforts are 

exclusively dedicated to MSFW services 

as detailed in the Agricultural Outreach 

Plan (AOP). To ensure MSFWs receive 

dedicated staff effort and the 

corresponding benefits, this commenter 

suggested requiring States to track 

personnel time via payroll timesheets 

and report that time to the Department 

to compare actual MSFW time with the 

FTE specified in the AOP. 

Department Response: The 

regulations at § 653.108(d) provide that 

the SMA must work full-time on 

monitor advocate functions. It further 

requires that any State that proposes 

less than full-time staff dedication, 

demonstrate to its Regional 

Administrator that the SMA function 

can be effectively fulfilled with parttime staffing. As such, § 653.108(a) 

explains ‘‘The State Administrator has 

overall responsibility for State 

Workforce Agency self-monitoring.’’ 

Such regulations are meant to ensure 

the SMA is devoted to all appropriate 

activities on a full-time basis. 

Furthermore, the regulations at 

§ 653.107(a)(4) require that the 20 States 

with the highest estimated year-round 

MSFW activity to assign full-time, yearround staff to conduct outreach duties. 

The assignment of staff must be made in 

accordance with State merit staff 

requirements. The Secretary will 

identify the 20 States with the highest 

estimated year-round MSFW activity in 

guidance. These same regulations 

require the remainder of the States to 

hire year-round part-time outreach staff 

and, during periods of the highest 

MSFW activity, to hire full-time 

outreach staff. The Department does not 

deem it necessary for a SWA to track 

dedicated MSFW personnel time via 

payroll timesheets and report that time 

to the Department. In light of the State 

Administrator’s requirement for selfmonitoring, however, if an individual 

knows the State Administrator is not 

requiring these provisions, and a formal 

variance has not been granted for SMA 

part-time status, the individual must 

inform the Regional Administrator and 

the Regional Monitor Advocate (RMA) 

for appropriate action. 

Furthermore, the provision of 

employment and training services to 

MSFWs is the responsibility of the SWA 

through its local one-stop centers, and is 

not exclusively the responsibility of the 

SMA or the outreach workers. This is 

made explicit through the mandates of 

the Richey Order, where it states, ‘‘The 

Federal and State monitoring system 

reviews on a continuous basis the 

services provided to MSFWs, as well as 

the benefits and protections to MSFWs, 

the functioning of the Complaint 

System, and the compliance of State ES 

offices with all applicable laws, 

regulations, and directives.’’ 

Section 653.107(a) State Workforce 

Agency Outreach Responsibilities 

Comments: Several commenters 

supported the incorporation of the 

Richey Order language to ‘‘employ an 

adequate number of outreach workers’’ 

into § 653.107(a)(1). Although the 

language in proposed § 653.107(a)(1) 

and (4) articulates an expectation for the 

SWA to assign outreach staff, other 

commenters expressed concern that the 

language does not provide a threshold, 

which these commenters explain could 

allow SWAs the ability to reduce 

staffing levels below one MSFW 

outreach FTE per significant MSFW 

office due to reduced availability of 

resources. For this reason, the 

commenters requested the Department 

provide clarification on what is meant 

by the term ‘‘adequate.’’ 

Department Response: The 

Department interprets the term, 

‘‘adequate’’ to mean a sufficient number 

of staff who must locate and contact 

MSFWs who are not being reached by 

the normal intake activities conducted 

by the ES offices. The Department does 

not intend the term ‘‘adequate’’ to mean 

that a SWA should reduce the number 

of outreach workers hired—if anything, 

a SWA may need to bring more outreach 

workers on board to meet the needs of 

MSFWs in the State or work 

collaboratively with partners (pursuant 

to collaborative agreements) to ensure 

satisfactory outreach activities are 

satisfied. The Department acknowledges 

that each State allocates Wagner-Peyser 

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Act funds in accordance with its 

respective needs in serving MSFWs. No 

change was made to regulatory text in 

response to these comments. 

Comments: One commenter asked 

whether the provision to hire an 

adequate number of outreach workers 

means that all States, no matter what 

their MSFW population, must have 

outreach workers. This commenter 

asserted that this would be difficult in 

a State where MSFW activity is low and 

concentrated for a short duration of time 

in one area of the State, but then is 

spread out in isolated remote areas far 

from each other. Stating that interns 

make good outreach workers, this 

commenter asked if interns could meet 

the criteria for hiring adequate outreach 

workers. 

Another commenter requested 

clarification regarding appropriate 

funding for year-round part-time staff 

and specifically whether Wagner-Peyser 

Act funds would pay for it under career 

services. This commenter also asked 

that the Department allow non-top 20 

States to use discretion as to what times 

of year in their regions would be 

appropriate to hire outreach workers, if 

at all. 

Department Response: All States 

(significant and non-significant) are 

required to hire outreach workers to 

locate and contact MSFWs who are not 

being reached by the normal intake 

activities conducted by the ES offices. 

Each non-significant State must 

determine, through fact-based research, 

which time of year hosts the peak 

number of MSFWs, and the State must 

hire full-time outreach staff during such 

periods. Wagner-Peyser Act funds must 

be used to hire such outreach workers. 

Correspondingly, the Department notes 

§ 653.107(a)(3), outlines the provisions 

for hiring outreach workers. Under these 

provisions, the SWAs must seek to hire 

qualified outreach workers through 

merit system procedures. Because 

interns are almost never hired according 

to merit system procedures, hiring 

interns would generally not meet the 

criteria of hiring adequate outreach 

workers. 

Comments: One commenter 

recommended revising the first sentence 

of § 653.107(a)(1) to read, ‘‘Each State 

agency must employ an adequate 

number of outreach workers to conduct 

MSFW outreach in their service area 

local ES offices that serve a significant 

number of MSFWs.’’ This commenter 

reasoned the Richey Order mandated 

State agencies employ an adequate 

number of staff and assign them to ES 

offices that serve a significant number of 

MSFW workers. 

Department Response: The 

Department has determined the 

language at § 653.107(a)(1) requiring 

each SWA to employ an adequate 

number of outreach workers to conduct 

outreach in its service areas is sufficient 

and does not need further clarification. 

As required in the Richey Order, it is 

the Department’s responsibility to 

deliver to MSFWs on a nondiscriminatory basis all services, 

benefits, and protections authorized by 

law and required by Department 

regulations, to extend coverage of local 

job order information to rural areas, and 

to provide MSFWs with assistance to 

enable them to use such information on 

a non-discriminatory basis. 

Comments: Numerous commenters 

expressed support for the § 653.107(a)(1) 

language that SWA Administrators must 

ensure SMAs and outreach workers 

coordinate their outreach efforts with 

WIOA sec. 167 (NFJP) grantees, public 

and private community service 

agencies, and MSFW groups. One of 

these commenters asserted that 

currently coordination is inconsistent 

and varies widely. 

Department Response: The 

Department agrees that outreach 

workers’ coordination with NFJP 

grantees is essential and that 

requirement is maintained in 

§ 653.107(a)(1). The Department has also 

changed the word ‘‘should’’ to ‘‘must’’ 

in § 653.107(a)(2)(i) and (ii), to clarify 

that these aspects of SWAs’ outreach 

efforts are required. 

Comments: One commenter noted the 

text at proposed § 653.107(a)(3) 

appeared to be missing part of the last 

sentence (paragraph (a)(3)(iii)) because 

it dropped off with the word ‘‘and’’ 

following paragraphs (a)(3)(i) and (ii). 

This commenter asked if the intent was 

to remove the optional qualification of 

being racially or ethnically 

representative of the MSFWs in the 

service area and recommended that the 

Department maintain the ‘‘and/or’’ in 

the current regulatory language so that 

an outreach worker does not have to be 

both from an MSFW background and 

bilingual. 

Department Response: Text in 

§ 653.107(a)(3)(iii) was accidentally 

omitted from the NPRM. The text 

should read, ‘‘Who are racially or 

ethnically representative of the MSFWs 

in the service area.’’ The Department 

has included this language (which is 

taken verbatim from the existing 

regulation and has not been altered) in 

the Final Rule. Additionally, the 

Department concurs with the 

commenters’ recommendation to 

maintain ‘‘and/or’’ to allow for hiring 

outreach workers who may have one or 

more of the required characteristics but 

are not required to have all three. The 

regulatory text reflects these changes. 

Comments: One commenter stated 

proposed § 653.107(a)(4) would 

strengthen the obligation of SWAs to 

hire dedicated MSFW outreach staff in 

part by eliminating the ability of a 

Regional Administrator to permit a 

SWA to deviate from this outreachstaffing obligation. In contrast, a 

different commenter objected to the 

proposed changes in this provision, 

stating States have limited resources 

and hiring outreach workers is no 

guarantee the State will achieve the goal 

discussed in the preamble to ‘‘ensure 

that States have a means to contact 

MSFWs who are not being reached by 

the normal intake activities conducted 

by the local ES offices.’’ Because States 

are required to submit outreach plans 

annually, this commenter suggested that 

it should be sufficient to meet the intent 

of WIOA if the State submits an 

acceptable plan for providing the 

needed services given its particular 

circumstances and conditions, without 

the need to hire additional workers for 

this purpose. 

Department Response: Section 

653.107(a)(4) states that a SWA may not 

need to hire additional outreach 

workers if it is already meeting the 

needs of MSFWs in the State. 

Additionally, the Department does not 

consider the AOP to ‘‘be sufficient to 

meet the intent of WIOA.’’ As is 

described at § 653.107(d)(2)(iii), the 

AOP requires a SWA to, ‘‘Describe the 

State Workforce Agency’s proposed 

outreach activities including strategies 

on how to contact MSFWs who are not 

being reached by the normal intake 

activities conducted by the ES offices’’ 

and—as stated at § 653.107(d)(2)(iv)—to, 

‘‘[d]escribe the activities planned for 

providing the full range of employment 

and training services to the agricultural 

community, both MSFWs and 

agricultural employers, through the onestop centers.’’ Such activities are 

anticipated activities/plans. The 

mechanism in place to ensure a State is 

meeting its outreach goals is selfmonitoring and periodic reviews 

conducted by State, Regional, and the 

National Monitor Advocate, as 

discussed in § 653.108. 

Section 653.107(a)(5) provides a 

requirement that a SWA must publicize 

the availability of ES ‘‘through such 

means as newspaper and electronic 

media publicity,’’ and one commenter 

recommended the Department add 

‘‘social media’’ as another way to 

publicize because it is the widest 

possible method to distribute 

information. Another commenter asked 

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whether it could use Wagner-Peyser Act 

funds to publicize the availability of ES. 

Department Response: The 

Department considers social media to be 

included in electronic media. The 

Department plans to issue guidance on 

publicizing employment services and 

appropriate funding sources. 

Comments: Regarding proposed 

§ 653.107(a)(3), one commenter 

recommended that outreach staff 

qualifications include bilingual staff to 

serve monolingual farmworkers, staff to 

concentrate in rural agricultural areas, 

and to carry additional marketing/

promotional materials to attract 

farmworkers to the job centers. 

Department Response: The 

Department notes that § 653.107(a)(3) 

requires SWAs to hire and assign staff 

through merit system procedures, who 

are either: from MSFW backgrounds 

and/or speak a language common among 

MSFWs in the State and/or are racially 

or ethnically representative of the 

MSFWs in the service area. 

Additionally, § 653.107(a)(4) states, ‘‘All 

outreach staff must be multilingual if 

warranted by the characteristics of the 

MSFW population in the State, and 

must spend a majority of their time in 

the field.’’ The Department also notes it 

will offer suggestions for outreach 

worker materials to provide MSFWs via 

technical assistance. No changes have 

been made in regulatory text in response 

to this comment. 

Comments: In § 653.107(a)(4), 

commenters recommended the 

Department implement a minimum 

threshold of at least 50 percent MSFW 

outreach staff total hours that they must 

spend at places where MSFWs live, 

work, and congregate (outside of the 

outreach staff’s local office). Stating that 

this is particularly important in the top 

20 States with the highest estimated 

year-round MSFW activity, these 

commenters reasoned that due to 

strained resources, local managers 

increasingly rely on MSFW outreach 

staff to backfill for other positions that 

may reduce MSFW outreach staff’s 

ability to reach MSFWs effectively. 

Department Response: The 

Department notes the requirement at 

§ 653.107(a)(4) whereby, ‘‘The 20 States 

with the highest estimated year-round 

MSFW activity, as identified in 

guidance issued by the Secretary, must 

assign, in accordance with State merit 

staff requirements, full-time, year-round 

staff to conduct outreach duties.’’ 

Outreach duties mean those duties 

identified at § 653.107(b) and include 

traveling to locations where MSFWs 

congregate, as well as conducting 

follow-up activities. This means 

outreach workers will need to conduct 

outreach activities at the areas where 

MSFWs live, work, and congregate, as 

well as from the local ES office. When 

outreach workers are hired as full-time, 

year-round staff, they must dedicate all 

such time to outreach activities 

described at § 653.107(b). Outreach 

workers in States which are not 

classified as the top 20 significant 

States, who are hired as year round parttime outreach workers, may dedicate 

part of their time to other activities as 

required by the ES office so long as they 

are satisfying their outreach activities 

pursuant to § 653.107(b) on a part-time 

basis. No changes were made to 

regulatory text in response to these 

comments. 

Section 653.107(b) Outreach Worker’s 

Responsibilities 

Comments: Many commenters 

expressed support for the inclusion of 

training on sexual harassment in 

§ 653.107(b)(7). These commenters also 

suggested the Department consider 

expanding this provision to include 

similar language about human sexual 

coercion, assault, and human 

trafficking. One commenter 

recommended the Department include a 

provision requiring outreach workers 

provide MSFWs affected by sexual 

harassment with information about the 

full range of services available to them 

in the community, including sexual 

assault services, the U.S. Equal 

Employment Opportunity Commission 

(EEOC), law enforcement, and legal 

services. This commenter also suggested 

the regulatory text require outreach 

workers who become aware of possible 

sexual harassment to refer the 

information to the EEOC or other 

appropriate enforcement agency. 

Department Response: The 

Department agrees that in addition to 

training outreach workers on how to 

identify and refer possible incidents of 

sexual harassment, training on similar 

issues such as sexual coercion, assault, 

and human trafficking is also key in 

helping to connect victims with 

appropriate resources and support 

networks. The Department has added 

such language to the regulatory text at 

§ 653.107(b)(7). Regarding the 

suggestion for the Department to require 

outreach workers who become aware of 

possible violations to refer the 

information to the appropriate 

enforcement agencies, the Department 

notes that outreach workers’ referral 

responsibilities are discussed at 

§ 653.107(b)(6). 

Comments: Two commenters objected 

to the NPRM’s deletion of the 

requirement that ‘‘significant MSFW 

local offices should conduct especially 

vigorous outreach in their service 

areas,’’ expressing concern that without 

the word ‘‘vigorous’’ some State agency 

employees might interpret this as not 

being a priority or a requirement. 

Department Response: The 

Department’s intention is not to signal 

a reduction in the required intensity of 

outreach activities because all outreach 

efforts must be vigorous. However, 

because commenters suggest the 

omission could be interpreted to make 

such a statement, the Department has 

decided to include the paragraph in the 

Final Rule text at § 653.107(b)(11). 

Comments: One commenter suggested 

the requirement that outreach workers 

must explain to MSFWs information on 

other organizations serving MSFWs in 

their area (§ 653.107(b)(1)(iii)), and the 

regulatory text should include 

‘‘information on other organizations 

serving MSFWs in their intended area of 

employment or permanent home.’’ 

Department Response: The 

Department agrees that such 

information should be provided when 

requested. Such information may be 

provided as a follow-up activity with an 

MSFW who has requested it. No change 

was made to the regulatory text in 

response to this comment. 

Comments: One commenter stated the 

proposed § 653.107(b)(2) prohibition on 

outreach workers entering an 

employer’s property or work area 

without permission of the employer, 

owner, or farm labor contractor should 

be reviewed. The commenter explained 

that outreach workers can enter 

workers’ living quarters if they are doing 

an inspection for H–2A employers as 

part of the field inspection prior to 50 

percent of the contract with the 

employer. 

Department Response: The 

Department notes that SWA staff may 

enter MSFW working and housing areas 

during a field check pursuant to 

§ 653.503. Furthermore, § 653.503(a) 

requires the SWA to notify an employer 

in writing of such field checks. 

Comments: Also related to outreach 

worker access to employer sites, one 

commenter recommended the 

Department revise § 653.107(b)(2) to 

secure access rights of SWA outreach 

workers and to provide for a reasonable 

right of access for nonprofit organization 

outreach workers at employer-owned or 

employer-controlled housing. This 

commenter explained that the 

limitations on workers’ right of access to 

conduct outreach proposed in the 

NPRM are more onerous than the 1980 

regulations because the proposed 

language would expand the limitation 

from entering ‘‘work areas’’ to ‘‘an 

employer’s property,’’ which this 

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commenter stated would commonly 

include employer-controlled MSFW 

housing. The commenter concluded the 

Department offered no rationale for this 

substantial revision of the outreach 

worker access regulation in the NPRM, 

explaining that entry by outreach 

personnel onto employer property that 

is not a work area, such as MSFW 

housing and gathering areas, does not 

implicate the considerations that justify 

obtaining permission to enter work 

areas. The commenter proposed several 

reasons to support the need for 

expanded outreach worker right of 

access, including the following: 

• Farmworkers in employercontrolled housing are uniquely 

vulnerable to exploitation and abuse. 

• The law is unclear on the right of 

access by service providers 

• Employers impede outreach 

workers’ access to MSFWs, including 

via threats of violence, threats of arrest 

and prosecution and arrest. 

• Ensuring nonprofit health, 

education, social, and legal service 

providers the right of access to MSFWs 

would directly further the central 

purposes of the Wagner-Peyser Act and 

WIOA. 

In addition, based on the 

Department’s justification of requiring 

‘‘permission of the employer, owner, or 

farm labor contractor,’’ the commenter 

suggested that the Department should 

add the phrase ‘‘as applicable’’ after the 

first use of the word ‘‘without’’ in 

§ 653.107(b)(2). Incorporating all of its 

comments discussed immediately 

above, the commenter recommended 

specific language for § 653.107(b)(2), 

which it asserted appropriately balances 

the rights and responsibilities of 

employers, property owners, farm labor 

contractors, and SWAs. 

Department Response: The 

Department notes that SWA staff may 

access MSFWs at their working and 

living areas through field checks and 

site visits. However, the Department has 

determined it is beyond the scope of 

this regulation to secure ‘‘reasonable’’ 

access rights for nonprofit organization 

outreach workers to enter employerowned or employer-controlled housing. 

The Department additionally notes its 

intention was not to further limit 

outreach worker access to MSFWs; this 

was unintended. The Department has 

changed § 653.107(b)(2) to use the 

original language as included in the 

existing regulation at 20 CFR 

653.107(j)(1)(v), except that the word 

‘‘shall’’ is replaced with ‘‘must’’ 

throughout. 

Comments: A commenter also urged 

the Department to clarify that, if a parcel 

of land or property serves as both a 

worksite/work area and housing for 

MSFWs, outreach personnel do not 

need to obtain permission from workers 

to enter the housing portion of such a 

parcel or property. 

Department Response: Section 

653.107(b)(2) requires outreach workers 

to obtain permission from workers 

before entering their living area and that 

they must comply with appropriate 

State laws regarding access. 

Comments: In response to proposed 

§ 653.107(b)(8), one commenter 

recommended the Department allow for 

MSFW outreach records to be 

maintained or reproduced by the State’s 

official data collection system to avoid 

duplication of data entry. 

Department Response: The 

Department has determined that State 

agencies may maintain and reproduce 

outreach records as they deem 

appropriate and in accordance with 

relevant records retention laws, since 

such laws vary by State. 

Section 653.107(c) ES Office Outreach 

Responsibilities 

Comments: One commenter 

recommended the Department exempt 

non-significant ES offices from the 

requirement to file with the SMA a 

monthly summary report of outreach 

efforts because they do not normally 

conduct outreach and the requirement 

would impose an unnecessary burden 

on those offices. Another commenter 

requested clarification on § 653.107(c) 

regarding whether all States must 

establish outreach programs, or that 

only those top 20 States with significant 

MSFW populations establish an 

outreach program and their local ES 

office managers must report on outreach 

activities to the SMA. 

Department Response: The 

Department will not provide an 

exemption for non-significant ES offices 

from submitting the monthly summary 

report because it is important for the 

SMA to know what efforts all ES offices 

are making to locate and contact 

MSFWs. However, the Department notes 

that summary reports must be submitted 

for months when outreach is conducted. 

The Department concluded that 

maintaining this requirement as 

proposed will not impose an 

unnecessary burden on offices any more 

than what was already required at 20 

CFR 653.107(n). 

Section 653.107(d) State Agricultural 

Outreach Plan (AOP) 

Comments: Several commenters urged 

the Department to incorporate language 

requiring SWAs consult with National 

Farmworker Jobs Program (NFJP) 

grantees or give NFJP grantees the 

opportunity to contribute to the AOP. 

One of these commenters stated that 

because these plans are far more 

important now, they should be treated 

with that significance. A commenter 

stated that the NFJP grantee community 

was required to review and comment on 

these plans under prior legislation. 

Department Response: The 

Department concurs with commenters 

that SWAs must consult NFJP grantees 

and that the grantees have the 

opportunity to contribute to AOPs. The 

Department has changed paragraph 

(d)(3) to incorporate the language in the 

existing regulation at 20 CFR 653.107(d) 

back into the Final Rule. The 

Department made nonsubstantive 

updating changes to that language to 

make it consistent with the Final Rule. 

The Department also replaced the words 

‘‘Regional Administrator’’ with ‘‘the 

Department’’ to be consistent with the 

new State Plan submission process 

described in 20 CFR part 676 (see Joint 

WIOA Final Rule). AOPs will now be 

submitted to the Department through a 

portal, along with the State Plans. 

Section 653.108 State Workforce 

Agency and State Monitor Advocate 

Responsibilities 

Comments: Two commenters 

expressed support for the removal of the 

requirement for SMAs to work in the 

State central office. 

One commenter sought clarification 

on the § 653.108(g)(1) requirement 

whereby the SMA must conduct an 

‘‘ongoing review’’ of the delivery of 

services and protections afforded by ES 

regulations to MSFWs by the SWA and 

local ES offices. Further, this 

commenter asked whether this 

requirement would apply to every State 

or to the top 20 designated States and 

whether the SMA must review each 

local ES office. Asking what ‘‘ongoing 

review’’ would specifically require, this 

commenter urged the Department to 

clarify which local offices must be 

reviewed annually, biannually, or less 

frequently. 

Department Response: All SMAs are 

required to conduct the duties set forth 

in § 653.108—which apply to SMAs in 

both significant and non-significant 

States. This includes reviewing the data 

and reports submitted by local ES 

offices as they are submitted to the 

SWA. The Department further notes 

§ 653.108(g)(3), which requires that all 

SWAs, ‘‘Ensure all significant MSFW 

one-stop centers not reviewed onsite by 

Federal staff, are reviewed at least once 

per year by State staff.’’ Therefore, all 

significant offices must be reviewed at 

least one time per year if they are not 

reviewed by Federal staff. 

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Comments: One commenter suggested 

the Department revise § 653.108(i) to 

require local ES office managers 

transmit copies of the entire Complaint 

System log, rather than transmitting 

only copies of logs of MSFW complaints 

to be consistent with § 658.410 and 

because this information is required for 

reporting. 

Department Response: The 

Department supports the suggestion and 

has revised the regulatory text at 

§ 653.108(i) to require local ES office 

managers to transmit copies of the entire 

Complaint System log as required in 

§ 658.140. Such a change will maintain 

consistency, as proposed by the 

commenter. 

Comments: Regarding proposed 

§ 653.108(k) and (l), several commenters 

expressed support for strengthening of 

the relationship between SMAs and 

NJFP grantees and coordinating their 

service delivery. Some commenters 

suggested the Department provide 

guidelines for the Memorandum of 

Understanding (MOU), as well as 

additional guidance and training for 

SMAs and NFJP grantees on their 

respective relationships, roles, and 

responsibilities. One commenter 

recommended the creation of an 

evaluation tool or feedback mechanism 

for NFJP grantees and the SMA. 

Department Response: The 

Department will issue guidance for the 

Memorandum of Understanding (MOU) 

between the SMA and NFJP grantees 

and additional guidance and training for 

the SMA and NFJP grantees on their 

respective relationships, roles, and 

responsibilities. 

Additionally, paragraph (1) has been 

changed to clarify the requirement to 

establish an MOU. It now makes clear 

that an MOU must be established 

between the SMA and the NFJP 

grantees, and the SMA may establish an 

MOU with the other organizations 

serving farmworkers. 

Comments: Proposed § 653.108(s) 

required that the SMA prepare an 

Annual Summary, and some 

commenters suggested the Department 

require the summary be provided to 

NFJP grantees along with any servicerelated findings because the guidelines 

for the Annual Summary includes 

instances where the SMA would be 

summarizing and commenting on NFJP 

service delivery both explicitly 

(§ 653.108(s)(7)) and implicitly where 

NFJP is part of the one-stop center and 

the broader ES system. Another 

commenter similarly recommended the 

Department require the SMA to make 

the Annual Summary available to 

grantees. The commenter also suggested 

the Department require the SMA to 

provide grantees a template of the report 

in advance to ensure grantees collect 

pertinent information throughout the 

program year. Another commenter 

asked if the Annual Summary for the 

MSFW program could be included in 

the annual performance report required 

under WIOA sec. 116(d). 

Department Response: While the 

Department fully supports increasing 

collaboration between the SMA and the 

NFJP grantees, it has determined that 

sharing the Annual Summary with the 

NFJP grantee is not required. Because 

some information contained in the 

Annual Summary may be for internal 

(State/Federal) government use only, the 

Department does not deem it in the best 

interest of the SWA to share such 

information. Regarding the suggestion 

for the Department to require the SMA 

to provide grantees a template of the 

Annual Summary in advance to ensure 

grantees collect pertinent information 

throughout the program year, the 

Department notes that such data 

collection may vary from State to State 

and may depend upon each State’s 

MOU with the NFJP grantee. Therefore, 

the Department recommends each SMA 

come to an agreement with the NFJP 

grantee (through the MOU) about what 

data must be shared or collected. 

Additionally, the Department has 

determined the Annual Summary 

should not be submitted through the 

annual performance report process 

pursuant to WIOA sec. 116(d) because 

§ 653.108(s) procedures will expedite 

the review process for those who need 

to analyze the reports. 

Section 653.109 Data Collection and 

Performance Accountability Measures 

Comments: A couple commenters 

recommended the Department revise the 

references to the pre-WIOA performance 

indicators. Another commenter noted 

that some of the proposed performance 

indicators in § 653.109 are not in line 

with the WIOA measures to track 

participants in unsubsidized 

employment in the second quarter after 

exit, participants in unsubsidized 

employment in the fourth quarter after 

exit, and median earnings. Therefore, 

this commenter recommended the 

Department bring those measures in line 

with WIOA to ensure consistency across 

all programs. 

Department Response: The 

Department agrees and has changed 

§ 653.109(b)(5), (6) & (7) to be consistent 

with the WIOA performance indicators 

listed in sec. 116 of the law. 

The Department has also made a 

minor edit to § 653.109(b)(9), to add 

data on ‘‘apparent violations’’ to the list 

of data the SWA must collect. This is 

consistent with the data collection that 

the SWAs already perform. 

Additionally, the Department has added 

reference to the data required to be 

collected by the Combined Plans to 

§ 653.109(d). The regulatory text already 

referenced the Unified Plans, and this 

change aligns the paragraph with the 

requirements of sec. 103 of WIOA. 

Section 653.110 Disclosure of Data 

Comments: One commenter 

recommended the Department revise 

§ 653.110 to clarify that data and records 

relating to employer participation in the 

job service are only confidential in 

limited circumstances and that these 

regulatory disclosure requirements 

preempt State laws that render the 

records and data privileged or 

confidential. This commenter raised a 

2015 court decision, Texas RioGrande 

Legal Aid, Inc., et al. v. Range (TRLA 

case), in which the Fifth Circuit found 

that current § 653.110 did not confer a 

specific right to obtain records, which 

was a rejection of the Departments of 

Labor and Justice position in the amicus 

brief the Departments filed in the case. 

Stating that the TRLA case gives the 

Department a clear road map of how it 

can remove all ambiguity from 

§ 653.110, the commenter made specific 

suggestions for revisions of the 

regulatory text. 

Department Response: Section 

653.110 (a) states, ‘‘SWAs must disclose 

to the public, on written request, in 

conformance with applicable State and 

Federal law, the data collected by SWAs 

and ES offices pursuant to § 653.109’’ 

and § 653.109(f) requires SWAs to 

‘‘(s)ubmit additional reports to the 

Department as directed.’’ These reports 

are considered records, and they, as 

well as additional reports submitted by 

the SWAs to the Department as directed 

by the Department, must be disclosed to 

the public pursuant to § 653.109. In 

order to maintain flexibility as data 

collection evolves, the Department 

declines to specify specific required 

disclosures in this regulation. 

Additionally, the regulations at 

§ 653.110(d) allow the SWAs to 

withhold from public disclosure intraagency memoranda and reports (or parts 

thereof) and memoranda and reports (or 

parts thereof) between the SWA and the 

ETA, to the extent that they contain 

statements of opinion rather than facts, 

provided the reason for withholding is 

given to the requestor in writing. The 

regulations also allow the State to 

withhold documents or parts thereof, 

which, if disclosed, would constitute an 

unwarranted invasion of personal or 

employer privacy, if the reason for 

withholding is given to the requestor in 

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writing. The Department concludes that 

records are implicitly included in 

§§ 653.109 and 653.110. 

The Department will address each of 

the commenter’s requests for revisions 

as bulleted below. 

• Include explicit language conferring 

a public right to obtain the records 

included in § 653.109. Department 

Response: The Department interprets 

the requirements for disclosure at 

§ 653.110(a) to include those reports 

required at § 653.109(f) and memoranda 

and reports referenced at § 653.110(d). 

• Revise § 653.110(a) to include all 

‘‘records’’ as well as all ‘‘data,’’ possibly 

including reference to a well-established 

definition of records such as the 

Freedom of Information Act’s definition 

at 5 U.S.C. 552a(a)(4). Department 

Response: The Department does not 

deem it necessary to revise § 653.110(a). 

• Include a right to all records related 

to employer participation in the job 

service, rather than only the data 

specifically enumerated in § 653.109. 

Alternatively, the Department could 

revise § 653.109 to include a 

requirement that State agencies retain 

the records underlying the data that 

section already requires those agencies 

to keep. Department Response: The 

Department will not make these changes 

because it would not place such 

requirements in the regulations without 

first requesting public input. 

• Add a provision in § 653.110 that 

explicitly preempts States from enacting 

laws that would categorically render 

employer records identified in § 653.109 

undisclosable as privileged and 

confidential. Department Response: The 

Department cannot make this change 

because it is outside the scope of what 

was originally proposed in the NPRM. 

• Remove the language ‘‘or are 

otherwise privileged against disclosure’’ 

in § 653.110(d) that the Department 

proposed be added in the NPRM. The 

commenter stated that a court could 

construe this language to include State 

public records acts that render employer 

records privileged, confidential, or both. 

Department Response: The Department 

finds upon further reflection that the 

additional language has caused 

confusion and is unnecessary. The 

Department strikes the phrase from the 

Final Rule. 

Section 653.111 State Workforce 

Agency Staffing Requirements 

Comments: One commenter suggested 

the requirement in proposed 

§ 653.111(b) for the State agency to hire 

sufficient numbers of qualified, 

permanent, minority staff in significant 

MSFW ES offices should apply only to 

significant MSFW States or significant 

MSFW areas. Another commenter asked 

whether this provision would require 

State job postings to include specifically 

hiring of ‘‘minorities’’ from MSFW 

backgrounds. 

Department Response: The 

Department declines to change the 

regulatory text in response to this 

comment. Paragraph (b) of § 653.111 is 

not limited to significant MSFW States 

or areas; it applies to significant MSFW 

ES offices. Even in cases where a State 

or area is not deemed significant, there 

may yet be a significant number of 

MSFWs using or located near a 

significant ES office. The Department 

seeks to ensure such MSFWs have the 

resources they need to access ES 

services and significant offices which 

hire qualified, permanent minority staff 

may help facilitate such provision of 

services 

Additionally, a SWA may utilize 

appropriate language from the Final 

Rule for the job postings. 

2. Subpart F—Agricultural Recruitment 

System for U.S. Workers 

Section 653.500 Purpose and Scope of 

Subpart 

Comments: One commenter urged the 

Department to clarify what it considered 

imprecise language in § 653.500, stating 

the proposed language left unclear 

which sections of subpart F apply to 

U.S. farmworkers who apply for 

employment under clearance orders that 

are attached to applications for foreign 

temporary agricultural orders. This 

commenter suggested the Department 

confirm if the third sentence should 

read ‘‘This subpart affects all job orders 

for workers . . .’’ rather than, ‘‘This 

section affects all job orders for 

workers,’’ which would ensure that the 

provisions of the Agricultural 

Recruitment System (ARS) apply to all 

clearance orders. 

Department Response: The 

Department changed the regulatory text 

at § 653.500 to clarify that the purpose 

described in § 653.500 applies to this 

entire subpart F versus a single section. 

To the extent that the commenter was 

expressing confusion as to how this 

subpart applies to agricultural clearance 

orders seeking temporary foreign 

workers, the Department notes that this 

subpart is about the ARS, which is a 

system used to recruit U.S. workers for 

temporary, less than year-round 

farmwork. Part 655 of this chapter 

explains the process for hiring non-U.S. 

workers for this type of work. 

Section 653.501 Requirements for 

Processing Clearance Orders 

Comments: One commenter objected 

to the continuation of the requirement 

to recruit workers in three sequential 

steps: Locally, followed by intrastate 

recruitment, then interstate recruitment, 

if needed. This commenter stated the 

sequential process is inconsistent with 

proposed § 653.102, which directs State 

agencies make job order information 

available by all reasonable means, 

including the internet, labor exchange 

systems, and one-stop centers. This 

commenter suggested it might be 

discriminatory and inconsistent with 

the Richey Order to carry out a 

successive local, intrastate, and 

interstate recruitment for temporary 

agricultural jobs while all other jobs are 

broadcast at once through every 

available means. 

Similarly, another commenter 

recommended the Department eliminate 

the ARS process because most States 

use Web-based, online job listing sites, 

which after 24 hours automatically 

upload job orders to the national level 

on two sites (US.jobs of the National 

Labor Exchange and JOBcentral). This 

commenter stated the ARS process is 

obsolete, outdated, burdensome, and 

time consuming. Further, the 

commenter suggested the ARS 

regulations need clarification if the ARS 

is to remain and recommended that, if 

retained, the ARS should be required 

only for significant MSFW States. 

Another commenter suggested the 

Department update the part 653 ARS 

language to account for technological 

advancements in labor exchange 

systems. 

Department Response: The Richey 

Order requires the Department to: (1) 

Extend coverage of local Job Bank order 

information to rural areas and provide 

MSFWs with assistance to enable them 

to use such information on a nondiscriminatory basis; (2) Review all 

interstate job orders prior to approval 

for transmission and require all State 

and Federal offices processing such 

interstate job orders to comply with 

specific requirements; and (3) Require 

each State ES agency to review and 

process all intrastate job orders in 

accordance with the procedures and 

requirements set forth in sec. I–D of the 

Order. 

Connecting employers with job 

seekers at the local level helps both 

parties, as there are fewer transportation 

and housing costs. This sequential 

process is particular for agricultural job 

orders and may not be appropriate for 

other employment sectors. Furthermore, 

agricultural work is typically rural and 

housing and transportation 

accommodations may be necessary to 

ensure the workers are able to access the 

appropriate worksite. For these reasons, 

the Department has determined job 

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orders should begin at the local level. 

Furthermore, the Department has 

determined it is required to facilitate a 

system by which job orders are cleared 

through intrastate, then interstate 

processes as required under the Richey 

Order. 

In addition, the Department also 

deems it necessary for non-significant 

MSFW States to participate in ARS for 

three primary reasons: (1) Equality of 

opportunity: employers in nonsignificant States (just as significant 

States) must have the opportunity to 

hire U.S. workers through the ES 

system; (2) Uniformity of ES services: 

ARS is one of the many services offered 

through the ES system and should be 

offered to agricultural employers and 

individuals who seek agricultural 

employment in any State, regardless of 

its designation as a significant State; and 

(3) Requirement to maintain a system of 

clearing labor between the States: sec. 

3(a) of the Wagner-Peyser Act mandates 

the Department assist SWAs in 

maintaining a system of clearing labor 

between the States which provides 

workers maximum opportunity to have 

access to agricultural jobs. 

To reconcile the need to test the local 

labor market and subsequently test the 

intrastate and interstate clearance 

systems when using the internet, the 

Department recommends ES offices 

suppress employer information. 

Suppressing employer information 

means that a job seeker will need to 

contact the ES office in order to receive 

all pertinent information regarding the 

job and the ES office then has the 

opportunity to gauge the level of interest 

in the job from U.S. job seekers. It also 

allows the ES office to provide the job 

seeker with not only the employment 

opportunity specifically sought, but also 

information on all other services and 

opportunities offered through the 

center. 

The Richey Order mandates the 

Department ‘‘require each State ES 

agency to review and process all 

intrastate job orders in accordance with 

the procedures and requirements set 

forth in section I–D of [the] Order’’ and 

to review ‘‘all interstate job orders prior 

to approval for transmission and shall 

require all State and Federal offices 

processing such interstate job orders to 

comply with the following 

requirements.’’ The Department’s stepby-step process in the regulations 

implements the mandates of the Order 

by ensuring job seekers and employers 

have access to ARS in a logical and 

organized manner. 

Lastly, the Department agrees that the 

references to ‘‘State agencies’’ would be 

better clarified by the term, ‘‘State 

Workforce Agencies’’ or ‘‘SWAs.’’ As 

such, the Department will replace the 

terms throughout the Final Rule. The 

Department has also edited 

§ 653.501(c)(1)(ii) to make the regulatory 

text consistent with 29 CFR part 38. 

Section 653.501(b) ES Office 

Responsibilities 

Comments: One commenter submitted 

two recommended revisions for the 

agricultural clearance form prescribed 

by the Department (ETA Form 790) to 

require an employer to identify and 

provide contact information of the 

grower business for each worksite 

identified in the job order and, for those 

employers who will use the job order in 

connection with a future application for 

temporary employment certification for 

H–2A, to provide contact information 

for the person(s) who will perform 

recruiting activities for the job. 

Department Response: The 

Department notes the Paperwork 

Reduction Act (PRA) provides the 

public an opportunity to submit 

comments and requests for revisions for 

the Department’s forms, including ETA 

Form 790. The PRA process should be 

used to suggest changes to a specific 

form. 

Further, the Department notes the 

ETA Form 790 is intended for the 

recruitment of domestic, U.S. workers 

and not for the recruitment of foreign 

workers. Instead, Form 9142A, H–2A 

Application for Temporary Employment 

Certification, addresses the requirement 

for employers seeking to hire foreign 

workers. The Department has 

determined the suggestion to include 

recruiter information for foreign workers 

would more appropriately be addressed 

through the PRA process for the Form 

9142A. The Department welcomes such 

comments at that time. 

Section 653.501(c) SWA 

Responsibilities 

Comments: A few commenters 

objected to the language requirement at 

proposed § 653.501(c)(1)(i) stating it 

may limit the SWA’s ability to 

effectively communicate job 

requirements (particularly with 

Management Information Systems [MIS] 

or job match systems that contain 

character limits) or may impact the look 

and format to make an announcement 

less visibly pleasing. Further, these 

commenters suggested the language in 

this section could be required on all job 

orders and that it should not be required 

on agricultural clearance orders alone. 

Department Response: The language 

in § 653.501(c)(1)(i) is substantively the 

same language required at existing 

§ 653.501(a) and (b). The only difference 

is ‘‘JS’’ is replaced with ‘‘ES.’’ Therefore, 

there should be no additional burden 

placed on State agencies from what was 

originally required. The Department 

notes the language is already included 

in the ETA Form 790; as such, a SWA 

will not need to alter its internal 

systems to accommodate new/different 

language. 

While no comments were received 

regarding § 653.501(c)(3)(i), the 

Department revised the regulatory text 

to clarify that order-holding office 

notification must be in writing and that 

email notification may be acceptable. 

This revision does not substantively 

change the notification requirement but 

it clarifies the intent of the requirement 

to make notification verifiable. This is 

consistent with the Department’s 

response to the comment received on 

§ 653.501(c)(3)(iv), described in the 

following paragraph. 

Comments: One commenter 

recommended that § 653.501(c)(3)(iv) be 

changed to require an employer to 

provide notification in writing (which 

may include email) rather than the 

proposed language that requires 

employers to provide an assurance that 

they will notify the order-holding office 

or State agency by email and telephone 

immediately upon learning that a crop 

is maturing earlier or later or other 

factors have changed the terms of 

employment. This commenter reasoned 

that allowing notification by telephone 

could result in miscommunication as 

well as difficulties for a State agency to 

confirm that an employer provided 

appropriate notice if the employer states 

it made a call to the State agency. 

Additionally, this commenter suggested 

that any changes prompted by this 

comment may result in needed changes 

to § 653.501(d)(8). 

Department Response: The 

Department notes § 653.501(c)(3)(iv) 

requires the employer to notify the 

order-holding office or SWA by 

‘‘emailing and telephoning immediately 

upon learning that a crop is maturing 

earlier or later . . . .’’ This telephonic 

requirement ensures information is 

relayed most expeditiously in case the 

recipient is not checking his/her email. 

It also ensures there is written 

correspondence to confirm such 

notification. 

As discussed earlier in § 651.10, the 

Department has decided to revise the 

definition of migrant farmworkers. 

While the Department did not receive 

any comments specifically relating to 

§ 653.501(c)(3)(vi), the Department 

received comments referring to the 

definition of migrant farmworkers who 

are ‘‘unable’’ versus ‘‘not reasonably 

able’’ to return to their permanent 

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residence within the same day 

(regarding the definitions in § 651.10). 

The Department agrees with the 

commenters that ‘‘unable’’ appears more 

restrictive than intended. The 

Department has decided to use the 

words ‘‘not reasonably able’’ to return to 

a permanent residence, rather than 

‘‘unable.’’ To align changes in § 651.10 

with § 653.501(c)(3)(vi), the Department 

revised the paragraph to use the term 

‘‘not reasonably able.’’ 

Comments: One commenter urged the 

Department to elaborate on what 

‘‘reasonable access’’ for outreach 

workers means in § 653.501(c)(3)(vii). In 

addition, this commenter recommended 

the Department modify 

§ 653.501(c)(3)(vii) allowing nonprofit 

organization outreach workers to have 

reasonable access to MSFWs to perform 

general outreach activities, to meet with 

a worker who has requested such 

meeting, and to meet with the nonprofit 

organization’s clients or customers. Two 

other commenters requested 

clarification on this provision, asking if 

the intent is for outreach staff to provide 

only outreach services to U.S. workers 

for clearance orders where a placement 

has been confirmed. These commenters 

stated such clarification would 

eliminate the SWA’s ability to conduct 

outreach to H–2A clearance orders 

where a placement has not been made. 

Department Response: The 

Department declines to define 

‘‘reasonable access’’ in the regulatory 

text, however reasonable access means 

that outreach workers must be able to 

locate, contact, and interact with 

MSFWs at their worksites, living 

quarters, and gathering areas in order to 

be able to provide MSFWs with services 

and information pursuant to the 

outreach workers’ duties outlined at 

§ 653.107. Regarding the commenter’s 

request for the Department to modify 

§ 653.501(c)(3)(vii) to allow nonprofit 

organization outreach workers 

reasonable access to MSFWs to perform 

general outreach activities, to meet with 

a worker who has requested such 

meeting, and to meet with the nonprofit 

organization’s clients or customers, the 

Department has determined it is beyond 

the scope of this regulation to secure 

‘‘reasonable’’ access rights for nonprofit 

organization outreach workers and so is 

not amending the regulation to include 

such provisions. Regarding the request 

for clarification on whether the intent of 

§ 653.501(c)(3)(vii) is for outreach staff 

to provide only outreach services to U.S. 

workers for clearance orders where a 

placement has been confirmed, the 

Department seeks to clarify the intent is 

not for outreach workers to only provide 

outreach services to U.S. workers. All 

outreach workers must follow the 

requirements set forth at § 653.107(b). 

Comments: A few commenters 

requested clarification regarding 

‘‘eligible workers,’’ in § 653.501(c)(5), 

asking if the Department intends for the 

first week wage guarantee to be 

applicable to all workers referred 

(including local workers) or only those 

workers who live beyond the local area 

of intended employment (migrant 

workers). 

Department Response: The eligible 

workers referred to in § 653.501(c)(5) are 

those identified at paragraph (d)(4): all 

referred farmworkers, farm labor 

contractors on behalf of farmworkers, or 

family heads on behalf of farmworker 

family members. 

Comments: A few commenters also 

recommended the Department modify 

the last sentence of paragraph (c)(5) to 

align with ES complaint procedures, 

which could require an immediate 

referral to the Department’s Wage and 

Hour Division (WHD). This sentence as 

proposed stated, ‘‘If an employer fails to 

comply under this section the order 

holding office may notify DOL’s Wage 

and Hour Division for possible 

enforcement.’’ 

Department Response: The proposed 

language stating the order holding office 

‘‘may’’ notify WHD was intended to 

allow the issue to be resolved at the 

local level without immediate referral to 

WHD. If the issue is not resolved at the 

local level within 5 business days, it 

must be referred to WHD for possible 

enforcement. The Department made no 

change to § 653.501(c)(5). 

Comments: One commenter urged the 

Department to clarify the employer 

liability outlined in § 653.501(c)(5) 

applies to U.S. workers who are referred 

pursuant to H–2A clearance orders. Also 

relating to this provision, one 

commenter recommended the 

Department revise the first sentence to 

remove the ‘‘at least 10 working days 

prior’’ phrase to read, ‘‘If there is a 

change to the anticipated date of need 

and the employer fails to confirm with 

the applicant-holding office or the 

order-holding office, prior to referred 

workers departure, the employer must 

pay eligible workers referred through 

the clearance system.’’ 

Department Response: Section 

653.501(c)(5) applies to any worker 

referred through the Agricultural 

Recruitment System. In response to the 

suggestion for the Department to revise 

§ 653.501(c)(5), the Department has 

determined that maintaining the 

language as proposed is the best way to 

ensure that migrant workers have ample 

notice before departing their residence 

to begin work pursuant to the clearance 

order. 

Section 653.501(d) Processing 

Clearance Orders 

Comments: One commenter stated it 

has always been instructed that the H– 

2A precertification process mirrors the 

ARS process and that § 653.501 should 

be followed when recruiting and 

referring U.S. domestic workers to H–2A 

jobs. Two other commenters similarly 

expressed concerns with this language, 

asserting that because all clearance 

orders processed by their State are H– 

2A, the statement that this section does 

not apply to foreign temporary workers 

would eliminate the first week wage 

guarantee, which applied to all ARS 

orders under WIA, including those tied 

to H–2A. These commenters also 

expressed concern that the workers’ 

rights brochure they use to comply with 

WIA rules would no longer be 

applicable to H–2A clearance orders 

and, thus, would be eliminated. 

One commenter suggested the 

Department revise the first sentence of 

§ 653.501(d) to read, ‘‘This subsection 

does not apply to clearance orders . . .’’ 

(rather than ‘‘section’’), to clarify the 

exclusion applies only to paragraph (d). 

Asserting that additional confusion is 

created by the § 653.501(c)(5) pay 

guarantee reference to § 653.501(d)(4), 

this commenter stated that the 

inconsistent use of section and 

subsection make it difficult to read the 

intent of subpart F’s various provisions. 

This commenter asserted there is no 

rationale for excluding clearance orders 

attached to H–2A orders from 

§ 653.501(d) provisions other than 

clearance order transmitting-related 

provisions at § 653.501(d)(1) and (3), 

including the nondiscrimination criteria 

(§ 653.501(d)(2)), the date-of-need 

protections (§ 653.501(d)(4), (7), and 

(9)), and the mandate to local ES offices 

to provide workers with a list of 

workers’ rights (§ 653.501(d)(11)). 

Stating the Department has a mandate to 

ensure that the employment of H–2A 

workers ‘‘will not adversely affect the 

wages and working conditions of 

workers in the U.S. similarly employed’’ 

(8 U.S.C. 1188(a)(1)(B)), this commenter 

expressed concern that these U.S. 

worker protections in the event of an 

unexpected or unannounced change in 

the date of need are vital to ensuring 

that H–2A employers follow through 

with their statutory obligation to hire 

qualified U.S. workers. 

Department Response: Only 

§ 653.501(d)(3) does not apply to 

clearance orders that are attached to 

applications for foreign temporary 

agricultural workers, pursuant to part 

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655, subpart B, as such clearance orders 

must be sent to the Chicago National 

Processing Center. The Department has 

clarified the regulatory text at 

§ 653.501(d) by removing the statement 

‘‘This section does not apply to 

clearance orders that are attached to 

applications for foreign temporary 

agricultural workers pursuant to 20 CFR 

655 subpart B.’’ from the opening 

paragraph of § 653.501(d), and inserting 

it at paragraph (d)(3), which clarifies 

that the approval process described in 

paragraph (d)(3) does not apply to 

clearance orders that are attached to 

applications for foreign temporary 

agricultural workers pursuant to 20 CFR 

part 655, subpart B, and that such 

clearance orders must be sent to the 

Chicago National Processing Center. 

The Department notes that all steps 

and requirements for processing 

clearance orders at §§ 653.500 through 

653.503 are intended for the recruitment 

of U.S. workers. However, U.S. workers 

may continue to be recruited once a job 

order becomes part of the H–2A process 

pursuant to § 655.135(d). The 

Department will issue guidance on the 

Agricultural Recruitment Process. 

Comments: In response to the 

§ 653.501(d)(1) requirement that the 

order-holding office must transmit a 

copy of the approved clearance order to 

the State agency, one commenter 

suggested the order-holding office 

should be required to transmit the 

completed clearance order to the SMA 

for approval and distribution to 

streamline the process and minimize the 

chance for errors. For similar reasons, 

this commenter also suggested the 

Department replace the § 653.501(d)(3) 

requirement for the ETA regional office 

to review and approve the order with a 

requirement for the supply State’s SMA 

to review and approve the order within 

10 working days. The commenter 

reasoned that regional offices often 

approve only to have supply States 

return the order with a denial, further 

delaying the order. 

Department Response: The 

requirement to transmit the completed 

clearance order applies to the SWA and 

it is the SWA’s decision whether the 

primary individual charged with 

processing clearance orders is the SMA 

or a different SWA employee. The 

Department has determined the 

Regional office is in an appropriate 

position to assess labor supply States 

based on the ES reports it receives from 

each State in its region. No change was 

made to regulatory text in response to 

this comment. 

Comments: A few commenters 

recommended the Department remove 

proposed § 653.501(d)(4) because it 

places burdens on the job seeker to 

contact the applicant-holding office 9 to 

5 days before the date of need to secure 

the first weeks wage guarantee and on 

the SWA to document such 

communication. One commenter 

recommended the Department revise 

this paragraph to read, ‘‘The applicantholding office should notify referred 

workers to contact the applicant-holding 

office or the order-holding office to 

verify the date of need cited prior to 

their departure.’’ This commenter stated 

this would allow for more flexibility 

due to the nature of the industry and 

would give the worker the most up-todate information on the contract prior to 

departing. 

Department Response: The 

Department has determined it cannot 

remove § 653.501(d)(4), as wage 

guarantees are a requirement under the 

Judge Richey Court Order. Further, the 

Department does not agree with the 

commenter that the paragraph should be 

revised such that the referred workers 

should contact the applicant-holding 

office or the order-holding office, 

because the applicant’s primary contact 

is with the applicant-holding office, not 

the order-holding office. The 

Department has determined it would be 

an undue burden on the job seeker to 

contact the order-holding office. The 

Department will provide additional 

guidance on this process. 

Comments: One commenter asked if 

the checklists that local ES office staff 

are required to provide farmworkers and 

applicants in their native language 

(§ 653.501(d)(6) and (d)(10)) could be 

replaced with the requirement to 

provide a copy of the clearance order 

itself. This commenter noted that it has 

encountered issues where workers hired 

on the interstate clearance orders have 

indicated they did not receive accurate 

information prior to arriving on the job 

site. The commenter asserted that 

requiring staff to provide a copy of the 

approved clearance order would help 

eliminate any confusion and 

misinterpretations. 

Department Response: The 

Department notes that some clearance 

orders may be more than 20 pages and 

if a SWA was required to supply the 

clearance order to each job seeker, it 

could overly burden the SWA. 

Consistent with the Judge Richey Court 

Order, the Department has concluded 

that notifying the job seeker that the 

clearance order is available upon 

request is sufficient, as long as referred 

job seekers obtain a full explanation of 

the terms and conditions of 

employment. 

Section 653.502 Conditional Access to 

the Agricultural Recruitment System 

Comments: One commenter expressed 

concerns that the steps and 

requirements outlined in § 653.502 

assume that employers have full 

knowledge of the ARS in order to 

submit a written request for conditional 

access to the intrastate or interstate 

clearance system. In particular, this 

commenter asserted that for employers 

to be sufficiently familiar with the 

intricacies of the ARS to submit 

advanced requests for conditional 

access would require SWAs to mount a 

massive marketing and educational 

program, which this commenter 

asserted would be a large burden. 

Department Response: SWA staff 

should be trained in the ARS process. 

When an employer seeks workers for 

agricultural work, it is incumbent upon 

the SWA to explain all available options 

to the employer, including the ARS 

process and the option for conditional 

access if applicable. The Department 

has determined this will not overly 

burden SWAs as it was originally 

required at 20 CFR 654.403. 

Section 653.503 Field Checks 

Comments: Commenters expressed 

support for the proposed changes to this 

section. However, many commenters 

expressed concerns or requested 

clarification regarding proposed 

§ 653.503. 

One commenter stated the 

requirements of § 653.503(a) are 

contradictory to the WIOA structures for 

statewide activities and that completing 

mandatory field checks would cause a 

significant reduction in the time spent 

by the SWA in meeting WIOA’s 

requirements. 

Department Response: The 

Department notes the Judge Richey 

Court Order mandated that the 

Department ensure each SWA hires staff 

to conduct field checks and determine 

whether wages, working, and housing 

conditions are as specified in job orders 

and that actual conditions and terms of 

employment do not violate State and 

Federal law. 

Comments: A few commenters 

recommended the Department remove 

the language in proposed § 653.503(a), 

stating that notifying an employer after 

a placement is made would not be 

transparent and would add unnecessary 

burden on State agency staff. Instead, 

these commenters recommended the 

Department add language on the ETA 

Form 790 or its supporting documents 

that employers interested in 

participating in the ARS should be 

informed a field check may be 

conducted if a worker is placed. 

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Department Response: The 

Department agrees with the commenter 

stating employers should be notified 

that a field check may be conducted for 

all job orders placed through ARS and 

that such notification must be 

transparent. The Department notes 

§ 653.503(a) requires the SWA to notify 

the employer in writing, that if a worker 

is placed on a clearance order, the SWA, 

through its ES offices, and/or Federal 

staff, will conduct random, 

unannounced field checks to determine 

and document whether wages, hours, 

and working and housing conditions are 

being provided as specified in the 

clearance order. 

To guarantee employers have been 

notified and have signed a document 

accepting field checks, the Department 

concurs that such notification may be 

provided through the attachment to the 

ETA Form 790. Including the 

notification in the ETA Form 790 would 

help ensure the employer has been 

notified and concurs with the 

requirement. The Department will 

propose the language be added to the 

attachment to the ETA Form 790 in the 

next Paperwork Reduction Act public 

notice for the Form. 

Comments: A commenter asked the 

Department to clarify whether the 

‘‘worker placed on a clearance order’’ in 

§ 653.503(a) should be one that would 

have been referred through the ES 

system or not. In addition, the 

commenter asked if the referenced 

clearance orders also include criteria 

clearance orders, and requested the 

Department clarify whether notification 

in writing can include email. 

Department Response: Field checks 

only pertain to placements made 

through the ARS process (pursuant to 

part 653, subpart F) and can include 

criteria and non-criteria job orders—but 

§ 653.503 specifically refers to the 

placement of U.S. workers. Regarding 

whether notification in writing can 

include email, the Department notes the 

attachment to the ETA Form 790 

includes such notification and when a 

SWA provides the form to the employer 

and the employer signs it, § 653.503(a) 

has been satisfied. Additionally, if the 

SWA so chooses, the SWA may send an 

email to the employer when a worker 

has been placed which re-emphasizes 

the possibility for a field check pursuant 

to § 653.503. 

Comments: Several commenters asked 

for clarification on § 653.503(b). One 

commenter sought clarification on the 

meaning of, ‘‘or at 100 percent of the 

worksites where less than 10 

employment service placements have 

been made.’’ Another commenter asked 

the Department to clarify if field checks 

at 100 percent of jobsites are required 

for clearance orders that have fewer 

than 10 placements for each order or if 

the entire State agency has made fewer 

than 10 placements on clearance orders 

during the quarter. If the field checks at 

100 percent of jobsites is still required 

for clearance orders with fewer than 10 

placements, this commenter asked if the 

25 percent minimum still would apply 

overall. Another commenter 

recommended the Department revise 

§ 653.503(b) to require field checks on 

‘‘25 percent of all agricultural worksites 

where U.S. placements have been 

made,’’ stating the language as proposed 

would burden States that have a low or 

no placement rate with conducting field 

checks of all employers participating in 

the H–2A program if the expectation is 

to include visits to employers where no 

placement of U.S. workers has taken 

place. One commenter expressed similar 

concerns, suggesting that because the 

majority of employers in that State do 

not request more than one or two 

workers, proposed § 653.503(b) would 

require the State to visit each of the 400 

plus employers participating in the 

State’s H–2A program, which would be 

burdensome. Another commenter 

requested the Department clarify 

whether the § 653.503(b) requirement 

applies to criteria clearance orders as 

well. Reasoning that ‘‘less than 10’’ 

would include worksites with zero 

placements, this commenter further 

suggested the Department revise this 

language to States, ‘‘worksites where 

less than 10 or more than 1 placement 

was made.’’ 

Department Response: Based on the 

number of requests the Department 

received to clarify the regulatory text at 

§ 653.503(b), the Department has revised 

the regulatory text to clarify the 

requirements. Section 653.503(b) 

requires that where the SWA has made 

placements on 10 or more agricultural 

clearance orders during the quarter, the 

SWA must conduct field checks on at 

least 25 percent of the total of such 

orders. Where the SWA has made 

placements on at least one but not more 

than 9 job orders during the quarter, the 

SWA must conduct field checks on all 

such orders. For example, if a SWA has 

made placements of U.S. workers on 

100 separate job orders through ARS, 

the SWA is required to conduct field 

checks on at least 25 of those job orders 

(25 percent of 100). In another example, 

if a SWA has made placements of U.S. 

workers on 6 job orders through ARS, 

the SWA is required to conduct field 

checks on all 6 job orders (100 percent 

of the orders because there was more 

than 1 but fewer than 9 job orders). 

These field checks only pertain to 

placements made through the ARS 

process (which can include criteria and 

non-criteria job orders—but § 653.503 

specifically refers to the placement of 

U.S. workers). ‘‘Placements,’’ which is 

defined at § 651.10, means the hiring by 

a public or private employer of an 

individual referred by the ES office for 

a job or an interview, provided that the 

employment office completed all of the 

following steps: 

• Prepared a job order form prior to 

referral, except in the case of a job 

development contact on behalf of a 

specific applicant; 

• Made prior arrangements with the 

employer for the referral of an 

individual or individuals; 

• Referred an individual who had not 

been specifically designated by the 

employer, except for referrals on 

agricultural job orders for a specific 

crew leader or worker; 

• Verified from a reliable source, 

preferably the employer, that the 

individual had entered on a job; and 

• Appropriately recorded the 

placement. 

Comments: One commenter asserted 

that § 653.503(c) expands the field 

check requirements from ‘‘wages, hours, 

working, and housing conditions’’ to the 

‘‘full terms and conditions of 

employment,’’ which would lead to 

unfair and unequal enforcement 

activities because ‘‘full terms and 

conditions’’ is not defined. Further, this 

commenter stated the § 653.503(c) 

requirement that field checks must 

occur ‘‘at a time when workers are 

present’’ would lead to a reduction in 

the time allowed for training and job 

placement activities. 

Department Response: The 

Department does not interpret the 

change in language to be a substantive 

expansion from what is now required. 

The Department notes that requesting 

employers sign the ETA Form 790, 

thereby agreeing to abide by the ‘‘full 

terms and conditions’’ of employment, 

for which field checks appropriately 

ensure such compliance. Additionally, 

the Judge Richey Court Order requires 

those conducting field checks, ‘‘to 

determine whether wages, working and 

housing conditions are as specified in 

job orders and that actual conditions 

and terms of employment do not violate 

State and Federal law.’’ The Department 

further notes that SWA staff is charged 

with providing and explaining to 

MSFWs information and resources 

regarding ES services, other 

organizations serving MSFWs in the 

area, and a basic summary of 

farmworker rights, including their rights 

with respect to the terms and conditions 

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of employment. Therefore, conducting 

such outreach activities (as required at 

§ 653.107) does not constitute time away 

from training and job placement. In fact, 

such outreach is intended to extend 

training and job placement 

opportunities to MSFWs. 

Comments: A commenter stated that 

the proposed field check requirements 

in § 653.503(b) and (d) would have a 

chilling effect on employers’ decisions 

to use the ARS. This commenter also 

suggested the required field checks are 

not authorized by the controlling 

statutes and may not be constitutional. 

Department Response: The 

Department notes that field checks and 

referrals of apparent violations are now 

required under 20 CFR 653.503, and 

employers continue to use the ARS. The 

existing regulations at 20 CFR 653.503 

further require the State agency to 

document the finding and attempt 

informal resolution if through a field 

check, State agency personnel observe 

or receive information, or otherwise 

have reason to believe that conditions 

are not as stated on the job order, or that 

an employer is violating an employment 

related law. The existing regulations 

further require the SWA to follow the 

procedures of subpart F of this chapter 

if the matter has not been resolved 

within 5 working days. 

Attempting informal resolution at the 

local level is also intended to assist 

employers in remedying certain 

apparent violations that may resolve the 

issue and not necessitate the need for a 

referral to an enforcement agency. 

Further, the Department disagrees 

with the commenter’s suggestion that 

the required field checks are not 

authorized by the controlling statutes 

and that they do not provide sufficient 

certainty and regularity required to 

make ‘‘warrantless inspections 

constitutional.’’ Employers know of 

field checks, which are conducted with 

sufficient regularity due to the 

requirement at § 653.503(b) mandating 

field checks on certain percentages of 

placements depending on how many 

placements a State has made. 

Comments: A commenter raised 

concerns regarding the § 653.503(d) 

requirement to report violations of 

employment-related law suggesting it 

would (among other things) negatively 

impact the ARS process; be challenging 

to implement; and would lead to an 

increase in referrals to enforcement 

agencies. 

Department Response: The 

Department does not agree that 

§ 653.503(d) will foster hostile attitudes 

between employers and employees, 

towards SWA staff, and to the ARS in 

general. The Department has received 

information on numerous occasions 

from employers and SWA staff that the 

ability to resolve issues informally at the 

local level has been beneficial because 

it gives the employer a chance to rectify 

the situation before it is referred to an 

enforcement agency. Not all issues may 

be informally resolved and many may 

be referred to an enforcement agency, 

but the regulations generally allow for 

such informal resolution where 

appropriate. The Department has 

changed the regulatory text to clarify 

this. 

Comments: Regarding the § 653.503(e) 

provision that would allow State 

agencies to enter into agreements with 

State and Federal enforcement agencies 

to conduct field checks on behalf of 

SWA personnel, a commenter stated the 

information sharing permitted under 

this provision would lead to an 

unwillingness of both workers and 

employers to use the system, with an 

unintended consequence of an increase 

in use of Farm Labor Contractors and 

the H–2A program. Further, the 

commenter asserted § 653.503(e) is 

contradictory in that the non-SWA 

‘‘may conduct field checks instead of 

and on behalf of State agency 

personnel’’ but then provides: ‘‘The 

SWA must supplement enforcement 

agency efforts with field checks focusing 

on areas not addressed by enforcement 

agencies.’’ 

Department Response: The 

Department notes that such 

arrangements between State and Federal 

enforcement agencies are now permitted 

in the regulations at 20 CFR 653.503(b) 

and this has not, to its knowledge, 

caused an unwillingness of both 

workers and employers to use the 

system. The Department disagrees with 

the commenter and has determined that 

such arrangements are useful for SWAs 

in meeting their field check 

requirements. 

P. Part 654—Special Responsibilities of 

the Employment Service System 

1. Introduction 

In the NPRM, the Department 

proposed to revise the ETA regulations 

governing housing for farmworkers at 20 

CFR part 654, subpart E, issued under 

the authority of the 1933 Wagner-Peyser 

Act by updating outdated terminology 

and by establishing an expiration date 

for the ETA standards. This proposed 

expiration date was intended to 

transition housing currently governed 

by the ETA standards to the 

Occupational Safety and Health 

Administration (OSHA) regulations 

governing temporary labor camps for 

agricultural workers as set forth at 29 

CFR 1910.142. After considering the 

public comments received on this 

aspect of the proposal, the Department 

withdraws its proposal to establish an 

expiration date for the ETA standards in 

order to transition housing currently 

governed by the ETA standards to the 

OSHA standards, as explained in further 

detail below. 

The analysis that follows provides the 

Department’s response to public 

comments received on the proposed 

part 684 regulations. If a section is not 

addressed in the discussion below, it is 

because the public comments submitted 

in response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. Further, the 

Department received a number of 

comments on this part that were outside 

the scope of the regulation and the 

Department offers no response. Lastly, 

the Department has made a number of 

non-substantive changes to correct 

grammatical and typographical errors to 

improve the readability and conform the 

document stylistically that are not 

discussed in the analysis below. 

Several commenters expressed 

support for the proposed changes to 

subpart E of part 654 stating the housing 

standards would be strengthened, 

would increase safety and sanitation 

requirements, and would positively 

impact the overall health and quality of 

life for MSFWs. However, most 

commenters expressed concerns about 

the proposal and in many cases asked 

that the proposal be withdrawn. 

Comments: One commenter noted in 

the absence of updated OSHA 

temporary labor camp regulations, it 

opposed the phase-out and repeal of the 

ETA housing standards because, 

according to this commenter, there are 

several instances where the ETA 

regulations provide clear, unambiguous 

numerical standards, while the OSHA 

regulations offer vague guidance. This 

commenter further asserted that clearly 

delineated obligations, with specific 

numerical benchmarks, eliminate 

disputes as to the housing provider’s 

obligations. 

Additionally, commenters raised the 

following reasons for not supporting the 

proposal: (1) The high cost of making 

the necessary changes; (2) insufficient 

economic analysis conducted by the 

Department; (3) lack of availability of 

funding assistance; (4) difficulty (or 

potential impossibility) in obtaining 

permits (including zoning permits); (5) 

lack of sufficient time to transition; (6) 

the difficulty or impossibility of 

complying with OSHA’s requirement at 

29 CFR 1910.142(a)(2), which states: 

‘‘The principal camp area in which food 

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is prepared and served and where 

sleeping quarters are located shall be at 

least 500 feet from any area in which 

livestock is kept.’’; (7) DOL hearings 

conducted in the 1970s pursuant to the 

same proposal concluded there was not 

an adequate basis for the publication of 

a new final standard or for the issuance 

of a new proposal; and (8) there is no 

indication that housing under the ETA 

standards is any less adequate, safe, or 

sanitary than that under the OSHA 

standards. 

Many commenters also suggested that 

the impossibility of complying with the 

new standards would lead to a loss of 

available farmworker housing because 

existing housing would still be out of 

compliance. A few commenters stated 

the proposal would put some 

agricultural employers out of business. 

One commenter posited the NPRM did 

not provide evidence that employers, 

SWAs, Department personnel, 

employees, or anyone else is 

experiencing any ‘‘confusion’’ about 

how farmworker housing is inspected. 

This commenter also questioned 

whether the Department may legally 

expand the application of the OSHA 

housing standards it adopted under 

special procedures available for 

consensus standards to housing to 

which the OSHA standards never 

previously applied. 

One commenter suggested the 

Department allow agricultural 

employers a variance for the OSHA 

requirement at 29 CFR 1910.142(a)(2), 

asserting it is not always possible or 

desirable to have at least 500 feet 

between the livestock and food 

processing/sleeping areas. In order to 

better understand the impact of the 

proposed regulations, the Department 

solicited the following information from 

the public through the NPRM: (1) The 

approximate number of agricultural 

housing units in the United States 

provided by agricultural employers for 

farmworkers; (2) the approximate 

percentage of the total farmworker 

housing units that currently fall under 

the ETA standards set forth in 20 CFR 

part 654; and (3) the estimated cost of 

bringing those housing units from the 

ETA standards into compliance with the 

OSHA standards. The Department 

received few responses. The limited 

feedback suggested it would cost 

individual employers between $15,000 

and $300,000 to transition into the 

OSHA standards, with one commenter 

suggesting it would cost over $1 million 

for employers in one State. One 

commenter indicated that most of its 

housing inspections fell under the ETA 

standards. Several commenters also had 

specific questions for the Department. 

Department Response: The 

Department has taken the 

aforementioned comments into 

consideration and withdraws its 

proposal to establish an expiration date 

for the ETA standards in order to 

transition housing currently governed 

by the ETA standards to the OSHA 

standards governing temporary labor 

camps for agricultural workers as set 

forth at 29 CFR 1910.142. The 

Department based its decision on the 

following reasons: (1) It did not receive 

sufficient information in response to its 

solicitation for information in order to 

conduct a thorough impact analysis; (2) 

it seeks to further investigate 

information received suggesting the 

specificity and clarity provided by the 

ETA standards may be helpful when 

disputes arise; (3) it acknowledges the 

possible financial and logistical burdens 

that the OSHA standards could impose 

on some agricultural employers; and (4) 

it seeks to further study farmworker 

housing, how it could be improved, and 

the impact such improvement would 

have on stakeholders. 

While the Department withdraws its 

proposal at this time, it continues to 

interpret the regulations at part 654, 

subpart E, to be transitional until such 

time when one set of improved 

agricultural housing standards may be 

used for all farmworkers. 

The Department will continue to 

require compliance with the regulations 

at 20 CFR part 654, subpart E, for 

farmworker housing built prior to April 

3, 1980, or where prior to March 4, 

1980, a contract for the construction of 

the specific housing was signed. 

However, subsequent housing must 

comply with OSHA temporary labor 

camp standards at 29 CFR 1910.142. 

The provisions of § 654.403 have been 

relocated to 20 CFR 653.502 because 

they more directly relate to the 

governance and operation of the 

Agricultural Recruitment System (ARS) 

rather than the condition of worker 

housing. 

Section 654.408 Screening 

Comments: One commenter suggested 

the Department revise proposed screen 

requirements at § 654.408 to allow for 

an exception for housing with central 

air conditioning. 

Department Response: The 

Department does not support creating 

an exception for housing with central 

air conditioning because, in cases where 

such central air conditioning fails, it 

would be necessary for the windows to 

have proper screens in place. No change 

to the regulatory text was made in 

response to this comment. 

Section 654.414 Garbage and Other 

Refuse 

Comments: Asserting that most local 

municipalities do not provide for twice 

weekly garbage disposal services, one 

commenter recommended the 

Department revise the § 654.414(b) 

language requiring the ‘‘collection of 

refuse at least twice a week’’ to include 

‘‘or as often as possible according to 

local collection schedules.’’ 

Department Response: The ‘‘at least 

twice a week’’ requirement helps ensure 

refuse is properly disposed of and 

maintains the health and safety of the 

workers and the environment. No 

change to the regulatory text was made 

in response to this comment. 

Q. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

1. Introduction 

Part 658 sets forth systems and 

procedures for complaints, monitoring 

for compliance assessment, 

enforcement, and sanctions for 

violations of the ES regulations and 

employment-related laws, including 

discontinuation of services to employers 

and decertification of State Workforce 

Agencies (SWAs). 

The analyses that follows provides the 

Department’s response to public 

comments received on the proposed 

part 658 regulations relating to 

administrative provisions governing the 

ES program. If a section is not addressed 

in the discussion below, it is because 

the public comments submitted in 

response to the NPRM did not 

substantively address that specific 

section and no changes have been made 

to the regulatory text. The Department 

has made a number of non-substantive 

changes to correct grammatical and 

typographical errors to improve the 

readability and conform the document 

stylistically that are not discussed in the 

analysis below. Lastly, the Department 

will issue guidance on the Complaint 

System, informal resolution, referring 

complaints and apparent violations, and 

on subpart F—Discontinuation of 

Services to Employers by the 

Employment Service. 

2. Subpart E—Employment Service and 

Employment-Related Law Complaint 

System 

This subpart covers the purpose and 

scope of the Complaint System, the 

requirements pertaining to complaints 

filed at the local and State level, and the 

requirements for when a complaint rises 

to the Federal level. 

Comments: One commenter urged the 

Department to reinstate the original Job 

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Service Complaint System as 

established in 1980 as a cost-effective 

and efficient alternative to litigation for 

disputes between farmworkers and the 

employers to whom they have been 

referred through the job service 

network. Stating that the Job Service 

Complaint System, established in 

response to the Richey Order, allowed 

farmworkers to obtain quick resolution 

of complaints regarding jobs to which 

they had been referred by the ES system, 

this commenter stated that the changes 

to the Complaint System following the 

passage of the Immigration Reform and 

Control Act of 1986 resulted in the 

current Complaint System being of little 

use to aggrieved workers because they 

no longer have the opportunity to 

participate in the processing of their 

complaint. According to this 

commenter, because the deadlines set 

out in the 1980 regulations that had 

made the Complaint System so 

attractive to farmworkers have been 

removed, the Complaint System is no 

longer an attractive alternative to 

litigation. Further, this commenter 

stated that because the current 

Complaint System does not ordinarily 

result in a formal finding regarding the 

worker’s complaint, it rarely generates a 

result that provides the basis for 

discontinuation of services to an 

employer who has violated the rights of 

a farmworker referred through the ES 

system. For this reason, the commenter 

stated, employers are free to violate the 

rights of domestic farmworkers with 

impunity, knowing there is virtually no 

chance they will face the potentially 

severe sanction of discontinuation of 

employment services (with the 

corresponding lack of access to the H– 

2A program) if they ignore the 

guarantees and assurances in their 

clearance orders. 

Department Response: The 

Department clarifies that complainants 

continue to have the opportunity to 

participate in the processing of their 

complaint pursuant to § 658.411(e)(1) 

and (2), at which time the complainant 

must determine if the complaint has 

been resolved to his/her satisfaction or 

if the complaint should be elevated to 

the next level of review. Regarding 

deadlines for resolution of complaints, 

the Department notes for complaints 

submitted to the ES office, the 

Complaint System representative is 

required to send the complaint to the 

SWA for resolution or further action if 

resolution has not been achieved to the 

satisfaction of the complainant within 

15 working days after receipt of the 

complaint, or 5 working days for 

complaints filed by or on behalf of 

MSFWs. For complaints submitted or 

referred to the SWA, the SWA is 

required to make a written 

determination regarding the complaint 

if resolution at the SWA level has not 

been accomplished within 30 working 

days after the complaint was received 

by the SWA; this requirement applies 

whether the complaint was received 

directly or from an ES office under 

paragraph (d)(2)(ii) of this section. The 

Department has determined that such 

time periods are relatively short and do 

not place an undue burden on the 

complainants seeking to resolve 

complaints. For employment-related 

law complaints referred to enforcement 

agencies outside of the Department, the 

Department notes it is beyond its 

jurisdiction to impose resolution 

deadlines for such agencies. For 

employment-related law complaints 

referred to agencies within the 

Department, the Department notes that 

each agency must abide by its respective 

regulations and any change to such 

regulations would require a Notice of 

Proposed Rulemaking. Should an 

organization seek changes to any such 

regulations, the Department 

recommends submitting comments 

when such an opportunity presents 

itself. 

Regarding the commenter’s assertion 

that because the current Complaint 

System does not ordinarily result in a 

formal finding regarding the worker’s 

complaint, it rarely generates a result 

that provides the basis for 

discontinuation of services to an 

employer who has violated the rights of 

a farmworker referred through the ES, 

the Department clarifies that a formal 

finding (i.e., a final determination by an 

enforcement agency) is only one of the 

many bases for discontinuation of 

services specified at § 658.501. For 

example, § 658.501(a)(1) through (3) do 

not necessitate such a determination (as 

do many of the other provisions under 

§ 658.501). 

No change to the regulatory text was 

made in response to these comments. 

Section 658.400 Purpose and Scope of 

Subpart 

Comments: One commenter stated the 

proposed change to § 658.400(a) to 

require the acceptance of ES-related 

complaints made within 2 years of the 

occurrence (increased from 1 year) 

would have an adverse effect on SWA 

performance. Specifically, this 

commenter predicted that States would 

accrue unresolved complaints resulting 

from complainants leaving the area 

before completion of the investigation, 

in particular MSFWs. However, a 

different commenter expressed support 

for the expansion from 1 to 2 years, 

stating that expanding the period of 

time to allow an aggrieved worker to file 

a complaint would alleviate some of the 

burdens workers face when asserting 

their rights, including fear of retaliation 

from employers or discomfort in filing 

complaints against an employer while 

still employed when workers discovered 

violations before their work ends. Other 

obstacles addressed by this commenter 

were associated with the transient and 

mobile nature of the work, such as 

moving several times, lack of 

information or resources to file a 

complaint, and temporary inability to 

maintain the complaint proceedings. 

Department Response: While the 

Department acknowledges the potential 

for more complaints to remain 

unresolved for a longer period of time 

the Department has determined that the 

positive effects outweigh the fact that 

some complaints may take longer to 

resolve. It is exactly because of the 

transient nature of MSFWs that it is 

important to allow more time for 

complainants to come forward and for 

complaints to be resolved. 

The Department made no changes to 

the regulatory text, except for the 

clarifying change to add ‘‘parts 651, 652, 

653, 654, and’’ to the end of 

§ 658.400(a). This change clarifies that 

the ES complaint system accepts 

complaints involving the failure to 

comply with the ES regulations under 

parts 651, 652, 653, 654, and part 658, 

not just part 658, as was proposed. This 

is consistent with the jurisdiction of the 

complaint system under the existing 

regulations. 

Comments: One commenter stated 

that the Department’s proposed changes 

to § 658.400(c) significantly expand the 

required enforcement activities from 

‘‘wages, hours, working, and housing 

conditions’’ to all employment-related 

laws, and this commenter suggested that 

establishing SWA staff as the ultimate 

enforcement agent for dozens of diverse 

regulatory regimes is counter to WIOA’s 

goals for preparing an educated and 

skilled workforce and for meeting the 

skilled workforce needs of employers. 

Department Response: The 

Department clarifies that SWA staff 

(unless otherwise authorized) are not 

enforcement agents for employmentrelated laws. Rather, SWA staff that 

become aware of possible violations of 

employment-related laws through field 

checks or apparent violations is charged 

with attempting to resolve the issue at 

the local level (when appropriate) and, 

if not resolved, referring the case to the 

appropriate enforcement agency. 

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Section 658.410 Establishment of 

Local and State Complaint Systems. 

Comments: Stating the NPRM is 

unclear as to how staffing should be 

assigned to address complaints at the 

various levels (managers and line staff), 

some commenters recommended the 

Department allow local areas to 

determine how management and line 

staff are engaged in handling 

complaints, whether in person, on the 

phone, or other types of 

correspondence. One commenter 

expressed support for having local areas 

decide how management and line staff 

are engaged in handling complaints and 

recommended that this process be 

included in the local plan. 

Department Response: The 

Department clarifies that as long as the 

requirements at § 658.410 are met, the 

ES office manager may determine 

specific processes that are conducive for 

his/her respective office. The 

Department has determined the SWA 

must make decisions regarding the 

inclusion of this process in the local 

plan, 

Comments: One commenter asked 

whether the Department would make 

the Complaint System posters available 

to the SWAs for the § 658.410(d) 

requirement that SWAs ensure 

information pertaining to the use of the 

Complaint System is publicized with an 

ETA-approved poster in each one-stop 

center. 

Department Response: The Complaint 

System poster is accessible on the 

internet at http://wdr.doleta.gov/

directives/corr_doc.cfm?DOCN=2820. 

Comments: Two commenters 

recommended the Department either 

remove the § 658.410(m) requirement 

that the Complaint System 

representative must regularly follow up 

on complaints after they are referred to 

an enforcement agency, or only require 

SWA staff to request that an 

enforcement agency follow up once a 

resolution to the complaint has been 

achieved. These commenters reasoned 

that, although an existing requirement 

under WIA, it is ineffective despite 

technological advances because most 

enforcement agencies do not share 

outcomes of investigations with SWA 

staff due to confidentiality 

requirements.A19AU0. 

Department Response: The 

Department notes that the requirement 

for the Complaint System representative 

to follow-up on complaints submitted 

by MSFWs pursuant to § 658.410(m) is 

intended to ensure complaint 

resolution. Such follow-up helps ensure 

that complaints are progressing within 

the enforcement agency, and that 

MSFWs are updated on the status of 

their complaints. The Department 

understands that many enforcement 

agencies may be restricted from sharing 

specific information. However, the 

Department has determined that followup activities will deter the possibility 

for complaints to remain stagnant and 

instead will push them closer to 

resolution. The Department has 

determined that eliminating the 

requirement for follow-up with MSFW 

complainants would adversely affect 

complainants. The Department further 

notes that § 658.140(m) has been 

changed to remove the requirement for 

quarterly follow-up on non-MSFW 

complaints. This is consistent with 

§ 658.411(b)(1)(i). This inconsistency in 

the NPRM was an error. 

The Department added two 

paragraphs to § 658.410, paragraphs (n) 

and (o), in response to comments 

received on proposed § 658.411. Those 

comments and additions are discussed 

below. 

Section 658.411 Action on 

Complaints. 

Comments: While stating their 

understanding that the intent is for 

Boards to coordinate with all relevant 

enforcement agencies concerning 

MSFW complaints, two commenters 

recommended the Department retain the 

reference to 29 CFR part 42 (which the 

NPRM removed) because that regulation 

coordinates Wage and Hour Division 

(WHD), Occupational Safety and Health 

Administration (OSHA), and 

Department activities relating to 

MSFWs. 

Department Response: The 

Department clarifies that it does not 

intend for Workforce Development 

Boards (WDBs) to coordinate with all 

relevant enforcement agencies 

concerning MSFW complaints; rather, 

SWAs must follow the procedures 

required at § 658.411. 

The Department concurs with the 

commenters that coordination of the 

activities of the Wage and Hour Division 

(WHD), within the former Employment 

Standards Administration, OSHA, and 

the Employment and Training 

Administration (ETA) relating to 

MSFWs is essential. The intention 

behind the proposed regulations at 

§ 658.411 was to not limit coordination 

to only those agencies, but to expand it 

to all employment-related law 

enforcement agencies. No changes were 

made to the regulatory text. Still, the 

Department acknowledges the vital 

importance of Coordinated Enforcement 

at 29 CFR part 42 and will work to carry 

out such activities described at 29 CFR 

part 42 and also work to expand 

coordination with other enforcement 

agencies such as the Equal Employment 

Opportunity Commission (EEOC). 

Comments: One commenter 

recommended the Department add a 

requirement that any notices sent to the 

worker regarding their complaint must 

be sent in the worker’s native language. 

Further, this commenter urged the 

Department to require all 

correspondence with a MSFW regarding 

his/her complaint be required both by 

phone and by certified mail. In addition, 

this commenter urged the Department to 

revise the regulatory text to clarify that 

any time the regulations specify that ES 

staff, the SMA, or other person must 

communicate with a MSFW, that 

communication must be directed to the 

MSFW’s representative, if he or she has 

one. This commenter reasoned that 

because MSFWs frequently move and 

change telephone numbers, ES 

communication directed to the MSFW’s 

local address or last known telephone 

number may go unanswered. 

Department Response: The 

Department agrees with 

recommendation that all SWA 

correspondence regarding a complaint 

be sent to the worker in his/her native 

language would benefit English 

Language Learner (ELL) MSFWs and 

would be consistent with some 

requirements at part 653 of this chapter 

(i.e., assistance in understanding the 

terms and conditions of employment 

must be provided in the worker’s native 

language if requested, and the provision 

of a checklist must be provided in the 

workers native language where 

necessary). The Department has added 

paragraph (n) to the regulatory text at 

§ 658.410 requiring complaint related 

correspondence between the 

complainant and the SWA to be 

translated into the complainant’s native 

language. The Department has 

determined translating such 

correspondence will ensure the 

complainant understands the status of 

the complaint and whether he/she is 

required to take any action. 

The Department also agrees it would 

be beneficial for the ES office or the 

SWA to attempt to communicate with 

the MSFW in the manner most likely to 

reach him/her, particularly via 

telephone. The Department 

recommends that SWAs attempt 

communication via telephone with 

MSFWs; however, the requirement for 

written notification stands as the official 

means for notification because such 

correspondence helps both parties 

maintain records of the complaint 

status. 

The Department further agrees with 

the commenter that, in cases where the 

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complainant has a designated 

representative and has requested that 

the ES office or the SWA communicate 

through the representative, such 

communication will facilitate complaint 

resolution and in cases where the 

complainant is a MSFW who moves 

frequently, a representative may be the 

most convenient individual to contact. 

The Department has added a provision 

allowing a complainant to designate an 

individual to act as his/her 

representative throughout the filing and 

processing of a complaint to the 

regulatory text at § 658.410(o). 

References to the complainant’s 

representative also were added to 

paragraphs (a)(3) and (4) of § 658.411. 

These changes are consistent with the 

references to a complainant’s 

representative that were included 

throughout proposed § 658.411. The 

Department received no comments on 

these references and made no changes to 

the regulatory text. It is logical that ES 

staff and SWAs following-up on such 

complaints must be able to 

communicate with the complainant’s 

representative if he/she has so 

designated. 

Comments: One commenter expressed 

concern that the ES office may not 

necessarily be in the best position to 

determine on its own which is the most 

appropriate referral for a worker with a 

wage claim, possible Migrant and 

Seasonal Agricultural Worker Protection 

Act (AWPA) violation, or sexual 

harassment complaint. The commenter 

suggested the goal of the complaint 

process should be to facilitate MSFW’s 

access to enforcement agencies and 

other resources and not to become a 

source of delay or obstacle. This 

commenter concluded that the 

Complaint System regulations should 

provide MSFWs with the resources to 

make their own informed choices about 

whether to attempt informal resolution 

or file a complaint with an enforcement 

agency, rather than have the ES office 

decide for them. 

Department Response: The 

Department seeks to clarify that one of 

the intentions of the Complaint System 

is to facilitate the resolution of 

complaints for MSFWs and nonMSFWs. If an ES staff member or 

outreach worker receives information 

about a possible violation of the ES 

regulations or employment-related laws, 

it is incumbent upon that individual to 

assist. Such assistance may mean taking 

a formal complaint from the individual 

or, if that individual does not choose to 

submit a complaint, the staff member 

must attempt resolution through the 

apparent violation process outlined at 

§ 658.419. For concerns that staff may 

not know the most appropriate avenue 

to refer the worker, the Department 

notes the requirement for outreach 

workers to be trained pursuant to 

§ 653.107(b)(7). For MSFWs with the 

resources to make their own choice 

about whether to attempt informal 

resolution or file a complaint, the 

Department clarifies that the 

complainant has a choice to submit a 

formal complaint or allow the ES 

representative to file an apparent 

violation. Either way, the ES staff must 

assist the MSFW and attempt to resolve 

the situation; the tactics for resolving 

the situation will vary depending on the 

issue. For example, EO and CRC related 

complaints must be immediately logged 

and referred to the appropriate 

enforcement agency. 

Section 658.411(a) Filing Complaints 

Comments: Two commenters 

recommended that § 658.411(a)(3) 

provide flexibility for staff to use other 

complaint forms, rather than the 

Complaint/Referral Form prescribed or 

approved by the Department, when it is 

immediately determined that the 

complaint falls under the jurisdiction of 

another agency and such a complaint 

form is available. These commenters 

asserted that such flexibility would be 

helpful because most of the employment 

-related law complaints received by the 

SWA involve allegations of lack of 

payment of wages, which mainly fall 

under the jurisdiction of a different 

State agency. 

Department Response: In response to 

these comments, the Department has 

changed § 658.411(a)(3) to provide the 

flexibility for SWA staff to use other 

complaint forms rather than the 

Complaint/Referral Form prescribed by 

the Department so long as the alternate 

form has been approved by the 

Department. The Department included 

the requirement that the alternate form 

be one approved by the Department, to 

ensure the ability of the Department to 

track ES action on complaints or 

apparent violations accurately. If SWAs 

use forms from different agencies that 

the Department has not approved, it 

may make tracking complaint resolution 

more challenging. 

Comments: Regarding the requirement 

that ES office and SWA staff consider 

complaints submitted via letter or email, 

two commenters asserted that the 

regulatory text proposed does not 

provide sufficient understanding of the 

difference between a customer concern 

that does not require formal processing 

versus a formal complaint. While 

agreeing with allowing such flexibility 

for customers to exercise their right to 

file a complaint, these commenters 

requested guidance on what can be 

considered as a signature in an email 

and what minimum information is 

needed to establish that the SWA has 

sufficient information to initiate an 

investigation. Expressing confusion 

regarding how complaints are received 

and processed, some commenters 

requested the Department provide clear 

and consistent guidance. Another 

commenter recommended the 

Department eliminate the requirement 

for complaints to be signed to permit 

MSFW representatives to file 

complaints on behalf of MSFWs. 

Department Response: The 

Department will issue guidance 

explaining the difference between a 

customer concern and a formal 

complaint, including what can be 

considered a signature in an email, what 

minimum information is needed to 

establish an investigation, and how to 

receive and process complaints. 

The Department does not agree that 

the requirement for complaints to be 

signed by the complainant be 

eliminated as a signature is helpful in 

processing complaints and referring 

complaints to the appropriate 

enforcement agencies. However, the 

Department agrees it would be helpful 

for MSFW complainants if a 

representative could file the complaint 

on behalf the MSFW. The Department 

added language to § 658.411(a)(3) 

allowing a MSFW or his/her 

representative to sign the complaint if 

the MSFW has designated a 

representative pursuant to § 658.410(o). 

Comments: One commenter 

recommended the Department clarify 

the language with respect to taking 

complaints to specify whether an ES 

office must communicate the referral to 

the MSFW representative. 

Department Response: The 

Department clarifies that when an 

MSFW (or his/her representative) files a 

complaint at an ES office, the Complaint 

System representative must follow-up 

with the complainant or his/her 

representative if the complaint has been 

referred to an enforcement agency. 

Section 658.411(b) Complaints 

Regarding an Employment-Related Law 

Comments: A few commenters 

objected to the proposed requirement 

that local ES offices and SWAs attempt 

informal resolution of the complaint. 

These commenters asserted that 

incorporating the additional step of 

attempted informal resolution by the 

SWA staff would delay the referral and 

investigation, and would become 

burdensome on the SMA. One 

commenter stated that staff are not 

trained in how to conduct investigations 

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and this process could directly interfere 

with a possible investigation by an 

enforcement agency because it might 

cause the employer to be alert of an 

onsite investigation. Another 

commenter expressed concern that if 

informal resolution was achieved, the 

complaint would no longer be referred 

to a relevant enforcement agency, which 

would result in the agency not being 

able to document the allegation and the 

resolution within their management 

information system. 

Department Response: The 

Department clarifies that ‘‘informal 

resolution’’ means an attempt to resolve 

an issue at the local level. Such 

resolution may be conducted by the ES 

office Complaint System representative 

and is intended to expedite resolution of 

certain complaints. For example, the 

Complaint System representative can 

work with the complainant and the 

employer to resolve miscommunications 

or issues relating to wages or working 

hours, or in some cases, assist the 

employer in coming into compliance 

with certain working or housing 

conditions. Such mediation can be 

faster than referring the case to an 

enforcement agency. However, the 

Department notes that not all issues are 

appropriate for attempted informal 

resolution, such as most equal 

opportunity (EO) or forced labor-related 

complaints (e.g., human trafficking, 

sexual harassment, sexual coercion). In 

these cases, the Department has added 

clarifying language to 

§ 658.411(b)(1)(ii)(B) requiring the 

complaints be immediately logged and 

referred to the appropriate enforcement 

agency for prompt action. Certain 

complaints also are required to be 

immediately logged and referred, as 

discussed in § 658.411(c). The 

Department will issue guidance on 

informal resolution and referring 

complaints/apparent violations. 

Regarding the concern that informal 

resolution means that cases are not 

referred to enforcement agencies, the 

Department notes that not all cases need 

to be referred to an enforcement agency 

and in some cases, resolving the issues 

at the local level achieves the best 

outcome for all parties. Moreover, the 

Department requires SWAs track all 

complaints and apparent violations 

which are then reported to the 

Department. Therefore, the Department 

still receives such information for 

tracking and analysis. 

Comments: One commenter urged the 

Department to revise § 658.411(b)(1)(ii) 

to specify that any MSFWs affected by 

an apparent employment -related law 

violation should be given outreach 

materials identifying the full range of 

agencies that may be able to assist them, 

including health services and legal aid 

offices, regardless of whether the ES 

office determines that a referral is 

necessary. If the issue is not resolved 

within 5 business days, this commenter 

recommended the workers be given the 

option of a referral to appropriate 

enforcement agencies, legal aid 

organizations, or consumer advocate 

organizations, regardless of whether the 

ES office determines that such referral is 

appropriate. Expressing concerns about 

the level of discretion with respect to 

the ES office decision to refer a MSFW’s 

complaint regarding an employmentrelated law, this commenter urged the 

Department to revise 

§ 658.411(b)(1)(ii)(C) and (D) to make 

clear that referral of a complaint is 

mandatory. 

Department Response: The 

Department notes the regulatory text 

requires outreach workers to explain to 

MSFWs at their working, living or 

gathering areas the services available at 

the local one-stop center, information 

on the Complaint System and on the 

other organizations serving MSFWs in 

the area, and a basic summary of 

farmworker rights, including their rights 

with respect to the terms and conditions 

of employment. This explanation must 

be provided in a language readily 

understood by the MSFWs. The 

Department interprets the provision of 

such information to include health and 

legal aid services. Further, the 

Department recommends through 

training and guidance that outreach 

workers bring outreach material on the 

various services provided in the area for 

the MSFWs. If an ES staff member 

observes or is in receipt of information 

regarding an apparent violation, it may 

not be feasible to provide affected 

MSFWs with the pertinent information 

at that time; however, such information 

may be provided as a follow-up activity. 

The Department clarifies that referring 

employment-related law complaints to 

the appropriate enforcement agency 

after 5 days if the complaint has not 

been resolved is required if the issue is 

not resolved within 5 business days. 

The Department further seeks to clarify 

that the statement, ‘‘the representative 

must determine if the complaint should 

be referred to . . .’’ does not mean that 

the representative must determine 

whether the complaint will be referred; 

rather it means the representative must 

determine if the complaint should be 

referred to ‘‘the appropriate enforcement 

agency’’ or ‘‘another public agency’’ or 

a ‘‘legal aid organization,’’ etc. Given 

that the use of the word ‘‘if’’ in this 

sentence has caused confusion and may 

be misinterpreted, the Department has 

changed the regulatory text by 

rewording § 658.411(b)(1)(ii)(C) as 

follows: If the issue is not resolved 

within 5 business days, the 

representative must refer the complaint 

to the appropriate enforcement agency 

(or another public agency, a legal aid 

organization, or a consumer advocate 

organization, as appropriate) for further 

assistance. 

Comments: Regarding the 

§ 658.411(b)(2) requirement that the 

SWA must initiate procedures for 

discontinuation of services if an 

enforcement agency makes a final 

determination that the employer 

violated an employment-related law, 

one commenter recommended the 

Department require agencies to notify 

the SWA when such agency has made 

a final determination. For nonDepartment agencies, this commenter 

said it would support the development 

of a form to be used by all agencyreferred cases under the Complaint 

System that would request notification 

of the outcome of the referral and 

explain the need for the agency to 

inform the SWA of the results of the 

referred complaint. 

Department Response: The 

Department agrees it would be helpful 

if enforcement agencies notified the 

SWA when a final determination has 

been made. In order to facilitate the 

communication, the Department 

encourages SWAs to enter into 

agreements with enforcement agencies 

regarding notification of final 

determination of complaints. 

Section 658.411(c) Complaints 

Alleging a Violation of Rights Under the 

Equal Employment Opportunity 

Commission (EEOC) Regulations or 

Enforced by the Department of Labor’s 

Civil Rights Center (CRC) 

Comments: Two commenters 

requested clarification for handling 

complaints alleging a violation of rights 

by employers, asking whether all 

complaints must be forwarded to the 

EEOC if received at the local or State 

level. One commenter recommended the 

Department revise § 658.411(c) to 

require all complaints involving 

discrimination be forwarded directly to 

the EEOC, rather than requiring the 

extra steps of referring a local Equal 

Opportunity (EO) representative, who 

would refer it to the State EO 

representative, who would then refer 

the case to the EEOC. This commenter 

suggested that the extra steps would add 

a layer of complexity and inevitable 

delay, which could be detrimental to 

discrimination complaints given the 

short limitations period for filing a 

charge of discrimination with the EEOC. 

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Another commenter asked whether the 

§ 658.411(c)(1) requirement that the 

local Complaint System representative 

must refer the complaint to a local EO 

representative would go to the local area 

EO officer or the State EO officer. 

Department Response: The 

Department clarifies the EO referral 

process. When an ES office or a SWA 

receives an EO-related complaint, the 

complaint must immediately be logged 

and referred to either the EO 

representative at the local or State level, 

or the EEOC. Once the EO 

representative has received the referral, 

he/she will make a determination as to 

whether it is appropriate to resolve the 

complaint at that level, or if it should be 

referred to a different level (e.g., a State 

EO representative may determine that 

the case would most appropriately be 

resolved by the EEOC, or the EEOC may 

determine that the case would most 

appropriately be resolved by the State 

EO representative). In order to clarify 

this in the regulatory text, the 

Department removed § 658.411(c)(3) 

through (4) and clarifies in (c)(1) that 

EO-related complaints immediately 

must be logged and referred to an EO 

representative for appropriate handling. 

The Department further seeks to clarify 

that SWAs should not attempt informal 

resolution on EO-related complaints or 

apparent violations as these matters are 

highly sensitive and require trained EO 

investigators. 

The Department has also edited 

§ 658.411(c)(1) and (2) to make the 

regulatory text consistent with the antidiscrimination protections in 29 CFR 

part 38 and the role of the Department’s 

Civil Rights Center. 

Section 658.411(d) Complaints 

Regarding the ES Regulations 

Comments: Noting that many MSFWs 

do not have a reliable, permanent 

mailing address, one commenter urged 

the Department to revise § 658.411(d) to 

provide that, when the local ES office 

needs additional information from the 

complainant, the office should 

communicate with the complainant in 

the way most likely to reach him or her, 

such as by cell phone or social media. 

If the complainant fails to respond, and 

the ES office determines that it is unable 

to resolve the complaint or complete the 

investigation without the requested 

information, this commenter suggested 

that the complaint be referred to the 

SMA to determine whether further 

action is possible. In addition, this 

commenter recommended the 

Department revise § 658.411(d)(2) to 

include allowing for filing of a 

complaint by email. 

Department Response: Regarding the 

commenter’s suggestion at § 658.411(d) 

for the Department to provide that, 

when the ES office needs additional 

information from the complainant, the 

office should communicate with the 

complainant in the way most likely to 

reach him or her, such as by cell phone 

or social media, the Department agrees 

that it would be beneficial for the ES 

office to attempt to communicate with 

the MSFW in the manner most likely to 

reach him/her, particularly via 

telephone. However, the Department 

has concerns about attempting to 

contact the MSFW via social media, as 

social media may not be a private 

communication forum. The Department 

recommends that SWAs attempt 

communication via telephone with 

MSFWs pursuant to § 658.411(d); 

however, the requirement for written 

notification stands as the official means 

for notification because such 

correspondence helps both parties 

maintain records of the complaint 

status. 

Regarding the suggestion for the ES 

office to refer a complaint to the SMA 

if the complainant has not responded, 

the Department does not deem this 

necessary due to its change to the 

regulations at § 658.400(a) whereby the 

Complaint System now covers ESrelated complaints made within 2 years 

of the alleged violation. Increasing the 

limitations period to 2 years will 

provide greater protections to those 

participating in the ES by 

accommodating those individuals who 

may not be able to file complaints 

within a year from the alleged 

occurrence. No change was made to the 

regulatory text in response to these 

comments. 

In response to the suggestion to allow 

filing a complaint by email, the 

Department notes it proposed in the 

NPRM that a complaint could be filed 

by email and has made no change to the 

regulatory text at § 658.411(a)(4). 

The Department made technical 

corrections to clarify in (d)(2)(i) that the 

complaint would be in regard to an 

‘‘alleged’’ violation of the ES regulations 

and also that the appropriate ES office 

Complaint System representative must 

investigate and attempt to resolve the 

complaint immediately upon receipt if 

all necessary information has been 

submitted to the ES office pursuant to 

paragraph (a)(4)). The Department 

corrected the cross-references and 

corresponding language in the 

regulatory text at paragraphs (d)(2)(ii), 

(d)(3)(ii), and (d)(4)(ii). 

Section 658.411(e) Resolution of 

Complaints 

Comments: Suggesting the NPRM 

would disproportionately dismiss 

MSFW complaints, one commenter 

recommended the Department eliminate 

complaint resolution based on the 

complainant’s failure to respond within 

20 working days or 40 working days if 

the worker is a MSFW. Discussing the 

barriers MSFWs might face in promptly 

responding to requests for information, 

the commenter asserted that MSFWs 

generally have limited access to mail 

services, as mail delivered to labor 

camps may be distributed sporadically 

and is often screened by employers 

prior to delivery. Moreover, according to 

this commenter, a MSFW may move 

several times over the course of the 

season and often does not know what 

his or her physical address will be in 

the future. While stating that allowing 

for email correspondence is helpful, this 

commenter cautioned that few labor 

camps have internet access and workers 

often do not own cell phones or have an 

alternative means to access email. This 

commenter further suggested the 

Department either expand the deadline 

for complaint resolution to 1 year or, or 

in the alternative, allow a provision for 

MSFWs to reopen complaints within 1 

year of being closed for failure to 

respond to a request for information. 

Reasoning that many MSFWs return to 

the same area each year for a particular 

crop, this commenter asserted that 

establishing a 1-year deadline would 

allow for the possibility that a worker 

would return to the same area and be 

able to respond to requests for 

information related to the complaint. 

Department Response: The 

Department agrees that because MSFWs 

move so frequently, it can be difficult 

for them to receive mail. The 

Department seeks to ensure that 

complaints may be followed through to 

resolution without placing a burden on 

the complainant or the SWA. The 

Department has determined that 

allowing a MSFW to reopen a case after 

1 year, as the commenter suggested, is 

appropriate. It is consistent with the 

provision in § 658.400(a) that allows a 

complainant to file a complaint with a 

2-year limitations period. Such 

flexibility also ensures the Department 

is taking into account the unique needs 

of MSFWs and helping such individuals 

resolve complaints. The Department 

does not anticipate an increased burden 

on the SWA because the complaint 

would already be filed with the SWA. 

Even if the complaint was closed, the 

complainant could issue another 

complaint (regarding the same issue but 

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opening it as a new complaint) because 

of the 2-year limitations period. It 

would not place an additional burden 

on the SWA because the SWA would 

not need to open a new complaint. 

Instead, it would reopen the original 

complaint and have access to much of 

the information needed to process the 

complaint. The Department added 

§ 658.411(f) to give a complainant the 

opportunity to reopen a complaint up to 

1 year after the SWA has closed the 

case. 

Comments: One commenter urged the 

Department to require the reviewer to 

verify whether any lack of response 

from a MSFW is intentional (i.e., the 

MSFW actually received the request) 

before dismissing a complaint, such as 

by phone call, email, return mail 

receipt, or personal delivery by outreach 

workers. 

Department Response: The 

Department has determined that 

requiring the reviewer to verify whether 

any lack of response from a MSFW is 

intentional would be too great a burden 

on the SWA and would be too 

subjective in nature to establish any 

continuity across the States. No change 

was made to the regulatory text in 

response to this comment. 

Section 658.419 Apparent Violations 

Comments: Regarding the proposed 

requirement to refer apparent violations 

of employment-related laws to ES office 

managers, one commenter 

recommended that if the apparent 

violation involves MSFWs, the SMA 

also should receive a copy of the 

documentation. 

Department Response: The 

Department notes that data pertaining to 

apparent violations will be sent to 

SMAs as such information is required in 

the Labor Exchange Agricultural 

Reporting System (LEARS). No change 

was made to the regulatory text in 

response to this comment. 

Comments: One commenter requested 

clarification as to whether the move of 

the Apparent Violations section from 

the MSFW section to the Complaint 

System section is an indication that it 

applies to all employment industries. 

Department Response: The 

Department notes the Richey Order 

requires it to ensure that each State or 

ES office ‘‘refer every violation of State 

or Federal law of which it has 

knowledge to appropriate State or 

Federal enforcement officials, including 

officials or other agencies of DOL and of 

Federal agencies and departments other 

than DOL, and utilize to the maximum 

possible extent the full resources of the 

DOL monitor/advocate system in 

expediting such referrals.’’ In this light, 

the Department takes it upon itself to 

ensure that any violation is 

appropriately referred while taking into 

account the procedures outlined at part 

658, subpart E. Furthermore, the 

Department seeks to clarify that the 

Complaint System as stated at 

§ 658.400(a) handles complaints against 

an employer about the specific job to 

which the applicant was referred 

through the ES, and complaints 

involving the failure to comply with the 

ES regulations under this part; the 

Complaint System also accepts, refers, 

and, under certain circumstances, tracks 

complaints involving employmentrelated laws. The Department interprets 

the mandates of the Richey Order to 

apply to industries outside of farm 

work, however the Complaint System 

explicitly contemplates only what is 

described at part 658, subpart E. 

Section 658.420 Responsibilities of the 

Employment and Training 

Administration Regional Office 

While the Department did not receive 

comments regarding § 658.420, it 

changed the language in paragraphs 

(b)(1) and (2) to make it consistent with 

current civil rights provisions in WIOA 

sec. 188 and the implementing 

regulations at 29 CFR part 38. It also 

added an exception in paragraph (c) to 

complaints filed pursuant to paragraphs 

(b)(1) and (2), and added the following 

sentence, ‘‘The RMA must follow-up 

monthly on all complaints filed by 

MSFWs including complaints under 

(b)(1) and (b)(2).’’ These changes are 

consistent with current practice and 

were added for clarity. 

Section 658.421 Handling of 

Employment Service Regulation-Related 

Complaints 

Comments: Suggesting the 

Department clarify the role of the 

Regional Administrator in the ES 

complaint process, one commenter 

recommended the Department revise 

§ 658.421 such that complainants who 

allege a violation of the ES regulations 

may bring a complaint directly to the 

Regional Administrator, especially in 

situations where the administrative 

exhaustion procedures in § 658.421(a)(1) 

are likely to adversely affect workers. 

Department Response: The 

Department has changed the language of 

§ 658.421(a)(2) to clarify that this 

section allows for a complaint to be 

filed with the Regional Administrator 

and if the Regional Administrator 

determines that the nature and scope of 

a complaint described in paragraph (a) 

of this section is such that the time 

required to exhaust the administrative 

procedures at the SWA level would 

adversely affect a significant number of 

individuals, the RA must accept the 

complaint and take certain actions. 

Section 658.422 Handling of 

Employment-Related Law Complaints 

by the Regional Administrator 

Comments: One commenter 

recommended the Department clarify in 

§ 658.422 that complainants may submit 

employment-related law complaints 

directly to the Regional Administrator, 

commenting that the proposed text of 

this section did not clarify what office 

should take the complaints. 

Department Response: The 

Department agrees the language in 

§ 658.422 was not explicit in stating that 

employment-related law complaints 

could be filed directly with the Regional 

Administrator and that only the title 

alluded to such a process. The 

Department added paragraph (a) that 

makes this explicit in the regulatory text 

of this section. The remaining 

paragraphs have been renumbered 

accordingly. Paragraph (c) has also been 

changed to clarify that complaints 

received from non-MSFWs must be 

logged, just as complaints from MSFWs 

under paragraph (b). 

3. Subpart F—Discontinuation of 

Services to Employers by the 

Employment Service 

Comments: A few commenters 

requested general clarification regarding 

proposed part 658, subpart F. These 

commenters stated they were unclear as 

to the process and impact of these 

regulations. 

Department Response: The 

Department will issue guidance on part 

658, subpart F. 

Section 658.501 Basis for 

Discontinuation of Services 

Comments: Relating to outreach 

workers’ access to employer sites, one 

commenter noted proposed 

§ 658.501(a)(7) continues the 

requirement for the SWA to initiate 

discontinuation of services to a grower 

who refuses to cooperate in the conduct 

of field checks pursuant to § 653.503. 

The commenter states this means an 

employer would not face a penalty for 

failing to permit outreach workers 

access to MSFWs to perform outreach 

duties. As such, this commenter 

recommended the Department revise 

§ 658.501(a)(7) to require State agencies 

initiate discontinuation of services to 

employers who interfere with the access 

rights of State agency or nonprofit 

organization outreach workers or fail to 

provide those workers with reasonable 

access to MSFWs. 

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Department Response: The 

Department notes § 658.501(a)(2) 

provides the basis for discontinuation of 

services if an employer submits a job 

order and refuses to provide assurances, 

in accordance with 20 CFR part 653, 

subpart F. The attachment to the ETA 

Form 790 includes a requirement 

whereby ‘‘the employer also assures that 

outreach workers shall have reasonable 

access to the workers in the conduct of 

outreach activities pursuant to 20 CFR 

653.107.’’ The Department further notes 

that § 658.501(a)(3) states 

discontinuation of services will apply if 

the employer is found to have failed to 

comply fully with assurances made on 

job orders. The Department has 

determined that an employer who does 

not grant outreach workers reasonable 

access to MSFWs as required in the 

assurances attachment to the ETA Form 

790 may be subject to discontinuation of 

services pursuant to part 658, subpart F. 

No changes have been made to the 

regulatory text in response to this 

comment. However, the Department 

seeks to clarify that the subject of 

granting outreach workers employed by 

nonprofit organizations access to 

MSFWs hired through the ES is beyond 

the scope of the Department. 

Section 658.504 Reinstatement of 

Services 

Comments: Noting that proposed 

subpart F did not include a minimum 

time during which services are to be 

discontinued, one commenter 

recommended the period of 

discontinuation of services should be no 

less than 2 years if an employer is found 

to have engaged in the misconduct set 

forth in § 658.501. Regarding the 

restitution provision at 

§ 658.504(a)(2)(ii), this commenter urged 

the Department to require services to be 

discontinued until the employer 

provides restitution to all workers who 

are harmed by the employer’s conduct, 

rather than requiring restitution only to 

the complainant. The commenter 

asserted that requiring restitution to 

only the complainant would give an 

employer incentive to violate the terms 

of the job order. 

Department Response: The 

Department disagrees with the 

commenter about the suggestion to 

impose a minimum time during which 

services must be discontinued. The 

Department disagrees because the time 

will vary for an employer to remedy the 

situation. Once an employer remedies 

the issue, employment services may 

resume (except where the employer has 

undergone the discontinuation of 

services pursuant to § 658.501(a)(8)). 

Regarding the suggestion for the 

Department to require the 

discontinuation of services continue 

until an employer provides restitution 

to all workers who were harmed by the 

employer’s conduct, the Department 

proposes that such a determination 

must be made on a case-by-case basis by 

the appropriate enforcement agency. No 

changes have been made to the 

regulatory text in response to this 

comment. 

4. Subpart G—Review and Assessment 

of State Workforce Agency Compliance 

With Employment Service Regulations 

Comments: Expressing support for the 

flexibility and understanding of things 

outside of a State agency’s control 

relative to performance outcomes, a few 

commenters recommended the 

Department extend this flexibility and 

understanding to local areas. 

Department Response: The 

Department acknowledges these 

comments. As SWAs are the 

Department’s grantees, the Department 

recommends commenters request any 

additional local flexibility (outside what 

is required in these regulations) through 

the SWA. 

Section 658.601 State Workforce 

Agency Responsibility 

Comments: Regarding the selfappraisal system for ES operations to 

determine success in reaching goals and 

correct deficiencies in performance, one 

commenter requested the Department 

take into account statistical adjustments 

regarding economic conditions and 

participant characteristics which may be 

a factor when identifying plan goals. 

Department Response: The 

Department notes WIOA sec. 102 

requires the State Plan include an 

analysis of the economic conditions in 

the State and WIOA sec. 116 requires 

the Department to take into account 

participant characteristics. Because such 

information is required under WIOA, 

the Department agrees with the 

commenter and will take statistical 

adjustments regarding economic 

conditions and participant 

characteristics into account. The 

Department received no other comments 

on subpart G, and made no changes to 

the regulatory text except for occasional 

non-substantive editorial changes, and 

changes from USES to ‘‘Employment 

Service System or ES System,’’ to be 

consistent with the changes made in 

part 651. 

VI. Rulemaking Analyses and Notices 

A. Executive Orders 12866 and 13563: 

Regulatory Planning and Review 

Executive Order (E.O.) 12866 directs 

agencies, in deciding whether and how 

to regulate, to assess all costs and 

benefits of available regulatory 

alternatives, including the alternative of 

not regulating. E.O. 13563 is 

supplemental to and reaffirms E.O. 

12866. It emphasizes the importance of 

quantifying current and future costs and 

benefits; directs that regulations be 

developed with public participation; 

and where relevant and feasible, directs 

that regulatory approaches be 

considered that reduce burdens, 

harmonize rules across agencies, and 

maintain flexibility and freedom of 

choice for the public. Costs and benefits 

should include both quantifiable 

measures and qualitative assessments of 

possible impacts that are difficult to 

quantify. If regulation is necessary, 

agencies should select regulatory 

approaches that maximize net benefits. 

The Office of Management and Budget 

(OMB) determines whether a regulatory 

action is significant and, therefore, is 

subject to review. 

Section 3(f) of E.O. 12866 defines a 

‘‘significant regulatory action’’ as any 

action that is likely to result in a rule 

that could: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising from legal mandates, the 

President’s priorities, or the principles 

set forth in E.O. 12866. 

The Final Rule is not a significant 

regulatory action under sec. 3(f) of E.O. 

12866. The economic effects of the costs 

and transfers (i.e., monetary payments 

from one group to another that do not 

affect total resources available to 

society) that will result from the 

changes in this Final Rule are not 

economically significant because they 

are less than $100 million for the first 

year and all subsequent years after 

implementation of the rule. 

Outline of the Analysis 

Section V.A.1 describes the need for 

the DOL WIOA Final Rule, and section 

V.A.2 describes the alternatives that 

were considered in the DOL WIOA 

NPRM. Section V.A.3 summarizes the 

public comments received related to the 

NPRM, and provides the Department’s 

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responses to the comments. Section 

V.A.4 describes the process used to 

estimate the costs of this rule and the 

general inputs used such as wages and 

number of affected entities. Section 

V.A.5 explains updates made to the 

assumptions and inputs used in the 

analysis of this Final Rule relative to the 

assumptions and inputs used in the 

analysis of the NPRM. Section V.A.5 

also describes how these changes 

affected the costs and transfers of this 

Final Rule. Section V.A.6 describes how 

the provisions of this Final Rule will 

result in quantifiable costs and transfers 

and presents the calculations the 

Department used to estimate them. 

Finally, section V.A.7 summarizes the 

estimated first-year and 10-year total 

costs and transfers and describes the 

qualitative benefits of this Final Rule. 

Summary of the Analysis 

The Department provides the 

following summary of the Regulatory 

Impact Analysis: 

(1) This Final Rule is not an 

‘‘economically significant rule’’ under 

sec. 3(f)(4) of E.O. 12866. 

(2) This Final Rule is not expected to 

have a significant cost impact on a 

substantial number of small entities. 

(3) This Final Rule will not impose an 

unfunded mandate on Federal, State, 

local, or tribal governments as defined 

by the Unfunded Mandates Reform Act 

of 1995. 

In total, the Department estimates that 

this Final Rule will generate costs and 

transfer payments. As shown in Exhibit 

1, this Final Rule is estimated to have 

an average annual cost of $35.0 million 

and a total 10-year cost of $278.8 

million (with 7-percent discounting). In 

addition, the Final Rule is estimated to 

result in annual transfer payments of 

$12.9 million and total 10-year transfer 

payments of $96.9 million (with 7- 

percent discounting). 

EXHIBIT 1—ESTIMATED MONETIZED COSTS AND TRANSFER PAYMENTS OF THE FINAL RULE

[2015 dollars] 

Total costs 

($ mil) 

Transfers 

($ mil) 

Undiscounted 10-Year Total .................................................................................................................................... $350.4 $128.9 

10-Year Total with 3% Discounting ......................................................................................................................... 314.9 113.2 

10-Year Total with 7% Discounting ......................................................................................................................... 278.8 96.9 

10-Year Average ...................................................................................................................................................... 35.0 12.9 

Annualized with 3% Discounting ............................................................................................................................. 36.9 13.3 

Annualized with 7% Discounting ............................................................................................................................. 39.7 13.8 

The largest contributor to the total 

cost of this Final Rule is the 

requirement related to the development 

and continuous improvement of the 

workforce development system, 

followed by the Local WDBs career 

pathways development and the 

colocation of ES services. See the cost 

subsection of section V.A.6 (Subject-bySubject Analysis) below for a detailed 

explanation. 

The Department was unable to 

quantify several important benefits to 

society due to data limitations and a 

lack of existing data or evaluation 

findings. We describe qualitatively the 

benefits related to required competition 

for all one-stop operators. In addition, 

based on a review of empirical studies 

(primarily studies published in peerreviewed academic publications and 

studies sponsored by the Department), 

the Department identified the following 

societal benefits: (1) Training services 

increase job placement rates; (2) 

participants in occupational training 

experience higher reemployment rates; 

(3) training is associated with higher 

earnings; and (4) State performance 

accountability measures, in combination 

with the Board membership provision 

requiring employer representation, is 

expected to improve the quality of the 

training and, ultimately, the number 

and caliber of job placements. The 

Department identified several channels 

through which these benefits might be 

achieved: (1) Better information about 

training providers enables workers to 

make more informed choices about 

programs to pursue; (2) sanctions on 

under-performing States serve as an 

incentive for both States and local 

entities to monitor performance more 

effectively and to intervene early; and 

(3) enhanced services for dislocated 

workers, self-employed individuals, and 

workers with disabilities lead to the 

benefits discussed above. 

In addition, the Final Rule will result 

in transfer payments. The Department 

estimates that this Final Rule will result 

in annual average transfer payments of 

$12.9 million and a total 10-year 

transfer payment of $96.9 million (with 

7-percent discounting). These transfers 

result from increased funding for 

targeting out-of-school youth (OSY). See 

the transfer subsection of the section 

V.A.6 (Subject-by-Subject Analysis) 

below for a detailed explanation. 

1. Need for Regulation 

Public Law 113–128, the Workforce 

Innovation and Opportunity Act 

(WIOA), enacted on July 22, 2014, 

statutorily requires publication of 

implementing regulations, if required, 

no later than 180 days after the date of 

enactment. The Department has 

determined that implementing 

regulations are necessary for the WIOA 

program to be operated efficiently and 

effectively and that such regulations 

shall provide Congress and others with 

uniform information necessary to 

evaluate the outcomes of the new 

workforce law. 

2. Alternatives in Light of the Required 

Publication of Regulations 

OMB Circular A–4, which outlines 

best practices in regulatory analysis, 

directs agencies to analyze alternatives 

outside the scope of their current legal 

authority if such alternatives best satisfy 

the philosophy and principles of E.O. 

12866. Although WIOA provides little 

regulatory discretion, the Department 

assessed, to the extent feasible, 

alternatives to the regulations. 

In the NPRM, the Department 

considered significant alternatives to 

accomplish the stated objectives of 

WIOA, while also seeking to minimize 

any significant economic impact of the 

Final Rule on small entities. This 

analysis considered the extent to which 

WIOA’s prescriptive language presented 

regulatory options that also will allow 

for achieving the Act’s articulated 

program goals. The Department, in 

many instances, has reiterated the Act’s 

language in the regulatory text, and has 

expanded some language to provide 

clarification and guidance to the 

regulated community. The additional 

regulatory guidance should result in 

more efficient administration of the 

program by reducing ambiguities and 

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56290 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

1OMB (2003) Circular A–4 Retrieved from: 

https://www.whitehouse.gov/omb/circulars_a004_a4/. 

subsequent State and local revisions 

because of unclear statutory language. 

In addition, the Departments 

considered the issuance of subregulatory guidance in lieu of additional 

regulations. This policy option has two 

primary benefits to the regulated 

community. First, sub-regulatory 

guidance will be issued following 

publication of the Final Rule, thereby 

allowing States and local areas 

additional time to adhere to additional 

guidance. Second, sub-regulatory 

guidance is more flexible, allowing for 

faster modifications and any subsequent 

issuances, as necessary. 

The Department considered two 

possible alternatives in the NPRM: 

(1) Implement the changes prescribed 

in WIOA, as noted in this Final Rule, 

thereby satisfying the statutory mandate; 

or 

(2) Publish no regulations and rescind 

existing WIA final regulations, thereby 

ignoring the WIOA statutory 

requirement to publish implementing 

regulations, thus forcing the regulated 

community to follow statutory language 

for implementation and compliance 

purposes. 

The Department considered these two 

options in accordance with the 

provisions of E.O. 12866 and chose to 

publish the WIOA Final Rule—that is, 

the first alternative. The Department 

considered the second alternative— 

retaining existing WIA regulations as 

the guide for WIOA implementation— 

but concluded that the requirements 

have changed substantially enough that 

new implementing regulations are 

necessary for the public workforce 

system to achieve program compliance. 

The Department considered, but 

rejected, the third alternative—not to 

publish an implementing regulation and 

rescind existing WIA final regulations— 

because the WIOA legislative language, 

inherently, does not provide sufficient 

detailed guidance to implement WIOA 

effectively; regulations are necessary to 

achieve program compliance. 

In addition to the regulatory 

alternatives noted above, the 

Department also considered phasing in 

certain elements of WIOA over time 

(different compliance dates), thereby 

allowing States and localities more time 

for planning and successful 

implementation. As a policy option, this 

alternative appears appealing in a broad 

theoretical sense and, where feasible 

(e.g., Wagner-Peyser Act colocation of 

services), the Department has 

recognized and made allowances for 

different implementation schedules. 

Upon further consideration and to begin 

to achieve the intended legislative 

benefits of WIOA, however, additional 

implementation delays beyond those 

noted in this Final Rule could outweigh 

the benefits of alternative starting dates. 

Specifically, because many critical 

WIOA elements depend on the 

implementation of other provisions 

(e.g., technology and performance 

reporting are intrinsically related), 

discussions indicated that the 

alternative of delaying additional 

aspects was operationally infeasible. 

Furthermore, in assessing alternatives 

(e.g., different requirements for 

different-sized firms) the data necessary 

to review this option fully will not exist 

until Local WDBs conduct 

procurements and announce awards. 

Similarly, performance standards will 

be negotiated at a future time and will 

be based on a variety of factors, 

including State and local economic 

conditions, resources, and priorities. 

Establishing standards in advance of 

this statutorily defined process might 

not be efficient or effective. The 

enforcement methods described in the 

Final Rule reflect prescribed WIOA 

requirements, and entity size, in and of 

itself, should not create alternative 

methods for compliance or different 

periods for achieving compliance. The 

Department has not determined 

sufficiently valid reasons for altering 

compliance timeframes beyond those 

described in the Final Rule for small 

entities. 

The Department’s impact analysis has 

concluded that, by virtue of WIOA’s 

prescriptive language, particularly the 

requirement to publish implementing 

regulations within 180 days, no 

available regulatory alternatives other 

than those discussed above are viable. 

3. General Comments Received on the 

Economic Analysis in the Notice of 

Proposed Rulemaking 

The Department received several 

public comment submissions that 

addressed the economic analysis in the 

NPRM. The Department considered the 

comments received. The significant 

comments and summaries of the 

Department’s analyses and 

determinations are discussed below. 

a. A Status Quo Alternative in the CostBenefit Analysis 

In the NPRM, after considering two 

possible alternatives: (1) Implement the 

changes prescribed in WIOA, or (2) not 

publish regulation and rescind existing 

WIA final regulations, the Department 

chose the first alternative. 

Comments: Several commenters 

stated that the Department is required to 

present alternatives to the rule and 

explain why those alternatives were not 

selected instead of the approach chosen 

for the rule. The commenters suggested 

that the Department should choose the 

long-standing status quo as an 

alternative, which would maintain the 

current system. The commenters stated 

that the current system has worked for 

more than 40 years and would avoid 

problems that the rule would create. 

Department Response: The economic 

analysis involves assessing one or more 

regulatory alternatives against the status 

quo. OMB’s Circular A–4 provides 

guidance to agencies for conducting a 

cost-benefit analysis and explains that 

each agency should consider alternative 

regulatory approaches and properly 

evaluate the costs and benefits of 

regulations and their alternatives.1 An 

agency, however, is not required to 

consider the status quo as a regulatory 

alternative. As is frequently the case, for 

this rule, the status quo is the same as 

the baseline, which is the situation 

likely to occur in the absence of 

regulation. 

b. Contextualizing Workforce 

Innovation and Opportunity Act Costs 

In the NPRM, to contextualize the cost 

of the proposed rule, the Department 

expressed the annual cost of the NPRM 

as being between 1.1 and 1.2 percent of 

the average annual cost of WIA over 

fiscal year (FY) 2012 through FY 2014 

(using 3-percent and 7-percent 

discounting, respectively). The average 

annual budget for WIA implementation 

from FY 2012 through FY 2014 for the 

Department was $2.8 billion. 

Comments: One commenter objected 

to the NPRM’s discussion of the 

incremental burden of WIOA as a 

proportion of the Department’s annual 

$2.8 billion WIA budget. Another 

commenter stated that contextualizing 

WIOA costs in terms of the WIA budget 

does not reflect the complexities of 

implementing WIOA. These 

commenters suggested that comparing 

the incremental WIOA burden against 

the administrative funds available to 

States would be more accurate because 

these would be the funding source for 

most of the new requirements. 

In addition, one commenter stated 

that the Department did not provide its 

source of the average annual WIA 

budget estimate. The commenter cited 

DOL’s Training and Employment 

Services budget as a proxy, which 

showed that the Department’s funding 

decreased 1.8 percent from FY 2014 to 

FY 2015. This percentage is greater than 

the 1.1 to 1.2 percent of the estimated 

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2This value increased from $2.8 billion in the 

NPRM to $3.5 billion in the Final Rule because the 

Department added WIA funding for the WagnerPeyser Act ES program from FY 2012 to FY 2014 

and the funding was inflated to 2015 dollars. The 

Department calculated the inflation factor using 

data from Table 24. ‘‘Historical Consumer Price 

Index for All Urban Consumers (CPI–U): U.S. City 

Average, All Items.’’ 

3U.S. Department of Labor, Employment and 

Training Administration. (2015). Archive of State 

Statutory Formula Funding. Retrieved from: https:// 

www.doleta.gov/budget/py01_py09_arra_

archive.cfm. The Department used data from the 

following files to estimate the average annual WIA 

budget: WIA Adult Activities Program (Program 

Years [PYs] 2011, 2012, 2013, and 2014); WIA 

Dislocated Worker Activities Program (PYs 2011, 

2012, 2013, and 2014); and WIA Youth Activities 

(PYs 2012, 2013, and 2014). The youth activities 

funding is obligated to States in April and therefore 

corresponds to the fiscal year in which it is 

obligated. The Department inflated the funding for 

each fiscal year, so that the average annual WIA 

budget is in 2015 dollars. 

U.S. Department of Labor, Employment and 

Training Administration. (2015) State Statutory 

Formula Funding. Retrieved from: https://

www.doleta.gov/budget/statfund.cfm. The 

Department also used data from the following files 

to estimate the average annual WIA budget: 

Employment Services Program Dollar Tables (PYs 

2012, 2013, and 2014). The youth activities funding 

is obligated to States in April and therefore 

corresponds to the fiscal year in which it is 

obligated. The Department inflated the funding for 

each fiscal year, so that the average annual WIA 

budget is in 2015 dollars. 

WIOA implementation costs presented 

in the NPRM. 

Department Response: In this Final 

Rule, the Department presents the 

incremental burden of WIOA both as a 

proportion of the average annual budget 

for WIA implementation of $3.5 billion 

and as a proportion of the 

administration and transition funds that 

might be used for WIOA 

implementation.2 The source of the 

average annual budget for WIA 

implementation is the Employment and 

Training Administration (ETA) budget 

Web sites.3 The Department summed 

the WIA funding for the adult, 

dislocated worker, youth, and ES 

programs for each fiscal year from 2012 

to 2014 and then averaged the sum over 

the 3-year period. For the adult and 

dislocated worker programs, each fiscal 

year’s funding is calculated as the sum 

of the program year’s July funding and 

the previous program year’s October 

funding. The youth program’s and ES 

program’s funding are obligated to 

States in April and July, respectively, 

and therefore corresponds to the fiscal 

year in which it is obligated. 

c. Workforce Investment Act Costs 

Comments: One commenter suggested 

that the Department should have 

conducted a cost-benefit analysis for 

both WIA and WIOA. The commenter 

also indicated that any estimates from 

the original WIA regulations are 

outdated. 

Department Response: The 

Department estimated incremental costs 

of WIOA from WIA as the baseline. 

Although we did not quantify the WIA 

baseline, to the extent possible, we 

considered the WIA baseline when 

estimating the incremental burden. In 

addition, this analysis includes no costbenefit estimates associated with the 

WIA regulations. 

d. Wage Rate Assumptions 

To estimate the cost of the 

requirements in the NPRM, the 

Department multiplied the amount of 

time required to perform an activity by 

workers’ hourly mean wage rates for 

their occupational categories and the 

loaded wage factors to reflect total 

compensation, which includes nonwage factors such as health care and 

retirement benefits. 

Comments: One commenter asked the 

Department to provide the sources of 

the estimated wage rates and the loaded 

wage factors. 

Department Response: In the NPRM, 

the Department used the 2013 Bureau of 

Labor Statistics (BLS) wage rates for 

State government employees, including 

hospitals and schools, for State and 

local employees based on the general 

occupational category of the workers 

who would perform the proposed 

activities. The loaded wage factor is 

based on the employer cost for 

employee compensation data contained 

in the BLS Employment Cost Index. 

For the Final Rule, please refer to 

section V.A.4 (Analysis Considerations) 

for a description of the sources of the 

occupational categories and the loaded 

wage factor. 

e. Burden Estimation Process 

Comments: One commenter asked the 

Department to clarify the process and 

assumptions used to develop the labor 

burden estimates for the rule 

requirements. 

Department Response: To develop the 

labor burden estimates of the rule, the 

Department considered how much effort 

would be required for each activity 

needed to meet the requirements 

relative to the baseline (i.e., the current 

practice under WIA). We consulted with 

ETA program experts to obtain 

estimates. Please refer to section V.A.4 

(Analysis Considerations) for a 

description of how the Department 

estimated the burden for this Final Rule. 

f. Underestimated Costs 

In the NPRM, the Department 

estimated that the rule would result in 

an undiscounted total 10-year cost of 

$384.4 million. 

Comments: A few commenters stated 

that costs for many requirements were 

significantly underestimated in the 

NPRM by the Department. They also 

pointed out that the only costs 

quantified in the NPRM were new 

implementation costs and ongoing costs 

of required activities carried over from 

WIA were not considered in the NPRM. 

Department Response: The 

commenters did not provide any cost 

data to substantiate their assertion that 

the Department significantly 

underestimated the costs of the 

requirements in the NPRM. The 

Department accurately estimated the 

compliance costs to affected entities to 

the extent possible based on best 

available information and program 

experience. We acknowledge, however, 

that our cost estimates are subject to 

potential uncertainty in, and variability 

of, the data and assumptions used in the 

analysis. Nevertheless, these cost 

estimates represent the Department’s 

expert judgment regarding the 

additional labor and capital costs 

associated with the new requirements. 

Although we did not quantify the WIA 

baseline, we considered the WIA 

baseline to the extent possible when 

estimating the incremental burden 

associated with implementing this 

WIOA-required Final Rule by the 

requirements of Executive Order 13563, 

Executive Order 12866, and OMB 

Circular A–4. This analysis includes no 

cost-benefit estimates associated with 

the WIA regulations. 

g. Data Reporting Requirements 

In the NPRM, the Department 

requested public comments on the 

challenges and benefits of requiring 

additional data elements in quarterly 

wage reports, including: (1) Program 

participants’ social security numbers; 

(2) the wages program participants earn 

after exiting the program; and (3) the 

names, addresses, States, and (when 

known) the Employer Identification 

Numbers of the employers paying those 

wages. 

Comments: One commenter estimated 

that the initial and ongoing costs of 

modifying its reporting system to 

accommodate a new data element on 

employer wage reports would be 

approximately $2 million and that this 

estimate does not account for other costs 

associated with reporting additional 

information. The commenter stated that 

costs associated with audits and 

delinquent reporting reviews would 

increase if additional elements were 

added to wage reporting. 

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56292 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Several commenters stated that 

WIOA’s data collection requirements 

would require a large effort to track, 

record, validate, and report; the 

commenters also found some of the data 

to be questionable. The commenters 

stated that these proposed requirements 

would cause hardship for small States 

with limited funding. 

Department Response: The 

Department’s program experts estimated 

the costs of data reporting requirements 

under WIOA based on their program 

experience and consultations with State 

and local programs. The costs of 

modifying the reporting system will 

vary by size of the program; therefore, 

the Department used average cost 

estimates in the analysis. The 

Department did not quantify benefits of 

the data reporting requirements related 

to improved performance reporting and 

program evaluation. 

h. Mandatory Employment and Services 

Comments: One commenter 

questioned whether any analysis was 

available that estimated the projected 

cost of mandated employment and 

services to youth and students with 

disabilities. 

Department Response: The 

Department is unaware of any cost 

analysis of mandated employment and 

services to youth and students with 

disabilities in the United States. The 

Department does not mandate 

supported employment in this DOL 

WIOA Final Rule. 

i. Migrant and Seasonal Farmworker 

Housing—Estimated Impact on 

Employers 

In the NPRM, the Department 

estimated that most of the 

approximately 6,400 U.S. employers 

who hire foreign workers under the H– 

2A program and who already provide 

housing would not be affected by the 

NPRM because Occupational Safety and 

Health Administration (OSHA) housing 

standards apply more frequently than 

the ETA standards for housing 

investigations. Specifically, the 

Department estimated that every region, 

except the Northeast and Pacific 

Northwest, has agricultural housing that 

predominantly falls under the OSHA 

standards. Compliance, however, varies 

by State. For example, housing 

inspections in Colorado and Wyoming 

largely fall under ETA standards. 

Comments: Four commenters rejected 

the argument that most employers who 

hire foreign workers under the H–2A 

program would not be affected. For 

example, commenters cited that 65 to 75 

percent of housing units in Virginia 

follow ETA standards with southern 

States having similar rates. These 

commenters objected to the 

Department’s method for estimating the 

total number of employers affected by 

the housing provision. They suggested 

that, instead of basing its analysis on 

approximations and assumptions due to 

a lack of housing data, the Department 

should ask State Workforce Agencies, 

which inspect housing H–2A workers 

use and operate on behalf of DOL to 

report data on the number of housing 

units inspected. Alternatively, the 

Department should contact agricultural 

employers for cost estimates. Several 

commenters provided estimates. 

Department Response: The 

Department agrees that some State 

Workforce Agencies may be able to 

provide the number of housing units 

subject to OSHA or ETA standards. In 

the Final Rule, however, the Department 

is rescinding the proposal to establish 

an expiration date for the ETA standards 

in order to transition housing currently 

governed by the ETA standards to the 

OSHA standards. Therefore, estimating 

the number of affected employers is no 

longer necessary for this rule. 

j. Migrant and Seasonal Farmworker 

Housing—Cost Estimates 

In the NPRM, the Department did not 

quantify the costs associated with the 

provision related to Migrant and 

Seasonal Farmworker (MSFW) housing. 

The Department asked the public to 

provide comments on: (1) The number 

of housing units farmworkers use, (2) 

the percentage of housing units that 

currently fall under the ETA standards, 

and (3) the cost to change from ETA to 

OSHA standards. 

Comments: Several commenters 

objected that the cost of provision (w) 

‘‘Migrant and Seasonal Farmworker 

(MSFW) Housing’’ was not quantified. 

Department Response: In the Final 

Rule, the Department is rescinding its 

proposal to establish an expiration date 

for the ETA standards in order to 

transition housing currently governed 

by the ETA standards to the OSHA 

standards. Therefore, farmers will 

experience no additional costs because 

of this rule. 

k. Migrant and Seasonal Farmworker 

Housing—Benefits 

Department Response: In the Final 

Rule, the Department is rescinding its 

proposal to establish an expiration date 

for the ETA standards in order to 

transition housing currently governed 

by the ETA standards to the OSHA 

standards. Therefore, neither farmers 

nor farmworkers will experience 

benefits related to this provision 

because of this rule. 

l. Initial Regulatory Flexibility Analysis 

Comments: Numerous commenters 

suggested that the Department failed to 

comply with the requirements of the 

Regulatory Flexibility Act by not 

preparing an Initial Regulatory 

Flexibility Analysis (IRFA) and making 

the IRFA available for public comment. 

The commenters stated that the IRFA 

must describe the impact of the 

proposed rule on small entities and 

present alternatives to the proposed rule 

that would minimize the impact while 

accomplishing the stated objectives of 

the applicable statutes. In doing so, the 

IRFA must meet certain guidelines 

regarding why the action is being taken, 

the estimate of small entities to which 

the proposed rule would apply, and the 

discussion of alternatives. 

Department Response: The 

Department certifies that this rule will 

not have a significant economic impact 

on a substantial number of small entities 

because they already receive financial 

assistance under the WIA program and 

likely will continue to do so under the 

WIOA program. The Department 

expects that WIOA will have no cost 

impact on small entities and, therefore, 

preparing an IRFA was unnecessary. See 

section V.B (Regulatory Flexibility Act) 

below for more details. 

m. Impact on Small Businesses 

Comments: One commenter found 

that concluding the NPRM would have 

no cost impact on small entities was 

unreasonable. The commenter stated 

that the analysis did not show how 

transfer payments would fully finance 

the incremental costs of WIOA. In 

addition, the analysis did not quantify 

the existing costs or identify sources or 

mechanisms to pay for the new costs. 

The commenter also stated that in 

addition to affecting one-stop center 

operators, the regulation would affect 

small entities such as small training 

providers and service providers. 

Department Response: The 

Department considered small training 

providers and service providers as small 

entities in the Regulatory Flexibility 

Analysis. We indicated that transfer 

payments are a significant aspect of this 

analysis in that most WIOA cost 

burdens on State and Local WDBs will 

be fully financed through Federal 

transfer payments to States. The 

Department expects that this Final Rule 

will have no net cost for small entities. 

4. Analysis Considerations 

The Department estimated the 

additional costs and transfers associated 

with implementing this WIOA-required 

Final Rule from the existing program 

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4For simplicity, the Department’s use of the term 

‘‘States’’ in this RIA refers to the 50 States; the 

District of Columbia; the U.S. territories of 

American Samoa, Guam, the Commonwealth of the 

Northern Mariana Islands, the Commonwealth of 

Puerto Rico, and the Virgin Islands; and the 

Republic of Palau, a country in free association with 

the United States. 

5Based on internal Department of Labor data. 

6 Department of Labor estimate. 

7 Ibid. 

8U.S. Department of Education, U.S. Department 

of Labor, and U.S. Department of Health and 

Human Services. (2014). Viewing Party Guide. 

National Dialogue on Career Pathways Retrieved 

from: https://learnwork.workforce3one.org/view/

2001425433998607383/info. 9 Department of Labor estimate. 

10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 

16Bureau of Labor Statistics. (2016). May 2015 

national industry-specific occupational 

employment and wage estimates: NAICS 999200— 

State government, excluding schools and hospitals 

(OES designation). Retrieved from: http://

www.bls.gov/oes/current/naics4_999200.htm. 

17Bureau of Labor Statistics. (2016). May 2015 

national industry-specific occupational 

employment and wage estimates: NAICS 999300— 

Local government, excluding schools and hospitals 

(OES designation). Retrieved from: http://

www.bls.gov/oes/current/naics4_999300.htm. 

18The Department believes that the overhead 

costs associated with this Final Rule are small 

because the additional activities required by the 

Final Rule will be performed by existing employees 

whose overhead costs are already covered. 

However, acknowledging that there might be 

additional overhead costs, as a sensitivity analysis 

of results, we calculated the impact of more 

significant overhead costs by including an overhead 

rate of 17 percent. This rate has been used by the 

Environmental Protection Agency (EPA) in its final 

rules (see, for example, EPA Electronic Reporting 

under the Toxic Substances Control Act Final Rule, 

Supporting & Related Material), and is based upon 

a Chemical Manufacturers Association study. An 

overhead rate from chemical manufacturing may 

not be appropriate for all industries, so there may 

be substantial uncertainty concerning the estimates 

based on this illustrative example. (In contrast, 

DOL’s Employee Benefits Security Administration 

(EBSA) includes overhead costs that are 

substantially higher and more variable across 

employee types than EPA’s—between 39 and 138 

percent of base wages for compensation and 

benefits managers, lawyers, paralegals and other 

legal assistants, and computer systems analysts—as 

presented in detail at www.dol.gov/ebsa/pdf/laborcost-inputs-used-in-ebsa-opr-ria-and-pra-burdencalculations-march-2016.pdf.) Using an overhead 

rate of 17 percent would increase the total cost of 

the Final Rule by 17 percent, from $89.9 million in 

Year 1 to $105.1 million. Over the 10-year period, 

using an overhead rate of 17 percent would increase 

the total undiscounted cost of the Final Rule from 

$350.4 million to $409.9 million, or 17 percent. 

baseline, that is the current practices 

complying with, at a minimum, the 

2000 WIA Final Rule (65 FR 49294, 

Aug. 11, 2000). 

The Department explains how the 

required actions of States, Local WDBs, 

employers and training entities, 

government agencies, and other related 

entities were linked to the expected 

costs, benefits, and transfers. We also 

consider, where appropriate, the 

unintended consequences introduced by 

this Final Rule. The Department has 

made every effort, where feasible, to 

quantify and monetize the costs, 

benefits, and transfers of this Final Rule. 

We are unable to quantify benefits 

associated with the Final Rule because 

of data limitations and a lack of 

operational data or evaluation findings 

on the provisions of the Final Rule or 

WIOA in general. Therefore, we 

describe some benefits qualitatively. 

The Department has made every effort 

to quantify all incremental costs 

associated with the implementation of 

WIOA as distinct from those that 

already exist under WIA, WIOA’s 

predecessor statute. Despite our best 

efforts, however, we might be double 

counting some activities that occur 

under WIA. Thus, the costs itemized 

below represent an upper bound for the 

potential burden of implementing 

WIOA. 

In addition to this Final Rule, DOL 

and ED are publishing a Joint Final Rule 

to implement specific requirements of 

WIOA that fall under both Departments’ 

purviews (Joint WIOA Final Rule). The 

Department acknowledges that these 

final rules and their associated impacts 

might not be fully independent from 

one another, but we are unaware of a 

reliable method to quantify this 

interdependence. Therefore, this 

analysis does not capture the correlated 

impacts of the costs, benefits, and 

transfers of this Final Rule and those 

associated with the Joint WIOA Final 

Rule. 

In accordance with the regulatory 

analysis guidance articulated in Circular 

A–4 and consistent with the 

Department’s practices in previous 

rulemakings, this regulatory analysis 

focuses on the likely consequences (i.e., 

costs, benefits, and transfers that accrue 

to citizens and residents of the United 

States) of this WIOA-required Final 

Rule. The analysis covers 10 years (2016 

through 2025) to ensure it captures 

major additional costs and transfers that 

accrue over time. The Department 

expresses all quantifiable impacts in 

2015 dollars and uses 3-percent and 7- 

percent discounting following Circular 

A–4. 

Exhibit 2 presents the number of 

entities expected to experience a change 

in level of effort (workload) due to the 

requirements included in this Final 

Rule. The Department provides these 

estimates and uses them extensively 

throughout this analysis to estimate the 

cost of each provision. 

EXHIBIT 2—NUMBER OF AFFECTED

ENTITIES BY TYPE

Entity type Number of 

entities 

States impacted by DOL program requirements 4 .......... 5 57 

States without colocated 

Wagner-Peyer offices and 

one-stop delivery systems 

(one-stops) ........................ 6 10 

States without sector strategies .................................... 7 21 

States without policies for 

career pathways ................ 8 27 

States that must pay their 

share for proportionate use 

of one-stops ...................... 9 54 

States that receive sanctions 10 5 

Local areas without colocated ES offices and 

one-stops .......................... 11 100 

Local WDBs .......................... 12 580 

Local WDBs newly selecting 

one-stop operators ............ 13 250 

Local WDBs performing regional plan modifications .. 14 300 

Eligible Training Providers 

(ETPs) ............................... 15 11,400 

Estimated Number of Workers and Level 

of Effort 

The Department presents the 

estimated average number of workers 

and the estimated average level of effort 

required per worker for each activity in 

the subject-by-subject analysis. To 

derive these estimates, ETA program 

experts consulted with State programs 

to estimate the average levels of effort 

and the average number of workers 

needed for each activity to meet the 

requirements relative to the baseline 

(i.e., the current practice under WIA). 

These estimates are the national 

averages for all States; thus, some States 

could experience higher actual costs, 

while actual costs could be lower for 

other States. 

Compensation Rates 

In the subject-by-subject analysis, the 

Department presents the additional 

labor and other costs associated with the 

implementation of each provision in 

this Final Rule. Exhibit 3 presents the 

compensation rates for the occupational 

categories expected to experience an 

increase in level of effort (workload) due 

to the Final Rule. We use the BLS mean 

hourly wage rate for State and local 

employees.16 17 We adjust the wage rates 

using a loaded wage factor to reflect 

total compensation, which includes 

non-wage factors such as health and 

retirement benefits.18 For the State and 

local sectors, we use a loaded wage 

factor of 1.57, which represents the ratio 

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56294 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

19Bureau of Labor Statistics. (2016). 2015 

Employer Costs for Employee Compensation. 

Retrieved from: http://www.bls.gov/schedule/

archives/ecec_nr.htm. The Department calculated 

this value using data from Table 3. ‘‘Employer Costs 

per Hour Worked for Employee Compensation and 

Costs as a Percent of Total Compensation: State and 

Local Government Workers, by Major Occupational 

and Industry Group.’’ Total compensation for all 

workers. To calculate the average total 

compensation in 2015 of $44.53, the Department 

averaged the total compensation for all workers 

provided in March, June, September, and December 

releases. 20Bureau of Labor Statistics. (2016). 2015 

Employer Costs for Employee Compensation. 

Retrieved from: http://www.bls.gov/schedule/

archives/ecec_nr.htm. 

The Department calculated this value using data 

from Table 3. ‘‘Employer Costs per Hour Worked for 

Employee Compensation and Costs as a Percent of 

Total Compensation: State and Local Government 

Workers, by Major Occupational and Industry 

Group.’’ Wages and salaries for all workers. To 

calculate the average wage and salary in 2015 of 

$28.41, the Department averaged the wage and 

salaries for all workers provided in March, June, 

September, and December releases. 

21The State and local loaded wage factor was 

applied to all non-Federal employees. Discerning 

the number of State and local-sector employees and 

private-sector employees at the local level is 

difficult; therefore, the Department used the State 

and local-sector loaded wage factor (1.57) instead of 

the private-sector wage factor (1.44) for all nonFederal employees to avoid underestimating the 

costs. 

of average total compensation 19 to 

average wages in 2015.20 21 We then 

multiply the loaded wage factor by each 

occupational category’s wage rate to 

calculate an hourly compensation rate. 

The Department uses the hourly 

compensation rates presented in Exhibit 

3 throughout this analysis to estimate 

the labor costs for each provision. 

EXHIBIT 3—COMPENSATION RATES

[2015 dollars] 

Position 

Average 

hourly 

wage rate 

Loaded wage 

factor 

Hourly 

compensation 

rate 

a b c = a × b 

Local Employees 

Computer systems analysts ........................................................................................................ $38.70 1.57 $60.76 

Database administrators .............................................................................................................. 37.96 ........................ 59.60 

Lawyers ........................................................................................................................................ 47.63 ........................ 74.78 

Management analysts .................................................................................................................. 38.60 ........................ 60.60 

Management occupations staff .................................................................................................... 40.53 ........................ 63.63 

Secretaries and administrative assistants ................................................................................... 18.66 ........................ 29.30 

Social workers ............................................................................................................................. 25.77 ........................ 40.46 

State Employees 

Chief executive ............................................................................................................................ 54.26 1.57 85.19 

Computer systems analysts ........................................................................................................ 35.78 ........................ 56.17 

Database administrators .............................................................................................................. 36.32 ........................ 57.02 

Lawyers ........................................................................................................................................ 41.71 ........................ 64.48 

Management analysts .................................................................................................................. 29.22 ........................ 45.88 

Management occupations staff .................................................................................................... 41.65 ........................ 65.39 

Secretaries and administrative assistants ................................................................................... 17.30 ........................ 27.16 

Social and community service managers .................................................................................... 34.53 ........................ 54.21 

Social workers ............................................................................................................................. 22.43 ........................ 35.22 

At a minimum, all affected entities are 

currently required to comply with the 

2000 WIA Final Rule (65 FR 49294, 

Aug. 11, 2000); however, some affected 

entities might already comply with 

some provisions of the Final Rule. This 

analysis estimates the incremental costs 

and transfers that affected entities that 

are not yet compliant with the Final 

Rule will incur. The equation below 

shows the method the Department uses 

to calculate the incremental total cost 

for each provision over the 10-year 

analysis period. The methodology used 

in estimating the quantifiable transfers 

is provided in the subject-by-subject 

analysis. 

Where, 

Al Number of affected entities that will 

incur labor costs, 

Ni Number of staff of occupational category 

i, 

Hi Hours required per staff of occupational 

category i, 

Wi Mean hourly wage rate of staff of 

occupational category i, 

Li Loaded wage factor of staff of 

occupational category i, 

Aj Number of affected entities incurring 

non-labor costs of type j, 

Cj Non-labor cost of type j, 

i Occupational category, 

n Number of occupational categories, 

j Non-labor cost type, 

m Number of non-labor cost types, and 

T Year. 

The total cost of each provision is 

calculated as the sum of the total labor 

cost and total non-labor cost incurred 

each year over the 10-year period (see 

Exhibit 28 for the average annual cost of 

the Final Rule by provision). The total 

labor cost is the sum of the labor costs 


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22This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

for each occupational category i (e.g., 

computer systems analyst, database 

administrators, and lawyers) multiplied 

by the number of affected entities that 

will incur labor costs, Al. The labor cost 

for each occupational category i is 

calculated by multiplying the number of 

staff required to perform the required 

activity, Ni; the hours required per staff 

member to perform the required 

activity, Hi; the mean hourly wage rate 

of staff of occupational category i, Wi; 

and the loaded wage factor of staff of 

occupational category i, Li. The total 

non-labor cost is the sum of the nonlabor costs for each non-labor cost type 

j (e.g., consulting costs) multiplied by 

the number of affected entities that will 

incur non-labor costs, Aj. 

Transfer Payments 

In addition, the Department provides 

an assessment of transfer payments 

associated with transitioning the 

Nation’s public workforce system from 

the requirements of WIA to the new 

requirements of WIOA. In accordance 

with Circular A–4, we consider transfer 

payments as payments from one group 

to another that do not affect total 

resources available to society. 

One example of transfer payments 

results from the expectation that 

available U.S. workers trained and hired 

who were previously unemployed will 

no longer seek new or continued 

unemployment insurance benefits. 

Assuming other factors remain constant, 

the Department expects State 

unemployment insurance expenditures 

to decline because of the hiring of U.S. 

workers following WIOA 

implementation. We, however, cannot 

quantify all transfer payments due to a 

lack of adequate data. 

5. Updates to the Cost-Benefit Analysis 

for the Final Rule 

In total, the Department estimates that 

this Final Rule will generate costs over 

a 10-year period. The Final Rule is 

estimated to result in 10-year 

undiscounted costs of $350.4 million (in 

2015 dollars). In the NPRM, the 

Department estimated that the proposed 

rule would result in $384.4 million in 

undiscounted costs (in 2013 dollars). 

The Final Rule also quantifies transfer 

payments of $128.9 million (in 2015 

dollars). As discussed below, after 

reviewing public comments and with 

further consultation with program 

experts in the DOL program areas, we 

updated the cost and transfer analyses 

and made changes to specific provisions 

in the NPRM that affected costs and 

transfers. While the updates made to 

each provision (i.e., changes from the 

NPRM estimates) are discussed under 

the relevant headings below, a detailed 

description of each cost provision 

remains in section V.A.6 (Subject-bySubject Analysis). 

General Updates 

In the Final Rule economic analysis, 

the Department updates all costs and 

transfers to 2015 dollars from 2013 

dollars in the NPRM. This update 

increases the estimated costs and 

transfers of the Final Rule relative to the 

costs presented in the NPRM. 

In addition, the Department has made 

several updates to labor costs. First, we 

use more specific occupational 

categories than those used in the NPRM 

(i.e., administrative staff, WDB 

members, counsel staff, local 

stakeholders, managers, and technical 

staff). In the Final Rule, the 

occupational categories include chief 

executives, computer systems analysts, 

database administrators, lawyers, 

management analysts, management 

occupations staff, secretaries and 

administrative assistants, social and 

community service managers, and social 

workers. Due to the numerous changes 

made in the analysis, which are 

described in detail below, these 

occupational categories add more 

specificity to the labor costs, but 

determining whether they had a positive 

or negative effect on costs or transfers 

was not possible. 

Second, the Department has updated 

labor costs, including wage rates and 

loaded wage factors, to reflect 2015 BLS 

data. Furthermore, instead of using State 

government employee wage rates for 

workers at both the State level and local 

level as in the NPRM, we applied wage 

rates for State government employees 

and local government employees to 

workers at the State and local levels, 

respectively. Depending on the 

occupational category, the State-level 

wage rate could be higher or lower than 

the corresponding local-level wage rate; 

thus, determining whether this had a 

positive or negative effect on costs was 

not possible. 

Third, based on further discussions 

with program experts, the Department 

has increased the overall number of 

States from 56 to 57 in the Final Rule 

because we concluded that the WIOA 

requirements also will affect the 

Republic of Palau. 

New State WDB Membership 

Requirements 

This section describes the updates to 

the NPRM’s provision (a) ‘‘New State 

Workforce Development Board 

Membership Requirements.’’ In this 

Final Rule’s subject-by-subject analysis, 

costs related to this provision are found 

in provision (a) ‘‘New State WDB 

Membership Requirements.’’ The cost of 

this provision reflects the cost for States 

to establish State WDBs in accordance 

with the membership requirements. The 

total undiscounted 10-year cost of this 

provision decreased from $313,000 in 

the NPRM to $272,000 in the Final 

Rule.22

At the State level for the DOL 

programs, the Department made the 

changes presented in Exhibit 4. We 

replaced the manager with the more 

precise occupational categories of chief 

executives and management 

occupations staff. We assumed that 25 

percent of the effort would be the 

responsibility of a chief executive and 

75 percent of a management 

occupations staff member. We also 

replaced the technical staff with the 

more precise occupational category of 

management analyst. 

EXHIBIT 4—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—NEW STATE WDB MEMBERSHIP REQUIREMENTS

NPRM Final rule 

(a) New state workforce development board membership requirements (a) New state WDB membership requirements 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 20 One time ........ 56 States ........ Chief executive ............. 1 5 One time ........ 57 States. 

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23See provision (f) ‘‘Identification of Regions’’ 

below for revised cost estimates related to the 

second item, identifying regions and designating 

local areas. 

24This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 4—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—NEW STATE WDB MEMBERSHIP REQUIREMENTS— 

Continued 

NPRM Final rule 

(a) New state workforce development board membership requirements (a) New state WDB membership requirements 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Counsel 

staff.

1 15 Management occupations staff.1 15 

Technical 

staff.

2 20 Lawyer .......................... 1 15 

Admin. staff 1 20 Management analyst .... 2 20 

Secretary or admin. assistant.1 20 

Development and Continuous 

Improvement of the Workforce 

Development System 

This section describes the updates to 

the NPRM’s provision (b) ‘‘Development 

and Continuous Improvement of the 

Workforce Development System.’’ In the 

Final Rule’s subject-by-subject analysis, 

this cost provision and provision (f) 

‘‘Identification of Regions,’’ have been 

combined in the Final Rule to form 

provision (b) ‘‘Development and 

Continuous Improvement of the 

Workforce Development System.’’ This 

provision of the Final Rule estimates the 

cost for State WDBs to assist State 

Governors in: (1) The development and 

continuous improvement of the State’s 

workforce development systems, and (2) 

the identification of regions, including 

planning regions, and the designation of 

local areas, after consultation with Local 

WDBs and chief elected officials (CEOs). 

The cost estimate for the first item was 

initially included in provision (b) of the 

NPRM along with a portion of the 

second item.23 For these items, the total 

undiscounted 10-year cost decreased 

from $92.1 million in the NPRM to 

$65.5 million in the Final Rule.24

Exhibit 5 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

EXHIBIT 5—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DEVELOPMENT AND CONTINUOUS IMPROVEMENT OF

THE WORKFORCE DEVELOPMENT SYSTEM

NPRM Final rule 

(b) Development and continuous improvement of the workforce development 

system 

(b) Development and continuous improvement of the workforce development system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Sector Strategies Sector Strategies 

Manager ..... 1 300 Annual ............ 21 States ........ Management occupations staff.1 300 Annual ............ 21 States 

w/o extensive 

and systematic 

sector 

strategies. 

Technical 

staff.

2 1,260 Management analyst .... 2 1,260 

Career Pathways Career Pathways 

Manager ..... 1 300 Annual ............ 27 States ........ Management occupations staff.1 300 Annual ............ 27 States 

w/o policies for 

career 

pathways. 

Technical 

staff.

2 1,260 Management analyst .... 2 1,260 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56297 

25This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 5—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DEVELOPMENT AND CONTINUOUS IMPROVEMENT OF

THE WORKFORCE DEVELOPMENT SYSTEM—Continued 

NPRM Final rule 

(b) Development and continuous improvement of the workforce development 

system 

(b) Development and continuous improvement of the workforce development system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Identify Regions Identify Regions 

Manager ..... 1 40 One time ........ 56 States ........ Management occupations staff.1 40 One time ........ 57 States. 

Counsel 

staff.

1 40 Lawyer .......................... 1 40 

Technical 

staff.

1 80 Management analyst .... 1 80 

Admin. staff 1 20 Secretary or admin. assistant.1 20 

Development of Statewide Policies 

Affecting the State’s One-Stop Delivery 

System 

This section describes the updates to 

the NPRM’s provision (c) ‘‘Development 

of Statewide Policies Affecting the 

State’s One-Stop System.’’ In the Final 

Rule, costs related to this provision, 

found in (d) ‘‘Development of Statewide 

Policies Affecting the State’s One-Stop 

System,’’ reflect the efforts of State 

WDBs to help Governors develop and 

review statewide policies affecting the 

coordinated provision of services 

through the States’ one-stop delivery 

systems. The total undiscounted 10-year 

cost of this provision increased from 

$1.2 million in the NPRM to $1.4 

million in the Final Rule. 

Exhibit 6 presents the updates to the 

State-level DOL program. The 

Department replaced the managers in 

our previous estimate with the more 

precise occupational categories of 

management occupations staff and 

social and community service managers. 

After consulting with program experts, 

we increased the level of effort for 

managerial staff from 40 hours to 60 

hours to account for the effort related to 

developing policies governing service 

delivery to job seekers under WIOA. We 

estimated that 30 percent of the effort 

(18 hours) would be for a management 

occupations staff member and 75 

percent (42 hours) for a social and 

community service manager. We also 

increased the level of effort for lawyers 

from 40 hours to 60 hours. In addition, 

we increased the number of technical 

staff from two to three and replaced 

them with the more precise 

occupational category of management 

analyst. 

EXHIBIT 6—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DEVELOPMENT OF STATEWIDE POLICIES AFFECTING

THE STATE’S ONE-STOP DELIVERY SYSTEM

NPRM Final rule 

(c) Development of statewide policies affecting the state’s one-stop system (d) Development of statewide policies affecting the state’s one-stop delivery system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 40 One time ........ 56 States ........ Management occupations staff.1 18 One time ........ 57 States. 

Counsel 

staff.

1 40 Social & community 

service manager.

1 42 

Technical 

staff.

2 120 Lawyer .......................... 1 60 

Management analyst .... 3 120 

Development of Strategies for 

Technological Improvements 

This section describes the updates to 

the NPRM’s provision (d) ‘‘Development 

of Strategies for Technological 

Improvements.’’ In the Final Rule, costs 

related to this provision can be found in 

provision (e) ‘‘Development of Strategies 

for Technological Improvements.’’ The 

cost of this provision reflects the efforts 

of State WDBs to help Governors 

develop strategies for technological 

improvements to facilitate access to and 

improve the quality of services and 

activities provided through the one-stop 

delivery system. The total undiscounted 

10-year cost of this provision decreased 

from $2.3 million in the NPRM to $2.0 

million in the Final Rule.25

Exhibit 7 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of computer systems analyst. 

mstockstill on DSK3G9T082PROD with RULES6

56298 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

26This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 7—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DEVELOPMENT OF STRATEGIES FOR TECHNOLOGICAL

IMPROVEMENTS

NPRM Final rule 

(d) Development of strategies for technological improvements (e) Development of strategies for technological improvements 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 20 Annual ............ 56 States ........ Management occupations staff.1 20 Annual ............ 57 States. 

Technical 

staff.

1 40 Computer systems analysts.1 40 

State Plan Modification 

This section describes the updates to 

the NPRM’s provision (e) ‘‘State Plan 

Modification.’’ After careful 

consideration, the Department has 

decided that incremental costs related to 

State Plan modifications are captured in 

the costs for Unified and Combined 

State Plan biennial modifications in the 

Joint WIOA Final Rule. See provision 

(b) ‘‘Unified or Combined State Plans: 

Expanded Content, Biennial 

Modification, and Submission 

Coordination Requirements’’ of the Joint 

WIOA Final Rule economic analysis. 

Therefore, the total undiscounted 10- 

year cost of this provision of $135,000 

in the NPRM was removed in the Final 

Rule. Exhibit 8 presents the updates to 

the State-level DOL program. 

EXHIBIT 8—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—STATE PLAN MODIFICATION

NPRM Final rule 

(e) State plan modification Moved to joint DOL–ED final rule 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 10 4th year .......... 56 States ........ N/A. See Joint WIOA Final Rule 

Counsel 

staff.

1 4 

Technical 

staff.

2 10 

Admin. staff 1 4 

Identification of Regions 

This section describes the updates to 

the NPRM’s provision (f) ‘‘Identification 

of Regions.’’ This provision and 

provision (b) ‘‘Development and 

Continuous Improvement of the 

Workforce Development System,’’ have 

been combined in the Final Rule to form 

provision (b) ‘‘Development and 

Continuous Improvement of the 

Workforce Development System.’’ It 

reflects the efforts of State WDBs to 

assist the Governor in: (1) Developing 

and continuously improving the State’s 

workforce development system, and (2) 

identifying regions, including planning 

regions, and designating local areas, 

after consultation with Local WDBs and 

CEOs. A cost estimate for the second 

item only was initially included in 

provision (f) of the NPRM. The total 

undiscounted 10-year cost of this 

provision decreased from $1.1 million 

in the NPRM to $968,000 in the Final 

Rule.26

Exhibit 9 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

EXHIBIT 9—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—IDENTIFICATION OF REGIONS

NPRM Final rule 

(f) Identification of regions (b) Development and continuous improvement of the workforce development system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Identification of Regions 

Manager ..... 2 40 2nd & 6th 

years.

56 States ........ Management occupations staff.2 40 2nd & 6th 

years.

57 States. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56299 

27This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 9—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—IDENTIFICATION OF REGIONS—Continued 

NPRM Final rule 

(f) Identification of regions (b) Development and continuous improvement of the workforce development system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Counsel 

staff.

1 10 Lawyer .......................... 1 10 

Technical 

staff.

3 15 Management analyst .... 3 15 

Admin. staff 2 10 Secretary or admin. assistant.2 10 

Appoint New Local WDB and 

Appropriate Firewalls 

This section describes the updates to 

the NPRM’s provision (g) ‘‘Appoint New 

Local Workforce Development Board 

and Appropriate Firewalls.’’ In the Final 

Rule, costs related to this provision can 

be found in provision (f) ‘‘Appoint New 

Local WDB and Appropriate Firewalls.’’ 

It reflects the requirement to appoint 

new Local WDBs and establish 

sufficient firewalls and conflict-ofinterest policies and procedures 

approved by the Governor when a Local 

WDB is selected as a one-stop operator 

through a sole-source procurement. The 

total undiscounted 10-year cost of this 

provision decreased from $4.6 million 

in the NPRM to $4.5 million in the Final 

Rule.27

Exhibit 10 presents the updates to 

Local WDBs. In our estimates for 

appointing new Local WDBs, the 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. In our 

estimates for appropriate firewalls, the 

Department replaced the technical staff 

with the more precise occupational 

category of computer systems analyst. 

EXHIBIT 10—UPDATES TO COSTS OF LOCAL WDBS—APPOINT NEW LOCAL WDB AND APPROPRIATE FIREWALLS

NPRM Final rule 

(g) Appoint new local workforce development board and appropriate firewalls (f) Appoint new local WDB and appropriate firewalls

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Appoint New Local WDB Appoint New Local WDB 

Manager ..... 1 20 One time ........ 580 Local 

WDBs.

Management occupations staff.1 20 One time ........ 580 Local 

WDBs. 

Counsel 

staff.

1 15 Lawyer .......................... 1 15 

Technical 

staff.

2 20 Management analyst .... 2 20 

Admin. staff 1 20 Secretary or admin. assistant.1 20 

Appropriate Firewalls Appropriate Firewalls 

Manager ..... 1 8 One time ........ 580 Local 

WDBs.

Management occupations staff.1 8 One time ........ 580 Local 

WDBs. 

Counsel 

staff.

1 8 Lawyer .......................... 1 8 

Technical 

staff.

1 20 Computer systems analyst.1 20 

Career Pathways Development 

This section describes the updates to 

the NPRM’s provision (h) ‘‘Career 

Pathways Development.’’ In the Final 

Rule’s subject-by-subject analysis, costs 

related to this provision can be found in 

provision (g) ‘‘Local WDB Career 

Pathways Development.’’ The cost of 

this provision reflects the cost for Local 

WDBs, with representatives of 

secondary and postsecondary education 

programs, to lead efforts in developing 

and implementing career pathways in 

the local area by aligning the 

employment, training, education, and 

supportive services needed by adults 

and youth, particularly individuals with 

barriers to employment. The total 

undiscounted 10-year cost of this 

provision decreased from $70.7 million 

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56300 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

28This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

29This variance in cost is a result of increasing 

the number of affected entities from 56 States to 580 

Local WDBs. Because the activities performed will 

be similar for workers at the State and local level, 

the level of effort was not reduced. 

30This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

in the NPRM to $65.4 million in the 

Final Rule.28

Exhibit 11 presents the updates 

related to Local WDBs. The Department 

replaced the technical staff in our 

previous estimate with the more precise 

occupational category of management 

analyst. All other aspects of the 

analysis, including the number of hours 

by occupational category, remain 

unchanged. 

EXHIBIT 11—UPDATES TO COSTS OF LOCAL WDBS—CAREER PATHWAYS DEVELOPMENT

NPRM Final rule 

(h) Career pathways development (g) Local WDB career pathways development 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 80 Annual ............ 580 Local 

WDBs.

Management occupations staff.1 80 Annual ............ 580 Local 

WDBs. 

Counsel 

staff.

1 10 Lawyer .......................... 1 10 

Technical 

staff.

1 80 Management analyst .... 1 80 

Admin. staff 1 20 Secretary or admin. assistant.1 20 

Development of Proven and Promising 

Practices 

This section describes the updates to 

the NPRM’s provision (i) ‘‘Development 

of Proven and Promising Practices.’’ In 

the Final Rule, costs related to this 

provision can be found in provision (h) 

‘‘Local WDB Development of Proven 

and Promising Practices.’’ It reflects the 

cost for Local WDBs to lead local efforts 

in identifying and promoting proven 

and promising strategies and initiatives 

for meeting the needs of employers, 

workers, and job seekers (including 

individuals with barriers to 

employment). Examples include 

providing physical and programmatic 

accessibility to the one-stop delivery 

system and identifying and 

disseminating information on proven 

and promising practices conducted in 

other local areas for meeting such needs. 

The total undiscounted 10-year cost of 

this provision increased from $2.9 

million in the NPRM to $21.4 million in 

the Final Rule.29

Exhibit 12 presents the updates to the 

local-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst and 

removed the counsel and administrative 

staff because they would not be 

involved in local efforts in identifying 

and promoting proven and promising 

strategies at the Local WDB level. 

EXHIBIT 12—UPDATES TO COSTS OF LOCAL-LEVEL DOL PROGRAMS—DEVELOPMENT OF PROVEN AND PROMISING

PRACTICES

NPRM Final rule 

(i) Development of proven and promising practices (h) Local WDB development of proven and promising practices 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 20 Annual ............ 56 States ........ Management occupations staff.1 20 Annual ............ 580 Local 

WDBs 

Counsel 

staff.

1 10 Management analyst .... 1 40 

Technical 

staff.

1 40 

Admin. staff 1 15 

Technology 

This section describes the updates to 

the NPRM’s provision (j) ‘‘Technology.’’ 

In the Final Rule, costs related to this 

provision can be found in provision (i) 

‘‘Local WDB Development of 

Technology Strategies for Public 

Workforce System Accessibility and 

Effectiveness.’’ It reflects the efforts of 

Local WDBs to develop strategies for 

using technology to maximize the 

accessibility and effectiveness of the 

local workforce development system for 

employers, workers, and job seekers. 

The total undiscounted 10-year cost of 

this provision decreased from $23.7 

million in the NPRM to $21.5 million in 

the Final Rule.30

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56301 

31This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

32This variance in cost is a result of increasing 

the number of affected entities from 56 States to 580 

Local WDBs. Because the activities performed will 

be similar for workers at the State and local level, 

the level of effort was not reduced. 

Exhibit 13 presents the updates to the 

Local WDBs. The Department replaced 

the technical staff with the more precise 

occupational category of computer 

systems analyst. 

EXHIBIT 13—UPDATES TO COSTS OF LOCAL WDBS—TECHNOLOGY

NPRM Final rule 

(j) Technology (i) Local WDBs development of technology strategies for public workforce system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 20 Annual ............ 580 Local 

WDBs.

Management occupations staff.1 20 Annual ............ 580 Local 

WDBs. 

Technical 

staff.

1 40 Computer systems analyst.1 40 

Selection of the One-Stop Operator 

This section describes the updates 

made to the NPRM’s provision (k) 

‘‘Selection of the One-Stop Operator.’’ 

In the Final Rule, costs related to this 

provision can be found in provision (j) 

‘‘Competitive Process for Selection of 

the One-Stop Operator.’’ The cost of this 

provision reflects Local WDBs’ selection 

of a one-stop operator through a 

competitive process. The total 

undiscounted 10-year cost of this 

provision decreased from $19.0 million 

in the NPRM to $14.2 million in the 

Final Rule.31

Exhibit 14 presents the updates to 

Local WDBs. The Department replaced 

the technical staff with the more precise 

occupational category of social worker. 

EXHIBIT 14—UPDATES TO COSTS OF LOCAL WDBS—SELECTION OF THE ONE-STOP OPERATOR

NPRM Final rule 

(k) Selection of the one-stop operator (j) Competitive process for selection of the one-stop operator 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 80 2nd, 6th, & 

10th years.

250 Local 

WDBs newly 

selecting 

one-stop operators.

Management occupations staff.1 80 2nd, 6th, & 

10th years.

250 Local 

WDBs 

newly 

selecting 

one-stop 

operators. 

Counsel 

staff.

1 40 Lawyer .......................... 1 40 

Technical 

staff.

2 120 Social worker ................ 2 120 

Admin. staff 1 40 Secretary or admin. assistant.1 40 

Coordination With Education Providers 

This section describes the updates to 

the NPRM’s provision (l) ‘‘Coordination 

with Education Providers.’’ In the Final 

Rule, costs related to this provision can 

be found in provision (k) ‘‘Local WDB 

Coordination with Education 

Providers.’’ The cost of this provision 

reflects Local WDBs coordinating 

activities with education and training 

providers in the local area. The total 

undiscounted 10-year cost of this 

provision increased from $3.2 million in 

the NPRM to $21.4 million in the Final 

Rule.32

Exhibit 15 presents the updates to the 

local-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. We 

removed the counsel and administrative 

staff because they would not be 

involved in this effort at the Local WDB 

level. 

mstockstill on DSK3G9T082PROD with RULES6

56302 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

33This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

34This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 15—UPDATES TO COSTS OF LOCAL-LEVEL DOL PROGRAMS—COORDINATION WITH EDUCATION PROVIDERS

NPRM Final rule 

(l) Coordination with education providers (k) Local WDB coordination with education providers 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 30 Annual ............ 56 States ........ Management occupations staff.1 20 Annual ............ 580 Local 

WDBs. 

Counsel 

staff.

1 10 Management analyst .... 1 40 

Technical 

staff.

1 40 

Admin. staff 1 10 

Regional Plans 

This section describes the updates to 

the NPRM’s provision (m) ‘‘Regional 

Plans.’’ In the Final Rule, costs related 

to this provision can be found in 

provision (l) ‘‘Regional Plans.’’ The cost 

of this provision reflects the efforts of 

Local WDBs and CEOs within a 

planning region to prepare, submit to 

the State, and obtain approval of a 

single regional plan that includes a 

description of the regional planning 

activities described in WIOA and 

incorporates local plans for each local 

area in the planning region. The total 

undiscounted 10-year cost of this 

provision decreased from $10.3 million 

in the NPRM to $9.5 million in the Final 

Rule.33

Exhibit 16 presents the updates to 

Local WDBs. The Department replaced 

the technical staff with the more precise 

occupational category of management 

analyst. 

EXHIBIT 16—UPDATES TO COSTS OF LOCAL WDBS—REGIONAL PLANS

NPRM Final rule 

(m) Regional plans (l) Regional plans 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 2 20 2nd & 6th 

years.

580 Local 

WDBs.

Management occupations staff.2 20 2nd & 6th 

years.

580 Local 

WDBs. 

Counsel 

staff.

1 8 Lawyer .......................... 1 8 

Technical 

staff.

2 40 Management analyst .... 2 40 

Admin. staff 1 8 Secretary or admin. assistant.1 8 

Local and Regional Plan Modification 

This section describes the updates to 

the NPRM’s provision (n) ‘‘Local and 

Regional Plan Modification.’’ In the 

Final Rule, costs related to this 

provision can be found in provision (m) 

‘‘Local and Regional Plan 

Modification.’’ The cost of this 

provision reflects the efforts of each 

Local WDB, in partnership with the 

CEO, to review the local plan every 2 

years and submit a modification as 

needed, based on significant changes in 

labor market and economic conditions 

and other factors. The total 

undiscounted 10-year cost of this 

provision decreased from $4.1 million 

in the NPRM to $3.8 million in the Final 

Rule.34

Exhibit 17 presents the updates to the 

Local WDBs for regional plans. For local 

and regional plan modification, the 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56303 

35This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 17—UPDATES TO COSTS OF LOCAL-LEVEL BOARDS—LOCAL AND REGIONAL PLAN MODIFICATION

NPRM Final rule 

(n) Local and regional plan modification (m) Local and regional plan modification 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Local Plan Modification Local Plan Modification 

Manager ..... 1 10 4th year .......... 580 Local 

WDBs.

Management occupations staff.1 10 4th year .......... 580 Local 

WDBs. 

Counsel 

staff.

1 4 Lawyer .......................... 1 4 

Technical 

staff.

2 10 Management analyst .... 2 10 

Admin. staff 1 4 Secretary or admin. assistant.1 4 

Regional Plan Modification Regional Plan Modification 

Manager ..... 2 10 4th & 8th years 300 Local 

WDBs that 

will modify 

regional 

plans.

Management occupations staff.2 10 4th & 8th years 300 Local 

WDBs 

that will 

modify 

regional 

plans. 

Counsel 

staff.

1 4 Lawyer .......................... 1 4 

Technical 

staff.

2 20 Management analyst .... 2 20 

Admin. staff 1 5 Secretary or admin. assistant.1 5 

Improved Information About Potential 

Training Program Providers 

This section describes the updates to 

the NPRM’s provision (o) ‘‘Improved 

Information about Potential Training 

Program Providers.’’ In the Final Rule, 

costs related to this provision can be 

found in provision (n) ‘‘Improved 

Information about Eligible Training 

Program Providers.’’ The cost of this 

provision reflects the efforts of Statemaintained Eligible Training Provider 

Lists (ETPLs) to provide information to 

the public on the effectiveness of 

Eligible Training Providers (ETPs) in 

achieving positive outcomes for WIOA 

training participants. The total 

undiscounted 10-year cost of this 

provision increased from $5.5 million in 

the NPRM to $4.5 million in the Final 

Rule.35

Exhibit 18 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

in our previous estimate with the more 

precise occupational category of 

management analyst. 

EXHIBIT 18—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—IMPROVED INFORMATION ABOUT POTENTIAL

TRAINING PROGRAM PROVIDERS

NPRM Final rule 

(o) Improved information about potential training program providers (n) Improved information about eligible training program providers 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 32 Annual ............ 56 States ........ Management occupations staff.1 32 Annual ............ 57 States. 

Technical 

staff.

2 40 Management analyst .... 2 40 

Admin. staff 1 80 Secretary or admin. assistant.1 80 

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56304 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

36This variance in cost is a result of the reduction 

in the number of affected States. 

37This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

38Bureau of Labor Statistics. (2016). CPI Detailed 

Report Data for February 2016. Retrieved from: 

http://www.bls.gov/cpi/cpid1602.pdf. 

The Department calculated the inflation factor of 

1.02 using data from Table 24. ‘‘Historical 

Consumer Price Index for All Urban Consumers 

(CPI–U): U.S. City Average, All Items.’’ To calculate 

the inflation factor, the Department divided the 

average annual CPI–U for 2015 by the average 

annual CPI–U for 2013 (=237.017/232.957). 

Sanctions on Under-Performing States 

This section describes the updates to 

the NPRM’s provision (p) ‘‘Sanctions on 

Under-Performing States.’’ In the Final 

Rule, costs related to this provision can 

be found in provision (o) ‘‘Sanctions on 

Under-Performing States.’’ It reflects the 

costs related to States that are 

sanctioned when they fail to meet the 

State-adjusted levels of performance for 

a program for a second consecutive 

program year or if they fail to submit a 

report for any program year. The total 

undiscounted 10-year cost related to 

this provision decreased from $5.2 

million in the NPRM to $408,000 in the 

Final Rule.36

Exhibit 19 presents the updates to the 

State-level DOL program. In the NPRM, 

the Department accounted for the cost of 

each State to calculate the annual 

performance levels of its core programs 

to determine whether it is subject to 

sanctions. After consulting with our 

program experts, the Department 

acknowledges that the determination on 

whether States receive sanctions will be 

made at the Federal level using an 

objective statistical model. This cost is 

now accounted for in provision (c) of 

the Joint WIOA Final Rule economic 

analysis. In this DOL WIOA Final Rule, 

the Department is now accounting only 

for costs associated with receiving a 

sanction. We reduced the number of 

States from 56 to 5 because only five 

States, at most, are expected to receive 

a sanction each year. We replaced the 

technical staff in our previous estimate 

with the more precise occupational 

category of management analyst. 

EXHIBIT 19—UPDATES TO COSTS FOR STATE-LEVEL DOL PROGRAMS—SANCTIONS ON UNDER-PERFORMING STATES

NPRM Final rule 

(p) Sanctions on under-performing states (o) Sanctions on under-performing states 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 40 Annual ............ 56 States ........ Chief executive ............. 1 40 Annual ............ 5 States. 

Technical 

staff.

1 80 Management analyst .... 1 80 

Admin. staff 1 40 Secretary or admin. assistant.1 40 

Colocation of ES Services 

This section describes the updates to 

the NPRM’s provision (q) ‘‘Colocation of 

Wagner-Peyser Services.’’ In the Final 

Rule, costs related to this provision can 

be found in provision (p) ‘‘Colocation of 

ES Services.’’ The cost of this provision 

reflects the requirement for ES offices 

and one-stop centers to colocate. The 

total undiscounted 10-year cost for this 

provision decreased from $63.9 million 

in the NPRM to $57.9 million in the 

Final Rule.37

Exhibit 20 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. In 

addition, we inflated the consultant cost 

from $10,000 in 2013 dollars to $10,200 

in 2015 dollars.38 The consultants will 

assist with planning, property issues 

(e.g., selling buildings currently owned 

by ES and finding buildings that meet 

certain safety requirements), and 

integrating information technology (IT) 

and case management systems. 

EXHIBIT 20—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—COLOCATION OF ES SERVICES

NPRM Final rule 

(q) Colocation of ES services (p) Colocation of ES services 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 10 40 One time ........ 10 States ........ Management occupations staff.10 40 One time ........ 10 States. 

Counsel 

staff.

10 10 Lawyer .......................... 10 10 

Technical 

staff.

20 25 Management analyst .... 20 25 

Admin. staff 10 5 Secretary or admin. assistant.10 5 

Consultant 

cost.

$10,000 Consultant cost ............. $10,200 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56305 

Exhibit 21 presents the updates to the 

local-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

EXHIBIT 21—UPDATES TO COSTS OF LOCAL-LEVEL DOL PROGRAMS—COLOCATION OF ES SERVICES

NPRM Final rule 

(q) Colocation of ES services (p) Colocation of ES services 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 100 40 One time ........ 100 Local 

areas.

Management occupations staff.100 40 One time ........ 100 Local 

areas. 

Technical 

staff.

200 25 Management analyst .... 200 25 

Admin. staff 100 5 Secretary or admin. assistant.100 5 

Partners Required To Pay Their Share 

for Proportionate Use of One-Stop 

Delivery System 

This section describes the updates to 

the NPRM’s provision (r) ‘‘Partners 

Required to Pay their Share for 

Proportionate Use of One-Stop Delivery 

System.’’ In the Final Rule, costs related 

to this provision can be found in 

provision (q) ‘‘Partners Required to Pay 

their Share for Proportionate Use of 

One-Stop Delivery System.’’ It reflects 

the cost related to each one-stop partner 

contributing its proportional share to 

the funding of one-stop infrastructure 

costs. The total undiscounted 10-year 

cost decreased from $68.0 million in the 

NPRM to $45.6 million in the Final 

Rule. 

Exhibit 22 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of social worker. All other 

aspects of the analysis, including the 

number of hours by occupational 

category, remain unchanged. 

EXHIBIT 22—UPDATES TO COSTS FOR STATE-LEVEL DOL PROGRAMS—PARTNERS REQUIRED TO PAY THEIR SHARE FOR

PROPORTIONATE USE OF ONE-STOP DELIVERY SYSTEM

NPRM Final rule 

(r) Partners required to pay their share for proportionate use of one-stop delivery system (q) Partners required to pay their share for proportionate use of one-stop delivery 

system 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 50 40 3rd, 6th, & 9th 

years.

54 States that 

need to pay 

their proportional share.

Management occupations staff.50 40 3rd, 6th, & 9th 

years.

54 States 

that 

need to 

pay their 

proportional 

share. 

Counsel 

staff.

50 1 Lawyer .......................... 50 1 

Technical 

staff.

100 40 Social worker ................ 100 40 

Admin. staff 50 5 Secretary or admin. assistant.50 5 

Establishing Training Provider 

Eligibility Procedures, Including Adding 

Registered Apprenticeship 

This section describes the updates to 

the NPRM’s provision (s) ‘‘Establishing 

Training Provider Eligibility Procedures, 

Including Adding Registered 

Apprenticeship.’’ In the Final Rule, 

costs related to this provision can be 

found in provision (r) ‘‘Establishing 

Training Provider Eligibility Procedures, 

Including Procedures for Adding 

Registered Apprenticeship Programs to 

the State Eligible Training Provider 

List.’’ The cost of this provision reflects 

the efforts of the Governor, after 

consultation with the State WDB, to 

establish criteria, information 

requirements, and procedures for the 

eligibility of providers of training 

services to receive funds under WIOA 

for the provision of training services in 

local areas in the State (i.e., procedures 

for initial determination and renewals of 

eligibility). The total undiscounted 10- 

year cost related to this provision 

increased from $529,000 in the NPRM to 

$2.5 million in the Final Rule. 

Exhibit 23 presents the updates to the 

State-level DOL program. For 

establishing eligibility procedures for 

training providers, the Department 

replaced the technical staff with the 

more precise occupational category of 

management analyst. We also added a 

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56306 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

39This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

burden for reporting: One database administrator per ETP that will incur a 

3-hour, one-time cost. 

EXHIBIT 23—UPDATES TO COSTS TO STATE-LEVEL DOL PROGRAMS—ESTABLISHING TRAINING PROVIDER ELIGIBILITY

PROCEDURES, INCLUDING ADDING REGISTERED APPRENTICESHIP

NPRM Final rule 

(s) Establishing training provider eligibility procedures, including adding registered apprenticeship (r) Establishing training provider eligibility procedures, including procedures for 

adding registered apprenticeship programs to the state eligible training provider list 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Establishing Training Provider Eligibility Procedures 

Manager ..... 1 40 One time ........ 56 States ........ Management occupations staff.1 40 One time ........ 57 States. 

Counsel 

staff.

1 20 Lawyer .......................... 1 20 

Technical 

staff.

1 80 Management analyst .... 1 80 

Reporting 

Database administrator 1 3 One time ........ 11,400 

ETPs. 

Determining Eligibility of New and 

Previously Eligible Providers 

This section describes the updates to 

the NPRM’s provision (t) ‘‘Determining 

Eligibility of New and Previously 

Eligible Providers.’’ In the Final Rule, 

costs related to this provision can be 

found in provision (s) ‘‘Determining 

Initial Eligibility of New and Previously 

Eligible Providers.’’ The costs reflect the 

efforts of the Governor, after 

consultation with the State WDB, to 

establish procedures for determining 

eligibility of providers and include 

application and renewal procedures, 

eligibility criteria, and information 

requirements. The total undiscounted 

10-year cost of this provision decreased 

from $1.1 million in the NPRM to 

$879,000 in the Final Rule. 

Exhibit 24 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

EXHIBIT 24—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DETERMINING ELIGIBILITY OF NEW AND

PREVIOUSLY ELIGIBLE PROVIDERS

NPRM Final rule 

(t) Determining eligibility of new and previously eligible providers (s) Determining initial eligibility of new and previously eligible providers 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 40 One time ........ 56 States ........ Management occupations staff.1 40 One time ........ 57 States. 

Technical 

staff.

2 110 Management analyst .... 2 110 

Admin. staff 2 50 Secretary or admin. assistant.2 50 

Biennial Review of Eligibility 

This section describes the updates to 

the NPRM’s provision (u) ‘‘Biennial 

Review of Eligibility.’’ In the Final Rule, 

costs related to this provision can be 

found in provision (t) ‘‘Biennial Review 

of Training Provider Eligibility.’’ The 

cost of this provision reflects the costs 

of training providers to submit 

information for evaluation as specified 

in the Governor’s eligibility criteria, 

information requirements, and 

procedures. The total undiscounted 10- 

year cost of this provision decreased 

from $2.7 million in the NPRM to $2.1 

million in the Final Rule.39

Exhibit 25 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56307 

40This variance in cost is a result of the 

Department’s updates of the wage rates used 

throughout this analysis. 

EXHIBIT 25—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—BIENNIAL REVIEW OF ELIGIBILITY

NPRM Final rule 

(u) Biennial review of eligibility (t) Biennial review of eligibility 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 30 4th, 6th, 8th, & 

10th years.

56 States ........ Management occupations staff.1 30 4th, 6th, 8th, & 

10th years.

57 States. 

Technical 

staff.

2 60 Management analyst .... 2 60 

Admin. staff 2 30 Secretary or admin. assistant.2 30 

Disseminating the Training Provider 

List With Accompanying Information 

This section describes the updates to 

the NPRM’s provision (v) 

‘‘Disseminating the Training Provider 

List with Accompanying Information.’’ 

In the Final Rule, costs related to this 

provision can be found in provision (u) 

‘‘Disseminating the Training Provider 

List with Accompanying Information.’’ 

The cost of this provision reflects the 

efforts of the Governor or State agency 

to disseminate the State ETPL and 

accompanying performance and cost 

information to Local WDBs in the State 

and to members of the public. The total 

undiscounted 10-year cost of this 

provision decreased from $1.7 million 

in the NPRM to $1.5 million in the Final 

Rule.40

Exhibit 26 presents the updates to the 

State-level DOL program. The 

Department replaced the technical staff 

with the more precise occupational 

category of management analyst. 

EXHIBIT 26—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—DISSEMINATING THE TRAINING PROVIDER LIST

WITH ACCOMPANYING INFORMATION

NPRM Final rule 

(v) Disseminating the training provider list with accompanying information (u) Disseminating the training provider list with accompanying information 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Manager ..... 1 30 One time ........ 56 States ........ Management occupations staff.1 30 One time ........ 57 States. 

Technical 

staff.

2 80 Management analyst .... 2 80 

Admin. staff 2 45 Secretary or admin. assistant.2 45 

IT reprogramming or 

database 

staff.

2 125 Database administrator 2 125 

Migrant and Seasonal Farmworker 

Housing 

This section describes the updates to 

the NPRM’s provision (w) ‘‘Migrant and 

Seasonal Farmworker Housing.’’ The 

cost of this provision was not quantified 

in the NPRM because this this provision 

has been rescinded in the Final Rule. 

In addition, the Department moved 

one provision that appeared in the Joint 

WIOA NPRM to this DOL WIOA Final 

Rule. The Department describes this 

provision below. 

Identification and Dissemination of Best 

Practices 

After careful consideration, the 

Department has concluded that the costs 

associated with provision (d) 

‘‘Identification and Dissemination of 

Best Practices’’ in the Joint WIOA 

NPRM economic analysis are more 

appropriate for this Final Rule because 

the requirement affects State WDBs 

only. The costs of this provision reflect 

efforts by State WDBs to assist 

Governors in identifying and 

disseminating best practices. This 

provision results in a total undiscounted 

10-year cost of $3.1 million. 

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56308 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

EXHIBIT 27—UPDATES TO COSTS OF STATE-LEVEL DOL PROGRAMS—IDENTIFICATION AND DISSEMINATION OF BEST

PRACTICES

NPRM Final rule 

Moved from joint WIOA NPRM (c) Identification and dissemination of best practices 

Labor 

category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

Labor category 

Average 

number of 

workers 

Average 

level 

of effort 

(hrs.) 

Frequency 

Number of 

affected 

entities 

N/A. See Joint WIOA NPRM Management occupations staff.1 20 Annual ............ 57 States. 

Management analyst .... 2 40 

Secretary or admin. assistant.1 20 

Youth Funds Targeting Out-of-School 

Youth 

This section describes the updates to 

the transfer payments analysis. In the 

NPRM, the Department described the 

transfer payments qualitatively due to 

data limitations and a lack of 

operational data or evaluation findings 

on the provisions of the NPRM or WIOA 

in general. In this DOL WIOA Final 

Rule, the Department was able to 

quantify the transfer payments related to 

youth funds targeting OSY. This 

accounts for transfers expected to result 

from decreases in burdens on taxpayers 

as more youth leave the youth programs 

and obtain employment. For transfers 

associated with youth funds targeting 

OSY, the quantified transfer payments 

increased from $0 in the NPRM to 

$128.9 million in the Final Rule. 

6. Subject-by-Subject Analysis 

The Department’s analysis below 

covers the expected costs of the 

following 21 provisions of the WIOA 

Final Rule against the baseline of the 

current practice under WIA: (a) ‘‘New 

State WDB Membership Requirements;’’ 

(b) ‘‘Development and Continuous 

Improvement of the Workforce 

Development System;’’ (c) 

‘‘Identification and Dissemination of 

Best Practices;’’ (d) ‘‘Development of 

Statewide Policies Affecting the State’s 

One-Stop System;’’ (e) ‘‘Development of 

Strategies for Technological 

Improvements;’’ (f) ‘‘Appoint New Local 

WDB and Appropriate Firewalls;’’ (g) 

‘‘Local WDB Career Pathways 

Development;’’ (h) ‘‘Local WDB 

Development of Proven and Promising 

Practices;’’ (i) ‘‘Local WDB Development 

of Technology Strategies for Public 

Workforce System Accessibility and 

Effectiveness;’’ (j) ‘‘Competitive Process 

for Selection of the One-Stop 

Operators;’’ (k) ‘‘Local WDB 

Coordination with Education 

Providers;’’ (l) ‘‘Regional Plans;’’ (m) 

‘‘Local and Regional Plan 

Modification;’’ (n) ‘‘Improved 

Information about Eligible Training 

Program Providers;’’ (o) ‘‘Sanctions on 

Under-Performing States;’’ (p) 

‘‘Colocation of ES Services;’’ (q) 

‘‘Partners Required to Pay their Share 

for Proportionate Use of the One-Stop 

Delivery System;’’ (r) ‘‘Establishing 

Training Provider Eligibility Procedures, 

Including Procedures for Adding 

Registered Apprenticeship Programs to 

the State Eligible Training Provider 

List;’’ (s) ‘‘Determining Initial Eligibility 

of New and Previously Eligible 

Providers;’’ (t) ‘‘Biennial Review of 

Training Provider Eligibility;’’ and (u) 

‘‘Disseminating the Training Provider 

List with Accompanying Information.’’ 

In addition, the Department analyzed 

the expected transfers related to ‘‘Youth 

Funds Targeting Out-of-School Youth.’’ 

The Department emphasizes that 

many of the provisions in this WIOArequired Final Rule also are existing 

requirements under WIA. For example, 

the requirement that States ‘‘prepare 

annual reports’’ is a current requirement 

under WIA that States routinely 

undertake. Accordingly, our regulatory 

analysis focuses on new costs and 

transfers that can be attributed 

exclusively to the enactment of WIOA, 

as addressed in this Final Rule. Much of 

WIA’s infrastructure and operations are 

carried forward under WIOA and, 

therefore, are not considered ‘‘new’’ 

burdens resulting from this Final Rule. 

Quantifiable Costs of the Final Rule 

The following sections describe the 

provisions that are expected to result in 

costs. 

a. New State WDB Membership 

Requirements 

States must establish State WDBs in 

accordance with the membership 

requirements of WIOA sec. 101(b). 

Under WIOA sec. 101(b)(1)(C)(i), the 

majority of the State WDB 

representatives must be from businesses 

or organizations in the State. These 

representatives must be owners, chief 

executive officers, or chief operating 

officers of the businesses or executives 

with optimum policy-making or hiring 

authority. WIA did not include specific 

requirements for percentage of State 

WDB business members. 

WIOA sec. 101(b)(1)(C)(ii) requires at 

least 20 percent of State WDB members 

to be representatives of labor 

organizations who have been nominated 

by State labor federations and at least 

one member to be a member of a labor 

organization or a training director from 

a joint labor-management 

apprenticeship program (if such 

program exists in the State). Members 

may include representatives of 

community-based organizations (CBOs) 

that have demonstrated expertise in 

addressing the employment, training, or 

education needs of individuals with 

barriers to employment or eligible 

youth. 

WIA sec. 111(b)(1)(C) required that 

State WDB members include 

representatives of labor organizations, 

representatives of organizations that 

have experience with respect to youth 

activities and expertise in the delivery 

of workforce investment activities, 

including chief executive officers of 

community colleges and CBOs. No 

minimum percentage requirement for 

this type of membership, however, was 

required. In accordance with WIOA sec. 

101(b)(2), State WDB membership must 

represent the diverse geographic areas of 

the State. WIA did not include a 

requirement that State WDB 

representation cover the diverse 

geographic areas of the State. 

Costs 

To estimate State WDB costs (see 

Exhibit 4), the Department multiplied 

the estimated average number of chief 

executives per State (1) by the time 

required to adjust the State WDB 

membership (5 hours) and by the hourly 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56309 

41According to WIOA sec. 106(a)(1), 

identification of regions is part of the process for 

developing the State Plan and is necessary to 

receive an allotment under other provisions of 

WIOA. 

42U.S. Department of Education, U.S. Department 

of Labor, and U.S. Department of Health and 

Human Services (2014, September). Viewing party 

guide. National Dialogue on Career Pathways. 

Retrieved from: https://

learnwork.workforce3one.org/view/

2001425433998607383/info. 

compensation rate ($85.19/hour). We 

repeated the calculation for the 

following occupational categories: 

lawyers (1 lawyer at $65.48/hour for 15 

hours), management occupations staff (1 

manager at $65.39/hour for 15 hours), 

management analysts (2 analysts at 

$45.88/hour for 20 hours each), and 

secretaries or administrative assistants 

(1 assistant at $27.16/hour for 20 hours). 

We summed the labor cost for all five 

occupational categories ($4,767) and 

multiplied the result by the number of 

States (57). This calculation results in a 

one-time cost of $271,742 in the first 

year of the Final Rule, which is an 

average annual cost of $27,174. 

b. Development and Continuous 

Improvement of the Workforce 

Development System 

WIOA sec. 101(d)(3)(A) through (G) 

require the State WDB assist the 

Governor in developing and 

continuously improving the State’s 

workforce development system, 

including identifying barriers and 

means for their removal to coordinate 

and align programs and activities better; 

developing career pathway strategies to 

support individuals in entering or 

retaining employment; developing 

customer outreach strategies; 

developing and expanding strategies to 

meet the need of employers, workers, 

and job seekers through industry or 

sector partnerships related to in-demand 

industry sectors and occupations; 

identifying regions, including planning 

regions, and designating local areas 

(after consultation with Local WDBs and 

CEOs); 41 developing and continuously 

improving the one-stop delivery system; 

and developing strategies to train and 

inform staff. 

WIA sec. 111(d)(2) also required the 

State WDB to assist the Governor in 

developing and continuously improving 

the statewide workforce development 

system; however, the list of included 

activities was limited to review of local 

plans and development of linkages to 

ensure coordination and nonduplication among the programs and 

activities of one-stop partners. Like 

WIOA, WIA required State WDBs to 

assist the Governor in designating local 

areas (WIA sec. 111(d)(4)). State WDBs, 

however, have significantly more 

explicit responsibilities in terms of 

developing strategies for workforce 

development systems in the State. 

Costs 

The Department estimated the State 

WDBs’ annual labor costs for developing 

or expanding sector strategies (see 

Exhibit 5) by multiplying the estimated 

average number of management 

occupations staff members per State (1) 

by the time required to review the 

workforce development system (300 

hours) and by the hourly compensation 

rate ($65.39/hour). We performed the 

same calculation for the management 

analysts (2 analysts at $45.88/hour for 

1,260 hours each). We summed the 

labor cost for both categories ($135,235) 

and multiplied the result by the number 

of States that do not have extensive and 

systematic sector strategies (21). Over 

the 10-year period, this calculation 

yields an estimated recurring annual 

cost of $2.8 million ($2,839,927), which 

is equal to a 10-year total cost of $28.4 

million ($28,399,266). 

Similarly, the Department estimated 

the State WDBs’ annual labor cost for 

expanding career pathways strategies by 

multiplying the estimated average 

number of management occupations 

staff members per State (1) by the time 

required to review the workforce 

development system (300 hours) and by 

the hourly compensation rate ($65.39/

hour). We repeated the calculation for 

the management analysts (2 analysts at 

$45.88/hour for 1,260 hours each). We 

summed the labor cost for the two 

occupational categories ($135,235) and 

multiplied the result by the number of 

States that do not have policies for 

career pathways (27).42 Over the 10-year 

period, this calculation yields an 

estimated recurring annual cost of $3.7 

million ($3,651,334), which is equal to 

a total 10-year cost of $36.5 million 

($36,513,342). 

The Department estimated the labor 

cost that State WDBs will incur to 

identify regions by multiplying the 

estimated average number of lawyers 

per State (1) by the time required to 

review the workforce development 

system (40 hours) and by the hourly 

compensation rate ($65.48/hour). We 

performed the same calculation for the 

following occupational categories: 

Management occupations staff (1 

manager at $65.39/hour for 40 hours), 

management analysts (1 analyst at 

$45.88/hour for 80 hours), and 

secretaries or administrative assistants 

(1 assistant at $27.16/hour for 20 hours). 

We summed the labor cost for all four 

occupational categories ($9,448) and 

multiplied the result by the number of 

States (57) to estimate this one-time 

labor cost of $538,559. Over the 10-year 

period, this calculation yields an 

average annual cost of $53,856. 

The Department estimated the labor 

cost for State WDBs (See Exhibit 9) by 

first multiplying the estimated average 

number of lawyers per State (1) by the 

time required to identify regions in the 

State (10 hours each) and by the hourly 

compensation rate ($65.48/hour). We 

performed the same calculation for the 

following occupational categories: 

Management occupations staff (2 

managers at $65.39/hour for 40 hours 

each), management analysts (3 analysts 

at $45.88/hour for 15 hours each), and 

secretaries or administrative assistants 

(2 assistants at $27.16/hour for 10 hours 

each). We summed the labor costs for all 

four occupational categories ($8,494) 

and multiplied the result by the number 

of States (57) to estimate this cost as 

$484,147, occurring in 2017 and 2021 

and resulting in an average annual cost 

of $96,829. This is equal to a total 10- 

year cost of $968,293. 

The sum of these costs yields a total 

average annual cost of $6.6 million 

($6,641,946) for individuals from the 

State level to review the workforce 

development system. This is equal to 

total 10-year cost of $66.4 million 

($66,419,460). 

c. Identification and Dissemination of 

Best Practices 

Under WIOA sec. 101(d)(6), State 

WDBs must assist Governors in 

identifying and disseminating best 

practices, including practices for: 

1. The effective operation of one-stop 

centers, relating to the use of business 

outreach, partnerships, and service 

delivery strategies, including strategies 

for serving individuals with barriers to 

employment. 

2. The development of effective Local 

WDBs, which could include information 

on contributing factors to enable Local 

WDBs to exceed negotiated levels of 

performance, sustain fiscal integrity, 

and achieve other measures of 

effectiveness. 

3. The development of effective 

training programs that support efficient 

placement of individuals into 

employment or career pathways and 

that respond to real-time labor market 

analysis; that effectively use direct 

assessment and prior learning 

assessment to measure an individual’s 

prior knowledge, skills, competencies, 

and experiences; and that evaluate such 

skills and competencies for adaptability. 

WIA did not include requirements 

relating to State WDBs supporting the 

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development of best practices. 

Therefore, costs will be incurred by 

State WDBs to assist Governors in 

identifying and disseminating the best 

practices. State WDBs will incur annual 

labor costs to become compliant with 

this provision. 

Costs 

The Department estimated the labor 

cost that States would incur (see Exhibit 

27) by multiplying the estimated 

average number of management 

occupations staff members per State (1) 

by the time required to assist in the 

development of best practices (20 hours) 

and by the hourly compensation rate 

($65.39/hour). We performed the same 

calculation for the management analysts 

(2 analysts at $45.88/hour for 40 hours 

each) and secretaries or administrative 

assistants (1 assistant at $27.16/hour for 

20 hours). We summed the labor cost for 

all three occupational categories 

($5,521) and multiplied the result by the 

number of States (57) to estimate this 

annual labor cost at $314,720, which 

results in a 10-year cost of $3.1 million 

($3,147,198). 

d. Development of Statewide Policies 

Affecting the State’s One-Stop Delivery 

System 

Under WIOA sec. 101(d)(6), State 

WDBs must assist Governors in 

developing and reviewing statewide 

policies that affect the coordinated 

provision of services through the State’s 

one-stop delivery system. These policies 

include those concerning objective 

criteria and procedures for Local WDBs 

to assess one-stop centers and guidance 

for the allocation of one-stop center 

infrastructure funds, and policies 

relating to the appropriate roles and 

contributions of one-stop partners 

within the one-stop delivery system, 

including approaches to facilitating 

equitable and efficient cost allocation. 

WIA did not include requirements 

relating to State WDBs’ support of the 

development of policies affecting the 

coordinated provision of services 

through the State’s one-stop delivery 

system. 

Costs 

The Department estimated the labor 

cost that State WDBs will incur (see 

Exhibit 6) by multiplying the estimated 

average number of lawyers per State (1) 

by the time required to provide 

objective criteria and procedures (60 

hours) and by the hourly compensation 

rate ($65.48/hour). We performed the 

same calculation for the management 

occupations staff (1 manager at $65.39/ 

hour for 18 hours), social and 

community service managers (1 

manager at $54.21/hour for 42 hours), 

and management analysts (3 analysts at 

$45.88/hour for 120 hours each). We 

summed the labor cost for all four 

occupational categories ($23,899) and 

multiplied the result by the number of 

States (57) to estimate this one-time 

labor cost at $1.4 million ($1,362,268), 

which results in an average annual cost 

of $136,227. 

e. Development of Strategies for 

Technological Improvements 

Under WIOA sec. 101(d)(7), State 

WDBs must assist Governors in 

developing strategies for technological 

improvements to facilitate access to and 

improve the quality of services and 

activities provided through the one-stop 

delivery system. These strategies 

include improvements to enhance 

digital literacy skills, accelerate 

acquisition of skills and recognized 

postsecondary credentials by 

participants, strengthen professional 

development of providers and 

workforce professionals, and ensure 

technology is accessible to individuals 

with disabilities and individuals 

residing in remote areas. 

WIA did not include requirements 

relating to State WDBs’ support of the 

development of strategies for 

technological improvements to facilitate 

access to, and improve the quality of, 

one-stop delivery system services and 

activities. 

Costs 

The Department estimated the labor 

cost that State WDBs will incur (see 

Exhibit 7) by multiplying the estimated 

average number of management 

occupations staff members per State (1) 

by the time required to develop 

strategies (20 hours) and by the hourly 

compensation rate ($65.39/hour). We 

repeated the calculation for the 

computer systems analysts (1 analyst at 

$56.17/hour for 40 hours). We summed 

the labor cost for both categories 

($3,555) and multiplied the result by the 

number of States (57) to estimate a 

recurring annual cost of $202,612, 

which is equal to a total 10-year cost of 

$2.0 million ($2,026,122). 

f. Appoint New Local WDB and 

Appropriate Firewalls 

The Local WDB is appointed by the 

CEOs in each local area in accordance 

with State criteria established under 

WIOA sec. 107(b) and is certified by the 

Governor every 2 years, in accordance 

with WIOA sec. 107(c)(2). The WIOA 

sec. 107(b)(2) membership criteria differ 

from the WIA sec. 117(b)(2) Local WDB 

membership criteria, and will result in 

a new one-time cost incurred by local 

CEOs in each local area because they 

will have to appoint a new Local WDB 

whose membership satisfies the 

requirements of WIOA sec. 107(b)(2). In 

particular, WIOA requires that a 

majority of Local WDB members be 

representatives of local area business 

(sec. 107(b)(2)(A)), whereas WIA 

required membership from local area 

business but did not include the 

requirement that such membership be a 

majority. 

Additionally, WIOA sec. 107(b)(2)(B) 

requires that at least 20 percent of Local 

WDB membership be representatives of 

labor organizations (including at least 

one member from a joint labormanagement apprenticeship program, if 

one exists in the local area); CBOs 

(optional); and organizations with youth 

employment, training, or educational 

expertise (optional). WIA required Local 

WDB membership from representatives 

of labor organizations and CBOs, but did 

not include reference to apprenticeship 

programs or organizations with youth 

expertise, nor did WIA include the 

minimum 20-percent requirement. 

Further, WIOA requires Local WDB 

membership to include a representative 

from an adult education provider and a 

representative of higher education 

providing workforce investment 

activities (including community 

colleges), while the WIA Local WDB 

membership requirements did not 

reference such membership 

representation. 

Under § 679.410(a), a Local WDB may 

be selected as a one-stop operator 

through sole-source procurement or 

through successful competition, in 

accordance with part 678, subpart D (see 

Joint WIOA Final Rule). The procedures 

for sole-source selection of one-stop 

operators include requirements about 

maintaining written documentation and 

developing appropriate firewalls and 

conflict-of-interest policies. Therefore, 

when a Local WDB is selected as a onestop operator through a sole-source 

procurement, it must establish sufficient 

firewalls and conflict-of-interest policies 

and procedures that the Governor 

approves. These requirements will 

result in one-time costs for the Local 

WDBs that will elect sole-source onestop operator competition. 

Costs 

The Department estimated the labor 

costs incurred by Local WDBs (see 

Exhibit 10) by multiplying the estimated 

average number of lawyers per Board (1) 

by the time required to appoint a new 

Local WDB (15 hours) and by the hourly 

compensation rate ($74.78/hour). We 

performed the same calculation for the 

following occupational categories: 

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Management occupations staff members 

(1 manager at $63.63/hour for 20 hours), 

management analysts (2 analysts at 

$60.60/hour for 20 hours each), and 

secretaries or administrative assistant (1 

assistant at $29.30/hour for 20 hours). 

We summed the labor cost for the four 

occupational categories ($5,404) and 

multiplied the result by the number of 

Local Boards (580) to estimate this onetime cost as $3.1 million ($3,134,494), 

which results in an average annual cost 

of $313,449. 

In addition, the Department estimated 

the labor cost for Local WDBs to 

develop written agreements by 

multiplying the estimated average 

number of lawyers per Local WDB (1) by 

the time required to develop written 

agreements (8 hours) and by the hourly 

compensation rate ($74.78/hour). We 

repeated the calculation for the 

management occupations staff members 

(1 manager at $63.63/hour for 8 hours) 

and computer systems analysts (1 

analyst at $60.76 for 20 hours). We 

summed the labor cost for the three 

occupational categories ($2,322) and 

multiplied the result by the number of 

Local WDBs (580) to estimate this onetime cost as $1.3 million ($1,347,038), 

which results in an average annual cost 

of $134,704. 

In total, these calculations yield a 

one-time cost of $4.5 million 

($4,481,532), which results in an 

average annual cost of $448,153 for 

individuals from the local level to 

appoint new Local WDBs and set 

administrative firewalls that avoid 

conflicts of interest. 

g. Local WDB Career Pathways 

Development 

Under WIOA sec. 107(d)(5), Local 

WDBs, with representatives of 

secondary and postsecondary education 

programs, must lead efforts to develop 

and implement career pathways within 

the local area by aligning the 

employment, training, education, and 

supportive services needed by adults 

and youth, particularly individuals with 

barriers to employment. WIA did not 

include requirements relating to Local 

WDBs developing or implementing 

career pathways. 

Costs 

The Department estimated the labor 

cost for Local WDBs (see Exhibit 11) by 

first multiplying the estimated average 

number of lawyers per Local WDB (1) by 

the time required to develop and 

implement career pathways (10 hours) 

and by the hourly compensation rate 

($74.78/hour). We performed the same 

calculation for the following 

occupational categories: Management 

occupations staff members (1 manager at 

$63.63/hour for 80 hours), management 

analysts (1 analyst at $60.60/hour for 80 

hours), and secretaries or administrative 

assistants (1 assistant at $29.30/hour for 

20 hours). We summed the labor cost for 

all four occupational categories 

($11,272) and multiplied the result by 

the number of Local WDBs (580) to 

estimate a recurring annual cost of $6.5 

million ($6,537,876), which is equal to 

a total 10-year cost of $65.4 million 

($65,378,760). 

h. Local WDB Development of Proven 

and Promising Practices 

Under WIOA sec. 107(d)(6), Local 

WDBs must lead efforts in the local area 

to identify and promote proven and 

promising strategies and initiatives for 

meeting the needs of employers, 

workers, and job seekers (including 

individuals with barriers to 

employment), including providing 

physical and programmatic accessibility 

to the one-stop delivery system, in 

accordance with WIOA sec. 188 and the 

Americans with Disabilities Act, if 

applicable. This provision further 

requires Local WDBs to identify and 

disseminate information on proven and 

promising practices carried out in other 

local areas for meeting such needs. WIA 

did not include requirements for Local 

WDBs to identify or promote proven 

strategies for meeting the needs of 

employers, workers, and job seekers in 

the local workforce development 

system. 

Costs 

For Local WDBs (see Exhibit 12), the 

Department estimated this labor cost by 

first multiplying the estimated average 

number of management occupations 

staff members per State (1) by the time 

required to identify and promote proven 

strategies (20 hours) and by the hourly 

compensation rate ($63.63/hour). We 

performed the same calculation for the 

management analyst occupational 

category (1 analyst at $60.60/hour for 40 

hours). We summed the labor cost for 

these two occupational categories 

($3,697) and multiplied the result by the 

number of Local WDBs (580) to estimate 

a recurring annual cost of $2.1 million 

($2,144,028), which is equal to a total 

10-year cost of $21.4 million 

($21,440,280). 

i. Local WDB Development of 

Technology Strategies for Public 

Workforce System Accessibility and 

Effectiveness 

Under WIOA sec. 107(d)(7), Local 

WDBs must develop strategies for using 

technology to maximize the accessibility 

and effectiveness of the local workforce 

development system for employers, 

workers, and job seekers by facilitating 

connections among the case 

management information systems for 

the one-stop partner programs, 

facilitating access to services provided 

through the one-stop delivery system 

(including facilitating access in remote 

areas), identifying strategies for better 

meeting the needs of individuals with 

barriers to employment (such as 

improving digital literacy skills), and 

leveraging resources and capacity 

within the local workforce development 

system. WIA did not include 

requirements for Local WDBs to develop 

technology strategies for improving 

accessibility and effectiveness of the 

local workforce development system. 

Costs 

The Department estimated the cost for 

Local WDBs (see Exhibit 13) by first 

multiplying the estimated average 

number of management occupations 

staff members per Local WDB (1) by the 

time required to develop technology 

strategies (20 hours) and by the hourly 

compensation rate ($63.63/hour). We 

performed the same calculation for the 

computer systems analysts (1 analyst at 

$60.76/hour for 40 hours). We summed 

the labor cost for these two occupational 

categories ($3,703) and multiplied the 

result by the number of Local WDBs 

(580) to estimate a recurring annual cost 

of $2.1 million ($2,147,740), which is 

equal to a total 10-year cost of $21.5 

million ($21,477,400). 

j. Competitive Process for Selection of 

the One-Stop Operator 

Under WIOA sec. 107(d)(10)(A), Local 

WDBs must, consistent with WIOA sec. 

121(d) and with the agreement of the 

CEO for the local area, designate or 

certify one-stop operators and may 

terminate for cause the eligibility of 

such operators. WIOA sec. 121(d)(2)(A) 

specifies that selection of a one-stop 

operator must be through a competitive 

process. WIA sec. 117(d)(2) also 

required Local WDBs to designate onestop operators; however, WIA sec. 

121(d)(2) allowed for designation of a 

one-stop operator through either a 

competitive process or in accordance 

with an agreement reached between the 

Local WDB and a consortium of entities 

that includes at least three one-stop 

partners. Therefore, WIOA requires a 

newly competitive procurement process 

for all Local WDB designations of onestop operators. The one-stop 

competition regulations at part 678, 

subpart D (see Joint WIOA Final Rule), 

however, provide for sole-source 

procurement for one-stop operators 

under limited conditions. Nevertheless, 

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because of the new WIOA requirement 

mandating competitive one-stop 

operative procurement, this analysis 

assumes that all 580 Local WDBs would 

have to implement a competitive 

procurement process. Of these Local 

WDBs, only 250 Local WDBs would 

have to newly implement a competitive 

procurement process. 

Costs 

The Department estimated the cost for 

Local WDBs (see Exhibit 14) by first 

multiplying the estimated average 

number of lawyers per Local WDB (1) by 

the time required to designate one-stop 

operators (40 hours) and by the hourly 

compensation rate ($74.78/hour). We 

performed the same calculation for the 

following occupational categories: 

Management occupations staff members 

(1 manager at $63.63/hour for 80 hours), 

social workers (2 workers at $40.46/

hour for 120 hours each), and secretaries 

or administrative assistants (1 assistant 

at $29.30/hour for 40 hours). We 

summed the labor costs for these four 

occupational categories ($18,964) and 

multiplied the result by the number of 

Local WDBs that will be newly selecting 

one-stop operators competitively (250) 

to estimate a cost of $4.7 million 

($4,741,000) occurring in 2017, 2021, 

and 2025. Over the 10-year period, this 

calculation yields an average annual 

cost of $1.4 million ($1,422,300), which 

is equal to a total cost of $14.2 million 

($14,223,000). 

k. Local WDB Coordination With 

Education Providers 

Under WIOA sec. 107(d)(11), Local 

WDBs must coordinate activities with 

education and training providers in the 

local area, including providers of 

workforce investment activities, 

providers of adult education and 

literacy activities under title II of WIOA, 

certain providers of career and technical 

education, and local agencies 

administering certain plans under the 

Rehabilitation Act of 1973. WIA did not 

include requirements relating to Local 

WDB coordination with education 

providers. 

Costs 

For Local WDBs, the Department 

estimated this labor cost (see Exhibit 15) 

by first multiplying the estimated 

average number of management 

occupations staff members per State (1) 

by the time required to coordinate 

activities with local education and 

training providers (20 hours) and by the 

hourly compensation rate ($63.63/hour). 

We performed the same calculation for 

the management analyst occupational 

category (1 analyst at $60.60/hour for 40 

hours). We summed the labor cost for 

both occupational categories ($3,697) 

and multiplied the result by the number 

of Local WDBs (580) to estimate a 

recurring annual cost of $2.1 million 

($2,144,028), which is equal to a 10-year 

total cost of $21.4 million ($21,440,280). 

l. Regional Plans 

WIOA sec. 106(c)(2) requires Local 

WDBs and CEOs within a planning 

region to prepare, submit to the State, 

and obtain approval of a single regional 

plan that includes a description of the 

regional planning activities described in 

WIOA and incorporates local plans for 

each local area in the planning region. 

Specifically, WIOA sec. 106(c)(1) 

specifies that regional planning must 

include the following seven activities: 

(1) Establishment of regional service 

strategies, including use of cooperative 

service delivery alignment; (2) 

development and implementation of 

sector initiatives for in-demand industry 

sectors or occupations for the region; (3) 

collection and analysis of regional labor 

market data (in conjunction with the 

State); (4) establishment of 

administrative cost arrangements, 

including the pooling of funds for 

regional administrative costs, as 

appropriate; (5) coordination of 

transportation and other supportive 

services, as appropriate, for the region; 

(6) coordination of services with 

regional economic development services 

and providers; and (7) establishment of 

an agreement concerning how the 

planning region will negotiate 

collectively and reach agreement with 

the Governor on local levels of 

performance for, and report on, the 

performance accountability measures 

for local areas or the planning region. 

WIA did not include provisions relating 

to State WDB identification of regions or 

regional coordination. 

Costs 

For Local WDBs (see Exhibit 16), the 

Department estimated this cost by first 

multiplying the estimated average 

number of lawyers per Local WDB (1) by 

the time required to prepare, submit, 

and obtain approval of a single regional 

plan (8 hours) and by the hourly 

compensation rate ($74.78/hour). We 

performed the same calculation for the 

following occupational categories: 

Management occupations staff members 

(2 managers at $63.63/hour for 20 hours 

each), management analysts (2 analysts 

at $60.60/hour for 40 hours each), and 

secretaries or administrative staff (1 staff 

member at $29.30/hour for 8 hours). We 

summed the labor cost for the four 

occupational categories ($8,226) and 

multiplied the result by the number of 

Local WDBs (580) to estimate this cost 

as $4.8 million ($4,770,987), which 

occurs in 2017 and 2021. This 

calculation results in an average annual 

cost of $954,197, which is equal to a 

total 10-year cost of $9.5 million 

($9,541,974). 

m. Local and Regional Plan 

Modification 

Under WIOA sec. 108(a), each Local 

WDB, in partnership with the CEO, 

must review the local plan every 2 years 

and submit a modification as needed, 

based on significant changes in labor 

market and economic conditions and 

other factors. These factors include 

changes to local economic conditions, 

changes in the financing available to 

support WIOA title I and partnerprovided WIOA services, changes to the 

Local WDB structure, and a need to 

revise strategies to meet performance 

goals. If the local area is part of a 

planning region, the Local WDB must 

comply with WIOA sec. 106(c) in the 

preparation and submission of a 

regional plan. WIA sec. 118 did not 

require local plan review and 

modification more frequently than the 

5-year duration of a WIA local plan. 

Costs 

For Local WDBs (see Exhibit 17), the 

Department estimated the local plan 

modification cost by first multiplying 

the estimated average number of 

lawyers per Local WDB (1) by the time 

required to review and modify the 4- 

year plan (4 hours) and by the hourly 

compensation rate ($74.78/hour). We 

performed the same calculation for the 

following occupational categories: 

management occupations staff members 

(1 manager at $63.63/hour for 10 hours), 

management analysts (2 analysts at 

$60.60/hour for 10 hours each), and 

secretaries or administrative assistants 

(1 assistant at $29.30/hour for 4 hours). 

We summed the labor cost for all four 

occupational categories ($2,265) and 

multiplied the result by the number of 

Local WDBs (580) to estimate this onetime cost of $1.3 million ($1,313,480), 

occurring in 2019. Over the 10-year 

period, this calculation yields an 

average annual cost of $131,348. 

Similarly, the Department estimated 

the regional plan modification cost for 

Local WDBs by first multiplying the 

estimated average number of lawyers 

per regional board (1) by the time 

required to review and modify the 4- 

year plan (4 hours) and by the hourly 

compensation rate ($74.78/hour). We 

performed the same calculation for the 

following occupational categories: 

management occupations staff members 

(2 managers at $63.63/hour for 10 hours 

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43The costs associated with performance 

reporting for ETPs is explained in the WIOA sec. 

116 analysis in the ‘‘Workforce Innovation and 

Opportunity Act; Joint Rule for Unified and 

Combined State Plans, Performance Accountability, 

and the One-Stop System Joint Provisions’’; Notice 

of Proposed Rulemaking at 80 FR 20573. 

each), management analysts (2 analysts 

$60.60/hour for 20 hours each), and 

secretaries or administrative assistants 

(1 assistant at $29.30/hour for 5 hours). 

We summed the labor cost for all four 

occupational categories ($4,142) and 

multiplied the result by the number of 

regional boards (300) to estimate a cost 

of $1.2 million ($1,242,666), occurring 

in 2020 and 2023. Over the 10-year 

period, this calculation yields an 

average annual cost of $248,533, which 

is equal to a total cost of $2.5 million 

($2,485,332). 

The sum of these costs yields a 10- 

year cost of $3.8 million ($3,798,812), 

which results in an average annual cost 

of $379,881 for individuals from the 

Local WDBs to review and modify the 

4-year plan. 

n. Improved Information About Eligible 

Training Program Providers 

WIOA sec. 122 establishes 

requirements for State ETPLs to provide 

information to the public on the 

effectiveness of ETPs in achieving 

positive outcomes for WIOA training 

participants. The State-maintained 

ETPLs provide adults, dislocated 

workers, and other workers with better 

information about potential training 

program providers and enable them to 

make better-informed choices about 

programs to pursue. As explained in 

WIOA sec. 122, the required 

information for the State ETPL includes 

performance information on WIOA 

participants including percentage 

employed 2 and 4 quarters after program 

exit, median earnings 2 quarters after 

exit, and percentage obtaining a 

credential. Other reporting requirements 

for the State ETPLs include the cost of 

attendance for WIOA participants, 

credentialing program information, 

program completion rate, and additional 

information the State may require.43

To be included on an ETPL, training 

providers must establish eligibility 

through an application procedure and 

then must maintain eligibility, 

including a biennial review by a Stateappointed agency, according to a State 

Governor’s procedure. Once it 

determines eligibility for ETPs, the State 

must make easily understood ETPLs 

publicly available, through electronic 

means and the one-stop delivery system. 

Finally, information analyzed and 

published by the Local WDBs about 

local labor markets also will help 

trainees and providers target their 

efforts and develop reasonable 

expectations about outcomes. 

Costs 

At the State level for DOL programs 

(see Exhibit 18), the Department 

estimated this labor cost by first 

multiplying the estimated average 

number of management occupations 

staff members per State (1) by the time 

required to provide additional 

information about eligible training 

program providers (32 hours) and by the 

hourly compensation rate ($65.39/hour). 

We performed the same calculation for 

the following occupational categories: 

Management analysts (2 analysts at 

$45.88/hour for 40 hours each), and 

secretaries or administrative assistants 

(1 assistant at $27.16/hour for 80 hours). 

We summed the labor cost for all three 

occupational categories ($7,936) and 

multiplied the result by the number of 

States (57) to estimate a recurring 

annual cost of $452,334. This is equal to 

a 10-year total cost of $4.5 million 

($4,523,338). 

o. Sanctions on Under-Performing States 

Section 116(f)(1)(B) of WIOA requires 

the Department to assess a sanction if a 

State fails to meet the State-adjusted 

levels for program performance for a 

second consecutive program year or if 

‘‘a State fails to submit a report under 

subsection (d) for any program year.’’ 

Three reports are required under WIOA 

sec. 116(d): State annual performance 

reports, local area performance reports, 

and ETP performance reports. Of these, 

only the State annual performance 

report must be submitted by the State to 

the Secretary of Labor. Section 116(f)(1) 

of WIOA requires that sanctions for 

performance failure continue until such 

date the Secretary of Labor or the 

Secretary of Education (as appropriate) 

determines that the State meets such 

State-adjusted levels of performance and 

has submitted such reports for the 

appropriate program years. Under WIA, 

the Department had discretion over 

whether to issue sanctions for 

underperformance or failure to submit a 

performance report. 

Costs 

At the State level (see Exhibit 19), the 

Department estimated the costs by first 

multiplying the estimated average 

number of chief executives per State (1), 

the time required to evaluate State 

performance (40 hours), and the hourly 

compensation rate ($85.19/hour). We 

performed the same calculation for 

management analysts (1 analyst at 

$45.88/hour for 80 hours) and 

secretaries or administrative assistants 

(1 assistant at $27.16/hour for 40 hours). 

We summed the labor cost for all three 

occupational categories ($8,164) and 

multiplied the result by the number of 

States receiving sanctions (5) to estimate 

a recurring annual cost of $40,822, 

which is equal to a 10-year total cost of 

$408,220. 

p. Colocation of ES Services 

WIOA sec. 121(e)(3) requires 

colocation of ES offices and one-stop 

centers established under title I of 

WIOA. Fulfilling this requirement could 

involve resolving real property issues, 

decisions on site locations, discussions 

with municipal or county governments, 

and development of agreements with 

partners to participate at both 

comprehensive and affiliated sites. 

Colocation is intended to improve 

service delivery, avoid duplication of 

services, and enhance coordination of 

services, including location of staff to 

ensure expanded access to services in 

underserved areas. WIA did not include 

requirements for collocation. 

Costs 

At the State level for DOL programs 

(see Exhibit 20), the Department 

estimated this labor cost by first 

multiplying the estimated average 

number of lawyers per State (10), the 

time required to colocate ES services (10 

hours each), and the hourly 

compensation rate ($65.48/hour). We 

performed the same calculation for the 

following occupational categories: 

Management occupations staff members 

(10 managers at $65.39/hour for 40 

hours each), management analysts (20 

staff at $45.88/hour for 25 hours each), 

and secretaries or administrative 

assistants (10 assistants at $27.16/hour 

for 5 hours each). We summed the labor 

cost for all four occupational categories 

($57,002) and multiplied the result by 

the number of States without colocated 

ES services (10) to estimate a one-time 

cost of $570,020, which results in an 

annual cost of $57,002. 

At the State level, the Department 

estimated consultant costs for assisting 

with planning, property issues (e.g., 

selling buildings currently owned by ES 

and finding buildings that meet certain 

safety requirements), and integrating IT 

and case management systems by 

multiplying the estimated consultant 

costs ($10,200) by the number of States 

without colocated ES services (10). This 

calculation yields an estimated one-time 

cost of $102,000, resulting in an average 

annual cost of $10,200. 

At the local level (see Exhibit 21), the 

Department estimated labor costs by 

first multiplying the estimated average 

number of management occupations 

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staff members for all local entities 

within a State (100), the time required 

to colocate ES services (40 hours each), 

and the hourly compensation rate 

($63.63/hour). We performed the same 

calculation for the management analysts 

(200 analysts at $60.60/hour for 25 

hours each) and secretaries or 

administrative assistants (100 assistants 

at $29.30/hour for 5 hours each). We 

summed the labor cost for all three 

occupational categories ($572,170) and 

multiplied the result by the number of 

local areas without colocated ES offices 

and one-stop centers (100) to estimate a 

one-time cost of $57.2 million 

($57,217,000), resulting in an annual 

cost of $5.7 million ($5,721,700). 

The sum of these costs yields a onetime cost of $57.9 million ($57,889,020), 

which results in an average annual cost 

of $5.8 million ($5,788,902) for 

individuals from the State and local 

levels to colocate ES services. 

q. Partners Required To Pay Their Share 

for Proportionate Use of One-Stop 

Delivery System 

An important goal under both the 

local and State funding mechanisms is 

to ensure that each one-stop partner 

contributes its proportional share to the 

funding of one-stop infrastructure costs, 

consistent with Federal cost principles. 

Under WIOA sec. 121(h), in general, 

Governors must ensure that one-stop 

partners appropriately share costs. 

Contributions must be based on a 

proportional share of use and all funds 

must be spent solely for allowable 

purposes in a manner consistent with 

the applicable authorizing statute and 

all other applicable legal requirements, 

including Federal cost principles. WIOA 

sec. 121(h)(1) established two methods 

for funding the infrastructure costs of 

one-stop centers: A local funding 

mechanism and a State funding 

mechanism. Both methods use the funds 

provided to one-stop partners by their 

authorizing legislations; there is no 

separate funding source for one-stop 

infrastructure costs. WIA did not 

include directives relating to the 

funding of the one-stop infrastructure. 

Costs 

At the State level (see Exhibit 22), the 

Department estimated the costs related 

to this provision (e.g., the cost of 

developing memoranda of 

understanding) by first multiplying the 

estimated average number of lawyers 

per State (50), the time required for 

States to comply with payment 

requirements proportional to use of onestop delivery systems (1 hour each), and 

the hourly compensation rate ($65.48/

hour). We performed the same 

calculation for the following 

occupational categories: Management 

occupations staff members (50 managers 

at $65.39/hour for 40 hours each), social 

workers (100 workers at $35.22/hour for 

40 hours each), and secretaries or 

administrative assistants (50 assistants 

at $27.16/hour for 5 hours each). We 

summed these products for all four 

occupational categories ($281,724) and 

multiplied the result by the number of 

States that need to pay their 

proportional share (54) to estimate a 

cost of $15.2 million ($15,213,096) 

occurring in 2018, 2021, and 2024, 

resulting in an average annual cost of 

$4.6 million ($4,563,929). This is equal 

to a total 10-year cost of $45.6 million 

($45,639,288). 

r. Establishing Training Provider 

Eligibility Procedures, Including 

Procedures for Adding Registered 

Apprenticeship Programs to the State 

Eligible Training Provider List 

Under WIOA sec. 122(a)(1), the 

Governor, after consultation with the 

State WDB, must establish criteria, 

information requirements, and 

procedures regarding the eligibility of 

providers of training services to receive 

funds under WIOA for the provision of 

training services in local areas in the 

State (i.e., procedures for initial 

determination and renewals of 

eligibility). In establishing the ETP 

eligibility criteria, the Governor must 

take into account: (1) The performance 

of training providers; (2) the need to 

ensure access to training services 

throughout the State, including in rural 

areas and through the use of technology; 

(3) information reporting to State 

agencies with respect to other Federal 

and State programs involving training 

services, including one-stop partner 

programs; (4) the degree to which the 

training programs relate to in-demand 

industry sectors and occupations in the 

States; (5) any relevant State licensing 

requirements for the program; (6) ways 

in which the criteria can encourage 

providers to use industry-recognized 

certifications; (7) the ability of the 

providers to offer programs that lead to 

recognized postsecondary credentials; 

(8) the quality of a training program; (9) 

the ability of the providers to provide 

training services to individuals who are 

employed and individuals with barriers 

to employment; and (10) other factors 

the Governor determines appropriate to 

ensure accountability of the providers, 

informed choice of participants, onestop centers ensure providers meet the 

needs of local employers and 

participants, and collection of 

information is not unduly burdensome 

or costly to providers (WIOA sec. 

122(b)(1)). 

In establishing the information 

requirements, the Governor must 

require that a training provider submit 

appropriate, accurate, and timely 

information to the State, which must 

include information on performance, 

recognized postsecondary credentials 

received by participants, cost of 

attendance, the program completion 

rate, and eligibility criteria established 

by the Governor (WIOA sec. 122(b)(2)). 

As explained in § 680.410, training 

providers, including those operating 

under the individual training account 

exceptions, must qualify as ETPs, except 

for those engaged in on-the-job and 

customized training (for which the 

Governor should establish qualifying 

procedures as discussed in § 680.530). 

Registered apprenticeship programs are 

automatically eligible to be included in 

the ETPL, provided the program 

remains a registered apprenticeship 

program. All registered apprenticeship 

programs must be informed of their 

automatic eligibility to be included on 

the list, and must be provided an 

opportunity to consent to their 

inclusion, before being placed on the 

State list of eligible training providers 

and programs. The Governor must 

establish a mechanism for registered 

apprenticeship program sponsors in the 

State to be informed of their automatic 

eligibility and to indicate that the 

program sponsor wishes to be included 

on the State list of eligible training 

providers and programs. The regulation 

specifies that this mechanism must 

place minimal burden on registered 

apprenticeship program sponsors and 

must be developed in accordance with 

guidance from the U.S. Department of 

Labor Office of Apprenticeship 

representative in the State or with the 

assistance of the recognized State 

apprenticeship agency, as applicable. 

Under WIA sec. 122(b)(2), the 

Governor had to establish a procedure 

for Local WDBs to use to determine 

initial eligibility. Other than requiring 

performance information, however, WIA 

did not prescribe requirements for what 

must be included in the Governorestablished eligibility criteria, 

information requirements, and ETP 

procedures. Regarding apprenticeships, 

WIA sec. 122(b)(1) required such 

training programs to submit an ETP 

application to the relevant Local WDB 

to include such information as the Local 

WDB may require. 

Costs 

At the State level (see Exhibit 23), the 

Department estimated this cost by first 

multiplying the estimated average 

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44 In the NPRM, the Department stated that the 

Governor may establish a transition procedure 

under which WIA–ETPs may continue to be eligible 

through December 31, 2015. The Department 

extended the time for the implementation of 

continued eligibility requirements for training 

providers eligible under WIA by 6 months, unless 

the Governor determined that an earlier date was 

possible. 

number of lawyers per State (1); the 

time needed to establish criteria, 

information requirements, and 

procedures for training provider 

eligibility (20 hours); and the hourly 

compensation rate ($65.48/hour). We 

performed the same calculation for the 

management occupations staff members 

(1 manager at $65.39/hour for 40 hours) 

and management analysts (1 analyst at 

$45.88/hour for 80 hours). We summed 

the labor cost for all three occupational 

categories ($7,596) and multiplied the 

result by the number of States (57) to 

estimate a one-time cost of $432,949, 

resulting in an annual cost of 

$43,295. 

At the local level, the Department 

estimated this cost by first multiplying 

the estimated average number of 

database administrators per ETP (1); the 

time needed to establish criteria, 

information requirements, and 

procedures for training provider 

eligibility (3 hours); and the hourly 

compensation rate ($59.60/hour). We 

summed the labor cost ($179) and 

multiplied the result by the number of 

ETPs (11,400) to estimate a one-time 

cost of $2.0 million ($2,038,320), 

resulting in an annual cost of 

$203,832. 

The sum of these amounts yields a 

one-time cost of $2.5 million 

($2,471,269), which results in an 

average annual cost of $247,127 for 

individuals from the State and local 

levels to establish criteria, information 

requirements, and procedures for 

training provider eligibility. 

s. Determining Initial Eligibility of New 

and Previously Eligible Training 

Providers 

Under the requirements of WIOA sec. 

122, the Governor, after consultation 

with the State WDB, establishes the 

procedures for determining eligibility of 

training providers, which include 

application and renewal procedures, 

eligibility criteria, and information 

requirements. The Governor was 

permitted to establish a transition 

procedure under which WIA–ETPs 

could continue to be eligible through 

June 30, 2016 (or such earlier date 

determined appropriate by the 

Governor).44 Under § 680.450, all 

providers that previously have not been 

eligible under either WIA sec. 122 or 

WIOA sec. 122, except for registered 

apprenticeship programs, must submit 

required information to be considered 

for initial eligibility in accordance with 

the Governor’s procedures. Under 

WIOA sec. 122(b)(4)(B), providers 

receive initial eligibility for only 1 fiscal 

year and after the initial eligibility 

expires, providers are subject to the 

Governor’s application procedures for 

continued eligibility, described in 

§ 680.460, to remain eligible (see 

provision (t) Biennial Review of 

Training Provider Eligibility 

below). 

Costs 

At the State level for DOL programs 

(see Exhibit 24), the Department 

estimated this labor cost by first 

multiplying the estimated average 

number of management occupations 

staff members per State (1), the time 

needed to determine provider eligibility 

(40 hours), and the hourly 

compensation rate ($65.39/hour). We 

performed the same calculation for the 

management analysts (2 analysts at 

$45.88/hour for 110 hours each) and 

secretaries or administrative assistants 

(2 assistants at $27.16/hour for 50 hours 

each). We summed the labor cost for all 

three occupational categories ($15,425) 

and multiplied the result by the number 

of States (57) to estimate a one-time cost 

of $879,236, resulting in an annual cost 

of $87,924. 

t. Biennial Review of Training Provider 

Eligibility 

Under WIOA sec. 122(c)(2), the 

procedures established by the Governor 

must provide for biennial review and 

renewal of eligibility for providers of 

training services. Paragraph (h) of 

§ 680.460 provides discretion for a State 

to establish eligibility criteria that 

require more frequent review but 

specifies that the review must be at least 

every 2 years. This biennial review 

process will require the submission of 

information from training providers and 

the evaluation of such information as 

specified in the Governor’s eligibility 

criteria, information requirements, and 

procedures. Paragraph (j) of § 680.460 

requires that the procedure for biennial 

review of training provider eligibility 

include verification of the registration 

status of registered apprenticeship 

programs. 

WIA required training providers to 

submit performance information and 

meet performance levels annually to 

remain eligible (WIA sec. 122(c)(5) and 

§ 663.530). The WIA regulations at 

§ 663.540 required the annual 

submission of the following information 

to allow the Local WDB to determine 

subsequent eligibility of training 

providers: Program-specific 

performance information, information 

on program costs, and any additional 

verifiable performance information that 

the Governor determines to be 

appropriate for obtaining subsequent 

eligibility. 

Costs 

At the State level (see Exhibit 25), the 

Department estimated this labor cost by 

first multiplying the estimated average 

number of management occupations 

staff members per State (1), the time 

needed to perform the eligibility review 

(30 hours), and the hourly 

compensation rate ($65.39/hour). We 

performed the same calculation for the 

management analysts (2 analysts at 

$45.88/hour for 60 hours each) and 

secretaries or administrative assistants 

(2 assistants at $27.16/hour for 30 hours 

each). We summed the labor cost for all 

three occupational categories ($9,097) 

and multiplied the result by the number 

of States (57) to estimate a cost of 

$518,523 that occurs four times over the 

10-year analysis period (i.e., 2019, 2021, 

2023, and 2025), that is, an average 

annual cost of $207,409. This is equal to 

a 10-year total cost of $2.1 million 

($2,074,093). 

u. Disseminating the Training 

Provider List With Accompanying 

Information 

To assist participants in choosing 

employment and training activities, the 

Governor or State agency must 

disseminate the State ETPL and 

accompanying performance and cost 

information to Local WDBs in the State 

and to members of the public online 

through Web sites and searchable 

databases and through whatever means 

the State uses to disseminate 

information to consumers, including the 

one-stop delivery system and its 

program partners throughout the State 

(WIOA sec. 122(d), § 680.500). WIA also 

required the designated State agency to 

disseminate the State ETPL and 

accompanying performance and cost 

information to the one-stop delivery 

systems within the State but did not 

include specific requirements that the 

State ETPL be made electronically 

available online (see § 663.555). 

Costs 

At the State level (see Exhibit 26), the 

Department estimated this labor cost by 

first multiplying the estimated average 

number of management occupations 

staff members per State (1), the time 

needed to disseminate the ETPL with 

accompanying information (30 hours), 

and the hourly compensation rate 

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45Child Trends Databank. (2015). High school 

dropout rates. Retrieved from: http://

www.childtrends.org/?indicators=high-schooldropout-rates. 

46Wald, M., and Martinez, T. (2003). Connected 

by 25: Improving the life chances of the country’s 

most vulnerable 14–24 year olds (Working Paper). 

William and Flora Hewlett Foundation. Retrieved 

from: http://law.stanford.edu/wp-content/uploads/

2015/07/Wald-and-Martinez-Connected-by-251.pdf. 

47Belfield, C. R., Levin, H. M., and Rosen, R. 

(2012). The economic value of opportunity youth. 

Retrieved from: http://www.serve.gov/sites/default/

files/ctools/econ_value_opportunity_youth.pdf?

utm_source=5+Things+to+Know+about+Youth+

not+Employed+or+in+School&utm_campaign=

5+things+to+know+about+youth+not+employed+

or+in+school&utm_medium=email. 

48Lewis, K., and Burd-Sharps, S. (2015). Zeroing 

in on place and race: Youth disconnection in 

America’s cities. Measure of America of the Social 

Science Research Council. Retrieved from: http://

ssrc-static.s3.amazonaws.com/wp-content/uploads/

2015/06/MOA-Zeroing-In-Final.pdf. 

49O’Sullivan, R., Mugglestone, K., and Allison, T. 

(2014). In this together: The hidden cost of young 

adult unemployment. Young Invincibles. Retrieved 

from: http://younginvincibles.org/wp-content/

uploads/2014/01/In-This-Together-The-HiddenCost-of-Young-Adult-Unemployment.pdf. 

50This is compared to a full-time year-round 

worker. 

51Bureau of Labor Statistics. (2016). CPI Detailed 

Report Data for February 2016. Retrieved from: 

http://www.bls.gov/cpi/cpid1602.pdf. The 

Department calculated the inflation factor of 1.02 

using data from Table 24. ‘‘Historical Consumer 

Price Index for All Urban Consumers (CPI–U): U.S. 

City Average, All Items.’’ To calculate the inflation 

factor, the Department divided the average annual 

CPI–U for 2015 by the average annual CPI–U for 

2013 (=237.017/232.957). 

($65.39/hour). We performed the same 

calculation for the following 

occupational categories: Database 

administrators (2 administrators at 

$57.02/hour for 125 hours each), 

management analysts (2 analysts at 

$45.88/hour for 80 hours each), and 

secretaries or administrative assistants 

(2 assistants at $27.16/hour for 45 hours 

each). We summed the labor cost for all 

four occupational categories ($26,002) 

and multiplied the result by the number 

of States (57) to estimate a one-time cost 

of $1.5 million ($1,482,108), resulting in 

an annual cost of $148,211. 

Relative to the baseline of current 

practice under WIA, the 21 provisions 

of the WIOA Final Rule described above 

are expected to result in costs of $350.4 

million ($350,375,401) over the total 10- 

year period. This is equivalent to an 

average annual cost of $35.0 million 

($35,037,540). See section V.A.7 

(Summary of the Analysis) for a 

summary of these costs. 

Quantifiable Transfer Payments 

This section describes the quantifiable 

transfer payments expected to result 

from the Final Rule. Transfer payments, 

as defined by Circular A–4, are 

payments from one group to another 

that do not affect total resources 

available to society. Because of data 

limitations, the Department relied on 

expert judgement for some of the 

transfer estimates. 

a. Youth Funds Targeting Out-of-School 

Youth 

Under WIA, local areas were required 

to spend at least 30 percent of youth 

funds to assist eligible OSY. Under 

WIOA, States and local areas will be 

required to spend at least 75 percent of 

youth funds on OSY. 

In addition to several benefits, 

discussed below in section V.A.7 

(Summary of the Analysis), the 

Department’s focus on OSY will result 

in transfers related to a larger tax base 

and reduced burdens on taxpayers. 

These programs are expected to help 

youth that are particularly vulnerable, 

such as those who are low-income, 

minorities, or high school dropouts. 

Unassisted OSY have a higher 

likelihood of imposing large costs on 

society. Based on the Current 

Population Survey (CPS) by the U.S. 

Census Bureau, there were 6 million 

‘‘disconnected youth’’ between the ages 

of 16 and 24 (i.e., youth who are not 

enrolled in school and not employed) in 

2015. 

Child Trends also found that due to 

their lack of education, youth without 

high school degrees are more likely to 

live in poverty and receive government 

assistance.45

Wald and Martinez (2002) found that 

dropouts were in prison at rates 10 to 20 

times higher than youth who graduated 

from high school.46 Incarcerating these 

individuals represents an additional 

cost to taxpayers. Belfield and Levin 

(2012) found that each disconnected 

youth costs taxpayers approximately 

$236,000 over the youth’s lifetime and 

imposes $704,000 in societal costs. The 

estimated fiscal burden accounts for lost 

tax payments, public crime 

expenditures (e.g., incarceration and 

legal system costs), higher public health 

and welfare expenditures, and reduced 

public education costs. The estimate of 

the societal cost includes lost earnings, 

crime costs (e.g., incarceration and 

reduced quality of life), increased 

health, welfare, and social services 

expenditures, lower workforce 

productivity, and lower education 

spending.47 In their report, Measure of 

America found that the cost of youth 

disconnection—including health care, 

public assistance, and incarceration— 

was $26.8 billion in 2013.48

Transfers 

Under WIOA, individuals exiting the 

youth program will have an increased 

likelihood of gaining employment. 

According to ETA program data from FY 

2015, 102,723 youth exit the youth 

program each year. The Department 

assumes that the increase in funding 

will result in a 15-percent increase in 

youth exiting the program each year, 

resulting in 118,132 youth exiting per 

year. Of the 15,409 additional youth 

exiting the youth program under WIOA 

due to the increased funding targeting 

youth, the Department assumed that 20 

percent will gain employment due to 

the expertise they gained from the youth 

program. According to the Young 

Invincibles’ report,49 on average, an 

unemployed 18- to 24-year-old will cost 

Federal and State governments more 

than $4,100 each year 50 in forgone tax 

revenue and safety-net benefits paid out, 

which is equal to $4,182 in 2015 

dollars.51 The Department assumed that 

all youth obtaining full-time year-round 

jobs after exiting the youth program will 

be 24 years old, and will reduce the 

taxpayer burden by $4,182. The full 

benefits to youth unemployment will 

account for individuals who exited the 

program before they became 24 years 

old, and remained employed until 

becoming at least 25 years old. 

The Department multiplied the 

number of youth that will gain 

employment due to WIOA (3,082) by the 

annual cost to taxpayers ($4,182) to 

estimate an annual benefit of $12.9 

million ($12,887,628). Over the 10-year 

analysis period, this calculation results 

in a total benefit of $128.9 million 

($128,876,276) to Federal and State 

governments. 

7. Summary of the Analysis 

Exhibit 28 summarizes the estimated 

average annual costs for each provision 

of the Final Rule. The exhibit also 

presents a high-level qualitative 

description of the benefits resulting 

from full WIOA implementation of each 

regulatory provision in this DOL WIOA 

Final Rule. These qualitative forecasts 

are predicated on program experience 

and are outcomes for which data will 

become available only after 

implementation. The Department 

estimates the average annual cost of the 

Final Rule over the 10-year analysis 

period at $35.0 million. The largest 

contributor to this cost is the provision 

related to the development and 

continuous improvement of the 

workforce development system, which 

is $6.6 million per year. The next largest 

cost results from the Local WDB career 

pathways development, which is an 

estimated $6.5 million per year, 

followed by the colocation of ES 

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services at an estimated $5.8 million per 

year. 

EXHIBIT 28—ESTIMATED COSTS OF THE FINAL RULE BY PROVISION

[2015 dollars] 

Provision 

Average 

annual costs Percent of 

total costs Qualitative benefit highlights 

(undiscounted) 

(a) New State WDB Membership Requirements ......... $27,174 0.08% Policy implementation efficiencies from reduced size 

and maneuverability. 

(b) Development and Continuous Improvement of the 

Workforce Development System.

6,641,946 18.96 Mission clarification and ongoing commitment should 

foster future envisioned benefits continuing to accrue; Enhanced employer and employee services 

as a result of recognition of real labor markets 

(without artificial jurisdictional boundaries). 

(c) Identification and Dissemination of Best Practices 314,720 0.90 Mission clarification and system building. 

(d) Development of Statewide Policies Affecting the 

State’s One-Stop Delivery System.

136,227 0.39 Mission clarification for State WDBs and overall system building capacity. 

(e) Development of Strategies for Technological Improvements.202,612 0.58 Recognition of the efficiencies generated by technology and enhanced management capabilities especially using outcome data. 

(f) Appoint New Local WDB and Appropriate Firewalls 448,153 1.28 Efficient use of Local WDB time; avoids conflicts of 

interest and negative publicity; administrative savings. 

(g) Local WDB Career Pathways Development ........... 6,537,876 18.66 Improved educational and employment outcomes; potential employees are better prepared for jobs. 

(h) Local WDB Development of Proven and Promising 

Practices.

2,144,028 6.12 Improved job placements and customer service. 

(i) Local WDB Development of Technology Strategies 

for Public Workforce System Accessibility and Effectiveness.

2,147,740 6.13 Improved customer service; better decision-making 

from improved service level data; reduced paper 

costs, improved collaboration across service partners; improved customer service planning. 

(j) Competitive Process for Selection of the One-Stop 

Operator.

1,422,300 4.06 Improved public confidence in the process; avoided 

conflicts of interest. 

(k) Local WDB Coordination with Education Providers 2,144,028 6.12 Improved preparation of workers and youth for future 

jobs; enhanced placements and outcomes. 

(l) Regional Plans ......................................................... 954,197 2.72 Savings from expanded collaboration; increased services to customers; reduced administrative overhead. 

(m) Local and Regional Plan Modification ................... 379,881 1.08 Increased coordination of services leading to resource 

efficiencies; transparency. 

(n) Improved Information about Potential Eligible 

Training Program Providers.

452,334 1.29 Improved customer decision-making; linkage of resources to outcomes and accountability for training 

and improved placement outcomes. 

(o) Sanctions on Under-Performing States .................. 40,822 0.12 Improved services; better use of WIOA funds; enhanced recognition of performance imperatives by 

States and local areas; more accountability. 

(p) Colocation of ES Services ...................................... 5,788,902 16.52 Reduced administrative overhead; improved service 

delivery and customer service; more efficient and 

effective public administration. 

(q) Partners Required to Pay their Share for Proportionate Use of One-Stop Delivery System.4,563,929 13.03 Expanded system cohesion; improved service delivery; avoidance of fragmented or duplication of services. 

(r) Establishing Training Provider Eligibility Procedures, Including Procedures for Adding Registered 

Apprenticeship Programs to the State Eligible 

Training Provider List.

247,127 0.71 Increased training opportunities, especially for youth; 

effective administration linking to accountability and 

outcomes. 

(s) Determining Initial Eligibility of New and Previously 

Eligible Providers.

87,924 0.25 Increased transparency; uniform treatment of ETPs; 

reduced incidents of non-meritorious performance. 

(t) Biennial Review of Training Provider Eligibility ....... 207,409 0.59 Increased competition leading to more and better 

placements. 

(u) Disseminating the Training Provider List with Accompanying Information.148,211 0.42 More informed customer choice; clearer link of training resources to desired outcomes; more transparency. 

Total Costs ............................................................ 35,037,540 100.00 

Note: Totals might not sum due to rounding. 

Exhibit 29 summarizes the estimated 

transfers related to the Final Rule. The 

Department estimates the total average annual transfer of the Final Rule to be 

$12.9 million. 

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52U.S. Department of Labor, Employment and 

Training Administration. (2015). Archive of State 

Statutory Formula Funding. Retrieved from: https:// 

www.doleta.gov/budget/py01_py09_arra_

archive.cfm. The Department used data from the 

following files to estimate the average annual WIA 

budget: WIA Adult Activities Program (PYs 2011, 

2012, 2013, and 2014); WIA Dislocated Worker 

Activities Program (PYs 2011, 2012, 2013, and 

2014); and WIA Youth Activities (PYs 2012, 2013, 

and 2014). Note that for the adult and dislocated 

worker activities programs, each fiscal year’s 

funding is calculated as the sum of the program 

year’s July funding and the previous program year’s 

October funding. The youth activities funding is 

obligated to States in April and therefore 

corresponds to the fiscal year in which it is 

obligated. The Department inflated the funding for 

each fiscal year, so that the average annual WIA 

budget is in 2015 dollars. 

U.S. Department of Labor, Employment and 

Training Administration. (2015) State Statutory 

Formula Funding. Retrieved from: https://

www.doleta.gov/budget/statfund.cfm. The 

Department also used data from the following files 

to estimate the average annual WIA budget: 

Employment Services Program Dollar Tables (PYs 

2012, 2013, and 2014). Note that Wagner-Peyser Act 

funds for a program year are obligated to States in 

July; therefore, these funds correspond to the fiscal 

year in which they are obligated. The Department 

EXHIBIT 29—ESTIMATED TRANSFERS

OF THE FINAL RULE BY PROVISION

[2015 dollar] 

Provision 

Average 

annual transfer 

(undiscounted) 

(a) Youth Funds Targeting 

Out-of-School Youth ......... $12,887,628 

Total Transfers .............. 12,887,628 

Exhibit 30 summarizes the estimated 

first-year costs for each provision of this 

Final Rule. The Department estimates 

the total first-year cost of this Final Rule 

to be $89.9 million. The largest 

contributor to the first-year cost is the 

provision related to the colocation of ES 

services at an estimated $57.9 million. 

The next largest first-year cost results 

from the development and continuous 

improvement of the workforce 

development system at an estimated 

$7.0 million, followed by the Local 

WDB career pathways development at 

an estimated $6.5 million. 

EXHIBIT 30—ESTIMATED FIRST-YEAR COSTS OF THE FINAL RULE BY PROVISION

[2015 dollars] 

Provision Total first-year 

costs 

Percent of 

total first-year 

costs 

(a) New State WDB Membership Requirements .................................................................................................... $271,742 0.30 

(b) Development and Continuous Improvement of the Workforce Development System ...................................... 7,029,820 7.82 

(c) Identification and Dissemination of Best Practices ............................................................................................ 314,720 0.35 

(d) Development of Statewide Policies Affecting the State’s One-Stop Delivery System ...................................... 1,362,268 1.52 

(e) Development of Strategies for Technological Improvements ............................................................................ 202,612 0.23 

(f) Appoint New Local WDB and Appropriate Firewalls .......................................................................................... 4,481,532 4.99 

(g) Local WDB Career Pathways Development ...................................................................................................... 6,537,876 7.28 

(h) Local WDB Development of Proven and Promising Practices .......................................................................... 2,144,028 2.39 

(i) Local WDB Development of Technology Strategies for Public Workforce System Accessibility and Effectiveness ...................................................................................................................................................................... 2,147,740 2.39 

(j) Competitive Process for Selection of the One-Stop Operator ............................................................................ 0 0.00 

(k) Local WDB Coordination with Education Providers ........................................................................................... 2,144,028 2.39 

(l) Regional Plans .................................................................................................................................................... 0 0.00 

(m) Local and Regional Plan Modification .............................................................................................................. 0 0.00 

(n) Improved Information about Eligible Training Program Providers ..................................................................... 452,334 0.50 

(o) Sanctions on Under-Performing States ............................................................................................................. 40,822 0.05 

(p) Colocation of ES Services ................................................................................................................................. 57,889,020 64.43 

(q) Partners Required to Pay their Share for Proportionate Use of One-Stop Delivery System ........................... 0 0.00 

(r) Establishing Training Provider Eligibility Procedures, Including Procedures for Adding Registered Apprenticeship Programs to the State Eligible Training Provider List ............................................................................ 2,471,269 2.75 

(s) Determining Initial Eligibility of New and Previously Eligible Providers ............................................................. 879,236 0.98 

(t) Biennial Review of Training Provider Eligibility .................................................................................................. 0 0.00 

(u) Disseminating the Training Provider List with Accompanying Information ....................................................... 1,482,108 1.65 

Total cost .......................................................................................................................................................... 89,851,156 100.00 

Note: Totals might not sum due to rounding. 

Exhibit 31 summarizes the estimated 

first-year transfers of this Final Rule. 

The Department estimates the total firstyear transfer of this Final Rule to be 

$12.9 million. 

EXHIBIT 31—ESTIMATED FIRST-YEAR

TRANSFERS OF THE FINAL RULE BY

PROVISION

[2015 dollars] 

Provision Total first-year 

transfers 

(a) Youth Funds Targeting 

Out-of-School Youth ......... $12,887,628 

Total transfer ................. 12,887,628 

Exhibit 32 summarizes the estimated 

annual and total costs and transfers of 

this DOL WIOA Final Rule. The 

estimated total (undiscounted) cost of 

the rule sums to $350.4 million over the 

10-year analysis period, which is equal 

to an average annual cost of $35.0 

million per year. In total, the estimated 

10-year discounted costs of the Final 

Rule range from $278.8 million to 

$314.9 million (with 7- and 3-percent 

discounting, respectively). 

The estimated total (undiscounted) 

transfers of the rule sum to $128.9 

million over the 10-year analysis period, 

for an average annual transfer of $12.9 

million per year. In total, the estimated 

10-year discounted transfers of the Final 

Rule range from $96.9 million to $113.2 

million (with 7- and 3-percent 

discounting, respectively). 

To contextualize the cost of the Final 

Rule, the Department’s average annual 

budget for WIA over the FY 2012–2014 

was $3.5 billion.52 Thus, the annual 

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inflated the funding for each fiscal year, so that the 

average annual WIA budget is in 2015 dollars. 

53TEGL No. 34–14, TEGL No. 12–14, and TEGL 

No. 24–14. Funds from PY 2014 were inflated to 

2015 dollars. 

54Segal, G. (2005). Making Florida’s government 

competitive. Backgrounder. (44). The James 

Madison Institute. Retrieved from: http://

reason.org/files/

fb2c24752ac451b648c88d99b262dcfe.pdf. 

55Hodge, G. A. (2000). Privatization: An 

International Review of Performance. Boulder, CO: 

Westview Press. 

56Hilke, J. (1993). Cost Savings from 

Privatization: A Compilation of Study Findings 

(How to Guide No. 6). Reason Foundation. 

Retrieved from: http://reason.org/files/

b987e7bd89f4c4e21c8a73857b7001e8.pdf. 

57Cohen, W. S. (1997). Defense Reform Initiative 

Report. Washington, DC: Department of Defense. 

58Burt, N. D., and Boyett, J. E. (1979). Reduction 

in selling price after the introduction of 

competition. Journal of Marketing Research, 16(2), 

275–279. 

additional cost of implementing the 

Final Rule is 1.1 percent of the average 

annual cost of implementing WIA over 

the FY 2012–2014 (with either 3-percent 

or 7-percent discounting). In response to 

public comments, we also contextualize 

the cost of the Final Rule relative to the 

amount of administrative and transition 

funds available to States, which 

averaged $200.1 million between PY 

2014 and PY 2015.53 The annual 

additional cost of implementing the 

Final Rule is between 18.5 percent and 

19.8 percent of the average annual 

administrative and transition funds 

budget (with 3-percent and 7-percent 

discounting, respectively). 

EXHIBIT 32—ESTIMATED MONETIZED COSTS AND TRANSFERS OF THE FINAL RULE

[2015 dollars] 

Year Total costs Transfers 

2016 ......................................................................................................................................................................... $89,851,156 $12,887,628 

2017 ......................................................................................................................................................................... 30,471,554 12,887,628 

2018 ......................................................................................................................................................................... 35,688,517 12,887,628 

2019 ......................................................................................................................................................................... 23,550,089 12,887,628 

2020 ......................................................................................................................................................................... 20,475,421 12,887,628 

2021 ......................................................................................................................................................................... 46,203,174 12,887,628 

2022 ......................................................................................................................................................................... 20,475,421 12,887,628 

2023 ......................................................................................................................................................................... 22,236,610 12,887,628 

2024 ......................................................................................................................................................................... 35,688,517 12,887,628 

2025 ......................................................................................................................................................................... 25,734,944 12,887,628 

Undiscounted 10-Year Total .................................................................................................................................... 350,375,401 128,876,276 

10-Year Total with 3% Discounting ......................................................................................................................... 314,911,219 113,232,100 

10-Year Total with 7% Discounting ......................................................................................................................... 278,750,652 96,853,514 

10-Year Average ...................................................................................................................................................... 35,037,540 12,887,628 

Annualized with 3% Discounting ............................................................................................................................. 36,917,202 13,274,256 

Annualized with 7% Discounting ............................................................................................................................. 39,687,822 13,789,762 

Qualitative Benefits 

The Department was unable to 

quantify the important benefits to 

society due to data limitations and a 

lack of existing data or evaluation 

findings on the particular items. These 

include benefits from increased 

competition for all one-stop operators, 

the increased employment opportunities 

for unemployed or underemployed U.S. 

workers, benefits of colocation of ES 

services, enhanced ETP process, 

regional planning, and evaluation of 

State programs. Below, the Department 

describes qualitatively these benefits in 

qualitative terms. These qualitative 

forecasts are predicated on program 

experience and are outcomes for which 

data will become available only after 

implementation. Although these studies 

are largely based on programs and their 

existing requirements under WIA, they 

capture the essence of the societal 

benefits that can be expected from this 

Final Rule. 

EXHIBIT 33—COST SAVINGS BY STUDY

Study 

Cost savings 

(percent) 

Low estimate High estimate 

Segal (2005) 54 ........................................................................................................................................................ 5 50 

Hodge (2000) 55 ....................................................................................................................................................... 6 12 

Hilke (1993) 56 .......................................................................................................................................................... 5 20 

Cohen (1997) 57 ....................................................................................................................................................... 31 

Burt and Boyett (1979) 58 ........................................................................................................................................ 11 18 

State evaluation research. In support 

of a State’s strategic plan and goals, 

State-conducted evaluations and other 

forms of research will enable each State 

to test various interventions geared 

toward State conditions and 

opportunities. Results from such 

evaluation and research, if used by 

States, could improve service quality 

and effectiveness, potentially leading to 

higher employment rates and earnings 

among participants. Implementing 

various innovations that have been 

tested and found effective also could 

lead to lower unit costs and increased 

numbers of individuals served within a 

State. Sharing the findings nationally 

could lead to new service or 

management practices that other States 

could adopt to improve participant 

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56320 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

59U.S. Department of Labor, U.S. Department of 

Commerce, U.S. Department of Education, and U.S. 

Department of Health and Human Services. (2014). 

What Works In Job Training: A Synthesis of the 

Evidence. Retrieved from: http://www.dol.gov/asp/

evaluation/jdt/jdt.pdf. 

60 Ibid. 

61 Decker, P. T., and Berk, J. A. (2011.) Ten years 

of the Workforce Investment Act (WIA): Interpreting 

the research on WIA and related programs. Journal 

of Policy Analysis and Management, 30(4), 906– 

926. 

62Hollenbeck, K., Schroeder, D., King, C. T., and 

Huang, W.-J. (2005). Net impact estimates for 

services provided through the Workforce Investment 

Act (Occasional Paper 2005–06). Washington, DC: 

U.S. Department of Labor, Employment and 

Training Administration, Office of Policy and 

Research, Division of Research and Demonstration. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/Net%20Impact%20Estimates

%20for%20Services%20Provided%20through

%20the%20Workforce%20Investment%20Act-

%20Final%20Report.pdf. 

63Heinrich, C. J., Mueser, P. R., and Troske, K. 

R. (2009). Workforce Investment Act nonexperimental net impact evaluation. Columbia, MD: 

IMPAQ International, LLC. Retrieved from: http:// 

wdr.doleta.gov/research/FullText_Documents/

Workforce%20Investment%20Act%20NonExperimental%20Net%20Impact%20Evaluation

%20-%20Final%20Report.pdf. 

64Park, J. (2011). Does occupational training by 

the Trade Adjustment Assistance Program really 

help reemployment?: Success measured as 

matching. Washington, DC: U.S. Department of 

Labor, Employment and Training Administration. 

Retrieved from: https://wdr.doleta.gov/research/

FullText_Documents/ETAOP_2011–09.pdf. 

65 Ibid. 

66 Jackson, R. H., Malene ́ Dixon, R., McCoy, A., 

Pistorino, C., Zador, P., Lopdell, J, Bruno, L. (2007). 

Youth Opportunity Grant Initiative: Impact and 

synthesis report. Prepared by Decision Information 

Resources, Inc. for U.S. Department of Labor, 

Employment and Training Administration. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/YO%20Impact%20and

%20Synthesis%20Report.pdf. 

67U.S. Department of Labor, Employment and 

Training Administration, Office of Policy 

Development and Research. (2013). Five-Year 

research and evaluation strategic plan program 

years 2012–2017. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

ETAOP_2013_21.pdf. 

68Barnow, B., and Gubits, D. (2003). Review of 

recent pilot, demonstration, research, and 

evaluation initiatives to assist in the 

implementation of programs under the Workforce 

Investment Act (Occasional Paper 2003–10). U.S. 

Department of Labor, Employment and Training 

Administration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

ETAOP%202003–10%20Review%20of%20Recent

%20Pilot%2C%20Demonostration

%2C%20Research%2C%20and%20Evaluation

%20Initiatives.pdf. 

69 Ibid. 

70Chrisinger, C. K. (2011). Earnings progression 

among workforce development participants: 

Evidence from Washington State. U.S. Department 

of Labor, Employment and Training 

Administration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

ETAOP_2011-11.pdf. 

71Heinrich, C. J., Mueser, P. R., and Troske, K. 

R. (2009). Workforce Investment Act nonexperimental net impact evaluation. Columbia, MD: 

IMPAQ International, LLC. Retrieved from: http:// 

wdr.doleta.gov/research/FullText_Documents/

Workforce%20Investment%20Act%20NonExperimental%20Net%20Impact%20Evaluation

%20-%20Final%20Report.pdf. 

72 Ibid. 

73 Gritz, M., and Johnson, T. (2001). National Job 

Corps Study: Assessing program effects on earnings 

for students achieving key program milestones. 

Prepared by Battelle Memorial Institute for U.S. 

Department of Labor, Employment and Training 

Administration, Office of Policy and Research. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/MilestoneImpactReportFinal.pdf. 

74Hollenbeck, K., Schroeder, D., C.T. King, C. T., 

and Huang, W.-J. (2005). Net impact estimates for 

services provided through the Workforce Investment 

Act (Occasional Paper 2005–06). Washington, DC: 

U.S. Department of Labor, Employment and 

Training Administration, Office of Policy and 

Research, Division of Research and Demonstration. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/Net%20Impact%20Estimates

%20for%20Services%20Provided%20through

%20the%20Workforce%20Investment%20Act-

%20Final%20Report.pdf. 

75Needels, K., Bellotti, J., Dadgar, M., and 

Nicholson, W. (2006). Evaluation of the Military 

Base National Emergency Grants: Final report 

(Occasional Paper 2007–02). Prepared by 

Mathematica Policy Research for U.S. Department 

of Labor, Employment and Training 

Administration, Office of Policy Development and 

Research. Retrieved from: https://wdr.doleta.gov/

research/FullText_Documents/Evaluation

%20of%20the%20Military%20Base%20National 

results, lower unit costs, or increase the 

number served. 

Training’s impact on placement. A 

recent study found that flexible and 

innovative training that is closely 

related to a real and in-demand 

occupation is associated with better 

labor market outcomes for training 

participants. Youth disconnected from 

work and school can benefit from 

comprehensive and integrated models of 

training that combine education, 

occupational skills, and support 

services.59 The study noted, however, 

that evidence for effective employment 

and training-related programs for youth 

is less extensive than for adults, and 

that there are fewer positive findings 

from evaluations.60 The WIA youth 

program remains largely untested.61

One study found that WIA training 

services increase placement rates by 4.4 

percent among adults and by 5.9 percent 

among dislocated workers,62 while 

another study concluded that placement 

rates are 3 to 5 percent higher among all 

training recipients.63

Participants in occupational training 

had a 5 percentage points higher 

reemployment rate than those who 

received no training, and reemployment 

rates were highest among recipients of 

on-the-job training, a difference of 10 to 

11 percentage points.64 The study found 

that training, however, did not 

correspond to higher employment 

retention or earnings.65 A Youth 

Opportunity Grant Initiative study 

found that Youth Opportunity was 

successful at improving outcomes for 

high-poverty youth. Youth Opportunity 

also increased the labor-force 

participation rate overall and for 

subgroups, including 16- to 19-year-old 

adolescents, women, African 

Americans, and in-school youth.66

Department-sponsored research found 

that participants who received core 

services (often funded by ES) and other 

services in one-stop centers were more 

likely to enter and retain employment.67

Training’s impact on wages. Before 

enactment of WIA, Job Training 

Partnership Act services had a modest 

but statistically significant impact on 

the earnings of adult participants.68

WIA training increased participants’ 

quarterly earnings by $660; these 

impacts persisted beyond 2 years and 

were largest among women.69 WIA adult 

program participants who received core 

services (e.g., skill assessment, labor 

market information) or intensive 

services (e.g., specialized assessments, 

counseling) earned up to $200 more per 

quarter than non-WIA participants did. 

Earnings of participants who received 

training services in addition to core and 

intensive services initially were less but 

caught up within 10 quarters with the 

earnings of participants who received 

only core or intensive services; marginal 

benefits of training could exceed $400 

per quarter. Earnings progressions were 

similar for WIA adult program 

participants and users of the labor 

exchange only.70 WIA training services 

also improved participants’ long-term 

wage rates, doubling earnings after 10 

quarters over those not receiving 

training services.71 WIA participants 

who did not receive training, however, 

earned $550 to $700 more in the first 

quarter after placement. The study also 

noted that individuals who did not 

receive training received effective shortterm counseling that enabled them to 

gain an immediate advantage in the 

labor market.72

Another Department program, the Job 

Corps program for disadvantaged youth 

and young adults, produced sustained 

increases in earnings for participants in 

their early twenties. Students who 

completed Job Corps vocational training 

experienced average earnings increases 

by the fourth follow-up year over the 

comparison group, whereas those who 

did not complete training experienced 

no increase.73 Another publication also 

noted that, on average, adults 

experienced a $743 quarterly post-exit 

earnings boost.74

Those who completed training 

experienced a 15-percent increase in 

employment rates and an increase in 

hourly wages of $1.21 relative to 

participants without training.75

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%20Emergency%20Grants%20Final

%20Report.pdf. 

76 Greenstone, M., and Looney, A. (2011). 

Building America’s job skills with effective 

workforce programs: A training strategy to raise 

wages and increase work opportunities. 

Washington, DC: The Hamilton Project. Retrieved 

from: http://www.brookings.edu/∼/media/research/

files/papers/2011/11/training-greenstone-looney/

11_training_greenstone_looney.pdf. 

77 Jacobson, L. S., LaLonde, R. J., and Sullivan, D. 

G. (2011). Policies to reduce high-tenured displaced 

workers’ earnings losses through retraining 

(Discussion Paper 2011–11). Washington, DC: The 

Hamilton Project. Retrieved from: http://

www.brookings.edu/∼/media/research/files/papers/

2011/11/displaced-jacobson-lalaonde-sullivan/11_

displaced_jls_paper.pdf. 

78Heinrich, C. J., Mueser, P. R., Troske, K. R., 

Jeon, K.-S., and Kahvecioglu, D. C. (2009). New 

estimates of public employment and training 

program net impacts: A nonexperimental 

evaluation of the Workforce Investment Act 

program (Discussion Paper 4569). Bonn, Germany: 

Institute for the Study of Labor (IZA). Retrieved 

from: http://ftp.iza.org/dp4569.pdf. 

79 Dunham, K., Mack, M., Salzman, J., and 

Wiegand, A. (2005). Evaluation of the WIA 

performance measurement system: Survey report. 

Prepared by Social Policy Research Associates for 

U.S. Department of Labor, Employment and 

Training Administration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

Evaluation%20of%20the%20WIA%20Performance

%20Measurement%20System%20-%20Survey

%20Report.pdf. 

80 Johnson, T., Gritz, M., Jackson, R., Burghardt, 

J., Boussy, C., Leonard, J., and Orians, C. (1999). 

National Job Corps study: Report on the process 

analysis. Prepared by Mathematica Policy Research, 

Inc. for U.S. Department of Labor, Employment and 

Training Administration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/99-jc

_analysis.pdf. 

81 Ibid. 

82Courty, P., and Marschke, G. (2007). Making 

government accountable: Lessons from a federal job 

training program. Public Administration Review, 

67(5), 904–916. 

83Heckman, J. J., Heinrich, C., and Smith, J. A. 

(1997). Assessing the performance of performance 

standards in public bureaucracies. The American 

Economic Review, 87(2), 389–395. 

84 Ibid. 

85 Ibid. 

86 Dunham, K., Mack, M., Salzman, J., and 

Wiegand, A. (2005). Evaluation of the WIA 

performance measurement system: Survey report. 

Prepared by Social Policy Research Associates for 

U.S. Department of Labor, Employment and 

Training Administration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

Evaluation%20of%20the%20WIA%20Performance

%20Measurement%20System%20-%20Survey

%20Report.pdf. 

87Hollenbeck, K., Schroeder, D., King, C.T., and 

Huang., W.-J. (2005). Net Impact Estimates for 

Services Provided through the Workforce 

Investment Act (Occasional Paper 2005–06). 

Washington, DC: U.S. Department of Labor, 

Employment and Training Administration, Office of 

Policy and Research, Division of Research and 

Demonstration. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

Net%20Impact%20Estimates%20for%20Services%

20Provided%20through%20the%20Workforce

%20Investment%20Act-%20Final%20Report.pdf. 

88Heinrich, C.J., Mueser, P.R., and Troske, K.R. 

(2009). Workforce Investment Act non-experimental 

net impact evaluation. Columbia, MD: IMPAQ 

International, LLC. Retrieved from: http://

wdr.doleta.gov/research/FullText_Documents/

Workforce%20Investment%20Act%20NonExperimental%20Net%20Impact%20

Evaluation%20-%20Final%20Report.pdf. 

Participation in WIA training also had a 

distinct positive, but smaller, effect on 

employment and earnings, with 

employment 4.4 percentage points 

higher and quarterly earnings $660 

higher than for comparison group 

members. 

The following are channels through 

which these benefits might be achieved: 

Better information for workers. The 

accountability measures will provide 

workers with higher-quality information 

about potential training program 

providers and enable them to make 

better-informed choices about which 

programs to pursue. The information 

analyzed and published by the State and 

Local WDBs about local labor markets 

also will help trainees and providers 

target their efforts and develop 

reasonable expectations about 

outcomes. 

Consumers of educational services, 

including disadvantaged and displaced 

workers, require reliable information on 

the value of different training options to 

make informed choices. Displaced 

workers tend to be farther removed from 

schooling and lack information about 

available courses and the fields with the 

highest economic return.76 Given these 

information gaps and financial 

pressures, that displaced workers learn 

of the economic returns to various 

training plans is important.77

Nevertheless, one study determined that 

the cost-effectiveness of WIA job 

training for disadvantaged workers is 

‘‘modestly positive’’ due to the limited 

sample of States on which the research 

was based.78

Sanctions to under-performing States. 

WIOA requires the Department to place 

sanctions on States that underperform 

for 2 consecutive years. The sanction 

will be 5 percent of set-aside funding. 

Having a clear and credible sanction 

will serve as an incentive for States and 

local entities to monitor performance 

more effectively and to intervene early 

to avoid the loss of funding. 

Evaluations of WIA indicate that 

sanctions have a larger influence on 

programs than incentives do. Twothirds of local areas have indicated that 

the possibility of sanctions influenced 

their programs, whereas only slightly 

more than half indicated that incentives 

had an influence.79 Further, several Job 

Centers consider student placement 

outcomes in staff performance 

evaluations and pay for vocational 

instructors.80 This practice has 

significantly increased staff interest in 

successful student placement following 

program completion.81

State performance accountability 

measures. This requirement will 

include significant data collection for 

Local WDBs to address performance 

indicators for the core programs in their 

jurisdictions. This data collection will 

enable the State WDBs to assess 

performance across each State. Training 

providers will be required to provide 

data to Local WDBs, which will 

represent a cost in the form of increased 

data collection and processing. 

Employers and employees also will 

have to provide information to the 

training providers, which will take time. 

This provision, in combination with the 

State and Local WDB membership 

provisions requiring employer/business 

representation, is expected to improve 

the quality of local training and, 

ultimately, the number and caliber of 

job placements. 

Implementation of follow-up 

measures, rather than termination-based 

measures, might improve long-term 

labor market outcomes, although some 

could divert resources from training 

activities.82

Before-after earning metrics capture 

the contribution of training to earnings 

potential and minimize incentives to 

select only training participants with 

high initial earnings.83 With the 

exception of programs in a few States, 

current incentives do not reward 

enrollment of the least advantaged.84 In 

addition, the study noted evidence that 

the performance standards can be 

‘‘gamed’’ in an attempt to maximize 

their centers’ measured performance.85

Pressure to meet performance levels 

could lead providers to focus on offering 

services to participants most likely to 

succeed. For example, current 

accountability measures might create 

incentives for training providers to 

screen participants for motivation, delay 

participation for those needing 

significant improvement, or discourage 

participation by those with high existing 

wages.86

The following subsections present 

additional channels by which economic 

benefits might be associated with 

various aspects of the Final Rule: 

Dislocated workers. A study found 

that, for dislocated workers, receiving 

WIA services significantly increased 

employment rates by 13.5 percent and 

boosted post-exit quarterly earnings by 

$951.87 Another study found, however, 

that training in the WIA dislocated 

worker program had a net benefit close 

to zero or even below zero.88

Self-employed individuals. Job 

seekers who received self-employment 

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89 Kosanovich, W.T., Fleck, H., Yost, B., Armon, 

W. and Siliezar, S. (2001). Comprehensive 

assessment of self-employment assistance 

programs. Prepared by DTI Associates for U.S. 

Department of Labor, Office of Workforce Security. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/Comprehensive%20Assess

ment%20of%20Self-Employment%20

Assistance%20Programs.pdf. 

90Lerman, R.I. (2005). Programs to support outof-school youth (Occasional Paper 2005–14). 

Washington, DC: U.S. Department of Labor, 

Employment and Training Administration. 

Retrieved from: http://wdr.doleta.gov/research/

FullText_Documents/Programs%20to%

20Support%20Out-of-School%20Youth%

20Report.pdf. 

91 Ibid. 

services started businesses sooner and 

had longer-lasting businesses than 

nonparticipants. Self-employment 

assistance participants were 19 times 

more likely to be self-employed than 

nonparticipants and expressed high 

levels of satisfaction with selfemployment. A study of Maine, New 

Jersey, and New York programs found 

that participants were four times more 

likely to obtain employment of any kind 

than nonparticipants were.89

Workers with disabilities. A study of 

individuals with disabilities enrolled in 

training for a broad array of occupations 

found that the mean hourly wage and 

hours worked per quarter for program 

graduates were higher than for 

individuals who did not complete the 

program. 

Out-of-school youth. Several benefits 

are expected to result from the 

Department’s increased funding for 

OSY—especially those from vulnerable 

groups such as low-income youth, 

minorities, and high school dropouts. 

According to Lerman (2005), that youth 

who have left school recently develop 

skills directing them toward having 

productive careers is critical.90 As 

discussed above in the transfer 

subsection of the section V.A.6 (Subjectby-Subject Analysis), increased 

investment in programs that target OSY 

is expected to result in higher youth 

employment, higher incomes, reduced 

crime, and a reduction in the waste of 

human potential. As a note of caution, 

however, Lerman (2005) found that only 

a few of the programs sponsored by the 

Department, other Federal and State 

government agencies, and private 

foundations aimed at helping at-risk, 

OSY have resulted in concrete benefits 

that have exceeded each program’s 

costs.91

In conclusion, after a review of the 

quantitative and qualitative analysis of 

the impacts of this Final Rule, the 

Department has determined that the 

societal benefits justify the anticipated 

costs. 

Qualitative Transfers 

In addition, there is an important 

transfer payment that the Department 

was unable to quantify. Below, the 

Department describes qualitatively the 

transfer payment that is expected to 

result from layoff aversion due to rapid 

response activities. 

Layoff Aversion Due to Rapid 

Response Activities. Under the WIA 

Regulations, rapid response operators 

could use the funds to assess the 

potential for averting layoffs. Under 

WIOA, the regulations at § 682.330 

require rapid response to include layoff 

aversion strategies and activities, but 

only as applicable. The Final Rule 

includes several broad strategies and 

specific activities that are critical to 

gathering information, maintaining 

readiness, and ensuring the ability to 

capitalize on opportunities that will 

prevent, or minimize the duration of, 

unemployment. 

Although adding layoff aversion to a 

State’s portfolio of rapid response 

services will not necessarily change the 

rapid response costs for States because 

States take resources from other rapid 

response activities to do so, layoff 

aversion is economically valuable in 

many ways. Saving jobs keeps people 

working and earning income to be spent 

in the economy and prevents the costs 

associated with unemployment, 

including unemployment insurance and 

retraining. Businesses sell goods and 

services, make profits, and pay taxes, 

while maintaining a skilled workforce. 

Communities thrive when residents are 

working and actively participating in 

the economy. Preventing job loss, and 

minimizing the duration of 

unemployment, ensures that the public 

workforce system is a critically 

important player in creating and 

maintaining a successful economy, and 

layoff aversion can deliver meaningful, 

positive benefits such as retaining 

wages, maintaining economic activity, 

expanding tax bases, minimizing the 

costs of retraining, and increasing 

employee morale. 

This benefit is difficult to quantify 

because it is not possible to measure the 

number of individuals who would have 

been unemployed or the duration of 

their unemployment if layoff aversion 

services were not available. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. 603, requires agencies to 

prepare a regulatory flexibility analysis 

to determine whether a regulation will 

have a significant economic impact on 

a substantial number of small entities. 

Section 605 of the RFA allows an 

agency to certify a rule in lieu of 

preparing an analysis if the regulation is 

not expected to have a significant 

economic impact on a substantial 

number of small entities. Further, under 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 801 (SBREFA), an agency is 

required to produce compliance 

guidance for small entities if the rule 

has a significant economic impact. 

The Small Business Administration 

(SBA) defines a small business as one 

that is ‘‘independently owned and 

operated and which is not dominant in 

its field of operation.’’ The definition of 

small business varies from industry to 

industry to the extent necessary to 

reflect industry size differences 

properly. An agency must either use the 

SBA definition for a small entity or 

establish an alternative definition, in 

this instance, for the workforce 

industry. The Department has adopted 

the SBA definition for the purposes of 

this certification. 

The Department has notified the Chief 

Counsel for Advocacy, SBA, under the 

RFA at 5 U.S.C. 605(b), and certifies that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. This finding is 

supported, in large measure, by the fact 

that small entities are already receiving 

financial assistance under the WIA 

program and will likely continue to do 

so under the WIOA program as 

articulated in this Final Rule. 

Affected Small Entities 

This Final Rule can be expected to 

impact small one-stop center operators. 

One-stop operators can be a single entity 

(public, private, or nonprofit) or a 

consortium of entities. The types of 

entities that might be a one-stop 

operator include: (1) An institution of 

higher education; (2) an ES SWA 

established under the Wagner-Peyser 

Act; (3) a community-based 

organization, nonprofit organization, or 

workforce intermediary; (4) a private 

for-profit entity; (5) a government 

agency; (6) a Local WDB, with the 

approval of the local CEO and the 

Governor; or (7) another interested 

organization or entity that can carry out 

the duties of the one-stop operator. 

Examples include a local chamber of 

commerce or other business 

organization, or a labor organization. 

Impact on Small Entities 

The Department indicates that 

transfer payments are a significant 

aspect of this analysis in that the 

majority of WIOA program cost burdens 

on State and Local WDBs will be fully 

financed through Federal transfer 

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payments to States. The Department has 

highlighted costs that are new to WIOA 

implementation and this Final Rule. 

Therefore, the Department expects that 

the DOL WIOA Final Rule will have no 

cost impact on small entities. 

C. Small Business Regulatory 

Enforcement Fairness Act of 1996 

The Department has determined that 

this Final Rule does not impose a 

significant impact on a substantial 

number of small entities under the RFA; 

therefore, the Department is not 

required to produce any Compliance 

Guides for Small Entities as mandated 

by the SBREFA. 

D. 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 a 

collection of information, including 

publishing for public comment a 

summary of the collection of 

information and a brief description of 

the need for and proposed use of the 

information. 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the Department conducts a 

preclearance consultation program to 

provide the public and Federal agencies 

with an opportunity to comment on 

proposed and continuing collections of 

information in accordance with the 

PRA. See 44 U.S.C. 3506(c)(2)(A). This 

activity helps to ensure that the public 

understands the Department’s collection 

instructions, respondents can provide 

the requested data in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the Department can properly assess the 

impact of collection requirements on 

respondents. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless it is approved by OMB under the 

PRA and displays a currently valid 

OMB control number. The public is also 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. In 

addition, notwithstanding any other 

provisions of law, no person will be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number (44 U.S.C. 3512). 

In accordance with the PRA, the 

Department submitted a series of ICRs to 

OMB when the NPRM was published. 

The NPRM provided an opportunity for 

the public to comment on the 

information collections directly to the 

Department; commenters also were 

advised that comments under the PRA 

could be submitted directly to OMB. 

OMB issued a notice of action for each 

request asking the Department to 

resubmit the ICRs at the final rule stage 

and after considering public comments. 

Where information collection 

instruments were not ready at the time 

the NPRM published, the Department 

provided additional opportunities for 

the public to comment on the 

information collections through notices 

in the Federal Register that provided 

additional comment periods on the 

associated forms and instructions. These 

comment periods provided at least 60 

days for comments to be submitted to 

the agency. Each of these ICRs was then 

submitted for OMB approval, and the 

Department published notices in the 

Federal Register that invited comments 

to be sent to OMB for a period lasting 

at least 30 days. The Department also 

submitted each ICR for further approval 

to incorporate the provisions of this 

Final Rule; these Final Rule ICRs were 

not subject to further public comment. 

The Department provides a status of the 

each ICR in the summary section that 

immediately follows in this portion of 

the preamble. Where a review remained 

pending, when this preamble was 

drafted, the Department will publish an 

additional notice to announce OMB’s 

final action on the ICR. 

It should be noted that the ICR review 

status reported in this section only 

relates to requests related directly to this 

Final Rule. Certain ICR packages that 

were previously approved are being 

updated to change references to those in 

the Final Rule. As has been the practice 

throughout WIOA implementation, the 

Department will continue to update 

stakeholders on the status of the ICRs 

through other means. 

For some packages, substantive 

requirements were approved via a 

notice of action and as of the date of the 

drafting of this preamble, the 

information collection is being updated 

to reflect references in the WIOA Final 

Regulations. We note that the ETA 

Workforce Innovation and Opportunity 

Act Performance Accountability, 

Information, and Reporting System 

review is pending as of the date this 

preamble was drafted. The substantive 

requirements will be approved through 

a notice of action by OMB, and will take 

effect as of that date. The Department 

will announce this approval. 

The information collections in this 

Final Rule are summarized as follows. 

State Training Provider Eligibility 

Collection 

Agency: DOL–ETA. 

Title of Collection: State Training 

Provider Eligibility Collection. 

Type of Review: New collection. 

OMB Control Number: 1205–0523. 

Affected Public: State, Local, and 

Tribal Governments, and Private Sector. 

Obligation to Respond: Required to 

obtain or retain a benefit (WIOA sec. 

122). 

Total Estimated Number of 

Respondents Annually: 11,457. 

Total Estimated Number of Annual 

Responses: 11,457. 

Frequency of Responses: On 

Occasion. 

Total Estimated Annual Time Burden: 

8,835 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: § 680.450, 

§ 680.460, § 680.490, § 680.500. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: Under WIOA sec. 122, the 

Governor, after consultation with the 

State WDB, must establish criteria, 

information requirements, and 

procedures regarding the eligibility of 

providers of training services to receive 

funds under WIOA for the provision of 

training services in local areas in the 

State. The Final Rule describes the 

process for adding ‘‘new’’’ providers to 

the ETPL, explains the detailed 

application process for previously WIAeligible providers to remain eligible 

under WIOA, describes the performance 

information that providers are required 

to submit to the State in order to 

establish or renew eligibility, and 

explains the requirements for 

distributing the ETPL and 

accompanying information about the 

programs and providers on the list. 

The Department received no 

comments concerning this information 

collection. 

ETA Workforce Innovation and 

Opportunity Act Performance 

Accountability, Information, and 

Reporting System 

Agency: DOL–ETA. 

Title of Collection: ETA Workforce 

Innovation and Opportunity Act 

Performance Accountability, 

Information, and Reporting System. 

Type of Review: New collection. 

OMB Control Number: 1205–0521. 

Affected Public: State, Local, and 

Tribal Governments; Individuals or 

Households. 

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56324 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Total Estimated Number of 

Respondents Annually: 17,262,375. 

Total Estimated Number of Annual 

Responses: 34,526,494. 

Total Estimated Annual Time Burden: 

8,881,228 hours. 

Total Estimated Annual Other Costs 

Burden: $6,791,395. 

Regulations Sections: § 684.420, 

§ 684.610, § 684.700, § 684.800, 

§ 685.210, § 685.400, § 688.420, 

§ 688.610. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: This new information 

collection will consolidate the existing 

information collections for YouthBuild, 

National Farmworkers Jobs Program, 

Indian, and Native Americans Program 

participants. These information 

collections are currently approved 

under OMB Control Numbers 1205– 

0422, 1205–0425, and 1205–0464. The 

WIOA Performance Management and 

Information and Reporting System 

would standardize the initial 

application, quarterly, and annual 

reporting processes for program 

participants. 

Comments: The Department received 

comments in specific areas (e.g., 

performance indicators, ICR documents) 

and general topics (e.g., burden 

estimates). 

The Department received comments 

expressing concern that the proposed 

Participant Individual Record Layout 

(PIRL) did not identify which data 

elements are optional, required, or only 

required for a specific program or for 

specific participant characteristics. 

Similarly, four commenters requested 

that the final version of the PIRL contain 

information indicating which programs 

are required to report each data element 

and under which conditions each data 

element must be reported to help States 

determine how to modify their systems 

to capture the data properly. Two 

commenters assumed that, except where 

clearly indicated otherwise, all data 

elements are required for all 

participants, even those receiving 

minimal staff involvement, and 

commented that this would be a 

significant change from existing 

reporting requirements. One commenter 

requested that, if the intent is that all 

data elements before section E be 

gathered for all programs, the 

Department consider limiting the 

required data elements to those really 

needed for each program. Particularly 

for title III, this commenter expressed 

concern that participants would drop 

out if asked to provide large amounts of 

information not directly related to 

matching them with a job. 

Department Response: The PIRL 

consists of required and optional data 

elements for multiple programs and 

partners. Therefore, it is not expected 

that every data element will apply to 

every individual in every program. As 

noted above, the Department has 

extended the PIRL by identifying the 

reporting requirements for each 

program. For instance, as indicated by 

one of the commenters, it would not be 

realistic to collect the same depth and 

breadth of information from individual 

accessing ES services relative to 

individual receiving training services 

under a different program. Additional 

guidance and technical assistance will 

be provided on data collection and 

reporting requirements specific for each 

program. 

Comments: Several commenters 

stated that the proposed information 

collection is not clear regarding the 

Indian and Native American (INA) 

program’s reporting obligations and 

suggested that WIOA sec. 166 grantees 

have their own reporting systems, 

performance indicators, and a separate 

DOL-only PIRL. Two commenters also 

asked if all of the proposed reporting 

forms are required in order to begin 

programming a management 

information system. 

Department Response: The 

Department notes that the performance 

indicators for the INA program are 

statutorily required by WIOA; the 

Department does not have the discretion 

to deviate from the indicators required 

in sec. 166(h)(1)(A) of WIOA. The 

Department has included INA programs 

in these comprehensive performance 

reporting requirements for the 

workforce programs. Section 

166(h)(1)(A) requires the Secretary of 

Labor, in consultation with the Native 

American Employment and Training 

Council (NAETC), to develop additional 

performance indicators and standards. 

Different programs will be subject to 

different data element reporting 

requirements; in other words, INA 

program grantees only will be reporting 

on data elements in the DOL-only PIRL 

that are specifically related to the INA 

program. Additionally, the reporting 

template/form included in this ICR will 

be the required form for each program 

mentioned in the PIRL. In other words, 

while there is only one common form to 

be used, there will be one report form 

required for each grantee within the 

various programs included in this ICR. 

Comments: A commenter expressed 

concerns regarding the burden of 

increased reporting requirements on the 

INA program, including the need for 

technical experts to design reporting 

systems to capture all new requirements 

and the re-training of employees on 

reporting procedures. Two different 

commenters recommended that the 

Department fund the development of a 

robust, flexible, and secure Web-based 

system that will meet the needs of both 

the grantees and the Federal system. 

One of the commenters stated that a 

Web-based reporting system would 

address many of the problems 

associated with the current Bear Tracks 

management information system, which 

lacks support for grantees’ internal 

management and reporting requirements 

and is difficult to support and upgrade, 

particularly for non-Windows users. 

Department Response: The 

Department urges the commenters to 

review the program additional matrix 

added to the PIRL, which designates 

which data elements need to be 

collected by each program. All data 

elements listed in the PIRL are not 

required to be collected by the INA 

program; therefore, the burden is not as 

heavy as anticipated. 

The Department has worked on an 

appropriate balance between 

stewardship of Federal funds through 

tracking and reporting outcomes and not 

over-burdening recipients of those 

Federal funds with excessive reporting 

and other administrative requirements. 

However, reporting is essential for 

tracking participant outcomes and the 

overall effectiveness of all programs, 

including the INA program. Although 

the performance indicators require 

additional follow-up and longer tracking 

periods for participants, the Department 

does not consider this to be a significant 

increase in reporting burden. 

The Department concurs with the 

commenter on the need for training on 

the new performance indicators and 

reporting requirements and will provide 

on-going technical assistance to grantees 

as the system transitions to the new 

performance indicators and reporting 

requirements under WIOA. The 

Department also agrees with the 

commenter that it will require technical 

experts to develop a reporting system 

for INA program grantees and will be 

working in collaboration with the 

NAETC and with INA program grantees 

to develop a management information 

system that will allow grantees to track 

and report on INA participants. The 

Department will provide guidance and 

technical assistance at subsequent 

NAETC meetings to include the 

reporting process and system. 

The Department will consider a 

transition period for grantees so that 

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consultation and training is provided on 

the final reporting requirements for 

WIOA and to allow the development of 

a new reporting system. The Department 

commits to working with the NAETC on 

developing the revised reporting system 

and will consider web-based reporting 

as a means to reduce the maintenance 

of the system. 

Comments: Referencing PIRL section 

E.04 (Indian and Native American 

Program), a commenter requested 

clarification on whether the Bear Tracks 

management information system is 

mandated for the INA program and, if 

so, who would fund the costly system 

enhancements to meet WIOA reporting 

requirements. The commenter asserted 

that disaggregation is a concern for 

tribal affiliation in California because 

many California tribes are small and 

data elements such as date of birth, zip 

code, barriers to employment, and tribal 

affiliation may reveal personally 

identifiable information (PII). The 

commenter asked if the Department has 

completed and evaluated a privacy 

impact study for California Indian 

Manpower Consortium and requested 

confidentiality assurances for California 

tribes. 

Department Response: The Bear 

Tracks management information system 

is not a DOL-mandated system for INA 

program grantees. It was developed in 

collaboration with the NAETC and INA 

grantee community to increase reporting 

efficiency and accuracy and to allow for 

the transmission of individual 

participant records to the Department. 

Although the Bear Tracks management 

information system is not mandatory, 

INA program grantees will be required 

to use a system that transmits 

participant data in a manner that meets 

the Department’s reporting 

requirements. The Department has taken 

several steps to manage the secure 

transfer of individual participant 

records. These steps include: A page for 

the file upload (for grantees) that is 

Secure Socket Layer (SSL) enabled; a 

Secure File Transfer protocol (S–FTP) 

used to transfer files from the 

Employment and Training 

Administration (ETA) to the State of 

Kansas for UI wage matching (Kansas 

has an S–FTP server and DOL has the 

S–FTP client) and lastly, only aggregate 

data are returned to the Department 

with data suppressed on grantees with 

fewer than 4 records. The Department 

has completed a Privacy Impact 

Assessment (PIA) for the Enterprise 

Business Support System (EBSS), which 

is the system that collects and stores 

data for the INA program (See the PIA 

located at: http://www.dol.gov/oasam/

ocio/programs/PIA/ETA/ETAEBSS.htm) DOL has determined that the 

safeguards and controls for this system 

adequately protect the information as 

indicated in EBSS System Security Plan, 

dated March 5, 2013. 

Comments: Other commenters 

asserted that the gathering of 

information required for the PIRL would 

have significant costs, a few 

commenters urged the Department to 

evaluate each data element and require 

only those that are either mandated by 

statute or that truly have meaning and 

add value. One of these commenters 

stated that, while there are costs to 

modify information technology (IT) 

systems, including increased time spent 

gathering the data, it is ultimately the 

customers who pay these costs because 

more resources spent gathering data 

means less resources spent assisting 

customers and longer waits to see staff. 

Department Response: Although the 

PIRL consists of several data elements 

not previously collected by the 

Department’s workforce programs, most 

of the data elements were previously 

required under the WIA ‘‘WIASRD,’’ 

which is the precursor to the PIRL. In 

general, data elements were added only 

if required by WIOA either directly or 

indirectly (i.e., if required for one or 

more performance calculations, or 

required for eligibility determinations). 

As noted previously, the Department 

has taken every effort to strike a balance 

between its fiduciary responsibilities 

pertaining to stewardship of Federal 

funds and the desire to not impose 

undue administrative burden. 

The intent of this ICR is to streamline 

reporting across the Department’s 

workforce programs, and this is 

reflected in the PIRL through the 

inclusion all data elements necessary for 

each of the programs included in the 

collection to meet their individual 

program reporting requirements. 

Programs are required only to collect 

and report on those elements that are 

statutorily required and/or necessary to 

determine performance outcomes for 

those individuals to whom they provide 

services. The Department has 

minimized, to the extent possible, the 

burden placed on customers and service 

providers through the implementation 

of this new reporting system and will 

provide further support to ease this 

transition through future guidance and 

technical assistance. 

Comments: Two commenters 

expressed concern that there are 

common data elements in both the Joint 

WIOA PIRL and the DOL-only PIRL that 

have different definitions and 

recommended that the Department 

ensure the definitions of common data 

elements remain consistent. One 

commenter recommended that the 

Department align the numbering 

between the Joint WIOA PIRL and the 

DOL-only PIRL data elements and 

correct situations in which some 

numbers are used more than once. 

Another commenter expressed concern 

that some data elements in the proposed 

DOL-only PIRL relating to participant 

characteristics are defined differently 

than in the VR Report 911. 

Department Response: The 

Departments have worked to eliminate 

inconsistencies and align reporting 

requirements and the specific data 

elements, including using the exact 

same definitions for both versions of the 

PIRL, and aligning all element numbers. 

In addition, the Rehabilitation Services 

Administration (RSA) has added 

additional 911 elements to be consistent 

with the PIRL. Both DOL and RSA are 

revising existing data collection 

instruments. The increase in burden 

required to reorganize and renumber all 

of the data elements would exceed any 

burden removed by having consistent 

fields numbered across programs. RSA 

is also revising instructions to eliminate 

any duplicate numbers. Where 

appropriate, for reporting purposes, 

RSA also plans to aggregate some of the 

more detailed 911 data elements to be 

consistent with the PIRL. 

Comments: A commenter asked how 

data conflicts would be addressed if 

multiple PIRLs are submitted for the 

same individual by different agencies 

that have the individual on a different 

participation timeline. This commenter 

also expressed concern about integrating 

data from programs that are not part of 

the State system but are administered 

through grants to local areas and 

organizations throughout the State (e.g., 

YouthBuild and INA programs). If the 

information reported by these programs 

is to end up in an integrated PIRL, this 

commenter asserted that it will take 

time and effort for the State to establish 

a way to obtain and report the data from 

these additional programs to incorporate 

with ES, WIOA, and TAA. 

Department Response: The 

Department notes that States have the 

flexibility to submit a separate PIRL for 

each program, or a PIRL for each 

participant, including services received 

from all programs. The Department will 

perform any integration that takes place 

using multiple PIRL data elements to 

link individual records in the case 

where a unique identifier across 

programs is not available. There will 

also be an upload option for the entire 

PIRL layout, for those States who wish 

to integrate their programs into one data 

file submission. Regarding grantee 

programs outside of the State, the 

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56326 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Department agrees that this level of data 

integration may be difficult or in some 

cases not appropriate. The Department 

will continue to evaluate which 

programs should be integrated, and the 

most efficient methods to do so. 

Comments: A commenter inquired if 

one PIRL file will be integrated for all 

programs (title I subtitle B, title I 

subtitle D, title II, ES program, trade, 

and other non-WIOA programs noted) or 

whether each program will have its own 

file. If each program provides its own 

file, the commenter requested 

clarification regarding whether Trade 

would need to collect data elements that 

are not Trade-specific (e.g., low-income, 

low levels of literacy, and other data 

elements not currently reported in 

TAPR). A commenter expressed support 

for requiring Trade programs to use the 

PIRL as its program reporting layout, but 

requested clarification on the specific 

reporting requirements for TAA. For 

example, the commenter asked if 

quarterly Unemployment Insurance (UI) 

benefit information, as currently 

required on the TAPR, is still required 

and, if so, where these data will be 

collected on the PIRL. A commenter 

also expressed the understanding that 

each State can select if TAA will be 

included in the PIRL or reported in a 

separate program report. 

Department Response: Although the 

PIRL will be used for multiple DOL 

programs (both formula and 

discretionary), not all data elements will 

apply to every program, for example, 

data on cultural barriers is required by 

the WIOA statute for title I programs but 

there is no similar requirement for TAA 

programs. Therefore, data elements 

pertaining to cultural barriers would not 

be collected for individuals 

participating in the TAA program only. 

All data elements of the TAPR are 

included in the PIRL. UI benefit 

information is to be reported collected 

in PIRL 401. Each program will be made 

aware of which elements are required 

data elements; the additional data 

elements in the PIRL will be considered 

optional for States and grantees to report 

on. 

Comments: Regarding section B (OneStop Center Program Participation 

Information), a commenter said that 

because National Farmworker Jobs 

Program (NFJP) grantees operate their 

own case management and data 

management programs, they only can be 

expected to report participation in other 

WIOA programs for individuals for 

whom they arrange co-enrollment. The 

commenter expressed concern that there 

is not consistency among one-stop 

operators from service area to service 

area or State-to-State relating to the 

amount of cooperation and data sharing 

that States are willing or legally able to 

do with non-State agencies. 

Department Response: NFJP grantees 

are a required one-stop partner and 

must enter into a memorandum of 

understanding (MOU) with Local WDBs 

as described in WIOA sec. 121(c). As 

part of this MOU, Local WDBs and the 

required partners must describe the 

manner in which the services will be 

coordinated and delivered through the 

one-stop delivery system, including the 

methods of individual referrals between 

the one-stop operator and the one-stop 

partners for appropriate services and 

activities. WIOA sec. 121(c)(2)(B) also 

provides that other provisions 

consistent with WIOA may be included 

in the MOU, and the Department 

encourages required one-stop partners, 

such as NFJP grantees, to include 

language that can facilitate sharing of 

co-enrollment data for reporting 

purposes. The Department will issue 

additional guidance regarding the 

development of MOUs between Local 

WDBs and required one-stop partners. 

No revision to the data element text has 

been made. 

Comments: Regarding section D 

(Program Outcomes Information), a 

commenter expressed support for 

maintaining the ability of grantees to 

use supplemental data sources to track 

performance outcomes for all 

participants who are not found in wage 

records, reasoning that it provides 

certain program operators with the 

necessary flexibility to obtain 

performance outcome data without 

having access to wage records (e.g., 

community-based organizations). If such 

grantees use supplemental data sources 

but are unable to calculate performance 

outcomes for participants who choose 

not to provide their social security 

number, the commenter urged the 

Department to provide flexibility so 

there is no disincentive for serving these 

individuals (e.g., allow grantees to 

exclude these participants from 

performance outcome calculations but 

still include them in service counts, i.e., 

the participant served and exited 

column). 

Department Response: For 

individuals that do not have or choose 

not to provide a Social Security Number 

(SSN), the Department will allow for 

supplemental data to be used to track 

employment rates and wages of the 

participants. The Department notes that 

employment and wages must be 

collected and verified for a participant 

through either wage record matching or 

through supplemental wage 

information, in order for the participant 

to be included as being in unsubsidized 

employment during the second quarter 

and in the fourth quarters after exit; this 

requirement allows such participants 

without disclosed SSNs to be included 

in performance outcomes. States should 

report SSN matched data without 

reporting the SSN as the unique 

identifier, except to the extent permitted 

under the H–1B grant program. The data 

provided by UI is the most reliable and 

least burdensome data available for 

reporting employment rates and wages; 

however, the Department will allow 

data from the other sources listed in the 

PIRL to be used when UI data are 

unavailable. In other words, participants 

who identify as having a SSN and those 

who do not will all be accountable for 

performance outcomes as well as overall 

participant and exiter counts. Both the 

Departments of Education and Labor 

continue to work to find solutions that 

will allow States to access the data 

needed to comply with these 

requirements under WIOA. 

Comments: A commenter asked, 

concerning section E.02 (H–1B), 

whether only agencies that operate the 

H–1B program are responsible for 

completing this section, or whether 

programs under WIOA are required to 

confirm whether a person is an H–1B 

participant and, if so, whether WIOA is 

required to report these data elements. 

Similarly, noting that the PIRL has 

additional program data elements, e.g., 

H–1B (section E.02), Reintegration of 

Ex-Offenders (sections E.05 and E.06), 

and Office of Disability Employment 

Policy (ODEP) (section E.08), another 

commenter asked if States are now 

required to gather the data from the 

organizations that have been awarded 

these grants or whether grantees are 

expected to submit their own files. If the 

State is required to report on these 

programs, the commenter asked for 

additional guidance relating to how 

States will learn the identity of these 

grantees and expressed concern about 

sufficient lead time for State IT 

departments to make system 

modifications. 

Department Response: The 

Department is implementing the PIRL 

format across multiple programs, but 

not all programs will require the same 

data elements. For instance, H–1B 

grantees will be responsible for the 

collection and reporting of the required 

data elements under the H–1B section of 

the PIRL. Similarly, other discretionary 

grant programs will report only on those 

sections of the PIRL (i.e., those data 

elements that pertain to their respective 

program). In other words, the PIRL file 

for a participant in one program may 

look quite different from the PIRL file 

for a participant in a different program. 

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States will not be responsible for the 

submission of discretionary grant 

programs—the grantees themselves will 

have the responsibility of submitting 

data on their participants. 

Comments: Three commenters 

expressed confusion concerning PIRL 

408—Highest School Grad Completed 

(WIOA), on what to report for this data 

element. If an individual completes a 

full-time technical or vocational school, 

noting that although this data element 

no longer includes an option for 

vocational school, the Program 

Performance Scorecard lists vocational 

school under Educational Level. The 

commenters also asked whether it was 

a mistake that ‘‘Other Postsecondary 

Degree or Certification’’ is no longer 

included as an option under this data 

element. A commenter suggested that 

either the Department should further 

define this data element for consistent 

use and to avoid user error, or this data 

element should be removed. An 

advocacy organization recommended 

that the Department revise this data 

element to include educational 

attainment completed in foreign 

countries in the data element 

specification, reasoning that it would 

aid service providers in determining the 

appropriate services a participant 

requires. 

Department Response: The 

Department has revised this data 

element for better clarity. If an 

individual has attained a postsecondary 

technical or vocational degree, the 

participant would be coded as a ‘5’ as 

per the element instructions. The option 

of ‘‘other postsecondary degree or 

certification’’ is not included here as the 

Department urges States and grantees to 

best choose one of the eight options for 

this element. Additionally, to reduce 

reporting burden, the Department did 

not add a separate option for completing 

an education program or attaining a 

degree or certificate. If this is the 

scenario, this participant’s degree would 

be treated as one earned domestically 

and also be coded as such. 

Comments: In discussing the 

measurable skill gains, a commenter 

expressed concern that the 

specifications include individuals who 

have an Exclusionary Reasons (PIRL 

923) code of ‘‘01.’’ Although 

acknowledging that this is to allow title 

II adult education providers to report on 

their corrections education/education of 

other institutionalized individuals, this 

commenter asserted that not excluding 

these individuals from title I 

performance is of concern because most 

participants who have been excluded 

from performance due to being 

institutionalized or incarcerated are 

waiting adjudication in a jail and are 

unable to secure bond; they are not in 

a prison where adult education 

providers are providing services. The 

commenter stated that there should be 

a better way to calculate and report this 

measure specific to each program. 

Another commenter expressed concerns 

regarding the burden of reporting on 

measurable skill gains as well as the 

accuracy of the measure. The 

commenter asserted that gathering and 

documenting information such as 

transcripts, report cards, progress 

reports, and exams would pose a 

hardship to States because schools will 

not provide student information, citing 

FERPA laws. Further, the commenter 

said that testing individuals for 

educational functional levels is costly, 

time consuming, and unrealistic. 

A commenter suggested there should 

be a minimum threshold of 

participation for a customer to reach (to 

be defined by Local WDBs) before that 

customer is counted towards this 

performance indicator (e.g., number of 

hours completed). This commenter also 

recommended that customers who start 

an education or training program in the 

last quarter of the program year should 

be subject to measure in the following 

program year given that they may not be 

able to demonstrate measurable gains so 

quickly. Moreover, given the diversity of 

possible education and training 

programs, this commenter 

recommended that requirements for 

documentation should be clear and 

simple, offer maximum flexibility as to 

what can demonstrate a skill gains, and 

stipulate that documentation is 

necessary only as back-up in the event 

of an audit, but not necessary to report 

on an outcome. 

Department Response: In the final 

ICR, the Department excludes those who 

become institutionalized, as defined in 

PIRL 923, option ‘‘01.’’ Although the 

Department understands the concerns 

around data gathering, the measure is 

required by statute; therefore, programs 

should form the necessary partnerships 

to obtain the information. Further, the 

Department has determined that, given 

the diversity of participant needs and 

program services, imposing a time 

threshold by which progress may be 

documented would be somewhat 

arbitrary and make the measure more 

complex. Such practice could result in 

excluding a number of participants from 

performance accountability reporting 

requirements, even if those participants 

would achieve a gain under one of the 

measures of progress. The Department 

recognizes that participants enrolling 

late in the program year may not have 

enough time to achieve a measurable 

skill gains prior to the end of the first 

program year, and the Department 

recognized this could be perceived to 

negatively impact performance. 

However, the negotiation process and 

the statistical adjustment model may 

take into account enrollment patterns 

and lower baseline data when setting 

targets for the measurable skill gains 

indicator. The Department is concerned 

about incentivizing behavior that 

discourages service providers from 

enrolling individuals, such as 

disconnected youth, when they first 

approach programs. The Department 

emphasizes that programs must not 

delay enrollment in a program or 

prohibit participants from entering a 

program late in the program year. All 

participant outcomes, regardless if 

achieved at the end of the reporting 

period in which they enrolled or in the 

next reporting period count as positive 

outcomes for the program as they are 

not exit-based measures. 

Comments: A commenter sought 

clarification on what data elements by 

program need to be recorded and when, 

asserting that there is no clear definition 

of what is required to be reported and 

at what stage of participation. 

Commenting that many data elements in 

the PIRL are unlikely to apply to all 

program and participant circumstances, 

an advocacy organization recommended 

that the Department develop an 

intelligent reporting system that uses 

logic models to streamline questions so 

they are only relevant to each program’s 

and participant’s circumstances. A 

commenter asked how the NFJP 

grantees will report on the elements that 

are not currently required for NFJP 

grants and only required for the main 

WIOA programs and asked whether 

such data elements would be ‘‘blocked’’ 

for the NJFP grantees. 

Department Response: The 

Department notes that the PIRL is 

expected to be utilized by multiple 

programs. Not all data elements will be 

required for all programs. Some data 

elements are program-specific and, as 

noted by commenters, will not apply to 

their programs. In addition, data 

elements pertaining to characteristics 

are expected to be captured at the point 

of participation. The data reporting 

solution will be flexible enough to 

accommodate only NFJP variables, or 

additional variables if the grantee 

choses to report on those. 

Comments: Regarding burden 

estimates, a commenter recommended 

that workforce agencies that will be 

submitting data to the Department 

should determine a governance 

structure before moving forward with 

data projects. The commenter explained 

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56328 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

that data governance refers to the 

operating discipline for managing data 

and information as a key enterprise 

asset, asserting that a data governance 

plan should consider: Decision-making 

authority, compliance monitoring, 

policies and standards, data inventories, 

full lifecycle management, preservation, 

data quality, data classification, data 

security and access, data risk 

management, and data validation. As an 

initial step in developing a data 

governance plan, this commenter 

recommended that workforce agencies 

determine the value and sensitivity of 

the information they seek to collect. 

Also, the commenter asserted that 

training on data quality, roles and 

responsibilities, prevention of mistakes, 

and correction of data quality should be 

offered and required for those with data 

input responsibilities. Finally, to enable 

government information sharing and to 

enhance the utility of collected data, 

this commenter recommended that 

workforce agencies begin exploring the 

National Information Exchange Model 

(NIEM). 

Department Response: The 

Department agrees on the importance of 

the items mentioned in the comment. 

For purposes of the Paperwork 

Reduction Act, associated burden is 

limited to the data collection and data 

submission components. Additionally, 

it would be very difficult to assign 

specific burden estimates on each 

element listed above. 

Work Application and Job Order 

Recordkeeping 

Agency: DOL–ETA. 

Title of Collection: Work Application 

and Job Order Recordkeeping. 

Type of Review: Revision. 

OMB Control Number: 1205–0001. 

Affected Public: State Governments. 

Obligation to Respond: Required to 

obtain or retain a benefit (WIOA sec. 

121). 

Total Estimated Number of 

Respondents Annually: 52. 

Total Estimated Number of Annual 

Responses: 52. 

Frequency of Responses: Quarterly. 

Total Estimated Annual Time Burden: 

417 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: § 652.8. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: The Final Rule would not 

affect the burden hours associated with 

creating work application and job order 

records. However, the rule would 

change the record retention 

requirements for work applications and 

job orders from 1 year to 3 years in order 

to align with other Wagner-Peyser Act 

record retention requirements. 

The Department received no 

comments concerning this information 

collection. 

Migrant and Seasonal Farmworker 

Monitoring Report and Complaint/

Apparent Violation Form 

Agency: DOL–ETA. 

Title of Collection: Migrant and 

Seasonal Farmworker Monitoring 

Report and Complaint/Apparent 

Violation Form. 

Type of Review: Revision. 

OMB Control Number: 1205–0039. 

Affected Public: State and Local 

Governments; Individuals or 

Households. 

Obligation to Respond: Required to 

obtain or retain a benefit (WIOA sec. 

167). 

Total Estimated Number of 

Respondents Annually: 3,552. 

Total Estimated Number of Annual 

Responses: 7,416. 

Frequency of Responses: On 

Occasion. 

Total Estimated Annual Time Burden: 

9,706 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: §§ 653.107, 

653.108(g)(6), (s), (i), and (m), 653.109, 

658.601. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: This information collection 

package includes the ETA Form 5148 

(Services to Migrant and Seasonal 

Farmworkers Report) and the ETA Form 

8429 (Complaint/Apparent Violation 

Form). SWAs must submit (pursuant to 

§ 653.109) ETA Form 5148 quarterly to 

report the level of services provided to 

MSFWs through the one-stop centers 

and through outreach staff to 

demonstrate the degree to which 

MSFWs are serviced and to ensure that 

such services are provided on a basis 

that is ‘‘qualitatively equivalent and 

quantitatively proportionate’’ to the 

services provided to non-MSFWs, as 

required in the Judge Richey Court 

Order. The Department requires SWAs 

to use ETA Form 8429 when logging 

and referring complaints and/or 

apparent violations pursuant to part 

658, subpart E. 

ETA Forms 5148 and 8429 were 

updated to reflect the new requirements 

in the Wagner-Peyser Act regulations. 

Additionally, the Department modified 

Form 5148 by eliminating parts 3 and 4 

and replacing part 3 with the Annual 

Summary that the SWAs will now need 

to submit at the end of the fourth 

quarter. Form 8429 was modified to 

include the submission of apparent 

violations. 

The Department anticipates there will 

be no changes in the estimated total 

number of burden hours with the 

changes to these forms. 

Comments: During the NPRM, the 

Department received comments on the 

data collection section (§ 653.109, Data 

Collection and Performance 

Accountability Measures). A few 

commenters recommended the 

Department revise the references to the 

pre-WIOA performance indicators. 

Another commenter noted that some of 

the proposed performance indicators in 

§ 653.109 are not in line with the WIOA 

measures to track participants in 

unsubsidized employment in the second 

quarter after exit, participants in 

unsubsidized employment in the fourth 

quarter after exit, and median earnings. 

Therefore, this commenter 

recommended the Department bring 

those measures in line with WIOA to 

ensure consistency across all programs. 

Department Response: The 

Department agrees and has changed 

§ 653.109(b)(5), (6) & (7) to be consistent 

with the WIOA performance indicators 

listed in WIOA sec. 116. 

Standard Job Corps Contractor 

Gathering Information 

Agency: DOL–ETA. 

Title of Collection: Standard Job Corps 

Contractor Gathering Information. 

Type of Review: Revision. 

OMB Control Number: 1205–0219. 

Affected Public: Private Sector. 

Obligation to Respond: Required to 

obtain or retain a benefit (WIOA sec. 

147). 

Total Estimated Number of 

Respondents Annually: 2,543. 

Total Estimated Number of Annual 

Responses: 197,459. 

Frequency of Responses: Weekly. 

Total Estimated Annual Time Burden: 

54,442 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: § 686.945. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: The Final Rule retains the 

same information collection 

requirements as those previously found 

at 20 CFR 670.960, but relocated the 

requirements to 20 CFR 686.945. 

Consistent with the WIA regulations, 

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the DOL WIOA Final Rule requires the 

Department to provide guidelines for 

maintaining records for each student 

during enrollment and for disposition of 

records after separation. As a result, the 

Department does not anticipate any 

changes in the information collection. 

Comments: The Department received 

no comments concerning this 

information collection. 

Placement Verification and Follow-up 

of Job Corps Participants 

Agency: DOL–ETA. 

Title of Collection: Placement 

Verification and Follow-up of Job Corps 

Participants. 

Type of Review: Revision. 

OMB Control Number: 1205–0426. 

Affected Public: Individuals or 

Households; Private Sector. 

Obligation to Respond: Voluntary. 

Total Estimated Number of 

Respondents Annually: 49,200. 

Total Estimated Number of Annual 

Responses: 93,400. 

Frequency of Responses: On occasion. 

Total Estimated Annual Time Burden: 

21,700. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: §§ 686.945, 

686.955, 686.1000, 686.1010, 686.1020, 

686.1030, 686.1040. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: Job Corps’ performance 

management system, which includes the 

OMS, is a well-established measurement 

system the Job Corps community has 

been using to track performance of 

centers and service providers for many 

years. It will be updated to reflect the 

new requirements of WIOA, including 

the new primary indicators of 

performance, but may also include 

breakouts of data that will help program 

managers target interventions in order to 

achieve the primary indicators. As a 

result, additional information would be 

collected from respondents. 

Comments: The Department received 

two comments in response to the ICR. 

Both comments concerned the use of 

administrative data, such as UI wage 

data, and surveys to collect performance 

information under the WIOA. 

Commenters stated that, as WIOA 

requires wage records be used as a 

primary source of information for 

performance reporting, the proposal to 

continue relying on surveys through the 

Post Enrollment Data Collection System 

(PEDCS) is unnecessary and inefficient. 

The commenters recommended that the 

Department utilize UI wage data 

through the WRIS, and consider the use 

of State longitudinal data systems to 

augment credential attainment. One 

commenter, however, clearly pointed 

out the various limitations of the 

currently available administrative data. 

Department Response: The 

Department notes that, currently, no 

source of administrative data exists that 

can meet the specific data reporting 

requirements of WIOA. Such records, in 

their current form, do not include 

information sufficient to support 

reporting at this time on all the different 

indicators required. For example, the 

data available from records collected by 

UI do not include individual 

information about wage rates, hours 

worked, or earnings at the individual 

student level. In addition, UI wage 

records do not provide any information 

about enrollment in school or training 

programs or attainment of secondary or 

postsecondary credentials, which are 

key program outcomes, and needed for 

accurately calculating several of the six 

primary WIOA measures. Finally, UI 

wage record information available to Job 

Corps through national data bases such 

as the Common Reporting Information 

System (CRIS) on employer 

identification number are not 

consistently available across States, 

which would lead Job Corps to 

underreport on the proposed 

effectiveness in serving employers 

measure. 

Job Corps has revised the PEDCS to 

collect data and information about postenrollment placements to align with 

specific WIOA reporting requirements. 

The revised PEDC will collect 

information to report on five of the six 

WIOA required primary performance 

indicators, 

Ultimately, Job Corps intends to 

incorporate the use of administrative 

data (State wage records) to track 

student outcomes under WIOA. Adding 

administrative data to its current 

methods will allow Job Corps to 

correlate information in a more efficient, 

accurate, and repeatable manner. 

Enhanced data collection and reporting 

process will be highly useful for 

program operators and program 

leadership in understanding the 

outcomes of all youth who interact with 

the Job Corps program. 

National Dislocated Workers Emergency 

Grant Application and Reporting 

Procedures 

Agency: DOL–ETA. 

Title of Collection: National 

Dislocated Workers Emergency Grant 

Application and Reporting Procedures. 

Type of Review: Revision. 

OMB Control Number: 1205–0439. 

Affected Public: State, Local, and 

Tribal Governments. 

Obligation to Respond: Required to 

obtain or retain a benefit (WIOA sec. 

170). 

Total Estimated Number of 

Respondents Annually: 159. 

Total Estimated Number of Annual 

Responses: 1,587. 

Frequency of Responses: On 

Occasion. 

Total Estimated Annual Time Burden: 

1,086 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: § 687.150. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: Specified activities must be 

conducted before an application for a 

NDWG is submitted. The NPRM 

required that a project implementation 

plan, which is already required for all 

NEGs under WIA, be submitted postNDWG award. However, the Final Rule 

requires that a project implementation 

plan be submitted after receiving a DWG 

unless otherwise specified. The 

Department has retained the essence of 

proposed § 687.150, but made changes 

to the Final Rule that better allow the 

Department to appraise the variety of 

needs and services under the new 

statute and tailor application 

requirements accordingly. The 

Department has added a sentence to this 

section reflecting that the application 

requirements may vary based on the 

category of DWG. The project 

implementation plan requirement may 

not apply to all DWGs at all times. 

Requirements will be noted in grant 

terms and conditions. 

Comments: The Department received 

no comments concerning this 

information collection. 

Employment and Training 

Administration Financial Reporting 

Form ETA–9130 

Agency: DOL–ETA. 

Title of Collection: Employment and 

Training Administration Financial 

Reporting Form ETA–9130. 

Type of Review: Revision. 

OMB Control Number: 1205–0461. 

Affected Public: State, Local, and 

Tribal Governments. 

Obligation to Respond: Required to 

obtain or retain a benefit (2 CFR 

200.327). 

Total Estimated Number of 

Respondents Annually: 1,000. 

Total Estimated Number of Annual 

Responses: 20,000. 

Frequency of Responses: Quarterly. 

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Total Estimated Annual Time Burden: 

15,001 hours. 

Total Estimated Annual Other Costs 

Burden: $0. 

Regulations Sections: secs. 184(c), 

184(d), and 185 of WIOA, 2 CFR parts 

200 and 2900 and §§ 681.430, 683.150, 

683.200, 683.300, 683.730, 683.740, 

683.750. 

ICR Approval Status: Not yet 

approved. 

Overview and Response to Comments 

Received 

Overview: DOL–ETA awards 

approximately $8 billion in formula and 

discretionary grants each year to an 

average of 1,000 recipients. Financial 

reports for each of these grants must be 

submitted quarterly on the financial 

report form ETA–9130. Recipients 

include but are not limited to: State 

Employment Security Agencies which 

are comprised of three components: 

Wagner-Peyser Act ES, Unemployment 

Insurance program, and Trade Program 

Grant Agreements; as well as WIOA 

Youth, Adult, and Dislocated Worker 

programs; National Dislocated Worker 

Grants; National Farmworker Jobs 

Program (NFJP); Indian and Native 

American programs; the Senior 

Community Service Employment 

Program; WIOA discretionary grants; 

and H–1B Job Training Grants. The 

Final Rule reflects OMB’s Uniform 

Guidance, which standardizes the 

administrative, cost, and audit 

provisions for all grants and cooperative 

agreements provided under part 683. 

The Final Rule establishes consistent 

and uniform guidance that increases 

accountability and transparency, 

promotes fiscal integrity, and reduces 

duplication in the quarterly financial 

reports. This information collection 

supports secs. 184(c), 184(d), and 185 of 

WIOA and 2 CFR parts 200 and 2900. 

Changes in the time and burden were 

made from the NPRM to the Final Rule. 

There was a significant increase since 

this information collection package 

covers all of the grant programs that 

ETA administers and not simply WIOA 

ETA–9130 forms. 

Comments: On August 4, 2015, a 

request for comment for the 

Employment and Training 

Administration Financial Report Form 

#9130 (OMB Control No. 1205–0461) 

published in the Federal Register (Vol. 

80, p. 46337). This provided a 60-day 

period, ending on October 5, 2015, for 

the public to submit comments to DOL 

on the proposed change to the collection 

of information. A total of eight 

comments were received from four 

commenters. 

One commenter suggested breaking 

out the activities that make up statewide 

administrative funds and having a 

separate report for each. The same 

commenter requested viewing access to 

the e-Grants Federal Reporting System 

for entities to review the reports. The 

commenter described only having 

access to scans of the proposed 

submissions to review for approval. 

Department Response: The 

Department made no changes to the 

report in response to the comment. The 

Statewide Youth, Statewide Adult, and 

Statewide Dislocated Worker ETA–9130 

reports break out administrative 

expenditures in line 10f (Total 

Administrative Expenditures). To 

minimize the burden on grantees, a 

separate report solely for administrative 

expenditures (as one expenditure line 

item) is not required. 

Regarding the second comment, for 

internal control reasons, only one 

password and one PIN are assigned to 

each grantee. The password is needed to 

enter data into the e-Grants Federal 

Reporting System. The PIN takes the 

place of the authorized signature and is 

needed to certify data. Only one person 

can sign and submit financial reports. It 

is at the grantees’ discretion which staff 

members are tasked with these 

responsibilities. Once the reporting 

quarter is locked from further 

modification, WIA/WIOA summary 

obligation and expenditure reports are 

published at http://www.doleta.gov/

budget/. These sites are available to the 

public. 

Comments: A commenter further 

commented that, for WIOA alone, there 

are over 15 reports. The commenter 

asked why the Adult and Dislocated 

Worker first and second increments 

cannot be merged into one report. 

Department Response: The yearly 

base and advance funds in each 

individual funding stream are 

considered separate appropriations. To 

be in compliance with generally 

accepted accounting principles, the 

Department must assign a separate 

accounting code to each appropriation. 

Therefore, the Department must require 

a separate financial report for each 

accounting line on a grant. Additionally, 

auditors must be able to determine 

whether an entity has over or 

underspent funds available, which is 

not possible if awards made under 

different appropriations are merged. 

Comments: A commenter noted that 

the instructions for reporting/line item 

10j (Total Recipient Share Required) for 

Statewide Rapid Response and other 

WIOA reports indicate that this line 

item must include the amount of nonFederal share that employers are 

required to provide, based on 

incumbent worker training contracts. 

The commenter stated that, although 

grantees implemented reporting and 

programming changes to accommodate 

the implementation of WIOA, not all 

grantees are obtaining this information, 

as it was not required in the past and 

that obtaining this information would 

require programming and accounting 

changes at both the State and local area 

levels. The commenter indicated that 

there is no match requirement listed in 

the 2015 WIOA grant agreements and 

thinks this requirement should be 

eliminated or made voluntary until the 

start of the next program year. 

Department Response: The 

Department explains that the 2015 grant 

agreement outlines that funds must be 

expended in accordance with all 

applicable Federal statutes, regulations, 

and policies. Per WIOA sec. 

134(d)(4)(C), employers participating in 

a local area incumbent worker training 

(IWT) program shall be required to pay 

for the non-Federal share of the cost of 

providing the training to incumbent 

workers of the employers. WIOA sec. 

134(d)(4)(D)(ii) specifies that such 

contributions shall not be less than 10 

percent of the cost, for employers with 

not more than 50 employees; 25 percent 

of the cost, for employers with more 

than 50 employees but not more than 

100 employees; and 50 percent of the 

cost, for employers with more than 100 

employees. The Department noted that 

in the 60-day public comment notice (80 

FR 46337), this requirement was 

mistakenly included in the National 

Dislocated Worker Grants ETA–9130 (G) 

and the Statewide Rapid Response 

ETA–9130 (H). Consequentially, the 

condition to report employers’ nonFederal share of the cost of providing 

IWT was eliminated in these two 

reports. 

Comments: The same commenter 

noted that throughout the reporting 

instructions for WIOA grants and also in 

the supporting statement made available 

with the notice published at 80 FR 

46337, there were numerous references 

to WIOA cost limitations or baselines 

that apply on a fiscal year basis. The 

regulations stated that they apply on a 

program year basis. The commenter 

requested that this be corrected or 

clarified. 

Department Response: The numbers 

cited in the supporting statement, 

including the corresponding time 

frames, are solely to demonstrate 

grantee reporting cost and time burden 

calculations. They are not related to the 

statutory cost limitations and baselines. 

The fiscal year references within the 

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instructions are changed to program 

year, where applicable. 

Comments: Some commenters noted 

that the proposed Indirect Expenditures 

reporting/line item instructions only 

refer to an indirect cost rate and asked 

for further instructions for States using 

a cost allocation plan. 

Department Response: It is allowable 

for States to continue to use Statewide 

Cost Allocation Plans (SWCAP). For 

States using SWCAPs, it will not be 

required to report indirect expenditures. 

The instructions are modified and also, 

will be included in ETA’s financial 

reporting training. 

Comments: A commenter questioned 

whether the reporting/line item 11b 

(Transitional Jobs Expenditures) was 

intentionally included on the National 

Dislocated Worker Grants (ETA–9130 

(G)) or not. It was further suggested that 

ETA–9130 (G) capture the temporary 

employment wages to align with the 

ETA–9104 Quarterly Progress Report. 

Department Response: Transitional 

jobs are intentionally included because 

an NDWG grantee may choose to use 

this strategy to serve a dislocated worker 

who has been separated for a long 

period of time or has inconsistent work 

history. The Department concludes that 

including this resource ensures that 

NDWG grantees have the flexibility and 

available tools necessary to provide 

people with the services they need to 

return to work. It is not related to wages 

for temporary jobs in disaster grants. 

Comments: Another commenter 

requested additional guidance for 

single-area States where WIOA is 

administered by a single agency and 

functions as both the State and local 

levels with no subrecipients. The 

commenter specifically requested 

guidance about the Indirect 

Expenditures reporting/line items 

required for the State level WIOA 

reporting, but not for local level 

reporting. 

Department Response: Single-area 

States report indirect expenditures for 

the statewide reports only, and only if 

they have an indirect cost rate. If using 

a SWCAP, no indirect cost reporting is 

required. This information also will be 

included in ETA’s financial reporting 

training. 

E. Executive Order 13132 (Federalism) 

E.O. 13132 requires Federal agencies 

to ensure that the principles of 

Federalism established by the Framers 

of our Constitution guide the executive 

departments and agencies in the 

formulation and implementation of 

policies and to further the policies of 

the Unfunded Mandates Reform Act. 

Further, agencies must strictly adhere to 

constitutional principles. Agencies must 

closely examine the constitutional and 

statutory authority supporting any 

action that would limit the policymaking discretion of the States and they 

must carefully assess the necessity for 

any such action. To the extent 

practicable, State and local officials 

must be consulted before any such 

action is implemented. Section 3(b) of 

the E.O. further provides that Federal 

agencies must implement regulations 

that have a substantial direct effect only 

if statutory authority permits the 

regulation and it is of national 

significance. The Department has 

reviewed this Final Rule in light of 

these requirements and has determined 

that, with the enactment of WIOA and 

its clear requirement to publish national 

implementing regulations, E.O. sec. 3(b) 

has been reviewed fully and its 

requirement satisfied. 

Accordingly, the Department has 

reviewed this WIOA-required Final Rule 

and has determined that the rulemaking 

has no Federalism implications. The 

DOL WIOA Final Rule, as noted above, 

has no substantial direct effects on 

States, on the relationships between the 

States, or on the distribution of power 

and responsibilities among the various 

levels of government as described by 

E.O. 13132. The Department has 

determined that this Final Rule does not 

have a sufficient Federalism implication 

to warrant the preparation of a summary 

impact statement. 

F. Unfunded Mandates Reform Act of 

1995 

This Act directs agencies to assess the 

effects of Federal regulatory actions on 

State, local, and tribal governments, and 

the private sector. A Federal mandate is 

any provision in a regulation that 

imposes an enforceable duty upon State, 

local, or tribal governments, or imposes 

a duty on the private sector that is not 

voluntary. 

Comments: In response to the NPRM, 

the Department received some 

comments that addressed unfunded 

mandates. One commenter said that the 

Department usually establishes a set 

funding level regardless of the level of 

services performed and that providing 

insufficient funding for a required 

program without an option for 

increasing the funding essentially 

creates an unfunded mandate. Another 

commenter asserted that because WIOA 

did not mandate a shared performance 

tracking system, the required 

collaboration across agencies represents 

an unfunded mandate. This commenter 

said that most of the reason that systems 

are not already in place is due to 

financial constraints. Another 

commenter asserted that WIOA 

implementation costs are an unfunded 

mandate for many States due to an 

actual decrease in funding for some 

States, and because the costs used in the 

NPRM’s cost-benefit analysis looked 

only at incremental implementation 

costs, and were significantly below 

actual costs. This commenter urged the 

Department to grant waivers from 

required tasks to match the States’ 

allotments, and to provide additional 

funding and technical assistance for 

States to develop sustainable systems 

for meeting the requirements. One 

commenter similarly asserted that the 

new requirements are a de facto 

unfunded mandate, and provided a 

policy paper that concluded that 

Federal funds are insufficient to cover 

required activities. The commenter 

suggested that unless additional funds 

are provided, waivers would be needed 

to give States flexibility to prioritize 

activities. Another commenter also 

expressed concern that new WIOA 

requirements are not accompanied by 

implementation funding. 

Department Response: The 

Department acknowledges the 

commenters’ concerns and has detailed 

the cost burden associated with this 

Final Rule in section VI.A (Executive 

Orders 12866 and 13563: Regulatory 

Planning and Review). Grant funding is 

provided annually to all programs 

authorized under WIOA and that 

funding will be used to cover the costs 

of implementing this rule. 

As noted above, under the Unfunded 

Mandates Reform Act of 1995, a Federal 

mandate is any provision in a regulation 

that imposes an enforceable duty upon 

State, local, or tribal governments, or 

imposes a duty upon the private sector 

that is not voluntary. WIOA contains 

specific language supporting 

employment and training activities for 

Indian, Alaska Natives, and Native 

Hawaiian individuals. These program 

requirements are supported, as is the 

WIOA workforce development system 

generally, by Federal formula grant 

funds, and, accordingly, are not 

considered unfunded mandates. 

Similarly, Migrant and Seasonal 

Farmworker activities are authorized 

and funded under the WIOA program as 

is currently done under the WIA 

program. The States are mandated to 

perform certain activities for the Federal 

government under WIOA and will be 

reimbursed (grant funding) for the 

resources required to perform those 

activities. The same process and grant 

relationship exists between States and 

Local WDBs under the WIA program 

and must continue under the WIOA 

program as identified in this NPRM. 

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WIOA contains language establishing 

procedures regarding the eligibility of 

training providers to receive funds 

under the WIOA program and contains 

clear State information collection 

requirements for eligible training 

providers (e.g., submission of 

appropriate, accurate, and timely 

information). A decision by a private 

training entity to participate as a 

provider under the WIOA program is 

purely voluntary and, therefore, 

information collection burdens do not 

impose a duty on the private sector that 

is not voluntarily assumed. 

Following consideration of these 

factors, the Department has determined 

that the DOL WIOA Final Rule contains 

no unfunded Federal mandates, which 

are defined in 2 U.S.C. 658(6) to include 

either a ‘‘Federal intergovernmental 

mandate’’ or a ‘‘Federal private sector 

mandate.’’ 

G. Plain Language 

E.O. 12866 and E.O. 13563 require 

regulations to be written in a manner 

that is easy to understand. 

Comments: One commenter stated 

that the NPRM’s commitment that the 

Department has included the relevant 

WIOA provisions in the proposed 

regulations for completeness was not 

fulfilled and cited examples of missing 

statutory language. While 

acknowledging that adding the statutory 

text would extend the length of the 

rules, this commenter said that it would 

help the reader in not having to flip 

back and forth between two documents 

to understand what is required. 

Department Response: To the extent 

practicable, the Department has 

attempted to address this commenter’s 

concern in the Final Rule. In particular, 

many of the regulations in this Final 

Rule are verbatim implementations of 

WIOA’s directives. However, because in 

some places it would be confusing, 

distracting, and excessive to add all of 

the relevant WIOA statutory language, 

some references to WIOA remain. The 

overall format of these WIOA 

regulations reflects the Department’s 

commitment to writing regulations that 

are reader-friendly. The Department has 

attempted to make this Final Rule easy 

to understand. For example, the 

regulatory text is presented in a 

‘‘question and answer’’ format and 

organized consistent with WIOA. In 

consideration of the foregoing, the 

Department has concluded that it has 

drafted this Final Rule in plain 

language. 

H. Assessment 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 assessment of 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 Final Rule 

in light of this requirement and 

determined that the DOL WIOA Final 

Rule will not have a negative effect on 

families. 

I. Executive Order 13175 (Indian Tribal 

Governments) 

The Department reviewed this Final 

Rule under the terms of E.O. 13175 and 

the Department’s Tribal Consultation 

Policy and has determined that the rule 

will have tribal implications as the final 

regulations have substantial direct 

effects on one or more Indian tribes, the 

relationship between the Federal 

government and Indian tribes, or the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes. As 

described in the preamble to the NPRM, 

the Department carried out several 

consultations with tribal institutions, 

including tribal officials, that allowed 

the tribal officials to provide meaningful 

and timely input into the Department’s 

proposal. Additionally, through the 

notice and comment rulemaking 

process, the Department received 

comments on the programs and 

provisions in WIOA that have tribal 

implications and we have responded to 

these comments in the section-bysection discussions in this Final Rule 

and in the Joint WIOA Final Rule. 

In addition to the comments received 

through its notice and comment 

rulemaking process, the Department 

received feedback from the Indian and 

Native American (INA) community and 

the public prior to the publication of the 

NPRM. This feedback was summarized 

in the NPRM at 80 FR 20832–20833. 

J. Executive Order 12630 (Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights) 

The Department has determined that 

this Final Rule is not subject to E.O. 

12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights, because it 

does not involve implementation of a 

policy with takings implications. 

K. Executive Order 12988 (Civil Justice 

Reform) 

This DOL WIOA Final Rule was 

drafted and reviewed in accordance 

with E.O. 12988, Civil Justice Reform, 

and the Department has determined that 

the Final Rule will not unduly burden 

the Federal court system. The WIOA 

regulations were written to minimize 

litigation and, to the extent feasible, 

provide a clear legal standard for 

affected conduct. In addition, the WIOA 

regulations have been reviewed 

carefully to eliminate drafting errors and 

ambiguities. 

L. Executive Order 13211 (Energy 

Supply) 

This DOL WIOA Final Rule was 

drafted and reviewed in accordance 

with E.O. 13211, Energy Supply. The 

Department has determined that this 

Final Rule will not have a significant 

adverse effect on the supply, 

distribution, or use of energy and is not 

subject to E.O. 13211. 

List of Subjects 

20 CFR Part 603 

Grant programs—labor, Privacy, 

Reporting and recordkeeping 

requirements, Unemployment 

compensation, Wages. 

20 CFR Part 651 

Employment, Grant programs—labor. 

20 CFR Part 652 

Employment, Grant programs—labor, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 653 

Agriculture, Employment, Equal 

employment opportunity, Grant 

programs—labor, Migrant labor, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 654 

Employment, Government 

procurement, Housing standards, 

Manpower, Migrant labor, Reporting 

and recordkeeping requirements. 

20 CFR Part 658 

Administrative practice and 

procedure, Employment, Grant 

programs—labor, Reporting and 

recordkeeping requirements. 

20 CFR Part 675 

Employment, Grant programs—labor. 

20 CFR Parts 679 and 680 

Employment, Grant programs—labor. 

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20 CFR Part 681 

Employment, Grant programs—labor, 

Youth. 

20 CFR Part 682 

Employment, Grant programs—labor. 

20 CFR Part 683 

Employment, Grant programs—labor, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 684 

Employment, Grant programs—labor, 

Indians, Reporting and recordkeeping 

requirements. 

20 CFR Part 685 

Employment, Grant programs—labor, 

Migrant labor, Reporting and 

recordkeeping requirements. 

20 CFR Part 686 

Employment, Grant programs—labor, 

Job Corps. 

20 CFR Part 687 

Employment, Grant programs—labor. 

20 CFR Part 688 

Employment, Grant programs—labor, 

Youth, YouthBuild. 

For the reasons stated in the 

preamble, ETA amends title 20 CFR, 

chapter V, as follows: 

PART 603—FEDERAL–STATE 

UNEMPLOYMENT COMPENSATION 

(UC) PROGRAM; CONFIDENTIALITY 

AND DISCLOSURE OF STATE UC 

INFORMATION 

■ 1. Revise the authority citation for part 

603 to read as follows: 

Authority: Secs. 116, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014); 20 

U.S.C 1232g. 

■ 2. Amend § 603.2 by revising 

paragraph (d) to read as follows: 

§ 603.2 What definitions apply to this part? 

* * * * * 

(d) Public official means: 

(1) An official, agency, or public 

entity within the executive branch of 

Federal, State, or local government who 

(or which) has responsibility for 

administering or enforcing a law, or an 

elected official in the Federal, State, or 

local government. 

(2) Public postsecondary educational 

institutions established and governed 

under the laws of the State. These 

include the following: 

(i) Institutions that are part of the 

State’s executive branch. This means the 

head of the institution must derive his 

or her authority from the Governor, 

either directly or through a State WDB, 

commission, or similar entity 

established in the executive branch 

under the laws of the State. 

(ii) Institutions which are 

independent of the executive branch. 

This means the head of the institution 

derives his or her authority from the 

State’s chief executive officer for the 

State education authority or agency 

when such officer is elected or 

appointed independently of the 

Governor. 

(iii) Publicly governed, publicly 

funded community and technical 

colleges. 

(3) Performance accountability and 

customer information agencies 

designated by the Governor of a State to 

be responsible for coordinating the 

assessment of State and local education 

or workforce training program 

performance and/or evaluating 

education or workforce training 

provider performance. 

(4) The chief elected official of a local 

area as defined in WIOA sec. 3(9). 

(5) A State educational authority, 

agency, or institution as those terms are 

used in the Family Educational Rights 

and Privacy Act, to the extent they are 

public entities. 

* * * * * 

■ 3. Amend § 603.5 by revising 

paragraph (e) to read as follows: 

§ 603.5 What are the exceptions to the 

confidentiality requirement? 

* * * * * 

(e) Public official. Disclosure of 

confidential UC information to a public 

official for use in the performance of his 

or her official duties is permissible. 

(1) ‘‘Performance of official duties’’ 

means administration or enforcement of 

law or the execution of the official 

responsibilities of a Federal, State, or 

local elected official. Administration of 

law includes research related to the law 

administered by the public official. 

Execution of official responsibilities 

does not include solicitation of 

contributions or expenditures to or on 

behalf of a candidate for public or 

political office or a political party. 

(2) For purposes of § 603.2(d)(2) 

through (5), ‘‘performance of official 

duties’’ includes, in addition to the 

activities set out in paragraph (e)(1) of 

this section, use of the confidential UC 

information for the following limited 

purposes: 

(i) State and local performance 

accountability under WIOA sec. 116, 

including eligible training provider 

performance accountability under 

WIOA secs. 116(d) and 122; 

(ii) The requirements of discretionary 

Federal grants awarded under WIOA; or 

(iii) As otherwise required for 

education or workforce training program 

performance accountability and 

reporting under Federal or State law. 

* * * * * 

■ 4. Amend § 603.6 by adding paragraph 

(b)(8) to read as follows: 

§ 603.6 What disclosures are required by 

this subpart? 

* * * * * 

(b) * * * 

(8) To comply with WIOA sec. 

116(e)(4), States must, to the extent 

practicable, cooperate in the conduct of 

evaluations (including related research 

projects) provided for by the Secretary 

of Labor or the Secretary of Education 

under the provisions of Federal law 

identified in WIOA sec. 116(e)(1); WIOA 

secs. 169 and 242(c)(2)(D); sec. 12(a)(5), 

14, and 107 of the Rehabilitation Act of 

1973 (29 U.S.C. 709(a)(5), 711, 727) 

(applied with respect to programs 

carried out under title I of that Act (29 

U.S.C. 720 et seq.)); and the 

investigations provided for by the 

Secretary of Labor under sec. 10(b) of 

the Wagner-Peyser Act (29 U.S.C. 

49i(b)). For purposes of this part, States 

must disclose confidential UC 

information to a Federal official (or an 

agent or contractor of a Federal official) 

requesting such information in the 

course of such evaluations. This 

disclosure must be done in accordance 

with appropriate privacy and 

confidentiality protections established 

in this part. This disclosure must be 

made to the ‘‘extent practicable’’, which 

means that the disclosure would not 

interfere with the efficient 

administration of the State UC law, as 

required by § 603.5. 

* * * * * 

■ 5. Revise part 651 to read as follows: 

PART 651—GENERAL PROVISIONS 

GOVERNING THE WAGNER-PEYSER 

ACT EMPLOYMENT SERVICE 

Sec. 

651.10 Definitions of terms used in this part 

and parts 652, 653, 654, and 658 of this 

chapter. 

Authority: 29 U.S.C. 49a; 38 U.S.C. part 

III, 4101, 4211; Secs. 503, 3, 189, Pub. L. 113– 

128, 128 Stat. 1425 (Jul. 22, 2014). 

§ 651.10 Definitions of terms used in this 

part and parts 652, 653, 654, and 658 of this 

chapter. 

In addition to the definitions set forth 

in sec. 3 of WIOA, the following 

definitions apply to the regulations in 

parts 652, 653, 654, and 658 of this 

chapter: 

Act means the Wagner-Peyser Act 

(codified at 29 U.S.C. 49 et seq.). 

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56334 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Administrator, Office of Workforce 

Investment (OWI Administrator) means 

the chief official of the Office of 

Workforce Investment (OWI) or the 

Administrator’s designee. 

Affirmative action means positive, 

result-oriented action imposed on or 

assumed by an employer pursuant to 

legislation, court order, consent decree, 

directive of a fair employment practice 

authority, government contract, grant or 

loan, or voluntary affirmative action 

plan adopted pursuant to the affirmative 

action guidelines of the Equal 

Employment Opportunity Commission 

(see 29 CFR part 1608) to provide equal 

employment opportunities for members 

of a specified group which for reasons 

of past custom, historical practice, or 

other non-occupationally valid purposes 

has been discouraged from entering 

certain occupational fields. 

Agricultural employer means any 

employer as defined in this part who 

owns or operates a farm, ranch, 

processing establishment, cannery, gin, 

packing shed or nursery, or who 

produces or conditions seed, and who 

either recruits, solicits, hires, employs, 

furnishes, or transports any migrant or 

seasonal farmworker or any agricultural 

employer as described in 29 U.S.C. 

1802(2). 

Agricultural worker see Farmworker. 

Applicant holding office means a 

Wagner-Peyser Act Employment Service 

(ES) office that is in receipt of a 

clearance order and has access to U.S. 

workers who may be willing and 

available to perform farmwork on a less 

than year-round basis. 

Applicant Holding State means a 

State Workforce Agency that is in 

receipt of a clearance order from another 

State and potentially has U.S. workers 

who may be willing and available to 

perform farmwork on a less than yearround basis. 

Bona fide occupational qualification 

(BFOQ) means that an employment 

decision or request based on age, sex, 

national origin or religion is based on a 

finding that such characteristic is 

necessary to the individual’s ability to 

perform the job in question. Since a 

BFOQ is an exception to the general 

prohibition against discrimination on 

the basis of age, sex, national origin, or 

religion, it must be interpreted narrowly 

in accordance with the Equal 

Employment Opportunity Commission 

regulations set forth at 29 CFR parts 

1604, 1605, and 1627. 

Career services means the services 

described in sec. 134(c)(2) of the 

Workforce Innovation and Opportunity 

Act (WIOA) and § 678.430 of this 

chapter. 

Clearance order means a job order 

that is processed through the clearance 

system under the Agricultural 

Recruitment System (ARS). 

Clearance system means the orderly 

movement of U.S. job seekers as they are 

referred through the employment 

placement process by an ES office. This 

includes joint action of local ES offices 

in different labor market areas and/or 

States. 

Complainant means the individual, 

employer, organization, association, or 

other entity filing a complaint. 

Complaint means a representation 

made or referred to a State or ES office 

of an alleged violation of the ES 

regulations and/or other Federal laws 

enforced by the Department’s Wage and 

Hour Division (WHD) or Occupational 

Safety and Health Administration 

(OSHA), as well as other Federal, State, 

or local agencies enforcing employmentrelated law. 

Decertification means the rescission 

by the Secretary of the year-end 

certification made under sec. 7 of the 

Wagner-Peyser Act to the Secretary of 

the Treasury that the State agency may 

receive funds authorized by the WagnerPeyser Act. 

Department means the United States 

Department of Labor, including its 

agencies and organizational units. 

Employer means a person, firm, 

corporation, or other association or 

organization which currently has a 

location within the United States to 

which U.S. workers may be referred for 

employment, and which proposes to 

employ a worker at a place within the 

United States and which has an 

employer relationship with respect to 

employees under this subpart as 

indicated by the fact that it hires, pays, 

fires, supervises, and otherwise controls 

the work of such employees. An 

association of employers is considered 

an employer if it has all of the indicia 

of an employer set forth in this 

definition. Such an association, 

however, is considered as a joint 

employer with the employer member if 

either shares in exercising one or more 

of the definitional indicia. 

Employment and Training 

Administration (ETA) means the 

component of the Department of Labor 

that administers Federal government job 

training and worker dislocation 

programs, Federal grants to States for 

public ES programs, and unemployment 

insurance benefits. These services are 

provided primarily through State and 

local workforce development systems. 

Employment-related laws means those 

laws that relate to the employment 

relationship, such as those enforced by 

the Department’s WHD, OSHA, or by 

other Federal, State, or local agencies. 

Employment Service (ES) office means 

a site in a local WDB where staff of the 

State Workforce Agency, consistent with 

the requirements of § 652.215 of this 

chapter, provide Wagner-Peyser Act 

services as a one-stop partner program. 

A site must be colocated with a one-stop 

center consistent with the requirements 

of §§ 678.305 through 678.315 of this 

chapter. 

Employment Service (ES) regulations 

means the Federal regulations at this 

part and parts 652, 653, 654, 658 of this 

chapter, and 29 CFR part 75. 

Establishment means a public or 

private economic employing unit 

generally at a single physical location 

which produces and/or sells goods or 

services, for example, a mine, factory, 

store, farm, orchard or ranch. It is 

usually engaged in one, or 

predominantly one, type of commercial 

or governmental activity. Each branch or 

subsidiary unit of a large employer in a 

geographical area or community must be 

considered an individual establishment, 

except that all such units in the same 

physical location is considered a single 

establishment. A component of an 

establishment which may not be located 

in the same physical structure (such as 

the warehouse of a department store) 

also must be considered as part of the 

parent establishment. For the purpose of 

the ‘‘seasonal farmworker’’ definition, 

farm labor contractors and crew leaders 

are not considered establishments; it is 

the organizations to which they supply 

the workers that are the establishments. 

Farmwork means the cultivation and 

tillage of the soil, dairying, the 

production, cultivation, growing, and 

harvesting of any agricultural or 

horticultural commodities. This 

includes the raising of livestock, bees, 

fur-bearing animals, or poultry, the 

farming of fish, and any practices 

(including any forestry or lumbering 

operations) performed by a farmer or on 

a farm as an incident to or in 

conjunction with such farming 

operations, including preparation for 

market, delivery to storage or to market 

or to carriers for transportation to 

market. It also includes the handling, 

planting, drying, packing, packaging, 

processing, freezing, or grading prior to 

delivery for storage of any agricultural 

or horticultural commodity in its 

unmanufactured state. For the purposes 

of this definition, agricultural 

commodities means all commodities 

produced on a farm including crude 

gum (oleoresin) from a living tree 

products processed by the original 

producer of the crude gum (oleoresin) 

from which they are derived, including 

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gum spirits of turpentine and gum rosin. 

Farmwork also means any service or 

activity covered under § 655.103(c) of 

this chapter and/or 29 CFR 500.20(e) 

and any service or activity so identified 

through official Department guidance 

such as a Training and Employment 

Guidance Letter. 

Farmworker means an individual 

employed in farmwork, as defined in 

this section. 

Field checks means random, 

unannounced appearances by State 

Workforce Agency personnel at 

agricultural worksites to which ES 

placements have been made through the 

intrastate or interstate clearance system 

to ensure that conditions are as stated 

on the job order and that the employer 

is not violating an employment-related 

law. 

Field visits means appearances by 

Monitor Advocates or State Workforce 

Agency outreach personnel to the 

working and living areas of migrant and 

seasonal farmworkers (MSFWs), to 

discuss employment services and other 

employment-related programs with 

MSFWs, crew leaders, and employers. 

Monitor Advocates or outreach 

personnel must keep records of each 

such visit. 

Governor means the chief executive of 

a State or an outlying area. 

Hearing Officer means a Department 

of Labor Administrative Law Judge, 

designated to preside at Department 

administrative hearings. 

Individual with a disability means an 

individual with a disability as defined 

in sec. 3 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12102). 

Interstate clearance order means an 

agricultural job order for temporary 

employment (employment on a less 

than year-round basis) describing one or 

more hard-to-fill job openings, which an 

ES office uses to request recruitment 

assistance from other ES offices in a 

different State. 

Intrastate clearance order means an 

agricultural job order for temporary 

employment (employment on a less 

than year-round basis) describing one or 

more hard-to-fill job openings, which an 

ES office uses to request recruitment 

assistance from other ES offices within 

the State. 

Job development means the process of 

securing a job interview with a public 

or private employer for a specific 

participant for whom the ES office has 

no suitable opening on file. 

Job information means information 

derived from data compiled in the 

normal course of ES activities from 

reports, job orders, applications, and the 

like. 

Job opening means a single job 

opportunity for which the ES office has 

on file a request to select and refer 

participants. 

Job order means the document 

containing the material terms and 

conditions of employment relating to 

wages, hours, working conditions, 

worksite and other benefits, submitted 

by an employer. 

Job referral means: 

(1) The act of bringing to the attention 

of an employer a participant or group of 

participants who are available for 

specific job openings or for a potential 

job; and 

(2) The record of such referral. ‘‘Job 

referral’’ means the same as ‘‘referral to 

a job.’’ 

Labor market area means an 

economically integrated geographic area 

within which individuals can reside 

and find employment within a 

reasonable distance or can readily 

change employment without changing 

their place of residence. Such an area 

must be identified in accordance with 

criteria used by the Department’s 

Bureau of Labor Statistics in defining 

such areas or similar criteria established 

by a Governor. 

Local Office Manager means the 

official in charge of all ES activities in 

a one-stop center. 

Local Workforce Development Board 

or Local WDB means a Local Workforce 

Development Board established under 

sec. 107 of WIOA. 

Migrant farmworker means a seasonal 

farmworker (as defined in this section) 

who travels to the job site so that the 

farmworker is not reasonably able to 

return to his/her permanent residence 

within the same day. Full-time students 

traveling in organized groups rather 

than with their families are excluded. 

Migrant food processing worker see 

Migrant Farmworker. 

MSFW means a migrant farmworker 

or a seasonal farmworker. 

Occupational Information Network 

(O*NET) system means the online 

reference database which contains 

detailed descriptions of U.S. 

occupations, distinguishing 

characteristics, classification codes, and 

information on tasks, knowledge, skills, 

abilities, and work activities as well as 

information on interests, work styles, 

and work values. 

One-stop center means a physical 

center within the one-stop delivery 

system, as described in sec. 121(e)(2)(A) 

of WIOA. 

One-stop delivery system means a 

one-stop delivery system described in 

sec. 121(e) of WIOA. 

One-stop partner means an entity 

described in sec. 121(b) of WIOA and 

§ 678.400 of this chapter that is 

participating in the operation of a onestop delivery system. 

O*NET–SOC means the occupational 

codes and titles used in the O*NET 

system, based on and grounded in the 

Standard Occupational Classification 

(SOC), which are the titles and codes 

utilized by Federal statistical agencies to 

classify workers into occupational 

categories for the purpose of collecting, 

calculating, and disseminating data. The 

SOC system is issued by the Office of 

Management and Budget and the 

Department of Labor is authorized to 

develop additional detailed O*NET 

occupations within existing SOC 

categories. The Department uses 

O*NET–SOC titles and codes for the 

purposes of collecting descriptive 

occupational information and for State 

reporting of data on training, credential 

attainment, and placement in 

employment by occupation. 

Onsite review means an appearance 

by the State Monitor Advocate and/or 

Federal staff at an ES office to monitor 

the delivery of services and protections 

afforded by ES regulations to MSFWs by 

the State Workforce Agency and local 

ES offices. 

Order holding office means an ES 

office that has accepted a clearance 

order from an employer seeking U.S. 

workers to perform farmwork on a less 

than year-round basis through the 

Agricultural Recruitment System. 

Outreach contact means each MSFW 

that receives the presentation of 

information, offering of assistance, or 

follow-up activity from an outreach 

worker. 

Participant means a reportable 

individual who has received services 

other than the services described in 

§ 677.150(a)(3) of this chapter, after 

satisfying all applicable programmatic 

requirements for the provision of 

services, such as eligibility 

determination. (See § 677.150(a) of this 

chapter.) 

(1) The following individuals are not 

Participants, subject to 

§ 677.150(a)(3)(ii) and(iii) of this 

chapter: 

(i) Individuals who only use the selfservice system; and 

(ii) Individuals who receive 

information-only services or activities. 

(2) Wagner-Peyser Act participants 

must be included in the program’s 

performance calculations 

Placement means the hiring by a 

public or private employer of an 

individual referred by the ES office for 

a job or an interview, provided that the 

employment office completed all of the 

following steps: 

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(1) Prepared a job order form prior to 

referral, except in the case of a job 

development contact on behalf of a 

specific participant; 

(2) Made prior arrangements with the 

employer for the referral of an 

individual or individuals; 

(3) Referred an individual who had 

not been specifically designated by the 

employer, except for referrals on 

agricultural job orders for a specific 

crew leader or worker; 

(4) Verified from a reliable source, 

preferably the employer, that the 

individual had entered on a job; and 

(5) Appropriately recorded the 

placement. 

Public housing means housing 

operated by or on behalf of any public 

agency. 

Regional Administrator (RA) means 

the chief Department of Labor 

Employment and Training 

Administration (ETA) official in each 

Department regional office. 

Reportable individual means an 

individual who has taken action that 

demonstrates an intent to use WagnerPeyser Act services and who meets 

specific reporting criteria of the WagnerPeyser Act (see § 677.150(b) of this 

chapter), including: 

(1) Individuals who provide 

identifying information; 

(2) Individuals who only use the selfservice system; or 

(3) Individuals who only receive 

information-only services or activities. 

Respondent means the employer, 

individual, or State agency (including a 

State agency official) who is alleged to 

have committed the violation described 

in a complaint. 

Seasonal farmworker means an 

individual who is employed, or was 

employed in the past 12 months, in 

farmwork (as defined in this section) of 

a seasonal or other temporary nature 

and is not required to be absent 

overnight from his/her permanent place 

of residence. Non-migrant individuals 

who are full-time students are excluded. 

Labor is performed on a seasonal basis 

where, ordinarily, the employment 

pertains to or is of the kind exclusively 

performed at certain seasons or periods 

of the year and which, from its nature, 

may not be continuous or carried on 

throughout the year. A worker who 

moves from one seasonal activity to 

another, while employed in farmwork, 

is employed on a seasonal basis even 

though he/she may continue to be 

employed during a major portion of the 

year. A worker is employed on other 

temporary basis where he/she is 

employed for a limited time only or his/ 

her performance is contemplated for a 

particular piece of work, usually of 

short duration. Generally, employment 

which is contemplated to continue 

indefinitely is not temporary. 

Secretary means the Secretary of the 

U.S. Department of Labor or the 

Secretary’s designee. 

Significant MSFW one-stop centers 

are those designated annually by the 

Department and include those ES offices 

where MSFWs account for 10 percent or 

more of annual participants in 

employment services and those local ES 

offices which the administrator 

determines must be included due to 

special circumstances such as an 

estimated large number of MSFWs in 

the service area. In no event may the 

number of significant MSFW one-stop 

centers be less than 100 centers on a 

nationwide basis. 

Significant MSFW States are those 

States designated annually by the 

Department and must include the 20 

States with the highest number of 

MSFW participants. 

Significant multilingual MSFW onestop centers are those designated 

annually by the Department and include 

those significant MSFW ES offices 

where 10 percent or more of MSFW 

participants are estimated to require 

service provisions in a language(s) other 

than English unless the administrator 

determines other one-stop centers also 

must be included due to special 

circumstances. 

Solicitor means the chief legal officer 

of the U.S. Department of Labor or the 

Solicitor’s designee. 

Standard Metropolitan Statistical 

Area (SMSA) means a metropolitan area 

designated by the Bureau of Census 

which contains: 

(1) At least 1city of 50,000 inhabitants 

or more; or 

(2) Twin cities with a combined 

population of at least 50,000. 

State means any of the 50 States, the 

District of Columbia, Guam, Puerto 

Rico, and the Virgin Islands. 

State Administrator means the chief 

official of the SWA. 

State agency or State Workforce 

Agency (SWA) means the State ES 

agency designated under sec. 4 of the 

Wagner-Peyser Act. 

State hearing official means a State 

official designated to preside at State 

administrative hearings convened to 

resolve complaints involving ES 

regulations pursuant to subpart E of part 

658 of this chapter. 

State Workforce Development Board 

or State WDB means the entity within a 

State appointed by the Governor under 

sec. 101 of WIOA. 

Supply State(s) means a State that 

potentially has U.S. workers who may 

be recruited for referral through the 

Agricultural Recruitment System to the 

area of intended employment in a 

different State. 

Supportive services means services 

that are necessary to enable an 

individual to participate in activities 

authorized under WIOA or the WagnerPeyser Act. These services may include, 

but are not limited to, the following: 

(1) Linkages to community services; 

(2) Assistance with transportation; 

(3) Assistance with child care and 

dependent care; 

(4) Assistance with housing; 

(5) Needs-related payments; 

(6) Assistance with educational 

testing; 

(7) Reasonable accommodations for 

individuals with disabilities; 

(8) Referrals to health care; 

(9) Assistance with uniforms or other 

appropriate work attire and workrelated tools, including such items as 

eyeglasses and protective eye gear; 

(10) Assistance with books, fees, 

school supplies, and other necessary 

items for students enrolled in 

postsecondary education classes; and 

(11) Payments and fees for 

employment and training-related 

applications, tests, and certifications. 

Tests means a standardized method of 

measuring an individual’s possession of, 

interest in, or ability to acquire, job 

skills and knowledge. Use of tests by 

one-stop staff must be in accordance 

with the provisions of: 

(1) Title 41 CFR part 60–3, Uniform 

Guidelines on Employee Selection 

Procedures; 

(2) Title 29 CFR part 1627, Records To 

Be Made or Kept Relating to Age; 

Notices To Be Posted; Administrative 

Exemptions; and 

(3) The Department of Labor’s 

regulations on Nondiscrimination on 

the Basis of Handicap in Programs and 

Activities Receiving or Benefiting from 

Federal Financial Assistance, which 

have been published as 29 CFR part 32. 

Training services means services 

described in sec. 134(c)(3) of WIOA. 

Unemployment insurance claimant 

means a person who files a claim for 

benefits under any State or Federal 

unemployment compensation law. 

Veteran means 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 defined 

under 38 U.S.C. 101 and sec. 3(63)(A) of 

WIOA. 

Wagner-Peyser Act Employment 

Service (ES) also known as Employment 

Service (ES) means the national system 

of public ES offices described under the 

Wagner-Peyser Act. Employment 

services are delivered through a 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56337 

nationwide system of one-stop centers, 

and are managed by State Workforce 

Agencies and the various local offices of 

the State Workforce Agencies, and 

funded by the United States Department 

of Labor. 

WIOA means the Workforce 

Innovation and Opportunity Act 

(codified at 29 U.S.C. 3101 et seq.). 

Workforce and Labor Market 

Information (WLMI) means the body of 

knowledge that describes the 

relationship between labor demand and 

supply. This includes identification and 

analysis of the socio-economic factors 

that influence employment, training, 

and business decisions, such as worker 

preparation, educational program 

offerings and related policy decisions 

within national, State, Substate, and 

local labor market areas. WLMI 

includes, but is not limited to: 

(1) Employment numbers by 

occupation and industry; 

(2) Unemployment numbers and rates; 

(3) Short- and long-term industry and 

occupational employment projections; 

(4) Information on business 

employment dynamics, including the 

number and nature of business 

establishments, and share and location 

of industrial production; 

(5) Local employment dynamics, 

including business turnover rates; new 

hires, job separations, net job losses; 

(6) Job vacancy counts; 

(7) Job seeker and job posting data 

from the public labor exchange system; 

(8) Identification of high growth and 

high demand industries, occupations, 

and jobs; 

(9) Information on employment and 

earnings for wage and salary workers 

and for the self-employed; 

(10) Information on work hours, 

benefits, unionization, trade disputes, 

conditions of employment, and 

retirement; 

(11) Information on occupationspecific requirements regarding 

education, training, skills, knowledge, 

and experience; 

WLMI also may include, as either 

source data or as outputs of analysis of 

source data: 

(12) Population and workforce growth 

and decline, classified by age, sex, race, 

and other demographic characteristics; 

(13) Identification of emerging 

occupations and evolving skill 

demands; 

(14) Business skill and hiring 

requirements; 

(15) Workforce characteristics, which 

may include skills, experience, 

education, credential attainment, 

competencies, etc.; 

(16) Workforce available in 

geographic areas; 

(17) Information on regional and local 

economic development activity, 

including job creation through business 

start-ups and expansions; 

(18) Enrollments in and completers 

from educational programs, training and 

registered apprenticeship; 

(19) Trends in industrial and 

occupational restructuring; 

(20) Shifts in consumer demands; 

(21) Data contained in governmental 

or administrative reporting including 

wage records as identified in § 652.301 

of this chapter; 

(22) Labor market intelligence gained 

from interaction with businesses, 

industry or trade associations, education 

agencies, government entities, and the 

public; and 

(23) Other economic factors. 

Workforce and Labor Market 

Information System (WLMIS) means the 

system that collects, analyzes, 

interprets, and disseminates workforce 

characteristics and employment-related 

data, statistics, and information at 

national, State, and local labor market 

areas and makes that information 

available to the public, workforce 

development system, one-stop partner 

programs, and the education and 

economic development communities. 

Workforce development activity 

means an activity carried out through a 

workforce development program as 

defined in sec. 3 of WIOA. 

Working days or business days means 

those days that the order-holding ES 

office is open for public business, for 

purposes of the Agricultural 

Recruitment System. 

Work test means activities designed to 

ensure that an individual whom a State 

determines to be eligible for 

unemployment insurance benefits is 

able to work, available for work, and 

actively seeking work in accordance 

with the State’s unemployment 

compensation law. 

■ 6. Revise part 652 to read as follows: 

PART 652—ESTABLISHMENT AND 

FUNCTIONING OF STATE 

EMPLOYMENT SERVICE 

Subpart A—Employment Service 

Operations 

Sec. 

652.1 Introduction. 

652.2 Scope and purpose of the WagnerPeyser Act Employment Service. 

652.3 Public labor exchange services 

system. 

652.4 Allotment of funds and grant 

agreement. 

652.5 Services authorized. 

652.6–652.7 [Reserved] 

652.8 Administrative provisions. 

652.9 Labor disputes. 

Subpart B—Services for Veterans 

Sec. 

652.100 Services for veterans. 

Subpart C—Wagner-Peyser Act Services in 

a One-Stop Delivery System Environment 

Sec. 

652.200 What is the purpose of this 

subpart? 

652.201 What is the role of the State 

Workforce Agency in the one-stop 

delivery system? 

652.202 May local Employment Service 

offices exist outside of the one-stop 

delivery system? 

652.203 Who is responsible for funds 

authorized under the Wagner-Peyser Act 

in the workforce development system? 

652.204 Must funds authorized under 

section 7(b) of the Wagner-Peyser Act 

(the Governor’s Reserve) flow through 

the one-stop delivery system? 

652.205 May funds authorized under the 

Wagner-Peyser Act be used to 

supplement funding for labor exchange 

programs authorized under separate 

legislation? 

652.206 May a State use funds authorized 

under the Wagner-Peyser Act to provide 

applicable ‘‘career services,’’ as defined 

in the Workforce Innovation and 

Opportunity Act? 

652.207 How does a State meet the 

requirement for universal access to 

services provided under the WagnerPeyser Act? 

652.208 How are applicable career services 

related to the methods of service delivery 

described in this part? 

652.209 What are the requirements under 

the Wagner-Peyser Act for providing 

reemployment services and other 

activities to referred unemployment 

insurance claimants? 

652.210 What are the Wagner-Peyser Act’s 

requirements for administration of the 

work test, including eligibility 

assessments, as appropriate, and 

assistance to unemployment insurance 

claimants? 

652.211 What are State planning 

requirements under the Wagner-Peyser 

Act? 

652.215 Do any provisions in the Workforce 

Innovation and Opportunity Act change 

the requirement that State merit staff 

employees must deliver services 

provided under the Wagner-Peyser Act? 

652.216 May the one-stop operator provide 

guidance to State merit staff employees 

in accordance with the Wagner-Peyser 

Act? 

Subpart D—Workforce and Labor Market 

Information 

Sec. 

652.300 What role does the Secretary of 

Labor have concerning the Workforce 

and Labor Market Information System? 

652.301 What are wage records for purposes 

of the Wagner-Peyser Act? 

652.302 How do the Secretary of Labor’s 

responsibilities described in this part 

apply to State wage records? 

652.303 How do the requirements of part 

603 of this chapter apply to wage 

records? 

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56338 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Authority: 29 U.S.C. 49l–2; Secs. 189 and 

503, Public Law 113–128, 128 Stat. 1425 (Jul. 

22, 2014). 

Subpart A—Employment Service 

Operations 

§ 652.1 Introduction. 

These regulations implement the 

provisions of the Wagner-Peyser Act, 

known hereafter as the Wagner-Peyser 

Act, as amended by title III of the 

Workforce Innovation and Opportunity 

Act (WIOA), Public Law 113–128. The 

Wagner-Peyser Act Employment Service 

(ES) is a core program under the WIOA, 

and an integral component of the onestop delivery system. Congress intended 

that the States exercise broad authority 

in implementing provisions of the 

Wagner-Peyser Act. 

§ 652.2 Scope and purpose of the WagnerPeyser Act Employment Service. 

The basic purpose of the ES is to 

improve the functioning of the nation’s 

labor markets by bringing together 

individuals who are seeking 

employment and employers who are 

seeking workers. 

§ 652.3 Public labor exchange services 

system. 

At a minimum, each State must 

administer a labor exchange system 

which has the capacity, to: 

(a) Assist job seekers in finding 

employment, including promoting their 

familiarity with the Department’s 

electronic tools; 

(b) Assist employers in filling jobs; 

(c) Facilitate the match between job 

seekers and employers; 

(d) Participate in a system for clearing 

labor among the States, including the 

use of standardized classification 

systems issued by the Secretary, under 

sec. 15 of the Wagner-Peyser Act; 

(e) Meet the work test requirements of 

the State unemployment compensation 

system; and 

(f) Provide labor exchange services as 

identified in § 678.430(a) of this chapter, 

sec. 7(a) of the Wagner-Peyser Act, and 

sec. 134(c)(2)(A)(iv) of WIOA. 

§ 652.4 Allotment of funds and grant 

agreement. 

(a) Allotments. The Secretary must 

provide planning estimates in 

accordance with sec. 6(b)(5) of the 

Wagner-Peyser Act. Within 30 days of 

receipt of planning estimates from the 

Secretary, the State must make public 

the sub-State resource distributions, and 

describe the process and schedule under 

which these resources will be issued, 

planned, and committed. This 

notification must include a description 

of the procedures by which the public 

may review and comment on the subState distributions, including a process 

by which the State will resolve any 

complaints. 

(b) Grant agreement. To establish a 

continuing relationship under the 

Wagner-Peyser Act, the Governor and 

the Secretary must sign a grant 

agreement, including a statement 

assuring that the State must comply 

with the Wagner-Peyser Act and all 

applicable rules and regulations. 

Consistent with this agreement and sec. 

6 of the Wagner-Peyser Act, State 

allotments will be obligated through a 

notification of obligation. 

§ 652.5 Services authorized. 

The funds allotted to each State under 

sec. 6 of the Wagner-Peyser Act must be 

expended consistent with an approved 

plan under §§ 676.100 through 676.145 

of this chapter and § 652.211. At a 

minimum, each State must provide the 

minimum labor exchange elements 

listed at § 652.3. 

§§ 652.6–652.7 [Reserved] 

§ 652.8 Administrative provisions. 

(a) Administrative requirements. The 

Employment Security Manual is not 

applicable to funds appropriated under 

the Wagner-Peyser Act. Except as 

provided for in paragraph (f) of this 

section, administrative requirements 

and cost principles applicable to grants 

under this part are as specified in 2 CFR 

parts 200 and 2900 which govern the 

Uniform Guidelines, cost principles, 

and audit requirements for Federal 

awards. 

(b) Management systems, reporting, 

and recordkeeping. (1) The State must 

ensure that a financial system provides 

fiscal control and accounting 

procedures sufficient to permit 

preparation of required reports, and the 

tracing of funds to a level of expenditure 

adequate to establish that funds have 

not been expended in violation of the 

restrictions on the use of such funds. 

(sec. 10(a) of the Wagner-Peyser Act) 

(2) The financial management system 

and the program information system 

must provide Federally-required records 

and reports that are uniform in 

definition, accessible to authorized 

Federal and State staff, and verifiable for 

monitoring, reporting, audit and 

evaluation purposes. (sec. 10(c) of the 

Wagner-Peyser Act) 

(c) Reports required. (1) Each State 

must make reports pursuant to 

instructions issued by the Secretary and 

in such format as the Secretary 

prescribes. 

(2) The Secretary is authorized to 

monitor and investigate pursuant to sec. 

10 of the Wagner-Peyser Act. 

(d) Special administrative and cost 

provisions. (1) Neither the Department 

nor the State is a guarantor of the 

accuracy or truthfulness of information 

obtained from employers or applicants 

in the process of operating a labor 

exchange activity. 

(2) Prior approval authority—as 

described in various sections of 29 CFR 

part 97, Uniform Administrative 

Requirements for Grants and 

Cooperative Agreements to State and 

Local Governments, and Office of 

Management and Budget Circular A–87 

(Revised)—is delegated to the State 

except that the Secretary reserves the 

right to require transfer of title on 

nonexpendable Automated Data 

Processing Equipment (ADPE), in 

accordance with provisions contained 

in 2 CFR parts 200 and 2900. The 

Secretary reserves the right to exercise 

prior approval authority in other areas, 

after providing advance notice to the 

State. 

(3) Application for financial 

assistance and modification 

requirements must be as specified under 

this part. 

(4) Cost of promotional and 

informational activities consistent with 

the provisions of the Wagner-Peyser 

Act, describing services offered by 

employment security agencies, job 

openings, labor market information, and 

similar items are allowable. 

(5) Each State must retain basic 

documents for the minimum period 

specified below, consistent with 2 CFR 

parts 200 and 2900: 

(i) Work application: 3 years. 

(ii) Job order: 3 years. 

(6) Payments from the State’s WagnerPeyser Act allotment made into a State’s 

account in the Unemployment Trust 

Fund for the purpose of reducing 

charges against Reed Act funds (sec. 

903(c) of the Social Security Act, as 

amended (42 U.S.C. 1103(c)) are 

allowable costs, provided that: 

(i) The charges against Reed Act funds 

were for amounts appropriated, 

obligated, and expended for the 

acquisition of automatic data processing 

installations or for the acquisition or 

major renovation of State-owned office 

building; and 

(ii) With respect to each acquisition of 

improvement of property pursuant to 

paragraph (d)(6)(i) of this section, the 

payments are accounted for in the 

State’s records as credits against 

equivalent amounts of Reed Act funds 

used for administrative expenditures. 

(e) Disclosure of information. (1) The 

State must assure the proper disclosure 

of information pursuant to sec. 3(b) of 

the Wagner-Peyser Act. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56339 

(2) The information specified in sec. 

3(b) and other sections of the WagnerPeyser Act, also must be provided to 

officers or any employee of the Federal 

government or of a State government 

lawfully charged with administration of 

unemployment compensation laws, ES 

activities under the Wagner-Peyser Act 

or other related legislation, but only for 

purposes reasonably necessary for the 

proper administration of such laws. 

(f) Audits. (1) The State must follow 

the audit requirements found at 

§ 683.210 of this chapter, except that 

funds expended pursuant to sec. 7(b) of 

the Wagner-Peyser Act must be audited 

annually. 

(2) The Comptroller General and the 

Inspector General of the Department 

have the authority to conduct audits, 

evaluations or investigations necessary 

to meet their responsibilities under sec. 

9(b)(1) and 9(b)(2), respectively, of the 

Wagner-Peyser Act. 

(3) The audit, conducted pursuant to 

paragraph (f)(1) or (2) of this section, 

must be submitted to the Secretary who 

will follow the resolution process 

specified in §§ 683.420 through 683.440 

of this chapter. 

(g) Sanctions for violation of the 

Wagner-Peyser Act. (1) The Secretary 

may impose appropriate sanctions and 

corrective actions for violation of the 

Wagner-Peyser Act, regulations, or State 

Plan, including the following: 

(i) Requiring repayment, for debts 

owed the government under the grant, 

from non-Federal funds; 

(ii) Offsetting debts arising from the 

misexpenditure of grant funds, against 

amounts to which the State is or may be 

entitled under the Wagner-Peyser Act, 

provided that debts arising from gross 

negligence or willful misuse of funds 

may not be offset against future grants. 

When the Secretary reduces amounts 

allotted to the State by the amount of 

the misexpenditure, the debt must be 

fully satisfied; 

(iii) Determining the amount of 

Federal cash maintained by the State or 

a subrecipient in excess of reasonable 

grant needs, establishing a debt for the 

amount of such excessive cash, and 

charging interest on that debt; and 

(iv) Imposing other appropriate 

sanctions or corrective actions, except 

where specifically prohibited by the 

Wagner-Peyser Act or regulations. 

(2) To impose a sanction or corrective 

action, the Secretary must utilize the 

initial and final determination 

procedures outlined in paragraph (f)(3) 

of this section and specified in the 

administrative provisions at §§ 683.420 

through 683.440 of this chapter. 

(h) Other violations. Violations or 

alleged violations of the Wagner-Peyser 

Act, regulations, or grant terms and 

conditions except those pertaining to 

audits or discrimination must be 

determined and handled in accordance 

with part 658, subpart H, of this chapter. 

(i) Fraud and abuse. Any persons 

having knowledge of fraud, criminal 

activity or other abuse must report such 

information directly and immediately to 

the Secretary, including all complaints 

involving such matters. 

(j) Nondiscrimination and affirmative 

action requirements. States must: 

(1) Assure that no individual be 

excluded from participation in, denied 

the benefits of, subjected to 

discrimination under, or denied 

employment in the administration or in 

connection with any services or 

activities authorized under the WagnerPeyser Act in violation of any applicable 

nondiscrimination law. All complaints 

alleging discrimination must be filed 

and processed according to the 

procedures in the applicable 

Department of Labor nondiscrimination 

regulations. 

(2) Assure that discriminatory job 

orders will not be accepted, except 

where the stated requirement is a bona 

fide occupational qualification (BFOQ). 

See, generally, 42 U.S.C. 2000(e)–2(e), 

29 CFR parts 1604, 1606, and 1625. 

(3) Assure that employers’ valid 

affirmative action requests will be 

accepted and a significant number of 

qualified applicants from the target 

group(s) will be included to enable the 

employer to meet its affirmative action 

obligations. 

(4) Assure that employment testing 

programs will comply with 41 CFR part 

60–3 and 29 CFR part 32 and 29 CFR 

1627.3(b)(1)(iv). 

(5) Nondiscrimination and equal 

opportunity requirements and 

procedures, including complaint 

processing and compliance reviews, 

will be governed by the applicable 

Department of Labor nondiscrimination 

regulations. 

§ 652.9 Labor disputes. 

(a) State agencies may not make a job 

referral on job orders which will aid 

directly or indirectly in the filling of a 

job opening which is vacant because the 

former occupant is on strike, or is being 

locked out in the course of a labor 

dispute, or the filling of which is 

otherwise an issue in a labor dispute 

involving a work stoppage. 

(b) Written notification must be 

provided to all applicants referred to 

jobs not at issue in the labor dispute that 

a labor dispute exists in the employing 

establishment and that the job to which 

the applicant is being referred is not at 

issue in the dispute. 

(c) When a job order is received from 

an employer reportedly involved in a 

labor dispute involving a work 

stoppage, State agencies must: 

(1) Verify the existence of the labor 

dispute and determine its significance 

with respect to each vacancy involved 

in the job order; and 

(2) Notify all potentially affected staff 

concerning the labor dispute. 

(d) State agencies must resume full 

referral services when they have been 

notified of, and verified with the 

employer and workers’ 

representative(s), that the labor dispute 

has been terminated. 

(e) State agencies must notify the 

regional office in writing of the 

existence of labor disputes which: 

(1) Result in a work stoppage at an 

establishment involving a significant 

number of workers; or 

(2) Involve multi-establishment 

employers with other establishments 

outside the reporting State. 

Subpart B—Services for Veterans 

§ 652.100 Services for veterans. 

Veterans receive priority of service for 

all Department-funded employment and 

training programs as described in 20 

CFR part 1010. The Department’s 

Veterans’ Employment and Training 

Service (VETS) administers the Jobs for 

Veterans State Grants (JVSG) program 

under chapter 41 of title 38 of the U.S. 

Code and other activities and training 

programs which provide services to 

specific populations of eligible veterans. 

VETS’ general regulations are located in 

parts 1001, 1002, and 1010 of this title. 

Subpart C—Wagner-Peyser Act 

Services in a One-Stop Delivery 

System Environment 

§ 652.200 What is the purpose of this 

subpart? 

(a) This subpart provides guidance to 

States to implement the services 

provided under the Wagner-Peyser Act, 

as amended by WIOA, in a one-stop 

delivery system environment. 

(b) Except as otherwise provided, the 

definitions contained in part 651 of this 

chapter and sec. 2 of the Wagner-Peyser 

Act apply to this subpart. 

§ 652.201 What is the role of the State 

Workforce Agency in the one-stop delivery 

system? 

(a) The role of the State Workforce 

Agency (SWA) in the one-stop delivery 

system is to ensure the delivery of 

services authorized under sec. 7(a) of 

the Wagner-Peyser Act. The SWA is a 

required one-stop partner in each local 

one-stop delivery system and is subject 

to the provisions relating to such 

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partners that are described at part 678 

of this chapter. 

(b) Consistent with those provisions, 

the State agency must: 

(1) Participate in the one-stop delivery 

system in accordance with sec. 7(e) of 

the Wagner-Peyser Act; 

(2) Be represented on the Workforce 

Development Boards (WDBs) that 

oversee the local and State one-stop 

delivery system and be a party to the 

Memorandum of Understanding, 

described at § 678.500 of this chapter, 

addressing the operation of the one-stop 

delivery system; and 

(3) Provide these services as part of 

the one-stop delivery system. 

§ 652.202 May local Employment Service 

offices exist outside of the one-stop 

delivery system? 

No. Local ES offices may not exist 

outside of the one-stop service delivery 

system. A State must colocate ES, as 

provided in §§ 678.310 through 678.315 

of this chapter. 

§ 652.203 Who is responsible for funds 

authorized under the Wagner-Peyser Act in 

the workforce development system? 

The SWA retains responsibility for all 

funds authorized under the WagnerPeyser Act, including those funds 

authorized under sec. 7(a) required for 

providing the services and activities 

delivered as part of the one-stop 

delivery system. 

§ 652.204 Must funds authorized under the 

Wagner-Peyser Act (the Governor’s 

Reserve) flow through the one-stop delivery 

system? 

No, sec. 7(b) of the Wagner-Peyser Act 

provides that 10 percent of the State’s 

allotment under the Wagner-Peyser Act 

is reserved for use by the Governor for 

performance incentives, supporting 

exemplary models of service delivery, 

professional development and career 

advancement of SWA staff, and services 

for groups with special needs. However, 

these funds may flow through the onestop delivery system. 

§ 652.205 May funds authorized under the 

Wagner-Peyser Act be used to supplement 

funding for labor exchange programs 

authorized under separate legislation? 

(a) Section 7(c) of the Wagner-Peyser 

Act enables States to use funds 

authorized under sec. 7(a) or 7(b) of the 

Wagner-Peyser Act to supplement 

funding of any workforce activity 

carried out under WIOA. 

(b) Funds authorized under the 

Wagner-Peyser Act may be used under 

sec. 7(c) to provide additional funding 

to other activities authorized under 

WIOA if: 

(1) The activity meets the 

requirements of the Wagner-Peyser Act, 

and its own requirements; 

(2) The activity serves the same 

individuals as are served under the 

Wagner-Peyser Act; 

(3) The activity provides services that 

are coordinated with services under the 

Wagner-Peyser Act; and 

(4) The funds supplement, rather than 

supplant, funds provided from nonFederal sources. 

§ 652.206 May a State use funds 

authorized under the Wagner-Peyser Act to 

provide applicable ‘‘career services,’’ as 

defined in the Workforce Innovation and 

Opportunity Act? 

Yes, funds authorized under sec. 7(a) 

of the Wagner-Peyser Act must be used 

to provide basic career services as 

identified in § 678.430(a) of this chapter 

and secs. 134(c)(2)(A)(i)–(xi) of WIOA, 

and may be used to provide 

individualized career services as 

identified in § 678.430(b) of this chapter 

and sec. 134(c)(2)(A)(xii) of WIOA. 

Funds authorized under sec. 7(b) of the 

Wagner-Peyser Act may be used to 

provide career services. Career services 

must be provided consistent with the 

requirements of the Wagner-Peyser Act. 

§ 652.207 How does a State meet the 

requirement for universal access to 

services provided under the Wagner-Peyser 

Act? 

(a) A State has discretion in how it 

meets the requirement for universal 

access to services provided under the 

Wagner-Peyser Act. In exercising this 

discretion, a State must meet the 

Wagner-Peyser Act’s requirements. 

(b) These requirements are: 

(1) Labor exchange services must be 

available to all employers and job 

seekers, including unemployment 

insurance (UI) claimants, veterans, 

migrant and seasonal farmworkers, and 

individuals with disabilities; 

(2) The State must have the capacity 

to deliver labor exchange services to 

employers and job seekers, as described 

in the Wagner-Peyser Act, on a 

statewide basis through: 

(i) Self-service, including virtual 

services; 

(ii) Facilitated self-help service; and 

(iii) Staff-assisted service; 

(3) In each local area, in at least one 

comprehensive physical center, staff 

funded under the Wagner-Peyser Act 

must provide labor exchange services 

(including staff-assisted labor exchange 

services) and career services as 

described in § 652.206; and 

(4) Those labor exchange services 

provided under the Wagner-Peyser Act 

in a local area must be described in the 

Memorandum of Understanding (MOU) 

described in § 678.500 of this chapter. 

§ 652.208 How are applicable career 

services related to the methods of service 

delivery described in in this part? 

Career services may be delivered 

through any of the applicable three 

methods of service delivery described in 

§ 652.207(b)(2). These methods are: 

(a) Self-service, including virtual 

services; 

(b) Facilitated self-help service; and 

(c) Staff-assisted service. 

§ 652.209 What are the requirements under 

the Wagner-Peyser Act for providing 

reemployment services and other activities 

to referred unemployment insurance 

claimants? 

(a) In accordance with sec. 3(c)(3) of 

the Wagner-Peyser Act, the SWA, as 

part of the one-stop delivery system, 

must provide reemployment services to 

UI claimants for whom such services are 

required as a condition for receipt of UI 

benefits. Services must be appropriate to 

the needs of UI claimants who are 

referred to reemployment services under 

any Federal or State UI law. 

(b) The SWA also must provide other 

activities, including: 

(1) Coordination of labor exchange 

services with the provision of UI 

eligibility services as required by sec. 

5(b)(2) of the Wagner-Peyser Act; 

(2) Administration of the work test, 

conducting eligibility assessments, and 

registering UI claimants for employment 

services in accordance with a State’s 

unemployment compensation law, and 

provision of job finding and placement 

services as required by sec. 3(c)(3) and 

described in sec. 7(a)(3)(F) of the 

Wagner-Peyser Act; and 

(3) Referring UI claimants to, and 

providing application assistance for, 

training and education resources and 

programs, including Federal Pell grants 

and other student assistance under title 

IV of the Higher Education Act, the 

Montgomery GI Bill, Post–9/11 GI Bill, 

and other Veterans Educational 

Assistance, training provided for youth, 

and adult and dislocated workers, as 

well as other employment training 

programs under WIOA, and for 

Vocational Rehabilitation Services 

under title I of the Rehabilitation Act of 

1973. 

§ 652.210 What are the Wagner-Peyser 

Act’s requirements for administration of the 

work test, including eligibility assessments, 

as appropriate, and assistance to 

unemployment insurance claimants? 

(a) State UI law or rules establish the 

requirements under which UI claimants 

must register and search for work in 

order to fulfill the UI work test 

requirements. 

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(b) Staff funded under the WagnerPeyser Act must assure that: 

(1) UI claimants receive the full range 

of labor exchange services available 

under the Wagner-Peyser Act that are 

necessary and appropriate to facilitate 

their earliest return to work, including 

career services specified in § 652.206 

and listed in sec. 134(c)(2)A) of WIOA; 

(2) UI claimants requiring assistance 

in seeking work receive the necessary 

guidance and counseling to ensure they 

make a meaningful and realistic work 

search; and 

(3) ES staff will provide UI program 

staff with information about UI 

claimants’ ability or availability for 

work, or the suitability of work offered 

to them. 

§ 652.211 What are State planning 

requirements under the Wagner-Peyser 

Act? 

The ES is a core program identified in 

WIOA and must be included as part of 

each State’s Unified or Combined State 

Plans. See §§ 676.105 through 676.125 

of this chapter for planning 

requirements for the core programs. 

§ 652.215 Do any provisions in the 

Workforce Innovation and Opportunity Act 

change the requirement that State merit 

staff employees must deliver services 

provided under the Wagner-Peyser Act? 

No, the Secretary requires that labor 

exchange services provided under the 

authority of the Wagner-Peyser Act, 

including services to veterans, be 

provided by State merit-staff employees. 

This interpretation is authorized by and 

consistent with the provisions in secs. 

3(a) and 5(b) of the Wagner-Peyser Act 

and the Intergovernmental Personnel 

Act (42 U.S.C 4701 et seq.). The 

Secretary has and has exercised the 

legal authority under sec. 3(a) of the 

Wagner-Peyser Act to set additional 

staffing standards and requirements and 

to conduct demonstrations to ensure the 

effective delivery of services provided 

under the Wagner-Peyser Act. No 

additional exemptions, other than the 

ones previously authorized under the 

Wagner-Peyser Act as amended by WIA, 

will be authorized. 

§ 652.216 May the one-stop operator 

provide guidance to State merit staff 

employees in accordance with the WagnerPeyser Act? 

Yes, the one-stop delivery system 

envisions a partnership in which 

Wagner-Peyser Act labor exchange 

services are coordinated with other 

activities provided by other partners in 

a one-stop setting. As part of the local 

Memorandum of Understanding 

described in § 678.500 of this chapter, 

the SWA, as a one-stop partner, may 

agree to have staff receive guidance from 

the one-stop operator regarding the 

provision of labor exchange services. 

Personnel matters, including 

compensation, personnel actions, terms 

and conditions of employment, 

performance appraisals, and 

accountability of State merit staff 

employees funded under the WagnerPeyser Act, remain under the authority 

of the SWA. The guidance given to 

employees must be consistent with the 

provisions of the Wagner-Peyser Act, 

the local Memorandum of 

Understanding, and applicable 

collective bargaining agreements. 

Subpart D—Workforce and Labor 

Market Information 

§ 652.300 What role does the Secretary of 

Labor have concerning the Workforce and 

Labor Market Information System? 

(a) The Secretary of Labor must 

oversee the development, maintenance, 

and continuous improvement of the 

workforce and labor market information 

system defined in Wagner-Peyser Act 

sec. 15 and § 651.10 of this chapter. The 

Department also will identify 

parameters of continuous improvement. 

The Secretary will consult with the 

Workforce Information Advisory 

Council on these matters and consider 

the council’s recommendations. 

(b) With respect to data collection, 

analysis, and dissemination of 

workforce and labor market information 

as defined in Wagner-Peyser Act sec. 15 

and § 651.10 of this chapter, the 

Secretary must: 

(1) Assign responsibilities within the 

Department of Labor for elements of the 

workforce and labor market information 

system described in sec. 15(a) of the 

Wagner-Peyser Act to ensure that the 

statistical and administrative data 

collected are consistent with 

appropriate Bureau of Labor Statistics 

standards and definitions, and that the 

information is accessible and 

understandable to users of such data; 

(2) Actively seek the cooperation of 

heads of other Federal agencies to 

establish and maintain mechanisms for 

ensuring complementarity and nonduplication in the development and 

operation of statistical and 

administrative data collection activities; 

(3) Solicit, receive, and evaluate the 

recommendations of the Workforce 

Information Advisory Council 

established by Wagner-Peyser Act sec. 

15(d); 

(4) Eliminate gaps and duplication in 

statistical undertakings; 

(5) Through the Bureau of Labor 

Statistics and the Employment and 

Training Administration, and in 

collaboration with States, develop and 

maintain the elements of the workforce 

and labor market information system, 

including the development of consistent 

procedures and definitions for use by 

States in collecting and reporting the 

workforce and labor market information 

data described in Wagner-Peyser Act 

sec. 15 and defined in § 651.10 of this 

chapter; 

(6) Establish procedures for the 

system to ensure that the data and 

information are timely, and paperwork 

and reporting for the system are reduced 

to a minimum; and 

(7) Prepare a 2-year plan for the 

workforce and labor market information 

system, as described in the WagnerPeyser Act sec. 15(c), as amended by 

WIOA sec. 308(d). 

§ 652.301 What are wage records for 

purposes of the Wagner-Peyser Act? 

Wage records, for purposes of the 

Wagner-Peyser Act, are records that 

contain ‘‘wage information’’ as defined 

in § 603.2(k) of this chapter. In this part, 

‘‘State wage records’’ refers to wage 

records produced or maintained by a 

State. 

§ 652.302 How do the Secretary of Labor’s 

responsibilities described in this part apply 

to State wage records? 

(a) A significant portion of the 

workforce and labor market 

information—defined in § 651.10 of this 

chapter—are developed using State 

wage records. 

(b) Based on the Secretary of Labor’s 

responsibilities described in WagnerPeyser Act sec. 15 and § 652.300, the 

Secretary of Labor will, in consultation 

with Federal agencies, and States, and 

considering recommendations from the 

Workforce Information Advisory 

Council described in Wagner-Peyser Act 

sec. 15(d), develop: 

(1) Standardized definitions for the 

data elements comprising ‘‘wage 

records’’ as defined in § 652.301; and 

(2) Improved processes and systems 

for the collection and reporting of wage 

records. 

(c) In carrying out these activities, the 

Secretary also may consult with other 

stakeholders, such as employers. 

§ 652.303 How do the requirements of part 

603 of this chapter apply to wage records? 

All information collected by the State 

in wage records referred to in § 652.302 

is subject to the confidentiality 

regulations at part 603 of this chapter. 

■ 7. Revise part 653 to read as follows: 

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56342 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

PART 653—SERVICES OF THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE SYSTEM 

Subpart A—[Reserved] 

Subpart B—Services for Migrant and 

Seasonal Farmworkers (MSFWs) 

Sec. 

653.100 Purpose and scope of subpart. 

653.101 Provision of services to migrant 

and seasonal farmworkers. 

653.102 Job information. 

653.103 Process for migrant and seasonal 

farmworkers to participate in workforce 

development activities. 

653.104–653.106 [Reserved] 

653.107 Outreach and Agricultural 

Outreach Plan. 

653.108 State Workforce Agency and State 

Monitor Advocate responsibilities. 

653.109 Data collection and performance 

accountability measures. 

653.110 Disclosure of data. 

653.111 State Workforce Agency staffing 

requirements. 

Subparts C–E—[Reserved] 

Subpart F—Agricultural Recruitment 

System for U.S. Workers (ARS) 

Sec. 

653.500 Purpose and scope of subpart. 

653.501 Requirements for processing 

clearance orders. 

653.502 Conditional access to the 

Agricultural Recruitment System. 

653.503 Field checks. 

Authority: Secs. 167, 189, 503, Public Law 

113–128, 128 Stat. 1425 (Jul. 22, 2014); 29 

U.S.C. chapter 4B; 38 U.S.C. part III, chapters 

41 and 42. 

Subpart A—[Reserved] 

Subpart B—Services for Migrant and 

Seasonal Farmworkers (MSFWs) 

§ 653.100 Purpose and scope of subpart. 

(a) This subpart sets forth the 

principal regulations of the WagnerPeyser Act Employment Service (ES) 

concerning the provision of services for 

MSFWs consistent with the requirement 

that all services of the workforce 

development system be available to all 

job seekers in an equitable fashion. This 

includes ensuring MSFWs have access 

to these services in a way that meets 

their unique needs. MSFWs must 

receive services on a basis which is 

qualitatively equivalent and 

quantitatively proportionate to services 

provided to non-MSFWs. 

(b) This subpart contains 

requirements that State Workforce 

Agencies (SWAs) establish a system to 

monitor their own compliance with ES 

regulations governing services to 

MSFWs. 

(c) Established under this subpart are 

special services to ensure MSFWs 

receive the full range of career services 

as defined in WIOA sec. 134(c)(2). 

§ 653.101 Provision of services to migrant 

and seasonal farmworkers. 

Each one-stop center must offer 

MSFWs the full range of career and 

supportive services, benefits and 

protections, and job and training referral 

services as are provided to non-MSFWs. 

In providing such services, the one-stop 

centers must consider and be sensitive 

to the preferences, needs, and skills of 

individual MSFWs and the availability 

of job and training opportunities. 

§ 653.102 Job information. 

All SWAs must make job order 

information conspicuous and available 

to MSFWs by all reasonable means. 

Such information must, at minimum, be 

available through internet labor 

exchange systems and through the onestop centers. One-stop centers must 

provide adequate staff assistance to 

MSFWs to access job order information 

easily and efficiently. In designated 

significant MSFW multilingual offices, 

such assistance must be provided to 

MSFWs in their native language, 

whenever requested or necessary. 

§ 653.103 Process for migrant and 

seasonal farmworkers to participate in 

workforce development activities. 

(a) Each one-stop center must 

determine whether participants are 

MSFWs as defined at § 651.10 of this 

chapter. 

(b) All SWAs will ensure that MSFWs 

who are English Language Learners 

(ELLs) receive, free of charge, the 

language assistance necessary to afford 

them meaningful access to the 

programs, services, and information 

offered by the one-stop centers. 

(c) One-stop center staff must provide 

MSFWs a list of available career and 

supportive services in their native 

language. 

(d) One-stop center staff must refer 

and/or register MSFWs for services, as 

appropriate, if the MSFW is interested 

in obtaining such services. 

§§ 653.104–653.106 [Reserved] 

§ 653.107 Outreach and Agricultural 

Outreach Plan. 

(a) State Workforce Agency (SWA) 

outreach responsibilities. (1) Each SWA 

must employ an adequate number of 

outreach workers to conduct MSFW 

outreach in their service areas. SWA 

Administrators must ensure State 

Monitor Advocates and outreach 

workers coordinate their outreach 

efforts with WIOA title I sec. 167 

grantees as well as with public and 

private community service agencies and 

MSFW groups. 

(2) As part of their outreach, SWAs 

must: 

(i) Communicate the full range of 

workforce development services to 

MSFWs. 

(ii) Conduct thorough outreach efforts 

with extensive follow-up activities in 

supply States. 

(3) For purposes of hiring and 

assigning staff to conduct outreach 

duties, and to maintain compliance with 

SWAs’ Affirmative Action programs, 

SWAs must seek, through merit system 

procedures, qualified candidates who: 

(i) Are from MSFW backgrounds; 

(ii) Speak a language common among 

MSFWs in the State; or 

(iii) Are racially or ethnically 

representative of the MSFWs in the 

service area. 

(4) The 20 States with the highest 

estimated year-round MSFW activity, as 

identified in guidance issued by the 

Secretary, must assign, in accordance 

with State merit staff requirements, fulltime, year-round staff to conduct 

outreach duties. The remainder of the 

States must hire year-round part-time 

outreach staff and, during periods of the 

highest MSFW activity must hire fulltime outreach staff. All outreach staff 

must be multilingual if warranted by the 

characteristics of the MSFW population 

in the State, and must spend a majority 

of their time in the field. 

(5) The SWA must publicize the 

availability of employment services 

through such means as newspaper and 

electronic media publicity. Contacts 

with public and private community 

agencies, employers and/or employer 

organizations, and MSFW groups also 

must be utilized to facilitate the widest 

possible distribution of information 

concerning employment services. 

(b) Outreach worker’s responsibilities. 

Outreach workers must locate and 

contact MSFWs who are not being 

reached by the normal intake activities 

conducted by the ES offices. Outreach 

workers’ responsibilities include: 

(1) Explaining to MSFWs at their 

working, living, or gathering areas 

(including day-haul sites), by means of 

written and oral presentations either 

spontaneous or recorded, in a language 

readily understood by them, the 

following: 

(i) The services available at the local 

one-stop center (which includes the 

availability of referrals to training, 

supportive services, and career services, 

as well as specific employment 

opportunities), and other related 

services; 

(ii) Information on the Employment 

Service and Employment-related Law 

Complaint System; 

(iii) Information on the other 

organizations serving MSFWs in the 

area; and 

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(iv) A basic summary of farmworker 

rights, including farmworker rights with 

respect to the terms and conditions of 

employment. 

(2) Outreach workers must not enter 

work areas to perform outreach duties 

described in this section on an 

employer’s property without permission 

of the employer unless otherwise 

authorized to enter by law; must not 

enter workers’ living areas without the 

permission of the workers; and must 

comply with appropriate State laws 

regarding access. 

(3) After making the presentation, 

outreach workers must urge the MSFWs 

to go to the local one-stop center to 

obtain the full range of employment and 

training services. 

(4) If an MSFW cannot or does not 

wish to visit the local one-stop center, 

the outreach worker must offer to 

provide on-site the following: 

(i) Assistance in the preparation of 

applications for employment services; 

(ii) Assistance in obtaining referral(s) 

to current and future employment 

opportunities; 

(iii) Assistance in the preparation of 

either ES or employment-related law 

complaints; 

(iv) Referral of complaints to the ES 

office Complaint Specialist or ES office 

manager; 

(v) Referral to supportive services 

and/or career services in which the 

individual or a family member may be 

interested; and 

(vi) As needed, assistance in making 

appointments and arranging 

transportation for individual MSFW(s) 

or members of his/her family to and 

from local one-stop centers or other 

appropriate agencies. 

(5) Outreach workers must make 

follow-up contacts as necessary and 

appropriate to provide the assistance 

specified in paragraphs (b)(1) through 

(4) of this section. 

(6) Outreach workers must be alert to 

observe the working and living 

conditions of MSFWs and, upon 

observation or upon receipt of 

information regarding a suspected 

violation of Federal or State 

employment-related law, document and 

refer information to the ES office 

manager for processing in accordance 

with § 658.411 of this chapter. 

Additionally, if an outreach worker 

observes or receives information about 

apparent violations (as described in 

§ 658.419 of this chapter), the outreach 

worker must document and refer the 

information to the appropriate ES office 

manager. 

(7) Outreach workers must be trained 

in local office procedures and in the 

services, benefits, and protections 

afforded MSFWs by the ES, including 

training on protecting farmworkers 

against sexual harassment. While sexual 

harassment is the primary requirement, 

training also may include similar issues 

such as sexual coercion, assault, and 

human trafficking. Such trainings are 

intended to help outreach workers 

identify when such issues may be 

occurring in the fields and how to 

document and refer the cases to the 

appropriate enforcement agencies. They 

also must be trained in the procedure 

for informal resolution of complaints. 

The program for such training must be 

formulated by the State Administrator, 

pursuant to uniform guidelines 

developed by the Employment and 

Training Administration (ETA). The 

SMA must be given an opportunity to 

review and comment on the State’s 

program. 

(8) Outreach workers must maintain 

complete records of their contacts with 

MSFWs and the services they perform. 

These records must include a daily log, 

a copy of which must be sent monthly 

to the ES office manager and maintained 

on file for at least 2 years. These records 

must include the number of contacts, 

the names of contacts (if available), and 

the services provided (e.g., whether a 

complaint was received, whether a 

request for career services was received, 

and whether a referral was made). 

Outreach workers also must maintain 

records of each possible violation or 

complaint of which they have 

knowledge, and their actions in 

ascertaining the facts and referring the 

matters as provided herein. These 

records must include a description of 

the circumstances and names of any 

employers who have refused outreach 

workers access to MSFWs pursuant to 

paragraph (b)(2) of this section. 

(9) Outreach workers must not engage 

in political, unionization, or antiunionization activities during the 

performance of their duties. 

(10) Outreach workers must be 

provided with, carry and display, upon 

request, identification cards or other 

material identifying them as employees 

of the SWA. 

(11) Outreach workers in significant 

MSFW local offices must conduct 

especially vigorous outreach in their 

service areas. 

(c) ES office outreach responsibilities. 

Each ES office manager must file with 

the SMA a monthly summary report of 

outreach efforts. These reports must 

summarize information collected, 

pursuant to paragraph (b)(8) of this 

section. The ES office manager and/or 

other appropriate State office staff must 

assess the performance of outreach 

workers by examining the overall 

quality and productivity of their work, 

including the services provided and the 

methods and tools used to offer services. 

Performance must not be judged solely 

by the number of contacts made by the 

outreach worker. The monthly reports 

and daily outreach logs must be made 

available to the SMA and Federal onsite review teams. 

(d) State Agricultural Outreach Plan 

(AOP). (1) Each SWA must develop an 

AOP every 4 years as part of the Unified 

or Combined State Plans required under 

sec. 102 or 103 of WIOA. 

(2) The AOP must: 

(i) Provide an assessment of the 

unique needs of MSFWs in the area 

based on past and projected agricultural 

and MSFW activity in the State; 

(ii) Provide an assessment of available 

resources for outreach; 

(iii) Describe the SWA’s proposed 

outreach activities including strategies 

on how to contact MSFWs who are not 

being reached by the normal intake 

activities conducted by the one-stop 

center; 

(iv) Describe the activities planned for 

providing the full range of employment 

and training services to the agricultural 

community, including both MSFWs and 

agricultural employers, through the onestop centers; and 

(v) Provide an assurance that the SWA 

is complying with the requirements 

under § 653.111 if the State has 

significant MSFW one-stop centers. 

(3) In developing the AOP, the SWA 

must solicit information and suggestions 

from WIOA sec. 167 National 

Farmworker Jobs Program (NFJP) 

grantees, other appropriate MSFW 

groups, public agencies, agricultural 

employer organizations, and other 

interested organizations. In addition, at 

least 45 calendar days before submitting 

its final AOP to the Department, the 

SWA must provide the proposed AOP to 

NFJP grantees, public agencies, 

agricultural employer organizations, and 

other organizations expressing an 

interest and allow at least 30 calendar 

days for review and comment. The SWA 

must: 

(i) Consider any comments received 

in formulating its final proposed AOP. 

(ii) Inform all commenting parties in 

writing whether their comments have 

been incorporated and, if not, the 

reasons therefore. 

(iii) Transmit the comments and 

recommendations received and its 

responses to the Department with the 

submission of the AOP. (If the 

comments are received after the 

submission of the AOP, they may be 

sent separately to the Department.) 

(4) The AOP must be submitted in 

accordance with paragraph (d) of this 

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section and planning guidance issued 

by the Department. 

(5) The Annual Summaries required 

at § 653.108(s) must update the 

Department on the SWA’s progress 

toward meetings its goals set forth in the 

AOP. 

§ 653.108 State Workforce Agency and 

State Monitor Advocate responsibilities. 

(a) State Administrators must ensure 

their SWAs monitor their own 

compliance with ES regulations in 

serving MSFWs on an ongoing basis. 

The State Administrator has overall 

responsibility for SWA self-monitoring. 

(b) The State Administrator must 

appoint a State Monitor Advocate. The 

State Administrator must inform 

farmworker organizations and other 

organizations with expertise concerning 

MSFWs of the opening and encourage 

them to refer qualified applicants to 

apply through the State merit system 

prior to appointing a State Monitor 

Advocate. Among qualified candidates 

determined through State merit system 

procedures, the SWAs must seek 

persons: 

(1) Who are from MSFW backgrounds; 

or 

(2) Who speak Spanish or other 

languages of a significant proportion of 

the State MSFW population; or 

(3) Who have substantial work 

experience in farmworker activities. 

(c) The SMA must have direct, 

personal access, when necessary, to the 

State Administrator. The SMA must 

have status and compensation as 

approved by the civil service 

classification system and be comparable 

to other State positions assigned similar 

levels of tasks, complexity, and 

responsibility. 

(d) The SMA must be assigned staff 

necessary to fulfill effectively all of the 

duties set forth in this subpart. The 

number of staff positions must be 

determined by reference to the number 

of MSFWs in the State, as measured at 

the time of the peak MSFW population, 

and the need for monitoring activity in 

the State. The SMA must devote fulltime to Monitor Advocate functions. 

Any State that proposes less than fulltime dedication must demonstrate to its 

Regional Administrator that the SMA 

function can be effectively performed 

with part-time staffing. 

(e) All SMAs and their staff must 

attend, within the first 3 months of their 

tenure, a training session conducted by 

the Regional Monitor Advocate. They 

also must attend whatever additional 

training sessions are required by the 

Regional or National Monitor Advocate. 

(f) The SMA must provide any 

relevant documentation requested from 

the SWA by the Regional Monitor 

Advocate or the National Monitor 

Advocate. 

(g) The SMA must: 

(1) Conduct an ongoing review of the 

delivery of services and protections 

afforded by the ES regulations to 

MSFWs by the SWA and ES offices 

(including progress made in achieving 

affirmative action staffing goals). The 

SMA, without delay, must advise the 

SWA and local offices of problems, 

deficiencies, or improper practices in 

the delivery of services and protections 

afforded by these regulations and may 

request a corrective action plan to 

address these deficiencies. The SMA 

must advise the SWA on means to 

improve the delivery of services. 

(2) Participate in on-site reviews on a 

regular basis, using the following 

procedures: 

(i) Before beginning an onsite review, 

the SMA or review staff must study: 

(A) Program performance data; 

(B) Reports of previous reviews; 

(C) Corrective action plans developed 

as a result of previous reviews; 

(D) Complaint logs; and 

(E) Complaints elevated from the 

office or concerning the office. 

(ii) Ensure that the onsite review 

format, developed by ETA, is used as a 

guideline for onsite reviews. 

(iii) Upon completion of an onsite 

monitoring review, the SMA must hold 

one or more wrap-up sessions with the 

ES office manager and staff to discuss 

any findings and offer initial 

recommendations and appropriate 

technical assistance. 

(iv) After each review the SMA must 

conduct an in-depth analysis of the 

review data. The conclusions and 

recommendations of the SMA must be 

put in writing and must be sent to the 

State Administrator, to the official of the 

SWA with authority over the ES office, 

and other appropriate SWA officials. 

(v) If the review results in any 

findings of noncompliance with the 

regulations under this chapter, the ES 

office manager must develop and 

propose a written corrective action plan. 

The plan must be approved or revised 

by appropriate superior officials and the 

SMA. The plan must include actions 

required to correct or to take major steps 

to correct any compliance issues within 

30 business days, and if the plan allows 

for more than 30 business days for full 

compliance, the length of, and the 

reasons for, the extended period must be 

specifically stated. SWAs are 

responsible for assuring and 

documenting that the ES office is in 

compliance within the time period 

designated in the plan. 

(vi) SWAs must submit to the 

appropriate ETA regional office copies 

of the onsite review reports and 

corrective action plans for ES offices. 

(vii) The SMA may recommend that 

the review described in paragraph (g)(2) 

of this section be delegated to a 

responsible, professional member of the 

administrative staff of the SWA, if and 

when the State Administrator finds such 

delegation necessary. In such event, the 

SMA is responsible for and must 

approve the written report of the review. 

(3) Ensure all significant MSFW onestop centers not reviewed onsite by 

Federal staff, are reviewed at least once 

per year by State staff, and that, if 

necessary, those ES offices in which 

significant problems are revealed by 

required reports, management 

information, the Complaint System, or 

other means are reviewed as soon as 

possible. 

(4) Review and approve the SWA’s 

Agricultural Outreach Plan (AOP). 

(5) On a random basis, review 

outreach workers’ daily logs and other 

reports including those showing or 

reflecting the workers’ activities. 

(6) Write and submit annual 

summaries to the State Administrator 

with a copy to the Regional 

Administrator as described in paragraph 

(s) of this section. 

(h) The SMA must participate in 

Federal reviews conducted pursuant to 

part 658, subpart G, of this chapter. 

(i) At the discretion of the State 

Administrator, the SMA may be 

assigned the responsibility as the 

Complaint Specialist. The SMA must 

participate in and monitor the 

performance of the Complaint System, 

as set forth at §§ 658.400 and 658.401 of 

this chapter. The SMA must review the 

ES office’s informal resolution of 

complaints relating to MSFWs and must 

ensure that the ES office manager 

transmits copies of the Complaint 

System logs pursuant to part 658, 

subpart E, of this chapter to the SWA. 

(j) The SMA must serve as an 

advocate to improve services for 

MSFWs. 

(k) The SMA must establish an 

ongoing liaison with WIOA sec. 167 

National Farmworker Jobs Program 

(NFJP) grantees and other organizations 

serving farmworkers, employers, and 

employer organizations in the State. 

(l) The SMA must meet (either in 

person or by alternative means), at 

minimum, quarterly, with 

representatives of the organizations 

pursuant to paragraph (k) of this section, 

to receive complaints, assist in referrals 

of alleged violations to enforcement 

agencies, receive input on improving 

coordination with ES offices or 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56345 

improving the coordination of services 

to MSFWs. To foster such collaboration, 

the SMAs must establish Memorandums 

of Understanding (MOUs) with the NFJP 

grantees and may establish MOUs with 

other organizations serving farm 

workers as appropriate. 

(m) The SMA must conduct frequent 

field visits to the working, living, and 

gathering areas of MSFWs, and must 

discuss employment services and other 

employment-related programs with 

MSFWs, crew leaders, and employers. 

Records must be kept of each such field 

visit. 

(n) The SMA must participate in the 

appropriate regional public meeting(s) 

held by the Department of Labor 

Regional Farm Labor Coordinated 

Enforcement Committee, other 

Occupational Safety and Health 

Administration and Wage and Hour 

Division task forces, and other 

committees as appropriate. 

(o) The SMA must ensure that 

outreach efforts in all significant MSFW 

ES offices are reviewed at least yearly. 

This review will include accompanying 

at least one outreach worker from each 

significant MSFW ES office on field 

visits to MSFWs’ working, living, and/ 

or gathering areas. The SMA must 

review findings from these reviews with 

the ES office managers. 

(p) The SMA must review on at least 

a quarterly basis all statistical and other 

MSFW-related data reported by ES 

offices in order: 

(1) To determine the extent to which 

the SWA has complied with the ES 

regulations; and 

(2) To identify the areas of noncompliance. 

(q) The SMA must have full access to 

all statistical and other MSFW-related 

information gathered by SWAs and ES 

offices, and may interview SWA and ES 

office staff with respect to reporting 

methods. Subsequent to each review, 

the SMA must consult, as necessary, 

with the SWA and ES offices and 

provide technical assistance to ensure 

accurate reporting. 

(r) The SMA must review and 

comment on proposed State ES 

directives, manuals, and operating 

instructions relating to MSFWs and 

must ensure: 

(1) That they accurately reflect the 

requirements of the regulations; and 

(2) That they are clear and workable. 

The SMA also must explain and make 

available at the requestor’s cost, 

pertinent directives and procedures to 

employers, employer organizations, 

farmworkers, farmworker organizations, 

and other parties expressing an interest 

in a readily identifiable directive or 

procedure issued and receive 

suggestions on how these documents 

can be improved. 

(s) The SMA must prepare for the 

State Administrator, the Regional 

Monitor Advocate, and the National 

Monitor Advocate an Annual Summary 

describing how the State provided 

employment services to MSFWs within 

the State based on statistical data, 

reviews, and other activities as required 

in this chapter. The summary must 

include: 

(1) A description of the activities 

undertaken during the program year by 

the SMA pertaining to his/her 

responsibilities set forth in this section 

and other applicable regulations in this 

chapter. 

(2) An assurance that the SMA has 

direct, personal access, whenever he/

she finds it necessary, to the State 

Administrator and that the SMA has 

status and compensation approved by 

the civil service classification system, 

and is comparable to other State 

positions assigned similar levels of 

tasks, complexity, and responsibility. 

(3) An assurance the SMA devotes all 

of his/her time to monitor advocate 

functions. Or, if the SWA proposed the 

SMA conducts his/her functions on a 

part-time basis, an explanation of how 

the SMA functions are effectively 

performed with part-time staffing. 

(4) A summary of the monitoring 

reviews conducted by the SMA, 

including: 

(i) A description of any problems, 

deficiencies, or improper practices the 

SMA identified in the delivery of 

services; 

(ii) A summary of the actions taken by 

the SWA to resolve the problems, 

deficiencies, or improper practices 

described in its service delivery; and 

(iii) A summary of any technical 

assistance the SMA provided for the 

SWA and the ES offices. 

(5) A summary of the outreach efforts 

undertaken by all significant and nonsignificant MSFW ES offices. 

(6) A summary of the State’s actions 

taken under the Complaint System 

described in part 658, subpart E, of this 

chapter, identifying any challenges, 

complaint trends, findings from reviews 

of the Complaint System, trainings 

offered throughout the year, and steps 

taken to inform MSFWs and employers, 

and farmworker advocacy groups about 

the Complaint System. 

(7) A summary of how the SMA is 

working with WIOA sec. 167 NFJP 

grantees and other organizations serving 

farmworkers, employers and employer 

organizations, in the State, and an 

assurance that the SMA is meeting at 

least quarterly with representatives of 

these organizations. 

(8) A summary of the statistical and 

other MSFW-related data and reports 

gathered by SWAs and ES offices for the 

year, including an overview of the 

SMA’s involvement in the SWA’s 

reporting systems. 

(9) A summary of the training 

conducted for SWA personnel, 

including ES office personnel, on 

techniques for accurately reporting data. 

(10) A summary of activities related to 

the AOP and an explanation of how 

those activities helped the State reach 

the goals and objectives described in the 

AOP. At the end of the 4-year AOP 

cycle, the summary must include a 

synopsis of the SWA’s achievements 

over the previous 4 years to accomplish 

the goals set forth in the AOP, and a 

description of the goals which were not 

achieved and the steps the SWA will 

take to address those deficiencies. 

(11) For significant MSFW ES offices, 

a summary of the functioning of the 

State’s affirmative action staffing 

program under § 653.111. 

§ 653.109 Data collection and performance 

accountability measures. 

SWAs must: 

(a) Collect career service indicator 

data for the career services specified in 

WIOA sec. 134(c)(2)(A)(xii). 

(b) Collect data, in accordance with 

applicable ETA Reports and Guidance, 

on: 

(1) The number of MSFWs contacted 

through outreach activities; 

(2) The number of MSFWs and nonMSFWs registered for career services; 

(3) The number of MSFWs referred to 

and placed in agricultural jobs; 

(4) The number of MSFWs referred to 

and placed in non-agricultural jobs; 

(5) The percentage of MSFW program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(6) The median earnings of MSFW 

program participants who are in 

unsubsidized employment during the 

second quarter after exit from the 

program; 

(7) The percentage of MSFW program 

participants who are in unsubsidized 

employment during the fourth quarter 

after exit from the program; 

(8) The number of MSFWs served 

who identified themselves as male, 

female, Hispanic or Latino, Black or 

African-American, American Indian or 

Alaska Native, Asian, Native Hawaiian 

or Pacific Islander, or White; 

(9) Agricultural clearance orders 

(including field checks), MSFW 

complaints and apparent violations, and 

monitoring activities; and 

(10) Any other data required by the 

Department. 

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56346 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

(c) Provide necessary training to SWA 

personnel, including ES office 

personnel, on techniques for accurately 

reporting data. 

(d) Collect and submit data on 

MSFWs required by the Unified or 

Combined State Plan, as directed by the 

Department. 

(e) Periodically verify data required to 

be collected under this section, take 

necessary steps to ensure its validity, 

and submit the data for verification to 

the Department, as directed by the 

Department. 

(f) Submit additional reports to the 

Department as directed. 

(g) Meet equity indicators that address 

ES controllable services and include, at 

a minimum, individuals referred to a 

job, receiving job development, and 

referred to supportive or career services. 

(h) Meet minimum levels of service in 

significant MSFW States. That is, only 

significant MSFW SWAs will be 

required to meet minimum levels of 

service to MSFWs. Minimum level of 

service indicators must include, at a 

minimum, individuals placed in a job, 

individuals placed long-term (150 days 

or more) in a non-agricultural job, a 

review of significant MSFW ES offices, 

field checks conducted, outreach 

contacts per week, and processing of 

complaints. The determination of the 

minimum service levels required of 

significant MSFW States for each year 

must be based on the following: 

(1) Past SWA performance in serving 

MSFWs, as reflected in on-site reviews 

and data collected under paragraph (b) 

of this section. 

(2) The need for services to MSFWs in 

the upcoming year, comparing prior and 

projected levels of MSFW activity. 

§ 653.110 Disclosure of data. 

(a) SWAs must disclose to the public, 

on written request, in conformance with 

applicable State and Federal law, the 

data collected by SWAs and ES offices 

pursuant to § 653.109, if possible within 

10 business days after receipt of the 

request. 

(b) If a request for data held by a SWA 

is made to the ETA national or regional 

office, the ETA must forward the request 

to the SWA for response. 

(c) If the SWA cannot supply the 

requested data within 10 business days 

after receipt of the request, the SWA 

must respond to the requestor in 

writing, giving the reason for the delay 

and specifying the date by which it 

expects to be able to comply. 

(d) SWA intra-agency memoranda and 

reports (or parts thereof) and 

memoranda and reports (or parts 

thereof) between the SWA and the ETA, 

to the extent that they contain 

statements of opinion rather than facts, 

may be withheld from public disclosure 

provided the reason for withholding is 

given to the requestor in writing. 

Similarly, documents or parts thereof, 

which, if disclosed, would constitute an 

unwarranted invasion of personal or 

employer privacy, also may be withheld 

provided the reason is given to the 

requestor in writing. 

§ 653.111 State Workforce Agency staffing 

requirements. 

(a) The SWA must implement and 

maintain an affirmative action program 

for staffing in significant MSFW onestop centers, and must employ ES staff 

in a manner facilitating the delivery of 

employment services tailored to the 

special needs of MSFWs, including: 

(1) The positioning of multilingual 

staff in offices serving a significant 

number of Spanish-speaking or ELL 

participants; and 

(2) The hiring of staff members from 

the MSFW community or members of 

community-based migrant programs. 

(b) The SWA must hire sufficient 

numbers of qualified, permanent 

minority staff in significant MSFW ES 

offices. SWAs will determine whether a 

‘‘sufficient number’’ of staff have been 

hired by conducting a comparison 

between the characteristics of the staff 

and the workforce and determining if 

the composition of the local office 

staff(s) is representative of the racial and 

ethnic characteristics of the workforce 

in the ES office service area(s). SWAs 

with significant MSFW ES offices, must 

undertake special efforts to recruit 

MSFWs and persons from MSFW 

backgrounds for its staff. 

(1) Where qualified minority 

applicants are not available to be hired 

as permanent staff, qualified minority 

part-time, provisional, or temporary 

staff must be hired in accordance with 

State merit system procedures, where 

applicable. 

(2) If an ES office does not have a 

sufficient number of qualified minority 

staff, the SWA must establish a goal to 

achieve sufficient staffing at the ES 

office. The SWA also must establish a 

reasonable timetable for achieving the 

staffing goal by hiring or promoting 

available, qualified staff in the underrepresented categories. In establishing 

timetables, the SWA must consider the 

vacancies anticipated through 

expansion, contraction, and turnover in 

the office(s) and available funds. All 

affirmative action programs must 

establish timetables that are designed to 

achieve the staffing goal no later than 

1year after the submission of the 

Unified or Combined State Plan or 

Annual Summary, whichever is sooner. 

Once such goals have been achieved, 

the SWA must submit a State Plan 

modification request to the Department 

with the assurance that the 

requirements of paragraph (b) of this 

section have been achieved. 

(3) The SMA, Regional Monitor 

Advocate, or the National Monitor 

Advocate, as part of his/her regular 

reviews of SWA compliance with these 

regulations, must monitor the extent to 

which the SWA has complied with its 

affirmative action program. 

Subparts C–E—[Reserved] 

Subpart F—Agricultural Recruitment 

System for U.S. Workers (ARS) 

§ 653.500 Purpose and scope of subpart. 

This subpart includes the 

requirements for the acceptance of 

intrastate and interstate job clearance 

orders which seek U.S. workers to 

perform farmwork on a temporary, less 

than year-round basis. Orders seeking 

workers to perform farmwork on a yearround basis are not subject to the 

requirements of this subpart. This 

subpart affects all job orders for workers 

who are recruited through the ES 

intrastate and interstate clearance 

systems for less than year-round 

farmwork, including both MSFWs and 

non-MSFW job seekers. 

§ 653.501 Requirements for processing 

clearance orders. 

(a) Assessment of need. No ES office 

or SWA may place a job order seeking 

workers to perform farmwork into 

intrastate or interstate clearance unless: 

(1) The ES office and employer have 

attempted and have not been able to 

obtain sufficient workers within the 

local labor market area; or 

(2) The ES office anticipates a 

shortage of local workers. 

(b) ES office responsibilities. (1) Each 

ES office must ensure the agricultural 

clearance form prescribed by the 

Department (ETA Form 790 or its 

subsequently issued form), and its 

attachments are complete when placing 

intrastate or interstate clearance orders 

seeking workers. 

(2) All clearance orders must be 

posted in accordance with applicable 

ETA guidance. If the job order for the ES 

office incorporates offices beyond the 

local office commuting area, the ES 

office must suppress the employer 

information in order to facilitate the 

orderly movement of workers within the 

ES. 

(3) ES staff must determine, through 

a preoccupancy housing inspection 

performed by ES staff or an appropriate 

public agency, that the housing assured 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56347 

by the employer is either available and 

meets the applicable housing standards 

or has been approved for conditional 

access to the clearance system as set 

forth in § 653.502; except that mobile 

range housing for sheepherders and 

goatherders must meet existing 

Departmental guidelines and/or 

applicable regulations. 

(c) SWA responsibilities. (1) SWAs 

must ensure intrastate and interstate 

clearance orders: 

(i) Include the following language: ‘‘In 

view of the statutorily established basic 

function of the ES as a no-fee labor 

exchange, that is, as a forum for bringing 

together employers and job seekers, 

neither the ETA nor the SWAs are 

guarantors of the accuracy or 

truthfulness of information contained 

on job orders submitted by employers. 

Nor does any job order accepted or 

recruited upon by the ES constitute a 

contractual job offer to which the ETA 

or a SWA is in any way a party;’’ 

(ii) Do not contain an unlawful 

discriminatory specification including, 

for beneficiaries (as defined in 29 CFR 

38.4) only, on the basis of citizenship 

status or participant status; 

(iii) Are signed by the employer; and 

(iv) State all the material terms and 

conditions of the employment, 

including: 

(A) The crop; 

(B) The nature of the work; 

(C) The anticipated period and hours 

of employment; 

(D) The anticipated starting and 

ending date of employment and the 

anticipated number of days and hours 

per week for which work will be 

available; 

(E) The hourly wage rate or the piece 

rate estimated in hourly wage rate 

equivalents for each activity and unit 

size; 

(F) Any deductions to be made from 

wages; 

(G) A specification of any nonmonetary benefits to be provided by the 

employer; 

(H) Any hours, days, or weeks for 

which work is guaranteed, and, for each 

guaranteed week of work except as 

provided in paragraph (c)(3)(i) of this 

section, the exclusive manner in which 

the guarantee may be abated due to 

weather conditions or other acts of God 

beyond the employer’s control; and 

(I) Any bonus or work incentive 

payments or other expenses which will 

be paid by the employer in addition to 

the basic wage rate, including the 

anticipated time period(s) within which 

such payments will be made. 

(2) SWAs must ensure: 

(i) The wages and working conditions 

offered are not less than the prevailing 

wages and working conditions among 

similarly employed farmworkers in the 

area of intended employment or the 

applicable Federal or State minimum 

wage, whichever is higher. If the wages 

offered are expressed as piece rates or as 

base rates and bonuses, the employer 

must make the method of calculating 

the wage and supporting materials 

available to ES staff who must check if 

the employer’s calculation of the 

estimated hourly wage rate is reasonably 

accurate and is not less than the 

prevailing wage rate or applicable 

Federal or State minimum wage, 

whichever is higher; and 

(ii) The employer has agreed to 

provide or pay for the transportation of 

the workers and their families at or 

before the end of the period of 

employment specified in the job order 

on at least the same terms as 

transportation is commonly provided by 

employers in the area of intended 

employment to farmworkers and their 

families recruited from the same area of 

supply. Under no circumstances may 

the payment or provision of 

transportation occur later than the 

departure time needed to return home to 

begin the school year, in the case of any 

worker with children 18 years old or 

younger, or be conditioned on the 

farmworker performing work after the 

period of employment specified in the 

job order. 

(3) SWAs must ensure the clearance 

order includes the following assurances: 

(i) The employer will provide to 

workers referred through the clearance 

system the number of hours of work 

cited in paragraph (c)(1)(iv)(D) of this 

section for the week beginning with the 

anticipated date of need, unless the 

employer has amended the date of need 

at least 10 business days prior to the 

original date of need (pursuant to 

paragraph (c)(3)(iv) of this section) by so 

notifying the order-holding office in 

writing (email notification may be 

acceptable). The SWA must make a 

record of this notification and must 

attempt to inform referred workers of 

the change expeditiously. 

(ii) No extension of employment 

beyond the period of employment 

specified in the clearance order may 

relieve the employer from paying the 

wages already earned, or if specified in 

the clearance order as a term of 

employment, providing transportation 

or paying transportation expenses to the 

worker’s home. 

(iii) The working conditions comply 

with applicable Federal and State 

minimum wage, child labor, social 

security, health and safety, farm labor 

contractor registration and other 

employment-related laws. 

(iv) The employer will expeditiously 

notify the order-holding office or SWA 

by emailing and telephoning 

immediately upon learning that a crop 

is maturing earlier or later, or that 

weather conditions, over-recruitment or 

other factors have changed the terms 

and conditions of employment. 

(v) The employer, if acting as a farm 

labor contractor (‘‘FLC’’) or farm labor 

contractor employee (‘‘FLCE’’) on the 

order, has a valid Federal FLC certificate 

or Federal FLCE identification card and 

when appropriate, any required State 

farm labor contractor certificate. 

(vi) The availability of no cost or 

public housing which meets the Federal 

standards and which is sufficient to 

house the specified number of workers 

requested through the clearance system. 

This assurance must cover the 

availability of housing for only those 

workers, and when applicable, family 

members who are not reasonably able to 

return to their residence in the same 

day. 

(vii) Outreach workers must have 

reasonable access to the workers in the 

conduct of outreach activities pursuant 

to § 653.107. 

(viii) The job order contains all the 

material terms and conditions of the job. 

The employer must assure this by 

signing the following statement in the 

clearance order: ‘‘This clearance order 

describes the actual terms and 

conditions of the employment being 

offered by me and contains all the 

material terms and conditions of the 

job.’’ 

(4) If a SWA discovers that an 

employer’s clearance order contains a 

material misrepresentation, the SWA 

may initiate the Discontinuation of 

Services as set forth in part 658, subpart 

F of this chapter. 

(5) If there is a change to the 

anticipated date of need and the 

employer fails to notify the orderholding office at least 10 business days 

prior to the original date of need the 

employer must pay eligible (pursuant to 

paragraph (d)(4) of this section) workers 

referred through the clearance system 

the specified hourly rate of pay, or if the 

pay is piece-rate, the higher of the 

Federal or State minimum wage for the 

first week starting with the originally 

anticipated date of need or provide 

alternative work if such alternative work 

is stated on the clearance order. If an 

employer fails to comply under this 

section the order holding office may 

notify the Department’s Wage and Hour 

Division for possible enforcement. 

(d) Processing clearance orders. (1) 

The order-holding office must transmit 

an electronic copy of the approved 

clearance order to its SWA. The SWA 

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must distribute additional electronic 

copies of the form with all attachments 

(except that the SWA may, at its 

discretion, delegate this distribution to 

the local office) as follows: 

(i) At least one copy of the clearance 

order must be sent to each of the SWAs 

selected for recruitment (areas of 

supply); 

(ii) At least one copy of the clearance 

order must be sent to each applicantholding ETA regional office; 

(iii) At least one copy of the clearance 

order must be sent to the order-holding 

ETA regional office; and 

(iv) At least one copy of the clearance 

order must be sent to the Regional Farm 

Labor Coordinated Enforcement 

Committee and/or other Occupational 

Safety and Health Administration and 

Wage and Hour Division regional 

agricultural coordinators, and/or other 

committees as appropriate in the area of 

employment. 

(2) The ES office may place an 

intrastate or interstate order seeking 

workers to perform farmwork for a 

specific farm labor contractor or for a 

worker preferred by an employer 

provided the order meets ES 

nondiscrimination criteria. The order 

would not meet such criteria, for 

example, if it requested a ‘‘white male 

crew leader’’ or ‘‘any white male crew 

leader.’’ 

(3) The approval process described in 

paragraph (d)(3) of this section does not 

apply to clearance orders that are 

attached to applications for foreign 

temporary agricultural workers pursuant 

to part 655, subpart B, of this chapter; 

such clearance orders must be sent to 

the processing center as directed by 

ETA in guidance. For non-criteria 

clearance orders (orders that are not 

attached to applications under part 655, 

subpart B, of this chapter), the ETA 

regional office must review and approve 

the order within 10 business days of its 

receipt of the order, and the Regional 

Administrator or his/her designee must 

approve the areas of supply to which 

the order will be extended. Any denial 

by the Regional Administrator or his/her 

designee must be in writing and state 

the reasons for the denial. 

(4) The applicant holding office must 

notify all referred farmworkers, farm 

labor contractors on behalf of 

farmworkers, or family heads on behalf 

of farmworker family members, to 

contact an ES office, preferably the 

order-holding office, to verify the date of 

need cited in the clearance order 

between 9 and 5 business days prior to 

the original date of need cited in the 

clearance order; and that failure to do so 

will disqualify the referred farmworker 

from the first weeks’ pay as described in 

paragraph (c)(3)(i) of this section. The 

SWA must make a record of this 

notification. 

(5) If the worker referred through the 

clearance system contacts an ES office 

(in any State) other than the order 

holding office, that ES office must assist 

the referred worker in contacting the 

order holding office on a timely basis. 

Such assistance must include, if 

necessary, contacting the order holding 

office by telephone or other timely 

means on behalf of the worker referred 

through the clearance system. 

(6) ES office staff must assist all 

farmworkers, upon request in their 

native language, to understand the terms 

and conditions of employment set forth 

in intrastate and interstate clearance 

orders and must provide such workers 

with checklists in their native language 

showing wage payment schedules, 

working conditions, and other material 

specifications of the clearance order. 

(7) If an order holding office learns 

that a crop is maturing earlier than 

expected or that other material factors, 

including weather conditions and 

recruitment levels have changed since 

the date the clearance order was 

accepted, the SWA must contact 

immediately the applicant holding 

office which must inform immediately 

crews and families scheduled to report 

to the job site of the changed 

circumstances and must adjust 

arrangements on behalf of such crews 

and families. 

(8) When there is a delay in the date 

of need, SWAs must document 

notifications by employers and contacts 

by individual farmworkers or crew 

leaders on behalf of farmworkers or 

family heads on behalf of farmworker 

family members to verify the date of 

need. 

(9) If weather conditions, overrecruitment, or other conditions have 

eliminated the scheduled job 

opportunities, the SWAs involved must 

make every effort to place the workers 

in alternate job opportunities as soon as 

possible, especially if the worker(s) is/ 

(are) already en-route or at the job site. 

ES office staff must keep records of 

actions under this section. 

(10) Applicant-holding offices must 

provide workers referred on clearance 

orders with a checklist summarizing 

wages, working conditions and other 

material specifications in the clearance 

order. Such checklists, where necessary, 

must be in the workers’ native language. 

The checklist must include language 

notifying the worker that a copy of the 

original clearance order is available 

upon request. SWAs must use a 

standard checklist format provided by 

the Department (such as in Form 

WH516 or a successor form). 

(11) The applicant-holding office 

must give each referred worker a copy 

of the list of worker’s rights described in 

the Department’s ARS Handbook. 

(12) If the labor supply SWA accepts 

a clearance order, the SWA must 

actively recruit workers for referral. In 

the event a potential labor supply SWA 

rejects a clearance order, the reasons for 

rejection must be documented and 

submitted to the Regional Administrator 

having jurisdiction over the SWA. The 

Regional Administrator will examine 

the reasons for rejection, and, if the 

Regional Administrator agrees, will 

inform the Regional Administrator with 

jurisdiction over the order-holding SWA 

of the rejection and the reasons. If the 

Regional Administrator who receives 

the notification of rejection does not 

concur with the reasons for rejection, 

that Regional Administrator will inform 

the National Monitor Advocate, who, in 

consultation with the appropriate ETA 

higher authority, will make a final 

determination on the acceptance or 

rejection of the order. 

§ 653.502 Conditional access to the 

Agricultural Recruitment System. 

(a) Filing requests for conditional 

access—(1) ‘‘Noncriteria’’ employers. 

Except as provided in paragraph (a)(2) 

of this section, an employer whose 

housing does not meet applicable 

standards may file with the ES office 

serving the area in which its housing is 

located, a written request for its 

clearance orders to be conditionally 

allowed into the intrastate or interstate 

clearance system, provided that the 

employer’s request assures its housing 

will be in full compliance with the 

requirements of the applicable housing 

standards at least 20 calendar days 

(giving the specific date) before the 

housing is to be occupied. 

(2) ‘‘Criteria’’ employers. If the request 

for conditional access described in 

paragraph (a)(1) of this section is from 

an employer filing a clearance order 

pursuant to an application for 

temporary alien agricultural labor 

certification for H–2A workers under 

subpart B of part 655 of this chapter, the 

request must be filed with the Certifying 

Officer (CO) at the processing center 

designated by ETA in guidance to make 

determinations on applications for 

temporary employment certification 

under the H–2A program. 

(3) Assurance. The employer’s request 

pursuant to paragraph (a)(1) or (2) of 

this section must contain an assurance 

that the housing will be in full 

compliance with the applicable housing 

standards at least 20 calendar days 

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(stating the specific date) before the 

housing is to be occupied. 

(b) Processing requests—(1) SWA 

processing. Upon receipt of a written 

request for conditional access to the 

intrastate or interstate clearance system 

under paragraph (a)(1) of this section, 

the ES office must send the request to 

the SWA, which, in turn, must forward 

it to the Regional Administrator. 

(2) Regional office processing and 

determination. Upon receipt of a request 

for conditional access pursuant to 

paragraph (b)(1) of this section, the 

Regional Administrator must review the 

matter and, as appropriate, must either 

grant or deny the request. 

(c) Authorization. The authorization 

for conditional access to the intrastate or 

interstate clearance system must be in 

writing, and must state that although the 

housing does not comply with the 

applicable standards, the employer’s job 

order may be placed into intrastate or 

interstate clearance until a specified 

date. The Regional Administrator must 

send the authorization to the employer 

and must send copies (hard copy or 

electronic) to the appropriate SWA and 

ES office. The employer must submit 

and the ES office must attach copies of 

the authorization to each of the 

employer’s clearance orders which is 

placed into intrastate or interstate 

clearance. 

(d) Notice of denial. If the Regional 

Administrator denies the request for 

conditional access to the intrastate or 

interstate clearance system he/she must 

provide written notice to the employer, 

the appropriate SWA, and the ES office, 

stating the reasons for the denial. 

(e) Inspection. The ES office serving 

the area containing the housing of any 

employer granted conditional access to 

the intrastate or interstate clearance 

system must assure that the housing is 

inspected no later than the date by 

which the employer has promised to 

have its housing in compliance with the 

applicable housing standards. An 

employer however, may request an 

earlier preliminary inspection. If, on the 

date set forth in the authorization, the 

housing is not in full compliance with 

the applicable housing standards as 

assured in the request for conditional 

access, the ES office must afford the 

employer 5 calendar days to bring the 

housing into full compliance. After the 

5-calendar-day period, if the housing is 

not in full compliance with the 

applicable housing standards as assured 

in the request for conditional access, the 

ES office must immediately: 

(1) Notify the RA or the NPC 

designated by the Regional 

Administrator; 

(2) Remove the employer’s clearance 

orders from intrastate and interstate 

clearance; and 

(3) If workers have been recruited 

against these orders, in cooperation with 

the ES agencies in other States, make 

every reasonable attempt to locate and 

notify the appropriate crew leaders or 

workers, and to find alternative and 

comparable employment for the 

workers. 

§ 653.503 Field checks. 

(a) If a worker is placed on a clearance 

order, the SWA must notify the 

employer in writing that the SWA, 

through its ES offices, and/or Federal 

staff, must conduct random, 

unannounced field checks to determine 

and document whether wages, hours, 

and working and housing conditions are 

being provided as specified in the 

clearance order. 

(b) Where the SWA has made 

placements on 10 or more agricultural 

clearance orders (pursuant to this 

subpart) during the quarter, the SWA 

must conduct field checks on at least 25 

percent of the total of such orders. 

Where the SWA has made placements 

on nine or fewer job orders during the 

quarter (but at least one job order), the 

SWA must conduct field checks on 100 

percent of all such orders. This 

requirement must be met on a quarterly 

basis. 

(c) Field checks must include visit(s) 

to the worksite at a time when workers 

are present. When conducting field 

checks, ES staff must consult both the 

employees and the employer to ensure 

compliance with the full terms and 

conditions of employment. 

(d) If SWA or Federal personnel 

observe or receive information, or 

otherwise have reason to believe that 

conditions are not as stated in the 

clearance order or that an employer is 

violating an employment-related law, 

the SWA must document the finding 

and attempt informal resolution where 

appropriate (for example, informal 

resolution must not be attempted in 

certain cases, such as E.O. related issues 

and others identified by the Department 

through guidance.) If the matter has not 

been resolved within 5 business days, 

the SWA must initiate the 

Discontinuation of Services as set forth 

at part 658, subpart F, of this chapter 

and must refer apparent violations of 

employment-related laws to appropriate 

enforcement agencies in writing. 

(e) SWAs may enter into formal or 

informal arrangements with appropriate 

State and Federal enforcement agencies 

where the enforcement agency staff may 

conduct field checks instead of and on 

behalf of SWA personnel. The 

agreement may include the sharing of 

information and any actions taken 

regarding violations of the terms and 

conditions of the employment as stated 

in the clearance order and any other 

violations of employment-related laws. 

An enforcement agency field check 

must satisfy the requirement for SWA 

field checks where all aspects of wages, 

hours, working and housing conditions 

have been reviewed by the enforcement 

agency. The SWA must supplement 

enforcement agency efforts with field 

checks focusing on areas not addressed 

by enforcement agencies. 

(f) ES staff must keep records of all 

field checks. 

PART 654—SPECIAL 

RESPONSIBILITIES OF THE 

EMPLOYMENT SERVICE SYSTEM 

■ 8. Revise the authority citation for part 

654 to read as follows: 

Authority: 29 U.S.C. 49k; 8 U.S.C. 

1188(c)(4); 41 Op.A.G. 406 (1959). 

■ 9. Revise subpart E of part 654 to read 

as follows: 

Subpart E—Housing for Farmworkers 

Purpose and Applicability 

Sec. 

654.400 Scope and purpose. 

654.401 Applicability. 

654.402 Variances. 

654.403 [Reserved] 

Housing Standards 

Sec. 

654.404 Housing site. 

654.405 Water supply. 

654.406 Excreta and liquid waste disposal. 

654.407 Housing. 

654.408 Screening. 

654.409 Heating. 

654.410 Electricity and lighting. 

654.411 Toilets. 

654.412 Bathing, laundry, and hand 

washing. 

654.413 Cooking and eating facilities. 

654.414 Garbage and other refuse. 

654.415 Insect and rodent control. 

654.416 Sleeping facilities. 

654.417 Fire, safety, and first aid. 

Subpart E—Housing for Farmworkers 

Purpose and Applicability 

§ 654.400 Scope and purpose. 

(a) This subpart sets forth the 

Department’s Employment and Training 

Administration (ETA) standards for 

agricultural housing and variances. 

Local Wagner-Peyser Act Employment 

Service (ES) offices, as part of the State 

ES agencies and in cooperation with the 

ES program, assist employers in 

recruiting farmworkers from places 

outside the area of intended 

employment. The experiences of the ES 

agencies indicate that employees so 

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56350 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

referred have on many occasions been 

provided with inadequate, unsafe, and 

unsanitary housing conditions. To 

discourage this practice, it is the policy 

of the Federal-State ES system to deny 

its intrastate and interstate recruitment 

services to employers until the State ES 

agency has ascertained that the 

employer’s housing meets certain 

standards. 

(b) To implement this policy, 

§ 653.501 of this chapter provides that 

recruitment services must be denied 

unless the employer has signed an 

assurance that if the workers are to be 

housed, a preoccupancy inspection has 

been conducted, and the ES staff has 

ascertained that, with respect to 

intrastate or interstate clearance orders, 

the employer’s housing meets the full 

set of standards set forth at 29 CFR 

1910.142 or this subpart, except that 

mobile range housing for sheepherders 

or goatherders must meet existing 

Departmental guidelines and/or 

applicable regulations. 

§ 654.401 Applicability. 

(a) Employers whose housing was 

completed or under construction prior 

to April 3, 1980, or was under a signed 

contract for construction prior to March 

4, 1980, may continue to follow the full 

set of the Department’s ETA standards 

set forth in this subpart. 

(b) The Department will consider 

agricultural housing which complies 

with ETA transitional standards set 

forth in this subpart also to comply with 

the Occupational Safety and Health 

Administration (OSHA) temporary labor 

camp standards at 29 CFR 1910.142. 

§ 654.402 Variances. 

(a) An employer may apply for a 

structural variance from a specific 

standard(s) in this subpart by filing a 

written application for such a variance 

with the local ES office serving the area 

in which the housing is located. This 

application must: 

(1) Clearly specify the standard(s) 

from which the variance is desired; 

(2) Adequately justify that the 

variance is necessary to obtain a 

beneficial use of an existing facility, and 

to prevent a practical difficulty or 

unnecessary hardship; and 

(3) Clearly set forth the specific 

alternative measures which the 

employer has taken to protect the health 

and safety of workers and adequately 

show that such alternative measures 

have achieved the same result as the 

standard(s) from which the employer 

desires the variance. 

(b) Upon receipt of a written request 

for a variance under paragraph (a) of 

this section, the local ES office must 

send the request to the State office 

which, in turn, must forward it to the 

ETA Regional Administrator (RA). The 

RA must review the matter and, after 

consultation with OSHA, must either 

grant or deny the request for a variance. 

(c) The variance granted by the RA 

must be in writing, must state the 

particular standard(s) involved, and 

must state as conditions of the variance 

the specific alternative measures which 

have been taken to protect the health 

and safety of the workers. The RA must 

send the approved variance to the 

employer and must send copies to 

OSHA’s Regional Administrator, the 

Regional Administrator of the Wage and 

Hour Division (WHD), and the 

appropriate State Workforce Agency 

(SWA) and the local ES office. The 

employer must submit and the local ES 

office must attach copies of the 

approved variance to each of the 

employer’s job orders which is placed 

into intrastate or interstate clearance. 

(d) If the RA denies the request for a 

variance, the RA must provide written 

notice stating the reasons for the denial 

to the employer, the appropriate SWA, 

and the local ES office. The notice also 

must offer the employer an opportunity 

to request a hearing before a Department 

of Labor Hearing Officer, provided the 

employer requests such a hearing from 

the RA within 30 calendar days of the 

date of the notice. The request for a 

hearing must be handled in accordance 

with the complaint procedures set forth 

at §§ 658.424 and 658.425 of this 

chapter. 

(e) The procedures of paragraphs (a) 

through (d) of this section only apply to 

an employer who has chosen, as 

evidenced by its written request for a 

variance, to comply with the ETA 

housing standards at §§ 654.404 through 

654.417. 

§ 654.403 [Reserved] 

Housing Standards 

§ 654.404 Housing site. 

(a) Housing sites must be well drained 

and free from depressions in which 

water may stagnate. They must be 

located where the disposal of sewage is 

provided in a manner which neither 

creates nor is likely to create a nuisance, 

or a hazard to health. 

(b) Housing must not be subject to, or 

in proximity to, conditions that create or 

are likely to create offensive odors, flies, 

noise, traffic, or any similar hazards. 

(c) Grounds within the housing site 

must be free from debris, noxious plants 

(poison ivy, etc.) and uncontrolled 

weeds or brush. 

(d) The housing site must provide a 

space for recreation reasonably related 

to the size of the facility and the type 

of occupancy. 

§ 654.405 Water supply. 

(a) An adequate and convenient 

supply of water that meets the standards 

of the State health authority must be 

provided. 

(b) A cold water tap must be available 

within 100 feet of each individual living 

unit when water is not provided in the 

unit. Adequate drainage facilities must 

be provided for overflow and spillage. 

(c) Common drinking cups are not 

permitted. 

§ 654.406 Excreta and liquid waste 

disposal. 

(a) Facilities must be provided and 

maintained for effective disposal of 

excreta and liquid waste. Raw or treated 

liquid waste may not be discharged or 

allowed to accumulate on the ground 

surface. 

(b) Where public sewer systems are 

available, all facilities for disposal of 

excreta and liquid wastes must be 

connected thereto. 

(c) Where public sewers are not 

available, a subsurface septic tankseepage system or other type of liquid 

waste treatment and disposal system, 

privies or portable toilets must be 

provided. Any requirements of the State 

health authority must be complied with. 

§ 654.407 Housing. 

(a) Housing must be structurally 

sound, in good repair, in a sanitary 

condition and must provide protection 

to the occupants against the elements. 

(b) Housing must have flooring 

constructed of rigid materials, smooth 

finished, readily cleanable, and so 

located as to prevent the entrance of 

ground and surface water. 

(c) The following space requirements 

must be provided: 

(1) For sleeping purposes only in 

family units and in dormitory 

accommodations using single beds, not 

less than 50 square feet of floor space 

per occupant; 

(2) For sleeping purposes in 

dormitory accommodations using 

double bunk beds only, not less than 40 

square feet per occupant; and 

(3) For combined cooking, eating, and 

sleeping purposes not less than 60 

square feet of floor space per occupant. 

(d) Housing used for families with one 

or more children over 6 years of age 

must have a room or partitioned 

sleeping area for the husband and wife. 

The partition must be of rigid materials 

and installed so as to provide reasonable 

privacy. 

(e) Separate sleeping accommodations 

must be provided for each sex or each 

family. 

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(f) Adequate and separate 

arrangements for hanging clothing and 

storing personal effects for each person 

or family must be provided. 

(g) At least one-half of the floor area 

in each living unit must have a 

minimum ceiling height of 7 feet. No 

floor space may be counted toward 

minimum requirements where the 

ceiling height is less than 5 feet. 

(h) Each habitable room (not 

including partitioned areas) must have 

at least one window or skylight opening 

directly to the out-of-doors. The 

minimum total window or skylight area, 

including windows in doors, must equal 

at least 10 percent of the usable floor 

area. The total openable area must equal 

at least 45 percent of the minimum 

window or skylight area required, 

except where comparably adequate 

ventilation is supplied by mechanical or 

some other method. 

§ 654.408 Screening. 

(a) All outside openings must be 

protected with screening of not less than 

16 mesh. 

(b) All screen doors must be tight 

fitting, in good repair, and equipped 

with self-closing devices. 

§ 654.409 Heating. 

(a) All living quarters and service 

rooms must be provided with properly 

installed, operable heating equipment 

capable of maintaining a temperature of 

at least 68 degrees Fahrenheit (°F) if 

during the period of normal occupancy 

the temperature in such quarters falls 

below 68 °F. 

(b) Any stoves or other sources of heat 

utilizing combustible fuel must be 

installed and vented in such a manner 

as to prevent fire hazards and a 

dangerous concentration of gases. No 

portable heaters other than those 

operated by electricity may be provided. 

If a solid or liquid fuel stove is used in 

a room with wooden or other 

combustible flooring, there must be a 

concrete slab, insulated metal sheet, or 

other fireproof material on the floor 

under each stove, extending at least 18 

inches beyond the perimeter of the base 

of the stove. 

(c) Any wall or ceiling within 18 

inches of a solid or liquid fuel stove or 

a stovepipe must be of fireproof 

material. A vented metal collar must be 

installed around a stovepipe, or vent 

passing through a wall, ceiling, floor, or 

roof. 

(d) When a heating system has 

automatic controls, the controls must be 

of the type which cut off the fuel supply 

upon the failure or interruption of the 

flame or ignition, or whenever a 

predetermined safe temperature or 

pressure is exceeded. 

§ 654.410 Electricity and lighting. 

(a) All housing sites must be provided 

with electric service. 

(b) Each habitable room and all 

common use rooms, and areas such as: 

laundry rooms, toilets, privies, 

hallways, stairways, etc., must contain 

adequate ceiling or wall-type light 

fixtures. At least one wall-type electrical 

convenience outlet must be provided in 

each individual living room. 

(c) Adequate lighting must be 

provided for the yard area, and 

pathways to common use facilities. 

(d) All wiring and lighting fixtures 

must be installed and maintained in a 

safe condition. 

§ 654.411 Toilets. 

(a) Toilets must be constructed, 

located, and maintained so as to prevent 

any nuisance or public health hazard. 

(b) Water closets or privy seats for 

each sex must be in the ratio of not less 

than one such unit for each 15 

occupants, with a minimum of one unit 

for each sex in common use facilities. 

(c) Urinals, constructed of 

nonabsorbent materials, may be 

substituted for men’s toilet seats on the 

basis of one urinal or 24 inches of 

trough-type urinal for one toilet seat up 

to a maximum of one-third of the 

required toilet seats. 

(d) Except in individual family units, 

separate toilet accommodations for men 

and women must be provided. If toilet 

facilities for men and women are in the 

same building, they must be separated 

by a solid wall from floor to roof or 

ceiling. Toilets must be distinctly 

marked ‘‘men’’ and ‘‘women’’ in English 

and in the native language of the 

persons expected to occupy the housing. 

(e) Where common use toilet facilities 

are provided, an adequate and 

accessible supply of toilet tissue, with 

holders, must be furnished. 

(f) Common use toilets and privies 

must be well lighted and ventilated and 

must be clean and sanitary. 

(g) Toilet facilities must be located 

within 200 feet of each living unit. 

(h) Privies may not be located closer 

than 50 feet from any living unit or any 

facility where food is prepared or 

served. 

(i) Privy structures and pits must be 

fly-tight. Privy pits must have adequate 

capacity for the required seats. 

§ 654.412 Bathing, laundry, and hand 

washing. 

(a) Bathing and hand washing 

facilities, supplied with hot and cold 

water under pressure, must be provided 

for the use of all occupants. These 

facilities must be clean and sanitary and 

located within 200 feet of each living 

unit. 

(b) There must be a minimum of 1 

showerhead per 15 persons. 

Showerheads must be spaced at least 3 

feet apart, with a minimum of 9 square 

feet of floor space per unit. Adequate, 

dry dressing space must be provided in 

common use facilities. Shower floors 

must be constructed of nonabsorbent 

nonskid materials and sloped to 

properly constructed floor drains. 

Except in individual family units, 

separate shower facilities must be 

provided each sex. When common use 

shower facilities for both sexes are in 

the same building they must be 

separated by a solid nonabsorbent wall 

extending from the floor to ceiling, or 

roof, and must be plainly designated 

‘‘men’’ or ‘‘women’’ in English and in 

the native language of the persons 

expected to occupy the housing. 

(c) Lavatories or equivalent units must 

be provided in a ratio of 1 per 15 

persons. 

(d) Laundry facilities, supplied with 

hot and cold water under pressure, must 

be provided for the use of all occupants. 

Laundry trays or tubs must be provided 

in the ratio of 1 per 25 persons. 

Mechanical washers may be provided in 

the ratio of 1 per 50 persons in lieu of 

laundry trays, although a minimum of 1 

laundry tray per 100 persons must be 

provided in addition to the mechanical 

washers. 

§ 654.413 Cooking and eating facilities. 

(a) When workers or their families are 

permitted or required to cook in their 

individual unit, a space must be 

provided and equipped for cooking and 

eating. Such space must be provided 

with: 

(1) A cookstove or hot plate with a 

minimum of two burners; 

(2) Adequate food storage shelves and 

a counter for food preparation; 

(3) Provisions for mechanical 

refrigeration of food at a temperature of 

not more than 45 °F; 

(4) A table and chairs or equivalent 

seating and eating arrangements, all 

commensurate with the capacity of the 

unit; and 

(5) Adequate lighting and ventilation. 

(b) When workers or their families are 

permitted or required to cook and eat in 

a common facility, a room or building 

separate from the sleeping facilities 

must be provided for cooking and 

eating. Such room or building must be 

provided with: 

(1) Stoves or hot plates, with a 

minimum equivalent of 2 burners, in a 

ratio of 1 stove or hot plate to 10 

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persons, or 1 stove or hot plate to 2 

families; 

(2) Adequate food storage shelves and 

a counter for food preparation; 

(3) Mechanical refrigeration for food 

at a temperature of not more than 45 °F; 

(4) Tables and chairs or equivalent 

seating adequate for the intended use of 

the facility; 

(5) Adequate sinks with hot and cold 

water under pressure; 

(6) Adequate lighting and ventilation; 

and 

(7) Floors must be of nonabsorbent, 

easily cleaned materials. 

(c) When central mess facilities are 

provided, the kitchen and mess hall 

must be in proper proportion to the 

capacity of the housing and must be 

separate from the sleeping quarters. The 

physical facilities, equipment, and 

operation must be in accordance with 

provisions of applicable State codes. 

(d) Wall surface adjacent to all food 

preparation and cooking areas must be 

of nonabsorbent, easily cleaned 

material. In addition, the wall surface 

adjacent to cooking areas must be of 

fire-resistant material. 

§ 654.414 Garbage and other refuse. 

(a) Durable, fly-tight, clean containers 

in good condition of a minimum 

capacity of 20 gallons, must be provided 

adjacent to each housing unit for the 

storage of garbage and other refuse. 

Such containers must be provided in a 

minimum ratio of 1 per 15 persons. 

(b) Provisions must be made for 

collection of refuse at least twice a 

week, or more often if necessary. The 

disposal of refuse, which includes 

garbage, must be in accordance with 

State and local law. 

§ 654.415 Insect and rodent control. 

Housing and facilities must be free of 

insects, rodents, and other vermin. 

§ 654.416 Sleeping facilities. 

(a) Sleeping facilities must be 

provided for each person. Such facilities 

must consist of comfortable beds, cots, 

or bunks, provided with clean 

mattresses. 

(b) Any bedding provided by the 

housing operator must be clean and 

sanitary. 

(c) Triple deck bunks may not be 

provided. 

(d) The clear space above the top of 

the lower mattress of a double deck 

bunk and the bottom of the upper bunk 

must be a minimum of 27 inches. The 

distance from the top of the upper 

mattress to the ceiling must be a 

minimum of 36 inches. 

(e) Beds used for double occupancy 

may be provided only in family 

accommodations. 

§ 654.417 Fire, safety, and first aid. 

(a) All buildings in which people 

sleep or eat must be constructed and 

maintained in accordance with 

applicable State or local fire and safety 

laws. 

(b) In family housing and housing 

units for less than 10 persons, of one 

story construction, two means of escape 

must be provided. One of the two 

required means of escape may be a 

readily accessible window with an 

openable space of not less than 24 × 24 

inches. 

(c) All sleeping quarters intended for 

use by 10 or more persons, central 

dining facilities, and common assembly 

rooms must have at least two doors 

remotely separated so as to provide 

alternate means of escape to the outside 

or to an interior hall. 

(d) Sleeping quarters and common 

assembly rooms on the second story 

must have a stairway, and a permanent, 

affixed exterior ladder or a second 

stairway. 

(e) Sleeping and common assembly 

rooms located above the second story 

must comply with the State and local 

fire and building codes relative to 

multiple story dwellings. 

(f) Fire extinguishing equipment must 

be provided in a readily accessible place 

located not more than 100 feet from 

each housing unit. Such equipment 

must provide protection equal to a 21⁄2

gallon stored pressure or 5-gallon pumptype water extinguisher. 

(g) First aid facilities must be 

provided and readily accessible for use 

at all time. Such facilities must be 

equivalent to the 16 unit first aid kit 

recommended by the American Red 

Cross, and provided in a ratio of 1 per 

50 persons. 

(h) No flammable or volatile liquids or 

materials must be stored in or adjacent 

to rooms used for living purposes, 

except for those needed for current 

household use. 

(i) Agricultural pesticides and toxic 

chemicals may not be stored in the 

housing area. 

■ 10. Revise part 658 to read as follows: 

PART 658—ADMINISTRATIVE 

PROVISIONS GOVERNING THE 

WAGNER–PEYSER ACT 

EMPLOYMENT SERVICE 

Subpart A–D—[Reserved] 

Subpart E—Employment Service and 

Employment-Related Law Complaint 

System (Complaint System) 

Sec. 

658.400 Purpose and scope of subpart. 

Complaints Filed at the Local and State 

Level 

Sec. 

658.410 Establishment of local and State 

complaint systems. 

658.411 Action on complaints. 

658.417 State hearings. 

658.418 Decision of the State hearing 

official. 

658.419 Apparent violations. 

When a Complaint Rises to the Federal Level 

Sec. 

658.420 Responsibilities of the 

Employment and Training 

Administration regional office. 

658.421 Handling of Wagner-Peyser Act 

Employment Service regulation-related 

complaints. 

658.422 Handling of employment-related 

law complaints by the Regional 

Administrator. 

658.424 Proceedings before the Office of 

Administrative Law Judges. 

658.425 Decision of Department of Labor 

Administrative Law Judge. 

658.426 Complaints against the United 

States Employment Service. 

Subpart F—Discontinuation of Services to 

Employers by the Wagner-Peyser Act 

Employment Service 

Sec. 

658.500 Scope and purpose of subpart. 

658.501 Basis for discontinuation of 

services. 

658.502 Notification to employers. 

658.503 Discontinuation of services. 

658.504 Reinstatement of services. 

Subpart G—Review and Assessment of 

State Workforce Agency Compliance With 

Employment Service Regulations 

Sec. 

658.600 Scope and purpose of subpart. 

658.601 State Workforce Agency 

responsibility. 

658.602 Employment and Training 

Administration National Office 

responsibility. 

658.603 Employment and Training 

Administration Regional Office 

responsibility. 

658.604 Assessment and evaluation of 

program performance data. 

658.605 Communication of findings to State 

agencies. 

Subpart H—Federal Application of Remedial 

Action to State Workforce Agencies 

Sec. 

658.700 Scope and purpose of subpart. 

658.701 Statements of policy. 

658.702 Initial action by the Regional 

Administrator. 

658.703 Emergency corrective action. 

658.704 Remedial actions. 

658.705 Decision to decertify. 

658.706 Notice of decertification. 

658.707 Requests for hearings. 

658.708 Hearings. 

658.709 Conduct of hearings. 

658.710 Decision of the Administrative 

Law Judge. 

658.711 Decision of the Administrative 

Review Board. 

Authority: Secs. 189, 503, Pub. L. 113– 

128, 128 Stat. 1425 (Jul. 22, 2014); 29 U.S.C. 

chapter 4B. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56353 

Subpart A–D—[Reserved] 

Subpart E—Employment Service and 

Employment-Related Law Complaint 

System (Complaint System) 

§ 658.400 Purpose and scope of subpart. 

(a) This subpart sets forth the 

regulations governing the Complaint 

System for the Wagner-Peyser Act 

Employment Service (ES) at the State 

and Federal levels. Specifically, the 

Complaint System handles complaints 

against an employer about the specific 

job to which the applicant was referred 

through the ES and complaints 

involving the failure to comply with the 

ES regulations under parts 651, 652, 

653, and 654 of this chapter and this 

part. As noted in § 658.411(d)(6), this 

subpart only covers ES-related 

complaints made within 2 years of the 

alleged violation. 

(b) Any complaints alleging violations 

under the Unemployment Insurance 

program, under Workforce Innovation 

and Opportunity Act (WIOA) title I 

programs, or complaints by veterans 

alleging employer violations of the 

mandatory listing requirements under 

38 U.S.C. 4212 are not covered by this 

subpart and must be referred to the 

appropriate administering agency which 

would follow the procedures set forth in 

the respective regulations. 

(c) The Complaint System also 

accepts, refers, and, under certain 

circumstances, tracks complaints 

involving employment-related laws as 

defined in § 651.10 of this chapter. 

(d) A complainant may designate an 

individual to act as his/her 

representative. 

Complaints Filed at the Local and State 

Level 

§ 658.410 Establishment of local and State 

complaint systems. 

(a) Each State Workforce Agency 

(SWA) must establish and maintain a 

Complaint System pursuant to this 

subpart. 

(b) The State Administrator must have 

overall responsibility for the operation 

of the Complaint System. At the ES 

office level the manager must be 

responsible for the operation of the 

Complaint System. 

(c) SWAs must ensure centralized 

control procedures are established for 

the processing of complaints. The 

manager of the ES office and the SWA 

Administrator must ensure a central 

complaint log is maintained, listing all 

complaints taken by the ES office or the 

SWA, and specifying for each 

complaint: 

(1) The name of the complainant; 

(2) The name of the respondent 

(employer or State agency); 

(3) The date the complaint is filed; 

(4) Whether the complaint is by or on 

behalf of a migrant and seasonal 

farmworker (MSFW); 

(5) Whether the complaint concerns 

an employment-related law or the ES 

regulations; and 

(6) The action taken and whether the 

complaint has been resolved. 

(d) State agencies must ensure 

information pertaining to the use of the 

Complaint System is publicized, which 

must include, but is not limited to, the 

prominent display of an Employment 

and Training Administration (ETA)- 

approved Complaint System poster in 

each one-stop center. 

(e) Each one-stop center must ensure 

there is appropriate staff available 

during regular office hours to take 

complaints. 

(f) Complaints may be accepted in any 

one-stop center, or by a State Workforce 

Agency, or elsewhere by an outreach 

worker. 

(g) All complaints filed through the 

local ES office must be handled by a 

trained Complaint System 

representative. 

(h) All complaints received by a SWA 

must be assigned to a State agency 

official designated by the State 

Administrator, provided that the State 

agency official designated to handle 

MSFW complaints must be the State 

Monitor Advocate (SMA). 

(i) State agencies must ensure any 

action taken by the Complaint System 

representative, including referral on a 

complaint from an MSFW is fully 

documented containing all relevant 

information, including a notation of the 

type of each complaint pursuant to 

Department guidance, a copy of the 

original complaint form, a copy of any 

ES-related reports, any relevant 

correspondence, a list of actions taken, 

a record of pertinent telephone calls and 

all correspondence relating thereto. 

(j) Within 1 month after the end of the 

calendar quarter, the ES office manager 

must transmit an electronic copy of the 

quarterly Complaint System log 

described in paragraph (c) of this 

section to the SMA. These logs must be 

made available to the Department upon 

request. 

(k) The appropriate SWA or ES office 

representative handling a complaint 

must offer to assist the complainant 

through the provision of appropriate 

services. 

(l) The State Administrator must 

establish a referral system for cases 

where a complaint is filed alleging a 

violation that occurred in the same State 

but through a different ES office. 

(m) Follow-up on unresolved 

complaints. When a complaint is 

submitted or referred to a SWA, the 

Complaint System representative (where 

the complainant is an MSFW, the 

Complaint System representative will be 

the SMA), must follow-up monthly 

regarding MSFW complaints, and must 

inform the complainant of the status of 

the complaint. No follow-up with the 

complainant is required for non-MSFW 

complaints. 

(n) When a complainant is an English 

Language Learner (ELL), all written 

correspondence with the complainant 

under part 658, subpart E must include 

a translation into the complainant’s 

native language. 

(o) A complainant may designate an 

individual to act as his/her 

representative throughout the filing and 

processing of a complaint. 

§ 658.411 Action on complaints. 

(a) Filing complaints. (1) Whenever an 

individual indicates an interest in filing 

a complaint under this subpart with an 

ES office or SWA representative, or an 

outreach worker, the individual 

receiving the complaint must offer to 

explain the operation of the Complaint 

System and must offer to take the 

complaint in writing. 

(2) During the initial discussion with 

the complainant, the staff taking the 

complaint must: 

(i) Make every effort to obtain all the 

information he/she perceives to be 

necessary to investigate the complaint; 

(ii) Request that the complainant 

indicate all of the physical addresses, 

email, and telephone numbers through 

which he/she might be contacted during 

the investigation of the complaint; and 

(iii) Request that the complainant 

contact the Complaint System 

representative before leaving the area if 

possible, and explain the need to 

maintain contact during the 

investigation. 

(3) The staff must ensure the 

complainant (or his/her representative) 

submits the complaint on the 

Complaint/Referral Form or another 

complaint form prescribed or approved 

by the Department or submits complaint 

information which satisfies paragraph 

(a)(4) of this section. The Complaint/

Referral Form must be used for all 

complaints, including complaints about 

unlawful discrimination, except as 

provided in paragraph (a)(4) of this 

section. The staff must offer to assist the 

complainant in filling out the form and 

submitting all necessary information, 

and must do so if the complainant 

desires such assistance. If the 

complainant also represents several 

other complainants, all such 

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56354 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

complainants must be named. The 

complainant, or his/her representative, 

must sign the completed form in writing 

or electronically. The identity of the 

complainant(s) and any persons who 

furnish information relating to, or 

assisting in, an investigation of a 

complaint must be kept confidential to 

the maximum extent possible, 

consistent with applicable law and a fair 

determination of the complaint. A copy 

of the completed complaint submission 

must be given to the complainant(s), 

and the complaint form must be given 

to the appropriate Complaint System 

representative described in § 658.410(g). 

(4) Any complaint in a reasonable 

form (letter or email) which is signed by 

the complainant, or his/her 

representative, and includes sufficient 

information to initiate an investigation 

must be treated as if it were a properly 

completed Complaint/Referral Form 

filed in person. A letter (via hard copy 

or email) confirming the complaint was 

received must be sent to the 

complainant and the document must be 

sent to the appropriate Complaint 

System representative. The Complaint 

System representative must request 

additional information from the 

complainant if the complainant has not 

provided sufficient information to 

investigate the matter expeditiously. 

(b) Complaints regarding an 

employment-related law. (1) When a 

complaint is filed regarding an 

employment-related law with a ES 

office or a SWA the office must 

determine if the complainant is an 

MSFW. 

(i) If the complainant is a non-MSFW, 

the office must immediately refer the 

complainant to the appropriate 

enforcement agency, another public 

agency, a legal aid organization, and/or 

a consumer advocate organization, as 

appropriate, for assistance. Upon 

completing the referral the local or State 

representative is not required to followup with the complainant. 

(ii) If the complainant is a MSFW, the 

ES office or SWA Complaint System 

representative must: 

(A) Take from the MSFW or his/her 

representative, in writing (hard copy or 

electronic), the complaint(s) describing 

the alleged violation(s) of the 

employment-related law(s); and 

(B) Attempt to resolve the issue 

informally at the local level, except in 

cases where the complaint was 

submitted to the SWA and the SMA 

determines that he/she must take 

immediate action and except in cases 

where informal resolution at the local 

level would be detrimental to the 

complainant(s). In cases where informal 

resolution at the local level would be 

detrimental to the complainant(s), the 

Complaint System Representative or 

SMA (depending on where the 

complaint was filed) must immediately 

refer the complaint to the appropriate 

enforcement agency. Concurrently, the 

Complaint System representative must 

offer to refer the MSFW to other 

employment services should the MSFW 

be interested. 

(C) If the issue is not resolved within 

5 business days, the Complaint System 

representative must refer the complaint 

to the appropriate enforcement agency 

(or another public agency, a legal aid 

organization, or a consumer advocate 

organization, as appropriate) for further 

assistance. 

(D) If the ES office or SWA Complaint 

System representative determines that 

the complaint must be referred to a State 

or Federal agency, he/she must refer the 

complaint to the SMA who must 

immediately refer the complaint to the 

appropriate enforcement agency for 

prompt action. 

(E) If the complaint was referred to 

the SMA under paragraph (b)(1)(ii)(D) of 

this section, the representative must 

provide the SMA’s contact information 

to the complainant. The SMA must 

notify the complainant of the 

enforcement agency to which the 

complaint was referred. 

(2) If an enforcement agency makes a 

final determination that the employer 

violated an employment-related law and 

the complaint is connected to a job 

order, the SWA must initiate procedures 

for discontinuation of services 

immediately in accordance with subpart 

F of this part. If this occurs, the SWA 

must notify the complainant and the 

employer of this action. 

(c) Complaints alleging a violation of 

rights under the Equal Employment 

Opportunity Commission (EEOC) 

regulations or enforced by the 

Department of Labor’s Civil Rights 

Center (CRC). (1) All complaints 

received by a ES office or a SWA 

alleging unlawful discrimination, as 

well as reprisal for protected activity, in 

violation of EEOC regulations, must be 

logged and immediately referred to 

either a local Equal Opportunity (EO) 

representative, the State EO 

representative, or the EEOC. The 

Complaint System representative must 

notify the complainant of the referral in 

writing. 

(2) Any complaints received either at 

the local and State level or at the ETA 

regional office, that allege violations of 

civil rights laws and regulations such as 

those under title VI of the Civil Rights 

Act or sec. 188 of WIOA, including for 

beneficiaries (as defined in 29 CFR 38.4) 

only, on the basis of citizenship status 

or participant status, as well as reprisal 

for protected activity, must immediately 

be logged and directed or forwarded to 

the recipient’s Equal Opportunity 

Officer or the CRC. 

(d) Complaints regarding the ES 

regulations (ES complaints). (1) When 

an ES complaint is filed with a ES office 

or a SWA the following procedures 

apply: 

(i) When an ES complaint is filed 

against an employer, the proper office to 

handle the complaint is the ES office 

serving the area in which the employer 

is located. 

(ii) When a complaint is against an 

employer in another State or against 

another SWA: 

(A) The ES office or SWA receiving 

the complaint must send, after ensuring 

that the Complaint/Referral Form is 

adequately completed, a copy of the 

Complaint/Referral Form and copies of 

any relevant documents to the SWA in 

the other State. Copies of the referral 

letter must be sent to the complainant, 

and copies of the complaint and referral 

letter must be sent to the ETA Regional 

Office(s) with jurisdiction over the 

transferring and receiving State 

agencies. All such copies must be sent 

via hard copy or electronic mail. 

(B) The SWA receiving the complaint 

must handle the complaint as if it had 

been initially filed with that SWA. 

(C) The ETA regional office with 

jurisdiction over the receiving SWA 

must follow-up with it to ensure the 

complaint is handled in accordance 

with these regulations. 

(D) If the complaint is against more 

than one SWA, the complaint must so 

clearly state. Additionally, the 

complaints must be processed as 

separate complaints and must be 

handled according to procedures in this 

paragraph (d). 

(iii) When an ES complaint is filed 

against a ES office, the proper office to 

handle the complaint is the ES office 

serving the area in which the alleged 

violation occurred. 

(iv) When an ES complaint is filed 

against more than one ES offices and is 

in regard to an alleged agency-wide 

violation the SWA representative or his/ 

her designee must process the 

complaint. 

(v) When a complaint is filed alleging 

a violation that occurred in the same 

State but through a different ES office, 

the ES office where the complaint is 

filed must ensure that the Complaint/

Referral Form is adequately completed 

and send the form to the appropriate 

local ES office for tracking, further 

referral if necessary, and follow-up. A 

copy of the referral letter must be sent 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56355 

to the complainant via hard copy or 

electronic mail. 

(2)(i) If a complaint regarding an 

alleged violation of the ES regulations is 

filed in a ES office by either a nonMSFW or MSFW, or their 

representative(s) (or if all necessary 

information has been submitted to the 

office pursuant to paragraph (a)(4) of 

this section), the appropriate ES office 

Complaint System representative must 

investigate and attempt to resolve the 

complaint immediately upon receipt. 

(ii) If resolution has not been achieved 

to the satisfaction of the complainant 

within 15 working days after receipt of 

the complaint, or 5 working days with 

respect to complaints filed by or on 

behalf of MSFWs, (or after all necessary 

information has been submitted to the 

ES office pursuant to paragraph (a)(4) of 

this section), the Complaint System 

representative must send the complaint 

to the SWA for resolution or further 

action. 

(iii) The ES office must notify the 

complainant and the respondent, in 

writing (via hard copy or electronic 

mail), of the determination (pursuant to 

paragraph (d)(5) of this section) of its 

investigation under paragraph (d)(2)(i) 

of this section, or of the referral to the 

SWA (if referred). 

(3) When a non-MSFW or his/her 

representative files a complaint 

regarding the ES regulations with a 

SWA, or when a non-MSFW complaint 

is referred from a ES office the following 

procedures apply: 

(i) If the complaint is not transferred 

to an enforcement agency under 

paragraph (b)(1)(i) of this section the 

Complaint System representative must 

investigate and attempt to resolve the 

complaint immediately upon receipt. 

(ii) If resolution at the SWA level has 

not been accomplished within 30 

working days after the complaint was 

received by the SWA (or after all 

necessary information has been 

submitted to the SWA pursuant to 

paragraph (a)(4) of this section), whether 

the complaint was received directly or 

from a ES office pursuant to paragraph 

(d)(2)(ii) of this section, the SWA must 

make a written determination regarding 

the complaint and must send electronic 

copies to the complainant and the 

respondent. The determination must 

follow the procedures set forth in 

paragraph (d)(5) of this section. 

(4)(i) When a MSFW or his/her 

representative files a complaint 

regarding the ES regulations directly 

with a SWA, or when a MSFW 

complaint is referred from a ES office, 

the SMA must investigate and attempt 

to resolve the complaint immediately 

upon receipt and may, if necessary, 

conduct a further investigation. 

(ii) If resolution at the SWA level has 

not been accomplished within 20 

business days after the complaint was 

received by the SWA (or after all 

necessary information has been 

submitted to the SWA pursuant to 

paragraph (a)(4) of this section), the 

SMA must make a written 

determination regarding the complaint 

and must send electronic copies to the 

complainant and the respondent. The 

determination must follow the 

procedures set forth in paragraph (d)(5) 

of this section. 

(5)(i) All written determinations by ES 

or SWA officials on complaints under 

the ES regulations must be sent by 

certified mail (or another legally viable 

method) and a copy of the 

determination may be sent via 

electronic mail. The determination must 

include all of the following: 

(A) The results of any SWA 

investigation; 

(B) The conclusions reached on the 

allegations of the complaint; 

(C) If a resolution was not reached, an 

explanation of why the complaint was 

not resolved; and 

(D) If the complaint is against the 

SWA, an offer to the complainant of the 

opportunity to request, in writing, a 

hearing within 20 business days after 

the certified date of receipt of the 

notification. 

(ii) If the SWA determines that the 

employer has not violated the ES 

regulations, the SWA must offer to the 

complainant the opportunity to request 

a hearing within 20 working days after 

the certified date of receipt of the 

notification. 

(iii) If the SWA, within 20 business 

days from the certified date of receipt of 

the notification provided for in 

paragraph (d)(5) of this section, receives 

a written request (via hard copy or 

electronic mail) for a hearing, the SWA 

must refer the complaint to a State 

hearing official for hearing. The SWA 

must, in writing (via hard copy or 

electronic mail), notify the respective 

parties to whom the determination was 

sent that: 

(A) The parties will be notified of the 

date, time, and place of the hearing; 

(B) The parties may be represented at 

the hearing by an attorney or other 

representative; 

(C) The parties may bring witnesses 

and/or documentary evidence to the 

hearing; 

(D) The parties may cross-examine 

opposing witnesses at the hearing; 

(E) The decision on the complaint 

will be based on the evidence presented 

at the hearing; 

(F) The State hearing official may 

reschedule the hearing at the request of 

a party or its representative; and 

(G) With the consent of the SWA’s 

representative and of the State hearing 

official, the party who requested the 

hearing may withdraw the request for 

hearing in writing before the hearing. 

(iv) If the State agency makes a final 

determination that the employer who 

has or is currently using the ES has 

violated the ES regulations, the 

determination, pursuant to paragraph 

(d)(5) of this section, must state that the 

State will initiate procedures for 

discontinuation of services to the 

employer in accordance with subpart F 

of this part. 

(6) A complaint regarding the ES 

regulations must be handled to 

resolution by these regulations only if it 

is made within 2 years of the alleged 

occurrence. 

(e) Resolution of complaints. A 

complaint is considered resolved when: 

(1) The complainant indicates 

satisfaction with the outcome via 

written correspondence; 

(2) The complainant chooses not to 

elevate the complaint to the next level 

of review; 

(3) The complainant or the 

complainant’s authorized representative 

fails to respond to a request for 

information under paragraph (a)(4) of 

this section within 20 working days or, 

in cases where the complainant is an 

MSFW, 40 working days of a written 

request by the appropriate ES office or 

State agency; 

(4) The complainant exhausts all 

available options for review; or 

(5) A final determination has been 

made by the enforcement agency to 

which the complaint was referred. 

(f) Reopening of case after resolution. 

If the complainant or the complainant’s 

authorized representative fails to 

respond pursuant to paragraph (e)(3) of 

this section, the complainant or the 

complainant’s authorized representative 

may reopen the case within 1 year after 

the SWA has closed the case. 

§ 658.417 State hearings. 

(a) The hearing described in 

§ 658.411(d)(5) must be held by State 

hearing officials. A State hearing official 

may be any State official authorized to 

hold hearings under State law. 

Examples of hearing officials are 

referees in State unemployment 

compensation hearings and officials of 

the State agency authorized to preside at 

State administrative hearings. 

(b) The State hearing official may 

decide to conduct hearings on more 

than one complaint concurrently if he/ 

she determines that the issues are 

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56356 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

related or that the complaints will be 

handled more expeditiously if 

conducted together. 

(c) The State hearing official, upon the 

referral of a case for a hearing, must: 

(1) Notify all involved parties of the 

date, time, and place of the hearing; and 

(2) Reschedule the hearing, as 

appropriate. 

(d) In conducting a hearing, the State 

hearing official must: 

(1) Regulate the course of the hearing; 

(2) Issue subpoenas if necessary, 

provided the official has the authority to 

do so under State law; 

(3) Ensure that all relevant issues are 

considered; 

(4) Rule on the introduction of 

evidence and testimony; and 

(5) Take all actions necessary to 

ensure an orderly proceeding. 

(e) All testimony at the hearing must 

be recorded and may be transcribed 

when appropriate. 

(f) The parties must be afforded the 

opportunity to present, examine, and 

cross-examine witnesses. 

(g) The State hearing official may 

elicit testimony from witnesses, but may 

not act as advocate for any party. 

(h) The State hearing official must 

receive and include in the record, 

documentary evidence offered by any 

party and accepted at the hearing. 

Copies thereof must be made available 

by the party submitting the document to 

other parties to the hearing upon 

request. 

(i) Federal and State rules of evidence 

do not apply to hearings conducted 

pursuant to this section; however rules 

or principles designed to assure 

production of the most credible 

evidence available and to subject 

testimony to test by cross-examination, 

must be applied where reasonably 

necessary by the State hearing official. 

The State hearing official may exclude 

irrelevant, immaterial, or unduly 

repetitious evidence. 

(j) The case record, or any portion 

thereof, must be available for inspection 

and copying by any party at, prior to, or 

subsequent to the hearing upon request. 

Special procedures may be used for 

disclosure of medical and psychological 

records such as disclosure to a 

physician designated by the individual. 

(k) The State hearing official must, if 

feasible, resolve the dispute at any time 

prior to the conclusion of the hearing. 

(l) At the State hearing official’s 

discretion, other appropriate 

individuals, organizations, or 

associations may be permitted to 

participate in the hearing as amicus 

curiae (friends of the court) with respect 

to any legal or factual issues relevant to 

the complaint. Any documents 

submitted by the amicus curiae must be 

included in the record. 

(m) If the parties to the hearing are 

located in more than one State or are 

located in the same State but access to 

the hearing location is extremely 

inconvenient for one or more parties as 

determined by the State hearing official, 

the hearing official must: 

(1) Whenever possible, hold a single 

hearing at a location convenient to all 

parties or their representatives wishing 

to appear and present evidence, with all 

such parties and/or their representatives 

present. 

(2) If a hearing location cannot be 

established by the State hearing official 

under paragraph (m)(1) of this section, 

the State hearing official may conduct, 

with the consent of the parties, the 

hearing by a telephone conference call 

from a State agency office. If the hearing 

is conducted via telephone conference 

call the parties and their representatives 

must have the option to participate in 

person or via telephone. 

(3) Where the State agency is not able, 

for any reason, to conduct a telephonic 

hearing under paragraph (m)(2) of this 

section, the State agencies in the States 

where the parties are located must take 

evidence and hold the hearing in the 

same manner as used for appealed 

interstate unemployment claims in 

those States, to the extent that such 

procedures are consistent with this 

section. 

§ 658.418 Decision of the State hearing 

official. 

(a) The State hearing official may: 

(1) Rule that it lacks jurisdiction over 

the case; 

(2) Rule that the complaint has been 

withdrawn properly in writing; 

(3) Rule that reasonable cause exists 

to believe that the request has been 

abandoned; or 

(4) Render such other rulings as are 

appropriate to resolve the issues in 

question. 

However, the State hearing official 

does not have authority or jurisdiction 

to consider the validity or 

constitutionality of the ES regulations or 

of the Federal statutes under which they 

are promulgated. 

(b) Based on the entire record, 

including the investigations and 

determinations of the ES offices and 

State agencies and any evidence 

provided at the hearing, the State 

hearing official must prepare a written 

decision. The State hearing official must 

send a copy of the decision stating the 

findings of fact and conclusions of law, 

and the reasons therefor to the 

complainant, the respondent, entities 

serving as amicus capacity (if any), the 

State agency, the Regional 

Administrator, and the Solicitor of 

Labor, Attn: Associate Solicitor for 

Employment and Training Legal 

Services, Department of Labor, Room 

N2101, 200 Constitution Avenue NW., 

Washington, DC 20210. The notification 

to the complainant and respondent must 

be sent by certified mail or by other 

legally viable means. 

(c) All decisions of a State hearing 

official must be accompanied by a 

written notice informing the parties (not 

including the Regional Administrator, 

the Solicitor of Labor, or entities serving 

in an amicus capacity) that they may 

appeal the judge’s decision within 20 

working days of the certified date of 

receipt of the decision, and they may 

file an appeal in writing with the 

Regional Administrator. The notice 

must give the address of the Regional 

Administrator. 

§ 658.419 Apparent violations. 

(a) If a SWA, ES office employee, or 

outreach worker, observes, has reason to 

believe, or is in receipt of information 

regarding a suspected violation of 

employment-related laws or ES 

regulations by an employer, except as 

provided at § 653.503 of this chapter 

(field checks) or § 658.411 (complaints), 

the employee must document the 

suspected violation and refer this 

information to the ES office manager. 

(b) If the employer has filed a job 

order with the ES office within the past 

12 months, the ES office must attempt 

informal resolution provided at 

§ 658.411. 

(c) If the employer has not filed a job 

order with the ES office during the past 

12 months, the suspected violation of an 

employment-related law must be 

referred to the appropriate enforcement 

agency in writing. 

When a Complaint Rises to the Federal 

Level 

§ 658.420 Responsibilities of the 

Employment and Training Administration 

regional office. 

(a) Each Regional Administrator must 

establish and maintain a Complaint 

System within each ETA regional office. 

(b) The Regional Administrator must 

designate Department of Labor officials 

to handle ES regulation-related 

complaints as follows: 

(1) Any complaints received either at 

the local and State level or at the ETA 

regional office, that allege violations of 

civil rights laws and regulations such as 

those under Title VI of the Civil Rights 

Act or sec. 188 of WIOA, including for 

beneficiaries (as defined in 29 CFR 38.4) 

only, on the basis of citizenship status 

or participant status, as well as reprisal 

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for protected activity, must immediately 

be logged and directed or forwarded to 

the recipient’s Equal Opportunity 

Officer or the CRC. 

(2) All complaints alleging 

discrimination on the basis of genetic 

information must be assigned to a 

Regional Director for Equal Opportunity 

and Special Review and, where 

appropriate, handled in accordance 

with procedures Coordinated 

Enforcement at 29 CFR part 31. 

(3) All complaints other than those 

described in paragraphs (b)(1) and (2) of 

this section, must be assigned to a 

regional office official designated by the 

Regional Administrator, provided that 

the regional office official designated to 

handle MSFW complaints must be the 

Regional Monitor Advocate (RMA). 

(c) Except for those complaints under 

paragraphs (b)(1) and (2) of this section, 

the Regional Administrator must 

designate Department of Labor officials 

to handle employment-related law 

complaints in accordance with 

§ 658.411, provided that the regional 

official designated to handle MSFW 

employment-related law complaints 

must be the RMA. The RMA must 

follow up monthly on all complaints 

filed by MSFWs including complaints 

under paragraphs (b)(1) and (2) of this 

section. 

(d) The Regional Administrator must 

ensure that all complaints and all 

related documents and correspondence 

are logged with a notation of the nature 

of each item. 

§ 658.421 Handling of Wagner-Peyser Act 

Employment Service regulation-related 

complaints. 

(a)(1) Except as provided below in 

paragraph (a)(2) of this section, no 

complaint alleging a violation of the ES 

regulations may be handled at the ETA 

regional office level until the 

complainant has exhausted the SWA 

administrative remedies set forth at 

§§ 658.411 through 658.418. If the 

Regional Administrator determines that 

a complaint has been prematurely filed 

with an ETA regional office, the 

Regional Administrator must inform the 

complainant within 10 working days in 

writing that the complainant must first 

exhaust those remedies before the 

complaint may be filed in the regional 

office. A copy of this letter and a copy 

of the complaint also must be sent to the 

State Administrator. 

(2) If a complaint is submitted directly 

to the Regional Administrator and if he/ 

she determines that the nature and 

scope of a complaint described in 

paragraph (a) of this section is such that 

the time required to exhaust the 

administrative procedures at the SWA 

level would adversely affect a 

significant number of individuals, the 

RA must accept the complaint and take 

the following action: 

(i) If the complaint is filed against an 

employer, the regional office must 

handle the complaint in a manner 

consistent with the requirements 

imposed upon State agencies by 

§§ 658.411 and 658.418. A hearing must 

be offered to the parties once the 

Regional Administrator makes a 

determination on the complaint. 

(ii) If the complaint is filed against a 

SWA, the regional office must follow 

procedures established at § 658.411(d). 

(b) The ETA regional office is 

responsible for handling appeals of 

determinations made on complaints at 

the SWA level. An appeal includes any 

letter or other writing which the 

Regional Administrator reasonably 

understands to be requesting review if it 

is received by the regional office and 

signed by a party to the complaint. 

(c)(1) Once the Regional 

Administrator receives a timely appeal, 

he/she must request the complete SWA 

file, including the original Complaint/

Referral Form from the appropriate 

SWA. 

(2) The Regional Administrator must 

review the file in the case and must 

determine within 10 business days 

whether any further investigation or 

action is appropriate; however if the 

Regional Administrator determines that 

he/she needs to request legal advice 

from the Office of the Solicitor at the 

U.S. Department of Labor then the 

Regional Administrator is allowed 20 

business days to make this 

determination. 

(d) If the Regional Administrator 

determines that no further action is 

warranted, the Regional Administrator 

will send his/her determination in 

writing to the appellant within 5 days 

of the determination, with a notification 

that the appellant may request a hearing 

before a Department of Labor 

Administrative Law Judge (ALJ) by 

filing a hearing request in writing with 

the Regional Administrator within 20 

working days of the appellant’s receipt 

of the notification. 

(e) If the Regional Administrator 

determines that further investigation or 

other action is warranted, the Regional 

Administrator must undertake such an 

investigation or other action necessary 

to resolve the complaint. 

(f) After taking the actions described 

in paragraph (e) of this section, the 

Regional Administrator must either 

affirm, reverse, or modify the decision 

of the State hearing official, and must 

notify each party to the State hearing 

official’s hearing or to whom the State 

office determination was sent, notice of 

the determination and notify the parties 

that they may appeal the determination 

to the Department of Labor’s Office of 

Administrative Law Judges within 20 

business days of the party’s receipt of 

the notice. 

(g) If the Regional Administrator finds 

reason to believe that a SWA or one of 

its ES offices has violated ES 

regulations, the Regional Administrator 

must follow the procedures set forth at 

subpart H of this part. 

§ 658.422 Handling of employment-related 

law complaints by the Regional 

Administrator. 

(a) This section applies to all 

complaints submitted directly to the 

Regional Administrator or his/her 

representative. 

(b) Each complaint filed by an MSFW 

alleging violation(s) of employmentrelated laws must be taken in writing, 

logged, and referred to the appropriate 

enforcement agency for prompt action. 

(c) Each complaint submitted by a 

non-MSFW alleging violation(s) of 

employment-related laws must be 

logged and referred to the appropriate 

enforcement agency for prompt action. 

(d) Upon referring the complaint in 

accordance with paragraphs (b) and (c) 

of this section, the regional official must 

inform the complainant of the 

enforcement agency (and individual, if 

known) to which the complaint was 

referred. 

§ 658.424 Proceedings before the Office of 

Administrative Law Judges. 

(a) If a party requests a hearing 

pursuant to § 658.421 or § 658.707, the 

Regional Administrator must: 

(1) Send the party requesting the 

hearing, and all other parties to the prior 

State level hearing, a written notice 

(hard copy or electronic) that the matter 

will be referred to the Office of 

Administrative Law Judges for a 

hearing; 

(2) Compile four hearing files (hard 

copy or electronic) containing copies of 

all documents relevant to the case, 

indexed and compiled chronologically; 

and 

(3) Send simultaneously one hearing 

file to the Department of Labor Chief 

Administrative Law Judge, 800 K Street 

NW., Suite 400N, Washington, DC 

20001–8002, one hearing file to the OWI 

Administrator, and one hearing file to 

the Solicitor of Labor, Attn: Associate 

Solicitor for Employment and Training 

Legal Services, and retain one hearing 

file. 

(b) Proceedings under this section are 

governed by the rules of practice and 

procedure at subpart A of 29 CFR part 

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18, Rule of Practice and Procedure for 

Administrative Hearings before the 

Office of Administrative Law Judges, 

except where otherwise specified in this 

section or at § 658.425. 

(c) Upon receipt of a hearing file, the 

ALJ designated to the case must notify 

the party requesting the hearing, all 

parties to the prior State hearing official 

hearing (if any), the State agency, the 

Regional Administrator, the OWI 

Administrator, and the Solicitor of 

Labor of the receipt of the case. After 

conferring all the parties, the ALJ may 

decide to make a determination on the 

record in lieu of scheduling a hearing. 

(d) The ALJ may decide to consolidate 

cases and conduct hearings on more 

than one complaint concurrently if he/ 

she determines that the issues are 

related or that the complaints will be 

handled more expeditiously. 

(e) If the parties to the hearing are 

located in more than one State or are 

located in the same State but access to 

the hearing location is extremely 

inconvenient for one or more parties as 

determined by the ALJ, the ALJ must: 

(1) Whenever possible, hold a single 

hearing, at a location convenient to all 

parties or their representatives wishing 

to appear and present evidence, with all 

such parties and/or their representatives 

present. 

(2) If a hearing location cannot be 

established by the ALJ at a location 

pursuant to paragraph (e)(1) of this 

section, the ALJ may conduct, with the 

consent of the parties, the hearing by a 

telephone conference call. If the hearing 

is conducted via telephone conference 

call the parties and their representatives 

must have the option to participate in 

person or via telephone. 

(3) Where the ALJ is unable, for any 

reason, to conduct a telephonic hearing 

under paragraph (e)(2) of this section, 

the ALJ must confer with the parties on 

how to proceed. 

(f) Upon deciding to hold a hearing, 

the ALJ must notify all involved parties 

of the date, time, and place of the 

hearing. 

(g) The parties to the hearing must be 

afforded the opportunity to present, 

examine, and cross-examine witnesses. 

The ALJ may elicit testimony from 

witnesses, but may not act as advocate 

for any party. The ALJ has the authority 

to issue subpoenas. 

(h) The ALJ must receive, and make 

part of the record, documentary 

evidence offered by any party and 

accepted at the hearing, provided that 

copies of such evidence is provided to 

the other parties to the proceeding prior 

to the hearing at the time required by 

the ALJ. 

(i) Technical rules of evidence do not 

apply to hearings conducted pursuant to 

this part, but rules or principles 

designed to assure production of the 

most credible evidence available and to 

subject testimony to test by crossexamination must be applied where 

reasonably necessary by the ALJ 

conducting the hearing. The ALJ may 

exclude irrelevant, immaterial, or 

unduly repetitious evidence. 

(j) The case record, or any portion 

thereof, must be available for inspection 

and copying by any party to the hearing 

at, prior to, or subsequent to the hearing 

upon request. Special procedures may 

be used for disclosure of medical and 

psychological records such as disclosure 

to a physician designated by the 

individual concerned. 

(k) The ALJ must, if feasible, 

encourage resolution of the dispute by 

conciliation at any time prior to the 

conclusion of the hearing. 

§ 658.425 Decision of Department of Labor 

Administrative Law Judge. 

(a) The ALJ may: 

(1) Rule that he/she lacks jurisdiction 

over the case; 

(2) Rule that the appeal has been 

withdrawn, with the written consent of 

all parties; 

(3) Rule that reasonable cause exists 

to believe that the appeal has been 

abandoned; or 

(4) Render such other rulings as are 

appropriate to the issues in question. 

However, the ALJ does not have 

jurisdiction to consider the validity or 

constitutionality of the ES regulations or 

of the Federal statutes under which they 

are promulgated. 

(b) Based on the entire record, 

including any legal briefs, the record 

before the State agency, the 

investigation (if any) and determination 

of the Regional Administrator, and 

evidence provided at the hearing, the 

ALJ must prepare a written decision. 

The ALJ must send a copy of the 

decision stating the findings of fact and 

conclusions of law to the parties to the 

hearing, including the State agency, the 

Regional Administrator, the OWI 

Administrator, and the Solicitor, and to 

entities filing amicus briefs (if any). 

(c) The decision of the ALJ serves as 

the final decision of the Secretary. 

§ 658.426 Complaints against the United 

States Employment Service. 

(a) Complaints alleging that an ETA 

regional office or the National Office has 

violated ES regulations must be mailed 

to the Assistant Secretary for 

Employment and Training, U.S. 

Department of Labor, Washington, DC 

20210. Such complaints must include: 

(1) A specific allegation of the 

violation; 

(2) The date of the incident; 

(3) Location of the incident; 

(4) The individual alleged to have 

committed the violation; and 

(5) Any other relevant information 

available to the complainant. 

(b) The Assistant Secretary or the 

Regional Administrator as designated 

must make a determination and respond 

to the complainant after investigation of 

the complaint. 

Subpart F—Discontinuation of 

Services to Employers by the WagnerPeyser Act Employment Service 

§ 658.500 Scope and purpose of subpart. 

This subpart contains the regulations 

governing the discontinuation of 

services provided pursuant part 653 of 

this chapter to employers by the ETA, 

including SWAs. 

§ 658.501 Basis for discontinuation of 

services. 

(a) The SWA must initiate procedures 

for discontinuation of services to 

employers who: 

(1) Submit and refuse to alter or 

withdraw job orders containing 

specifications which are contrary to 

employment-related laws; 

(2) Submit job orders and refuse to 

provide assurances, in accordance with 

the Agricultural Recruitment System for 

U.S. Workers at part 653, subpart F, of 

this chapter, that the jobs offered are in 

compliance with employment-related 

laws, or to withdraw such job orders; 

(3) Are found through field checks or 

otherwise to have either misrepresented 

the terms or conditions of employment 

specified on job orders or failed to 

comply fully with assurances made on 

job orders; 

(4) Are found by a final determination 

by an appropriate enforcement agency 

to have violated any employmentrelated laws and notification of this 

final determination has been provided 

to the Department or the SWA by that 

enforcement agency; 

(5) Are found to have violated ES 

regulations pursuant to § 658.411; 

(6) Refuse to accept qualified workers 

referred through the clearance system; 

(7) Refuse to cooperate in the conduct 

of field checks conducted pursuant to 

§ 653.503 of this chapter; or 

(8) Repeatedly cause the initiation of 

the procedures for discontinuation of 

services pursuant to paragraphs (a)(1) 

through (7) of this section. 

(b) The SWA may discontinue 

services immediately if, in the judgment 

of the State Administrator, exhaustion 

of the administrative procedures set 

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forth in this subpart in paragraphs (a)(1) 

through (7) of this section would cause 

substantial harm to a significant number 

of workers. In such instances, 

procedures at §§ 658.503 and 658.504 

must be followed. 

(c) If it comes to the attention of a ES 

office or SWA that an employer 

participating in the ES may not have 

complied with the terms of its 

temporary labor certification, under, for 

example the H–2A and H–2B visa 

programs, State agencies must engage in 

the procedures for discontinuation of 

services to employers pursuant to 

paragraphs (a)(1) through (8) of this 

section and simultaneously notify the 

Chicago National Processing Center 

(CNPC) of the alleged non-compliance 

for investigation and consideration of 

ineligibility pursuant to § 655.184 or 

§ 655.73 of this chapter respectively for 

subsequent temporary labor 

certification. 

§ 658.502 Notification to employers. 

(a) The SWA must notify the 

employer in writing that it intends to 

discontinue the provision of 

employment services pursuant to this 

part and parts 652, 653, and 654 of this 

chapter, and the reason therefore. 

(1) Where the decision is based on 

submittal and refusal to alter or to 

withdraw job orders containing 

specifications contrary to employmentrelated laws, the SWA must specify the 

date the order was submitted, the job 

order involved, the specifications 

contrary to employment-related laws 

and the laws involved. The SWA must 

notify the employer in writing that all 

employment services will be terminated 

in 20 working days unless the employer 

within that time: 

(i) Provides adequate evidence that 

the specifications are not contrary to 

employment-related laws; or 

(ii) Withdraws the specifications and 

resubmits the job order in compliance 

with all employment-related laws; or 

(iii) If the job is no longer available, 

makes assurances that all future job 

orders submitted will be in compliance 

with all employment-related laws; or 

(iv) Requests a hearing from the SWA 

pursuant to § 658.417. 

(2) Where the decision is based on the 

employer’s submittal of an order and 

refusal to provide assurances that the 

job is in compliance with employmentrelated laws or to withdraw the order, 

the SWA must specify the date the order 

was submitted, the job order involved, 

and the assurances involved. The 

employer must be notified that all 

employment services will be terminated 

within 20 working days unless the 

employer within that time: 

(i) Resubmits the order with the 

appropriate assurances; or 

(ii) If the job is no longer available, 

make assurances that all future job 

orders submitted will contain all 

necessary assurances that the job offered 

is in compliance with employmentrelated laws; or 

(iii) Requests a hearing from the SWA 

pursuant to § 658.417. 

(3) Where the decision is based on a 

finding that the employer has 

misrepresented the terms or conditions 

of employment specified on job orders 

or failed to comply fully with 

assurances made on job orders, the SWA 

must specify the basis for that 

determination. The employer must be 

notified that all employment services 

will be terminated in 20 working days 

unless the employer within that time: 

(i) Provides adequate evidence that 

terms and conditions of employment 

were not misrepresented; or 

(ii) Provides adequate evidence that 

there was full compliance with the 

assurances made on the job orders; or 

(iii) Provides resolution of a 

complaint which is satisfactory to a 

complainant referred by the ES; and 

(iv) Provides adequate assurance that 

specifications on future orders will 

accurately represent the terms and 

conditions of employment and that 

there will be full compliance with all 

job order assurances; or 

(v) Requests a hearing from the SWA 

pursuant to § 658.417. 

(4) Where the decision is based on a 

final determination by an enforcement 

agency, the SWA must specify the 

enforcement agency’s findings of facts 

and conclusions of law. The employer 

must be notified that all employment 

services will be terminated in 20 

working days unless the employer 

within that time: 

(i) Provides adequate evidence that 

the enforcement agency has reversed its 

ruling and that the employer did not 

violate employment-related laws; or 

(ii) Provides adequate evidence that 

the appropriate fines have been paid 

and/or appropriate restitution has been 

made; and 

(iii) Provides assurances that any 

policies, procedures, or conditions 

responsible for the violation have been 

corrected and the same or similar 

violations are not likely to occur in the 

future. 

(5) Where the decision is based on a 

finding of a violation of ES regulations 

under § 658.411, the SWA must specify 

the finding. The employer must be 

notified that all employment services 

will be terminated in 20 working days 

unless the employer within that time: 

(i) Provides adequate evidence that 

the employer did not violate ES 

regulations; or 

(ii) Provides adequate evidence that 

appropriate restitution has been made or 

remedial action taken; and 

(iii) Provides assurances that any 

policies, procedures, or conditions 

responsible for the violation have been 

corrected and the same or similar 

violations are not likely to occur in the 

future; or 

(iv) Requests a hearing from the SWA 

pursuant to § 658.417. 

(6) Where the decision is based on an 

employer’s failure to accept qualified 

workers referred through the clearance 

system, the SWA must specify the 

workers referred and not accepted. The 

employer must be notified that all 

employment services will be terminated 

in 20 working days unless the employer 

within that time: 

(i) Provides adequate evidence that 

the workers were accepted; or 

(ii) Provides adequate evidence that 

the workers were not available to accept 

the job; or 

(iii) Provides adequate evidence that 

the workers were not qualified; and 

(iv) Provides adequate assurances that 

qualified workers referred in the future 

will be accepted; or 

(v) Requests a hearing from the SWA 

pursuant to § 658.417. 

(7) Where the decision is based on 

lack of cooperation in the conduct of 

field checks, the SWA must specify the 

lack of cooperation. The employer must 

be notified that all employment services 

will be terminated in 20 working days 

unless the employer within that time: 

(i) Provides adequate evidence that 

he/she did cooperate; or 

(ii) Cooperates immediately in the 

conduct of field checks; and 

(iii) Provides assurances that he/she 

will cooperate in future field checks in 

further activity; or 

(iv) Requests a hearing from the SWA 

pursuant to § 658.417. 

(b) If the employer chooses to respond 

pursuant to this section by providing 

documentary evidence or assurances, 

he/she must at the same time request a 

hearing if such hearing is desired in the 

event that the SWA does not accept the 

documentary evidence or assurances as 

adequate. 

(c) Where the decision is based on 

repeated initiation of procedures for 

discontinuation of services, the 

employer must be notified that services 

have been terminated. 

(d) If the employer makes a timely 

request for a hearing, in accordance 

with this section, the SWA must follow 

procedures set forth at § 658.411 and 

notify the complainant whenever the 

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discontinuation of services is based on 

a complaint pursuant to § 658.411. 

§ 658.503 Discontinuation of services. 

(a) If the employer does not provide 

a satisfactory response in accordance 

with § 658.502, within 20 working days, 

or has not requested a hearing, the SWA 

must immediately terminate services to 

the employer. 

(b) If services are discontinued to an 

employer subject to Federal Contractor 

Job Listing Requirements, the SWA 

must notify the ETA regional office 

immediately. 

§ 658.504 Reinstatement of services. 

(a) Services may be reinstated to an 

employer after discontinuation under 

§ 658.503(a) and (b), if: 

(1) The State is ordered to do so by 

a Federal ALJ Judge or Regional 

Administrator; or 

(2)(i) The employer provides adequate 

evidence that any policies, procedures 

or conditions responsible for the 

previous discontinuation of services 

have been corrected and that the same 

or similar circumstances are not likely 

to occur in the future; and 

(ii) The employer provides adequate 

evidence that he/she has responded 

adequately to any findings of an 

enforcement agency, SWA, or ETA, 

including restitution to the complainant 

and the payment of any fines, which 

were the basis of the discontinuation of 

services. 

(b) The SWA must notify the 

employer requesting reinstatement 

within 20 working days whether his/her 

request has been granted. If the State 

denies the request for reinstatement, the 

basis for the denial must be specified 

and the employer must be notified that 

he/she may request a hearing within 20 

working days. 

(c) If the employer makes a timely 

request for a hearing, the SWA must 

follow the procedures set forth at 

§ 658.417. 

(d) The SWA must reinstate services 

to an employer if ordered to do so by a 

State hearing official, Regional 

Administrator, or Federal ALJ as a result 

of a hearing offered pursuant to 

paragraph (c) of this section. 

Subpart G—Review and Assessment 

of State Workforce Agency 

Compliance With Employment Service 

Regulations 

§ 658.600 Scope and purpose of subpart. 

This subpart sets forth the regulations 

governing review and assessment of 

State Workforce Agency (SWA) 

compliance with the ES regulations at 

this part and parts 651, 652, 653, and 

654 of this chapter. All recordkeeping 

and reporting requirements contained in 

this part and part 653 of this chapter 

have been approved by the Office of 

Management and Budget as required by 

the Paperwork Reduction Act of 1980. 

§ 658.601 State Workforce Agency 

responsibility. 

(a) Each SWA must establish and 

maintain a self-appraisal system for ES 

operations to determine success in 

reaching goals and to correct 

deficiencies in performance. The selfappraisal system must include 

numerical (quantitative) appraisal and 

non-numerical (qualitative) appraisal. 

(1) Numerical appraisal at the ES 

office level must be conducted as 

follows: 

(i) Performance must be measured on 

a quarterly-basis against planned service 

levels as stated in the Unified or 

Combined State Plan (‘‘State Plan’’). The 

State Plan must be consistent with 

numerical goals contained in ES office 

plans. 

(ii) To appraise numerical activities/

indicators, actual results as shown on 

the Department’s ETA 9002A report, or 

any successor report required by the 

Department must be compared to 

planned levels. Differences between 

achievement and plan levels must be 

identified. 

(iii) When the numerical appraisal of 

required activities/indicators identifies 

significant differences from planned 

levels, additional analysis must be 

conducted to isolate possible 

contributing factors. This data analysis 

must include, as appropriate, 

comparisons to past performance, 

attainment of State Plan goals and 

consideration of pertinent nonnumerical factors. 

(iv) Results of ES office numerical 

reviews must be documented and 

significant deficiencies identified. A 

corrective action plan as described in 

paragraph (a)(6) of this section must be 

developed to address these deficiencies. 

(v) The result of ES office appraisal, 

including corrective action plans, must 

be communicated in writing to the next 

higher level of authority for review. This 

review must cover adequacy of analysis, 

appropriateness of corrective actions, 

and need for higher level involvement. 

When this review is conducted at an 

area or district office, a report describing 

ES office performance within the area or 

district jurisdiction must be 

communicated to the SWA on a 

quarterly basis. 

(2) Numerical appraisal at the SWA 

level must be conducted as follows: 

(i) Performance must be measured on 

a quarterly basis against planned service 

levels as stated in the State Plan. The 

State Plan must be consistent with 

numerical goals contained in ES office 

plans. 

(ii) To appraise these key numerical 

activities/indicators, actual results as 

shown on the ETA 9002A report, or any 

successor report required by the 

Department must be compared to 

planned levels. Differences between 

achievement and plan levels must be 

identified. 

(iii) The SWA must review statewide 

data and performance against planned 

service levels as stated in the State Plan 

on at least a quarterly basis to identify 

significant statewide deficiencies and to 

determine the need for additional 

analysis, including identification of 

trends, comparisons to past 

performance, and attainment of State 

Plan goals. 

(iv) Results of numerical reviews must 

be documented and significant 

deficiencies identified. A corrective 

action plan as described in paragraph 

(a)(5) of this section must be developed 

to address these deficiencies. These 

plans must be submitted to the ETA 

Regional Office as part of the periodic 

performance process described at 

§ 658.603(d)(2). 

(3) Non-numerical (qualitative) 

appraisal of ES office activities must be 

conducted at least annually as follows: 

(i) Each ES office must assess the 

quality of its services to applicants, 

employers, and the community and its 

compliance with Federal regulations. 

(ii) At a minimum, non-numerical 

review must include an assessment of 

the following factors: 

(A) Appropriateness of services 

provided to participants and employers; 

(B) Timely delivery of services to 

participants and employers; 

(C) Staff responsiveness to individual 

participants and employer needs; 

(D) Thoroughness and accuracy of 

documents prepared in the course of 

service delivery; and 

(E) Effectiveness of ES interface with 

external organizations, such as other 

ETA-funded programs, community 

groups, etc. 

(iii) Non-numerical review methods 

must include: 

(A) Observation of processes; 

(B) Review of documents used in 

service provisions; and 

(C) Solicitation of input from 

applicants, employers, and the 

community. 

(iv) The result of non-numerical 

reviews must be documented and 

deficiencies identified. A corrective 

action plan addressing these 

deficiencies as described in paragraph 

(a)(6) of this section must be developed. 

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(v) The result of ES office nonnumerical appraisal, including 

corrective actions, must be 

communicated in writing to the next 

higher level of authority for review. This 

review must cover thoroughness and 

adequacy of ES office appraisal, 

appropriateness of corrective actions, 

and need for higher level involvement. 

When this review is conducted at an 

area or district level, a report 

summarizing local ES office 

performance within that jurisdiction 

must be communicated to the SWA on 

an annual basis. 

(4) As part of its oversight 

responsibilities, the SWA must conduct 

onsite reviews in those ES offices which 

show continuing internal problems or 

deficiencies in performance as indicated 

by such sources as data analysis, nonnumerical appraisal, or other sources of 

information. 

(5) Non-numerical (qualitative) review 

of SWA ES activities must be conducted 

as follows: 

(i) SWA operations must be assessed 

annually to determine compliance with 

Federal regulations. 

(ii) Results of non-numerical reviews 

must be documented and deficiencies 

identified. A corrective action plan 

addressing these deficiencies must be 

developed. 

(6) Corrective action plans developed 

to address deficiencies uncovered at any 

administrative level within the State as 

a result of the self-appraisal process 

must include: 

(i) Specific descriptions of the type of 

action to be taken, the time frame 

involved, and the assignment of 

responsibility. 

(ii) Provision for the delivery of 

technical assistance as needed. 

(iii) A plan to conduct follow-up on 

a timely basis to determine if action 

taken to correct the deficiencies has 

been effective. 

(7)(i) The provisions of the ES 

regulations which require numerical 

and non-numerical assessment of 

service to special applicant groups (e.g., 

services to veterans at 20 CFR part 

1001—Services for Veterans and 

services to MSFWs at this part and part 

653 of this chapter), are supplementary 

to the provisions of this section. 

(ii) Each State Administrator and ES 

office manager must ensure their staff 

know and carry out ES regulations, 

including regulations on performance 

standards and program emphases, and 

any corrective action plans imposed by 

the SWA or by the Department. 

(iii) Each State Administrator must 

ensure the SWA complies with its 

approved State Plan. 

(iv) Each State Administrator must 

ensure to the maximum extent feasible 

the accuracy of data entered by the SWA 

into Department-required management 

information systems. Each SWA must 

establish and maintain a data validation 

system pursuant to Department 

instructions. The system must review 

every local ES office at least once every 

4 years. The system must include the 

validation of time distribution reports 

and the review of data gathering 

procedures. 

(b) [Reserved] 

§ 658.602 Employment and Training 

Administration National Office 

responsibility. 

The ETA National Office must: 

(a) Monitor ETA Regional Offices’ 

operations under ES regulations; 

(b) From time to time, conduct such 

special reviews and audits as necessary 

to monitor ETA regional office and SWA 

compliance with ES regulations; 

(c) Offer technical assistance to the 

ETA regional offices and SWAs in 

carrying out ES regulations and 

programs; 

(d) Have report validation surveys 

conducted in support of resource 

allocations; and 

(e) Develop tools and techniques for 

reviewing and assessing SWA 

performance and compliance with ES 

regulations. 

(f) ETA must appoint a National 

Monitor Advocate (NMA), who must 

devote full time to the duties set forth 

in this subpart. The NMA must: 

(1) Review the effective functioning of 

the Regional Monitor Advocates (RMAs) 

and SMAs; 

(2) Review the performance of SWAs 

in providing the full range of 

employment services to MSFWs; 

(3) Take steps to resolve or refer ESrelated problems of MSFWs which come 

to his/her attention; 

(4) Take steps to refer non ES-related 

problems of MSFWs which come to his/ 

her attention; 

(5) Recommend to the Administrator 

changes in policy toward MSFWs; and 

(6) Serve as an advocate to improve 

services for MSFWs within the ES 

system. The NMA must be a member of 

the National Farm Labor Coordinated 

Enforcement Staff Level Working 

Committee and other Occupational 

Safety and Health Administration 

(OSHA) and Wage and Hour Division 

(WHD) task forces, and other 

committees as appropriate. 

(g) The NMA must be appointed by 

the Office of Workforce Investment 

Administrator (Administrator) after 

informing farmworker organizations and 

other organizations with expertise 

concerning MSFWs of the opening and 

encouraging them to refer qualified 

applicants to apply through the Federal 

merit system. Among qualified 

candidates, determined through merit 

systems procedures, individuals must 

be sought who meet the criteria used in 

the selection of the SMAs, as provided 

in SWA self-monitoring requirements at 

§ 653.108(b) of this chapter. 

(h) The NMA must be assigned staff 

necessary to fulfill effectively all the 

responsibilities set forth in this subpart. 

(i) The NMA must submit the Annual 

Report to the OWI Administrator, the 

ETA Assistant Secretary, and the 

National Farm Labor Coordinated 

Enforcement Committee covering the 

matters set forth in this subpart. 

(j) The NMA must monitor and assess 

SWA compliance with ES regulations 

affecting MSFWs on a continuing basis. 

His/her assessment must consider: 

(1) Information from RMAs and 

SMAs; 

(2) Program performance data, 

including the service indicators; 

(3) Periodic reports from regional 

offices; 

(4) All Federal on-site reviews; 

(5) Selected State on-site reviews; 

(6) Other relevant reports prepared by 

the ES; 

(7) Information received from 

farmworker organizations and 

employers; and 

(8) His/her personal observations from 

visits to SWAs, ES offices, agricultural 

work sites, and migrant camps. In the 

Annual Report, the NMA must include 

both a quantitative and qualitative 

analysis of his/her findings and the 

implementation of his/her 

recommendations by State and Federal 

officials, and must address the 

information obtained from all of the 

foregoing sources. 

(k) The NMA must review the 

activities of the State/Federal 

monitoring system as it applies to 

services to MSFWs and the Complaint 

System including the effectiveness of 

the regional monitoring function in each 

region and must recommend any 

appropriate changes in the operation of 

the system. The NMA’s findings and 

recommendations must be fully set forth 

in the Annual Report. 

(l) If the NMA finds the effectiveness 

of any RMA has been substantially 

impeded by the Regional Administrator 

or other regional office official, he/she 

must, if unable to resolve such problems 

informally, report and recommend 

appropriate actions directly to the OWI 

Administrator. If the NMA receives 

information that the effectiveness of any 

SMA has been substantially impeded by 

the State Administrator or other State or 

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Federal ES official, he/she must, in the 

absence of a satisfactory informal 

resolution at the regional level, report 

and recommend appropriate actions 

directly to the OWI Administrator. 

(m) The NMA must be informed of all 

proposed changes in policy and practice 

within the ES, including ES regulations, 

which may affect the delivery of 

services to MSFWs. The NMA must 

advise the Administrator concerning all 

such proposed changes which may 

adversely affect MSFWs. The NMA 

must propose directly to the OWI 

Administrator changes in ES policy and 

administration which may substantially 

improve the delivery of services to 

MSFWs. He/she also must recommend 

changes in the funding of SWAs and/or 

adjustment or reallocation of the 

discretionary portions of funding 

formulae. 

(n) The NMA must participate in the 

review and assessment activities 

required in this section and §§ 658.700 

through 658.711. As part of such 

participation, the NMA, or if he/she is 

unable to participate, a RMA must 

accompany the National Office review 

team on National Office on-site reviews. 

The NMA must engage in the following 

activities in the course of each State onsite review: 

(1) He/she must accompany selected 

outreach workers on their field visits. 

(2) He/she must participate in a 

random field check(s) of migrant camps 

or work site(s) where MSFWs have been 

placed on inter or intrastate clearance 

orders. 

(3) He/she must contact local WIOA 

sec. 167 National Farmworker Jobs 

Program grantees or other farmworker 

organizations as part of the on-site 

review, and, discuss with 

representatives of these organizations 

current trends and any other pertinent 

information concerning MSFWs. 

(4) He/she must meet with the SMA 

and discuss the full range of the 

employment services to MSFWs, 

including monitoring and the Complaint 

System. 

(o) In addition to the duties specified 

in paragraph (f)(8) of this section, the 

NMA each year during the harvest 

season must visit the four States with 

the highest level of MSFW activity 

during the prior fiscal year, if they are 

not scheduled for a National Office onsite review during the current fiscal 

year, and must: 

(1) Meet with the SMA and other 

SWA staff to discuss MSFW service 

delivery; and 

(2) Contact representatives of MSFW 

organizations and interested employer 

organizations to obtain information 

concerning ES delivery and 

coordination with other agencies. 

(p) The NMA must perform duties 

specified in §§ 658.700 through 765.711. 

As part of this function, he/she must 

monitor the performance of regional 

offices in imposing corrective action. 

The NMA must report any deficiencies 

in performance to the Administrator. 

(q) The NMA must establish routine 

and regular contacts with WIOA sec. 

167 National Farmworker Jobs Program 

grantees, other farmworker 

organizations and agricultural 

employers and/or employer 

organizations. He/she must attend 

conferences or meetings of these groups 

wherever possible and must report to 

the Administrator and the National 

Farm Labor Coordinated Enforcement 

Committee on these contacts when 

appropriate. The NMA must include in 

the Annual Report recommendations 

about how the Department might better 

coordinate ES and WIOA sec. 167 

National Farmworker Jobs Program 

services as they pertain to MSFWs. 

(r) In the event that any SMA or RMA, 

enforcement agency, or MSFW group 

refers a matter to the NMA which 

requires emergency action, he/she must 

assist them in obtaining action by 

appropriate agencies and staff, inform 

the originating party of the action taken, 

and, upon request, provide written 

confirmation. 

(s) Through all the mechanisms 

provided in this subpart, the NMA must 

aggressively seek to ascertain and 

remedy, if possible, systemic 

deficiencies in the provisions of 

employment services and protections 

afforded by these regulations to MSFWs. 

The NMA must: 

(1) Use the regular reports on 

complaints submitted by SWAs and 

ETA regional offices to assess the 

adequacy of these systems and to 

determine the existence of systemic 

deficiencies. 

(2) Provide technical assistance to 

ETA regional office and State Workforce 

Agency staff for administering the 

Complaint System, and any other 

employment services as appropriate. 

(3) Recommend to the Regional 

Administrator specific instructions for 

action by regional office staff to correct 

any ES-related systemic deficiencies. 

Prior to any ETA review of regional 

office operations concerning 

employment services to MSFWs, the 

NMA must provide to the Regional 

Administrator a brief summary of ESrelated services to MSFWs in that region 

and his/her recommendations for 

incorporation in the regional review 

materials as the Regional Administrator 

and ETA reviewing organization deem 

appropriate. 

(4) Recommend to the National Farm 

Labor Coordinated Enforcement 

Committee specific instructions for 

action by WHD and OSHA regional 

office staff to correct any non-ES-related 

systemic deficiencies of which he/she is 

aware. 

§ 658.603 Employment and Training 

Administration Regional Office 

responsibility. 

(a) The Regional Administrator must 

have responsibility for the regular 

review and assessment of SWA 

performance and compliance with ES 

regulations. 

(b) The Regional Administrator must 

participate with the National Office staff 

in reviewing and approving the State 

Plan for the SWAs within the region. In 

reviewing the State Plans the Regional 

Administrator and appropriate National 

Office staff must consider relevant 

factors including the following: 

(1) State Workforce Agency 

compliance with ES regulations; 

(2) State Workforce Agency 

performance against the goals and 

objectives established in the previous 

State Plan; 

(3) The effect which economic 

conditions and other external factors 

considered by the ETA in the resource 

allocation process may have had or are 

expected to have on the SWA’s 

performance; 

(4) SWA adherence to national 

program emphasis; and 

(5) The adequacy and appropriateness 

of the State Plan for carrying out ES 

programs. 

(c) The Regional Administrator must 

assess the overall performance of SWAs 

on an ongoing basis through desk 

reviews and the use of required 

reporting systems and other available 

information. 

(d) As appropriate, Regional 

Administrators must conduct or have 

conducted: 

(1) Comprehensive on-site reviews of 

SWAs and their offices to review SWA 

organization, management, and program 

operations; 

(2) Periodic performance reviews of 

SWA operation of ES programs to 

measure actual performance against the 

State Plan, past performance, the 

performance of other SWAs, etc.; 

(3) Audits of SWA programs to review 

their program activity and to assess 

whether the expenditure of grant funds 

has been in accordance with the 

approved budget. Regional 

Administrators also may conduct audits 

through other agencies or organizations 

or may require the SWA to have audits 

conducted; 

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(4) Validations of data entered into 

management information systems to 

assess: 

(i) The accuracy of data entered by the 

SWAs into the management information 

system; 

(ii) Whether the SWAs’ data 

validating and reviewing procedures 

conform to Department instructions; 

and 

(iii) Whether SWAs have 

implemented any corrective action 

plans required by the Department to 

remedy deficiencies in their validation 

programs; 

(5) Technical assistance programs to 

assist SWAs in carrying out ES 

regulations and programs; 

(6) Reviews to assess whether the 

SWA has complied with corrective 

action plans imposed by the Department 

or by the SWA itself; and 

(7) Random, unannounced field 

checks of a sample of agricultural work 

sites to which ES placements have been 

made through the clearance system to 

determine and document whether 

wages, hours, working and housing 

conditions are as specified on the job 

order. If regional office staff find reason 

to believe that conditions vary from job 

order specifications, findings must be 

documented on the Complaint/

Apparent Violation Referral Form and 

provided to the State Workforce Agency 

to be handled as an apparent violation 

under § 658.419. 

(e) The Regional Administrator must 

provide technical assistance to SWAs to 

assist them in carrying out ES 

regulations and programs. 

(f) The Regional Administrator must 

appoint a RMA who must devote full 

time to the duties set forth in this 

subpart. The RMA must: 

(1) Review the effective functioning of 

the SMAs in his/her region; 

(2) Review the performance of SWAs 

in providing the full range of 

employment services to MSFWs; 

(3) Take steps to resolve ES-related 

problems of MSFWs which come to his/ 

her attention; 

(4) Recommend to the Regional 

Administrator changes in policy 

towards MSFWs; 

(5) Review the operation of the 

Complaint System; and 

(6) Serve as an advocate to improve 

service for MSFWs within the ES. The 

RMA must be a member of the Regional 

Farm Labor Coordinated Enforcement 

Committee. 

(g) The RMA must be appointed by 

the Regional Administrator after 

informing farmworker organizations and 

other organizations in the region with 

expertise concerning MSFWs of the 

opening and encouraging them to refer 

qualified applicants to apply through 

the Federal merit system. The RMA 

must have direct personal access to the 

Regional Administrator wherever he/she 

finds it necessary. Among qualified 

candidates, individuals must be sought 

who meet the criteria used in the 

selection of the SMAs, as provided in 

§ 653.108(b) of this chapter. 

(h) The Regional Administrator must 

ensure that staff necessary to fulfill 

effectively all the regional office 

responsibilities set forth in this section 

are assigned. The RMA must notify the 

Regional Administrator of any staffing 

deficiencies and the Regional 

Administrator must take appropriate 

action. 

(i) The RMA within the first 3 months 

of his/her tenure must participate in a 

training session(s) approved by the 

National Office. 

(j) At the regional level, the RMA 

must have primary responsibility for: 

(1) Monitoring the effectiveness of the 

Complaint System set forth at subpart E 

of this part; 

(2) Apprising appropriate State and 

ETA officials of deficiencies in the 

Complaint System; and 

(3) Providing technical assistance to 

SMAs in the region. 

(k) At the ETA regional level, the 

RMA must have primary responsibility 

for ensuring SWA compliance with ES 

regulations as it pertains to services to 

MSFWs is monitored by the regional 

office. He/she must independently 

assess on a continuing basis the 

provision of employment services to 

MSFWs, seeking out and using: 

(1) Information from SMAs, including 

all reports and other documents; 

(2) Program performance data; 

(3) The periodic and other required 

reports from SWAs; 

(4) Federal on-site reviews; 

(5) Other reports prepared by the 

National Office; 

(6) Information received from 

farmworker organizations and 

employers; and 

(7) Any other pertinent information 

which comes to his/her attention from 

any possible source. 

(8) In addition, the RMA must 

consider his/her personal observations 

from visits to ES offices, agricultural 

work sites, and migrant camps. 

(l) The RMA must assist the Regional 

Administrator and other line officials in 

applying appropriate corrective and 

remedial actions to State agencies. 

(m) The Regional Administrator’s 

quarterly report to the National Office 

must include the RMA’s summary of 

his/her independent assessment as 

required in paragraph (f)(5) of this 

section. The fourth quarter summary 

must include an annual summary from 

the region. The summary also must 

include both a quantitative and a 

qualitative analysis of his/her reviews 

and must address all the matters with 

respect to which he/she has 

responsibilities under these regulations. 

(n) The RMA must review the 

activities and performance of the SMAs 

and the State monitoring system in the 

region, and must recommend any 

appropriate changes in the operation of 

the system to the Regional 

Administrator. The RMA’s review must 

include a determination whether the 

SMA: 

(1) Does not have adequate access to 

information; 

(2) Is being impeded in fulfilling his/ 

her duties; or 

(3) Is making recommendations which 

are being consistently ignored by SWA 

officials. If the RMA believes that the 

effectiveness of any SMA has been 

substantially impeded by the State 

Administrator, other State agency 

officials, or any Federal officials, he/she 

must report and recommend appropriate 

actions to the Regional Administrator. 

Copies of the recommendations must be 

provided to the NMA electronically or 

in hard copy. 

(o) The RMA must be informed of all 

proposed changes in policy and practice 

within the ES, including ES regulations, 

which may affect the delivery of 

services to MSFWs. He/she must advise 

the Regional Administrator on all such 

proposed changes which, in his/her 

opinion, may adversely affect MSFWs or 

which may substantially improve the 

delivery of services to MSFWs. 

The RMA also may recommend 

changes in ES policy or regulations, as 

well as changes in the funding of State 

Workforce Agencies and/or adjustments 

of reallocation of the discretionary 

portions of funding formulae as they 

pertain to MSFWs. 

(p) The RMA must participate in the 

review and assessment activities 

required in this section and §§ 658.700 

through 658.711. He/she, an assistant, or 

another RMA, must participate in 

National Office and regional office onsite statewide reviews of employment 

services to MSFWs in States in the 

region. The RMA must engage in the 

following activities in the course of 

participating in an on-site SWA review: 

(1) Accompany selected outreach 

workers on their field visits; 

(2) Participate in a random field check 

of migrant camps or work sites where 

MSFWs have been placed on intrastate 

or interstate clearance orders; 

(3) Contact local WIOA sec. 167 

National Farmworker Jobs Program 

grantees or other farmworker 

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56364 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

organizations as part of the on-site 

review, and must discuss with 

representatives of these organizations 

perceived trends, and/or other relevant 

information concerning MSFWs in the 

area; and 

(4) Meet with the SMA and discuss 

the full range of the employment 

services to MSFWs, including 

monitoring and the Complaint System. 

(q) During the calendar quarter 

preceding the time of peak MSFW 

activity in each State, the RMA must 

meet with the SMA and must review in 

detail the State Workforce Agency’s 

capability for providing the full range of 

services to MSFWs as required by ES 

regulations, during the upcoming 

harvest season. The RMA must offer 

technical assistance and recommend to 

the SWA and/or the Regional 

Administrator any changes in State 

policy or practice that he/she finds 

necessary. 

(r) The RMA each year during the 

peak harvest season must visit each 

State in the region not scheduled for an 

on-site review during that fiscal year 

and must: 

(1) Meet with the SMA and other 

SWA staff to discuss MSFW service 

delivery; and 

(2) Contact representatives of MSFW 

organizations to obtain information 

concerning ES delivery and 

coordination with other agencies and 

interested employer organizations. 

(s) The RMA must initiate and 

maintain regular and personal contacts, 

including informal contacts in addition 

to those specifically required by these 

regulations, with SMAs in the region. In 

addition, the RMA must have personal 

and regular contact with the NMA. The 

RMA also must establish routine and 

regular contacts with WIOA sec. 167 

National Farmworker Jobs Program 

grantees, other farmworker 

organizations and agricultural 

employers and/or employer 

organizations in his/her region. He/she 

must attend conferences or meetings of 

these groups wherever possible and 

must report to the Regional 

Administrator and the Regional Farm 

Labor Coordinated Enforcement 

Committee on these contacts when 

appropriate. He/she also must make 

recommendations as to how the 

Department might better coordinate ES 

and WIOA sec. 167 National 

Farmworker Jobs Program services to 

MSFWs. 

(t) The RMA must attend MSFWrelated public meeting(s) conducted in 

the region. Following such meetings or 

hearings, the RMA must take such steps 

or make such recommendations to the 

Regional Administrator, as he/she 

deems necessary to remedy problem(s) 

or condition(s) identified or described 

therein. 

(u) The RMA must attempt to achieve 

regional solutions to any problems, 

deficiencies, or improper practices 

concerning services to MSFWs which 

are regional in scope. Further, he/she 

must recommend policies, offer 

technical assistance, or take any other 

necessary steps as he/she deems 

desirable or appropriate on a regional, 

rather than State-by-State basis, to 

promote region-wide improvement in 

the delivery of employment services to 

MSFWs. He/she must facilitate regionwide coordination and communication 

regarding provision of employment 

services to MSFWs among SMAs, State 

Administrators, and Federal ETA 

officials to the greatest extent possible. 

In the event that any SWA or other 

RMA, enforcement agency, or MSFW 

group refers a matter to the RMA which 

requires emergency action, he/she must 

assist them in obtaining action by 

appropriate agencies and staff, inform 

the originating party of the action taken, 

and, upon request, provide written 

confirmation. 

(v) The RMA must initiate and 

maintain such contacts as he/she deems 

necessary with RMAs in other regions to 

seek to resolve problems concerning 

MSFWs who work, live, or travel 

through the region. He/she must 

recommend to the Regional 

Administrator and/or the National 

Office inter-regional cooperation on any 

particular matter, problem, or policy 

with respect to which inter-regional 

action is desirable. 

(w) The RMA must establish regular 

contacts with the regional agricultural 

coordinators from WHD and OSHA and 

any other regional staff from other 

Federal enforcement agencies and must 

establish contacts with the staff of other 

Department agencies represented on the 

Regional Farm Labor Coordinated 

Enforcement Committee and to the 

extent necessary, on other pertinent task 

forces or committees. 

(x) The RMA must participate in the 

regional reviews of the State Plans, and 

must comment to the Regional 

Administrator as to the SWA 

compliance with the ES regulations as 

they pertain to services to MSFWs, 

including the staffing of ES offices. 

§ 658.604 Assessment and evaluation of 

program performance data. 

(a) State Workforce Agencies must 

compile program performance data 

required by the Department, including 

statistical information on program 

operations. 

(b) The Department must use the 

program performance data in assessing 

and evaluating whether each SWA has 

complied with ES regulations and its 

State Plan. 

(c) In assessing and evaluating 

program performance data, the 

Department must act in accordance with 

the following general principles: 

(1) The fact that the program 

performance data from a SWA, whether 

overall or relative to a particular 

program activity, indicate poor program 

performance does not by itself 

constitute a violation of ES regulations 

or of the State Workforce Agency’s 

responsibilities under its State Plan; 

(2) Program performance data, 

however, may so strongly indicate that 

a SWA’s performance is so poor that the 

data may raise a presumption (prima 

facie case) that a SWA is violating ES 

regulations or the State Plan. A SWA’s 

failure to meet the operational 

objectives set forth in the State Plan 

raises a presumption that the agency is 

violating ES regulations and/or 

obligations under its State Plan. In such 

cases, the Department must afford the 

SWA an opportunity to rebut the 

presumption of a violation pursuant to 

the procedures at subpart H of this part. 

(3) The Department must take into 

account that certain program 

performance data may measure items 

over which SWAs have direct or 

substantial control while other data may 

measure items over which the SWA has 

indirect or minimal control. 

(i) Generally, for example, a SWA has 

direct and substantial control over the 

delivery of employment services such as 

referrals to jobs, job development 

contacts, counseling, referrals to career 

and supportive services, and the 

conduct of field checks. 

(ii) State Workforce Agencies, 

however, have only indirect control 

over the outcome of services. For 

example, SWAs cannot guarantee that 

an employer will hire a referred 

applicant, nor can they guarantee that 

the terms and conditions of employment 

will be as stated on a job order. 

(iii) Outside forces, such as a sudden 

heavy increase in unemployment rates, 

a strike by SWA employees, or a severe 

drought or flood, may skew the results 

measured by program performance data. 

(4) The Department must consider a 

SWA’s failure to keep accurate and 

complete program performance data 

required by ES regulations as a violation 

of the ES regulations. 

§ 658.605 Communication of findings to 

State agencies. 

(a) The Regional Administrator must 

inform SWAs in writing of the results of 

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review and assessment activities and, as 

appropriate, must discuss with the State 

Administrator the impact or action 

required by the Department as a result 

of review and assessment activities. 

(b) The ETA National Office must 

transmit the results of any review and 

assessment activities it conducted to the 

Regional Administrator who must send 

the information to the SWA. 

(c) Whenever the review and 

assessment indicates a SWA violation of 

ES regulations or its State Plan, the 

Regional Administrator must follow the 

procedures set forth at subpart H of this 

part. 

(d) Regional Administrators must 

follow-up any corrective action plan 

imposed on a SWA under subpart H of 

this part by further review and 

assessment of the State Workforce 

Agency pursuant to this subpart. 

Subpart H—Federal Application of 

Remedial Action to State Workforce 

Agencies 

§ 658.700 Scope and purpose of subpart. 

This subpart sets forth the procedures 

which the Department must follow 

upon either discovering independently 

or receiving from other(s) information 

indicating that SWAs may not be 

adhering to ES regulations. 

§ 658.701 Statements of policy. 

(a) It is the policy of the Department 

to take all necessary action, including 

the imposition of the full range of 

sanctions set forth in this subpart, to 

ensure State Workforce Agencies 

comply with all requirements 

established by ES regulations. 

(b) It is the policy of the Department 

to initiate decertification procedures 

against SWAs in instances of serious or 

continual violations of ES regulations if 

less stringent remedial actions taken in 

accordance with this subpart fail to 

resolve noncompliance. 

(c) It is the policy of the Department 

to act on information concerning alleged 

violations by SWAs of the ES 

regulations received from any person or 

organization. 

§ 658.702 Initial action by the Regional 

Administrator. 

(a) The ETA Regional Administrator is 

responsible for ensuring that all SWAs 

in his/her region are in compliance with 

ES regulations. 

(b) Wherever a Regional 

Administrator discovers or is apprised 

of possible SWA violations of ES 

regulations by the review and 

assessment activities under subpart G of 

this part, or through required reports or 

written complaints from individuals, 

organizations, or employers which are 

elevated to the Department after the 

exhaustion of SWA administrative 

remedies, the Regional Administrator 

must conduct an investigation. Within 

10 business days after receipt of the 

report or other information, the Regional 

Administrator must make a 

determination whether there is probable 

cause to believe that a SWA has violated 

ES regulations. 

(c) The Regional Administrator must 

accept complaints regarding possible 

SWA violations of ES regulations from 

employee organizations, employers or 

other groups, without exhaustion of the 

complaint process described at subpart 

E of this part, if the Regional 

Administrator determines that the 

nature and scope of the complaint are 

such that the time required to exhaust 

the administrative procedures at the 

State level would adversely affect a 

significant number of applicants. In 

such cases, the Regional Administrator 

must investigate the matter within 10 

business days, may provide the SWA 10 

business days for comment, and must 

make a determination within an 

additional 10 business days whether 

there is probable cause to believe that 

the SWA has violated ES regulations. 

(d) If the Regional Administrator 

determines that there is no probable 

cause to believe that a SWA has violated 

ES regulations, he/she must retain all 

reports and supporting information in 

Department files. In all cases where the 

Regional Administrator has insufficient 

information to make a probable cause 

determination, he/she must so notify the 

Administrator in writing and the time 

for the investigation must be extended 

20 additional business days. 

(e) If the Regional Administrator 

determines there is probable cause to 

believe a SWA has violated ES 

regulations, he/she must issue a Notice 

of Initial Findings of Non-compliance 

by registered mail (or other legally 

viable means) to the offending SWA. 

The notice will specify the nature of the 

violation, cite the regulations involved, 

and indicate corrective action which 

may be imposed in accordance with 

paragraphs (g) and (h) of this section. If 

the non-compliance involves services to 

MSFWs or the Complaint System, a 

copy of said notice must be sent to the 

NMA. 

(f)(1) The SWA may have 20 business 

days to comment on the findings, or up 

to 20 additional days, if the Regional 

Administrator determines a longer 

period is appropriate. The SWA’s 

comments must include agreement or 

disagreement with the findings and 

suggested corrective actions, where 

appropriate. 

(2) After the period elapses, the 

Regional Administrator must prepare 

within 20 business days, written final 

findings which specify whether the 

SWA has violated ES regulations. If in 

the final findings the Regional 

Administrator determines the SWA has 

not violated ES regulations, the Regional 

Administrator must notify the State 

Administrator of this finding and retain 

supporting documents in his/her files. If 

the final finding involves services to 

MSFWs or the Complaint System, the 

Regional Administrator also must notify 

the NMA. If the Regional Administrator 

determines a SWA has violated ES 

regulations, the Regional Administrator 

must prepare a Final Notice of 

Noncompliance which must specify the 

violation(s) and cite the regulations 

involved. The Final Notice of 

Noncompliance must be sent to the 

SWA by registered mail or other legally 

viable means. If the noncompliance 

involves services to MSFWs or the 

Complaint System, a copy of the Final 

Notice must be sent to the NMA. 

(g) If the violation involves the 

misspending of grant funds, the 

Regional Administrator may order in the 

Final Notice of Noncompliance a 

disallowance of the expenditure and 

may either demand repayment or 

withhold future funds in the amount in 

question. If the Regional Administrator 

disallows costs, the Regional 

Administrator must give the reasons for 

the disallowance, inform the SWA that 

the disallowance is effective 

immediately and that no more funds 

may be spent in the disallowed manner, 

and offer the SWA the opportunity to 

request a hearing pursuant to § 658.707. 

The offer, or the acceptance of an offer 

of a hearing, however, does not stay the 

effectiveness of the disallowance. The 

Regional Administrator must keep 

complete records of the disallowance. 

(h) If the violation does not involve 

misspending of grant funds or the 

Regional Administrator determines that 

the circumstances warrant other action: 

(1) The Final Notice of 

Noncompliance must direct the SWA to 

implement a specific corrective action 

plan to correct all violations. If the 

SWA’s comment demonstrates with 

supporting evidence (except where 

inappropriate) that all violations have 

already been corrected, the Regional 

Administrator need not impose a 

corrective action plan and instead may 

cite the violation(s) and accept the 

SWA’s resolution, subject to follow-up 

review, if necessary. If the Regional 

Administrator determines that the 

violation(s) cited had been found 

previously and that the corrective 

action(s) taken had not corrected the 

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violation(s) contrary to the findings of 

previous follow-up reviews, the 

Regional Administrator must apply 

remedial actions to the SWA pursuant 

to § 658.704. 

(2) The Final Notice of 

Noncompliance must specify the time 

by which each corrective action must be 

taken. This period may not exceed 40 

business days unless the Regional 

Administrator determines that 

exceptional circumstances necessitate 

corrective actions requiring a longer 

time period. In such cases, and if the 

violations involve services to MSFWs or 

the Complaint System, the Regional 

Administrator must notify the 

Administrator in writing of the 

exceptional circumstances which 

necessitate more time, and must specify 

the additional time period. The 

specified time must commence with the 

date of signature on the registered mail 

receipt. 

(3) When the time provided for in 

paragraph (h)(2) of this section elapses, 

Department staff must review the SWA’s 

efforts as documented by the SWA to 

determine if the corrective action(s) has 

been taken and if the SWA has achieved 

compliance with ES regulations. If 

necessary, Department staff must 

conduct a follow-up visit as part of this 

review. 

(4) If, as a result of this review, the 

Regional Administrator determines the 

SWA has corrected the violation(s), the 

Regional Administrator must record the 

basis for this determination, notify the 

SWA, send a copy to the Administrator, 

and retain a copy in Department files. 

(5) If, as a result of this review, the 

Regional Administrator determines the 

SWA has taken corrective action but is 

unable to determine if the violation has 

been corrected due to seasonality or 

other factors, the Regional 

Administrator must notify in writing the 

SWA and the Administrator of his/her 

findings. The Regional Administrator 

must conduct further follow-up at an 

appropriate time to make a final 

determination if the violation has been 

corrected. If the Regional 

Administrator’s follow-up reveals that 

violations have not been corrected, the 

Regional Administrator must apply 

remedial actions to the SWA pursuant 

to § 658.704. 

(6) If, as a result of the review the 

Regional Administrator determines the 

SWA has not corrected the violations 

and has not made good faith efforts and 

adequate progress toward the correction 

of the violations, the Regional 

Administrator must apply remedial 

actions to the SWA pursuant to 

§ 658.704. 

(7) If, as a result of the review, the 

Regional Administrator determines the 

SWA has made good faith efforts and 

adequate progress toward the correction 

of the violation and it appears the 

violation will be fully corrected within 

a reasonable amount of time, the SWA 

must be advised by registered mail or 

other legally viable means (with a copy 

sent to the Administrator) of this 

conclusion, of remaining differences, of 

further needed corrective action, and 

that all deficiencies must be corrected 

within a specified time period. This 

period may not exceed 40 business days 

unless the Regional Administrator 

determines exceptional circumstances 

necessitate corrective action requiring 

more time. In such cases, the Regional 

Administrator must notify the 

Administrator in writing of the 

exceptional circumstances which 

necessitate more time, and must specify 

that time period. The specified time 

commences with the date of signature 

on the registered mail receipt. 

(8)(i) If the SWA has been given 

additional time pursuant to paragraph 

(h)(7) of this section, Department staff 

must review the SWA’s efforts as 

documented by the SWA at the end of 

the time period. If necessary, the 

Department must conduct a follow-up 

visit as part of this review. 

(ii) If the SWA has corrected the 

violation(s), the Regional Administrator 

must document that finding, notify in 

writing the SWA and the Administrator, 

and retain supporting documents in 

Department files. If the SWA has not 

corrected the violation(s), the Regional 

Administrator must apply remedial 

actions pursuant to § 658.704. 

§ 658.703 Emergency corrective action. 

In critical situations as determined by 

the Regional Administrator, where it is 

necessary to protect the integrity of the 

funds, or ensure the proper operation of 

the program, the Regional Administrator 

may impose immediate corrective 

action. Where immediate corrective 

action is imposed, the Regional 

Administrator must notify the SWA of 

the reason for imposing the emergency 

corrective action prior to providing the 

SWA an opportunity to comment. 

§ 658.704 Remedial actions. 

(a) If a SWA fails to correct violations 

as determined pursuant to § 658.702, the 

Regional Administrator must apply one 

or more of the following remedial 

actions to the SWA: 

(1) Imposition of special reporting 

requirements for a specified time; 

(2) Restrictions of obligational 

authority within one or more expense 

classifications; 

(3) Implementation of specific 

operating systems or procedures for a 

specified time; 

(4) Requirement of special training for 

SWA personnel; 

(5) With the approval of the Assistant 

Secretary and after affording the State 

Administrator the opportunity to 

request a conference with the Assistant 

Secretary, the elevation of specific 

decision-making functions from the 

State Administrator to the Regional 

Administrator; 

(6) With the approval of the Assistant 

Secretary and after affording the State 

Administrator the opportunity to 

request a conference with the Assistant 

Secretary, the imposition of Federal staff 

in key SWA positions; 

(7) With the approval of the Assistant 

Secretary and after affording the State 

Administrator the opportunity to 

request a conference with the Assistant 

Secretary, funding of the SWA on a 

short-term basis or partial withholding 

of funds for a specific function or for a 

specific geographical area; 

(8) Holding of public hearings in the 

State on the SWA’s deficiencies; 

(9) Disallowance of funds pursuant to 

§ 658.702(g); or 

(10) If the matter involves a serious or 

continual violation, the initiation of 

decertification procedures against the 

State Workforce Agency, as set forth in 

paragraph (e) of this section. 

(b) The Regional Administrator must 

send, by registered mail, a Notice of 

Remedial Action to the SWA. The 

Notice of Remedial Action must set 

forth the reasons for the remedial action. 

When such a notice is the result of 

violations of regulations governing 

services to MSFWs (§§ 653.100 through 

653.113 of this chapter) or the 

Complaint System (§§ 658.400 through 

658.426), a copy of said notice must be 

sent to the Administrator, who must 

publish the notice promptly in the 

Federal Register. 

(c) If the remedial action is other than 

decertification, the notice must state the 

remedial action must take effect 

immediately. The notice also must state 

the SWA may request a hearing 

pursuant to § 658.707 by filing a request 

in writing with the Regional 

Administrator pursuant to § 658.707 

within 20 business days of the SWA’s 

receipt of the notice. The offer of 

hearing, or the acceptance thereof, 

however, does not stay or otherwise 

delay the implementation of remedial 

action. 

(d) Within 60 business days after the 

initial application of remedial action, 

the Regional Administrator must 

conduct a review of the SWA’s 

compliance with ES regulations unless 

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the Regional Administrator determines 

more time is necessary. In such cases, 

the Regional Administrator must notify 

the Administrator in writing of the 

circumstances which necessitate more 

time, and specify that time period. If 

necessary, Department staff must 

conduct a follow-up visit as part of this 

review. If the SWA is in compliance 

with the ES regulations, the Regional 

Administrator must fully document 

these facts and must terminate the 

remedial actions. The Regional 

Administrator must notify the SWA of 

his/her findings. When the case 

involves violations of regulations 

governing services to MSFWs or the 

Complaint System, a copy of said notice 

must be sent to the Administrator, who 

must promptly publish the notice in the 

Federal Register. The Regional 

Administrator must conduct, within a 

reasonable time after terminating the 

remedial actions, a review of the SWA’s 

compliance to determine whether any 

remedial actions must be reapplied. 

(e) If, upon conducting the on-site 

review referred to in paragraph (c) of 

this section, the Regional Administrator 

finds the SWA remains in 

noncompliance, the Regional 

Administrator must continue the 

remedial action and/or impose different 

additional remedial actions. The 

Regional Administrator must fully 

document all such decisions and, when 

the case involves violations of 

regulations governing services to 

MSFWs or the Complaint System, must 

send copies to the Administrator, who 

must promptly publish the notice in the 

Federal Register. 

(f)(1) If the SWA has not brought itself 

into compliance with ES regulations 

within 120 business days of the initial 

application of remedial action, the 

Regional Administrator must initiate 

decertification unless the Regional 

Administrator determines the 

circumstances necessitate continuing 

remedial action for more time. In such 

cases, the Regional Administrator must 

notify the Administrator in writing of 

the circumstances which necessitate the 

extended time, and specify the time 

period. 

(2) The Regional Administrator must 

notify the SWA by registered mail or by 

other legally viable means of the 

decertification proceedings, and must 

state the reasons therefor. Whenever 

such a notice is sent to a SWA, the 

Regional Administrator must prepare 

five copies (hard copies or electronic 

copies) containing, in chronological 

order, all the documents pertinent to the 

case along with a request for 

decertification stating the grounds 

therefor. One copy must be retained. 

Two must be sent to the ETA National 

Office, one must be sent to the Solicitor 

of Labor, Attention: Associate Solicitor 

for Employment and Training, and, if 

the case involves violations of 

regulations governing services to 

MSFWs or the Complaint System, one 

copy must be sent to the NMA. All 

copies also must be sent electronically 

to each respective party. The notice sent 

by the Regional Administrator must be 

published promptly in the Federal 

Register. 

§ 658.705 Decision to decertify. 

(a) Within 30 business days of 

receiving a request for decertification, 

the ETA Assistant Secretary must 

review the case and must decide 

whether to proceed with decertification. 

(b) The Assistant Secretary must grant 

the request for decertification unless he/ 

she makes a finding that: 

(1) The violations of ES regulations 

are neither serious nor continual; 

(2) The SWA is in compliance; or 

(3) The Assistant Secretary has reason 

to believe the SWA will achieve 

compliance within 80 business days 

unless exceptional circumstances 

necessitate more time, pursuant to the 

remedial action already applied or to be 

applied. (In the event the Assistant 

Secretary does not have sufficient 

information to act upon the request, he/ 

she may postpone the determination for 

up to an additional 20 business days in 

order to obtain any available additional 

information.) In making a determination 

of whether violations are ‘‘serious’’ or 

‘‘continual,’’ as required by paragraph 

(b)(1) of this section, the Assistant 

Secretary must consider: 

(i) Statewide or multiple deficiencies 

as shown by performance data and/or 

on-site reviews; 

(ii) Recurrent violations, even if they 

do not persist over consecutive 

reporting periods, and 

(iii) The good faith efforts of the State 

to achieve full compliance with ES 

regulations as shown by the record. 

(c) If the Assistant Secretary denies a 

request for decertification, he/she must 

write a complete report documenting 

his/her findings and, if appropriate, 

instructing an alternate remedial action 

or actions be applied. Electronic copies 

of the report must be sent to the 

Regional Administrator. Notice of the 

Assistant Secretary’s decision must be 

published promptly in the Federal 

Register and the report of the Assistant 

Secretary must be made available for 

public inspection and copying. 

(d) If the Assistant Secretary decides 

decertification is appropriate, he/she 

must submit the case to the Secretary 

providing written explanation for his/

her recommendation of decertification. 

(e) Within 30 business days after 

receiving the Assistant Secretary’s 

report, the Secretary must determine 

whether to decertify the SWA. The 

Secretary must grant the request for 

decertification unless he/she makes one 

of the three findings set forth in 

paragraph (b) of this section. If the 

Secretary decides not to decertify, he/

she must then instruct that remedial 

action be continued or that alternate 

actions be applied. The Secretary must 

write a report explaining his/her reasons 

for not decertifying the SWA and copies 

(hard copy and electronic) will be sent 

to the SWA. Notice of the Secretary’s 

decision must be published promptly in 

the Federal Register, and the report of 

the Secretary must be made available for 

public inspection and copy. 

(f) Where either the Assistant 

Secretary or the Secretary denies a 

request for decertification and orders 

further remedial action, the Regional 

Administrator must continue to monitor 

the SWA’s compliance. If the SWA 

achieves compliance within the time 

established pursuant to paragraph (b) of 

this section, the Regional Administrator 

must terminate the remedial actions. If 

the SWA fails to achieve full 

compliance within that time period after 

the Secretary’s decision not to decertify, 

the Regional Administrator must submit 

a report of his/her findings to the 

Assistant Secretary who must 

reconsider the request for decertification 

pursuant to the requirements of 

paragraph (b) of this section. 

§ 658.706 Notice of decertification. 

If the Secretary decides to decertify a 

SWA, he/she must send a Notice of 

Decertification to the SWA stating the 

reasons for this action and providing a 

10 business day period during which 

the SWA may request an administrative 

hearing in writing to the Secretary. The 

notice must be published promptly in 

the Federal Register. 

§ 658.707 Requests for hearings. 

(a) Any SWA which received a Notice 

of Decertification under § 658.706 or a 

notice of disallowance under 

§ 658.702(g) may request a hearing on 

the issue by filing a written request for 

hearing with the Secretary within 10 

business days of receipt of the notice. 

This request must state the reasons the 

SWA believes the basis of the decision 

to be wrong, and it must be signed by 

the State Administrator (electronic 

signatures may be accepted). 

(b) When the Secretary receives a 

request for a hearing from a SWA, he/ 

she must send copies of a file containing 

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all materials and correspondence 

relevant to the case to the Assistant 

Secretary, the Regional Administrator, 

the Solicitor of Labor, and the 

Department of Labor Chief 

Administrative Law Judge. When the 

case involves violations of regulations 

governing services to MSFWs or the 

Complaint System, a copy must be sent 

to the NMA. 

(c) The Secretary must publish notice 

of hearing in the Federal Register. This 

notice must invite all interested parties 

to attend and to present evidence at the 

hearing. All interested parties who make 

written request to participate must 

thereafter receive copies (hard copy 

and/or electronic) of all documents filed 

in said proceedings. 

§ 658.708 Hearings. 

(a) Upon receipt of a hearing file by 

the Chief Administrative Law Judge, the 

case must be docketed and notice sent 

by electronic mail, other means of 

electronic service, or registered mail, 

return receipt requested, to the Solicitor 

of Labor, Attention: Associate Solicitor 

for Employment and Training, the 

Administrator, the Regional 

Administrator and the State 

Administrator. The notice must set a 

time, place, and date for a hearing on 

the matter and must advise the parties 

that: 

(1) They may be represented at the 

hearing; 

(2) They may present oral and 

documentary evidence at the hearing; 

(3) They may cross-examine opposing 

witnesses at the hearing; and 

(4) They may request rescheduling of 

the hearing if the time, place, or date set 

are inconvenient. 

(b) The Solicitor of Labor or the 

Solicitor’s designee will represent the 

Department at the hearing. 

§ 658.709 Conduct of hearings. 

(a) Proceedings under this section are 

governed by secs. 5 through 8 of the 

Administrative Procedure Act, 5 U.S.C. 

553 et seq. and the rules of practice and 

procedure at subpart A of 29 CFR part 

18, except as otherwise specified in this 

section. 

(b) Technical rules of evidence do not 

apply, but rules or principles designed 

to assure production of the most 

credible evidence available and to 

subject testimony to test by crossexamination, must be applied if 

necessary by the ALJ conducting the 

hearing. The ALJ may exclude 

irrelevant, immaterial, or unduly 

repetitious evidence. All documents and 

other evidence offered or taken for the 

record must be open to examination by 

the parties. Opportunity must be given 

to refute facts and arguments advanced 

on either side of the issue. A transcript 

must be made of the oral evidence 

except to the extent the substance 

thereof is stipulated for the record. 

(c) Discovery may be conducted as 

provided in the rules of practice and 

procedure at 29 CFR 18.50 through 

18.65. 

(d) When a public officer is a 

respondent in a hearing in an official 

capacity and during its pendency dies, 

resigns, or otherwise ceases to hold 

office, the proceeding does not abate 

and the officer’s successor is 

automatically substituted as a party. 

Proceedings following the substitution 

must be in the name of the substituted 

party, but any misnomer not affecting 

the substantive rights of the parties must 

be disregarded. An order of substitution 

may be entered at any time, but the 

omission to enter such an order may not 

affect the substitution. 

§ 658.710 Decision of the Administrative 

Law Judge. 

(a) The ALJ has jurisdiction to decide 

all issues of fact and related issues of 

law and to grant or deny appropriate 

motions, but does not have jurisdiction 

to decide upon the validity of Federal 

statutes or regulations. 

(b) The decision of the ALJ must be 

based on the hearing record, must be in 

writing, and must state the factual and 

legal basis of the decision. The ALJ’s 

decision must be available for public 

inspection and copying. 

(c) Except when the case involves the 

decertification of a SWA, the decision of 

the ALJ will be considered the final 

decision of the Secretary. 

(d) If the case involves the 

decertification of an appeal to the SWA, 

the decision of the ALJ must contain a 

notice stating that, within 30 calendar 

days of the decision, the SWA or the 

Administrator may appeal to the 

Administrative Review Board, United 

States Department of Labor, by sending 

a written appeal to the Administrative 

Review Board. 

§ 658.711 Decision of the Administrative 

Review Board. 

(a) Upon the receipt of an appeal to 

the Administrative Review Board, 

United States Department of Labor, the 

ALJ must certify the record in the case 

to the Administrative Review Board, 

which must make a decision to decertify 

or not on the basis of the hearing record. 

(b) The decision of the Administrative 

Review Board is the final decision of the 

Secretary on decertification appeals. It 

must be in writing, and must set forth 

the factual and legal basis for the 

decision. Notice of the Administrative 

Review Board’s decision must be 

published in the Federal Register, and 

copies must be made available for 

public inspection and copying. 

■ 11. Add part 675 to read as follows: 

PART 675—INTRODUCTION TO THE 

REGULATIONS FOR THE 

WORKFORCE DEVELOPMENT 

SYSTEMS UNDER TITLE I OF THE 

WORKFORCE INNOVATION AND 

OPPORTUNITY ACT 

Sec. 

675.100 What are the purposes of title I of 

the Workforce Innovation and 

Opportunity Act? 

675.200 What do the regulations for 

workforce development systems under 

title I of the Workforce Innovation and 

Opportunity Act cover? 

675.300 What definitions apply to these 

regulations? 

Authority: Secs. 2, 3, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 

§ 675.100 What are the purposes of title I 

of the Workforce Innovation and 

Opportunity Act? 

The purposes of title I of the 

Workforce Innovation and Opportunity 

Act (WIOA) include: 

(a) Increasing access to, and 

opportunities for individuals to receive, 

the employment, education, training, 

and support services necessary to 

succeed in the labor market, with a 

particular focus on those individuals 

with disabilities or other barriers to 

employment including out of school 

youth with the goal of improving their 

outcomes; 

(b) Enhancing the strategic role for 

States and elected officials, and Local 

Workforce Development Boards (WDBs) 

in the public workforce system by 

increasing flexibility to tailor services to 

meet employer and worker needs at 

State, regional, and local levels; 

(c) Streamlining service delivery 

across multiple programs by requiring 

colocation, coordination, and 

integration of activities and information 

to make the system understandable and 

accessible for individuals, including 

individuals with disabilities and those 

with other barriers to employment, and 

businesses. 

(d) Supporting the alignment of the 

workforce investment, education, and 

economic development systems in 

support of a comprehensive, accessible, 

and high-quality workforce 

development system at the Federal, 

State, and local and regional levels; 

(e) Improving the quality and labor 

market relevance of workforce 

investment, education, and economic 

development efforts by promoting the 

use of industry and sector partnerships, 

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career pathways, and regional service 

delivery strategies in order to both 

provide America’s workers with the 

skills and credentials that will enable 

them to secure and advance in 

employment with family-sustaining 

wages, and to provide America’s 

employers with the skilled workers the 

employers need to succeed in a global 

economy; 

(f) Promoting accountability using 

core indicators of performance 

measured across all WIOA authorized 

programs, sanctions, and high quality 

evaluations to improve the structure and 

delivery of services through the 

workforce development system to 

address and improve the employment 

and skill needs of workers, job seekers, 

and employers; 

(g) Increasing the prosperity and 

economic growth of workers, employers, 

communities, regions, and States; and 

(h) Providing workforce development 

activities through statewide and local 

workforce development systems to 

increase employment, retention and 

earnings of participants and to increase 

industry-recognized postsecondary 

credential attainment to improve the 

quality of the workforce, reduce welfare 

dependency, increase economic selfsufficiency, meet skill requirements of 

employers, and enhance productivity 

and competitiveness of the nation. 

§ 675.200 What do the regulations for 

workforce development systems under title 

I of the Workforce Innovation and 

Opportunity Act cover? 

(a) The regulations found in parts 675 

through 688 of this chapter set forth the 

regulatory requirements that are 

applicable to programs operated with 

funds provided under title I of WIOA. 

This part describes the purpose of that 

Act, explains the format of these 

regulations, and sets forth definitions 

for terms that apply to each part. Parts 

676, 677 and 678 of this chapter contain 

regulations relating to Unified and 

Combined State Plans, performance 

accountability, and the one-stop 

delivery system and the roles of onestop partners, respectively. Part 679 of 

this chapter contains regulations 

relating to statewide and local 

governance of the workforce 

development system. Part 680 of this 

chapter sets forth requirements 

applicable to WIOA title I programs 

serving adults and dislocated workers. 

Part 681 of this chapter sets forth 

requirements applicable to WIOA title I 

programs serving youth. Part 682 of this 

chapter contains regulations relating to 

statewide activities. Part 683 of this 

chapter sets forth the administrative 

requirements applicable to programs 

funded under WIOA title I. Parts 684 

and 685 of this chapter contain the 

particular requirements applicable to 

programs serving Indians and Native 

Americans and Migrant and Seasonal 

Farmworkers, respectively. Parts 686 

and 687 of this chapter describe the 

particular requirements applicable to 

the Job Corps and the national 

dislocated worker grant programs, 

respectively. Part 688 of this chapter 

contains the regulations governing the 

YouthBuild program. In addition, part 

603 of this chapter provides the 

requirements regarding confidentiality 

and disclosure of State Unemployment 

Compensation program data under 

WIOA. 

(b) Finally, parts 651 through 658 of 

this chapter address provisions for the 

Wagner-Peyser Act Employment 

Service, as amended by WIOA title III. 

Specifically, part 651 of this chapter 

contains general provisions and 

definitions of terms used in parts 651 

through 658 of this chapter; part 652 of 

this chapter establishes the State 

Employment Service and describes its 

operation and services; part 653 of this 

chapter describes employment services 

to migrant and seasonal farmworkers 

and the role of the State Monitor 

Advocate; part 654 of this chapter 

addresses the special responsibilities of 

the Employment Service regarding 

housing for farmworkers; and part 658 

of this chapter contains the 

administrative provisions that apply to 

the Wagner-Peyser Act Employment 

Service. 

(c) Title 29 CFR part 38 contains the 

Department’s nondiscrimination 

regulations implementing WIOA sec. 

188. 

§ 675.300 What definitions apply to these 

regulations? 

In addition to the definitions set forth 

in WIOA and those set forth in specific 

parts of this chapter, the following 

definitions apply to the regulations in 

parts 675 through 688 of this chapter: 

Consultation means the process by 

which State and/or local stakeholders 

convene to discuss changes to the 

public workforce system and constitutes 

a robust conversation in which all 

parties are given an opportunity to share 

their thoughts and opinions. 

Contract means a legal instrument by 

which a non-Federal entity purchases 

property or services needed to carry out 

the project or program under a Federal 

award. The term as used in this part 

does not include a legal instrument, 

even if the non-Federal entity considers 

it a contract, when the substance of the 

transaction meets the definition of a 

Federal award or subaward as defined 

in this section. 

Contractor means an entity that 

receives a contract as defined in this 

section. 

Cooperative agreement means a legal 

instrument of financial assistance 

between a Federal awarding agency or 

pass-through entity and a non-Federal 

entity that, consistent with 31 U.S.C. 

6302–6305: 

(1) Is used to enter into a relationship 

the principal purpose of which is to 

transfer anything of value from the 

Federal awarding agency or passthrough entity to the non-Federal entity 

to carry out a public purpose authorized 

by a law of the United States (see 31 

U.S.C. 6101(3)); and not to acquire 

property or services for the Federal 

government or pass-through entity’s 

direct benefit or use; 

(2) Is distinguished from a grant in 

that it provides for substantial 

involvement between the Federal 

awarding agency or pass-through entity 

and the non-Federal entity in carrying 

out the activity contemplated by the 

Federal award. 

(3) The term does not include: 

(i) A cooperative research and 

development agreement as defined in 15 

U.S.C. 3710a; or 

(ii) An agreement that provides only: 

(A) Direct United States Government 

cash assistance to an individual; 

(B) A subsidy; 

(C) A loan; 

(D) A loan guarantee; or 

(E) Insurance. 

Department means the U.S. 

Department of Labor, including its 

agencies and organizational units. 

Employment and training activity 

means a workforce investment activity 

that is carried out for an adult or 

dislocated worker under part 678 of this 

chapter. 

Equal opportunity data or EO data 

means data on race and ethnicity, age, 

sex, and disability required by 29 CFR 

part 38 of the Department of Labor 

regulations implementing sec. 188 of 

WIOA, governing nondiscrimination. 

Employment and Training 

Administration or ETA means the 

Employment and Training 

Administration of the U.S. Department 

of Labor. 

Family means two or more persons 

related by blood, marriage, or decree of 

court, who are living in a single 

residence, and are included in one or 

more of the following categories: 

(1) A married couple and dependent 

children; 

(2) A parent or guardian and 

dependent children; or 

(3) A married couple. 

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Federal award means: 

(1) The Federal financial assistance 

that a non-Federal entity receives 

directly from a Federal awarding agency 

or indirectly from a pass-through entity, 

as described in 2 CFR 200.101 

(Applicability); 

(2) The cost-reimbursement contract 

under the Federal Acquisition 

Regulations that a non-Federal entity 

receives directly from a Federal 

awarding agency or indirectly from a 

pass-through entity, as described in 2 

CFR 200.101 (Applicability); and 

(3) The instrument setting forth the 

terms and conditions. The instrument is 

the grant agreement, cooperative 

agreement, other agreement for 

assistance covered in paragraph (b) of 2 

CFR 200.40 (Federal financial 

assistance), or the cost-reimbursement 

contract awarded under the Federal 

Acquisition Regulations. 

(4) Federal award does not include 

other contracts that a Federal agency 

uses to buy goods or services from a 

contractor or a contract to operate 

Federal government owned, contractor 

operated facilities (GOCOs). 

Federal financial assistance means: 

(1) For grants and cooperative 

agreements, assistance in the form of: 

(i) Grants; 

(ii) Cooperative agreements; 

(iii) Non-cash contributions or 

donations of property (including 

donated surplus property); 

(iv) Direct appropriations; 

(v) Food commodities; and 

(vi) Other financial assistance, except 

assistance listed in paragraph (2) of this 

definition. 

(2) For purposes of the audit 

requirements at 2 CFR part 200, subpart 

F, Federal financial assistance includes 

assistance that non-Federal entities 

receive or administer in the form of: 

(i) Loans; 

(ii) Loan Guarantees; 

(iii) Interest subsidies; and 

(iv) Insurance. 

(3) Federal financial assistance does 

not include amounts received as 

reimbursement for services rendered to 

individuals as described in 2 CFR 

200.502, which outlines the basis for 

determining Federal awards expended. 

Grant or grant agreement means a 

legal instrument of financial assistance 

between a Federal awarding agency and 

a non-Federal entity that, consistent 

with 31 U.S.C. 6302, 6304: 

(1) Is used to enter into a relationship 

the principal purpose of which is to 

transfer anything of value from the 

Federal awarding agency to carry out a 

public purpose authorized by a law of 

the United States (see 31 U.S.C. 

6101(3)); and not to acquire property or 

services for the Federal awarding 

agency’s direct benefit or use; 

(2) Is distinguished from a cooperative 

agreement in that it does not provide for 

substantial involvement between the 

Federal awarding agency or passthrough entity and the non-Federal 

entity in carrying out the activity 

contemplated by the Federal award. 

(3) Grant agreement does not include 

an agreement that provides only: 

(i) Direct United States Government 

cash assistance to an individual; 

(ii) A subsidy; 

(iii) A loan; 

(iv) A loan guarantee; or 

(v) Insurance. 

Grantee means the direct recipient of 

grant funds from the Department of 

Labor under a grant or grant agreement. 

A grantee also may be referred to as a 

recipient. 

Individual with a disability means an 

individual with any disability as 

defined in sec. 3 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12102). For purposes of WIOA sec. 188, 

this term is defined at 29 CFR 38.4. 

Labor Federation means an alliance of 

two or more organized labor unions for 

the purpose of mutual support and 

action. 

Literacy means an individual’s ability 

to read, write, and speak in English, and 

to compute, and solve problems, at 

levels of proficiency necessary to 

function on the job, in the family of the 

individual, and in society. 

Local WDB means a Local Workforce 

Development Board (WDB) established 

under WIOA sec. 107, to set policy for 

the local workforce development 

system. 

Non-Federal entity, as defined in 2 

CFR 2900.2, means a State, local 

government, Indian tribe, institution of 

higher education (IHE), for-profit entity, 

foreign public entity, foreign 

organization or nonprofit organization 

that carries out a Federal award as a 

recipient or subrecipient. 

Obligations when used in connection 

with a non-Federal entity’s utilization of 

funds under a Federal award, means 

orders placed for property and services, 

contracts and subawards made, and 

similar transactions during a given 

period that require payment by the nonFederal entity during the same or a 

future period. 

Outlying area means: 

(1) The United States Virgin Islands, 

Guam, American Samoa, the 

Commonwealth of the Northern Mariana 

Islands; and 

(2) The Republic of Palau, except 

during a period that the Secretaries 

determine both that a Compact of Free 

Association is in effect and that the 

Compact contains provisions for 

training and education assistance 

prohibiting the assistance provided 

under WIOA. 

Pass-through entity means a nonFederal entity that provides a subaward 

to a subrecipient to carry out part of a 

Federal program. 

Recipient means a non-Federal entity 

that receives a Federal award directly 

from a Federal awarding agency to carry 

out an activity under a Federal program. 

The term recipient does not include 

subrecipients. 

Register means the process for 

collecting information, including 

identifying information, to determine an 

individual’s eligibility for services 

under WIOA title I. Individuals may be 

registered in a variety ways, as 

described in § 680.110 of this chapter. 

Secretary means the Secretary of the 

U.S. Department of Labor, or their 

designee. 

Secretaries means the Secretaries of 

the U.S. Department Labor and the U.S. 

Department of Education, or their 

designees. 

Self-certification means an 

individual’s signed attestation that the 

information they submit to demonstrate 

eligibility for a program under title I of 

WIOA is true and accurate. 

State means each of the several States 

of the United States, the District of 

Columbia, and the Commonwealth of 

Puerto Rico. The term ‘‘State’’ does not 

include outlying areas. 

State WDB means a State Workforce 

Development Board (WDB) established 

under WIOA sec. 101. 

Subgrant or subaward means an 

award provided by a pass-through entity 

to a subrecipient for the subrecipient to 

carry out part of a Federal award 

received by the pass-through entity. It 

does not include payments to a 

contractor or payments to an individual 

that is a beneficiary of a Federal 

program. A subaward may be provided 

through any form of legal agreement, 

including an agreement that the passthrough entity considers a contract. 

Subrecipient means a non-Federal 

entity that receives a subaward from a 

pass-through entity to carry out part of 

a Federal program, but does not include 

an individual that is a beneficiary of 

such program. A subrecipient also may 

be a recipient of other Federal awards 

directly from a Federal awarding 

agency. 

Unliquidated obligations means, for 

financial reports prepared on a cash 

basis, obligations incurred by the nonFederal entity that have not been paid 

(liquidated). For reports prepared on an 

accrual expenditure basis, these are 

obligations incurred by the non-Federal 

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entity for which an expenditure has not 

been recorded. 

Unobligated balance means the 

amount of funds under a Federal award 

that the non-Federal entity has not 

obligated. The amount is computed by 

subtracting the cumulative amount of 

the non-Federal entity’s unliquidated 

obligations and expenditures of funds 

under the Federal award from the 

cumulative amount of the funds that the 

Federal awarding agency or passthrough entity authorized the nonFederal entity to obligate. 

Wagner-Peyser Act means the Act of 

June 6, 1933, as amended, codified at 29 

U.S.C. 49 et seq. 

WIA regulations mean the regulations 

in parts 660 through 672 of this chapter, 

the Wagner-Peyser Act regulations in 

part 652, subpart C, of this chapter, and 

the regulations implementing WIA sec. 

188 in 29 CFR part 37. 

WIOA regulations mean the 

regulations in parts 675 through 687 of 

this chapter, the Wagner-Peyser Act 

regulations in part 652, subpart C, of 

this chapter, and the regulations 

implementing WIA sec. 188 in 29 CFR 

part 38. 

Workforce investment activities mean 

the array of activities permitted under 

title I of WIOA, which include 

employment and training activities for 

adults and dislocated workers, as 

described in WIOA sec. 134, and youth 

activities, as described in WIOA sec. 

129. 

Youth workforce investment activity 

means a workforce investment activity 

that is carried out for eligible youth 

under part 679 of this chapter. 

■ 12. Add part 679 to read as follows: 

PART 679—STATEWIDE AND LOCAL 

GOVERNANCE OF THE WORKFORCE 

DEVELOPMENT SYSTEM UNDER 

TITLE I OF THE WORKFORCE 

INNOVATION AND OPPORTUNITY ACT 

Subpart A—State Workforce 

Development Board 

Sec. 

679.100 What is the purpose of the State 

Workforce Development Board? 

679.110 What is the State Workforce 

Development Board? 

679.120 What is meant by the terms 

‘‘optimum policy-making authority’’ and 

‘‘demonstrated experience and 

expertise’’? 

679.130 What are the functions of the State 

Workforce Development Board? 

679.140 How does the State Workforce 

Development Board meet its requirement 

to conduct business in an open manner 

under ‘‘sunshine provision’’ of the 

Workforce Innovation and Opportunity 

Act? 

679.150 Under what circumstances may the 

Governor select an alternative entity in 

place of the State Workforce 

Development Board? 

679.160 Under what circumstances may the 

State Workforce Development Board hire 

staff? 

Subpart B—Workforce Innovation and 

Opportunity Act Local Governance 

(Workforce Development Areas) 

Sec. 

679.200 What is the purpose of requiring 

States to identify regions? 

679.210 What are the requirements for 

identifying a region? 

679.220 What is the purpose of the local 

area? 

679.230 What are the general procedural 

requirements for designation of local 

areas? 

679.240 What are the substantive 

requirements for designation of local 

areas that were not designated as local 

areas under the Workforce Investment 

Act of 1998? 

679.250 What are the requirements for 

initial and subsequent designation of 

workforce development areas that had 

been designated as local areas under the 

Workforce Investment Act of 1998? 

679.260 What do the terms ‘‘performed 

successfully’’ and ‘‘sustained fiscal 

integrity’’ mean for purposes of 

designating local areas? 

679.270 What are the special designation 

provisions for single-area States? 

679.280 How does the State fulfill the 

requirement to provide assistance to 

local areas within a planning region that 

wish to redesignate into a single local 

area? 

679.290 What right does an entity have to 

appeal the Governor’s decision rejecting 

a request for designation as a workforce 

development area? 

Subpart C—Local Workforce Development 

Boards 

Sec. 

679.300 What is the vision and purpose of 

the Local Workforce Development 

Board? 

679.310 What is the Local Workforce 

Development Board? 

679.320 Who are the required members of 

the Local Workforce Development 

Board? 

679.330 Who must chair a Local Workforce 

Development Board? 

679.340 What is meant by the terms 

‘‘optimum policy-making authority’’ and 

‘‘demonstrated experience and 

expertise’’? 

679.350 What criteria will be used to 

establish the membership of the Local 

Workforce Development Board? 

679.360 What is a standing committee, and 

what is its relationship to the Local 

Workforce Development Board? 

679.370 What are the functions of the Local 

Workforce Development Board? 

679.380 How does the Local Workforce 

Development Board satisfy the consumer 

choice requirements for career services 

and training services? 

679.390 How does the Local Workforce 

Development Board meet its requirement 

to conduct business in an open manner 

under the ‘‘sunshine provision’’ of the 

Workforce Innovation and Opportunity 

Act? 

679.400 Who are the staff to the Local 

Workforce Development Board and what 

is their role? 

679.410 Under what conditions may a Local 

Workforce Development Board directly 

be a provider of career services, or 

training services, or act as a one-stop 

operator? 

679.420 What are the functions of the local 

fiscal agent? 

679.430 How do entities performing 

multiple functions in a local area 

demonstrate internal controls and 

prevent conflict of interest? 

Subpart D—Regional and Local Plan 

Sec. 

679.500 What is the purpose of the regional 

and local plan? 

679.510 What are the requirements for 

regional planning? 

679.520 What are the requirements for 

approval of a regional plan? 

679.530 When must the regional plan be 

modified? 

679.540 How are local planning 

requirements reflected in a regional 

plan? 

679.550 What are the requirements for the 

development of the local plan? 

679.560 What are the contents of the local 

plan? 

679.570 What are the requirements for 

approval of a local plan? 

679.580 When must the local plan be 

modified? 

Subpart E—Waivers/WorkFlex (Workforce 

Flexibility Plan) 

Sec. 

679.600 What is the purpose of the general 

statutory and regulatory waiver authority 

in the Workforce Innovation and 

Opportunity Act? 

679.610 What provisions of the Workforce 

Innovation and Opportunity Act and the 

Wagner-Peyser Act may be waived, and 

what provisions may not be waived? 

679.620 Under what conditions may a 

Governor request, and the Secretary 

approve, a general waiver of statutory or 

regulatory requirements under the 

Workforce Innovation and Opportunity 

Act? 

679.630 Under what conditions may the 

Governor submit a workforce flexibility 

plan? 

679.640 What limitations apply to the 

State’s workforce flexibility plan 

authority under the Workforce 

Innovation and Opportunity Act? 

Authority: Secs. 101, 106, 107, 108, 189, 

503, Public Law 113–128, 128 Stat. 1425 (Jul. 

22, 2014). 

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56372 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Subpart A—State Workforce 

Development Board 

§ 679.100 What is the purpose of the State 

Workforce Development Board? 

The purpose of the State Workforce 

Development Board (WDB) is to 

convene State, regional, and local 

workforce system and partners, to— 

(a) Enhance the capacity and 

performance of the workforce 

development system; 

(b) Align and improve the outcomes 

and effectiveness of Federally-funded 

and other workforce programs and 

investments; and 

(c) Through these efforts, promote 

economic growth. 

(d) Engage public workforce system 

representatives, including businesses, 

education providers, economic 

development, labor representatives, and 

other stakeholders to help the workforce 

development system achieve the 

purpose of the Workforce Innovation 

and Opportunity Act (WIOA); and 

(e) Assist to achieve the State’s 

strategic and operational vision and 

goals as outlined in the State Plan. 

§ 679.110 What is the State Workforce 

Development Board? 

(a) The State WDB is a board 

established by the Governor in 

accordance with the requirements of 

WIOA sec. 101 and this section. 

(b) The membership of the State WDB 

must meet the requirements of WIOA 

sec. 101(b) and must represent diverse 

geographic areas of the State, including 

urban, rural, and suburban areas. The 

WDB membership must include: 

(1) The Governor; 

(2) A member of each chamber of the 

State legislature, appointed by the 

appropriate presiding officers of such 

chamber, as appropriate under State 

law; and 

(3) Members appointed by the 

Governor, which must include: 

(i) A majority of representatives of 

businesses or organizations in the State 

who: 

(A) Are the owner or chief executive 

officer for the business or organization, 

or is an executive with the business or 

organization with optimum policymaking or hiring authority, and also 

may be members of a Local WDB as 

described in WIOA sec. 107(b)(2)(A)(i); 

(B) Represent businesses, or 

organizations that represent businesses 

described in paragraph (b)(3)(i) of this 

section, that, at a minimum, provide 

employment and training opportunities 

that include high-quality, work-relevant 

training and development in in-demand 

industry sectors or occupations in the 

State; and 

(C) Are appointed from a list of 

potential members nominated by State 

business organizations and business 

trade associations; and 

(D) At a minimum, one member 

representing small businesses as defined 

by the U.S. Small Business 

Administration. 

(ii) Not less than 20 percent who are 

representatives of the workforce within 

the State, which: 

(A) Must include two or more 

representatives of labor organizations 

nominated by State labor federations; 

(B) Must include one representative 

who must be a member of a labor 

organization or training director from a 

joint labor-management registered 

apprenticeship program, or, if no such 

joint program exists in the State, a 

member of a labor organization or 

training director who is a representative 

of an registered apprenticeship program; 

(C) May include one or more 

representatives of community-based 

organizations that have demonstrated 

experience and expertise in addressing 

the employment, training, or education 

needs of individuals with barriers to 

employment, including organizations 

that serve veterans or provide or support 

competitive, integrated employment for 

individuals with disabilities; and 

(D) May include one or more 

representatives of organizations that 

have demonstrated experience and 

expertise in addressing the employment, 

training, or education needs of eligible 

youth, including representatives of 

organizations that serve out-of-school 

youth. 

(iii) The balance of the members: 

(A) Must include representatives of 

the Government including: 

(1) The lead State officials with 

primary responsibility for the following 

core programs— 

(i) The adult, dislocated worker, and 

youth programs authorized under title I 

of WIOA and the Wagner-Peyser Act; 

(ii) The Adult Education and Family 

Literacy Act (AEFLA) program 

authorized under title II of WIOA; and 

(iii) The State Vocational 

Rehabilitation (VR) program authorized 

under the Rehabilitation Act of 1973, as 

amended by title IV of WIOA. 

(iv) Where the lead official represents 

more than one core program, that 

official must ensure adequate 

representation of the needs of all core 

programs under his or her jurisdiction. 

(2) Two or more chief elected officials 

(collectively representing both cities 

and counties, where appropriate). 

(B) May include other appropriate 

representatives and officials designated 

by the Governor, such as, but not 

limited to, State agency officials 

responsible for one-stop partner 

programs, economic development or 

juvenile justice programs in the State, 

individuals who represent an Indian 

tribe or tribal organization as defined in 

WIOA sec. 166(b), and State agency 

officials responsible for education 

programs in the State, including chief 

executive officers of community 

colleges and other institutions of higher 

education. 

(c) The Governor must select a 

chairperson for the State WDB from the 

business representatives on the WDB 

described in paragraph (b)(3)(i) of this 

section). 

(d) The Governor must establish bylaws that at a minimum address: 

(1) The nomination process used by 

the Governor to select the State WDB 

chair and members; 

(2) The term limitations and how the 

term appointments will be staggered to 

ensure only a portion of membership 

expire in a given year; 

(3) The process to notify the Governor 

of a WDB member vacancy to ensure a 

prompt nominee; 

(4) The proxy and alternative designee 

process that will be used when a WDB 

member is unable to attend a meeting 

and assigns a designee as per the 

following requirements: 

(i) If the alternative designee is a 

business representative, he or she must 

have optimum policy-making hiring 

authority. 

(ii) Other alternative designees must 

have demonstrated experience and 

expertise and optimum policy-making 

authority. 

(5) The use of technology, such as 

phone and Web-based meetings, that 

must be used to promote WDB member 

participation; 

(6) The process to ensure members 

actively participate in convening the 

workforce development system’s 

stakeholders, brokering relationships 

with a diverse range of employers, and 

leveraging support for workforce 

development activities; and 

(7) Other conditions governing 

appointment or membership on the 

State WDB as deemed appropriate by 

the Governor. 

(e) Members who represent 

organizations, agencies or other entities 

described in paragraphs (b)(3)(ii) 

through (iii) of this section must be 

individuals who have optimum policymaking authority in the organization or 

for the core program that they represent. 

(f)(1) A State WDB member may not 

represent more than one of the 

categories described in: 

(i) Paragraph (b)(3)(i) of this section 

(business representatives); 

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(ii) Paragraph (b)(3)(ii) of this section 

(workforce representatives); or 

(iii) Paragraph (b)(3)(iii) of this section 

(government representatives). 

(2) A State WDB member may not 

serve as a representative of more than 

one subcategory under paragraph 

(b)(3)(ii) of this section. 

(3) A State WDB member may not 

serve as a representative of more than 

one subcategory under paragraph 

(b)(3)(iii) of this section, except that 

where a single government agency is 

responsible for multiple required 

programs, the head of the agency may 

represent each of the required programs. 

(g) All required WDB members must 

have voting privileges. The Governor 

also may convey voting privileges to 

non-required members. 

§ 679.120 What is meant by the terms 

‘‘optimum policy-making authority’’ and 

‘‘demonstrated experience and expertise’’? 

For purposes of § 679.110: 

(a) A representative with ‘‘optimum 

policy-making authority’’ is an 

individual who can reasonably be 

expected to speak affirmatively on 

behalf of the entity he or she represents 

and to commit that entity to a chosen 

course of action. 

(b) A representative with 

‘‘demonstrated experience and 

expertise’’ means an individual with 

documented leadership in developing or 

implementing workforce development, 

human resources, training and 

development, or a core program 

function. Demonstrated experience and 

expertise may include individuals with 

experience in education or training of 

job seekers with barriers to employment 

as described in § 679.110(b)(3)(ii)(C) and 

(D). 

§ 679.130 What are the functions of the 

State Workforce Development Board? 

Under WIOA sec. 101(d), the State 

WDB must assist the Governor in the: 

(a) Development, implementation, 

and modification of the 4-year State 

Plan; 

(b) Review of statewide policies, 

programs, and recommendations on 

actions that must be taken by the State 

to align workforce development 

programs to support a comprehensive 

and streamlined workforce development 

system. Such review of policies, 

programs, and recommendations must 

include a review and provision of 

comments on the State Plans, if any, for 

programs and activities of one-stop 

partners that are not core programs; 

(c) Development and continuous 

improvement of the workforce 

development system, including— 

(1) Identification of barriers and 

means for removing barriers to better 

coordinate, align, and avoid duplication 

among programs and activities; 

(2) Development of strategies to 

support career pathways for the purpose 

of providing individuals, including lowskilled adults, youth, and individuals 

with barriers to employment, including 

individuals with disabilities, with 

workforce investment activities, 

education, and supportive services to 

enter or retain employment; 

(3) Development of strategies to 

provide effective outreach to and 

improved access for individuals and 

employers who could benefit from 

workforce development system; 

(4) Development and expansion of 

strategies to meet the needs of 

employers, workers, and job seekers 

particularly through industry or sector 

partnerships related to in-demand 

industry sectors and occupations; 

(5) Identification of regions, including 

planning regions for the purposes of 

WIOA sec. 106(a), and the designation 

of local areas under WIOA sec. 106, 

after consultation with Local WDBs and 

chief elected officials; 

(6) Development and continuous 

improvement of the one-stop delivery 

system in local areas, including 

providing assistance to Local WDBs, 

one-stop operators, one-stop partners, 

and providers. Such assistance includes 

assistance with planning and delivering 

services, including training and 

supportive services, to support effective 

delivery of services to workers, job 

seekers, and employers; and 

(7) Development of strategies to 

support staff training and awareness 

across the workforce development 

system and its programs; 

(d) Development and updating of 

comprehensive State performance and 

accountability measures to assess core 

program effectiveness under WIOA sec. 

116(b); 

(e) Identification and dissemination of 

information on best practices, including 

best practices for— 

(1) The effective operation of one-stop 

centers, relating to the use of business 

outreach, partnerships, and service 

delivery strategies, including strategies 

for serving individuals with barriers to 

employment; 

(2) The development of effective Local 

WDBs, which may include information 

on factors that contribute to enabling 

Local WDBs to exceed negotiated local 

levels of performance, sustain fiscal 

integrity, and achieve other measures of 

effectiveness; and 

(3) Effective training programs that 

respond to real-time labor market 

analysis, that effectively use direct 

assessment and prior learning 

assessment to measure an individual’s 

prior knowledge, skills, competencies, 

and experiences for adaptability, to 

support efficient placement into 

employment or career pathways; 

(f) Development and review of 

statewide policies affecting the 

coordinated provision of services 

through the State’s one-stop delivery 

system described in WIOA sec. 121(e), 

including the development of— 

(1) Objective criteria and procedures 

for use by Local WDBs in assessing the 

effectiveness, physical and 

programmatic accessibility and 

continuous improvement of one-stop 

centers. Where a Local WDB serves as 

the one-stop operator, the State WDB 

must use such criteria to assess and 

certify the one-stop center; 

(2) Guidance for the allocation of onestop center infrastructure funds under 

WIOA sec. 121(h); and 

(3) Policies relating to the appropriate 

roles and contributions of entities 

carrying out one-stop partner programs 

within the one-stop delivery system, 

including approaches to facilitating 

equitable and efficient cost allocation in 

the system; 

(g) Development of strategies for 

technological improvements to facilitate 

access to, and improve the quality of 

services and activities provided through 

the one-stop delivery system, including 

such improvements to— 

(1) Enhance digital literacy skills (as 

defined in sec. 202 of the Museum and 

Library Service Act, 20 U.S.C. 9101); 

(2) Accelerate acquisition of skills and 

recognized postsecondary credentials by 

participants; 

(3) Strengthen professional 

development of providers and 

workforce professionals; and 

(4) Ensure technology is accessible to 

individuals with disabilities and 

individuals residing in remote areas; 

(h) Development of strategies for 

aligning technology and data systems 

across one-stop partner programs to 

enhance service delivery and improve 

efficiencies in reporting on performance 

accountability measures, including 

design implementation of common 

intake, data collection, case 

management information, and 

performance accountability 

measurement and reporting processes 

and the incorporation of local input into 

such design and implementation to 

improve coordination of services across 

one-stop partner programs; 

(i) Development of allocation 

formulas for the distribution of funds for 

employment and training activities for 

adults and youth workforce investment 

activities, to local areas as permitted 

under WIOA secs. 128(b)(3) and 

133(b)(3); 

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(j) Preparation of the annual reports 

described in paragraphs (1) and (2) of 

WIOA sec. 116(d); 

(k) Development of the statewide 

workforce and labor market information 

system described in sec. 15(e) of the 

Wagner-Peyser Act; and 

(l) Development of other policies as 

may promote statewide objectives for 

and enhance the performance of the 

workforce development system in the 

State. 

§ 679.140 How does the State Workforce 

Development Board meet its requirement to 

conduct business in an open manner under 

the ‘‘sunshine provision’’ of the Workforce 

Innovation and Opportunity Act? 

(a) The State WDB must conduct 

business in an open manner as required 

by WIOA sec. 101(g). 

(b) The State WDB must make 

available to the public, on a regular 

basis through electronic means and 

open meetings, information about the 

activities and functions of the State 

WDB, including: 

(1) The State Plan, or modification to 

the State Plan, prior to submission of 

the State Plan or modification of the 

State Plan; 

(2) Information regarding 

membership; 

(3) Minutes of formal meetings of the 

State WDB upon request; 

(4) State WDB by-laws as described at 

§ 679.110(d). 

§ 679.150 Under what circumstances may 

the Governor select an alternative entity in 

place of the State Workforce Development 

Board? 

(a) The State may use any State entity 

that meets the requirements of WIOA 

sec. 101(e) to perform the functions of 

the State WDB. This may include: 

(1) A State council; 

(2) A State WDB within the meaning 

of the Workforce Investment Act of 

1998, as in effect on the day before the 

date of enactment of WIOA; or 

(3) A combination of regional WDBs 

or similar entity. 

(b) If the State uses an alternative 

entity, the State Plan must demonstrate 

that the alternative entity meets all three 

of the requirements of WIOA sec. 

101(e)(1): 

(1) Was in existence on the day before 

the date of enactment of the Workforce 

Investment Act of 1998 (WIA); 

(2) Is substantially similar to the State 

WDB described in WIOA secs. 101(a)– 

(c) and § 679.110; and 

(3) Includes representatives of 

business and labor organizations in the 

State. 

(c) If the alternative entity does not 

provide representatives for each of the 

categories required under WIOA sec. 

101(b), the State Plan must explain the 

manner in which the State will ensure 

an ongoing role for any unrepresented 

membership group in the workforce 

development system. The State WDB 

must maintain an ongoing and 

meaningful role for an unrepresented 

membership group, including entities 

carrying out the core programs, by such 

methods as: 

(1) Regularly scheduled consultations 

with entities within the unrepresented 

membership groups; 

(2) Providing an opportunity for input 

into the State Plan or other policy 

development by unrepresented 

membership groups; and 

(3) Establishing an advisory 

committee of unrepresented 

membership groups. 

(d) In parts 675 through 687 of this 

chapter, all references to the State WDB 

also apply to an alternative entity used 

by a State. 

§ 679.160 Under what circumstances may 

the State Workforce Development Board 

hire staff? 

(a) The State WDB may hire a director 

and other staff to assist in carrying out 

the functions described in WIOA sec. 

101(d) and § 679.130 using funds 

described in WIOA sec. 129(b)(3) or sec. 

134(a)(3)(B)(i). 

(b) The State WDB must establish and 

apply a set of objective qualifications for 

the position of director that ensures the 

individual selected has the requisite 

knowledge, skills, and abilities to meet 

identified benchmarks and to assist in 

effectively carrying out the functions of 

the State WDB. 

(c) The director and staff must be 

subject to the limitations on the 

payment of salary and bonuses 

described in WIOA sec. 194(15). 

Subpart B—Workforce Innovation and 

Opportunity Act Local Governance 

(Workforce Development Areas) 

§ 679.200 What is the purpose of requiring 

States to identify regions? 

The purpose of identifying regions is 

to align workforce development 

activities and resources with larger 

regional economic development areas 

and available resources to provide 

coordinated and efficient services to 

both job seekers and employers. 

§ 679.210 What are the requirements for 

identifying a region? 

(a) The Governor must assign local 

areas to a region prior to submission of 

the State Unified or Combined Plan, in 

order for the State to receive WIOA title 

I, subtitle B adult, dislocated worker, 

and youth allotments. 

(b) The Governor must develop a 

policy and process for identifying 

regions. Such policy must include: 

(1) Consultation with the Local WDBs 

and chief elected officials (CEOs) in the 

local area(s) as required in WIOA sec. 

102(b)(2)(D)(i)(II) and WIOA sec. 

106(a)(1); and 

(2) Consideration of the extent to 

which the local areas in a proposed 

region: 

(i) Share a single labor market; 

(ii) Share a common economic 

development area; and 

(iii) Possess the Federal and nonFederal resources, including appropriate 

education and training institutions, to 

administer activities under WIOA 

subtitle B. 

(c) In addition to the required criteria 

described in paragraph (b)(2) of this 

section, other factors the Governor also 

may consider include: 

(1) Population centers; 

(2) Commuting patterns; 

(3) Land ownership; 

(4) Industrial composition; 

(5) Location quotients; 

(6) Labor force conditions; 

(7) Geographic boundaries; and 

(8) Additional factors as determined 

by the Secretary. 

(d) Regions must consist of: 

(1) One local area; 

(2) Two or more contiguous local 

areas in a single State; or 

(3) Two or more contiguous local 

areas in two or more States. 

(e) Planning regions are those regions 

described in paragraph (d)(2) or (3) of 

this section. Planning regions are 

subject to the regional planning 

requirements in § 679.510. 

§ 679.220 What is the purpose of the local 

area? 

(a) The purpose of a local area is to 

serve as a jurisdiction for the 

administration of workforce 

development activities and execution of 

adult, dislocated worker, and youth 

funds allocated by the State. Such areas 

may be aligned with a region identified 

in WIOA sec. 106(a)(1) or may be 

components of a planning region, each 

with its own Local WDB. Also, 

significantly, local areas are the areas 

within which Local WDBs oversee their 

functions, including strategic planning, 

operational alignment and service 

delivery design, and a jurisdiction 

where partners align resources at a subState level to design and implement 

overall service delivery strategies. 

(b) The Governor must designate local 

areas (local areas) in order for the State 

to receive adult, dislocated worker, and 

youth funding under title I, subtitle B of 

WIOA. 

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§ 679.230 What are the general procedural 

requirements for designation of local 

areas? 

As part of the process of designating 

or redesignating a local area, the 

Governor must develop a policy for 

designation of local areas that must 

include: 

(a) Consultation with the State WDB; 

(b) Consultation with the chief elected 

officials and affected Local WDBs; and 

(c) Consideration of comments 

received through a public comment 

process which must: 

(1) Offer adequate time for public 

comment prior to designation of the 

local area; and 

(2) Provide an opportunity for 

comment by representatives of Local 

WDBs, chief elected officials, 

businesses, institutions of higher 

education, labor organizations, other 

primary stakeholders, and the general 

public regarding the designation of the 

local area. 

§ 679.240 What are the substantive 

requirements for designation of local areas 

that were not designated as local areas 

under the Workforce Investment Act of 

1998? 

(a) Except as provided in § 679.250, 

the Governor may designate or 

redesignate a local area in accordance 

with policies and procedures developed 

by the Governor, which must include at 

a minimum consideration of the extent 

to which the proposed area: 

(1) Is consistent with local labor 

market areas; 

(2) Has a common economic 

development area; and 

(3) Has the Federal and non-Federal 

resources, including appropriate 

education and training institutions, to 

administer activities under WIOA 

subtitle B. 

(b) The Governor may approve a 

request at any time for designation as a 

workforce development area from any 

unit of general local government, 

including a combination of such units, 

if the State WDB determines that the 

area meets the requirements of 

paragraph (a)(1) of this section and 

recommends designation. 

(c) Regardless of whether a local area 

has been designated under this section 

or § 679.250, the Governor may 

redesignate a local area if the 

redesignation has been requested by a 

local area and the Governor approves 

the request. 

§ 679.250 What are the requirements for 

initial and subsequent designation of 

workforce development areas that had been 

designated as local areas under the 

Workforce Investment Act of 1998? 

(a) If the chief elected official and 

Local WDB in a local area submits a 

request for initial designation, the 

Governor must approve the request if, 

for the 2 program years preceding the 

date of enactment of WIOA, the 

following criteria are met: 

(1) The local area was designated as 

a local area for purposes of WIA; 

(2) The local area performed 

successfully; and 

(3) The local area sustained fiscal 

integrity. 

(b) Subject to paragraph (c) of this 

section, after the period of initial 

designation, if the chief elected official 

and Local WDB in a local area submits 

a request for subsequent designation, 

the Governor must approve the request 

if the following criteria are met for the 

2 most recent program years of initial 

designation: 

(1) The local area performed 

successfully; 

(2) The local area sustained fiscal 

integrity; and 

(3) In the case of a local area in a 

planning region, the local area met the 

regional planning requirements 

described in WIOA sec. 106(c)(1). 

(c) No determination of subsequent 

eligibility may be made before the 

conclusion of Program Year (PY) 2017. 

(d) The Governor: 

(1) May review a local area designated 

under paragraph (b) of this section at 

any time to evaluate whether that the 

area continues to meet the requirements 

for subsequent designation under that 

paragraph; and 

(2) Must review a local area 

designated under paragraph (b) of this 

section before submitting its State Plan 

during each 4-year State planning cycle 

to evaluate whether the area continues 

to meet the requirements for subsequent 

designation under that paragraph. 

(e) For purposes of subsequent 

designation under paragraphs (b) and 

(d) of this section, the local area and 

chief elected official must be considered 

to have requested continued designation 

unless the local area and chief elected 

official notify the Governor that they no 

longer seek designation. 

(f) Local areas designated under 

§ 679.240 or States designated as singlearea States under § 679.270 are not 

subject to the requirements described in 

paragraph (b) of this section related to 

the subsequent designation of a local 

area. 

(g) The Governor may approve, under 

paragraph (c) of this section, a request 

for designation as a local area from areas 

served by rural concentrated 

employment programs as described in 

WIOA sec. 107(c)(1)(C). 

§ 679.260 What do the terms ‘‘performed 

successfully’’ and ‘‘sustained fiscal 

integrity’’ mean for purposes of designating 

local areas? 

(a) For the purpose of initial local area 

designation, the term ‘‘performed 

successfully’’ means that the local area 

met or exceeded the levels of 

performance the Governor negotiated 

with the Local WDB and chief elected 

official under WIA sec. 136(c) for the 

last 2 full program years before the 

enactment of WIOA, and that the local 

area has not failed any individual 

measure for the last 2 consecutive 

program years before the enactment of 

WIOA. 

(b) For the purpose of determining 

subsequent local area designation, the 

term ‘‘performed successfully’’ means 

that the local area met or exceeded the 

levels of performance the Governor 

negotiated with the Local WDB and 

chief elected official for core indicators 

of performance as provided in 

paragraphs (b)(1) and (2) of this section 

as appropriate, and that the local area 

has not failed any individual measure 

for the last 2 consecutive program years 

in accordance with a State-established 

definition, provided in the State Plan, of 

met or exceeded performance. 

(1) For subsequent designation 

determinations made at the conclusion 

of PY 2017, a finding of whether a local 

area performed successfully must be 

limited to having met or exceeded the 

negotiated levels for the Employment 

Rate 2nd Quarter after Exit and the 

Median Earnings indicators of 

performance, as described at 

§ 677.155(a)(1)(i) and (iii) of this chapter 

respectively, for PY 2016 and PY 2017. 

(2) For subsequent designation 

determinations made at the conclusion 

of PY 2018, or at any point thereafter, 

a finding of whether a local area 

performed successfully must be based 

on all six of the WIOA indicators of 

performance as described at 

§ 677.155(a)(1)(i) through (vi) of this 

chapter for the 2 most recently 

completed program years. 

(c) For the purpose of determining 

initial and subsequent local area 

designation under § 679.250(a) and (b), 

the term ‘‘sustained fiscal integrity’’ 

means that the Secretary has not made 

a formal determination that either the 

grant recipient or the administrative 

entity of the area misexpended funds 

due to willful disregard of the 

requirements of the provision involved, 

gross negligence, or failure to comply 

with accepted standards of 

administration for the 2-year period 

preceding the determination. 

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§ 679.270 What are the special designation 

provisions for single-area States? 

(a) The Governor of any State that was 

a single-State local area under the WIA 

as in effect on July 1, 2013 may 

designate the State as a single-State 

local area under WIOA. 

(b) The Governor of a State local area 

under paragraph (a) of this section who 

seeks to designate the State as a singleState local area under WIOA must: 

(1) Identify the State as a single-area 

State in the Unified or Combined State 

Plan; and 

(2) Include the local plan for approval 

as part of the Unified or Combined State 

Plan. 

(c) The State WDB for a single-area 

State must act as the Local WDB and 

carry out the functions of the Local 

WDB in accordance with WIOA sec. 107 

and § 679.370, except that the State is 

not required to meet and report on a set 

of local performance accountability 

measures. 

(d) Single-area States must conduct 

the functions of the Local WDB as 

outlined in paragraph (c) of this section 

to achieve the incorporation of local 

interests but may do so in a manner that 

reduces unnecessary burden and 

duplication of processes. 

(e) States must carry out the duties of 

State and Local WDBs in accordance 

with guidance issued by the Secretary of 

Labor. 

§ 679.280 How does the State fulfill the 

requirement to provide assistance to local 

areas within a planning region that wish to 

redesignate into a single local area? 

(a) When the chief elected officials 

and Local WDBs of each local area 

within a planning region make a request 

to the Governor to redesignate into a 

single local area, the State WDB must 

authorize statewide adult, dislocated 

worker, and youth program funds to 

facilitate such redesignation. 

(b) When statewide funds are not 

available, the State may provide funds 

for redesignation in the next available 

program year. 

(c) Redesignation activities that may 

be carried out by the local areas include: 

(1) Convening sessions and 

conferences; 

(2) Renegotiation of contracts and 

agreements; and 

(3) Other activities directly associated 

with the redesignation as deemed 

appropriate by the State WDB. 

§ 679.290 What right does an entity have 

to appeal the Governor’s decision rejecting 

a request for designation as a workforce 

development area? 

(a) A unit of local government (or 

combination of units) or a local area 

which has requested but has been 

denied its request for designation as a 

workforce development area under 

§ 679.250 may appeal the decision to the 

State WDB, in accordance with appeal 

procedures established in the State Plan 

and § 683.630(a) of this chapter. 

(b) If a decision on the appeal is not 

rendered in a timely manner or if the 

appeal to the State WDB does not result 

in designation, the entity may request 

review by the Secretary of Labor, under 

the procedures set forth at § 683.640 of 

this chapter. 

Subpart C—Local Workforce 

Development Boards 

§ 679.300 What is the vision and purpose 

of the Local Workforce Development 

Board? 

(a) The vision for the Local WDB is to 

serve as a strategic leader and convener 

of local workforce development system 

stakeholders. The Local WDB partners 

with employers and the workforce 

development system to develop policies 

and investments that support public 

workforce system strategies that support 

regional economies, the development of 

effective approaches including local and 

regional sector partnerships and career 

pathways, and high quality, customer 

centered service delivery and service 

delivery approaches; 

(b) The purpose of the Local WDB is 

to— 

(1) Provide strategic and operational 

oversight in collaboration with the 

required and additional partners and 

workforce stakeholders to help develop 

a comprehensive and high-quality 

workforce development system in the 

local area and larger planning region; 

(2) Assist in the achievement of the 

State’s strategic and operational vision 

and goals as outlined in the Unified 

State Plan or Combined State Plan; and 

(3) Maximize and continue to improve 

the quality of services, customer 

satisfaction, effectiveness of the services 

provided. 

§ 679.310 What is the Local Workforce 

Development Board? 

(a) The Local WDB is appointed by 

the chief elected official(s) in each local 

area in accordance with State criteria 

established under WIOA sec. 107(b), 

and is certified by the Governor every 2 

years, in accordance with WIOA sec. 

107(c)(2). 

(b) In partnership with the chief 

elected official(s), the Local WDB sets 

policy for the portion of the statewide 

workforce development system within 

the local area and consistent with State 

policies. 

(c) The Local WDB and the chief 

elected official(s) may enter into an 

agreement that describes the respective 

roles and responsibilities of the parties. 

(d) The Local WDB, in partnership 

with the chief elected official(s), 

develops the local plan and performs 

the functions described in WIOA sec. 

107(d) and § 679.370. 

(e) If a local area includes more than 

one unit of general local government in 

accordance with WIOA sec. 107(c)(1)(B), 

the chief elected officials of such units 

may execute an agreement to describe 

their responsibilities for carrying out the 

roles and responsibilities. If the chief 

elected officials are unable to reach 

agreement after a reasonable effort, the 

Governor may appoint the members of 

the Local WDB from individuals 

nominated or recommended as specified 

in WIOA sec. 107(b). 

(f) If the State Plan indicates that the 

State will be treated as a local area 

under WIOA, the State WDB must carry 

out the roles of the Local WDB in 

accordance with WIOA sec. 107, except 

that the State is not required to meet 

and report on a set of local performance 

accountability measures. 

(g) The CEO must establish by-laws, 

consistent with State policy for Local 

WDB membership, that at a minimum 

address: 

(1) The nomination process used by 

the CEO to select the Local WDB chair 

and members; 

(2) The term limitations and how the 

term appointments will be staggered to 

ensure only a portion of membership 

expire in a given year; 

(3) The process to notify the CEO of 

a WDB member vacancy to ensure a 

prompt nominee; 

(4) The proxy and alternative designee 

process that will be used when a WDB 

member is unable to attend a meeting 

and assigns a designee as per the 

requirements at § 679.110(d)(4); 

(5) The use of technology, such as 

phone and Web-based meetings, that 

will be used to promote WDB member 

participation; 

(6) The process to ensure WDB 

members actively participate in 

convening the workforce development 

system’s stakeholders, brokering 

relationships with a diverse range of 

employers, and leveraging support for 

workforce development activities; and 

(7) A description of any other 

conditions governing appointment or 

membership on the Local WDB as 

deemed appropriate by the CEO. 

§ 679.320 Who are the required members 

of the Local Workforce Development 

Board? 

(a) For each local area in the State, the 

members of Local WDB must be selected 

by the chief elected official consistent 

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with criteria established under WIOA 

sec. 107(b)(1) and criteria established by 

the Governor, and must meet the 

requirements of WIOA sec. 107(b)(2). 

(b) A majority of the members of the 

Local WDB must be representatives of 

business in the local area. At a 

minimum, two members must represent 

small business as defined by the U.S. 

Small Business Administration. 

Business representatives serving on 

Local WDBs also may serve on the State 

WDB. Each business representative 

must meet the following criteria: 

(1) Be an owner, chief executive 

officer, chief operating officer, or other 

individual with optimum policy-making 

or hiring authority; and 

(2) Provide employment opportunities 

in in-demand industry sectors or 

occupations, as those terms are defined 

in WIOA sec. 3(23). 

(c) At least 20 percent of the members 

of the Local WDB must be workforce 

representatives. These representatives: 

(1) Must include two or more 

representatives of labor organizations, 

where such organizations exist in the 

local area. Where labor organizations do 

not exist, representatives must be 

selected from other employee 

representatives; 

(2) Must include one or more 

representatives of a joint labormanagement, or union affiliated, 

registered apprenticeship program 

within the area who must be a training 

director or a member of a labor 

organization. If no union affiliated 

registered apprenticeship programs exist 

in the area, a representative of a 

registered apprenticeship program with 

no union affiliation must be appointed, 

if one exists; 

(3) May include one or more 

representatives of community-based 

organizations that have demonstrated 

experience and expertise in addressing 

the employment, training or education 

needs of individuals with barriers to 

employment, including organizations 

that serve veterans or provide or support 

competitive integrated employment for 

individuals with disabilities; and 

(4) May include one or more 

representatives of organizations that 

have demonstrated experience and 

expertise in addressing the employment, 

training, or education needs of eligible 

youth, including representatives of 

organizations that serve out-of-school 

youth. 

(d) The Local WDB also must include: 

(1) At least one eligible training 

provider administering adult education 

and literacy activities under WIOA title 

II; 

(2) At least one representative from an 

institution of higher education 

providing workforce investment 

activities, including community 

colleges; and 

(3) At least one representative from 

each of the following governmental and 

economic and community development 

entities: 

(i) Economic and community 

development entities; 

(ii) The State Employment Service 

office under the Wagner-Peyser Act (29 

U.S.C. 49 et seq.) serving the local area; 

and 

(iii) The programs carried out under 

title I of the Rehabilitation Act of 1973, 

other than sec. 112 or part C of that title; 

(e) The membership of Local WDBs 

may include individuals or 

representatives of other appropriate 

entities in the local area, including: 

(1) Entities administering education 

and training activities who represent 

local educational agencies or 

community-based organizations with 

demonstrated expertise in addressing 

the education or training needs for 

individuals with barriers to 

employment; 

(2) Governmental and economic and 

community development entities who 

represent transportation, housing, and 

public assistance programs; 

(3) Philanthropic organizations 

serving the local area; and 

(4) Other appropriate individuals as 

determined by the chief elected official. 

(f) Members must be individuals with 

optimum policy-making authority 

within the entities they represent. 

(g) Chief elected officials must 

establish a formal nomination and 

appointment process, consistent with 

the criteria established by the Governor 

and State WDB under sec. 107(b)(1) of 

WIOA for appointment of members of 

the Local WDBs, that ensures: 

(1) Business representatives are 

appointed from among individuals who 

are nominated by local business 

organizations and business trade 

associations; 

(2) Labor representatives are 

appointed from among individuals who 

are nominated by local labor federations 

(or, for a local area in which no 

employees are represented by such 

organizations, other representatives of 

employees); and 

(3) When there is more than one local 

area provider of adult education and 

literacy activities under title II, or 

multiple institutions of higher 

education providing workforce 

investment activities as described in 

WIOA sec. 107(b)(2)(C)(i) or (ii), 

nominations are solicited from those 

particular entities. 

(h) An individual may be appointed 

as a representative of more than one 

entity if the individual meets all the 

criteria for representation, including the 

criteria described in paragraphs (c) 

through (g) of this section, for each 

entity. 

(i) All required WDB members must 

have voting privilege. The chief elected 

official may convey voting privileges to 

non-required members. 

§ 679.330 Who must chair a Local 

Workforce Development Board? 

The Local WDB must elect a 

chairperson from among the business 

representatives on the WDB. 

§ 679.340 What is meant by the terms 

‘‘optimum policy-making authority’’ and 

‘‘demonstrated experience and expertise’’? 

For purposes of selecting 

representatives to Local WDBs: 

(a) A representative with ‘‘optimum 

policy-making authority’’ is an 

individual who can reasonably be 

expected to speak affirmatively on 

behalf of the entity he or she represents 

and to commit that entity to a chosen 

course of action. 

(b) A representative with 

‘‘demonstrated experience and 

expertise’’ means an individual who: 

(1) Is a workplace learning advisor as 

defined in WIOA sec. 3(70); 

(2) Contributes to the field of 

workforce development, human 

resources, training and development, or 

a core program function; or 

(3) The Local WDB recognizes for 

valuable contributions in education or 

workforce development related fields. 

§ 679.350 What criteria will be used to 

establish the membership of the Local 

Workforce Development Board? 

The Local WDB is appointed by the 

chief elected official(s) in the local area 

in accordance with State criteria 

established under WIOA sec. 107(b), 

and is certified by the Governor every 2 

years, in accordance with WIOA sec. 

107(c)(2). 

§ 679.360 What is a standing committee, 

and what is its relationship to the Local 

Workforce Development Board? 

(a) Standing committees may be 

established by the Local WDB to 

provide information and assist the Local 

WDB in carrying out its responsibilities 

under WIOA sec. 107. Standing 

committees must be chaired by a 

member of the Local WDB, may include 

other members of the Local WDB, and 

must include other individuals 

appointed by the Local WDB who are 

not members of the Local WDB and who 

have demonstrated experience and 

expertise in accordance with 

§ 679.340(b) and as determined by the 

Local WDB. Standing committees may 

include each of the following: 

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(1) A standing committee to provide 

information and assist with operational 

and other issues relating to the one-stop 

delivery system, which may include 

representatives of the one-stop partners. 

(2) A standing committee to provide 

information and to assist with planning, 

operational, and other issues relating to 

the provision of services to youth, 

which must include community-based 

organizations with a demonstrated 

record of success in serving eligible 

youth. 

(3) A standing committee to provide 

information and to assist with 

operational and other issues relating to 

the provision of services to individuals 

with disabilities, including issues 

relating to compliance with WIOA sec. 

188, if applicable, and applicable 

provisions of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 12101 

et seq.) regarding providing 

programmatic and physical access to the 

services, programs, and activities of the 

one-stop delivery system, as well as 

appropriate training for staff on 

providing supports for or 

accommodations to, and finding 

employment opportunities for, 

individuals with disabilities. 

(b) The Local WDB may designate 

other standing committees in addition 

to those specified in paragraph (a) of 

this section. 

(c) Local WDBs may designate an 

entity in existence as of the date of the 

enactment of WIOA, such as an effective 

youth council, to serve as a standing 

committee as long as the entity meets 

the requirements of WIOA sec. 

107(b)(4). 

§ 679.370 What are the functions of the 

Local Workforce Development Board? 

As provided in WIOA sec. 107(d), the 

Local WDB must: 

(a) Develop and submit a 4-year local 

plan for the local area, in partnership 

with the chief elected official and 

consistent with WIOA sec. 108; 

(b) If the local area is part of a 

planning region that includes other 

local areas, develop and submit a 

regional plan in collaboration with other 

local areas. If the local area is part of a 

planning region, the local plan must be 

submitted as a part of the regional plan; 

(c) Conduct workforce research and 

regional labor market analysis to 

include: 

(1) Analyses and regular updates of 

economic conditions, needed 

knowledge and skills, workforce, and 

workforce development (including 

education and training) activities to 

include an analysis of the strengths and 

weaknesses (including the capacity to 

provide) of such services to address the 

identified education and skill needs of 

the workforce and the employment 

needs of employers; 

(2) Assistance to the Governor in 

developing the statewide workforce and 

labor market information system under 

the Wagner-Peyser Act for the region; 

and 

(3) Other research, data collection, 

and analysis related to the workforce 

needs of the regional economy as the 

WDB, after receiving input from a wide 

array of stakeholders, determines to be 

necessary to carry out its functions; 

(d) Convene local workforce 

development system stakeholders to 

assist in the development of the local 

plan under § 679.550 and in identifying 

non-Federal expertise and resources to 

leverage support for workforce 

development activities. Such 

stakeholders may assist the Local WDB 

and standing committees in carrying out 

convening, brokering, and leveraging 

functions at the direction of the Local 

WDB; 

(e) Lead efforts to engage with a 

diverse range of employers and other 

entities in the region in order to: 

(1) Promote business representation 

(particularly representatives with 

optimum policy-making or hiring 

authority from employers whose 

employment opportunities reflect 

existing and emerging employment 

opportunities in the region) on the Local 

WDB; 

(2) Develop effective linkages 

(including the use of intermediaries) 

with employers in the region to support 

employer utilization of the local 

workforce development system and to 

support local workforce investment 

activities; 

(3) Ensure that workforce investment 

activities meet the needs of employers 

and support economic growth in the 

region by enhancing communication, 

coordination, and collaboration among 

employers, economic development 

entities, and service providers; and 

(4) Develop and implement proven or 

promising strategies for meeting the 

employment and skill needs of workers 

and employers (such as the 

establishment of industry and sector 

partnerships), that provide the skilled 

workforce needed by employers in the 

region, and that expand employment 

and career advancement opportunities 

for workforce development system 

participants in in-demand industry 

sectors or occupations; 

(f) With representatives of secondary 

and postsecondary education programs, 

lead efforts to develop and implement 

career pathways within the local area by 

aligning the employment, training, 

education, and supportive services that 

are needed by adults and youth, 

particularly individuals with barriers to 

employment; 

(g) Lead efforts in the local area to 

identify and promote proven and 

promising strategies and initiatives for 

meeting the needs of employers, 

workers and job seekers, and identify 

and disseminate information on proven 

and promising practices carried out in 

other local areas for meeting such needs; 

(h) Develop strategies for using 

technology to maximize the accessibility 

and effectiveness of the local workforce 

development system for employers, and 

workers and job seekers, by: 

(1) Facilitating connections among the 

intake and case management 

information systems of the one-stop 

partner programs to support a 

comprehensive workforce development 

system in the local area; 

(2) Facilitating access to services 

provided through the one-stop delivery 

system involved, including access in 

remote areas; 

(3) Identifying strategies for better 

meeting the needs of individuals with 

barriers to employment, including 

strategies that augment traditional 

service delivery, and increase access to 

services and programs of the one-stop 

delivery system, such as improving 

digital literacy skills; and 

(4) Leveraging resources and capacity 

within the local workforce development 

system, including resources and 

capacity for services for individuals 

with barriers to employment; 

(i) In partnership with the chief 

elected official for the local area: 

(1) Conduct oversight of youth 

workforce investment activities 

authorized under WIOA sec. 129(c), 

adult and dislocated worker 

employment and training activities 

under WIOA secs. 134(c) and (d), and 

the entire one-stop delivery system in 

the local area; 

(2) Ensure the appropriate use and 

management of the funds provided 

under WIOA subtitle B for the youth, 

adult, and dislocated worker activities 

and one-stop delivery system in the 

local area; and 

(3) Ensure the appropriate use 

management, and investment of funds 

to maximize performance outcomes 

under WIOA sec. 116; 

(j) Negotiate and reach agreement on 

local performance indicators with the 

chief elected official and the Governor; 

(k) Negotiate with CEO and required 

partners on the methods for funding the 

infrastructure costs of one-stop centers 

in the local area in accordance with 

§ 678.715 of this chapter or must notify 

the Governor if they fail to reach 

agreement at the local level and will use 

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a State infrastructure funding 

mechanism; 

(l) Select the following providers in 

the local area, and where appropriate 

terminate such providers in accordance 

with 2 CFR part 200: 

(1) Providers of youth workforce 

investment activities through 

competitive grants or contracts based on 

the recommendations of the youth 

standing committee (if such a committee 

is established); however, if the Local 

WDB determines there is an insufficient 

number of eligible training providers in 

a local area, the Local WDB may award 

contracts on a sole-source basis as per 

the provisions at WIOA sec. 123(b); 

(2) Providers of training services 

consistent with the criteria and 

information requirements established by 

the Governor and WIOA sec. 122; 

(3) Providers of career services 

through the award of contracts, if the 

one-stop operator does not provide such 

services; and 

(4) One-stop operators in accordance 

with §§ 678.600 through 678.635 of this 

chapter; 

(m) In accordance with WIOA sec. 

107(d)(10)(E) work with the State to 

ensure there are sufficient numbers and 

types of providers of career services and 

training services serving the local area 

and providing the services in a manner 

that maximizes consumer choice, as 

well as providing opportunities that 

lead to competitive integrated 

employment for individuals with 

disabilities; 

(n) Coordinate activities with 

education and training providers in the 

local area, including: 

(1) Reviewing applications to provide 

adult education and literacy activities 

under WIOA title II for the local area to 

determine whether such applications 

are consistent with the local plan; 

(2) Making recommendations to the 

eligible agency to promote alignment 

with such plan; and 

(3) Replicating and implementing 

cooperative agreements to enhance the 

provision of services to individuals with 

disabilities and other individuals, such 

as cross training of staff, technical 

assistance, use and sharing of 

information, cooperative efforts with 

employers, and other efforts at 

cooperation, collaboration, and 

coordination; 

(o) Develop a budget for the activities 

of the Local WDB, with approval of the 

chief elected official and consistent with 

the local plan and the duties of the 

Local WDB; 

(p) Assess, on an annual basis, the 

physical and programmatic accessibility 

of all one-stop centers in the local area, 

in accordance with WIOA sec. 188, if 

applicable, and applicable provisions of 

the Americans with Disabilities Act of 

1990 (42 U.S.C. 12101 et seq.); and 

(q) Certification of one-stop centers in 

accordance with § 678.800 of this 

chapter. 

§ 679.380 How does the Local Workforce 

Development Board satisfy the consumer 

choice requirements for career services and 

training services? 

(a) In accordance with WIOA sec. 122 

and in working with the State, the Local 

WDB satisfies the consumer choice 

requirement for training services by: 

(1) Determining the initial eligibility 

of entities providing a program of 

training services, renewing the 

eligibility of providers, and considering 

the possible termination of an eligible 

training provider due to the provider’s 

submission of inaccurate eligibility and 

performance information or the 

provider’s substantial violation of 

WIOA; 

(2) Working with the State to ensure 

there are sufficient numbers and types 

of providers of training services, 

including eligible training providers 

with expertise in assisting individuals 

with disabilities and eligible training 

providers with expertise in assisting 

adults in need of adult education and 

literacy activities described under 

WIOA sec. 107(d)(10)(E), serving the 

local area; 

(3) Ensuring the dissemination and 

appropriate use of the State list through 

the local one-stop delivery system; 

(4) Receiving performance and cost 

information from the State and 

disseminating this information through 

the one-stop delivery systems within the 

State; and 

(5) Providing adequate access to 

services for individuals with 

disabilities. 

(b) Working with the State, the Local 

WDB satisfies the consumer choice 

requirement for career services by: 

(1) Determining the career services 

that are best performed by the one-stop 

operator consistent with §§ 678.620 and 

678.625 of this chapter and career 

services that require contracting with a 

career service provider; and 

(2) Identifying a wide-array of 

potential career service providers and 

awarding contracts where appropriate 

including to providers to ensure: 

(i) Sufficient access to services for 

individuals with disabilities, including 

opportunities that lead to integrated, 

competitive employment for individuals 

with disabilities; and 

(ii) Sufficient access for adult 

education and literacy activities. 

§ 679.390 How does the Local Workforce 

Development Board meet its requirement to 

conduct business in an open manner under 

the ‘‘sunshine provision’’ of the Workforce 

Innovation and Opportunity Act? 

The Local WDB must conduct its 

business in an open manner as required 

by WIOA sec. 107(e), by making 

available to the public, on a regular 

basis through electronic means and 

open meetings, information about the 

activities of the Local WDB. This 

includes: 

(a) Information about the Local Plan, 

or modification to the Local Plan, before 

submission of the plan; 

(b) List and affiliation of Local WDB 

members; 

(c) Selection of one-stop operators; 

(d) Award of grants or contracts to 

eligible training providers of workforce 

investment activities including 

providers of youth workforce 

investment activities; 

(e) Minutes of formal meetings of the 

Local WDB; and 

(f) Local WDB by-laws, consistent 

with § 679.310(g). 

§ 679.400 Who are the staff to the Local 

Workforce Development Board and what is 

their role? 

(a) WIOA sec. 107(f) grants Local 

WDBs authority to hire a director and 

other staff to assist in carrying out the 

functions of the Local WDB. 

(b) Local WDBs must establish and 

apply a set of qualifications for the 

position of director that ensures the 

individual selected has the requisite 

knowledge, skills, and abilities to meet 

identified benchmarks and to assist in 

carrying out the functions of the Local 

WDB. 

(c) The Local WDB director and staff 

must be subject to the limitations on the 

payment of salary and bonuses 

described in WIOA sec. 194(15). 

(d) In general, Local WDB staff only 

may assist the Local WDB fulfill the 

required functions at WIOA sec. 107(d). 

(e) Should the WDB select an entity 

to staff the WDB that provides 

additional workforce functions beyond 

the functions described at WIOA sec. 

107(d), such an entity is required to 

enter into a written agreement with the 

Local WDB and chief elected official(s) 

to clarify their roles and responsibilities 

as required by § 679.430. 

§ 679.410 Under what conditions may a 

Local Workforce Development Board 

directly be a provider of career services, or 

training services, or act as a one-stop 

operator? 

(a)(1) A Local WDB may be selected 

as a one-stop operator: 

(i) Through sole source procurement 

in accordance with § 678.610 of this 

chapter; or 

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(ii) Through successful competition in 

accordance with § 678.615 of this 

chapter. 

(2) The chief elected official in the 

local area and the Governor must agree 

to the selection described in paragraph 

(a)(1) of this section. 

(3) Where a Local WDB acts as a onestop operator, the State must ensure 

certification of one-stop centers in 

accordance with § 678.800 of this 

chapter. 

(b) A Local WDB may act as a 

provider of career services only with the 

agreement of the chief elected official in 

the local area and the Governor. 

(c) A Local WDB is prohibited from 

providing training services, unless the 

Governor grants a waiver in accordance 

with the provisions in WIOA sec. 

107(g)(1). 

(1) The State must develop a 

procedure for approving waivers that 

includes the criteria at WIOA sec. 

107(g)(1)(B)(i): 

(i) Satisfactory evidence that there is 

an insufficient number of eligible 

training providers of such a program of 

training services to meet local demand 

in the local area; 

(ii) Information demonstrating that 

the WDB meets the requirements for 

eligible training provider services under 

WIOA sec. 122; and 

(iii) Information demonstrating that 

the program of training services 

prepares participants for an in-demand 

industry sector or occupation in the 

local area. 

(2) The local area must make the 

proposed request for a waiver available 

to eligible training providers and other 

interested members of the public for a 

public comment period of not less than 

30 days and includes any comments 

received during this time in the final 

request for the waiver. 

(3) The waiver must not exceed the 

duration of the local plan and may be 

renewed by submitting a new waiver 

request consistent with paragraphs (c)(1) 

and (2) of this section for additional 

periods, not to exceed the durations of 

such subsequent plans. 

(4) The Governor may revoke the 

waiver if the Governor determines the 

waiver is no longer needed or that the 

Local WDB involved has engaged in a 

pattern of inappropriate referrals to 

training services operated by the Local 

WDB. 

(d) The restrictions on the provision 

of career and training services by the 

Local WDB, as one-stop operator, also 

apply to staff of the Local WDB. 

§ 679.420 What are the functions of the 

local fiscal agent? 

(a) In order to assist in administration 

of the grant funds, the chief elected 

official or the Governor, where the 

Governor serves as the local grant 

recipient for a local area, may designate 

an entity to serve as a local fiscal agent. 

Designation of a fiscal agent does not 

relieve the chief elected official or 

Governor of liability for the misuse of 

grant funds. If the CEO designates a 

fiscal agent, the CEO must ensure this 

agent has clearly defined roles and 

responsibilities. 

(b) In general the fiscal agent is 

responsible for the following functions: 

(1) Receive funds. 

(2) Ensure sustained fiscal integrity 

and accountability for expenditures of 

funds in accordance with Office of 

Management and Budget circulars, 

WIOA and the corresponding Federal 

Regulations and State policies. 

(3) Respond to audit financial 

findings. 

(4) Maintain proper accounting 

records and adequate documentation. 

(5) Prepare financial reports. 

(6) Provide technical assistance to 

subrecipients regarding fiscal issues. 

(c) At the direction of the Local WDB 

or the State WDB in single-area States, 

the fiscal agent may have the following 

additional functions: 

(1) Procure contracts or obtain written 

agreements. 

(2) Conduct financial monitoring of 

service providers. 

(3) Ensure independent audit of all 

employment and training programs. 

§ 679.430 How do entities performing 

multiple functions in a local area 

demonstrate internal controls and prevent 

conflict of interest? 

Local organizations often function 

simultaneously in a variety of roles, 

including local fiscal agent, Local WDB 

staff, one-stop operator, and direct 

provider of services. Any organization 

that has been selected or otherwise 

designated to perform more than one of 

these functions must develop a written 

agreement with the Local WDB and CEO 

to clarify how the organization will 

carry out its responsibilities while 

demonstrating compliance with WIOA 

and corresponding regulations, relevant 

Office of Management and Budget 

circulars, and the State’s conflict of 

interest policy. 

Subpart D—Regional and Local Plan 

§ 679.500 What is the purpose of the 

regional and local plan? 

(a) The local plan serves as 4-year 

action plan to develop, align, and 

integrate service delivery strategies and 

to support the State’s vision and 

strategic and operational goals. The 

local plan sets forth the strategy to: 

(1) Direct investments in economic, 

education, and workforce training 

programs to focus on providing relevant 

education and training to ensure that 

individuals, including youth and 

individuals with barriers to 

employment, have the skills to compete 

in the job market and that employers 

have a ready supply of skilled workers; 

(2) Apply job-driven strategies in the 

one-stop delivery system; 

(3) Enable economic, education, and 

workforce partners to build a skilled 

workforce through innovation in, and 

alignment of, employment, training, and 

education programs; and 

(4) Incorporate the local plan into the 

regional plan per § 679.540. 

(b) In the case of planning regions, a 

regional plan is required to meet the 

purposes described in paragraph (a) of 

this section and to coordinate resources 

among multiple WDBs in a region. 

(c) The Governor must establish and 

disseminate to Local WDBs and regional 

planning areas a policy for the 

submission of local and regional plans. 

The policy must set a deadline for the 

submission of the regional and local 

plans that accounts for the activities 

required in plan development outlined 

in §§ 679.510 and 679.550. 

§ 679.510 What are the requirements for 

regional planning? 

(a) Local WDBs and chief elected 

officials within an identified planning 

region (as defined in WIOA secs. 

106(a)(2)(B)–(C) and § 679.200) must: 

(1) Participate in a regional planning 

process that results in: 

(i) The preparation of a regional plan, 

as described in paragraph (a)(2) of this 

section and consistent with any 

guidance issued by the Department; 

(ii) The establishment of regional 

service strategies, including use of 

cooperative service delivery agreements; 

(iii) The development and 

implementation of sector initiatives for 

in-demand industry sectors or 

occupations for the planning region; 

(iv) The collection and analysis of 

regional labor market data (in 

conjunction with the State) which must 

include the local planning requirements 

at § 679.560(a)(1)(i) and (ii); 

(v) The coordination of administrative 

cost arrangements, including the 

pooling of funds for administrative 

costs, as appropriate; 

(vi) The coordination of 

transportation and other supportive 

services as appropriate; 

(vii) The coordination of services with 

regional economic development services 

and providers; and 

(viii) The establishment of an 

agreement concerning how the planning 

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region will collectively negotiate and 

reach agreement with the Governor on 

local levels of performance for, and 

report on, the performance 

accountability measures described in 

WIOA sec. 116(c) for local areas or the 

planning region. 

(2) Prepare, submit, and obtain 

approval of a single regional plan that: 

(i) Includes a description of the 

activities described in paragraph (a)(1) 

of this section; and 

(ii) Incorporates local plans for each 

of the local areas in the planning region, 

consistent with § 679.540(a). 

(b) Consistent with § 679.550(b), the 

Local WDBs representing each local area 

in the planning region must provide an 

opportunity for public comment on the 

development of the regional plan or 

subsequent plan modifications before 

submitting the plan to the Governor. To 

provide adequate opportunity for public 

comment, the Local WDBs must: 

(1) Make copies of the proposed 

regional plan available to the public 

through electronic and other means, 

such as public hearings and local news 

media; 

(2) Include an opportunity for 

comment by members of the public, 

including representatives of business, 

labor organizations, and education; 

(3) Provide no more than a 30-day 

period for comment on the plan before 

its submission to the Governor, 

beginning on the date on which the 

proposed plan is made available; and 

(4) The Local WDBs must submit any 

comments that express disagreement 

with the plan to the Governor along 

with the plan. 

(5) Consistent with WIOA sec. 107(e), 

the Local WDB must make information 

about the plan available to the public on 

a regular basis through electronic means 

and open meetings. 

(c) The State must provide technical 

assistance and labor market data, as 

requested by local areas, to assist with 

regional planning and subsequent 

service delivery efforts. 

(d) As they relate to regional areas and 

regional plans, the terms local area and 

local plan are defined in WIOA secs. 

106(c)(3)(A)–(B). 

§ 679.520 What are the requirements for 

approval of a regional plan? 

Consistent with the requirements of 

§ 679.570, the Governor must review 

completed plans (including a 

modification to the plan). Such plans 

will be considered approved 90 days 

after receipt of the plan unless the 

Governor determines in writing that: 

(a) There are deficiencies in workforce 

investment activities that have been 

identified through audits and the local 

area has not made acceptable progress 

in implementing plans to address 

deficiencies; or 

(b) The plan does not comply with 

applicable provisions of WIOA and the 

WIOA regulations, including the 

required consultations and public 

comment provisions, and the 

nondiscrimination requirements of 29 

CFR part 38. 

(c) The plan does not align with the 

State Plan, including with regard to the 

alignment of the core programs to 

support the strategy identified in the 

State Plan in accordance with WIOA 

sec. 102(b)(1)(E) and § 676.105 of this 

chapter. 

§ 679.530 When must the regional plan be 

modified? 

(a) Consistent with § 679.580, the 

Governor must establish procedures 

governing the modification of regional 

plans. 

(b) At the end of the first 2-year 

period of the 4-year local plan, the Local 

WDBs within a planning region, in 

partnership with the appropriate chief 

elected officials, must review the 

regional plan and prepare and submit 

modifications to the regional plan to 

reflect changes: 

(1) In regional labor market and 

economic conditions; and 

(2) Other factors affecting the 

implementation of the local plan, 

including but not limited to changes in 

the financing available to support WIOA 

title I and partner-provided WIOA 

services. 

§ 679.540 How are local planning 

requirements reflected in a regional plan? 

(a) The regional plan must address the 

requirements at WIOA secs. 

106(c)(1)(A)–(H), and incorporate the 

local planning requirements identified 

for local plans at WIOA secs. 108(b)(1)– 

(22). 

(b) The Governor may issue regional 

planning guidance that allows Local 

WDBs and chief elected officials in a 

planning region to address any local 

plan requirements through the regional 

plan where there is a shared regional 

responsibility. 

§ 679.550 What are the requirements for 

the development of the local plan? 

(a) Under WIOA sec. 108, each Local 

WDB must, in partnership with the 

appropriate chief elected officials, 

develop and submit a comprehensive 4- 

year plan to the Governor. 

(1) The plan must identify and 

describe the policies, procedures, and 

local activities that are carried out in the 

local area, consistent with the State 

Plan. 

(2) If the local area is part of a 

planning region, the Local WDB must 

comply with WIOA sec. 106(c) and 

§§ 679.510 through 679.540 in the 

preparation and submission of a 

regional plan. 

(b) Consistent with § 679.510(b), the 

Local WDB must provide an 

opportunity for public comment on the 

development of the local plan or 

subsequent plan modifications before 

submitting the plan to the Governor. To 

provide adequate opportunity for public 

comment, the Local WDB must: 

(1) Make copies of the proposed local 

plan available to the public through 

electronic and other means, such as 

public hearings and local news media; 

(2) Include an opportunity for 

comment by members of the public, 

including representatives of business, 

labor organizations, and education; 

(3) Provide no more than a 30-day 

period for comment on the plan before 

its submission to the Governor, 

beginning on the date on which the 

proposed plan is made available, prior 

to its submission to the Governor; and 

(4) The Local WDB must submit any 

comments that express disagreement 

with the plan to the Governor along 

with the plan. 

(5) Consistent WIOA sec. 107(e), the 

Local WDB must make information 

about the plan available to the public on 

a regular basis through electronic means 

and open meetings. 

§ 679.560 What are the contents of the 

local plan? 

(a) The local workforce investment 

plan must describe strategic planning 

elements, including: 

(1) A regional analysis of: 

(i) Economic conditions including 

existing and emerging in-demand 

industry sectors and occupations; and 

(ii) Employment needs of employers 

in existing and emerging in-demand 

industry sectors and occupations. 

(iii) As appropriate, a local area may 

use an existing analysis, which is a 

timely current description of the 

regional economy, to meet the 

requirements of paragraphs (a)(1)(i) and 

(ii) of this section; 

(2) Knowledge and skills needed to 

meet the employment needs of the 

employers in the region, including 

employment needs in in-demand 

industry sectors and occupations; 

(3) An analysis of the regional 

workforce, including current labor force 

employment and unemployment data, 

information on labor market trends, and 

educational and skill levels of the 

workforce, including individuals with 

barriers to employment; 

(4) An analysis of workforce 

development activities, including 

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education and training, in the region. 

This analysis must include the strengths 

and weaknesses of workforce 

development activities and capacity to 

provide the workforce development 

activities to address the education and 

skill needs of the workforce, including 

individuals with barriers to 

employment, and the employment 

needs of employers; 

(5) A description of the Local WDB’s 

strategic vision to support regional 

economic growth and economic selfsufficiency. This must include goals for 

preparing an educated and skilled 

workforce (including youth and 

individuals with barriers to 

employment), and goals relating to the 

performance accountability measures 

based on performance indicators 

described in § 677.155(a)(1) of this 

chapter; and 

(6) Taking into account analyses 

described in paragraphs (a)(1) through 

(4) of this section, a strategy to work 

with the entities that carry out the core 

programs and required partners to align 

resources available to the local area, to 

achieve the strategic vision and goals 

described in paragraph (a)(5) of this 

section. 

(b) The plan must include a 

description of the following 

requirements at WIOA secs. 108(b)(2)– 

(21): 

(1) The workforce development 

system in the local area that identifies: 

(i) The programs that are included in 

the system; and 

(ii) How the Local WDB will support 

the strategy identified in the State Plan 

under § 676.105 of this chapter and 

work with the entities carrying out core 

programs and other workforce 

development programs, including 

programs of study authorized under the 

Carl D. Perkins Career and Technical 

Education Act of 2006 (20 U.S.C. 2301 

et seq.) to support service alignment; 

(2) How the Local WDB will work 

with entities carrying out core programs 

to: 

(i) Expand access to employment, 

training, education, and supportive 

services for eligible individuals, 

particularly eligible individuals with 

barriers to employment; 

(ii) Facilitate the development of 

career pathways and co-enrollment, as 

appropriate, in core programs; and 

(iii) Improve access to activities 

leading to a recognized postsecondary 

credential (including a credential that is 

an industry-recognized certificate or 

certification, portable, and stackable); 

(3) The strategies and services that 

will be used in the local area: 

(i) To facilitate engagement of 

employers in workforce development 

programs, including small employers 

and employers in in-demand industry 

sectors and occupations; 

(ii) To support a local workforce 

development system that meets the 

needs of businesses in the local area; 

(iii) To better coordinate workforce 

development programs and economic 

development; 

(iv) To strengthen linkages between 

the one-stop delivery system and 

unemployment insurance programs; and 

(v) That may include the 

implementation of initiatives such as 

incumbent worker training programs, 

on-the-job training programs, 

customized training programs, industry 

and sector strategies, career pathways 

initiatives, utilization of effective 

business intermediaries, and other 

business services and strategies 

designed to meet the needs of regional 

employers. These initiatives must 

support the strategy described in 

paragraph (b)(3) of this section; 

(4) An examination of how the Local 

WDB will coordinate local workforce 

investment activities with regional 

economic development activities that 

are carried out in the local area and how 

the Local WDB will promote 

entrepreneurial skills training and 

microenterprise services; 

(5) The one-stop delivery system in 

the local area, including: 

(i) How the Local WDB will ensure 

the continuous improvement of eligible 

providers through the system and that 

such providers will meet the 

employment needs of local employers, 

workers, and job seekers; 

(ii) How the Local WDB will facilitate 

access to services provided through the 

one-stop delivery system, including in 

remote areas, through the use of 

technology and other means; 

(iii) How entities within the one-stop 

delivery system, including one-stop 

operators and the one-stop partners, will 

comply with WIOA sec. 188, if 

applicable, and applicable provisions of 

the Americans with Disabilities Act of 

1990 (42 U.S.C. 12101 et seq.) regarding 

the physical and programmatic 

accessibility of facilities, programs and 

services, technology, and materials for 

individuals with disabilities, including 

providing staff training and support for 

addressing the needs of individuals 

with disabilities; and 

(iv) The roles and resource 

contributions of the one-stop partners; 

(6) A description and assessment of 

the type and availability of adult and 

dislocated worker employment and 

training activities in the local area; 

(7) A description of how the Local 

WDB will coordinate workforce 

investment activities carried out in the 

local area with statewide rapid response 

activities; 

(8) A description and assessment of 

the type and availability of youth 

workforce investment activities in the 

local area including activities for youth 

who are individuals with disabilities, 

which must include an identification of 

successful models of such activities; 

(9) How the Local WDB will 

coordinate relevant secondary and 

postsecondary education programs and 

activities with education and workforce 

investment activities to coordinate 

strategies, enhance services, and avoid 

duplication of services; 

(10) How the Local WDB will 

coordinate WIOA title I workforce 

investment activities with the provision 

of transportation and other appropriate 

supportive services in the local area; 

(11) Plans, assurances, and strategies 

for maximizing coordination, improving 

service delivery, and avoiding 

duplication of Wagner-Peyser Act (29 

U.S.C. 49 et seq.) services and other 

services provided through the one-stop 

delivery system; 

(12) How the Local WDB will 

coordinate WIOA title I workforce 

investment activities with adult 

education and literacy activities under 

WIOA title II. This description must 

include how the Local WDB will carry 

out the review of local applications 

submitted under title II consistent with 

WIOA secs. 107(d)(11)(A) and (B)(i) and 

WIOA sec. 232; 

(13) Copies of executed cooperative 

agreements which define how all local 

service providers, including additional 

providers, will carry out the 

requirements for integration of and 

access to the entire set of services 

available in the local one-stop delivery 

system. This includes cooperative 

agreements (as defined in WIOA sec. 

107(d)(11)) between the Local WDB or 

other local entities described in WIOA 

sec. 101(a)(11)(B) of the Rehabilitation 

Act of 1973 (29 U.S.C. 721(a)(11)(B)) 

and the local office of a designated State 

agency or designated State unit 

administering programs carried out 

under title I of the Rehabilitation Act 

(29 U.S.C. 720 et seq.) (other than sec. 

112 or part C of that title (29 U.S.C. 732, 

741) and subject to sec. 121(f)) in 

accordance with sec. 101(a)(11) of the 

Rehabilitation Act (29 U.S.C. 721(a)(11)) 

with respect to efforts that will enhance 

the provision of services to individuals 

with disabilities and to other 

individuals, such as cross training of 

staff, technical assistance, use and 

sharing of information, cooperative 

efforts with employers, and other efforts 

at cooperation, collaboration, and 

coordination; 

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(14) An identification of the entity 

responsible for the disbursal of grant 

funds described in WIOA sec. 

107(d)(12)(B)(i)(III), as determined by 

the chief elected official or the Governor 

under WIOA sec. 107(d)(12)(B)(i); 

(15) The competitive process that will 

be used to award the subgrants and 

contracts for WIOA title I activities; 

(16) The local levels of performance 

negotiated with the Governor and chief 

elected official consistent with WIOA 

sec. 116(c), to be used to measure the 

performance of the local area and to be 

used by the Local WDB for measuring 

the performance of the local fiscal agent 

(where appropriate), eligible providers 

under WIOA title I subtitle B, and the 

one-stop delivery system in the local 

area; 

(17) The actions the Local WDB will 

take toward becoming or remaining a 

high-performing WDB, consistent with 

the factors developed by the State WDB; 

(18) How training services outlined in 

WIOA sec. 134 will be provided through 

the use of individual training accounts, 

including, if contracts for training 

services will be used, how the use of 

such contracts will be coordinated with 

the use of individual training accounts 

under that chapter, and how the Local 

WDB will ensure informed customer 

choice in the selection of training 

programs regardless of how the training 

services are to be provided; 

(19) The process used by the Local 

WDB, consistent with WIOA sec. 108(d), 

to provide a 30-day public comment 

period prior to submission of the plan, 

including an opportunity to have input 

into the development of the local plan, 

particularly for representatives of 

businesses, education, and labor 

organizations; 

(20) How one-stop centers are 

implementing and transitioning to an 

integrated, technology-enabled intake 

and case management information 

system for programs carried out under 

WIOA and by one-stop partners; and 

(21) The direction given by the 

Governor and the Local WDB to the onestop operator to ensure priority for adult 

career and training services will be 

given to recipients of public assistance, 

other low-income individuals, and 

individuals who are basic skills 

deficient consistent with WIOA sec. 

134(c)(3)(E) and § 680.600 of this 

chapter. 

(c) The local plan must include any 

additional information required by the 

Governor. 

(d) The local plan must identify the 

portions that the Governor has 

designated as appropriate for common 

response in the regional plan where 

there is a shared regional responsibility, 

as permitted by § 679.540(b). 

(e) Comments submitted during the 

public comment period that represent 

disagreement with the plan must be 

submitted with the local plan. 

§ 679.570 What are the requirements for 

approval of a local plan? 

(a) Consistent with the requirements 

at § 679.520 the Governor must review 

completed plans (including a 

modification to the plan). Such plans 

will be considered approved 90 days 

after the Governor receives the plan 

unless the Governor determines in 

writing that: 

(1) There are deficiencies in 

workforce investment activities that 

have been identified through audits and 

the local area has not made acceptable 

progress in implementing plans to 

address deficiencies; or 

(2) The plan does not comply with 

applicable provisions of WIOA and the 

WIOA regulations, including the 

required consultations and public 

comment provisions, and the 

nondiscrimination requirements of 29 

CFR part 38. 

(3) The plan does not align with the 

State Plan, including with regard to the 

alignment of the core programs to 

support the strategy identified in the 

State Plan in accordance with WIOA 

sec. 102(b)(1)(E) and § 676.105 of this 

chapter. 

(b) In cases where the State is a single 

local area: 

(1) The State must incorporate the 

local plan into the State’s Unified or 

Combined State Plan and submit it to 

the U.S. Department of Labor in 

accordance with the procedures 

described in § 676.105 of this chapter. 

(2) The Secretary of Labor performs 

the roles assigned to the Governor as 

they relate to local planning activities. 

(3) The Secretary of Labor will issue 

planning guidance for such States. 

§ 679.580 When must the local plan be 

modified? 

(a) Consistent with the requirements 

at § 679.530, the Governor must 

establish procedures governing the 

modification of local plans. 

(b) At the end of the first 2-year 

period of the 4-year local plan, each 

Local WDB, in partnership with the 

appropriate chief elected officials, must 

review the local plan and prepare and 

submit modifications to the local plan to 

reflect changes: 

(1) In labor market and economic 

conditions; and 

(2) Other factors affecting the 

implementation of the local plan, 

including but not limited to: 

(i) Significant changes in local 

economic conditions; 

(ii) Changes in the financing available 

to support WIOA title I and partnerprovided WIOA services; 

(iii) Changes to the Local WDB 

structure; and 

(iv) The need to revise strategies to 

meet local performance goals. 

Subpart E—Waivers/WorkFlex 

(Workforce Flexibility Plan) 

§ 679.600 What is the purpose of the 

general statutory and regulatory waiver 

authority in the Workforce Innovation and 

Opportunity Act? 

(a) The purpose of the general 

statutory and regulatory waiver 

authority provided at sec. 189(i)(3) of 

the WIOA is to provide flexibility to 

States and local areas and enhance their 

ability to improve the statewide 

workforce development system to 

achieve the goals and purposes of 

WIOA. 

(b) A waiver may be requested to 

address impediments to the 

implementation of a Unified or 

Combined State Plan, including the 

continuous improvement strategy, 

consistent with the purposes of title I of 

WIOA as identified in § 675.100 of this 

chapter. 

§ 679.610 What provisions of the 

Workforce Innovation and Opportunity Act 

and the Wagner-Peyser Act may be waived, 

and what provisions may not be waived? 

(a) The Secretary may waive for a 

State, or local area in a State, any of the 

statutory or regulatory requirements of 

subtitles A, B and E of title I of WIOA, 

except for requirements relating to: 

(1) Wage and labor standards; 

(2) Non-displacement protections; 

(3) Worker rights; 

(4) Participation and protection of 

workers and participants; 

(5) Grievance procedures and judicial 

review; 

(6) Nondiscrimination; 

(7) Allocation of funds to local areas; 

(8) Eligibility of providers or 

participants; 

(9) The establishment and functions 

of local areas and Local WDBs; 

(10) Procedures for review and 

approval of State and Local plans; 

(11) The funding of infrastructure 

costs for one-stop centers; and 

(12) Other requirements relating to the 

basic purposes of title I of WIOA 

described in § 675.100 of this chapter. 

(b) The Secretary may waive for a 

State, or local area in a State, any of the 

statutory or regulatory requirements of 

secs. 8 through 10 of the Wagner- Peyser 

Act (29 U.S.C. 49g–49i) except for 

requirements relating to: 

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(1) The provision of services to 

unemployment insurance claimants and 

veterans; and 

(2) Universal access to the basic labor 

exchange services without cost to job 

seekers. 

§ 679.620 Under what conditions may a 

Governor request, and the Secretary 

approve, a general waiver of statutory or 

regulatory requirements under the 

Workforce Innovation and Opportunity Act? 

(a) The Secretary will issue guidelines 

under which the States may request 

general waivers of WIOA and WagnerPeyser Act requirements. 

(b) A Governor may request a general 

waiver in consultation with appropriate 

chief elected officials: 

(1) By submitting a waiver plan which 

may accompany the State’s WIOA 4- 

year Unified or Combined State Plan or 

2-year modification; or 

(2) After a State’s WIOA Plan is 

approved, by separately submitting a 

waiver plan. 

(c) A Governor’s waiver request may 

seek waivers for the entire State or for 

one or more local areas within the State. 

(d) A Governor requesting a general 

waiver must submit to the Secretary a 

plan to improve the statewide workforce 

development system that: 

(1) Identifies the statutory or 

regulatory requirements for which a 

waiver is requested and the goals that 

the State or local area, as appropriate, 

intends to achieve as a result of the 

waiver and how those goals relate to the 

Unified or Combined State Plan; 

(2) Describes the actions that the State 

or local area, as appropriate, has 

undertaken to remove State or local 

statutory or regulatory barriers; 

(3) Describes the goals of the waiver 

and the expected programmatic 

outcomes if the request is granted; 

(4) Describes how the waiver will 

align with the Department’s policy 

priorities, such as: 

(i) Supporting employer engagement; 

(ii) Connecting education and training 

strategies; 

(iii) Supporting work-based learning; 

(iv) Improving job and career results; 

and 

(v) Other priorities as articulated in 

guidance; 

(5) Describes the individuals affected 

by the waiver, including how the waiver 

will impact services for disadvantaged 

populations or individuals with 

multiple barriers to employment; and 

(6) Describes the processes used to: 

(i) Monitor the progress in 

implementing the waiver; 

(ii) Provide notice to any Local WDB 

affected by the waiver; 

(iii) Provide any Local WDB affected 

by the waiver an opportunity to 

comment on the request; 

(iv) Ensure meaningful public 

comment, including comment by 

business and organized labor, on the 

waiver; and 

(v) Collect and report information 

about waiver outcomes in the State’s 

WIOA Annual Report. 

(7) The Secretary may require that 

States provide the most recent data 

available about the outcomes of the 

existing waiver in cases where the State 

seeks renewal of a previously approved 

waiver. 

(e) The Secretary will issue a decision 

on a waiver request within 90 days after 

the receipt of the original waiver 

request. 

(f) The Secretary will approve a 

waiver request if and only to the extent 

that: 

(1) The Secretary determines that the 

requirements for which a waiver is 

requested impede the ability of either 

the State or local area to implement the 

State’s Plan to improve the statewide 

workforce development system; 

(2) The Secretary determines that the 

waiver plan meets all of the 

requirements of WIOA sec. 189(i)(3) and 

§§ 679.600 through 679.620; and 

(3) The State has executed a 

memorandum of understanding (MOU) 

with the Secretary requiring the State to 

meet, or ensure that the local area 

meets, agreed-upon outcomes and to 

implement other appropriate measures 

to ensure accountability. 

(g) A waiver may be approved for as 

long as the Secretary determines 

appropriate, but for not longer than the 

duration of the State’s existing Unified 

or Combined State Plan. 

(h) The Secretary may revoke a waiver 

granted under this section if the 

Secretary determines that the State has 

failed to meet the agreed upon 

outcomes, measures, failed to comply 

with the terms and conditions in the 

MOU described in paragraph (f) of this 

section or any other document 

establishing the terms and conditions of 

the waiver, or if the waiver no longer 

meets the requirements of §§ 679.600 

through 679.620. 

§ 679.630 Under what conditions may the 

Governor submit a workforce flexibility 

plan? 

(a) A State may submit to the 

Secretary, and the Secretary may 

approve, a workforce flexibility 

(workflex) plan under which the State is 

authorized to waive, in accordance with 

the plan: 

(1) Any of the statutory or regulatory 

requirements under title I of WIOA 

applicable to local areas, if the local area 

requests the waiver in a waiver 

application, except for: 

(i) Requirements relating to the basic 

purposes of title I of WIOA described in 

§ 675.100 of this chapter; 

(ii) Wage and labor standards; 

(iii) Grievance procedures and 

judicial review; 

(iv) Nondiscrimination; 

(v) Eligibility of participants; 

(vi) Allocation of funds to local areas; 

(vii) Establishment and functions of 

local areas and Local WDBs; 

(viii) Procedures for review and 

approval of local plans; and 

(ix) Worker rights, participation, and 

protection. 

(2) Any of the statutory or regulatory 

requirements applicable to the State 

under secs. 8 through 10 of the WagnerPeyser Act (29 U.S.C. 49g-49i), except 

for requirements relating to: 

(i) The provision of services to 

unemployment insurance claimants and 

veterans; and 

(ii) Universal access to basic labor 

exchange services without cost to job 

seekers. 

(3) Any of the statutory or regulatory 

requirements applicable under the 

Older Americans Act of 1965 (OAA) (42 

U.S.C. 3001 et seq.), to State agencies on 

aging with respect to activities carried 

out using funds allotted under OAA sec. 

506(b) (42 U.S.C. 3056d(b)), except for 

requirements relating to: 

(i) The basic purposes of OAA; 

(ii) Wage and labor standards; 

(iii) Eligibility of participants in the 

activities; and 

(iv) Standards for grant agreements. 

(b) A workforce flexibility plan 

submitted under paragraph (a) of this 

section must include descriptions of: 

(1) The process by which local areas 

in the State may submit and obtain State 

approval of applications for waivers of 

requirements under title I of WIOA; 

(2) A description of the criteria the 

State will use to approve local area 

waiver requests and how such requests 

support implementation of the goals 

identified State Plan; 

(3) The statutory and regulatory 

requirements of title I of WIOA that are 

likely to be waived by the State under 

the workforce flexibility plan; 

(4) The statutory and regulatory 

requirements of secs. 8 through 10 of the 

Wagner-Peyser Act that are proposed for 

waiver, if any; 

(5) The statutory and regulatory 

requirements of the OAA that are 

proposed for waiver, if any; 

(6) The outcomes to be achieved by 

the waivers described in paragraphs 

(b)(1) through (5) of this section 

including, where appropriate, revisions 

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to adjusted levels of performance 

included in the State or local plan under 

title I of WIOA, and a description of the 

data or other information the State will 

use to track and assess outcomes; and 

(7) The measures to be taken to ensure 

appropriate accountability for Federal 

funds in connection with the waivers. 

(c) A State’s workforce flexibility plan 

may accompany the State’s Unified or 

Combined State Plan, 2-year 

modification, or may be submitted 

separately as a modification to that plan. 

(d) The Secretary may approve a 

workforce flexibility plan consistent 

with the period of approval of the 

State’s Unified or Combined State Plan, 

and not for more than 5 years. 

(e) Before submitting a workforce 

flexibility plan to the Secretary for 

approval, the State must provide 

adequate notice and a reasonable 

opportunity for comment on the 

proposed waiver requests under the 

workforce flexibility plan to all 

interested parties and to the general 

public. 

(f) The Secretary will issue guidelines 

under which States may request 

designation as a work-flex State. These 

guidelines may require a State to 

implement an evaluation of the impact 

of work-flex in the State. 

§ 679.640 What limitations apply to the 

State’s workforce flexibility plan authority 

under the Workforce Innovation and 

Opportunity Act? 

(a)(1) Under work-flex waiver 

authority a State must not waive the 

WIOA, Wagner-Peyser Act or OAA 

requirements which are excepted from 

the work-flex waiver authority and 

described in § 679.630(a). 

(2) Requests to waive statutory and 

regulatory requirements of title I of 

WIOA applicable at the State level may 

not be granted under work-flex waiver 

authority granted to a State. Such 

requests only may be granted by the 

Secretary under the general waiver 

authority described at §§ 679.610 

through 679.620. 

(b) As required in § 679.630(b)(6), 

States must address the outcomes to 

result from work-flex waivers as part of 

its workforce flexibility plan. The 

Secretary may terminate a State’s workflex designation if the State fails to meet 

agreed-upon outcomes or other terms 

and conditions contained in its 

workforce flexibility plan. 

■ 13. Add part 680 to read as follows: 

PART 680—ADULT AND DISLOCATED 

WORKER ACTIVITIES UNDER TITLE I 

OF THE WORKFORCE INNOVATION 

AND OPPORTUNITY ACT 

Subpart A—Delivery of Adult and 

Dislocated Worker Activities Under Title I of 

the Workforce Innovation and Opportunity 

Act 

Sec. 

680.100 What is the role of the adult and 

dislocated worker programs in the onestop delivery system? 

680.110 When must adults and dislocated 

workers be registered and considered a 

participant? 

680.120 What are the eligibility criteria for 

career services for adults in the adult and 

dislocated worker programs? 

680.130 What are the eligibility criteria for 

career services for dislocated workers in 

the adult and dislocated worker 

programs? 

680.140 What Workforce Innovation and 

Opportunity Act title I adult and 

dislocated worker services are Local 

Workforce Development Boards required 

and permitted to provide? 

680.150 What career services must be 

provided to adults and dislocated 

workers? 

680.160 How are career services delivered? 

680.170 What is the individual employment 

plan? 

680.180 What is an internship or work 

experience for adults and dislocated 

workers? 

680.190 What is a transitional job? 

680.195 What funds may be used for 

transitional jobs? 

Subpart B—Training Services 

Sec. 

680.200 What are training services for 

adults and dislocated workers? 680.210 

Who may receive training services? 

680.220 Are there particular career services 

an individual must receive before 

receiving training services under the 

Workforce Innovation and Opportunity 

Act? 

680.230 What are the requirements for 

coordination of Workforce Innovation 

and Opportunity Act training funds and 

other grant assistance? 

Subpart C—Individual Training Accounts 

Sec. 

680.300 How are training services 

provided? 

680.310 Can the duration and amount of 

Individual Training Accounts be 

limited? 

680.320 Under what circumstances may 

mechanisms other than Individual 

Training Accounts be used to provide 

training services? 

680.330 How can Individual Training 

Accounts, supportive services, and 

needs-related payments be used to 

support placing participating adults and 

dislocated workers into a registered 

apprenticeship program and support 

participants once they are in a registered 

apprenticeship program? 

680.340 What are the requirements for 

consumer choice? 

680.350 May Workforce Innovation and 

Opportunity Act title I adult and 

dislocated worker funds be used to 

directly support adult education and 

literacy activities? 

Subpart D—Eligible Training Providers 

Sec. 

680.400 What is the purpose of this 

subpart? 

680.410 What is an eligible training 

provider? 

680.420 What is a ‘‘program of training 

services’’? 

680.430 Who is responsible for managing 

the training provider eligibility process? 

680.440 [Reserved] 

680.450 What is the initial eligibility 

process for new providers and programs? 

680.460 What is the application procedure 

for continued eligibility? 

680.470 What are the procedures for 

including and removing registered 

apprenticeship programs on a State list 

of eligible training providers and 

programs? 

680.480 May an eligible training provider 

lose its eligibility? 

680.490 What kind of performance and cost 

information must eligible training 

providers other than registered 

apprenticeship programs provide for 

each program of training services? 

680.500 How is the State list of eligible 

training providers and programs 

disseminated? 

680.510 In what ways can a Local 

Workforce Development Board 

supplement the information available 

from the State list of eligible training 

providers and programs? 

680.520 May individuals choose training 

providers and programs located outside 

of the local area or outside of the State? 

680.530 What eligibility requirements apply 

to providers of on-the-job-training, 

customized training, incumbent worker 

training, and other training exceptions? 

Subpart E—Priority and Special 

Populations 

680.600 What priority must be given to lowincome adults and public assistance 

recipients and individuals who are basic 

skills deficient served with adult funds 

under title I of the Workforce Innovation 

and Opportunity Act? 

680.610 Does the statutory priority for use 

of adult funds also apply to dislocated 

worker funds? 

680.620 How does the Temporary 

Assistance for Needy Families program 

relate to the one-stop delivery system? 

680.630 How does a displaced homemaker 

qualify for services under title I of the 

Workforce Innovation and Opportunity 

Act? 

680.640 May an individual with a disability 

whose family does not meet income 

eligibility criteria under the Workforce 

Innovation and Opportunity Act be 

eligible for priority as a low-income 

adult? 

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680.650 Do veterans receive priority of 

service under the Workforce Innovation 

and Opportunity Act? 

680.660 Are separating military service 

members eligible for dislocated worker 

activities under the Workforce 

Innovation and Opportunity Act? 

Subpart F—Work-Based Training 

680.700 What are the requirements for onthe-job training? 

680.710 What are the requirements for onthe-job training contracts for employed 

workers? 

680.720 What conditions govern on-the-job 

training payments to employers? 

680.730 Under what conditions may a 

Governor or Local Workforce 

Development Board raise the on-the-job 

training reimbursement rate up to 75 

percent of the wage rate? 

680.740 How can on-the-job training funds 

be used to support placing participants 

into a registered apprenticeship 

program? 

680.750 Can Individual Training Account 

and on-the-job training funds be 

combined to support placing participants 

into a registered apprenticeship 

program? 

680.760 What is customized training? 

680.770 What are the requirements for 

customized training for employed 

workers? 

680.780 Who is an ‘‘incumbent worker’’ for 

purposes of statewide and local 

employment and training activities? 

680.790 What is incumbent worker 

training? 

680.800 What funds may be used for 

incumbent worker training? 

680.810 What criteria must be taken into 

account for an employer to be eligible to 

receive local incumbent worker funds? 

680.820 Are there cost sharing requirements 

for local area incumbent worker training? 

680.830 May funds provided to employers 

for work-based training be used to assist, 

promote, or deter union organizing? 

680.840 May funds provided to employers 

for work-based training and other work 

experiences be used to fill job openings 

as a result of a labor dispute? 

Subpart G—Supportive Services 

680.900 What are supportive services for 

adults and dislocated workers? 

680.910 When may supportive services be 

provided to participants? 

680.920 Are there limits on the amount or 

duration of funds for supportive 

services? 

680.930 What are needs-related payments? 

680.940 What are the eligibility 

requirements for adults to receive needsrelated payments? 

680.950 What are the eligibility 

requirements for dislocated workers to 

receive needs-related payments? 

680.960 May needs-related payments be 

paid while a participant is waiting to 

start training classes? 

680.970 How is the level of needs-related 

payments determined? 

Authority: Secs. 122, 134, 189, 503, Pub. 

L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart A—Delivery of Adult and 

Dislocated Worker Activities Under 

Title I of the Workforce Innovation and 

Opportunity Act 

§ 680.100 What is the role of the adult and 

dislocated worker programs in the one-stop 

delivery system? 

(a) The one-stop delivery system is 

the basic delivery system for adult and 

dislocated worker services. Through this 

system, adults and dislocated workers 

can access a continuum of services. The 

services are classified as career and 

training services. 

(b) The chief elected official or his/her 

designee(s), as the local grant 

recipient(s) for the adult and dislocated 

worker programs, is a required one-stop 

partner and is subject to the provisions 

relating to such partners described in 

part 678 of this chapter. Consistent with 

those provisions: 

(1) Career services for adults and 

dislocated workers must be made 

available in at least one one-stop center 

in each local area. Services also may be 

available elsewhere, either at affiliated 

sites or at specialized centers. For 

example, specialized centers may be 

established to serve workers being 

dislocated from a particular employer or 

industry, or to serve residents of public 

housing. 

(2) Through the one-stop delivery 

system, adults and dislocated workers 

needing training are provided 

Individual Training Accounts (ITAs) 

and access to lists of eligible training 

providers and programs of training. 

These lists contain quality consumer 

information, including cost and 

performance information for each of the 

providers’ programs, so that participants 

can make informed choices on where to 

use their ITAs. (ITAs are more fully 

discussed in subpart C of this part.) 

§ 680.110 When must adults and 

dislocated workers be registered and 

considered a participant? 

(a) Registration is the process for 

collecting information to support a 

determination of eligibility. This 

information may be collected through 

methods that include electronic data 

transfer, personal interview, or an 

individual’s application. Individuals are 

considered participants when they have 

received a Workforce Innovation and 

Opportunity Act (WIOA) service other 

than self-service or information-only 

activities and have satisfied all 

applicable programmatic requirements 

for the provision of services, such as 

eligibility determination (see 

§ 677.150(a) of this chapter). 

(b) Adults and dislocated workers 

who receive services funded under 

WIOA title I other than self-service or 

information-only activities must be 

registered and must be a participant. 

(c) EO data, as defined in § 675.300 of 

this chapter, must be collected on every 

individual who is interested in being 

considered for WIOA title I financially 

assisted aid, benefits, services, or 

training by a recipient, and who has 

signified that interest by submitting 

personal information in response to a 

request from the grant recipient or 

designated service provider. 

§ 680.120 What are the eligibility criteria 

for career services for adults in the adult 

and dislocated worker programs? 

To be eligible to receive career 

services as an adult in the adult and 

dislocated worker programs, an 

individual must be 18 years of age or 

older. To be eligible for any dislocated 

worker programs, an eligible adult must 

meet the criteria of § 680.130. Eligibility 

criteria for training services are found at 

§ 680.210. 

§ 680.130 What are the eligibility criteria 

for career services for dislocated workers in 

the adult and dislocated worker programs? 

(a) To be eligible to receive career 

services as a dislocated worker in the 

adult and dislocated worker programs, 

an individual must meet the definition 

of ‘‘dislocated worker’’ at WIOA sec. 

3(15). Eligibility criteria for training 

services are found at § 680.210. 

(b) Governors and Local Workforce 

Development Boards (WDBs) may 

establish policies and procedures for 

one-stop centers to use in determining 

an individual’s eligibility as a dislocated 

worker, consistent with the definition at 

WIOA sec. 3(15). These policies and 

procedures may address such 

conditions as: 

(1) What constitutes a ‘‘general 

announcement’’ of plant closing under 

WIOA sec. 3(15)(B)(ii) or (iii); 

(2) What constitutes ‘‘unemployed as 

a result of general economic conditions 

in the community in which the 

individual resides or because of natural 

disasters’’ for determining the eligibility 

of self-employed individuals, including 

family members and farm workers or 

ranch hands, under WIOA sec. 3(15)(C); 

and 

(3) What constitutes ‘‘unlikely to 

return to a previous industry or 

occupation’’ under WIOA sec. 

3(15)(A)(iii), consistent with § 680.660. 

§ 680.140 What Workforce Innovation and 

Opportunity Act title I adult and dislocated 

worker services are Local Workforce 

Development Boards required and 

permitted to provide? 

(a) WIOA title I formula funds 

allocated to local areas for adults and 

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dislocated workers must be used to 

provide career and training services 

through the one-stop delivery system. 

Local WDBs determine the most 

appropriate mix of these services, but 

both types must be available for eligible 

adults and dislocated workers. Different 

eligibility criteria apply for each type of 

services. See §§ 680.120, 680.130, and 

680.210. 

(b) WIOA title I funds also may be 

used to provide the additional services 

described in WIOA sec. 134(d), 

including: 

(1) Job seeker services, such as: 

(i) Customer support to enable 

individuals with barriers to employment 

(including individuals with disabilities) 

and veterans, to navigate among 

multiple services and activities; 

(ii) Training programs for displaced 

homemakers and for individuals 

training for nontraditional employment 

(as defined in WIOA sec. 3(37) as 

occupations or fields of work in which 

individuals of one gender comprise less 

than 25 percent of the individuals so 

employed), in conjunction with 

programs operated in the local area; 

(iii) Work support activities for lowwage workers, in coordination with onestop partners, which will provide 

opportunities for these workers to retain 

or enhance employment. These 

activities may include any activities 

available under the WIOA adult and 

dislocated worker programs in 

coordination with activities and 

resources available through partner 

programs. These activities may be 

provided in a manner that enhances the 

worker’s ability to participate, for 

example by providing them at 

nontraditional hours or providing onsite child care; 

(iv) Supportive services, including 

needs-related payments, as described in 

subpart G of this part; and 

(v) Transitional jobs, as described in 

§ 680.190, to individuals with barriers to 

employment who are chronically 

unemployed or have an inconsistent 

work history; 

(2) Employer services, such as: 

(i) Customized screening and referral 

of qualified participants in training 

services to employers; 

(ii) Customized employment-related 

services to employers, employer 

associations, or other such organization 

on a fee-for-service basis that are in 

addition to labor exchange services 

available to employers under the 

Wagner-Peyser Act Employment 

Service; 

(iii) Activities to provide business 

services and strategies that meet the 

workforce investment needs of area 

employers, as determined by the Local 

WDB and consistent with the local plan 

(see § 678.435 of this chapter and WIOA 

sec. 134(d)(1)(A)(ix)); and 

(3) Coordination activities, such as: 

(i) Employment and training activities 

in coordination with child support 

enforcement activities, as well as child 

support services and assistance 

activities, of the State and local agencies 

carrying out part D of title IV of the 

Social Security Act (42 U.S.C. 651 et 

seq.); 

(ii) Employment and training 

activities in coordination with 

cooperative extension programs carried 

out by the Department of Agriculture; 

(iii) Employment and training 

activities in coordination with activities 

to facilitate remote access to services 

provided through a one-stop delivery 

system, including facilitating access 

through the use of technology; 

(iv) Improving coordination between 

workforce investment activities and 

economic development activities carried 

out within the local area involved, and 

to promote entrepreneurial skills 

training and microenterprise services; 

(v) Improving services and linkages 

between the local workforce 

development system (including the 

local one-stop delivery system) and 

employers, including small employers, 

in the local area; 

(vi) Strengthening linkages between 

the one-stop delivery system and the 

unemployment insurance programs; and 

(vii) Improving coordination between 

employment and training activities and 

programs carried out in the local area 

for individuals with disabilities, 

including programs carried out by State 

agencies relating to intellectual 

disabilities and developmental 

disabilities, activities carried out by 

Statewide Independent Living Councils 

established under sec. 705 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

796d), programs funded under part B of 

chapter 1 of title VII of such Act (29 

U.S.C. 796e et seq.), and activities 

carried out by centers for independent 

living, as defined in sec. 702 of such Act 

(29 U.S.C. 796a); 

(4) Implementing a Pay-forPerformance contract strategy for 

training services in accordance with 

§§ 683.500 through 683.530 of this 

chapter for which up to 10 percent of 

the Local WDB’s total adult and 

dislocated worker funds may be used; 

(5) Technical assistance for one-stop 

centers, partners, and eligible training 

providers (ETPs) on the provision of 

service to individuals with disabilities 

in local areas, including staff training 

and development, provision of outreach 

and intake assessments, service 

delivery, service coordination across 

providers and programs, and 

development of performance 

accountability measures; 

(6) Activities to adjust the economic 

self-sufficiency standards referred to in 

WIOA sec. 134(a)(3)(A)(xii) for local 

factors or activities to adopt, calculate or 

commission for approval, economic selfsufficiency standards for the local areas 

that specify the income needs of 

families, by family size, the number and 

ages of children in the family, and subState geographical considerations; 

(7) Implementing promising service to 

workers and businesses, which may 

include support for education, training, 

skill upgrading, and statewide 

networking for employees to become 

workplace learning advisors and 

maintain proficiency in carrying out the 

activities associated with such advising; 

and 

(8) Incumbent worker training 

programs, as described in subpart F of 

this part. 

§ 680.150 What career services must be 

provided to adults and dislocated workers? 

(a) At a minimum, all of the basic 

career services described in WIOA secs. 

134(c)(2)(A)(i)–(xi) and § 678.430(a) of 

this chapter must be provided in each 

local area through the one-stop delivery 

system. 

(b) Individualized career services 

described in WIOA sec. 134(c)(2)(A)(xii) 

and § 678.430(b) of this chapter must be 

made available, if determined 

appropriate in order for an individual to 

obtain or retain employment. 

(c) Follow-up services, as described in 

WIOA sec. 134(c)(2)(A)(xiii) and 

§ 678.430(c) of this chapter, must be 

made available, as determined 

appropriate by the Local WDB, for a 

minimum of 12 months following the 

first day of employment, to participants 

who are placed in unsubsidized 

employment. 

§ 680.160 How are career services 

delivered? 

Career services must be provided 

through the one-stop delivery system. 

Career services may be provided 

directly by the one-stop operator or 

through contracts with service providers 

that are approved by the Local WDB. 

The Local WDB only may be a provider 

of career services when approved by the 

chief elected official and the Governor 

in accordance with the requirements of 

WIOA sec. 107(g)(2) and § 679.410 of 

this chapter. 

§ 680.170 What is the individual 

employment plan? 

The individual employment plan 

(IEP) is an individualized career service, 

under WIOA sec. 134(c)(2)(A)(xii)(II), 

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that is developed jointly by the 

participant and career planner when 

determined appropriate by the one-stop 

center or one-stop partner. The plan is 

an ongoing strategy to identify 

employment goals, achievement 

objectives, and an appropriate 

combination of services for the 

participant to achieve the employment 

goals. 

§ 680.180 What is an internship or work 

experience for adults and dislocated 

workers? 

For the purposes of WIOA sec. 

134(c)(2)(A)(xii)(VII), an internship or 

work experience is a planned, 

structured learning experience that 

takes place in a workplace for a limited 

period of time. Internships and other 

work experience may be paid or unpaid, 

as appropriate and consistent with other 

laws, such as the Fair Labor Standards 

Act. An internship or other work 

experience may be arranged within the 

private for profit sector, the non-profit 

sector, or the public sector. Labor 

standards apply in any work experience 

setting where an employee/employer 

relationship, as defined by the Fair 

Labor Standards Act, exists. 

Transitional jobs are a type of work 

experience, as described in §§ 680.190 

and 680.195. 

§ 680.190 What is a transitional job? 

A transitional job is one that provides 

a time-limited work experience, that is 

wage-paid and subsidized, and is in the 

public, private, or non-profit sectors for 

those individuals with barriers to 

employment who are chronically 

unemployed or have inconsistent work 

history, as determined by the Local 

WDB. These jobs are designed to enable 

an individual to establish a work 

history, demonstrate work success in an 

employee-employer relationship, and 

develop the skills that lead to 

unsubsidized employment. 

§ 680.195 What funds may be used for 

transitional jobs? 

The local area may use up to 10 

percent of their combined total of adult 

and dislocated worker allocations for 

transitional jobs as described in 

§ 680.190. Transitional jobs must be 

combined with comprehensive career 

services (see § 680.150) and supportive 

services (see § 680.900). 

Subpart B—Training Services 

§ 680.200 What are training services for 

adults and dislocated workers? 

Types of training services are listed in 

WIOA sec. 134(c)(3)(D) and in 

paragraphs (a) through (k) of this 

section. This list is not all-inclusive and 

additional training services may be 

provided. 

(a) Occupational skills training, 

including training for nontraditional 

employment; 

(b) On-the-job training (OJT) (see 

§§ 680.700, 680.710, 680.720, and 

680.730); 

(c) Incumbent worker training, in 

accordance with WIOA sec. 134(d)(4) 

and §§ 680.780, 680.790, 680.800, 

680.810, and 680.820; 

(d) Programs that combine workplace 

training with related instruction, which 

may include cooperative education 

programs; 

(e) Training programs operated by the 

private sector; 

(f) Skills upgrading and retraining; 

(g) Entrepreneurial training; 

(h) Transitional jobs in accordance 

with WIOA sec 134(d)(5) and §§ 680.190 

and 680.195; 

(i) Job readiness training provided in 

combination with services listed in 

paragraphs (a) through (h) of this 

section; 

(j) Adult education and literacy 

activities, including activities of English 

language acquisition and integrated 

education and training programs, 

provided concurrently or in 

combination with training services 

listed in paragraphs (a) through (g) of 

this section; and 

(k) Customized training conducted 

with a commitment by an employer or 

group of employers to employ an 

individual upon successful completion 

of the training (see §§ 680.760 and 

680.770). 

§ 680.210 Who may receive training 

services? 

Under WIOA sec. 134(c)(3)(A) 

training services may be made available 

to employed and unemployed adults 

and dislocated workers who: 

(a) A one-stop center or one-stop 

partner determines, after an interview, 

evaluation, or assessment, and career 

planning, are: 

(1) Unlikely or unable to obtain or 

retain employment that leads to 

economic self-sufficiency or wages 

comparable to or higher than wages 

from previous employment through 

career services; 

(2) In need of training services to 

obtain or retain employment leading to 

economic self-sufficiency or wages 

comparable to or higher than wages 

from previous employment; and 

(3) Have the skills and qualifications 

to participate successfully in training 

services; 

(b) Select a program of training 

services that is directly linked to the 

employment opportunities in the local 

area or the planning region, or in 

another area to which the individuals 

are willing to commute or relocate; 

(c) Are unable to obtain grant 

assistance from other sources to pay the 

costs of such training, including such 

sources as State-funded training funds, 

Trade Adjustment Assistance (TAA), 

and Federal Pell Grants established 

under title IV of the Higher Education 

Act of 1965, or require WIOA assistance 

in addition to other sources of grant 

assistance, including Federal Pell Grants 

(provisions relating to fund 

coordination are found at § 680.230 and 

WIOA sec. 134(c)(3)(B)); and 

(d) If training services are provided 

through the adult funding stream, are 

determined eligible in accordance with 

the State and local priority system in 

effect for adults under WIOA sec. 

134(c)(3)(E) and § 680.600. 

§ 680.220 Are there particular career 

services an individual must receive before 

receiving training services under the 

Workforce Innovation and Opportunity Act? 

(a) Yes, except as provided by 

paragraph (b) of this section, an 

individual must at a minimum receive 

either an interview, evaluation, or 

assessment, and career planning or any 

other method through which the onestop center or partner can obtain enough 

information to make an eligibility 

determination to be determined eligible 

for training services under WIOA sec. 

134(c)(3)(A)(i) and § 680.210. Where 

appropriate, a recent interview, 

evaluation, or assessment, may be used 

for the assessment purpose. 

(b) The case file must contain a 

determination of need for training 

services under § 680.210 as determined 

through the interview, evaluation, or 

assessment, and career planning 

informed by local labor market 

information and training provider 

performance information, or through 

any other career service received. There 

is no requirement that career services be 

provided as a condition to receipt of 

training services; however, if career 

services are not provided before 

training, the Local WDB must document 

the circumstances that justified its 

determination to provide training 

without first providing the services 

described in paragraph (a) of this 

section. 

(c) There is no Federally required 

minimum time period for participation 

in career services before receiving 

training services. 

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§ 680.230 What are the requirements for 

coordination of Workforce Innovation and 

Opportunity Act training funds and other 

grant assistance? 

(a) WIOA funding for training is 

limited to participants who: 

(1) Are unable to obtain grant 

assistance from other sources to pay the 

costs of their training; or 

(2) Require assistance beyond that 

available under grant assistance from 

other sources to pay the costs of such 

training. Programs and training 

providers must coordinate funds 

available to pay for training as described 

in paragraphs (b) and (c) of this section. 

In making the determination under this 

paragraph (a), one-stop centers may take 

into account the full cost of 

participating in training services, 

including the cost of support services 

and other appropriate costs. 

(b) One-stop centers must coordinate 

training funds available and make 

funding arrangements with one-stop 

partners and other entities to apply the 

provisions of paragraph (a) of this 

section. One-stop centers must consider 

the availability of other sources of grants 

to pay for training costs such as 

Temporary Assistance for Needy 

Families (TANF), State-funded training 

funds, and Federal Pell Grants, so that 

WIOA funds supplement other sources 

of training grants. 

(c) A WIOA participant may enroll in 

WIOA-funded training while his/her 

application for a Pell Grant is pending 

as long as the one-stop center has made 

arrangements with the training provider 

and the WIOA participant regarding 

allocation of the Pell Grant, if it is 

subsequently awarded. In that case, the 

training provider must reimburse the 

one-stop center the WIOA funds used to 

underwrite the training for the amount 

the Pell Grant covers, including any 

education fees the training provider 

charges to attend training. 

Reimbursement is not required from the 

portion of Pell Grant assistance 

disbursed to the WIOA participant for 

education-related expenses. 

Subpart C—Individual Training 

Accounts 

§ 680.300 How are training services 

provided? 

Training services for eligible 

individuals are typically provided by 

training providers who receive payment 

for their services through an ITA. The 

ITA is a payment agreement established 

on behalf of a participant with a training 

provider. WIOA title I adult and 

dislocated workers purchase training 

services from State eligible training 

providers they select in consultation 

with the career planner, which includes 

discussion of program quality and 

performance information on the 

available eligible training providers. 

Payments from ITAs may be made in a 

variety of ways, including the electronic 

transfer of funds through financial 

institutions, vouchers, or other 

appropriate methods. Payments also 

may be made incrementally, for 

example, through payment of a portion 

of the costs at different points in the 

training course. Under limited 

conditions, as provided in § 680.320 and 

WIOA sec. 134(d)(3)(G), a Local WDB 

may contract for these services, rather 

than using an ITA for this purpose. In 

some limited circumstances, the Local 

WDB may itself provide the training 

services, but only if it obtains a waiver 

from the Governor for this purpose, and 

the Local WDB meets the other 

requirements of § 679.410 of this 

chapter and WIOA sec. 107(g)(1). 

§ 680.310 Can the duration and amount of 

Individual Training Accounts be limited? 

(a) Yes, the State or Local WDB may 

impose limits on ITAs, such as 

limitations on the dollar amount and/or 

duration. 

(b) Limits to ITAs may be established 

in different ways: 

(1) There may be a limit for an 

individual participant that is based on 

the needs identified in the IEP, such as 

the participant’s occupational choice or 

goal and the level of training needed to 

succeed in that goal; or 

(2) There may be a policy decision by 

the State WDB or Local WDB to 

establish a range of amounts and/or a 

maximum amount applicable to all 

ITAs. 

(c) Limitations established by State or 

Local WDB policies must be described 

in the State or Local Plan, respectively, 

but must not be implemented in a 

manner that undermines WIOA’s 

requirement that training services are 

provided in a manner that maximizes 

customer choice in the selection of an 

ETP. Exceptions to ITA limitations may 

be provided for individual cases and 

must be described in State or Local 

WDB policies. 

(d) An individual may select training 

that costs more than the maximum 

amount available for ITAs under a State 

or local policy when other sources of 

funds are available to supplement the 

ITA. These other sources may include: 

Pell Grants; scholarships; severance pay; 

and other sources. 

§ 680.320 Under what circumstances may 

mechanisms other than Individual Training 

Accounts be used to provide training 

services? 

(a) Contracts for services may be used 

instead of ITAs only when one or more 

of the following five exceptions apply, 

and the local area has fulfilled the 

consumer choice requirements of 

§ 680.340: 

(1) When the services provided are 

on-the-job-training (OJT), customized 

training, incumbent worker training, or 

transitional jobs. 

(2) When the Local WDB determines 

that there are an insufficient number of 

eligible training providers in the local 

area to accomplish the purpose of a 

system of ITAs. The determination 

process must include a public comment 

period for interested providers of at 

least 30 days, and be described in the 

Local Plan. 

(3) When the Local WDB determines 

that there is a training services program 

of demonstrated effectiveness offered in 

the area by a community-based 

organization or another private 

organization to serve individuals with 

barriers to employment, as described in 

paragraph (b) of this section. The Local 

WDB must develop criteria to be used 

in determining demonstrated 

effectiveness, particularly as it applies 

to the individuals with barriers to 

employment to be served. The criteria 

may include: 

(i) Financial stability of the 

organization; 

(ii) Demonstrated performance in the 

delivery of services to individuals with 

barriers to employment through such 

means as program completion rate; 

attainment of the skills, certificates or 

degrees the program is designed to 

provide; placement after training in 

unsubsidized employment; and 

retention in employment; and 

(iii) How the specific program relates 

to the workforce investment needs 

identified in the local plan. 

(4) When the Local WDB determines 

that it would be most appropriate to 

contract with an institution of higher 

education (see WIOA sec. 3(28)) or other 

provider of training services in order to 

facilitate the training of multiple 

individuals in in-demand industry 

sectors or occupations, provided that 

the contract does not limit consumer 

choice. 

(5) When the Local WDB is 

considering entering into a Pay-forPerformance contract, and the Local 

WDB ensures that the contract is 

consistent with § 683.510 of this 

chapter. 

(b) Under paragraph (a)(3) of this 

section, individuals with barriers to 

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employment include those individuals 

in one or more of the following 

categories, as prescribed by WIOA sec. 

3(24): 

(1) Displaced homemakers; 

(2) Low-income individuals; 

(3) Indians, Alaska Natives, and 

Native Hawaiians; 

(4) Individuals with disabilities; 

(5) Older individuals, i.e., those aged 

55 or over; 

(6) Ex-offenders; 

(7) Homeless individuals; 

(8) Youth who are in or have aged out 

of the foster care system; 

(9) Individuals who are English 

language learners, individuals who have 

low levels of literacy, and individuals 

facing substantial cultural barriers; 

(10) Eligible migrant and seasonal 

farmworkers, defined in WIOA sec. 

167(i); 

(11) Individuals within 2 years of 

exhausting lifetime eligibility under 

TANF (part A of title IV of the Social 

Security Act); 

(12) Single-parents (including single 

pregnant women); 

(13) Long-term unemployed 

individuals; or 

(14) Other groups determined by the 

Governor to have barriers to 

employment. 

(c) The Local Plan must describe the 

process to be used in selecting the 

providers under a contract for services. 

§ 680.330 How can Individual Training 

Accounts, supportive services, and needsrelated payments be used to support 

placing participating adults and dislocated 

workers into a registered apprenticeship 

program and support participants once they 

are in a registered apprenticeship program? 

Registered apprenticeships 

automatically qualify to be a on a State’s 

eligible training provider list (ETPL) as 

described in § 680.470. 

(a) ITAs can be used to support 

placing participants in registered 

apprenticeship through: 

(1) Pre-apprenticeship training, as 

defined in § 681.480 of this chapter; and 

(2) Training services provided under 

a registered apprenticeship program. 

(b) Supportive services may be 

provided as described in §§ 680.900 and 

680.910. 

(c) Needs-related payments may be 

provided as described in §§ 680.930, 

680.940, 680.950, 680.960, and 680.970. 

(d) Work-based training options also 

may be used to support participants in 

registered apprenticeship programs (see 

§§ 680.740 and 680.750). 

§ 680.340 What are the requirements for 

consumer choice? 

(a) Training services, whether under 

ITAs or under contract, must be 

provided in a manner that maximizes 

informed consumer choice in selecting 

an eligible provider. 

(b) Each Local WDB, through the onestop center, must make available to 

customers the State list of eligible 

training providers required in WIOA 

sec. 122(d). The list includes a 

description of the programs through 

which the providers may offer the 

training services, and the performance 

and cost information about those 

providers described in WIOA sec. 

122(d). Additionally, the Local WDB 

must make available information 

identifying eligible providers as may be 

required by the Governor under WIOA 

sec. 122(h) (where applicable). 

(c) An individual who has been 

determined eligible for training services 

under § 680.210 may select a provider 

described in paragraph (b) of this 

section after consultation with a career 

planner. Unless the program has 

exhausted training funds for the 

program year, the one-stop center must 

refer the individual to the selected 

provider, and establish an ITA for the 

individual to pay for training. For 

purposes of this paragraph (c), a referral 

may be carried out by providing a 

voucher or certificate to the individual 

to obtain the training. 

(d) The cost of referral of an 

individual with an ITA to a training 

provider is paid by the applicable adult 

or dislocated worker program under title 

I of WIOA. 

(e) Each Local WDB, through the onestop center, may coordinate funding for 

ITAs with funding from other Federal, 

State, local, or private job training 

programs or sources to assist the 

individual in obtaining training 

services. 

(f) Consistent with paragraph (a) of 

this section, priority consideration must 

be given to programs that lead to 

recognized postsecondary credentials 

(defined at WIOA sec. 3(52)) that are 

aligned with in-demand industry sectors 

or occupations in the local area. 

§ 680.350 May Workforce Innovation and 

Opportunity Act title I adult and dislocated 

worker funds be used to directly support 

adult education and literacy activities? 

Yes, under WIOA sec. 134(c)(3)(D)(x), 

title I funds may provide adult 

education and literacy activities if they 

are provided concurrently or in 

combination with one or more of the 

following training services: 

(a) Occupational skills training, 

including training for nontraditional 

employment; 

(b) OJT; 

(c) Incumbent worker training (as 

described in §§ 680.780, 680.790, 

680.800, 680.810, and 680.820); 

(d) Programs that combined 

workplace training and related 

instruction, which may include 

cooperative education programs; 

(e) Training programs operated by the 

private sector; 

(f) Skill upgrading and retraining; or 

(g) Entrepreneurial training. 

Subpart D—Eligible Training Providers 

§ 680.400 What is the purpose of this 

subpart? 

(a) This subpart describes the process 

for determining eligible training 

providers and programs for WIOA title 

I, subtitle B adult, dislocated worker, 

and out-of-school youth (OSY) aged 16– 

24 training participants and for publicly 

disseminating the list of these providers 

with relevant information about their 

programs. The workforce development 

system established under WIOA 

emphasizes informed consumer choice, 

job-driven training, provider 

performance, and continuous 

improvement. The quality and selection 

of providers and programs of training 

services is vital to achieving these core 

principles. 

(b) The State list of eligible training 

providers and programs and the related 

eligibility procedures ensure the 

accountability, quality and labor-market 

relevance of programs of training 

services that receive funds through 

WIOA title I, subtitle B. The State list of 

eligible training providers and programs 

also is a means for ensuring informed 

customer choice for individuals eligible 

for training. In administering the 

eligible training provider eligibility 

process, States and local areas must 

work to ensure that qualified providers 

offering a wide variety of job-driven 

programs of training services are 

available. The State list of eligible 

training providers and programs is made 

publicly available online through Web 

sites and searchable databases as well as 

any other means the State uses to 

disseminate information to consumers, 

including formats accessible to 

individuals with disabilities. The list 

must be accompanied by relevant 

performance and cost information and 

must be presented in a way that is easily 

understood, in order to maximize 

informed consumer choice and serve all 

significant population groups, and also 

must be available in an electronic 

format. The State eligible training 

provider performance reports, as 

required under WIOA sec. 116(d)(4), are 

addressed separately in § 677.230 of this 

chapter. 

§ 680.410 What is an eligible training 

provider? 

An ETP: 

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(a) Is the only type of entity that 

receives funding for training services, as 

defined in § 680.200, through an 

individual training account; 

(b) Must be included on the State list 

of eligible training providers and 

programs under this subpart; 

(c) Must provide a program of training 

services; and 

(d) Must be one of the following types 

of entities: 

(1) Institutions of higher education 

that provide a program which leads to 

a recognized postsecondary credential; 

(2) Entities that carry out programs 

registered under the National 

Apprenticeship Act (29 U.S.C. 50 et 

seq.); or 

(3) Other public or private providers 

of training services, which may include: 

(i) Community-based organizations; 

(ii) Joint labor-management 

organizations; and 

(iii) Eligible providers of adult 

education and literacy activities under 

title II of WIOA if such activities are 

provided in combination with training 

services described at § 680.350. 

§ 680.420 What is a ‘‘program of training 

services’’? 

A program of training services is one 

or more courses or classes, or a 

structured regimen, that provides the 

services in § 680.200 and leads to: 

(a) An industry-recognized certificate 

or certification, a certificate of 

completion of a registered 

apprenticeship, a license recognized by 

the State involved or the Federal 

government, an associate or 

baccalaureate degree; 

(b) Consistent with § 680.350, a 

secondary school diploma or its 

equivalent; 

(c) Employment; or 

(d) Measurable skill gains toward a 

credential described in paragraph (a) or 

(b) of this section or employment. 

§ 680.430 Who is responsible for 

managing the training provider eligibility 

process? 

(a) The Governor, in consultation with 

the State WDB, establishes the criteria, 

information requirements, and 

procedures, including procedures 

identifying the respective roles of the 

State and local areas, governing the 

eligibility of providers and programs of 

training services to receive funds 

through ITAs. 

(b) The Governor may designate a 

State agency (or appropriate State 

entity) to assist in carrying out the 

process and procedures for determining 

the eligibility of training providers and 

programs of training services. The 

Governor or such agency (or appropriate 

State entity) is responsible for: 

(1) Ensuring the development and 

maintenance of the State list of eligible 

training providers and programs, as 

described in §§ 680.450 (initial 

eligibility), 680.460 (continued 

eligibility), and 680.490 (performance 

and cost information reporting 

requirements); 

(2) Ensuring that programs meet 

eligibility criteria and performance 

levels established by the State, 

including verifying the accuracy of the 

information; 

(3) Removing programs that do not 

meet State-established program criteria 

or performance levels, as described in 

§ 680.480(c); 

(4) Taking appropriate enforcement 

actions against providers that 

intentionally provide inaccurate 

information, or that substantially violate 

the requirements of WIOA, as described 

in § 680.480(a) and (b); and 

(5) Disseminating the State list of 

eligible training providers and 

programs, accompanied by performance 

and cost information relating to each 

program, to the public and the Local 

WDBs throughout the State, as further 

described in § 680.500. 

(c) The Local WDB must: 

(1) Carry out the procedures assigned 

to the Local WDB by the State, such as 

determining the initial eligibility of 

entities providing a program of training 

services, renewing the eligibility of 

providers and programs, and 

considering the possible termination of 

an eligible training provider due to the 

provider’s submission of inaccurate 

eligibility and performance information 

or the provider’s substantial violation of 

WIOA requirements; 

(2) Work with the State to ensure 

there are sufficient numbers and types 

of providers of training services, 

including eligible providers with 

expertise in assisting individuals with 

disabilities and eligible providers with 

expertise in assisting adults in need of 

adult education and literacy activities 

described under WIOA sec. 

107(d)(10)(E), serving the local area; and 

(3) Ensure the dissemination and 

appropriate use of the State list of 

eligible training providers and programs 

through the local one-stop delivery 

system, including formats accessible to 

individuals with disabilities. 

(d) The Local WDB may make 

recommendations to the Governor on 

the procedure used in determining 

eligibility of providers and programs. 

(e) The Local WDB may, except with 

respect to registered apprenticeship 

programs: 

(1) Require additional criteria and 

information from local providers as 

criteria to become or remain eligible in 

that local area; and 

(2) Set higher levels of performance 

than those required by the State as 

criteria for local programs to become or 

remain eligible to provide services in 

that local area. 

§ 680.440 [Reserved] 

§ 680.450 What is the initial eligibility 

process for new providers and programs? 

(a) All providers and programs that 

have not previously been eligible to 

provide training services under WIOA 

sec. 122 or WIA sec. 122, except for 

registered apprenticeship programs, 

must submit required information to be 

considered for initial eligibility in 

accordance with the Governor’s 

procedures. 

(b) Apprenticeship programs 

registered under the National 

Apprenticeship Act are exempt from 

initial eligibility procedures. Registered 

apprenticeship programs must be 

included and maintained on the State 

list of eligible training providers and 

programs as long as the program 

remains registered, unless the registered 

apprenticeship program is removed 

from the list for a reason set forth in 

§ 680.470. Procedures for registered 

apprenticeship programs to be included 

and maintained on the list are described 

in § 680.470. 

(c) In establishing the State 

requirements described in paragraph (e) 

of this section, the Governor must, in 

consultation with the State WDB, 

develop a procedure for determining the 

eligibility of training providers and 

programs. This procedure, which must 

be described in the State Plan, must be 

developed after: 

(1) Soliciting and taking into 

consideration recommendations from 

Local WDBs and providers of training 

services within the State; 

(2) Providing an opportunity for 

interested members of the public, 

including representatives of business 

and labor organizations, to submit 

comments on the procedure; and 

(3) Designating a specific time period 

for soliciting and considering the 

recommendations of Local WDBs and 

providers, and for providing an 

opportunity for public comment. 

(d) For institutions of higher 

education that provide a program that 

leads to a recognized postsecondary 

credential and for other public or 

private providers of programs of training 

services, including joint labormanagement organizations, and 

providers of adult education and 

literacy activities, the Governor must 

establish criteria and State requirements 

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for providers and programs seeking 

initial eligibility. 

(e) The Governor must require 

providers and programs seeking initial 

eligibility to provide verifiable program 

specific performance information. At a 

minimum, these criteria must require 

applicant providers to: 

(1) Describe each program of training 

services to be offered; 

(2) Provide information addressing a 

factor related to the indicators of 

performance, as described in WIOA 

secs. 116(b)(2)(A)(i)(I)–(IV) and 

§ 680.460(g)(1) through (4) which 

include unsubsidized employment 

during the second quarter after exit, 

unsubsidized employment during the 

fourth quarter after exit, median 

earnings and credentials attainment; 

(3) Describe whether the provider is 

in a partnership with a business; 

(4) Provide other information the 

Governor may require in order to 

demonstrate high quality programs of 

training services, which may include 

information related to training services 

that lead to a recognized postsecondary 

credential; and 

(5) Provide information that addresses 

alignment of the training services with 

in-demand industry sectors and 

occupations, to the extent possible. 

(f) In establishing the initial eligibility 

procedures and criteria, the Governor 

may establish minimum performance 

standards, based on the performance 

information described in paragraph (e) 

of this section. 

(g) Under WIOA sec. 122(b)(4)(B), 

eligible training providers receive initial 

eligibility for only 1 year for a particular 

program. 

(h) After the initial eligibility expires, 

these initially eligible training providers 

are subject to the Governor’s application 

procedures for continued eligibility, 

described at § 680.460, in order to 

remain eligible. 

§ 680.460 What is the application 

procedure for continued eligibility? 

(a) The Governor must establish an 

application procedure for eligible 

training providers and programs to 

maintain their continued eligibility. The 

application procedure must take into 

account the program’s prior eligibility 

status. 

(1) Training providers and programs 

that were previously eligible under WIA 

will be subject to the application 

procedure for continued eligibility after 

the close of the Governor’s transition 

period for implementation. 

(2) Training providers and programs 

that were not previously eligible under 

WIA and have been determined to be 

initially eligible under WIOA, under the 

procedures described at § 680.450, will 

be subject to the application procedure 

for continued eligibility after their 

initial eligibility expires. 

(b) The Governor must develop this 

procedure after: 

(1) Soliciting and taking into 

consideration recommendations from 

Local WDBs and providers of training 

services within the State; 

(2) Providing an opportunity for 

interested members of the public, 

including representatives of business 

and labor organizations, to submit 

comments on such procedure; and 

(3) Designating a specific time period 

for soliciting and considering the 

recommendations of Local WDBs and 

providers, and for providing an 

opportunity for public comment. 

(c) Procedures for registered 

apprenticeship programs to be included 

and maintained on the list are described 

in § 680.470. Apprenticeship programs 

registered under the National 

Apprenticeship Act must be included 

and maintained on the State list of 

eligible training providers and programs 

as long as the program remains 

registered, unless the registered 

apprenticeship program is removed 

from the list for a reason set forth in 

§ 680.470. 

(d) The application procedure must 

describe the roles of the State and local 

areas in receiving and reviewing 

provider applications and in making 

eligibility determinations. 

(e) The application procedure must be 

described in the State Plan. 

(f) In establishing eligibility criteria, 

the Governor must take into account: 

(1) The performance of the eligible 

training provider’s program on: 

(i) The performance accountability 

measures described in WIOA secs. 

116(b)(2)(A)(i)(I)–(IV) and the other 

matters required by WIOA sec. 

122(b)(2); 

(ii) Other appropriate measures of 

performance outcomes determined by 

the Governor for program participants 

receiving training services under WIOA 

title I, subtitle B, taking into 

consideration the characteristics of the 

population served and relevant 

economic conditions; and 

(iii) Outcomes of the program for 

students in general with respect to 

employment and earnings as defined in 

WIOA sec. 116(b)(2). 

(iv) All of these measures may include 

minimum performance standards. 

(v) Until data from the conclusion of 

each performance indicator’s first data 

cycle are available, the Governor may 

take into account alternate factors 

related to the measures described in 

paragraphs (f)(1)(i) through (iv) of this 

section. 

(2) Ensuring access to training 

services throughout the State, including 

in rural areas, and through the use of 

technology; 

(3) Information reported to State 

agencies on Federal and State training 

programs other than programs within 

WIOA title I, subtitle B; 

(4) The degree to which programs of 

training services relate to in-demand 

industry sectors and occupations in the 

State; 

(5) State licensure requirements of 

training providers; 

(6) Encouraging the use of industryrecognized certificates and credentials; 

(7) The ability of providers to offer 

programs of training services that lead 

to postsecondary credentials; 

(8) The quality of the program of 

training services including a program 

that leads to a recognized postsecondary 

credential; 

(9) The ability of the providers to 

provide training services to individuals 

who are employed and individuals with 

barriers to employment; 

(10) Whether the providers timely and 

accurately submitted all of the 

information required for completion of 

eligible training provider performance 

reports required under WIOA sec. 

116(d)(4) and all of the information 

required for initial and continued 

eligibility in this subpart; and 

(11) Other factors that the Governor 

determines are appropriate in order to 

ensure: The accountability of providers; 

that one-stop centers in the State will 

meet the needs of local employers and 

participants; and, that participants will 

be given an informed choice among 

providers. 

(g) The information requirements that 

the Governor establishes under 

paragraph (f)(1) of this section must 

require eligible training providers to 

submit appropriate, accurate, and timely 

information for participants receiving 

training under WIOA title I, subtitle B. 

That information must include: 

(1) The percentage of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(2) The percentage of program 

participants who are in unsubsidized 

employment during the fourth quarter 

after exit from the program; 

(3) The median earnings of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(4) The percentage of program 

participants who obtain a recognized 

postsecondary credential, or a 

secondary school diploma or its 

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recognized equivalent during 

participation in or within 1 year after 

exit from the program; 

(5) Information on recognized 

postsecondary credentials received by 

program participants; 

(6) Information on cost of attendance, 

including costs of tuition and fees, for 

program participants; 

(7) Information on the program 

completion rate for such participants. 

(h) The eligibility criteria must 

require that: 

(1) Providers submit performance and 

cost information as described in 

paragraph (g) of this section and in the 

Governor’s procedures for each program 

of training services for which the 

provider has been determined to be 

eligible, in a timeframe and manner 

determined by the State, but at least 

every 2 years; and 

(2) That the collection of information 

required to demonstrate compliance 

with the criteria is not unduly 

burdensome or costly to providers. 

(i) The procedure for continued 

eligibility also must provide for the 

State biennially to review provider 

eligibility information to assess the 

renewal of training provider eligibility. 

Such procedures may establish 

minimum levels of training provider 

performance as criteria for continued 

eligibility. 

(j) The procedure for biennial review 

of the provider eligibility must include 

verification of the registration status of 

registered apprenticeship programs and 

removal of any registered 

apprenticeship programs as described in 

§ 680.470. 

(k) The Governor may establish 

procedures and timeframes for 

providing technical assistance to 

eligible training providers who are not 

intentionally supplying inaccurate 

information or who have not 

substantially violated any of the 

requirements under this section but are 

failing to meet the criteria and 

information requirements due to undue 

cost or burden. 

(l) The Governor’s procedures must 

include what the Governor considers to 

be a substantial violation of the 

requirement to timely and accurately 

submit all of the information required 

for completion of the eligible training 

provider performance reports required 

under WIOA sec. 116(d)(4) and all of the 

information required for initial and 

continued eligibility in this subpart. 

(1) The Governor’s procedures on 

determining a substantial violation must 

take into account exceptional 

circumstances beyond the provider’s 

control, such as natural disasters, 

unexpected personnel transitions, and 

unexpected technology-related issues. 

(2) Providers who substantially 

violate the requirement in paragraph (g) 

of this section to timely and accurately 

submit all required information must be 

removed from the State list of eligible 

training providers and programs, as 

provided in § 680.480(b). 

§ 680.470 What are the procedures for 

including and removing registered 

apprenticeship programs on a State list of 

eligible training providers and programs? 

(a) All registered apprenticeship 

programs that are registered with the 

U.S. Department of Labor, Office of 

Apprenticeship, or a recognized State 

apprenticeship agency, are 

automatically eligible to be included in 

the State list of eligible training 

providers and programs. All registered 

apprenticeship programs must be 

informed of their automatic eligibility to 

be included on the list, and must be 

provided an opportunity to consent to 

their inclusion, before being placed on 

the State list of eligible training 

providers and programs. The Governor 

must establish a mechanism for 

registered apprenticeship program 

sponsors in the State to be informed of 

their automatic eligibility and to 

indicate that the program sponsor 

wishes to be included on the State list 

of eligible training providers and 

programs. This mechanism must place 

minimal burden on registered 

apprenticeship program sponsors and 

must be developed in accordance with 

guidance from the U.S. Department of 

Labor Office of Apprenticeship or with 

the assistance of the recognized State 

apprenticeship agency, as applicable. 

(b) Once on the State list of eligible 

training providers and programs, 

registered apprenticeship programs will 

remain on the list: 

(1) Until they are deregistered; 

(2) Until the registered apprenticeship 

program notifies the State that it no 

longer wants to be included on the list; 

or 

(3) Until the registered apprenticeship 

program is determined to have 

intentionally supplied inaccurate 

information or to have substantially 

violated any provision of title I of WIOA 

or the WIOA regulations, including 29 

CFR part 38. 

(c) A registered apprenticeship 

program whose eligibility is terminated 

under paragraph (b)(3) of this section 

must be terminated for not less than 2 

years and is liable to repay all youth, 

adult, and dislocated worker training 

funds it received during the period of 

noncompliance. The Governor must 

specify in the procedures required by 

§ 680.480 which individual or entity is 

responsible for making these 

determinations and the process by 

which the determination will be made, 

which must include an opportunity for 

a hearing that meets the requirements of 

§ 683.630(b) of this chapter. 

(d) Inclusion of a registered 

apprenticeship in the State list of 

eligible training providers and programs 

allows an individual who is eligible to 

use WIOA title I, subtitle B funds to use 

those funds toward registered 

apprenticeship training, consistent with 

their availability and limitations as 

prescribed by § 680.300. The use of ITAs 

and other WIOA title I, subtitle B funds 

toward registered apprenticeship 

training is further described in 

§ 680.330. 

(e) The Governor is encouraged to 

consult with the State and Local WDBs, 

ETA’s Office of Apprenticeship, 

recognized State apprenticeship 

agencies (where they exist in the 

Governor’s State) or other State 

agencies, to establish voluntary 

reporting of performance information. 

(f) Pre-apprenticeship providers that 

wish to provide training services to 

participants using WIOA title I, subtitle 

B funds are subject to the eligibility 

procedures of this subpart. 

§ 680.480 May an eligible training provider 

lose its eligibility? 

(a) Yes. A training provider must meet 

the Governors requirements for 

eligibility and provide accurate 

information in order to retain its status 

as an eligible training provider. 

(b) Providers determined to have 

intentionally supplied inaccurate 

information or to have substantially 

violated any provision of title I of WIOA 

or the WIOA regulations, including 29 

CFR part 38, must be removed from the 

State list of eligible training providers 

and programs in accordance with the 

enforcement provisions of WIOA sec. 

122(f). A provider whose eligibility is 

terminated under these conditions must 

be terminated for not less than 2 years 

and is liable to repay all youth, adult, 

and dislocated worker training funds it 

received during the period of 

noncompliance. The Governor must 

specify in the procedures which 

individual or entity is responsible for 

making these determinations and the 

process by which the determination will 

be made, which must include an 

opportunity for a hearing that meets the 

requirements of § 683.630(b) of this 

chapter. 

(c) As a part of the biennial review of 

eligibility established by the Governor, 

the State must remove programs of 

training services that fail to meet criteria 

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56394 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

established by the Governor to remain 

eligible, which may include failure to 

meet established minimum performance 

levels. Registered apprenticeship 

programs only may be removed for the 

reasons set forth in § 680.470. 

(d) The Governor must establish an 

appeals procedure for providers of 

training services to appeal a denial of 

eligibility under this subpart that meets 

the requirements of § 683.630(b) of this 

chapter, which explains the appeals 

process for denial or termination of 

eligibility of a provider of training 

services. 

(e) Where a Local WDB has 

established higher minimum 

performance standards, according to 

§ 680.430(e), the Local WDB may 

remove a program of training services 

from the eligible programs in that local 

area for failure to meet those higher 

performance standards. Training 

providers may appeal a denial of 

eligibility under § 683.630(b) of this 

chapter. 

§ 680.490 What kind of performance and 

cost information must eligible training 

providers other than registered 

apprenticeship programs provide for each 

program of training services? 

(a) In accordance with the State 

procedure under § 680.460(i), eligible 

training providers, except registered 

apprenticeship programs, must submit, 

at least every 2 years, appropriate, 

timely, and accurate performance and 

cost information. 

(b) Program-specific performance 

information must include: 

(1) The information described in 

WIOA sec. 122(b)(2)(A) for individuals 

participating in the programs of training 

services who are receiving assistance 

under WIOA. This information includes 

indicators of performance as described 

in WIOA secs. 116(b)(2)(I)–(IV) and 

§ 680.460(g)(1) through (4); 

(2) Information identifying the 

recognized postsecondary credentials 

received by such participants in 

§ 680.460(g)(5); 

(3) Program cost information, 

including tuition and fees, for WIOA 

participants in the program in 

§ 680.460(g)(6); and 

(4) Information on the program 

completion rate for WIOA participants 

in § 680.460(g)(7). 

(c) Governors may require any 

additional performance information 

(such as the information described at 

WIOA sec. 122(b)(1)) that the Governor 

determines to be appropriate to 

determine, maintain eligibility, or better 

to inform consumers. 

(d) Governors must establish a 

procedure by which a provider can 

demonstrate that providing additional 

information required under this section 

would be unduly burdensome or costly. 

If the Governor determines that 

providers have demonstrated such 

extraordinary costs or undue burden: 

(1) The Governor must provide access 

to cost-effective methods for the 

collection of the information; 

(2) The Governor may provide 

additional resources to assist providers 

in the collection of the information from 

funds for statewide workforce 

investment activities reserved under 

WIOA secs. 128(a) and 133(a)(1); or 

(3) The Governor may take other steps 

to assist eligible training providers in 

collecting and supplying required 

information such as offering technical 

assistance. 

§ 680.500 How is the State list of eligible 

training providers and programs 

disseminated? 

(a) In order to assist participants in 

choosing employment and training 

activities, the Governor or State agency 

must disseminate the State list of 

eligible training providers and programs 

and accompanying performance and 

cost information to Local WDBs in the 

State and to members of the public 

online, including through Web sites and 

searchable databases, and through 

whatever other means the State uses to 

disseminate information to consumers, 

including the one-stop delivery system 

and its program partners throughout the 

State. 

(b) The State list of eligible training 

providers and programs and information 

must be updated regularly and provider 

and program eligibility must be 

reviewed biennially according to the 

procedures established by the Governor 

in § 680.460(i). 

(c) In order to ensure informed 

consumer choice, the State list of 

eligible training providers and programs 

and accompanying information must be 

widely available to the public through 

electronic means, including Web sites 

and searchable databases, as well as 

through any other means the State uses 

to disseminate information to 

consumers. The list and accompanying 

information must be available through 

the one-stop delivery system and its 

partners including the State’s secondary 

and postsecondary education systems. 

The list must be accessible to 

individuals seeking information on 

training outcomes, as well as 

participants in employment and training 

activities funded under WIOA, 

including those under § 680.210, and 

other programs. In accordance with 

WIOA sec. 188, the State list also must 

be accessible to individuals with 

disabilities. 

(d) The State list of eligible training 

providers and programs must be 

accompanied by appropriate 

information to assist participants in 

choosing employment and programs of 

training services. Such information 

must include: 

(1) Recognized postsecondary 

credential(s) offered; 

(2) Provider information supplied to 

meet the Governor’s eligibility 

procedure as described in §§ 680.450 

and 680.460; 

(3) Performance and cost information 

as described in § 680.490; and 

(4) Additional information as the 

Governor determines appropriate. 

(e) The State list of eligible training 

providers and programs and 

accompanying information must be 

made available in a manner that does 

not reveal personally identifiable 

information about an individual 

participant. In addition, in developing 

the information to accompany the State 

list described in § 680.490(b), disclosure 

of personally identifiable information 

from an education record must be 

carried out in accordance with the 

Family Educational Rights and Privacy 

Act, including the circumstances 

relating to prior written consent. 

§ 680.510 In what ways can a Local 

Workforce Development Board supplement 

the information available from the State list 

of eligible training providers and programs? 

(a) Local WDBs may supplement the 

criteria and information requirements 

established by the Governor in order to 

support informed consumer choice and 

the achievement of local performance 

indicators. However, the Local WDB 

may not do so for registered 

apprenticeship programs. 

(b) This additional information may 

include: 

(1) Information on programs of 

training services that are linked to 

occupations in demand in the local area; 

(2) Performance and cost information, 

including program-specific performance 

and cost information, for the local 

outlet(s) of multi-site eligible training 

providers; 

(3) Information that shows how 

programs are responsive to local 

requirements; and 

(4) Other appropriate information 

related to the objectives of WIOA. 

§ 680.520 May individuals choose training 

providers and programs located outside of 

the local area or outside of the State? 

(a) An individual may choose training 

providers and programs outside of the 

local area provided the training program 

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is on the State list, in accordance with 

local policies and procedures. 

(b) An individual may choose eligible 

training providers and programs outside 

of the State consistent with State and 

local policies and procedures. State 

policies and procedures may provide for 

reciprocal or other agreements 

established with another State to permit 

eligible training providers in a State to 

accept ITAs provided by the other State. 

§ 680.530 What eligibility requirements 

apply to providers of on-the-job-training, 

customized training, incumbent worker 

training, and other training exceptions? 

(a) Providers of on-the-job training, 

customized training, incumbent worker 

training, internships, paid or unpaid 

work experience, or transitional jobs are 

not subject to the requirements 

applicable to entities listed on the 

eligible training provider list, and are 

not included on the State list of eligible 

training providers and programs. 

(b) For providers of training described 

in paragraph (a) of this section, the 

Governor may establish performance 

criteria those providers must meet to 

receive funds under the adult or 

dislocated worker programs pursuant to 

a contract as provided in § 680.320. 

(c) One-stop operators in a local area 

must collect such performance 

information as the Governor may 

require and determine whether the 

providers meet any performance criteria 

the Governor may establish under 

paragraph (b) of this section. 

(d) One-stop operators must 

disseminate information identifying 

providers and programs that have met 

the Governor’s performance criteria, 

along with the relevant performance 

information about them, through the 

one-stop delivery system. 

Subpart E—Priority and Special 

Populations 

§ 680.600 What priority must be given to 

low-income adults and public assistance 

recipients and individuals who are basic 

skills deficient served with adult funds 

under title I of the Workforce Innovation and 

Opportunity Act? 

(a) WIOA sec. 134(c)(3)(E) states that 

priority for individualized career 

services (see § 678.430(b) of this 

chapter) and training services funded 

with title I adult funds must be given to 

recipients of public assistance, other 

low-income individuals, and 

individuals who are basic skills 

deficient (as defined in WIOA sec. 

3(5)(B)) in the local area. 

(b) States and local areas must 

establish criteria by which the one-stop 

center will apply the priority under 

WIOA sec. 134(c)(3)(E). Such criteria 

may include the availability of other 

funds for providing employment and 

training-related services in the local 

area, the needs of the specific groups 

within the local area, and other 

appropriate factors. 

(c) The priority established under 

paragraph (a) of this section does not 

necessarily mean that these services 

only may be provided to recipients of 

public assistance, other low-income 

individuals, and individuals who are 

basic skills deficient. The Local WDB 

and the Governor may establish a 

process that also gives priority to other 

individuals eligible to receive such 

services, provided that it is consistent 

with priority of service for veterans (see 

§ 680.650) and the priority provisions of 

WIOA sec. 134(c)(3)(E), discussed above 

in paragraphs (a) and (b) of this section. 

§ 680.610 Does the statutory priority for 

use of adult funds also apply to dislocated 

worker funds? 

No, the statutory priority only applies 

to adult funds and only applies to 

providing individualized career 

services, as described in § 680.150(b), 

and training services. Funds allocated 

for dislocated workers are not subject to 

this requirement. 

§ 680.620 How does the Temporary 

Assistance for Needy Families program 

relate to the one-stop delivery system? 

The local TANF program is a required 

partner in the one-stop delivery system. 

Part 678 of this chapter describes the 

roles of such partners in the one-stop 

delivery system and it applies to the 

TANF program. TANF serves 

individuals who also may be served by 

the WIOA programs and, through 

appropriate linkages and referrals, these 

customers will have access to a broader 

range of services through the 

cooperation of the TANF program in the 

one-stop delivery system. TANF 

participants, who are determined to be 

WIOA eligible, and who need 

occupational skills training may be 

referred through the one-stop delivery 

system to receive WIOA training, when 

TANF grant and other grant funds are 

not available to the individual in 

accordance with § 680.230(a). WIOA 

participants who also are determined 

TANF eligible may be referred to the 

TANF program for assistance. 

§ 680.630 How does a displaced 

homemaker qualify for services under title 

I of the Workforce Innovation and 

Opportunity Act? 

(a) Individuals who meet the 

definitions of a ‘‘displaced homemaker’’ 

(see WIOA sec. 3(16)) qualify for career 

and training services with dislocated 

worker title I funds. 

(b) Displaced homemakers also may 

qualify for career and training services 

with adult funds under title I if the 

requirements of this part are met (see 

§§ 680.120 and 680.600). 

(c) Displaced homemakers also may 

be served in statewide employment and 

training projects conducted with reserve 

funds for innovative programs for 

displaced homemakers, as described in 

§ 682.210(c) of this chapter. 

(d) The definition of displaced 

homemaker includes the dependent 

spouse of a member of the Armed 

Forces on active duty (as defined in sec. 

101(d)(1) of title 10, United States Code) 

and whose family income is 

significantly reduced because of a 

deployment, a call or order to active 

duty under a provision of law referred 

to in sec. 101(a)(13)(B) of title 10, 

United State Code, a permanent change 

of station, or the service-connected 

death or disability of the member. 

§ 680.640 May an individual with a 

disability whose family does not meet 

income eligibility criteria under the 

Workforce Innovation and Opportunity Act 

be eligible for priority as a low-income 

adult? 

Yes, even if the family of an 

individual with a disability does not 

meet the income eligibility criteria, the 

individual with a disability is to be 

considered a low-income individual if 

the individual’s own income: 

(a) Meets the income criteria 

established in WIOA sec. 3(36)(A)(vi); or 

(b) Meets the income eligibility 

criteria for payments under any Federal, 

State or local public assistance program 

(see WIOA sec. 3(36)(A)(i)). 

§ 680.650 Do veterans receive priority of 

service under the Workforce Innovation and 

Opportunity Act? 

Yes, veterans, as defined under WIOA 

sec. 3(63)(A) and 38 U.S.C. 101, receive 

priority of service in all Department of 

Labor-funded training programs under 

38 U.S.C. 4215 and described in 20 CFR 

part 1010. A veteran still must meet 

each program’s eligibility criteria to 

receive services under the respective 

employment and training program. For 

income-based eligibility determinations, 

amounts paid while on active duty or 

paid by the Department of Veterans 

Affairs (VA) for vocational 

rehabilitation, disability payments, or 

related VA-funded programs are not to 

be considered as income, in accordance 

with 38 U.S.C. 4213 and § 683.230 of 

this chapter. 

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§ 680.660 Are separating military service 

members eligible for dislocated worker 

activities under the Workforce Innovation 

and Opportunity Act? 

If the separating service member is 

separating from the Armed Forces with 

a discharge that is anything other than 

dishonorable, the separating service 

member qualifies for dislocated worker 

activities based on the following 

criteria: 

(a) The separating service member has 

received a notice of separation, a DD– 

214 from the Department of Defense, or 

other documentation showing a 

separation or imminent separation from 

the Armed Forces to satisfy the 

termination or layoff part of the 

dislocated worker eligibility criteria in 

WIOA sec. 3(15)(A)(i); 

(b) The separating service member 

qualifies for the dislocated worker 

eligibility criteria on eligibility for or 

exhaustion of unemployment 

compensation in WIOA sec. 

3(15)(A)(ii)(I) or (II); and, 

(c) As a separating service member, 

the individual meets the dislocated 

worker eligibility criteria that the 

individual is unlikely to return to a 

previous industry or occupation in 

WIOA sec. 3(15)(A)(iii). 

Subpart F—Work-Based Training 

§ 680.700 What are the requirements for 

on-the-job training? 

(a) OJT is defined at WIOA sec. 3(44). 

OJT is provided under a contract with 

an employer or registered 

apprenticeship program sponsor in the 

public, private non-profit, or private 

sector. Through the OJT contract, 

occupational training is provided for the 

WIOA participant in exchange for the 

reimbursement, typically up to 50 

percent of the wage rate of the 

participant, for the extraordinary costs 

of providing the training and 

supervision related to the training. In 

limited circumstances, as provided in 

WIOA sec. 134(c)(3)(h) and § 680.730, 

the reimbursement may be up to 75 

percent of the wage rate of the 

participant. 

(b) OJT contracts under WIOA title I, 

must not be entered into with an 

employer who has received payments 

under previous contracts under WIOA 

or WIA if the employer has exhibited a 

pattern of failing to provide OJT 

participants with continued long-term 

employment as regular employees with 

wages and employment benefits 

(including health benefits) and working 

conditions at the same level and to the 

same extent as other employees working 

a similar length of time and doing the 

same type of work. 

(c) An OJT contract must be limited 

to the period of time required for a 

participant to become proficient in the 

occupation for which the training is 

being provided. In determining the 

appropriate length of the contract, 

consideration should be given to the 

skill requirements of the occupation, the 

academic and occupational skill level of 

the participant, prior work experience, 

and the participant’s IEP. 

§ 680.710 What are the requirements for 

on-the-job training contracts for employed 

workers? 

OJT contracts may be written for 

eligible employed workers when: 

(a) The employee is not earning a selfsufficient wage or wages comparable to 

or higher than wages from previous 

employment, as determined by Local 

WDB policy; 

(b) The requirements in § 680.700 are 

met; and 

(c) The OJT relates to the introduction 

of new technologies, introduction to 

new production or service procedures, 

upgrading to new jobs that require 

additional skills, workplace literacy, or 

other appropriate purposes identified by 

the Local WDB. 

§ 680.720 What conditions govern on-thejob training payments to employers? 

(a) OJT payments to employers are 

deemed to be compensation for the 

extraordinary costs associated with 

training participants and potentially 

lower productivity of the participants 

while in the OJT. 

(b) Employers may be reimbursed up 

to 50 percent of the wage rate of an OJT 

participant, and up to 75 percent using 

the criteria in § 680.730, for the 

extraordinary costs of providing the 

training and additional supervision 

related to the OJT. 

(c) Employers are not required to 

document such extraordinary costs. 

§ 680.730 Under what conditions may a 

Governor or Local Workforce Development 

Board raise the on-the-job training 

reimbursement rate up to 75 percent of the 

wage rate? 

(a) The Governor may increase the 

reimbursement rate for OJT contracts 

funded through the statewide 

employment and training activities 

described in § 682.210 of this chapter up 

to 75 percent, and the Local WDB also 

may increase the reimbursement rate for 

OJT contracts described in 

§ 680.320(a)(1) up to 75 percent, when 

taking into account the following 

factors: 

(1) The characteristics of the 

participants taking into consideration 

whether they are ‘‘individuals with 

barriers to employment,’’ as defined in 

WIOA sec. 3(24); 

(2) The size of the employer, with an 

emphasis on small businesses; 

(3) The quality of employer-provided 

training and advancement 

opportunities, for example if the OJT 

contract is for an in-demand occupation 

and will lead to an industry-recognized 

credential; and 

(4) Other factors the Governor or 

Local WDB may determine to be 

appropriate, which may include the 

number of employees participating, 

wage and benefit levels of the 

employees (both at present and after 

completion), and relation of the training 

to the competitiveness of the 

participant. 

(b) Governors or Local WDBs must 

document the factors used when 

deciding to increase the wage 

reimbursement levels above 50 percent 

up to 75 percent. 

§ 680.740 How can on-the-job training 

funds be used to support placing 

participants into a registered 

apprenticeship program? 

(a) OJT contracts may be entered into 

with registered apprenticeship program 

sponsors or participating employers in 

registered apprenticeship programs for 

the OJT portion of the registered 

apprenticeship program consistent with 

§ 680.700. Depending on the length of 

the registered apprenticeship and State 

and local OJT policies, these funds may 

cover some or all of the registered 

apprenticeship training. 

(b) If the apprentice is unemployed at 

the time of participation, the OJT must 

be conducted as described in § 680.700. 

If the apprentice is employed at the time 

of participation, the OJT must be 

conducted as described in § 680.710. 

§ 680.750 Can Individual Training Account 

and on-the-job training funds be combined 

to support placing participants into a 

registered apprenticeship program? 

There is no Federal prohibition on 

using both ITA and OJT funds when 

placing participants into a registered 

apprenticeship program. See § 680.330 

on using ITAs to support participants in 

registered apprenticeship. 

§ 680.760 What is customized training? 

Customized training is training: 

(a) That is designed to meet the 

special requirements of an employer 

(including a group of employers); 

(b) That is conducted with a 

commitment by the employer to employ 

an individual upon successful 

completion of the training; and 

(c) For which the employer pays for 

a significant cost of the training, as 

determined by the Local WDB in 

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accordance with the factors identified in 

WIOA sec. 3(14). 

§ 680.770 What are the requirements for 

customized training for employed workers? 

Customized training of an eligible 

employed individual may be provided 

for an employer or a group of employers 

when: 

(a) The employee is not earning a selfsufficient wage or wages comparable to 

or higher than wages from previous 

employment, as determined by Local 

WDB policy; 

(b) The requirements in § 680.760 are 

met; and 

(c) The customized training relates to 

the purposes described in § 680.710(c) 

or other appropriate purposes identified 

by the Local WDB. 

§ 680.780 Who is an ‘‘incumbent worker’’ 

for purposes of statewide and local 

employment and training activities? 

States and local areas must establish 

policies and definitions to determine 

which workers, or groups of workers, 

are eligible for incumbent worker 

services. To qualify as an incumbent 

worker, the incumbent worker needs to 

be employed, meet the Fair Labor 

Standards Act requirements for an 

employer-employee relationship, and 

have an established employment history 

with the employer for 6 months or more, 

with the following exception: In the 

event that the incumbent worker 

training is being provided to a cohort of 

employees, not every employee in the 

cohort must have an established 

employment history with the employer 

for 6 months or more as long as a 

majority of those employees being 

trained do meet the employment history 

requirement. An incumbent worker does 

not have to meet the eligibility 

requirements for career and training 

services for adults and dislocated 

workers under WIOA, unless they also 

are enrolled as a participant in the 

WIOA adult or dislocated worker 

program. 

§ 680.790 What is incumbent worker 

training? 

Incumbent worker training must 

satisfy the requirements in WIOA sec. 

134(d)(4) and increase the 

competitiveness of the employee or 

employer. For purposes of WIOA sec. 

134(d)(4)(B), incumbent worker training 

is training: 

(a) Designed to meet the special 

requirements of an employer (including 

a group of employers) to retain a skilled 

workforce or avert the need to lay off 

employees by assisting the workers in 

obtaining the skills necessary to retain 

employment. 

(b) Conducted with a commitment by 

the employer to retain or avert the 

layoffs of the incumbent worker(s) 

trained. 

§ 680.800 What funds may be used for 

incumbent worker training? 

(a) The local area may reserve up to 

20 percent of their combined total of 

adult and dislocated worker allocations 

for incumbent worker training as 

described in § 680.790; 

(b) The State may use their statewide 

activities funds (per WIOA sec. 

134(a)(3)(A)(i)) and Rapid Response 

funds for statewide incumbent worker 

training activities (see §§ 682.210(b) and 

682.320(b)(4) of this chapter). 

§ 680.810 What criteria must be taken into 

account for an employer to be eligible to 

receive local incumbent worker training 

funds? 

The Local WDB must consider under 

WIOA sec. 134(d)(4)(A)(ii): 

(a) The characteristics of the 

individuals in the program; 

(b) The relationship of the training to 

the competitiveness of an individual 

and the employer; and 

(c) Other factors the Local WDB 

determines appropriate, including 

number of employees trained, wages 

and benefits including post training 

increases, and the existence of other 

training opportunities provided by the 

employer. 

§ 680.820 Are there cost sharing 

requirements for local area incumbent 

worker training? 

Yes. Under WIOA secs. 134(d)(4)(C) 

and 134(d)(4)(D)(i)–(iii), employers 

participating in incumbent worker 

training are required to pay the nonFederal share of the cost of providing 

training to their incumbent workers. 

The amount of the non-Federal share 

depends upon the limits established 

under WIOA secs. 134(d)(4)(ii)(C) and 

(D). 

§ 680.830 May funds provided to 

employers for work-based training be used 

to assist, promote, or deter union 

organizing? 

No. Funds provided to employers for 

work-based training, as described in this 

subpart, must not be used to directly or 

indirectly assist, promote, or deter 

union organizing. 

§ 680.840 May funds provided to 

employers for work-based training and 

other work experiences be used to fill job 

openings as a result of a labor dispute? 

No. Funds provided to employers for 

work-based training, as described in this 

subpart and in subpart A of this part, 

may not be used to directly or indirectly 

aid in the filling of a job opening which 

is vacant because the former occupant is 

on strike, or is being locked out in the 

course of a labor dispute, or the filling 

of which is otherwise an issue in a labor 

dispute involving a work stoppage. 

Subpart G—Supportive Services 

§ 680.900 What are supportive services for 

adults and dislocated workers? 

Supportive services for adults and 

dislocated workers are defined at WIOA 

sec. 3(59) and secs. 134(d)(2) and (3). 

Local WDBs, in consultation with the 

one-stop partners and other community 

service providers, must develop a policy 

on supportive services that ensures 

resource and service coordination in the 

local area. The policy should address 

procedures for referral to such services, 

including how such services will be 

funded when they are not otherwise 

available from other sources. The 

provision of accurate information about 

the availability of supportive services in 

the local area, as well as referral to such 

activities, is one of the career services 

that must be available to adults and 

dislocated workers through the one-stop 

delivery system. (WIOA sec. 

134(c)(2)(A)(ix) and § 678.430 of this 

chapter). Local WDBs must ensure that 

needs-related payments are made in a 

manner consistent with §§ 680.930, 

680.940, 680.950, 680.960, and 680.970. 

Supportive services are services that are 

necessary to enable an individual to 

participate in activities authorized 

under WIOA sec. 134(c)(2) and (3). 

These services may include, but are not 

limited to, the following: 

(a) Linkages to community services; 

(b) Assistance with transportation; 

(c) Assistance with child care and 

dependent care; 

(d) Assistance with housing; 

(e) Needs-related payments, as 

described at §§ 680.930, 680.940, 

680.950, 680.960, and 680.970; 

(f) Assistance with educational 

testing; 

(g) Reasonable accommodations for 

individuals with disabilities; 

(h) Legal aid services; 

(i) Referrals to health care; 

(j) Assistance with uniforms or other 

appropriate work attire and workrelated tools, including such items as 

eyeglasses and protective eye gear; 

(k) Assistance with books, fees, school 

supplies, and other necessary items for 

students enrolled in postsecondary 

education classes; and 

(l) Payments and fees for employment 

and training-related applications, tests, 

and certifications. 

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§ 680.910 When may supportive services 

be provided to participants? 

(a) Supportive services may only be 

provided to individuals who are: 

(1) Participating in career or training 

services as defined in WIOA secs. 

134(c)(2) and (3); and 

(2) Unable to obtain supportive 

services through other programs 

providing such services. 

(b) Supportive services only may be 

provided when they are necessary to 

enable individuals to participate in 

career service or training activities. 

§ 680.920 Are there limits on the amount 

or duration of funds for supportive 

services? 

(a) Local WDBs may establish limits 

on the provision of supportive services 

or provide the one-stop center with the 

authority to establish such limits, 

including a maximum amount of 

funding and maximum length of time 

for supportive services to be available to 

participants. 

(b) Procedures also may be 

established to allow one-stop centers to 

grant exceptions to the limits 

established under paragraph (a) of this 

section. 

§ 680.930 What are needs-related 

payments? 

Needs-related payments provide 

financial assistance to participants for 

the purpose of enabling them to 

participate in training and are a 

supportive service authorized by WIOA 

sec. 134(d)(3). Unlike other supportive 

services, in order to qualify for needsrelated payments a participant must be 

enrolled in training. 

§ 680.940 What are the eligibility 

requirements for adults to receive needsrelated payments? 

Adults must: 

(a) Be unemployed; 

(b) Not qualify for, or have ceased 

qualifying for, unemployment 

compensation; and 

(c) Be enrolled in a program of 

training services under WIOA sec. 

134(c)(3). 

§ 680.950 What are the eligibility 

requirements for dislocated workers to 

receive needs-related payments? 

To receive needs-related payments, a 

dislocated worker must: 

(a) Be unemployed, and: 

(1) Have ceased to qualify for 

unemployment compensation or trade 

readjustment allowance under TAA; 

and 

(2) Be enrolled in a program of 

training services under WIOA sec. 

134(c)(3) by the end of the 13th week 

after the most recent layoff that resulted 

in a determination of the worker’s 

eligibility as a dislocated worker, or, if 

later, by the end of the 8th week after 

the worker is informed that a short-term 

layoff will exceed 6 months; or 

(b) Be unemployed and did not 

qualify for unemployment 

compensation or trade readjustment 

assistance under TAA and be enrolled 

in a program of training services under 

WIOA sec. 134(c)(3). 

§ 680.960 May needs-related payments be 

paid while a participant is waiting to start 

training classes? 

Yes, payments may be provided if the 

participant has been accepted in a 

training program that will begin within 

30 calendar days. The Governor may 

authorize local areas to extend the 30- 

day period to address appropriate 

circumstances. 

§ 680.970 How is the level of needs-related 

payments determined? 

(a) The payment level for adults must 

be established by the Local WDB. For 

statewide projects, the payment level for 

adults must be established by the State 

WDB. 

(b) For dislocated workers, payments 

must not exceed the greater of either of 

the following levels: 

(1) The applicable weekly level of the 

unemployment compensation benefit, 

for participants who were eligible for 

unemployment compensation as a result 

of the qualifying dislocation; or 

(2) The poverty level for an equivalent 

period, for participants who did not 

qualify for unemployment 

compensation as a result of the 

qualifying layoff. The weekly payment 

level must be adjusted to reflect changes 

in total family income, as determined by 

Local WDB policies. 

■ 14. Add part 681 to read as follows: 

PART 681—YOUTH ACTIVITIES 

UNDER TITLE I OF THE WORKFORCE 

INNOVATION AND OPPORTUNITY ACT 

Subpart A—Standing Youth Committees 

Sec. 

681.100 What is a standing youth 

committee? 

681.110 Who is included on a standing 

youth committee? 

681.120 What does a standing youth 

committee do? 

Subpart B—Eligibility for Youth Services 

Sec. 

681.200 Who is eligible for youth services? 

681.210 Who is an ‘‘out-of-school youth’’? 

681.220 Who is an ‘‘in-school youth’’? 

681.230 What does ‘‘school’’ refer to in the 

‘‘not attending or attending any school’’ 

in the out-of-school and in-school 

eligibility criteria? 

681.240 When do local youth programs 

verify dropout status? 

681.250 Who does the low-income 

eligibility requirement apply to? 

681.260 How does the Department define 

‘‘high poverty area’’ for the purposes of 

the special regulation for low-income 

youth in the Workforce Innovation and 

Opportunity Act? 

681.270 May a local program use eligibility 

for free or reduced price lunches under 

the National School Lunch Program as a 

substitute for the income eligibility 

criteria under title I of the Workforce 

Innovation and Opportunity Act? 

681.280 Is a youth with a disability eligible 

for youth services under the Workforce 

Innovation and Opportunity Act if his or 

her family income exceeds the income 

eligibility criteria? 

681.290 How does the Department define 

the ‘‘basic skills deficient’’ criterion this 

part? 

681.300 How does the Department define 

the ‘‘requires additional assistance to 

enter or complete an educational 

program, or to secure and hold 

employment’’ criterion in this part for 

OSY? 

681.310 How does the Department define 

the ‘‘requires additional assistance to 

complete an educational program, or to 

secure and hold employment’’ criterion 

in this part for ISY? 

681.320 Must youth participants enroll to 

participate in the youth program? 

Subpart C—Youth Program Design, 

Elements, and Parameters 

Sec. 

681.400 What is the process used to select 

eligible youth providers? 

681.410 Does the requirement that a State 

and local area expend at least 75 percent 

of youth funds to provide services to outof-school youth apply to all youth funds? 

681.420 How must Local Workforce 

Development Boards design Workforce 

Innovation and Opportunity Act youth 

programs? 

681.430 May youth participate in both the 

Workforce Innovation and Opportunity 

Act (WIOA) youth and adult programs 

concurrently, and how do local program 

operators track concurrent enrollment in 

the WIOA youth and adult programs? 

681.440 How does a local youth program 

determine if an 18 to 24 year old is 

enrolled in the Workforce Innovation 

and Opportunity Act (WIOA) youth 

program or the WIOA adult program? 

681.450 For how long must a local 

Workforce Innovation and Opportunity 

Act youth program serve a participant? 

681.460 What services must local programs 

offer to youth participants? 

681.470 Does the Department require local 

programs to use Workforce Innovation 

and Opportunity Act funds for each of 

the 14 program elements? 

681.480 What is a pre-apprenticeship 

program? 

681.490 What is adult mentoring? 

681.500 What is financial literacy 

education? 

681.510 What is comprehensive guidance 

and counseling? 

681.520 What are leadership development 

opportunities? 

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681.530 What are positive social and civic 

behaviors? 

681.540 What is occupational skills 

training? 

681.550 Are Individual Training Accounts 

permitted for youth participants? 

681.560 What is entrepreneurial skills 

training and how is it taught? 

681.570 What are supportive services for 

youth? 

681.580 What are follow-up services for 

youth? 

681.590 What is the work experience 

priority and how will local youth 

programs track the work experience 

priority? 

681.600 What are work experiences? 

681.610 Does the Workforce Innovation and 

Opportunity Act require Local Workforce 

Development Boards to offer summer 

employment opportunities in the local 

youth program? 

681.620 How are summer employment 

opportunities administered? 

681.630 What does education offered 

concurrently with and in the same 

context as workforce preparation 

activities and training for a specific 

occupation or occupational cluster 

mean? 

681.640 Are incentive payments to youth 

participants permitted? 

681.650 How can parents, youth, and other 

members of the community get involved 

in the design and implementation of 

local youth programs? 

Subpart D—One-Stop Services to Youth 

Sec. 

681.700 What is the connection between 

the youth program and the one-stop 

delivery system? 

681.710 Do Local Workforce Development 

Boards have the flexibility to offer 

services to area youth who are not 

eligible under the youth program 

through the one-stop centers? 

Authority: Secs. 107, 121, 123, 129, 189, 

503, Pub. L. 113–128, 128 Stat. 1425 (Jul. 22, 

2014). 

Subpart A—Standing Youth 

Committees 

§ 681.100 What is a standing youth 

committee? 

The Workforce Innovation and 

Opportunity Act (WIOA) eliminates the 

requirement for Local Workforce 

Development Boards (WDBs) to 

establish a youth council. However, the 

Department encourages Local WDBs to 

establish a standing committee to 

provide information and to assist with 

planning, operational, oversight, and 

other issues relating to the provision of 

services to youth. If the Local WDB does 

not designate a standing youth 

committee, it retains responsibility for 

all aspects of youth formula programs. 

§ 681.110 Who is included on a standing 

youth committee? 

(a) If a Local WDB decides to form a 

standing youth committee, the 

committee must include a member of 

the Local WDB, who chairs the 

committee, members of communitybased organizations with a 

demonstrated record of success in 

serving eligible youth, and other 

individuals with appropriate expertise 

and experience who are not members of 

the Local WDB. 

(b) The committee must reflect the 

needs of the local area. The committee 

members appointed for their experience 

and expertise may bring their expertise 

to help the committee address the 

employment, training, education, 

human and supportive service needs of 

eligible youth including out-of-school 

youth (OSY). Members may represent 

agencies such as secondary and 

postsecondary education, training, 

health, disability, mental health, 

housing, public assistance, and justice, 

or be representatives of philanthropic or 

economic and community development 

organizations, and employers. The 

committee may also include parents, 

participants, and youth. 

(c) A Local WDB may designate an 

existing entity such as an effective 

youth council as the standing youth 

committee if it fulfills the requirements 

above in paragraph (a) of this section. 

§ 681.120 What does a standing youth 

committee do? 

Under the direction of the Local WDB, 

a standing youth committee may: 

(a) Recommend policy direction to the 

Local WDB for the design, development, 

and implementation of programs that 

benefit all youth; 

(b) Recommend the design of a 

comprehensive community workforce 

development system to ensure a full 

range of services and opportunities for 

all youth, including disconnected 

youth; 

(c) Recommend ways to leverage 

resources and coordinate services 

among schools, public programs, and 

community-based organizations serving 

youth; 

(d) Recommend ways to coordinate 

youth services and recommend eligible 

youth service providers; 

(e) Provide on-going leadership and 

support for continuous quality 

improvement for local youth programs; 

(f) Assist with planning, operational, 

and other issues relating to the 

provision of services to youth; and 

(g) If so delegated by the Local WDB 

after consultation with the chief elected 

official (CEO), oversee eligible youth 

providers, as well as other youth 

program oversight responsibilities. 

Subpart B—Eligibility for Youth 

Services 

§ 681.200 Who is eligible for youth 

services? 

Both in-school youth (ISY) and OSY 

are eligible for youth services. 

§ 681.210 Who is an ‘‘out-of-school 

youth’’? 

An OSY is an individual who is: 

(a) Not attending any school (as 

defined under State law); 

(b) Not younger than age 16 or older 

than age 24 at time of enrollment. 

Because age eligibility is based on age 

at enrollment, participants may 

continue to receive services beyond the 

age of 24 once they are enrolled in the 

program; and 

(c) One or more of the following: 

(1) A school dropout; 

(2) A youth who is within the age of 

compulsory school attendance, but has 

not attended school for at least the most 

recent complete school year calendar 

quarter. School year calendar quarter is 

based on how a local school district 

defines its school year quarters. In cases 

where schools do not use quarters, local 

programs must use calendar year 

quarters; 

(3) A recipient of a secondary school 

diploma or its recognized equivalent 

who is a low-income individual and is 

either basic skills deficient or an English 

language learner; 

(4) An offender; 

(5) A homeless individual aged 16 to 

24 who meets the criteria defined in sec. 

41403(6) of the Violence Against 

Women Act of 1994 (42 U.S.C. 14043e– 

2(6)), a homeless child or youth aged 16 

to 24 who meets the criteria defined in 

sec. 725(2) of the McKinney-Vento 

Homeless Assistance Act (42 U.S.C. 

11434a(2)) or a runaway; 

(6) An individual in foster care or 

who has aged out of the foster care 

system or who has attained 16 years of 

age and left foster care for kinship 

guardianship or adoption, a child 

eligible for assistance under sec. 477 of 

the Social Security Act (42 U.S.C. 677), 

or in an out-of-home placement; 

(7) An individual who is pregnant or 

parenting; 

(8) An individual with a disability; or 

(9) A low-income individual who 

requires additional assistance to enter or 

complete an educational program or to 

secure or hold employment. 

§ 681.220 Who is an ‘‘in-school youth’’? 

An ISY is an individual who is: 

(a) Attending school (as defined by 

State law), including secondary and 

postsecondary school; 

(b) Not younger than age 14 or (unless 

an individual with a disability who is 

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attending school under State law) older 

than age 21 at time of enrollment. 

Because age eligibility is based on age 

at enrollment, participants may 

continue to receive services beyond the 

age of 21 once they are enrolled in the 

program; 

(c) A low-income individual; and 

(d) One or more of the following: 

(1) Basic skills deficient; 

(2) An English language learner; 

(3) An offender; 

(4) A homeless individual aged 14 to 

21 who meets the criteria defined in sec. 

41403(6) of the Violence Against 

Women Act of 1994 (42 U.S.C. 14043e– 

2(6)), a homeless child or youth aged 14 

to 21 who meets the criteria defined in 

sec. 725(2) of the McKinney-Vento 

Homeless Assistance Act (42 U.S.C. 

11434a(2)), or a runaway; 

(5) An individual in foster care or 

who has aged out of the foster care 

system or who has attained 16 years of 

age and left foster care for kinship 

guardianship or adoption, a child 

eligible for assistance under sec. 477 of 

the Social Security Act (42 U.S.C. 677), 

or in an out-of-home placement; 

(6) An individual who is pregnant or 

parenting; 

(7) An individual with a disability; or 

(8) An individual who requires 

additional assistance to complete an 

educational program or to secure or 

hold employment. 

§ 681.230 What does ‘‘school’’ refer to in 

the ‘‘not attending or attending any school’’ 

in the out-of-school and in-school eligibility 

criteria? 

In general, the applicable State law for 

secondary and postsecondary 

institutions defines ‘‘school.’’ However, 

for purposes of WIOA, the Department 

does not consider providers of adult 

education under title II of WIOA, 

YouthBuild programs, the Job Corps 

program, high school equivalency 

programs, or dropout re-engagement 

programs to be schools. Therefore, in all 

cases except the one provided below, 

WIOA youth programs may consider a 

youth to be an OSY for purposes of 

WIOA youth program eligibility if he or 

she attend adult education provided 

under title II of WIOA, YouthBuild, Job 

Corps, high school equivalency 

programs, or dropout re-engagement 

programs regardless of the funding 

source of those programs. Youth 

attending high school equivalency 

programs funded by the public K–12 

school system who are classified by the 

school system as still enrolled in school 

are an exception; they are considered 

ISY. 

§ 681.240 When do local youth programs 

verify dropout status? 

Local WIOA youth programs must 

verify a youth’s dropout status at the 

time of WIOA youth program 

enrollment. An individual who is out of 

school at the time of enrollment, and 

subsequently placed in any school, is an 

OSY for the purposes of the 75 percent 

expenditure requirement for OSY 

throughout his/her participation in the 

program. 

§ 681.250 Who does the low-income 

eligibility requirement apply to? 

(a) For OSY, only those youth who are 

the recipient of a secondary school 

diploma or its recognized equivalent 

and are either basic skills deficient or an 

English language learner, and youth 

who require additional assistance to 

enter or complete an educational 

program or to secure or hold 

employment, must be low-income. All 

other OSY meeting OSY eligibility 

under § 681.210(c)(1), (2), (4), (5), (6), 

(7), and (8) are not required to be lowincome. 

(b) All ISY must be low-income to 

meet the ISY eligibility criteria, except 

those that fall under the low-income 

exception. 

(c) WIOA allows a low-income 

exception where five percent of WIOA 

youth may be participants who 

ordinarily would be required to be lowincome for eligibility purposes and meet 

all other eligibility criteria for WIOA 

youth except the low-income criteria. A 

program must calculate the five percent 

based on the percent of newly enrolled 

youth in the local area’s WIOA youth 

program in a given program year who 

would ordinarily be required to meet 

the low-income criteria. 

(d) In addition to the criteria in the 

definition of ‘‘low-income individual’’ 

in WIOA sec. 3(36), a youth is lowincome if he or she receives or is 

eligible to receive a free or reduced 

price lunch under the Richard B. 

Russell National School Lunch Act (42 

U.S.C. 1751 et seq. or if he or she lives 

in a high poverty area. 

§ 681.260 How does the Department define 

‘‘high poverty area’’ for the purposes of the 

special regulation for low-income youth in 

the Workforce Innovation and Opportunity 

Act? 

A youth who lives in a high poverty 

area is automatically considered to be a 

low-income individual. A high poverty 

area is a Census tract, a set of 

contiguous Census tracts, an American 

Indian Reservation, Oklahoma Tribal 

Statistical Area (as defined by the U.S. 

Census Bureau), Alaska Native Village 

Statistical Area or Alaska Native 

Regional Corporation Area, Native 

Hawaiian Homeland Area, or other 

tribal land as defined by the Secretary 

in guidance or county that has a poverty 

rate of at least 25 percent as set every 

5 years using American Community 

Survey 5-Year data. 

§ 681.270 May a local program use 

eligibility for free or reduced price lunches 

under the National School Lunch Program 

as a substitute for the income eligibility 

criteria under title I of the Workforce 

Innovation and Opportunity Act? 

Yes, WIOA sec. 3(36) defines a lowincome individual to include an 

individual who receives (or is eligible to 

receive) a free or reduced price lunch 

under the Richard B. Russell National 

School Lunch Act. 

§ 681.280 Is a youth with a disability 

eligible for youth services under the 

Workforce Innovation and Opportunity Act 

if his or her family income exceeds the 

income eligibility criteria? 

Yes, for an individual with a 

disability, income level for eligibility 

purposes is based on the individual’s 

own income rather than his or her 

family’s income. WIOA sec. 3(36)(A)(vi) 

states that an individual with a 

disability whose own income meets the 

low-income definition in clause (ii) 

(income that does not exceed the higher 

of the poverty line or 70 percent of the 

lower living standard income level), but 

who is a member of a family whose 

income exceeds this income 

requirement is eligible for youth 

services. Furthermore, only ISY with a 

disability must be low income. OSY 

with a disability are not required to be 

low-income. 

§ 681.290 How does the Department define 

the ‘‘basic skills deficient’’ criterion in this 

part? 

(a) As used in § 681.210(c)(3), a youth 

is ‘‘basic skills deficient’’ if he or she: 

(1) Have English reading, writing, or 

computing skills at or below the 8th 

grade level on a generally accepted 

standardized test; or 

(2) Are unable to compute or solve 

problems, or read, write, or speak 

English at a level necessary to function 

on the job, in the individual’s family, or 

in society. 

(b) The State or Local WDB must 

establish its policy on paragraph (a)(2) 

of this section in its respective State or 

local plan. 

(c) In assessing basic skills, local 

programs must use assessment 

instruments that are valid and 

appropriate for the target population, 

and must provide reasonable 

accommodation in the assessment 

process, if necessary, for individuals 

with disabilities. 

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§ 681.300 How does the Department define 

the ‘‘requires additional assistance to enter 

or complete an educational program, or to 

secure and hold employment’’ criterion in 

this part for OSY? 

Either the State or the local level may 

establish definitions and eligibility 

documentation requirements for the 

‘‘requires additional assistance to enter 

or complete an educational program, or 

to secure and hold employment’’ 

criterion of § 681.210(c)(9). In cases 

where the State WDB establishes State 

policy on this criterion, the State WDB 

must include the definition in the State 

Plan. In cases where the State WDB does 

not establish a policy, the Local WDB 

must establish a policy in its local plan 

if using this criterion. 

§ 681.310 How does the Department define 

the ‘‘requires additional assistance to 

complete an educational program, or to 

secure and hold employment’’ criterion in 

this part for ISY? 

(a) Either the State or the local level 

may establish definitions and eligibility 

documentation requirements for the 

‘‘requires additional assistance to 

complete an educational program, or to 

secure and hold employment’’ criterion 

of § 681.220(d)(8). In cases where the 

State WDB establishes State policy on 

this criterion, the State WDB must 

include the definition in the State Plan. 

In cases where the State WDB does not 

establish a policy, the Local WDB must 

establish a policy in its local plan if 

using this criterion. 

(b) In each local area, not more than 

five percent of the ISY newly enrolled 

in a given program year may be eligible 

based on the ‘‘requires additional 

assistance to complete an educational 

program or to secure or hold 

employment’’ criterion. 

§ 681.320 Must youth participants enroll to 

participate in the youth program? 

(a) Yes, to participate in youth 

programs, participants must enroll in 

the WIOA youth program. 

(b) In order to be a participant in the 

WIOA youth program, all of the 

following must occur: 

(1) An eligibility determination; 

(2) The provision of an objective 

assessment; 

(3) Development of an individual 

service strategy; and 

(4) Participation in any of the 14 

WIOA youth program elements. 

Subpart C—Youth Program Design, 

Elements, and Parameters 

§ 681.400 What is the process used to 

select eligible youth service providers? 

(a) The grant recipient/fiscal agent has 

the option to provide directly some or 

all of the youth workforce investment 

activities. 

(b) However, as provided in WIOA 

sec. 123, if a Local WDB chooses to 

award grants or contracts to youth 

service providers to carry out some or 

all of the youth workforce investment 

activities, the Local WDB must award 

such grants or contracts on a 

competitive basis, subject to the 

exception explained in paragraph (b)(4) 

of this section: 

(1) The Local WDB must identify 

youth service providers based on 

criteria established in the State Plan 

(including such quality criteria 

established by the Governor for a 

training program that leads to a 

recognized postsecondary credential) 

and take into consideration the ability of 

the provider to meet performance 

accountability measures based on the 

primary indicators of performance for 

youth programs. 

(2) The Local WDB must procure the 

youth service providers in accordance 

with the Uniform Guidance at 2 CFR 

parts 200 and 2900, in addition to 

applicable State and local procurement 

laws. 

(3) If the Local WDB establishes a 

standing youth committee under 

§ 681.100 it may assign the committee 

the function of selecting of grants or 

contracts. 

(4) Where the Local WDB determines 

there are an insufficient number of 

eligible youth providers in the local 

area, such as a rural area, the Local 

WDB may award grants or contracts on 

a sole source basis. 

§ 681.410 Does the requirement that a 

State and local area expend at least 75 

percent of youth funds to provide services 

to out-of-school youth apply to all youth 

funds? 

Yes. The 75 percent requirement 

applies to both statewide youth 

activities funds and local youth funds 

with 2 exceptions. 

(a) Only statewide funds spent on 

direct services to youth are subject to 

the OSY expenditure requirement. 

Funds spent on statewide youth 

activities that do not provide direct 

services to youth, such as most of the 

required statewide youth activities 

listed in WIOA sec. 129(b)(1), are not 

subject to the OSY expenditure 

requirement. For example, 

administrative costs, monitoring, and 

technical assistance are not subject to 

OSY expenditure requirement; while 

funds spent on direct services to youth 

such as statewide demonstration 

projects, are subject to the OSY 

expenditure requirement. 

(b) For a State that receives a small 

State minimum allotment under WIOA 

sec. 127(b)(1)(C)(iv)(II) for youth or 

WIOA sec. 132(b)(1)(B)(iv)(II) for adults, 

the State may submit a request to the 

Secretary to decrease the percentage to 

not less than 50 percent for a local area 

in the State, and the Secretary may 

approve such a request for that program 

year, if the State meets the following 

requirements: 

(1) After an analysis of the ISY and 

OSY populations in the local area, the 

State determines that the local area will 

be unable to use at least 75 percent of 

the local area WIOA youth funds to 

serve OSY due to a low number of OSY; 

and 

(2) The State submits to the Secretary, 

for the local area, a request including a 

proposed percentage decreased to not 

less than 50 percent to provide 

workforce investment activities for OSY. 

(c) In the exercise of discretion 

afforded by WIOA sec. 129(a)(4), the 

Secretary has determined that requests 

to decrease the percentage of funds used 

to provide youth workforce investment 

activities for OSY will not be granted to 

States that received 90 percent of the 

allotment percentage for the past year. 

Therefore, when the Secretary receives 

such a request from a State, the request 

will be denied. 

(d) For local area funds, the 

administrative costs of carrying out 

local workforce investment activities 

described in WIOA sec. 128(b)(4) are not 

subject to the OSY expenditure 

requirement. All other local area youth 

funds beyond the administrative costs 

are subject to the OSY expenditure 

requirement. 

§ 681.420 How must Local Workforce 

Development Boards design Workforce 

Innovation and Opportunity Act youth 

programs? 

(a) The design framework services of 

local youth programs must: 

(1) Provide for an objective 

assessment of each youth participant 

that meets the requirements of WIOA 

sec. 129(c)(1)(A), and includes a review 

of the academic and occupational skill 

levels, as well as the service needs and 

strengths, of each youth for the purpose 

of identifying appropriate services and 

career pathways for participants and 

informing the individual service 

strategy; 

(2) Develop, and update as needed, an 

individual service strategy based on the 

needs of each youth participant that is 

directly linked to one or more indicators 

of performance described in WIOA sec. 

116(b)(2)(A)(ii), that identifies career 

pathways that include education and 

employment goals, that considers career 

planning and the results of the objective 

assessment and that prescribes 

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achievement objectives and services for 

the participant; and 

(3) Provide case management of youth 

participants, including follow-up 

services. 

(b) The local plan must describe the 

design framework for youth programs in 

the local area, and how the 14 program 

elements required in § 681.460 are to be 

made available within that framework. 

(c) Local WDBs must ensure 

appropriate links to entities that will 

foster the participation of eligible local 

area youth. Such links may include 

connections to: 

(1) Local area justice and law 

enforcement officials; 

(2) Local public housing authorities; 

(3) Local education agencies; 

(4) Local human service agencies; 

(5) WIOA title II adult education 

providers; 

(6) Local disability-serving agencies 

and providers and health and mental 

health providers; 

(7) Job Corps representatives; and 

(8) Representatives of other area youth 

initiatives, such as YouthBuild, and 

including those that serve homeless 

youth and other public and private 

youth initiatives. 

(d) Local WDBs must ensure that 

WIOA youth service providers meet the 

referral requirements in WIOA sec. 

129(c)(3)(A) for all youth participants, 

including: 

(1) Providing these participants with 

information about the full array of 

applicable or appropriate services 

available through the Local WDBs or 

other eligible providers, or one-stop 

partners; and 

(2) Referring these participants to 

appropriate training and educational 

programs that have the capacity to serve 

them either on a sequential or 

concurrent basis. 

(e) If a youth applies for enrollment in 

a program of workforce investment 

activities and either does not meet the 

enrollment requirements for that 

program or cannot be served by that 

program, the eligible training provider 

of that program must ensure that the 

youth is referred for further assessment, 

if necessary, or referred to appropriate 

programs to meet the skills and training 

needs of the youth. 

(f) In order to meet the basic skills and 

training needs of applicants who do not 

meet the eligibility requirements of a 

particular program or who cannot be 

served by the program, each youth 

provider must ensure that these youth 

are referred: 

(1) For further assessment, as 

necessary; and 

(2) To appropriate programs, in 

accordance with paragraph (d)(2) of this 

section. 

(g) Local WDBs must ensure that 

parents, youth participants, and other 

members of the community with 

experience relating to youth programs 

are involved in both the design and 

implementation of its youth programs. 

(h) The objective assessment required 

under paragraph (a)(1) of this section or 

the individual service strategy required 

under paragraph (a)(2) of this section is 

not required if the program provider 

determines that it is appropriate to use 

a recent objective assessment or 

individual service strategy that was 

developed under another education or 

training program. 

(i) The Local WDBs may implement a 

WIOA Pay-for-Performance contract 

strategy for program elements described 

at § 681.460, for which the Local WDB 

may reserve and use not more than 10 

percent of the total funds allocated to 

the local area under WIOA sec. 128(b). 

For additional regulations on WIOA 

Pay-for-Performance contract strategies, 

see § 683.500 of this chapter. 

§ 681.430 May youth participate in both the 

Workforce Innovation and Opportunity Act 

(WIOA) youth and adult programs 

concurrently, and how do local program 

operators track concurrent enrollment in 

the WIOA youth and adult programs? 

(a) Yes, individuals who meet the 

respective program eligibility 

requirements may participate in adult 

and youth programs concurrently. Such 

individuals must be eligible under the 

youth or adult eligibility criteria 

applicable to the services received. 

Local program operators may determine, 

for these individuals, the appropriate 

level and balance of services under the 

youth and adult programs. 

(b) Local program operators must 

identify and track the funding streams 

which pay the costs of services provided 

to individuals who are participating in 

youth and adult programs concurrently, 

and ensure no duplication of services. 

(c) Individuals who meet the 

respective program eligibility 

requirements for WIOA youth title I and 

title II may participate in title I youth 

and title II concurrently. 

§ 681.440 How does a local youth program 

determine if an 18 to 24 year old is enrolled 

in the Workforce Innovation and 

Opportunity Act (WIOA) youth program or 

the WIOA adult program? 

A local program must determine the 

appropriate program for the participant 

based on the service needs of the 

participant and if the participant is 

career-ready based on an assessment of 

their occupational skills, prior work 

experience, employability, and the 

participant’s needs. 

§ 681.450 For how long must a local 

Workforce Innovation and Opportunity Act 

youth program serve a participant? 

Local youth programs must provide 

service to a participant for the amount 

of time necessary to ensure successful 

preparation to enter postsecondary 

education and/or unsubsidized 

employment. While there is no 

minimum or maximum time a youth can 

participate in the WIOA youth program, 

programs must link participation to the 

individual service strategy and not the 

timing of youth service provider 

contracts or program years. 

§ 681.460 What services must local 

programs offer to youth participants? 

(a) Local programs must make each of 

the following 14 services available to 

youth participants: 

(1) Tutoring, study skills training, 

instruction and evidence-based dropout 

prevention and recovery strategies that 

lead to completion of the requirements 

for a secondary school diploma or its 

recognized equivalent (including a 

recognized certificate of attendance or 

similar document for individuals with 

disabilities) or for a recognized 

postsecondary credential; 

(2) Alternative secondary school 

services, or dropout recovery services, 

as appropriate; 

(3) Paid and unpaid work experiences 

that have academic and occupational 

education as a component of the work 

experience, which may include the 

following types of work experiences: 

(i) Summer employment 

opportunities and other employment 

opportunities available throughout the 

school year; 

(ii) Pre-apprenticeship programs; 

(iii) Internships and job shadowing; 

and 

(iv) On-the-job training opportunities; 

(4) Occupational skill training, which 

includes priority consideration for 

training programs that lead to 

recognized postsecondary credentials 

that align with in-demand industry 

sectors or occupations in the local area 

involved, if the Local WDB determines 

that the programs meet the quality 

criteria described in WIOA sec. 123; 

(5) Education offered concurrently 

with and in the same context as 

workforce preparation activities and 

training for a specific occupation or 

occupational cluster; 

(6) Leadership development 

opportunities, including community 

service and peer-centered activities 

encouraging responsibility and other 

positive social and civic behaviors; 

(7) Supportive services, including the 

services listed in § 681.570; 

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(8) Adult mentoring for a duration of 

at least 12 months, that may occur both 

during and after program participation; 

(9) Follow-up services for not less 

than 12 months after the completion of 

participation, as provided in § 681.580; 

(10) Comprehensive guidance and 

counseling, which may include drug 

and alcohol abuse counseling, as well as 

referrals to counseling, as appropriate to 

the needs of the individual youth; 

(11) Financial literacy education; 

(12) Entrepreneurial skills training; 

(13) Services that provide labor 

market and employment information 

about in-demand industry sectors or 

occupations available in the local area, 

such as career awareness, career 

counseling, and career exploration 

services; and 

(14) Activities that help youth prepare 

for and transition to postsecondary 

education and training. 

(b) Local programs have the discretion 

to determine what specific program 

services a youth participant receives, 

based on each participant’s objective 

assessment and individual service 

strategy. Local programs are not 

required to provide every program 

service to each participant. 

(c) When available, the Department 

encourages local programs to partner 

with existing local, State, or national 

entities that can provide program 

element(s) at no cost to the local youth 

program. 

§ 681.470 Does the Department require 

local programs to use Workforce Innovation 

and Opportunity Act funds for each of the 

14 program elements? 

No. The Department does not require 

local programs to use WIOA youth 

funds for each of the program elements. 

Local programs may leverage partner 

resources to provide some of the readily 

available program elements. However, 

the local area must ensure that if a 

program element is not funded with 

WIOA title I youth funds, the local 

program has an agreement in place with 

a partner organization to ensure that the 

program element will be offered. The 

Local WDB must ensure that the 

program element is closely connected 

and coordinated with the WIOA youth 

program. 

§ 681.480 What is a pre-apprenticeship 

program? 

A pre-apprenticeship is a program 

designed to prepare individuals to enter 

and succeed in an apprenticeship 

program registered under the Act of 

August 16, 1937 (commonly known as 

the ‘‘National Apprenticeship Act’’; 50 

Stat. 664, chapter 663; 29 U.S.C. 50 et. 

seq.) (referred to in this part as a 

‘‘registered apprenticeship’’ or 

‘‘registered apprenticeship program’’) 

and includes the following elements: 

(a) Training and curriculum that 

aligns with the skill needs of employers 

in the economy of the State or region 

involved; 

(b) Access to educational and career 

counseling and other supportive 

services, directly or indirectly; 

(c) Hands-on, meaningful learning 

activities that are connected to 

education and training activities, such 

as exploring career options, and 

understanding how the skills acquired 

through coursework can be applied 

toward a future career; 

(d) Opportunities to attain at least one 

industry-recognized credential; and 

(e) A partnership with one or more 

registered apprenticeship programs that 

assists in placing individuals who 

complete the pre-apprenticeship 

program in a registered apprenticeship 

program. 

§ 681.490 What is adult mentoring? 

(a) Adult mentoring for youth must: 

(1) Last at least 12 months and may 

take place both during the program and 

following exit from the program; 

(2) Be a formal relationship between 

a youth participant and an adult mentor 

that includes structured activities where 

the mentor offers guidance, support, and 

encouragement to develop the 

competence and character of the 

mentee; and 

(3) While group mentoring activities 

and mentoring through electronic means 

are allowable as part of the mentoring 

activities, at a minimum, the local youth 

program must match the youth with an 

individual mentor with whom the youth 

interacts on a face-to-face basis. 

(b) Mentoring may include workplace 

mentoring where the local program 

matches a youth participant with an 

employer or employee of a company. 

§ 681.500 What is financial literacy 

education? 

The financial literacy education 

program element may include activities 

which: 

(a) Support the ability of participants 

to create budgets, initiate checking and 

savings accounts at banks, and make 

informed financial decisions; 

(b) Support participants in learning 

how to effectively manage spending, 

credit, and debt, including student 

loans, consumer credit, and credit cards; 

(c) Teach participants about the 

significance of credit reports and credit 

scores; what their rights are regarding 

their credit and financial information; 

how to determine the accuracy of a 

credit report and how to correct 

inaccuracies; and how to improve or 

maintain good credit; 

(d) Support a participant’s ability to 

understand, evaluate, and compare 

financial products, services, and 

opportunities and to make informed 

financial decisions; 

(e) Educate participants about identity 

theft, ways to protect themselves from 

identify theft, and how to resolve cases 

of identity theft and in other ways 

understand their rights and protections 

related to personal identity and 

financial data; 

(f) Support activities that address the 

particular financial literacy needs of 

non-English speakers, including 

providing the support through the 

development and distribution of 

multilingual financial literacy and 

education materials; 

(g) Support activities that address the 

particular financial literacy needs of 

youth with disabilities, including 

connecting them to benefits planning 

and work incentives counseling; 

(h) Provide financial education that is 

age appropriate, timely, and provides 

opportunities to put lessons into 

practice, such as by access to safe and 

affordable financial products that enable 

money management and savings; and 

(i) Implement other approaches to 

help participants gain the knowledge, 

skills, and confidence to make informed 

financial decisions that enable them to 

attain greater financial health and 

stability by using high quality, ageappropriate, and relevant strategies and 

channels, including, where possible, 

timely and customized information, 

guidance, tools, and instruction. 

§ 681.510 What is comprehensive 

guidance and counseling? 

Comprehensive guidance and 

counseling provides individualized 

counseling to participants. This 

includes drug and alcohol abuse 

counseling, mental health counseling, 

and referral to partner programs, as 

appropriate. When referring participants 

to necessary counseling that cannot be 

provided by the local youth program or 

its service providers, the local youth 

program must coordinate with the 

organization it refers to in order to 

ensure continuity of service. 

§ 681.520 What are leadership 

development opportunities? 

Leadership development 

opportunities are opportunities that 

encourage responsibility, confidence, 

employability, self-determination, and 

other positive social behaviors such as: 

(a) Exposure to postsecondary 

educational possibilities; 

(b) Community and service learning 

projects; 

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(c) Peer-centered activities, including 

peer mentoring and tutoring; 

(d) Organizational and team work 

training, including team leadership 

training; 

(e) Training in decision-making, 

including determining priorities and 

problem solving; 

(f) Citizenship training, including life 

skills training such as parenting and 

work behavior training; 

(g) Civic engagement activities which 

promote the quality of life in a 

community; and 

(h) Other leadership activities that 

place youth in a leadership role such as 

serving on youth leadership committees, 

such as a Standing Youth Committee. 

§ 681.530 What are positive social and 

civic behaviors? 

Positive social and civic behaviors are 

outcomes of leadership opportunities, 

which are incorporated by local 

programs as part of their menu of 

services. Positive social and civic 

behaviors focus on areas that may 

include the following: 

(a) Positive attitudinal development; 

(b) Self-esteem building; 

(c) Openness to work with individuals 

from diverse backgrounds; 

(d) Maintaining healthy lifestyles, 

including being alcohol- and drug-free; 

(e) Maintaining positive social 

relationships with responsible adults 

and peers, and contributing to the wellbeing of one’s community, including 

voting; 

(f) Maintaining a commitment to 

learning and academic success; 

(g) Avoiding delinquency; and 

(h) Positive job attitudes and work 

skills. 

§ 681.540 What is occupational skills 

training? 

(a) The Department defines 

occupational skills training as an 

organized program of study that 

provides specific vocational skills that 

lead to proficiency in performing actual 

tasks and technical functions required 

by certain occupational fields at entry, 

intermediate, or advanced levels. Local 

areas must give priority consideration to 

training programs that lead to 

recognized postsecondary credentials 

that align with in-demand industry 

sectors or occupations in the local area. 

Such training must: 

(1) Be outcome-oriented and focused 

on an occupational goal specified in the 

individual service strategy; 

(2) Be of sufficient duration to impart 

the skills needed to meet the 

occupational goal; and 

(3) Lead to the attainment of a 

recognized postsecondary credential. 

(b) The chosen occupational skills 

training must meet the quality standards 

in WIOA sec. 123. 

§ 681.550 Are Individual Training Accounts 

permitted for youth participants? 

Yes. In order to enhance individual 

participant choice in their education 

and training plans and provide 

flexibility to service providers, the 

Department allows WIOA Individual 

Training Accounts (ITAs) for OSY, ages 

16 to 24 using WIOA youth funds when 

appropriate. 

§ 681.560 What is entrepreneurial skills 

training and how is it taught? 

Entrepreneurial skills training 

provides the basics of starting and 

operating a small business. 

(a) Such training must develop the 

skills associated with entrepreneurship. 

Such skills may include, but are not 

limited to, the ability to: 

(1) Take initiative; 

(2) Creatively seek out and identify 

business opportunities; 

(3) Develop budgets and forecast 

resource needs; 

(4) Understand various options for 

acquiring capital and the trade-offs 

associated with each option; and 

(5) Communicate effectively and 

market oneself and one’s ideas. 

(b) Approaches to teaching youth 

entrepreneurial skills include, but are 

not limited to, the following: 

(1) Entrepreneurship education that 

provides an introduction to the values 

and basics of starting and running a 

business. Entrepreneurship education 

programs often guide youth through the 

development of a business plan and also 

may include simulations of business 

start-up and operation. 

(2) Enterprise development which 

provides supports and services that 

incubate and help youth develop their 

own businesses. Enterprise 

development programs go beyond 

entrepreneurship education by helping 

youth access small loans or grants that 

are needed to begin business operation 

and by providing more individualized 

attention to the development of viable 

business ideas. 

(3) Experiential programs that provide 

youth with experience in the day-to-day 

operation of a business. These programs 

may involve the development of a 

youth-run business that young people 

participating in the program work in 

and manage. Or, they may facilitate 

placement in apprentice or internship 

positions with adult entrepreneurs in 

the community. 

§ 681.570 What are supportive services for 

youth? 

Supportive services for youth, as 

defined in WIOA sec. 3(59), are services 

that enable an individual to participate 

in WIOA activities. These services 

include, but are not limited to, the 

following: 

(a) Linkages to community services; 

(b) Assistance with transportation; 

(c) Assistance with child care and 

dependent care; 

(d) Assistance with housing; 

(e) Needs-related payments; 

(f) Assistance with educational 

testing; 

(g) Reasonable accommodations for 

youth with disabilities; 

(h) Legal aid services; 

(i) Referrals to health care; 

(j) Assistance with uniforms or other 

appropriate work attire and workrelated tools, including such items as 

eyeglasses and protective eye gear; 

(k) Assistance with books, fees, school 

supplies, and other necessary items for 

students enrolled in postsecondary 

education classes; and 

(l) Payments and fees for employment 

and training-related applications, tests, 

and certifications. 

§ 681.580 What are follow-up services for 

youth? 

(a) Follow-up services are critical 

services provided following a youth’s 

exit from the program to help ensure the 

youth is successful in employment and/ 

or postsecondary education and 

training. Follow-up services may 

include regular contact with a youth 

participant’s employer, including 

assistance in addressing work-related 

problems that arise. 

(b) Follow-up services for youth also 

may include the following program 

elements: 

(1) Supportive services; 

(2) Adult mentoring; 

(3) Financial literacy education; 

(4) Services that provide labor market 

and employment information about indemand industry sectors or occupations 

available in the local area, such as 

career awareness, career counseling, and 

career exploration services; and 

(5) Activities that help youth prepare 

for and transition to postsecondary 

education and training. 

(c) All youth participants must be 

offered an opportunity to receive followup services that align with their 

individual service strategies. 

Furthermore, follow-up services must be 

provided to all participants for a 

minimum of 12 months unless the 

participant declines to receive follow-up 

services or the participant cannot be 

located or contacted. Follow-up services 

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may be provided beyond 12 months at 

the State or Local WDB’s discretion. The 

types of services provided and the 

duration of services must be determined 

based on the needs of the individual 

and therefore, the type and intensity of 

follow-up services may differ for each 

participant. Follow-up services must 

include more than only a contact 

attempted or made for securing 

documentation in order to report a 

performance outcome. 

§ 681.590 What is the work experience 

priority and how will local youth programs 

track the work experience priority? 

(a) Local youth programs must expend 

not less than 20 percent of the funds 

allocated to them to provide ISY and 

OSY with paid and unpaid work 

experiences that fall under the 

categories listed in § 681.460(a)(3) and 

further defined in § 681.600. 

(b) Local WIOA youth programs must 

track program funds spent on paid and 

unpaid work experiences, including 

wages and staff costs for the 

development and management of work 

experiences, and report such 

expenditures as part of the local WIOA 

youth financial reporting. The 

percentage of funds spent on work 

experience is calculated based on the 

total local area youth funds expended 

for work experience rather than 

calculated separately for ISY and OSY. 

Local area administrative costs are not 

subject to the 20 percent minimum work 

experience expenditure requirement. 

§ 681.600 What are work experiences? 

(a) Work experiences are a planned, 

structured learning experience that 

takes place in a workplace for a limited 

period of time. Work experience may be 

paid or unpaid, as appropriate. A work 

experience may take place in the private 

for-profit sector, the non-profit sector, or 

the public sector. Labor standards apply 

in any work experience where an 

employee/employer relationship, as 

defined by the Fair Labor Standards Act 

or applicable State law, exists. 

Consistent with § 680.840 of this 

chapter, funds provided for work 

experiences may not be used to directly 

or indirectly aid in the filling of a job 

opening that is vacant because the 

former occupant is on strike, or is being 

locked out in the course of a labor 

dispute, or the filling of which is 

otherwise an issue in a labor dispute 

involving a work stoppage. Work 

experiences provide the youth 

participant with opportunities for career 

exploration and skill development. 

(b) Work experiences must include 

academic and occupational education. 

The educational component may occur 

concurrently or sequentially with the 

work experience. Further academic and 

occupational education may occur 

inside or outside the work site. 

(c) The types of work experiences 

include the following categories: 

(1) Summer employment 

opportunities and other employment 

opportunities available throughout the 

school year; 

(2) Pre-apprenticeship programs; 

(3) Internships and job shadowing; 

and 

(4) On-the-job training (OJT) 

opportunities as defined in WIOA sec. 

3(44) and in § 680.700 of this chapter. 

§ 681.610 Does the Workforce Innovation 

and Opportunity Act require Local 

Workforce Development Boards to offer 

summer employment opportunities in the 

local youth program? 

No, WIOA does not require Local 

WDBs to offer summer youth 

employment opportunities as summer 

employment is no longer its own 

program element under WIOA. 

However, WIOA does require Local 

WDBs to offer work experience 

opportunities using at least 20 percent 

of their funding, which may include 

summer employment. 

§ 681.620 How are summer employment 

opportunities administered? 

Summer employment opportunities 

are a component of the work experience 

program element. If youth service 

providers administer the work 

experience program element, they must 

be selected by the Local WDB according 

to the requirements of WIOA sec. 123 

and § 681.400, based on criteria 

contained in the State Plan. However, 

the summer employment administrator 

does not need to select the employers 

who are providing the employment 

opportunities through a competitive 

process. 

§ 681.630 What does education offered 

concurrently with and in the same context 

as workforce preparation activities and 

training for a specific occupation or 

occupational cluster mean? 

This program element reflects an 

integrated education and training model 

and describes how workforce 

preparation activities, basic academic 

skills, and hands-on occupational skills 

training are to be taught within the same 

time frame and connected to training in 

a specific occupation, occupational 

cluster, or career pathway. 

§ 681.640 Are incentive payments to youth 

participants permitted? 

Yes, incentive payments to youth 

participants are permitted for 

recognition and achievement directly 

tied to training activities and work 

experiences. The local program must 

have written policies and procedures in 

place governing the award of incentives 

and must ensure that such incentive 

payments are: 

(a) Tied to the goals of the specific 

program; 

(b) Outlined in writing before the 

commencement of the program that may 

provide incentive payments; 

(c) Align with the local program’s 

organizational policies; and 

(d) Are in accordance with the 

requirements contained in 2 CFR part 

200. 

§ 681.650 How can parents, youth, and 

other members of the community get 

involved in the design and implementation 

of local youth programs? 

Local WDBs and programs must 

provide opportunities for parents, 

participants, and other members of the 

community with experience working 

with youth to be involved in the design 

and implementation of youth programs. 

Parents, youth participants, and other 

members of the community can get 

involved in a number of ways, including 

serving on youth standing committees, 

if they exist and they are appointed by 

the Local WDB. They also can get 

involved by serving as mentors, serving 

as tutors, and providing input into the 

design and implementation of other 

program design elements. Local WDBs 

also must make opportunities available 

to successful participants to volunteer to 

help participants as mentors, tutors, or 

in other activities. 

Subpart D—One-Stop Services to 

Youth 

§ 681.700 What is the connection between 

the youth program and the one-stop 

delivery system? 

(a) WIOA sec. 121(b)(1)(B)(i) requires 

that the youth program function as a 

required one-stop partner and fulfill the 

roles and responsibilities of a one-stop 

partner described in WIOA sec. 

121(b)(1)(A). 

(b) In addition to the provisions of 

part 678 of this chapter, connections 

between the youth program and the onestop delivery system may include those 

that facilitate: 

(1) The coordination and provision of 

youth activities; 

(2) Linkages to the job market and 

employers; 

(3) Access for eligible youth to the 

information and services required in 

§ 681.460; 

(4) Services for non-eligible youth 

such as basic labor exchange services, 

other self-service activities such as job 

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stop center resources, and referral as 

appropriate; and 

(5) Other activities described in WIOA 

sec. 129(b)–(c). 

(c) Local WDBs must either colocate 

WIOA youth program staff at one-stop 

centers and/or ensure one-stop centers 

and staff are trained to serve youth and 

equipped to advise youth to increase 

youth access to services and connect 

youth to the program that best aligns 

with their needs. 

§ 681.710 Do Local Workforce 

Development Boards have the flexibility to 

offer services to area youth who are not 

eligible under the youth program through 

the one-stop centers? 

Yes. However, Local WDBs must 

ensure one-stop centers fund services 

for non-eligible youth through programs 

authorized to provide services to such 

youth. For example, one-stop centers 

may provide basic labor exchange 

services under the Wagner-Peyser Act to 

any youth. 

■ 15. Add part 682 to read as follows: 

PART 682—STATEWIDE ACTIVITIES 

UNDER TITLE I OF THE WORKFORCE 

INNOVATION AND OPPORTUNITY ACT 

Subpart A—General Description 

Sec. 

682.100 What are the statewide 

employment and training activities 

under title I of the Workforce Innovation 

and Opportunity Act? 

682.110 How are statewide employment 

and training activities funded? 

Subpart B—Required and Allowable 

Statewide Employment and Training 

Activities 

Sec. 

682.200 What are required statewide 

employment and training activities? 

682.210 What are allowable statewide 

employment and training activities? 

682.220 What are States’ responsibilities in 

regard to evaluations? 

Subpart C—Rapid Response Activities 

Sec. 

682.300 What is rapid response, and what 

is its purpose? 

682.302 Under what circumstances must 

rapid response services be delivered? 

682.305 How does the Department define 

the term ‘‘mass layoff’’ for the purposes 

of rapid response? 

682.310 Who is responsible for carrying out 

rapid response activities? 

682.320 What is layoff aversion, and what 

are appropriate layoff aversion strategies 

and activities? 

682.330 What rapid response activities are 

required? 

682.340 May other activities be undertaken 

as part of rapid response? 

682.350 What is meant by ‘‘provision of 

additional assistance’’ in the Workforce 

Innovation and Opportunity Act? 

682.360 What rapid response, layoff 

aversion, or other information will States 

be required to report to the Employment 

and Training Administration? 

682.370 What are the statewide activities 

for which rapid response funds 

remaining unobligated after the first 

program year for which the funds were 

allotted may be used by the State? 

Authority: Secs. 129, 134, 189, 503, Pub. 

L. 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart A—General Description 

§ 682.100 What are the statewide 

employment and training activities under 

title I of the Workforce Innovation and 

Opportunity Act? 

Statewide employment and training 

activities include those activities for 

adults and dislocated workers, as 

described in WIOA sec. 134(a), and 

statewide youth activities, as described 

in the Workforce Innovation and 

Opportunity Act (WIOA) sec. 129(b). 

They include both required and 

allowable activities. In accordance with 

the requirements of this subpart, the 

State may develop policies and 

strategies for use of statewide 

employment and training funds. 

Descriptions of these policies and 

strategies must be included in the State 

Plan. 

§ 682.110 How are statewide employment 

and training activities funded? 

(a) Except for the statewide rapid 

response activities described in 

paragraph (c) of this section, statewide 

employment and training activities are 

supported by funds reserved by the 

Governor under WIOA sec. 128(a). 

(b) Funds reserved by the Governor 

for statewide workforce investment 

activities may be combined and used for 

any of the activities authorized in WIOA 

sec. 129(b), 134(a)(2)(B), or 134(a)(3)(A) 

(which are described in §§ 682.200 and 

682.210), regardless of whether the 

funds were allotted through the youth, 

adult, or dislocated worker funding 

streams. 

(c) Funds for statewide rapid response 

activities are reserved under WIOA 

sec.133(a)(2) and may be used to 

provide the activities authorized at 

WIOA sec. 134(a)(2)(A) (which are 

described in §§ 682.310 through 

682.330). 

Subpart B—Required and Allowable 

Statewide Employment and Training 

Activities 

§ 682.200 What are required statewide 

employment and training activities? 

Required statewide employment and 

training activities are: 

(a) Required rapid response activities, 

as described in § 682.310; 

(b) Disseminating by various means, 

as provided by WIOA sec. 134(a)(2)(B): 

(1) The State list of eligible training 

providers (including those providing 

non-traditional training services), for 

adults and dislocated workers and 

eligible training providers of registered 

apprenticeship programs; 

(2) Information identifying eligible 

providers of on-the-job training (OJT), 

customized training, incumbent worker 

training (see § 680.790 of this chapter), 

internships, paid or unpaid work 

experience opportunities (see § 680.180 

of this chapter) and transitional jobs (see 

§ 680.190 of this chapter); 

(3) Information on effective outreach 

and partnerships with business; 

(4) Information on effective service 

delivery strategies and promising 

practices to serve workers and job 

seekers; 

(5) Performance information and 

information on the cost of attendance, 

including tuition and fees, consistent 

with the requirements of §§ 680.490 and 

680.530 of this chapter; 

(6) A list of eligible providers of youth 

activities as described in WIOA sec. 

123; and 

(7) Information of physical and 

programmatic accessibility for 

individuals with disabilities; 

(c) States must assure that the 

information listed in paragraphs (b)(1) 

through (7) of this section is widely 

available; 

(d) Conducting evaluations under 

WIOA sec. 116(e), consistent with the 

requirements found under § 682.220; 

(e) Providing technical assistance to 

State entities and agencies, local areas, 

and one-stop partners in carrying out 

activities described in the State Plan, 

including coordination and alignment of 

data systems used to carry out the 

requirements of this Act; 

(f) Assisting local areas, one-stop 

operators, one-stop partners, and 

eligible providers, including 

development of staff, including staff 

training to provide opportunities for 

individuals with barriers to employment 

to enter in-demand industry sectors or 

occupations and nontraditional 

occupations, and the development of 

exemplary program activities; 

(g) Assisting local areas for carrying 

out the regional planning and service 

delivery efforts required under WIOA 

sec. 106(c); 

(h) Assisting local areas by providing 

information on and support for the 

effective development, convening, and 

implementation of industry and sector 

partnerships; 

(i) Providing technical assistance to 

local areas that fail to meet the adjusted 

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levels of performance agreed to under 

§ 677.210 of this chapter; 

(j) Carrying out monitoring and 

oversight of activities for services to 

youth, adults, and dislocated workers 

under WIOA title I, and which may 

include a review comparing the services 

provided to male and female youth; 

(k) Providing additional assistance to 

local areas that have a high 

concentration of eligible youth; and 

(l) Operating a fiscal and management 

accountability information system, 

based on guidelines established by the 

Secretary. 

§ 682.210 What are allowable statewide 

employment and training activities? 

Allowable statewide employment and 

training activities may include: 

(a) State administration of the adult, 

dislocated worker and youth workforce 

investment activities, consistent with 

the five percent administrative cost 

limitation at WIOA sec. 134(a)(3)(B) and 

§ 683.205(a)(1) of this chapter; 

(b) Developing and implementing 

innovative programs and strategies 

designed to meet the needs of all 

employers (including small employers) 

in the State, including the programs and 

strategies referenced in WIOA sec. 

134(a)(3)(A)(i); 

(c) Developing strategies for serving 

individuals with barriers to 

employment, and for coordinating 

programs and services among one-stop 

partners; 

(d) Development or identification of 

education and training programs that 

have the characteristics referenced in 

WIOA sec. 134(a)(3)(A)(iii); 

(e) Implementing programs to increase 

the number of individuals training for 

and placed in non-traditional 

employment; 

(f) Conducting research and 

demonstrations related to meeting the 

employment and education needs of 

youth, adults and dislocated workers; 

(g) Supporting the development of 

alternative, evidence-based programs, 

and other activities that enhance the 

choices available to eligible youth and 

which encourage youth to reenter and 

complete secondary education, enroll in 

postsecondary education and advanced 

training, progress through a career 

pathway, and enter into unsubsidized 

employment that leads to economic selfsufficiency; 

(h) Supporting the provision of career 

services in the one-stop delivery system 

in the State as described in § 678.430 of 

this chapter and WIOA secs. 

129(b)(2)(C) and 134(c)(2); 

(i) Supporting financial literacy 

activities as described in § 681.500 of 

this chapter and WIOA sec. 129(b)(2)(D); 

(j) Providing incentive grants to local 

areas for performance by the local areas 

on local performance accountability 

measures; 

(k) Providing technical assistance to 

Local Workforce Development Boards 

(WDBs), chief elected officials, one-stop 

operators, one-stop partners, and 

eligible providers in local areas on the 

development of exemplary program 

activities and on the provision of 

technology to facilitate remote access to 

services provided through the one-stop 

delivery system in the State; 

(l) Providing technical assistance to 

local areas that are implementing WIOA 

Pay-for-Performance contract strategies 

and conducting evaluations of such 

strategies. Technical assistance may 

include providing assistance with data 

collections, meeting data entry 

requirements, and identifying level of 

performance; 

(m) Carrying out activities to facilitate 

remote access to training services 

provided through the one-stop delivery 

system; 

(n) Activities that include: 

(1) Activities to improve coordination 

of workforce investment activities, with 

economic development activities; and 

(2) Activities to improve coordination 

of employment and training activities 

with child support services and 

activities, cooperative extension 

programs carried out by the Department 

of Agriculture, programs carried out by 

local areas for individuals with 

disabilities (including the programs 

identified in WIOA sec. 

134(a)(3)(A)(viii)(II)(cc)), adult 

education and literacy activities 

including those provided by public 

libraries, activities in the correction 

systems to assist ex-offenders in 

reentering the workforce and financial 

literacy activities; and 

(3) Developing and disseminating 

workforce and labor market information; 

(o) Implementation of promising 

practices for workers and businesses as 

described in WIOA sec. 134(a)(3)(A)(x); 

(p) Adopting, calculating, or 

commissioning for approval an 

economic self-sufficiency standard for 

the State that specifies the income needs 

of families, by family size, the number 

and ages of children in the family, and 

sub-State geographical considerations; 

(q) Developing and disseminating 

common intake procedures and related 

items, including registration processes, 

across core and partner programs; and 

(r) Coordinating activities with the 

child welfare system to facilitate 

provision of services for children and 

youth who are eligible for assistance 

under sec. 477 of the Social Security 

Act. 

§ 682.220 What are States’ responsibilities 

in regard to evaluations? 

(a) As required by § 682.200(d), States 

must use funds reserved by the 

Governor for statewide activities to 

conduct evaluations of activities under 

the WIOA title I core programs in order 

to promote continuous improvement, 

research and test innovative services 

and strategies, and achieve high levels 

of performance and outcomes. 

(b) Evaluations conducted under 

paragraph (a) of this section must: 

(1) Be coordinated with and designed 

in conjunction with State and Local 

WDBs and with State agencies 

responsible for the administration of all 

core programs; 

(2) When appropriate, include 

analysis of customer feedback and 

outcome and process measures in the 

statewide workforce development 

system; 

(3) Use designs that employ the most 

rigorous analytical and statistical 

methods that are reasonably feasible, 

such as the use of control groups; and 

(4) To the extent feasible, be 

coordinated with the evaluations 

provided for by the Secretary of Labor 

and the Secretary of Education under 

WIOA sec. 169 (regarding title I 

programs and other employment-related 

programs), WIOA sec. 242(c)(2)(D) 

(regarding adult education), sec. 

12(a)(5), 14, and 107 of the 

Rehabilitation Act of 1973 (29 U.S.C. 

709(a)(5), 711, 727) (applied with 

respect to programs carried out under 

title I of that Act (29 U.S.C. 720 et seq.)), 

and the investigations provided by the 

Secretary of Labor under sec. 10(b) of 

the Wagner-Peyser Act (29 U.S.C. 

49i(b)). 

(c) States must annually prepare, 

submit to the State WDB and Local 

WDBs in the State, and make available 

to the public (including by electronic 

means) reports containing the results, as 

available, of the evaluations described 

in paragraph (a) of this section. 

(d) States must cooperate, to the 

extent practicable, in evaluations and 

related research projects conducted by 

the Secretaries of Labor and Education 

under the laws cited in paragraph (b)(4) 

of this section. Such cooperation must, 

at a minimum, meet the following 

requirements: 

(1) The timely provision of: 

(i) Data, in accordance with 

appropriate privacy protections 

established by the Secretary of Labor; 

(ii) Responses to surveys; 

(iii) Site visits; and 

(iv) Data and survey responses from 

local subgrantees and State and Local 

WDBs, and assuring that subgrantees 

and WDBs allow timely site visits; 

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(2) Encouraging other one-stop 

partners at local level to cooperate in 

timely provision of data, survey 

responses and site visits as listed in 

paragraphs (d)(1)(i) through (iv) of this 

section; and 

(3) If a State determines that timely 

cooperation in data provision as 

described in paragraph (d)(1) of this 

section is not practicable, the Governor 

must inform the Secretary in writing 

and explain the reasons why it is not 

practicable. In such circumstances, the 

State must cooperate with the 

Department in developing a plan or 

strategy to mitigate or overcome the 

problems preventing timely provision of 

data, survey responses, and site visits. 

(e) In fulfilling the requirements 

under paragraphs (a) through (c) of this 

section, States are permitted, but not 

required, to: 

(1) Conduct evaluations that jointly 

examine title I core program activities 

and activities under other core programs 

in WIOA titles II–IV, as determined 

through the processes associated with 

paragraph (b)(1) of this section; 

(2) Conduct any type of evaluation 

similar to those authorized for, or 

conducted by, the Department of Labor 

or the Department of Education under 

the laws cited in paragraph (b)(4) of this 

section, including process and outcome 

studies, pilot and demonstration 

projects that have an evaluative 

component, analyses of administrative 

and programmatic data, impact and 

benefit-cost analyses, and use of 

rigorous designs to test the efficacy of 

various interventions; and 

(3) Conduct evaluations over multiple 

program years, involving multiple 

phases and such tasks and activities as 

necessary for an evaluation, such as a 

literature or evidence review, feasibility 

study, planning, research, coordination, 

design, data collection, analysis, and 

report preparation, clearance, and 

dissemination. 

(f) In funding evaluations conducted 

under paragraph (a) of this section, 

States are permitted, but not required to: 

(1) Use funds from any WIOA title I– 

IV core program to conduct evaluations, 

as determined through the processes 

associated with paragraph (b)(1) of this 

section; and 

(2) Use or combine funds, consistent 

with Federal and State law, regulation 

and guidance, from other public or 

private sources, to conduct evaluations 

relating to activities under the WIOA 

title I–IV core programs. Such projects 

may include those funded by the 

Department of Labor and other Federal 

agencies, among other sources. 

Subpart C—Rapid Response Activities 

§ 682.300 What is rapid response, and 

what is its purpose? 

(a) Rapid response is described in 

§§ 682.300 through 682.370, and 

encompasses the strategies and 

activities necessary to: 

(1) Plan for and respond to as quickly 

as possible following an event described 

in § 682.302; and 

(2) Deliver services to enable 

dislocated workers to transition to new 

employment as quickly as possible. 

(b) The purpose of rapid response is 

to promote economic recovery and 

vitality by developing an ongoing, 

comprehensive approach to identifying, 

planning for, responding to layoffs and 

dislocations, and preventing or 

minimizing their impacts on workers, 

businesses, and communities. A 

successful rapid response system 

includes: 

(1) Informational and direct 

reemployment services for workers, 

including but not limited to information 

and support for filing unemployment 

insurance claims, information on the 

impacts of layoff on health coverage or 

other benefits, information on and 

referral to career services, 

reemployment-focused workshops and 

services, and training; 

(2) Delivery of solutions to address 

the needs of businesses in transition, 

provided across the business lifecycle 

(expansion and contraction), including 

comprehensive business engagement 

and layoff aversion strategies and 

activities designed to prevent or 

minimize the duration of 

unemployment; 

(3) Convening, brokering, and 

facilitating the connections, networks 

and partners to ensure the ability to 

provide assistance to dislocated workers 

and their families such as home heating 

assistance, legal aid, and financial 

advice; and 

(4) Strategic planning, data gathering 

and analysis designed to anticipate, 

prepare for, and manage economic 

change. 

§ 682.302 Under what circumstances must 

rapid response services be delivered? 

Rapid response must be delivered 

when one or more of the following 

circumstances occur: 

(a) Announcement or notification of a 

permanent closure, regardless of the 

number of workers affected; 

(b) Announcement or notification of a 

mass layoff as defined in § 682.305; 

(c) A mass job dislocation resulting 

from a natural or other disaster; or 

(d) The filing of a Trade Adjustment 

Assistance (TAA) petition. 

§ 682.305 How does the Department define 

the term ‘‘mass layoff’’ for the purposes of 

rapid response? 

For the purposes of rapid response, 

the term ‘‘mass layoff’’ used throughout 

this subpart will have occurred when at 

least one of the following conditions 

have been met: 

(a) A layoff meets the State’s 

definition of mass layoff, as long as the 

definition does not exceed a minimum 

threshold of 50 affected workers; 

(b) Where a State has not defined a 

minimum threshold for mass layoff 

meeting the requirements of paragraph 

(a) of this section, layoffs affecting 50 or 

more workers; or 

(c) When a Worker Adjustment and 

Retraining Notification (WARN) Act 

notice has been filed, regardless of the 

number of workers affected by the layoff 

announced. 

§ 682.310 Who is responsible for carrying 

out rapid response activities? 

(a) Rapid response activities must be 

carried out by the State or an entity 

designated by the State, in conjunction 

with the Local WDBs, chief elected 

officials, and other stakeholders, as 

provided by WIOA secs. 133(a)(2) and 

134(a)(2)(A). 

(b) States must establish and maintain 

a rapid response unit to carry out 

statewide rapid response activities and 

to oversee rapid response activities 

undertaken by a designated State entity, 

Local WDB, or the chief elected officials 

for affected local areas, as provided 

under WIOA sec. 134(a)(2)(A)(i)(I). 

§ 682.320 What is layoff aversion, and 

what are appropriate layoff aversion 

strategies and activities? 

(a) Layoff aversion consists of 

strategies and activities, including those 

provided in paragraph (b) of this section 

and §§ 682.330 and 682.340, to prevent 

or minimize the duration of 

unemployment resulting from layoffs. 

(b) Layoff aversion activities may 

include: 

(1) Providing assistance to employers 

in managing reductions in force, which 

may include early identification of firms 

at risk of layoffs, assessment of the 

needs of and options for at-risk firms, 

and the delivery of services to address 

these needs, as provided by WIOA sec. 

134(d)(1)(A)(ix)(II)(cc); 

(2) Ongoing engagement, partnership, 

and relationship-building activities with 

businesses in the community, in order 

to create an environment for successful 

layoff aversion efforts and to enable the 

provision of assistance to dislocated 

workers in obtaining reemployment as 

soon as possible; 

(3) Funding feasibility studies to 

determine if a company’s operations 

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may be sustained through a buyout or 

other means to avoid or minimize 

layoffs; 

(4) Developing, funding, and 

managing incumbent worker training 

programs or other worker upskilling 

approaches as part of a layoff aversion 

strategy or activity; 

(5) Connecting companies to: 

(i) Short-time compensation or other 

programs designed to prevent layoffs or 

to reemploy dislocated workers quickly, 

available under Unemployment 

Insurance programs; 

(ii) Employer loan programs for 

employee skill upgrading; and 

(iii) Other Federal, State, and local 

resources as necessary to address other 

business needs that cannot be funded 

with resources provided under this title; 

(6) Establishing linkages with 

economic development activities at the 

Federal, State, and local levels, 

including Federal Department of 

Commerce programs and available State 

and local business retention and 

expansion activities; 

(7) Partnering or contracting with 

business-focused organizations to assess 

risks to companies, propose strategies to 

address those risks, implement services, 

and measure impacts of services 

delivered; 

(8) Conducting analyses of the 

suppliers of an affected company to 

assess their risks and vulnerabilities 

from a potential closing or shift in 

production of their major customer; 

(9) Engaging in proactive measures to 

identify opportunities for potential 

economic transition and training needs 

in growing industry sectors or 

expanding businesses; and 

(10) Connecting businesses and 

workers to short-term, on-the-job, or 

customized training programs and 

registered apprenticeships before or 

after layoff to help facilitate rapid 

reemployment. 

§ 682.330 What rapid response activities 

are required? 

Rapid response activities must 

include: 

(a) Layoff aversion activities as 

described in § 682.320, as applicable. 

(b) Immediate and on-site contact 

with the employer, representatives of 

the affected workers, and the local 

community, including an assessment of 

and plans to address the: 

(1) Layoff plans and schedule of the 

employer; 

(2) Background and probable 

assistance needs of the affected workers; 

(3) Reemployment prospects for 

workers; and 

(4) Available resources to meet the 

short and long-term assistance needs of 

the affected workers. 

(c) The provision of information and 

access to unemployment compensation 

benefits and programs, such as ShortTime Compensation, comprehensive 

one-stop delivery system services, and 

employment and training activities, 

including information on the TAA 

program (19 U.S.C. 2271 et seq.), Pell 

Grants, the GI Bill, and other resources. 

(d) The delivery of other necessary 

services and resources including 

workshops and classes, use of worker 

transition centers, and job fairs, to 

support reemployment efforts for 

affected workers. 

(e) Partnership with the Local WDB(s) 

and chief elected official(s) to ensure a 

coordinated response to the dislocation 

event and, as needed, obtain access to 

State or local economic development 

assistance. Such coordinated response 

may include the development of an 

application for a national dislocated 

worker grant as provided under part 687 

of this chapter. 

(f) The provision of emergency 

assistance adapted to the particular 

layoff or disaster. 

(g) As appropriate, developing 

systems and processes for: 

(1) Identifying and gathering 

information for early warning of 

potential layoffs or opportunities for 

layoff aversion; 

(2) Analyzing, and acting upon, data 

and information on dislocations and 

other economic activity in the State, 

region, or local area; and 

(3) Tracking outcome and 

performance data and information 

related to the activities of the rapid 

response program. 

(h) Developing and maintaining 

partnerships with other appropriate 

Federal, State and local agencies and 

officials, employer associations, 

technical councils, other industry 

business councils, labor organizations, 

and other public and private 

organizations, as applicable, in order to: 

(1) Conduct strategic planning 

activities to develop strategies for 

addressing dislocation events and 

ensuring timely access to a broad range 

of necessary assistance; and 

(2) Develop mechanisms for gathering 

and exchanging information and data 

relating to potential dislocations, 

resources available, and the 

customization of layoff aversion or rapid 

response activities, to ensure the ability 

to provide rapid response services as 

early as possible. 

(i) Delivery of services to worker 

groups for which a petition for Trade 

Adjustment Assistance has been filed. 

(j) The provision of additional 

assistance, as described in § 682.350, to 

local areas that experience disasters, 

mass layoffs, or other dislocation events 

when such events exceed the capacity of 

the local area to respond with existing 

resources as provided under WIOA sec. 

134(a)(2)(A)(i)(II). 

(k) Provision of guidance and 

financial assistance as appropriate, in 

establishing a labor-management 

committee if voluntarily agreed to by 

the employee’s bargaining 

representative and management. The 

committee may devise and oversee an 

implementation strategy that responds 

to the reemployment needs of the 

workers. The assistance to this 

committee may include: 

(1) The provision of training and 

technical assistance to members of the 

committee; and 

(2) Funding the operating costs of a 

committee to enable it to provide advice 

and assistance in carrying out rapid 

response activities and in the design 

and delivery of WIOA-authorized 

services to affected workers. 

§ 682.340 May other activities be 

undertaken as part of rapid response? 

(a) Yes, in order to conduct layoff 

aversion activities, or to prepare for and 

respond to dislocation events, in 

addition to the activities required under 

§ 682.330, a State or designated entity 

may devise rapid response strategies or 

conduct activities that are intended to 

minimize the negative impacts of 

dislocation on workers, businesses, and 

communities and ensure rapid 

reemployment for workers affected by 

layoffs. 

(b) When circumstances allow, rapid 

response may provide guidance and/or 

financial assistance to establish 

community transition teams to assist the 

impacted community in organizing 

support for dislocated workers and in 

meeting the basic needs of their 

families, including heat, shelter, food, 

clothing and other necessities and 

services that are beyond the resources 

and ability of the one-stop delivery 

system to provide. 

§ 682.350 What is meant by ‘‘provision of 

additional assistance’’ in the Workforce 

Innovation and Opportunity Act? 

As stated in WIOA sec. 133(a)(2), a 

State may reserve up to 25 percent of its 

allotted dislocated worker funds for 

rapid response activities. Once the State 

has reserved adequate funds for rapid 

response activities, such as those 

described in §§ 682.310, 682.320, and 

682.330, any of the remaining funds 

reserved may be provided to local areas 

that experience increases of 

unemployment due to natural disasters, 

mass layoffs or other events, for 

provision of direct career services to 

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participants if there are not adequate 

local funds available to assist the 

dislocated workers. States may wish to 

establish the policies or procedures 

governing the provision of additional 

assistance as described in § 682.340. 

§ 682.360 What rapid response, layoff 

aversion, or other information will States be 

required to report to the Employment and 

Training Administration? 

(a) Where a WIOA individual record 

exists for an individual served under 

programs reporting through the WIOA 

individual record, States must report 

information regarding the receipt of 

services under this subpart for such an 

individual. This information must be 

reported in the WIOA individual record. 

(b) States must comply with these 

requirements as explained in guidance 

issued by the Department of Labor. 

§ 682.370 What are the statewide activities 

for which rapid response funds remaining 

unobligated after the first program year for 

which the funds were allotted may be used 

by the State? 

Funds reserved by the Governor for 

rapid response activities that remain 

unobligated after the first program year 

for which such funds were allotted may 

be used by the Governor to carry out 

statewide activities under §§ 682.200 

and 682.210. Statewide activities for 

which these funds may be used include 

prioritizing the planning for and 

delivery of activities designed to 

prevent job loss, increasing the rate of 

reemployment, building relationships 

with businesses and other stakeholders, 

building and maintaining early warning 

networks and systems, and otherwise 

supporting efforts to allow long-term 

unemployed workers to return to work. 

■ 16. Add part 683 to read as follows: 

PART 683—ADMINISTRATIVE 

PROVISIONS UNDER TITLE I OF THE 

WORKFORCE INNOVATION AND 

OPPORTUNITY ACT 

Subpart A—Funding and Closeout 

Sec. 

683.100 When do Workforce Innovation 

and Opportunity Act grant funds become 

available for obligation? 

683.105 What award document authorizes 

the expenditure of funds under title I of 

the Workforce Innovation and 

Opportunity Act and the Wagner-Peyser 

Act? 

683.110 What is the period of performance 

of Workforce Innovation and 

Opportunity Act title I and WagnerPeyser Act funds? 

683.115 What planning information must a 

State submit in order to receive a 

formula grant? 

683.120 How are Workforce Innovation and 

Opportunity Act title I formula funds 

allocated to local areas? 

683.125 What minimum funding provisions 

apply to Workforce Innovation and 

Opportunity Act adult, dislocated 

worker, and youth allocations? 

683.130 Does a Local Workforce 

Development Board have the authority to 

transfer funds between the adult 

employment and training activities 

allocation and the dislocated worker 

employment and training activities 

allocation? 

683.135 What reallotment procedures does 

the Secretary use? 

683.140 What reallocation procedures must 

the Governors use? 

683.145 What merit review and risk 

assessment does the Department conduct 

for Federal financial assistance awards 

made under the Workforce Innovation 

and Opportunity Act title I, subtitle D? 

683.150 What closeout requirements apply 

to grants funded with Workforce 

Innovation and Opportunity Act title I 

and Wagner-Peyser Act funds? 

Subpart B—Administrative Rules, Costs, 

and Limitations 

Sec. 

683.200 What general fiscal and 

administrative rules apply to the use of 

Workforce Innovation and Opportunity 

Act title I and Wagner-Peyser Act funds? 

683.205 What administrative cost 

limitations apply to Workforce 

Innovation and Opportunity Act title I 

grants? 

683.210 What audit requirements apply to 

the use of Workforce Innovation and 

Opportunity Act title I and WagnerPeyser Act funds? 

683.215 What Workforce Innovation and 

Opportunity Act title I functions and 

activities constitute the costs of 

administration subject to the 

administrative cost limitation? 

683.220 What are the internal controls 

requirements for recipients and 

subrecipients of Workforce Innovation 

and Opportunity Act title I and WagnerPeyser Act funds? 

683.225 What requirements relate to the 

enforcement of the Military Selective 

Service Act? 

683.230 Are there special rules that apply 

to veterans when income is a factor in 

eligibility determinations? 

683.235 May Workforce Innovation and 

Opportunity Act title I funds be spent for 

construction? 

683.240 What are the instructions for using 

real property with Federal equity? 

683.245 Are employment generating 

activities, or similar activities, allowable 

under title I of the Workforce Innovation 

and Opportunity Act? 

683.250 What other activities are prohibited 

under title I of the Workforce Innovation 

and Opportunity Act? 

683.255 What are the limitations related to 

religious activities of title I of the 

Workforce Innovation and Opportunity 

Act? 

683.260 What prohibitions apply to the use 

of Workforce Innovation and 

Opportunity Act title I funds to 

encourage business relocation? 

683.265 What procedures and sanctions 

apply to violations of this part? 

683.270 What safeguards are there to ensure 

that participants in Workforce 

Innovation and Opportunity Act 

employment and training activities do 

not displace other employees? 

683.275 What wage and labor standards 

apply to participants in activities under 

title I of the Workforce Innovation and 

Opportunity Act? 

683.280 What health and safety standards 

apply to the working conditions of 

participants in activities under title I of 

the Workforce Innovation and 

Opportunity Act? 

683.285 What are a recipient’s obligations 

to ensure nondiscrimination and equal 

opportunity, and what are a recipient’s 

obligations with respect to religious 

activities? 

683.290 Are there salary and bonus 

restrictions in place for the use of title 

I and Wagner-Peyser Act funds? 

683.295 Is earning of profit allowed under 

the Workforce Innovation and 

Opportunity Act? 

Subpart C—Reporting Requirements 

Sec. 

683.300 What are the reporting 

requirements for programs funded under 

the Workforce Innovation and 

Opportunity Act? 

Subpart D—Oversight and Resolution of 

Findings 

Sec. 

683.400 What are the Federal and State 

monitoring and oversight 

responsibilities? 

683.410 What are the oversight roles and 

responsibilities of recipients and 

subrecipients of Federal financial 

assistance awarded under title I of the 

Workforce Innovation and Opportunity 

Act and the Wagner-Peyser Act? 

683.420 What procedures apply to the 

resolution of findings arising from 

audits, investigations, monitoring, and 

oversight reviews? 

683.430 How does the Secretary resolve 

investigative and monitoring findings? 

683.440 What is the Grant Officer 

resolution process? 

Subpart E—Pay-for-Performance Contract 

Strategies 

Sec. 

683.500 What is a Workforce Innovation 

and Opportunity Act Pay-forPerformance contract strategy? 

683.510 What is a Workforce Innovation 

and Opportunity Act Pay-forPerformance contract? 

683.520 What funds can be used to support 

Workforce Innovation and Opportunity 

Act Pay-for-Performance contract 

strategies? 

683.530 How long are funds used for 

Workforce Innovation and Opportunity 

Act Pay-for-Performance contract 

strategies available? 

683.540 What is the State’s role in assisting 

local areas in using Workforce 

Innovation and Opportunity Act Pay-forPerformance contract strategies? 

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Subpart F—Grievance Procedures, 

Complaints, and State Appeals Processes 

Sec. 

683.600 What local area, State, and direct 

recipient grievance procedures must be 

established? 

683.610 What processes does the Secretary 

use to review grievances and complaints 

of Workforce Innovation and 

Opportunity Act title I recipients? 

683.620 How are complaints and reports of 

criminal fraud and abuse addressed 

under the Workforce Innovation and 

Opportunity Act? 

683.630 What additional appeal processes 

or systems must a State have for the 

Workforce Innovation and Opportunity 

Act program? 

683.640 What procedures apply to the 

appeals of non-designation of local 

areas? 

683.650 What procedures apply to the 

appeals of the Governor’s imposition of 

sanctions for substantial violations or 

performance failures by a local area? 

Subpart G—Sanctions, Corrective Actions, 

and Waiver of Liability 

Sec. 

683.700 When can the Secretary impose 

sanctions and corrective actions on 

recipients and subrecipients of title I 

Workforce Innovation and Opportunity 

Act funds? 

683.710 Who is responsible for funds 

provided under title I of the Workforce 

Innovation and Opportunity Act and the 

Wagner-Peyser Act? 

683.720 What actions are required to 

address the failure of a local area to 

comply with the applicable uniform 

administrative provisions? 

683.730 When can the Secretary waive the 

imposition of sanctions? 

683.740 What is the procedure to handle a 

recipient of title I Workforce Innovation 

and Opportunity Act funds’ request for 

advance approval of contemplated 

corrective actions? 

683.750 What procedure must be used for 

administering the offset/deduction 

provisions of the Workforce Innovation 

and Opportunity Act? 

Subpart H—Administrative Adjudication 

and Judicial Review 

Sec. 

683.800 What actions of the Department 

may be appealed to the Office of 

Administrative Law Judges? 

683.810 What rules of procedure apply to 

hearings conducted under this subpart? 

683.820 What authority does the 

Administrative Law Judge have in 

ordering relief as an outcome of an 

administrative hearing? 

683.830 When will the Administrative Law 

Judge issue a decision? 

683.840 Is there an alternative dispute 

resolution process that may be used in 

place of an Office of Administrative Law 

Judges hearing? 

683.850 Is there judicial review of a final 

order of the Secretary issued under 

WIOA? 

Authority: Secs. 102, 116, 121, 127, 128, 

132, 133, 147, 167, 169, 171, 181, 185, 189, 

195, 503, Public Law 113–128, 128 Stat. 1425 

(Jul. 22, 2014). 

Subpart A—Funding and Closeout 

§ 683.100 When do Workforce Innovation 

and Opportunity Act grant funds become 

available for obligation? 

(a) WIOA title I. Except as provided in 

paragraph (b) of this section or in the 

applicable fiscal year appropriation, 

fiscal year appropriations for programs 

and activities carried out under title I 

are available for obligation on the basis 

of a program year. A program year 

begins on July 1 in the fiscal year for 

which the appropriation is made and 

ends on June 30 of the following year. 

(b) Youth funds. Fiscal year 

appropriations for a program year’s 

youth activities, authorized under 

chapter 2, subtitle B, title I of WIOA 

may be made available for obligation 

beginning on April 1 of the fiscal year 

for which the appropriation is made. 

(c) Wagner-Peyser Act employment 

service. Fiscal year appropriations for 

activities authorized under sec. 6 of the 

Wagner-Peyser Act, 29 U.S.C. 49e, are 

available for obligation on the basis of 

a program year. A program year begins 

July 1 in the fiscal year for which the 

appropriation is made and ends on June 

30 of the following year. 

(d) Discretionary grants. Discretionary 

grant funds are available for obligation 

in accordance with the fiscal year 

appropriation. 

§ 683.105 What award document 

authorizes the expenditure of funds under 

title I of the Workforce Innovation and 

Opportunity Act and the Wagner-Peyser 

Act? 

(a) Agreement. All WIOA title I and 

Wagner-Peyser Act funds are awarded 

by grant or cooperative agreement, as 

defined in the Uniform Administrative 

Requirements, Cost Principles, and 

Audit Requirements for Federal Awards 

regulations at 2 CFR 200.51 and 200.24 

respectively, or contract, as defined in 2 

CFR 200.22. All grant or cooperative 

agreements are awarded by the Grant 

Officer through negotiation with the 

recipient (the non-Federal entity). The 

agreement describes the terms and 

conditions applicable to the award of 

WIOA title I and Wagner-Peyser Act 

funds and will conform to the 

requirements of 2 CFR 200.210. 

Contracts are issued by the Contracting 

Officer in compliance with the Federal 

Acquisition Regulations. 

(b) Grant funds awarded to States and 

outlying areas. The Federal funds 

allotted to the States and outlying areas 

each program year in accordance with 

secs. 127(b) and 132(b) of WIOA will be 

obligated by grant agreement. 

(c) Native American programs. 

Awards of grants, contracts, or 

cooperative agreements for the WIOA 

Native American program will be made 

to eligible entities on a competitive 

basis every 4 program years for a 4-year 

period, in accordance with the 

provisions of sec. 166 of WIOA. 

(d) Migrant and seasonal farmworker 

programs. Awards of grants or contracts 

for the Migrant and Seasonal 

Farmworker Program will be made to 

eligible entities on a competitive basis 

every 4 program years for a 4-year 

period, in accordance with the 

provisions of sec. 167 of WIOA. 

(e) Awards for evaluation and 

research under sec. 169 of WIOA. (1) 

Awards of grants, contracts, or 

cooperative agreements will be made to 

eligible entities for programs or 

activities authorized under WIOA sec. 

169. These funds are for: 

(i) Evaluations; 

(ii) Research; 

(iii) Studies; 

(iv) Multi-State projects; and 

(v) Dislocated worker projects. 

(2) Awards of grants, contracts, or 

cooperative agreements under 

paragraphs (e)(1)(ii) through (iv) of this 

section in amounts that exceed $100,000 

will be awarded on a competitive basis, 

except that a noncompetitive award may 

be made in the case of a project that is 

funded jointly with other public or 

private sector entities that provide a 

substantial portion of the assistance 

under the grant, contract, or cooperative 

agreement for the project. 

(3) Awards of grants, contracts, or 

cooperative agreements for carrying out 

projects in paragraphs (e)(1)(ii) through 

(iv) of this section may not be awarded 

to the same organization for more than 

3 consecutive years unless: 

(i) Such grant, contract, or cooperative 

agreement is competitively reevaluated 

within such period; 

(ii) The initial grant, contract, or 

cooperative agreement was issued on a 

non-competitive basis because it was for 

less than $100,000, and: 

(A) The non-competitive continuation 

is for less than $100,000; 

(B) The scope of work is essentially 

the same as the initial grant, contract, or 

cooperative agreement; 

(C) Progress in meeting performance 

objectives is satisfactory; and 

(D) Other terms and conditions 

established by the Department have 

been met; or 

(iii) The initial grant, contract, or 

cooperative agreement was issued on a 

non-competitive basis because the 

project was funded jointly with other 

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public or private sector entities that 

provide a substantial portion of the 

assistance, and: 

(A) The non-competitive continuation 

maintains a substantial portion of joint 

funding; 

(B) The scope of work is essentially 

the same as the initial grant, contract, or 

cooperative agreement; 

(C) Progress in meeting performance 

objectives is satisfactory; and 

(D) Other terms and conditions 

established by the Department have 

been met. 

(4) Entities with recognized expertise 

in the methods, techniques, and 

knowledge of workforce investment 

activities will be provided priority in 

awarding funds for the projects under 

paragraphs (e)(1)(ii) through (iv) of this 

section. The duration of such projects 

will be specified in the grant, contract, 

or cooperative agreement. 

(5) A peer review process will be used 

to review and evaluate projects under 

this paragraph (e) for grants, contracts, 

or cooperative agreements that exceed 

$500,000, and to designate exemplary 

and promising programs. 

(f) Termination. Each grant, 

cooperative agreement, or contract 

terminates as indicated in the terms of 

the agreement or when the period of 

performance has expired. The grants 

and cooperative agreements must be 

closed in accordance with the closeout 

provisions at 2 CFR 200.343 and 2 CFR 

part 2900 as applicable. 

§ 683.110 What is the period of 

performance of Workforce Innovation and 

Opportunity Act title I and Wagner-Peyser 

Act funds? 

(a) The statutory period of availability 

for expenditure for WIOA title I grants 

will be established as the period of 

performance for such grants unless 

otherwise provided in the grant 

agreement or cooperative agreement. All 

funds must be fully expended by the 

expiration of the period of performance 

or they risk losing their availability. 

Unless otherwise authorized in a grant 

or cooperative agreement or subsequent 

modification, recipients must expend 

funds with the shortest period of 

availability first. 

(b) Grant funds expended by States. 

Funds allotted to States under WIOA 

secs. 127(b) and 132(b) for any program 

year are available for expenditure by the 

State receiving the funds only during 

that program year and the 2 succeeding 

program years as identified in § 683.100. 

(c) Grant funds expended by local 

areas as defined in WIOA sec. 106. (1)(i) 

Funds allocated by a State to a local area 

under WIOA secs. 128(b) and 133(b), for 

any program year are available for 

expenditure only during that program 

year and the succeeding program year; 

(ii) Pay-for-Performance exception. 

Funds used to carry out WIOA Pay-forPerformance contract strategies will 

remain available until expended in 

accordance with WIOA sec. 

189(g)(2)(D). 

(2) Funds which are not expended by 

a local area(s) in the 2-year period 

described in paragraph (c)(1)(i) of this 

section, must be returned to the State. 

Funds so returned are available for 

expenditure by State and local 

recipients and subrecipients only during 

the third program year of availability in 

accordance with WIOA secs. 128(c) and 

132(c). These funds are available for 

only the following purposes: 

(i) For statewide projects; or 

(ii) For distribution to local areas 

which had fully expended their 

allocation of funds for the same program 

year within the 2-year period. 

(d) Native American programs. Funds 

awarded by the Department under 

WIOA sec. 166(c) are available for 

expenditure for the period identified in 

the grant or contract award document, 

which will not exceed 4 years. 

(e) Migrant and seasonal farmworker 

programs. Funds awarded by the 

Department under WIOA sec. 167 are 

available for expenditure for the period 

identified in the grant award document, 

which will not exceed 4 years. 

(f) Evaluations and research. Funds 

awarded by the Department under 

WIOA sec. 169 are available for 

expenditure for any program or activity 

authorized under sec. 169 of WIOA and 

will remain available until expended or 

as specified in the award document. 

(g) Other programs under title I of 

WIOA, including secs. 170 and 171, and 

all other grants, contracts and 

cooperative agreements. Funds are 

available for expenditure for a period of 

performance identified in the grant or 

contract agreement. 

(h) Wagner-Peyser Act. Funds allotted 

to States for grants under secs. 3 and 15 

of the Wagner-Peyser Act for any 

program year are available for 

expenditure by the State receiving the 

funds only during that program year and 

the 2 succeeding program years. The 

program year begins on July 1 of the 

fiscal year for which the appropriation 

is made. 

§ 683.115 What planning information must 

a State submit in order to receive a formula 

grant? 

Each State seeking financial 

assistance under subtitle B, chapter 2 

(youth) or chapter 3 (adults and 

dislocated workers), of title I of WIOA, 

or under the Wagner-Peyser Act must 

submit a Unified State Plan under sec. 

102 of WIOA or a Combined State Plan 

under WIOA sec. 103. The requirements 

for the plan content and the plan review 

process are described in secs. 102 and 

103 of WIOA, sec. 8 of Wagner-Peyser 

Act, and §§ 676.100 through 676.145 of 

this chapter and §§ 652.211 through 

652.214 of this chapter. 

§ 683.120 How are Workforce Innovation 

and Opportunity Act title I formula funds 

allocated to local areas? 

(a) General. The Governor must 

allocate WIOA formula funds allotted 

for services to youth, adults and 

dislocated workers in accordance with 

secs. 128 and 133 of WIOA and this 

section. 

(1) State WDBs must assist Governors 

in the development of any youth or 

adult discretionary within-State 

allocation formulas. 

(2) Within-State allocations must be 

made: 

(i) In accordance with the allocation 

formulas contained in secs. 128(b) and 

133(b) of WIOA and in the State Plan; 

(ii) After consultation with chief 

elected officials and Local WDBs in 

each of the local areas; and 

(iii) In accordance with sec. 182(e) of 

WIOA, available to local areas not later 

than 30 days after the date funds are 

made available to the State or 7 days 

after the date the local plan for the area 

is approved, whichever is later. 

(b) State reserve. Of the WIOA 

formula funds allotted for services to 

youth, adults and dislocated workers, 

the Governor must reserve not more 

than 15 percent of the funds from each 

of these sources to carry out statewide 

activities. Funds reserved under this 

paragraph may be combined and spent 

on statewide activities under WIOA sec. 

129(b) and statewide employment and 

training activities under WIOA sec. 

134(a), for adults and dislocated 

workers, and youth activities, as 

described in §§ 682.200 and 682.210 of 

this chapter, without regard to the 

funding source of the reserved funds. 

(c) Youth allocation formula. (1) 

Unless the Governor elects to distribute 

funds in accordance with the 

discretionary allocation formula 

described in paragraph (c)(2) of this 

section, the remainder of youth funds 

not reserved under paragraph (b) of this 

section must be allocated: 

(i) 331⁄3 percent on the basis of the 

relative number of unemployed 

individuals in areas of substantial 

unemployment in each local area, 

compared to the total number of 

unemployed individuals in all areas of 

substantial unemployment in the State; 

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(ii) 331⁄3 percent on the basis of the 

relative excess number of unemployed 

individuals in each local area, compared 

to the total excess number of 

unemployed individuals in the State; 

and 

(iii) 331⁄3 percent on the basis of the 

relative number of disadvantaged youth 

in each local area, compared to the total 

number of disadvantaged youth in the 

State except for local areas as described 

in sec. 107(c)(1)(C) of WIOA where the 

allotment must be based on the greater 

of either the number of individuals aged 

16 to 21 in families with an income 

below the low-income level for the area 

or the number of disadvantaged youth 

in the area. 

(2) Discretionary youth allocation 

formula. In lieu of making the formula 

allocation described in paragraph (c)(1) 

of this section, the State may allocate 

youth funds under a discretionary 

formula. Under this discretionary 

formula, the State must allocate a 

minimum of 70 percent of youth funds 

not reserved under paragraph (b) of this 

section on the basis of the formula in 

paragraph (c)(1) of this section, and may 

allocate up to 30 percent on the basis of 

a formula that: 

(i) Incorporates additional factors 

(other than the factors described in 

paragraph (c)(1) of this section) relating 

to: 

(A) Excess youth poverty in urban, 

rural and suburban local areas; and 

(B) Excess unemployment above the 

State average in urban, rural and 

suburban local areas; and 

(ii) Was developed by the State WDB 

and approved by the Secretary of Labor 

as part of the State Plan. 

(d) Adult allocation formula. (1) 

Unless the Governor elects to distribute 

funds in accordance with the 

discretionary allocation formula 

described in paragraph (d)(2) of this 

section, the remainder of adult funds 

not reserved under paragraph (b) of this 

section must be allocated: 

(i) 331⁄3 percent on the basis of the 

relative number of unemployed 

individuals in areas of substantial 

unemployment in each local area, 

compared to the total number of 

unemployed individuals in areas of 

substantial unemployment in the State; 

(ii) 331⁄3 percent on the basis of the 

relative excess number of unemployed 

individuals in each local area, compared 

to the total excess number of 

unemployed individuals in the State; 

and 

(iii) 331⁄3 percent on the basis of the 

relative number of disadvantaged adults 

in each local area, compared to the total 

number of disadvantaged adults in the 

State. Except for local areas as described 

in sec. 107(c)(1)(C) of WIOA where the 

allotment must be based on the higher 

of either the number of adults with an 

income below the low-income level for 

the area or the number of disadvantaged 

adults in the area. 

(2) Discretionary adult allocation 

formula. In lieu of making the formula 

allocation described in paragraph (d)(1) 

of this section, the State may allocate 

adult funds under a discretionary 

formula, Under this discretionary 

formula, the State must allocate a 

minimum of 70 percent of adult funds 

not reserved under paragraph (b) of this 

section on the basis of the formula in 

paragraph (d)(1), and may allocate up to 

30 percent on the basis of a formula 

that: 

(i) Incorporates additional factors 

(other than the factors described in 

paragraph (d)(1) of this section) relating 

to: 

(A) Excess poverty in urban, rural and 

suburban local areas; and 

(B) Excess unemployment above the 

State average in urban, rural and 

suburban local areas; and 

(ii) Was developed by the State WDB 

and approved by the Secretary of Labor 

as part of the State Plan. 

(e) Dislocated worker allocation 

formula. (1) The remainder of dislocated 

worker funds not reserved under 

paragraph (b) of this section must be 

allocated on the basis of a formula 

prescribed by the Governor that 

distributes funds in a manner that 

addresses the State’s dislocated worker 

needs. Funds so distributed must not be 

less than 60 percent of the State’s 

formula allotment. 

(2) The Governor’s dislocated worker 

formula must use the most appropriate 

information available to the Governor, 

including information on: 

(i) Insured unemployment data; 

(ii) Unemployment concentrations; 

(iii) Plant closings and mass layoff 

data; 

(iv) Declining industries data; 

(v) Farmer-rancher economic 

hardship data; and 

(vi) Long-term unemployment data. 

(3) The Governor may not amend the 

dislocated worker formula more than 

once for any program year. 

(f) Rapid response. (1) Of the WIOA 

formula funds allotted for services to 

dislocated workers in sec. 132(b)(2)(B) 

of WIOA, the Governor must reserve not 

more than 25 percent of the funds for 

statewide rapid response activities 

described in WIOA sec. 134(a)(2)(A) and 

§§ 682.300 through 682.370 of this 

chapter. 

(2) Unobligated funds. Funds reserved 

by a Governor for rapid response 

activities under sec. 133(a)(2) of WIOA, 

and sec. 133(a)(2) of the Workforce 

Investment Act (as in effect on the day 

before the date of enactment of WIOA), 

to carry out sec. 134(a)(2)(A) of WIOA 

that remain unobligated after the first 

program year for which the funds were 

allotted, may be used by the Governor 

to carry out statewide activities 

authorized under paragraph (b) of this 

section and §§ 682.200 and 682.210 of 

this chapter. 

(g) Special rule. For the purpose of the 

formula in paragraphs (c)(1) and (d)(1) 

of this section, the State must, as 

appropriate and to the extent 

practicable, exclude college students 

and members of the Armed Forces from 

the determination of the number of 

disadvantaged youth and disadvantaged 

adults. 

§ 683.125 What minimum funding 

provisions apply to Workforce Innovation 

and Opportunity Act adult, dislocated 

worker, and youth allocations? 

(a) For funding authorized by secs. 

128(b)(2), 133(b)(2)(A), and 133(b)(2)(B) 

of WIOA, which are youth, adult, and 

dislocated worker funds, a local area 

must not receive an allocation 

percentage for a fiscal year that is less 

than 90 percent of the average allocation 

percentage of the local area for the 2 

preceding fiscal years. 

(b) The Department’s annual fiscal 

year appropriation provides funding for 

programs and activities described in 

paragraph (a) of this section under 

separate appropriations with various 

periods of availability. These periods of 

availability are described in § 683.100 as 

a program year. A program year for 

funds allocated under secs. 133(b)(2)(A) 

and 133(b)(2)(B) of WIOA begins on July 

1 in the fiscal year for which the 

appropriation is made and ends on June 

30 of the following year. A program year 

for funds available under WIOA sec. 

128(b)(2) is available from April 1 of the 

fiscal year in which the appropriation is 

made and ends on June 30 of the 

following year. Therefore, when 

grantees are calculating the minimum 

funding percentage they must do so on 

a program year basis. 

(c) When a new local area is 

designated under sec. 106 of WIOA the 

State must develop a methodology to 

apply the minimum funding provision 

specified in paragraph (a) of this section 

to local area allocations of WIOA youth, 

adult, and dislocated worker funds. 

(d) Amounts necessary to increase 

allocations to local areas to comply with 

paragraph (a) of this section must be 

obtained by ratably reducing the 

allocations to be made to other local 

areas. 

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56414 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

(e) If the amounts of WIOA funds 

appropriated in a fiscal year are not 

sufficient to provide the amount 

specified in paragraph (a) of this section 

to all local areas, the amounts allocated 

to each local area must be ratably 

reduced. 

§ 683.130 Does a Local Workforce 

Development Board have the authority to 

transfer funds between the adult 

employment and training activities 

allocation and the dislocated worker 

employment and training activities 

allocation? 

(a) A Local WDB may transfer up to 

100 percent of a program year allocation 

for adult employment and training 

activities, and up to 100 percent of a 

program year allocation for dislocated 

worker employment and training 

activities between the two programs. 

(b) Local WDBs may not transfer 

funds to or from the youth program. 

(c) Before making any transfer 

described in paragraph (a) of this 

section, a Local WDB must obtain the 

Governor’s written approval. The 

Governor’s written approval must be 

based on criteria or factors that the 

Governor must establish in a written 

policy, such as the State Unified or 

Combined Plan or other written policy. 

§ 683.135 What reallotment procedures 

does the Secretary use? 

(a) The Secretary determines, during 

the second quarter of each program year, 

whether a State has obligated its 

required level of at least 80 percent of 

the funds allotted under secs. 127 and 

132 of WIOA for programs serving 

youth, adults, and dislocated workers 

for the prior program year, as separately 

determined for each of the three funding 

streams. The amount to be recaptured 

from each State for reallotment, if any, 

is based on State obligations of the 

funds allotted to each State under secs. 

127 and 132 of WIOA for programs 

serving youth, adults, or dislocated 

workers, less any amount reserved (up 

to five percent at the State level) for the 

costs of administration. The recapture 

amount, if any, is separately determined 

for each funding stream. 

(b) The Secretary reallots youth, adult 

and dislocated worker funds among 

eligible States in accordance with the 

provisions of secs. 127(c) and 132(c) of 

WIOA, respectively. To be eligible to 

receive a reallotment of youth, adult, or 

dislocated worker funds under the 

reallotment procedures, a State must 

have obligated at least 80 percent of the 

prior program year’s allotment, less any 

amount reserved for the costs of 

administration at the State level of 

youth, adult, or dislocated worker 

funds. A State’s eligibility to receive a 

reallotment is separately determined for 

each funding stream. 

(c) The term ‘‘obligation’’ is defined at 

2 CFR 200.71. 

(d) Obligations must be reported on 

the required Department of Labor (the 

Department) financial form, such as the 

ETA–9130 form, unless otherwise noted 

in guidance. 

§ 683.140 What reallocation procedures 

must the Governors use? 

(a) The Governor, after consultation 

with the State WDB, may reallocate 

youth, adult, and dislocated worker 

funds among local areas within the State 

in accordance with the provisions of 

secs. 128(c) and 133(c) of WIOA. If the 

Governor chooses to reallocate funds, 

the provisions in paragraphs (b) and (c) 

of this section apply. 

(b) For the youth, adult and dislocated 

worker programs, the amount to be 

recaptured from each local area for 

purposes of reallocation, if any, must be 

based on the amount by which the prior 

year’s unobligated balance of allocated 

funds exceeds 20 percent of that year’s 

allocation for the program, less any 

amount reserved (up to 10 percent) for 

the costs of administration. Unobligated 

balances must be determined based on 

allocations adjusted for any allowable 

transfer between funding streams. The 

amount to be recaptured, if any, must be 

separately determined for each funding 

stream. The term ‘‘obligation’’ is defined 

at 2 CFR 200.71. 

(c) To be eligible to receive youth, 

adult or dislocated worker funds under 

the reallocation procedures, a local area 

must have obligated at least 80 percent 

of the prior program year’s allocation, 

less any amount reserved (up to 10 

percent) for the costs of administration, 

for youth, adult, or dislocated worker 

activities, as separately determined. A 

local area’s eligibility to receive a 

reallocation must be separately 

determined for each funding stream. 

§ 683.145 What merit review and risk 

assessment does the Department conduct 

for Federal financial assistance awards 

made under Workforce Innovation and 

Opportunity Act title I, subtitle D? 

(a) For competitive awards, the 

Department will design and execute a 

merit review process for applications as 

prescribed under 2 CFR 200.204 when 

issuing Federal financial assistance 

awards made under WIOA title I, 

subtitle D. This process will be 

described in the applicable funding 

opportunity announcement. 

(b) Prior to issuing a Federal financial 

assistance award under WIOA title I, 

subtitle D, the Department will conduct 

a risk assessment to assess the 

organization’s overall ability to 

administer Federal funds as required 

under 2 CFR 200.205. As part of this 

assessment, the Department may 

consider any information that has come 

to its attention and will consider the 

organization’s history with regard to the 

management of other grants, including 

Department of Labor grants. 

(c) In evaluating risks posed by 

applicants, the Department will 

consider the following: 

(1) Financial stability; 

(2) Quality of management systems 

and ability to meet the management 

standards prescribed in this part; 

(3) History of performance. The 

applicant’s record in managing Federal 

awards, if it is a prior recipient of 

Federal awards, including timeliness of 

compliance with applicable reporting 

requirements, conformance to the terms 

and conditions of previous Federal 

awards, and if applicable, the extent to 

which any previously awarded amounts 

will be expended prior to future awards; 

(4) Reports and findings from audits; 

and 

(5) The applicant’s ability to 

implement effectively statutory, 

regulatory, or other requirements 

imposed on non-Federal entities. 

§ 683.150 What closeout requirements 

apply to grants funded with Workforce 

Innovation and Opportunity Act title I and 

Wagner-Peyser Act funds? 

(a) After the expiration of the period 

of performance, the Department will 

closeout the Federal award when it 

determines that all applicable 

administrative actions and all required 

work of the Federal award have been 

completed by the grant recipient. This 

section specifies the actions the grant 

recipient and the Department must take 

to complete this process. 

(1) The grant recipient must submit, 

no later than 90 calendar days after the 

end date of the period of performance, 

all financial, performance, and other 

reports as required by the terms and 

conditions of the Federal award. 

(2) The Department may approve 

extensions when requested by the grant 

recipient. 

(b) Unless otherwise noted in the 

terms and conditions of the award or an 

extension, grant recipients must comply 

with 2 CFR 200.343(b) and 2900.15 in 

regards to closeout. 

(c) The Department must make 

prompt payments to the grant recipient 

for allowable reimbursable costs under 

the Federal award being closed out. 

(d) The grant recipient must promptly 

refund any balances of unobligated cash 

that the Department paid in advance or 

paid and that is not authorized to be 

retained by the grant recipient. See 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56415 

Office of Management and Budget 

Circular A–129, 2 CFR 200.345, and 2 

CFR part 2900 for requirements 

regarding unreturned amounts that 

become delinquent debts. 

(e) Consistent with the terms and 

conditions of the Federal award, the 

Department must make a settlement for 

any upward or downward adjustments 

to the Federal share of costs after 

closeout reports are received. 

(f) The grant recipient must account 

for any real and personal property 

acquired with Federal funds or received 

from the Federal government in 

accordance with 2 CFR 200.310 through 

200.316, and 200.329. 

(g) The Department should complete 

all closeout actions for Federal awards 

no later than 1 year after receipt and 

acceptance of all required final reports. 

(h) The closeout of an award does not 

affect any of the following: 

(1) The right of the Department to 

disallow costs and recover funds on the 

basis of a later audit or other review. 

(2) The obligation of the grant 

recipient to return any funds due as a 

result of later refunds, corrections, or 

other transactions. 

(3) Audit requirements as described in 

2 CFR part 200, subpart F. 

(4) Property management 

requirements in 2 CFR 200.310 through 

200.316. 

(5) Records retention as required in 2 

CFR 200.333 through 200.337. 

(i) After closeout of an award, a 

relationship created under the award 

may be modified or ended in whole or 

in part with the consent of the 

Department and the grant recipient, 

provided the responsibilities of the 

grant recipient referred to in 2 CFR 

200.344(a) and 200.310 through 200.316 

are considered, and provisions are made 

for continuing responsibilities of the 

grant recipient, as appropriate. 

(j) Grant recipients that award WIOA 

funds to subrecipients must institute a 

timely closeout process after the end of 

performance to ensure a timely closeout 

in accordance with 2 CFR 200.343 and 

200.344. 

Subpart B—Administrative Rules, 

Costs, and Limitations 

§ 683.200 What general fiscal and 

administrative rules apply to the use of 

Workforce Innovation and Opportunity Act 

title I and Wagner-Peyser Act funds? 

(a) Uniform Guidance. Recipients and 

subrecipients of a Federal award under 

title I of WIOA and the Wagner-Peyser 

Act must follow the Uniform Guidance 

at 2 CFR parts 200, 215, 225, 230, 

including any exceptions identified by 

the Department at 2 CFR part 2900. 

(1) Commercial organizations, forprofit entities, and foreign entities that 

are recipients and subrecipients of a 

Federal award must adhere to 2 CFR 

part 200, including any exceptions 

identified by the Department under 2 

CFR part 2900; 

(2) Commercial organizations, forprofit entities, and foreign entities that 

are contractors or subcontractors must 

adhere to the Federal Acquisition 

Regulations (FAR), including 48 CFR 

part 31. 

(b) Allowable costs and cost 

principles. (1) Recipients and 

subrecipients of a Federal award under 

title I of WIOA and the Wagner-Peyser 

Act must follow the cost principles at 

subpart E and appendices III through IX 

of 2 CFR part 200, including any 

exceptions identified by the Department 

at 2 CFR part 2900. 

(2) Unless specified in the grant 

agreement, for those items requiring 

prior approval in the Uniform Guidance 

(e.g., selected items of cost, budget 

realignment), the authority to grant or 

deny approval is delegated to the 

Governor for programs funded under 

sec. 127 or 132 of WIOA or under the 

Wagner-Peyser Act. 

(3) Costs of workforce councils, 

advisory councils, Native American 

Employment and Training Councils, 

and Local WDB committees established 

under title I of WIOA are allowable. 

(c) Uniform administrative 

requirements. (1) Except as provided in 

paragraphs (c)(3) through (6) of this 

section, all recipients and subrecipients 

of a Federal award under title I of WIOA 

and under the Wagner-Peyser Act must 

follow 2 CFR part 200, including any 

exceptions identified by the Department 

at 2 CFR part 2900. 

(2) Unless otherwise specified in the 

grant agreement, expenditures must be 

reported on accrual basis. 

(3) In accordance with the 

requirements at 2 CFR 200.400(g), 

subrecipients may not earn or keep any 

profit resulting from Federal financial 

assistance, unless expressly authorized 

by the terms and conditions of the 

Federal award. 

(4) In addition to the requirements at 

2 CFR 200.317 through 200.326 (as 

appropriate), all procurement contracts 

between Local WDBs and units of State 

or local governments must be conducted 

only on a cost reimbursement basis. 

(5) In addition to the requirements at 

2 CFR 200.318, which address codes of 

conduct and conflict of interest the 

following applies: 

(i) A State WDB member, Local WDB 

member, or WDB standing committee 

member must neither cast a vote on, nor 

participate in any decision-making 

capacity, on the provision of services by 

such member (or any organization 

which that member directly represents), 

nor on any matter which would provide 

any direct financial benefit to that 

member or that member’s immediate 

family. 

(ii) Neither membership on the State 

WDB, the Local WDB, or a WDB 

standing committee, nor the receipt of 

WIOA funds to provide training and 

related services, by itself, violates these 

conflict of interest provisions. 

(iii) In accordance with the 

requirements at 2 CFR 200.112, 

recipients of Federal awards must 

disclose in writing any potential conflict 

of interest to the Department. 

Subrecipients must disclose in writing 

any potential conflict of interest to the 

recipient of grant funds. 

(6) The addition method, described at 

2 CFR 200.307, must be used for all 

program income earned under title I of 

WIOA and Wagner-Peyser Act grants. 

When the cost of generating program 

income has been charged to the 

program, the gross amount earned must 

be added to the program in which it was 

earned. However, the cost of generating 

program income must be subtracted 

from the amount earned to establish the 

net amount of program income available 

for use under the grants when these 

costs have not been charged to the 

program. 

(7) Any excess of revenue over costs 

incurred for services provided by a 

governmental or non-profit entity must 

be included in program income. 

(8) Interest income earned on funds 

received under title I of WIOA and the 

Wagner-Peyser Act must be included in 

program income. 

(9) On a fee-for-service basis, 

employers may use local area services, 

facilities, or equipment funded under 

title I of WIOA to provide employment 

and training activities to incumbent 

workers: 

(i) When the services, facilities, or 

equipment are not being used by eligible 

participants; 

(ii) If their use does not affect the 

ability of eligible participants to use the 

services, facilities, or equipment; and 

(iii) If the income generated from such 

fees is used to carry out programs 

authorized under this title. 

(d) Government-wide debarment and 

suspension, and government-wide drugfree workplace requirements. All WIOA 

title I and Wagner-Peyser Act grant 

recipients and subrecipients must 

comply with the government-wide 

requirements for debarment and 

suspension, and the government-wide 

requirements for a drug-free workplace 

in accordance with the Drug-Free 

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56416 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Workplace Act of 1988, 41 U.S.C. 8103 

et seq., and 2 CFR part 182. 

(e) Restrictions on lobbying. All WIOA 

title I and Wagner-Peyer grant recipients 

and subrecipients must comply with the 

restrictions on lobbying specified in 

WIOA sec. 195 and codified in the 

Department regulations at 29 CFR part 

93. 

(f) Buy-American. As stated in sec. 

502 of WIOA, all funds authorized in 

title I of WIOA and the Wagner-Peyser 

Act must be expended in compliance 

with secs. 8301 through 8303 of the Buy 

American Act (41 U.S.C. 8301–8305). 

(g) Nepotism. (1) No individual may 

be placed in a WIOA employment 

activity if a member of that person’s 

immediate family is directly supervised 

by or directly supervises that 

individual. 

(2) To the extent that an applicable 

State or local legal requirement 

regarding nepotism is more restrictive 

than this provision, such State or local 

requirement must be followed. 

(h) Mandatory disclosures. All WIOA 

title I and Wagner-Peyser Act recipients 

of Federal awards must disclose as 

required at 2 CFR 200.113, in a timely 

manner, in writing to the Federal 

awarding agency or pass-through entity 

all violations of Federal criminal law 

involving fraud, bribery, or gratuity 

violations potentially affecting the 

Federal award. Failure to make required 

disclosures can result in any of the 

remedies described in 2 CFR 200.338 

(Remedies for noncompliance), 

including suspension or debarment. 

§ 683.205 What administrative cost 

limitations apply to Workforce Innovation 

and Opportunity Act title I grants? 

(a) State formula grants. (1) As part of 

the 15 percent that a State may reserve 

for statewide activities, the State may 

spend up to 5 percent of the amount 

allotted under secs. 127(b)(1), 132(b)(1), 

and 132(b)(2) of WIOA for the 

administrative costs of statewide 

activities. 

(2) Local area expenditures for 

administrative purposes under WIOA 

formula grants are limited to no more 

than 10 percent of the amount allocated 

to the local area under secs. 128(b) and 

133(b) of WIOA. 

(3) The 5 percent reserved for 

statewide administrative costs and the 

10 percent reserved for local 

administrative costs may be used for 

administrative costs for any of the 

statewide youth workforce investment 

activities or statewide employment and 

training activities under secs. 127(b)(1), 

128(b), 132(b), and 133(b) of WIOA. 

(4) In a one-stop environment, 

administrative costs borne by other 

sources of funds, such as the WagnerPeyser Act, are not included in the 

administrative cost limit calculation. 

Each program’s administrative activities 

are chargeable to its own grant and 

subject to its own administrative cost 

limitations. 

(5) Costs of negotiating a MOU or 

infrastructure funding agreement under 

title I of WIOA are excluded from the 

administrative cost limitations. 

(b) Discretionary grants. Limits on 

administrative costs, if any, for 

programs operated under subtitle D of 

title I of WIOA will be identified in the 

grant or cooperative agreement. 

§ 683.210 What audit requirements apply 

to the use of Workforce Innovation and 

Opportunity Act title I and Wagner-Peyser 

Act funds? 

All recipients of WIOA title I and 

Wagner-Peyser Act funds that expend 

more than the minimum amounts 

specified in 2 CFR part 200, subpart F, 

in Federal awards during their fiscal 

year must have a program specific or 

single audit conducted in accordance 

with 2 CFR part 200, subpart F. 

(a) Commercial or for-profit. Grant 

recipients and subrecipients of title I 

and Wagner-Peyser Act funds that are 

commercial or for-profit entities must 

adhere to the requirements contained in 

2 CFR part 200, subpart F. 

(b) Subrecipients and contractors. An 

auditee may simultaneously be a 

recipient, a subrecipient, and a 

contractor depending on the substance 

of its agreements with Federal awarding 

agencies and pass-through entities. 

Federal awards expended as a recipient 

or subrecipient are subject to audit 

requirements under 2 CFR part 200, 

subpart F. 

(c) Contractors. The payments 

received for goods or services provided 

as a contractor are not Federal awards. 

Subrecipient and contractor 

determinations made under 2 CFR 

200.330 must be considered in 

determining whether payments 

constitute a Federal award or a payment 

for goods and services provided as a 

contractor. 

§ 683.215 What Workforce Innovation and 

Opportunity Act title I functions and 

activities constitute the costs of 

administration subject to the administrative 

cost limitation? 

(a) The costs of administration are 

expenditures incurred by State and 

Local WDBs, Regions, direct grant 

recipients, including State grant 

recipients under subtitle B of title I of 

WIOA, and recipients of awards under 

subtitle D of title I, as well as local grant 

recipients, local grant subrecipients, 

local fiscal agents and one-stop 

operators that are associated with those 

specific functions identified in 

paragraph (b) of this section and which 

are not related to the direct provision of 

workforce investment services, 

including services to participants and 

employers. These costs can be both 

personnel and non-personnel and both 

direct and indirect. 

(b) The costs of administration are the 

costs associated with performing the 

following functions: 

(1) Performing the following overall 

general administrative functions and 

coordination of those functions under 

title I of WIOA: 

(i) Accounting, budgeting, financial 

and cash management functions; 

(ii) Procurement and purchasing 

functions; 

(iii) Property management functions; 

(iv) Personnel management functions; 

(v) Payroll functions; 

(vi) Coordinating the resolution of 

findings arising from audits, reviews, 

investigations and incident reports; 

(vii) Audit functions; 

(viii) General legal services functions; 

(ix) Developing systems and 

procedures, including information 

systems, required for these 

administrative functions; and 

(x) Fiscal agent responsibilities; 

(2) Performing oversight and 

monitoring responsibilities related to 

WIOA administrative functions; 

(3) Costs of goods and services 

required for administrative functions of 

the program, including goods and 

services such as rental or purchase of 

equipment, utilities, office supplies, 

postage, and rental and maintenance of 

office space; 

(4) Travel costs incurred for official 

business in carrying out administrative 

activities; and 

(5) Costs of information systems 

related to administrative functions (for 

example, personnel, procurement, 

purchasing, property management, 

accounting, and payroll systems) 

including the purchase, systems 

development and operating costs of 

such systems. 

(c)(1) Awards to subrecipients or 

contractors that are solely for the 

performance of administrative functions 

are classified as administrative costs. 

(2) Personnel and related nonpersonnel costs of staff that perform 

both administrative functions specified 

in paragraph (b) of this section and 

programmatic services or activities must 

be allocated as administrative or 

program costs to the benefitting cost 

objectives/categories. 

(3) Specific costs charged to an 

overhead or indirect cost pool that can 

be identified directly as a program cost 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56417 

are to be charged as a program cost. 

Documentation of such charges must be 

maintained. 

(4) Except as provided at paragraph 

(c)(1) of this section, all costs incurred 

for functions and activities of 

subrecipients, other than those 

subrecipients listed in paragraph (a) of 

this section, and contractors are 

program costs. 

(5) Continuous improvement 

activities are charged to administration 

or program category based on the 

purpose or nature of the activity to be 

improved. Documentation of such 

charges must be maintained. 

(6) Costs of the following information 

systems including the purchase, systems 

development, and operational costs 

(e.g., data entry) are charged to the 

program category: 

(i) Tracking or monitoring of 

participant and performance 

information; 

(ii) Employment statistics 

information, including job listing 

information, job skills information, and 

demand occupation information; 

(iii) Performance and program cost 

information on eligible training 

providers, youth activities, and 

appropriate education activities; 

(iv) Local area performance 

information; and 

(v) Information relating to supportive 

services and unemployment insurance 

claims for program participants. 

(d) Where possible, entities identified 

in paragraph (a) of this section must 

make efforts to streamline the services 

in paragraphs (b)(1) through (5) of this 

section to reduce administrative costs 

by minimizing duplication and 

effectively using information technology 

to improve services. 

§ 683.220 What are the internal controls 

requirements for recipients and 

subrecipients of Workforce Innovation and 

Opportunity Act title I and Wagner-Peyser 

Act funds? 

(a) Recipients and subrecipients of 

WIOA title I and Wagner-Peyser Act 

funds must have an internal control 

structure and written policies in place 

that provide safeguards to protect 

personally identifiable information, 

records, contracts, grant funds, 

equipment, sensitive information, 

tangible items, and other information 

that is readily or easily exchanged in the 

open market, or that the Department or 

the recipient or subrecipient considers 

to be sensitive, consistent with 

applicable Federal, State and local 

privacy and confidentiality laws. 

Internal controls also must include 

reasonable assurance that the entity is: 

(1) Managing the award in compliance 

with Federal statutes, regulations, and 

the terms and conditions of the Federal 

award; 

(2) Complying with Federal statutes, 

regulations, and the terms and 

conditions of the Federal awards; 

(3) Evaluating and monitoring the 

recipient’s and subrecipient’s 

compliance with WIOA, regulations and 

the terms and conditions of Federal 

awards; and 

(4) Taking prompt action when 

instances of noncompliance are 

identified. 

(b) Internal controls should be in 

compliance with the guidance in 

‘‘Standards for Internal Control in the 

Federal Government’’ issued by the 

Comptroller General of the United 

States and the ‘‘Internal Control 

Integrated Framework’’, issued by the 

Committee of Sponsoring Organizations 

of the Treadway Commission (COSO). 

See 2 CFR 200.303. 

§ 683.225 What requirements relate to the 

enforcement of the Military Selective 

Service Act? 

The requirements relating to the 

enforcement of the Military Selective 

Service Act are found at WIOA sec. 

189(h). 

§ 683.230 Are there special rules that 

apply to veterans when income is a factor 

in eligibility determinations? 

Yes, under 38 U.S.C. 4213, when past 

income is an eligibility determinant for 

Federal employment or training 

programs, any amounts received as 

military pay or allowances by any 

person who served on active duty, and 

certain other specified benefits must be 

disregarded for the veteran and for other 

individuals for whom those amounts 

would normally be applied in making 

an eligibility determination. This 

applies when determining if a person is 

a ‘‘low-income individual’’ for 

eligibility purposes (for example, in the 

WIOA youth, or NFJP programs). Also, 

it applies when income is used as a 

factor when a local area provides 

priority of service for ‘‘low-income 

individuals’’ with title I WIOA funds 

(see §§ 680.600 and 680.650 of this 

chapter). A veteran must still meet each 

program’s eligibility criteria to receive 

services under the respective 

employment and training program. 

§ 683.235 May Workforce Innovation and 

Opportunity Act title I funds be spent for 

construction? 

WIOA title I funds must not be spent 

on construction, purchase of facilities or 

buildings, or other capital expenditures 

for improvements to land or buildings, 

except with the prior written approval 

of the Secretary. 

§ 683.240 What are the instructions for 

using real property with Federal equity? 

(a) SESA properties. Federal equity 

acquired in real property through grants 

to States awarded under title III of the 

Social Security Act or the WagnerPeyser Act, including State Employment 

Security Agency (SESA) real property, is 

transferred to the States that used the 

grant to acquire such equity. 

(1) The portion of any real property 

that is attributable to the Federal equity 

transferred under this section must be 

used to carry out activities authorized 

under WIOA, title III of the Social 

Security Act (Unemployment 

Compensation program), or the WagnerPeyser Act. 

(2) When such real property is no 

longer needed for the activities 

described in paragraph (a)(1) of this 

section, the States must request 

disposition instructions from the Grant 

Officer prior to disposition or sale of the 

property. The portion of the proceeds 

from the disposition of the real property 

that is attributable to the Federal equity 

transferred under this section must be 

used to carry out activities authorized 

under WIOA, title III of the Social 

Security Act, or the Wagner-Peyser Act. 

(3) States must not use funds awarded 

under WIOA, title III of the Social 

Security Act, or the Wagner-Peyser Act 

to amortize the costs of real property 

that is purchased by any State on or 

after February 15, 2007, the date of 

enactment of the Revised Continuing 

Appropriations Resolution, 2007. 

(4) Properties occupied by the 

Wagner-Peyser Act Employment Service 

must be colocated with one-stop 

centers. 

(b) Reed Act-funded properties. 

Properties with Reed Act equity may be 

used for the one-stop service delivery 

system to the extent that the 

proportionate share of Reed Act equity 

is less than or equal to the proportionate 

share of occupancy by the 

Unemployment Compensation and 

Wagner-Peyser Act programs in such 

properties. When such real property is 

no longer needed for authorized 

purposes, the State must request 

disposition instructions from the Grant 

Officer prior to disposition or sale. The 

portion of the proceeds from the 

disposition or sale of the real property 

that is attributable to the Reed Act 

equity must be returned to the State’s 

account in the Unemployment Trust 

Fund (UTF) and used in accordance 

with Department-issued guidance. 

(c) Job Training Partnership Act and 

Workforce Investment Act-funded 

properties. Real property that was 

purchased with WIA funds or that was 

transferred to WIA now is transferred to 

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the WIOA title I programs and must be 

used for WIOA purposes. When such 

real property is no longer needed for the 

activities of WIOA, the recipient or 

subrecipient must seek instructions 

from the Grant Officer or State (in the 

case of a subrecipient) prior to 

disposition or sale. 

§ 683.245 Are employment generating 

activities, or similar activities, allowable 

under title I of the Workforce Innovation and 

Opportunity Act? 

(a) Under sec. 181(e) of WIOA, title I 

funds must not be spent on employment 

generating activities, investment in 

revolving loan funds, capitalization of 

businesses, investment in contract 

bidding resource centers, economic 

development activities, or similar 

activities, unless they are directly 

related to training for eligible 

individuals. For purposes of this 

prohibition, employer outreach and job 

development activities are directly 

related to training for eligible 

individuals. 

(b) These employer outreach and job 

development activities may include: 

(1) Contacts with potential employers 

for the purpose of placement of WIOA 

participants; 

(2) Participation in business 

associations (such as chambers of 

commerce); joint labor management 

committees, labor associations, and 

resource centers; 

(3) WIOA staff participation on 

economic development boards and 

commissions, and work with economic 

development agencies to: 

(i) Provide information about WIOA 

programs; 

(ii) Coordinate activities in a region or 

local area to promote entrepreneurial 

training and microenterprise services; 

(iii) Assist in making informed 

decisions about community job training 

needs; and 

(iv) Promote the use of first source 

hiring agreements and enterprise zone 

vouchering services; 

(4) Active participation in local 

business resource centers (incubators) to 

provide technical assistance to small 

businesses and new businesses to 

reduce the rate of business failure; 

(5) Subscriptions to relevant 

publications; 

(6) General dissemination of 

information on WIOA programs and 

activities; 

(7) The conduct of labor market 

surveys; 

(8) The development of on-the-job 

training opportunities; and 

(9) Other allowable WIOA activities in 

the private sector. 

§ 683.250 What other activities are 

prohibited under title I of the Workforce 

Innovation and Opportunity Act? 

(a) WIOA title I funds must not be 

spent on: 

(1) The wages of incumbent 

employees during their participation in 

economic development activities 

provided through a statewide workforce 

development system. 

(2) Public service employment, except 

as specifically authorized under title I of 

WIOA. 

(3) Expenses prohibited under any 

other Federal, State or local law or 

regulation. 

(4) Subawards or contracts with 

parties that are debarred, suspended, or 

otherwise excluded from or ineligible 

for participation in Federal programs or 

activities. 

(5) Contracts with persons falsely 

labeling products made in America. 

(b) WIOA formula funds available to 

States and local areas under title I, 

subtitle B must not be used for foreign 

travel. 

§ 683.255 What are the limitations related 

to religious activities of title I of the 

Workforce Innovation and Opportunity Act? 

(a) Section 188(a)(3) of WIOA 

prohibits the use of funds to employ 

participants to carry out the 

construction, operation, or maintenance 

of any part of any facility used for 

sectarian instruction or as a place for 

religious worship with the exception of 

maintenance of facilities that are not 

primarily used for instruction or 

worship and are operated by 

organizations providing services to 

WIOA participants. 

(b) 29 CFR part 2, subpart D, governs 

the circumstances under which 

Department support, including WIOA 

title I financial assistance, may be used 

to employ or train participants in 

religious activities. Under that subpart, 

such assistance may be used for such 

employment or training only when the 

assistance is provided indirectly within 

the meaning of the Establishment Clause 

of the U.S. Constitution, and not when 

the assistance is provided directly. That 

subpart also contains requirements 

related to equal treatment in Department 

of Labor programs for religious 

organizations, and to protecting the 

religious liberty of Department of Labor 

social service providers and 

beneficiaries. (29 CFR part 2, subpart 

D—Equal Treatment in Department of 

Labor Programs for Religious 

Organizations, Protection of Religious 

Liberty of Department of Labor Social 

Service Providers and Beneficiaries). 

§ 683.260 What prohibitions apply to the 

use of Workforce Innovation and 

Opportunity Act title I funds to encourage 

business relocation? 

(a) Prohibition. Section 181(d) of 

WIOA states that funds must not be 

used or proposed to be used for: 

(1) The encouragement or inducement 

of a business, or part of a business, to 

relocate from any location in the United 

States, if the relocation results in any 

employee losing his or her job at the 

original location; 

(2) Customized training, skill training, 

on-the-job training, incumbent worker 

training, transitional employment, or 

company specific assessments of job 

applicants for or employees of any 

business or part of a business that has 

relocated from any location in the 

United States, until the company has 

operated at that location for 120 days, if 

the relocation has resulted in any 

employee losing his or her jobs at the 

original location. 

(b) Pre-award review. To verify that a 

business establishment which is new or 

expanding is not, in fact, relocating 

employment from another area, 

standardized pre-award review criteria 

developed by the State must be 

completed and documented jointly by 

the local area and the business 

establishment as a prerequisite to WIOA 

assistance. 

(1) The review must include names 

under which the establishment does 

business, including predecessors and 

successors in interest; the name, title, 

and address of the company official 

certifying the information, and whether 

WIOA assistance is sought in 

connection with past or impending job 

losses at other facilities, including a 

review of whether WARN notices 

relating to the employer have been filed. 

(2) The review may include 

consultations with labor organizations 

and others in the affected local area(s). 

§ 683.265 What procedures and sanctions 

apply to violations of this part? 

(a) The Grant Officer will promptly 

review and take appropriate action on 

alleged violations of the provisions 

relating to: 

(1) Construction (§ 683.235); 

(2) Employment generating activities 

(§ 683.245); 

(3) Other prohibited activities 

(§ 683.250); 

(4) The limitation related to religious 

activities (§ 683.255); and 

(5) The use of WIOA title I funds to 

encourage business relocation 

(§ 683.260). 

(b) Procedures for the investigation 

and resolution of the violations are 

provided under the Grant Officer’s 

resolution process at § 683.440. 

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(c) Sanctions and remedies are 

provided for under sec. 184(c) of WIOA 

for violations of the provisions relating 

to: 

(1) Construction (§ 683.235); 

(2) Employment generating activities 

(§ 683.245); 

(3) Other prohibited activities 

(§ 683.250); and 

(4) The limitation related to religious 

activities (§ 683.255(b)). 

(d) Sanctions and remedies are 

provided for in sec. 181(d)(3) of WIOA 

for violations of § 683.260, which 

addresses business relocation. 

(e) Violations of § 683.255(a) will be 

handled in accordance with the 

Department’s nondiscrimination 

regulations implementing sec. 188 of 

WIOA, codified at 29 CFR part 38. 

§ 683.270 What safeguards are there to 

ensure that participants in Workforce 

Innovation and Opportunity Act 

employment and training activities do not 

displace other employees? 

(a) A participant in a program or 

activity authorized under title I of 

WIOA must not displace (including a 

partial displacement, such as a 

reduction in the hours of non-overtime 

work, wages, or employment benefits) 

any currently employed employee (as of 

the date of the participation). 

(b) A program or activity authorized 

under title I of WIOA must not impair 

existing contracts for services or 

collective bargaining agreements. When 

a program or activity authorized under 

title I of WIOA would be inconsistent 

with a collective bargaining agreement, 

the appropriate labor organization and 

employer must provide written 

concurrence before the program or 

activity begins. 

(c) A participant in a program or 

activity under title I of WIOA may not 

be employed in or assigned to a job if: 

(1) Any other individual is on layoff 

from the same or any substantially 

equivalent job; 

(2) The employer has terminated the 

employment of any regular, 

unsubsidized employee or otherwise 

caused an involuntary reduction in its 

workforce with the intention of filling 

the vacancy so created with the WIOA 

participant; or 

(3) The job is created in a promotional 

line that infringes in any way on the 

promotional opportunities of currently 

employed workers as of the date of the 

participation. 

(d) Regular employees and program 

participants alleging displacement may 

file a complaint under the applicable 

grievance procedures found at 

§ 683.600. 

§ 683.275 What wage and labor standards 

apply to participants in activities under title 

I of the Workforce Innovation and 

Opportunity Act? 

(a) Individuals in on-the-job training 

or individuals employed in activities 

under title I of WIOA must be 

compensated at the same rates, 

including periodic increases, as trainees 

or employees who are similarly situated 

in similar occupations by the same 

employer and who have similar 

training, experience, and skills. Such 

rates must be in accordance with 

applicable law, but may not be less than 

the higher of the rate specified in sec. 

6(a)(1) of the Fair Labor Standards Act 

of 1938 (29 U.S.C. 206(a)(1)) or the 

applicable State or local minimum wage 

law. 

(b) The reference in paragraph (a) of 

this section to sec. 6(a)(1) of the Fair 

Labor Standards Act of 1938 (29 U.S.C. 

206(a)(1)) is not applicable for 

individuals in territorial jurisdictions in 

which sec. 6(a)(1) of the Fair Labor 

Standards Act of 1938 (29 U.S.C. 

206(a)(1)) does not apply. 

(c) Individuals in on-the-job training 

or individuals employed in programs 

and activities under title I of WIOA 

must be provided benefits and working 

conditions at the same level and to the 

same extent as other trainees or 

employees working a similar length of 

time and doing the same type of work. 

(d) Allowances, earnings, and 

payments to individuals participating in 

programs under title I of WIOA are not 

considered as income for purposes of 

determining eligibility for and the 

amount of income transfer and in-kind 

aid furnished under any Federal or 

Federally-assisted program based on 

need, other than as provided under the 

Social Security Act (42 U.S.C. 301 et 

seq.). 

§ 683.280 What health and safety 

standards apply to the working conditions 

of participants in activities under title I of 

the Workforce Innovation and Opportunity 

Act? 

(a) Health and safety standards 

established under Federal and State law 

otherwise applicable to working 

conditions of employees are equally 

applicable to working conditions of 

participants engaged in programs and 

activities under title I of WIOA. 

(b)(1) To the extent that a State 

workers’ compensation law applies, 

workers’ compensation must be 

provided to participants in programs 

and activities under title I of WIOA on 

the same basis as the compensation is 

provided to other individuals in the 

State in similar employment. 

(2) If a State workers’ compensation 

law applies to a participant in work 

experience, workers’ compensation 

benefits must be available for injuries 

suffered by the participant in such work 

experience. If a State workers’ 

compensation law does not apply to a 

participant in work experience, 

insurance coverage must be secured for 

injuries suffered by the participant in 

the course of such work experience. 

§ 683.285 What are a recipient’s 

obligations to ensure nondiscrimination 

and equal opportunity, and what are a 

recipient’s obligations with respect to 

religious activities? 

(a)(1) Recipients, as defined in 29 CFR 

37.4, must comply with the 

nondiscrimination and equal 

opportunity provisions of WIOA sec. 

188 and its implementing regulations, 

codified at 29 CFR part 38. Under that 

definition, the term ‘‘recipients’’ 

includes State and Local WDBs, onestop operators, service providers, Job 

Corps contractors, and subrecipients, as 

well as other types of individuals and 

entities. 

(2) Nondiscrimination and equal 

opportunity requirements and 

procedures, including complaint 

processing and compliance reviews, are 

governed by the regulations 

implementing sec. 188 of WIOA, 

codified at 29 CFR part 38, and are 

administered and enforced by the 

Department of Labor Civil Rights Center. 

(3) Financial assistance provided 

under title I of WIOA may be used to 

meet a recipient’s obligation to provide 

physical and programmatic accessibility 

and reasonable accommodation/

modification in regard to the WIOA 

program, as required by sec. 504 of the 

Rehabilitation Act of 1973, as amended; 

the Americans with Disabilities Act of 

1990, as amended; sec. 188 of WIOA; 

and the regulations implementing these 

statutory provisions. 

(4) No person may discriminate 

against an individual who is a 

participant in a program or activity that 

receives funds under title I of WIOA, 

with respect to the terms and conditions 

affecting, or rights provided to, the 

individual, solely because of the status 

of the individual as a participant. 

(5) Participation in programs and 

activities or receiving funds under title 

I of WIOA must be available to citizens 

and nationals of the United States, 

lawfully admitted permanent resident 

aliens, refugees, asylees, and parolees, 

and other immigrants authorized by the 

Secretary of Homeland Security or the 

Secretary’s designee to work in the 

United States. 

(b)(1) Title 29 CFR part 2, subpart D, 

governs the circumstances under which 

recipients may use Department support, 

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56420 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

including WIOA title I and WagnerPeyser Act financial assistance, to 

employ or train participants in religious 

activities. As explained in that subpart, 

such assistance may be used for such 

employment or training only when the 

assistance is provided indirectly within 

the meaning of the Establishment Clause 

of the U.S. Constitution, and not when 

the assistance is provided directly. As 

explained in that subpart, assistance 

provided through an Individual 

Training Account is generally 

considered indirect, and other 

mechanisms also may be considered 

indirect. See also § 683.255 and 29 CFR 

37.6(f)(1). 

(2) Title 29 CFR part 2, subpart D, also 

contains requirements related to equal 

treatment of religious organizations in 

Department of Labor programs, and to 

protection of religious liberty for 

Department of Labor social service 

providers and beneficiaries. Limitations 

on the employment of participants 

under WIOA title I to carry out the 

construction, operation, or maintenance 

of any part of any facility used or to be 

used for religious instruction or as a 

place of religious worship are described 

at 29 CFR 37.6(f)(2). See also WIOA sec. 

188(a)(3). 

§ 683.290 Are there salary and bonus 

restrictions in place for the use of title I of 

Workforce Innovation and Opportunity Act 

and Wagner-Peyser Act funds? 

(a) No funds available under title I of 

WIOA or the Wagner-Peyser Act may be 

used by a recipient or subrecipient of 

such funds to pay the salary and 

bonuses of an individual, either as 

direct costs or indirect costs, at a rate in 

excess of the annual rate of basic pay 

prescribed for level II of the Executive 

Schedule under 5 U.S.C. 5313, which 

can be found at https://www.opm.gov/. 

(b) In instances where funds awarded 

under title I of WIOA or the WagnerPeyser Act pay only a portion of the 

salary or bonus, the WIOA title I or 

Wagner-Peyser Act funds may only be 

charged for the share of the employee’s 

salary or bonus attributable to the work 

performed on the WIOA title I or 

Wagner-Peyser Act grant. That portion 

cannot exceed the proportional 

Executive level II rate. The restriction 

applies to the sum of salaries and 

bonuses charged as either direct costs or 

indirect costs under title I of WIOA and 

the Wagner-Peyser Act. 

(c) The limitation described in 

paragraph (a) of this section will not 

apply to contractors (as defined in 2 

CFR 200.23) providing goods and 

services. In accordance with 2 CFR 

200.330, characteristics indicative of 

contractor are the following: 

(1) Provides the goods and services 

within normal business operations; 

(2) Provides similar goods or services 

to many different purchasers; 

(3) Normally operates in a competitive 

environment; 

(4) Provides goods or services that are 

ancillary to the operation of the Federal 

program; and 

(5) Is not subject to compliance 

requirements of the Federal program as 

a result of the agreement, though similar 

requirements may apply for other 

reasons. 

(d) If a State is a recipient of such 

funds, the State may establish a lower 

limit than is provided in paragraph (a) 

of this section for salaries and bonuses 

of those receiving salaries and bonuses 

from a subrecipient of such funds, 

taking into account factors including the 

relative cost of living in the State, the 

compensation levels for comparable 

State or local government employees, 

and the size of the organizations that 

administer the Federal programs 

involved. 

(e) When an individual is working for 

the same recipient or subrecipient in 

multiple offices that are funded by title 

I of WIOA or the Wagner-Peyser Act, the 

recipient or subrecipient must ensure 

that the sum of the individual’s salary 

and bonus does not exceed the 

prescribed limit in paragraph (a) of this 

section. 

§ 683.295 Is earning of profit allowed 

under the Workforce Innovation and 

Opportunity Act? 

(a)(1) Under secs. 121(d), 122(a) and 

134(b) of WIOA, for-profit entities are 

eligible to be one-stop operators, service 

providers, and eligible training 

providers. 

(2) Where for-profit entities are onestop operators, service providers, and 

eligible training providers, and those 

entities are recipients of Federal 

financial assistance, the recipient or 

subrecipient and the for-profit entity 

must follow 2 CFR 200.323. 

(b) For programs authorized by other 

sections of WIOA, 2 CFR 200.400(g) 

prohibits earning and keeping of profit 

in Federal financial assistance unless 

expressly authorized by the terms and 

conditions of the Federal award. 

(c) Income earned by a public or 

private nonprofit entity may be retained 

by such entity only if such income is 

used to continue to carry out the 

program. 

Subpart C—Reporting Requirements 

§ 683.300 What are the reporting 

requirements for programs funded under 

the Workforce Innovation and Opportunity 

Act? 

(a) General. All States and other direct 

grant recipients must report financial, 

participant, and other performance data 

in accordance with instructions issued 

by the Secretary. Reports, records, 

plans, or any other data required to be 

submitted or made available must, to 

the extent practicable, be submitted or 

made available through electronic 

means. Reports will not be required to 

be submitted more frequently than 

quarterly within a time period specified 

in the reporting instructions. 

(b) Subrecipient reporting. (1) For the 

annual eligible training provider 

performance reports described in 

§ 677.230 of this chapter and local area 

performance reports described in 

§ 677.205 of this chapter, the State must 

require the template developed under 

WIOA sec. 116(d)(1) to be used. 

(2) For financial reports and 

performance reports other than those 

described in paragraph (b)(1) of this 

section, a State or other grant recipient 

may impose different forms or formats, 

shorter due dates, and more frequent 

reporting requirements on 

subrecipients. 

(3) If a State intends to impose 

different reporting requirements on 

subrecipients, it must describe those 

reporting requirements in its State 

WIOA Plan. 

(c) Financial reports. (1) Each grant 

recipient must submit financial reports 

on a quarterly basis. 

(2) Local WDBs will submit quarterly 

financial reports to the Governor. 

(3) Each State will submit to the 

Secretary a summary of the reports 

submitted to the Governor pursuant to 

paragraph (c)(2) of this section. 

(4) Reports must include cash on 

hand, obligations, expenditures, any 

income or profits earned, including 

such income or profits earned by 

subrecipients, indirect costs, recipient 

share of expenditures and any 

expenditures incurred (such as stand-in 

costs) by the recipient that are otherwise 

allowable except for funding 

limitations. 

(5) Reported expenditures, matching 

funds, and program income, including 

any profits earned, must be reported on 

the accrual basis of accounting and 

cumulative by fiscal year of 

appropriation. If the recipient’s 

accounting records are not normally 

kept on the accrual basis of accounting, 

the recipient must develop accrual 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56421 

information through an analysis of the 

documentation on hand. 

(d) Performance reports. (1) States 

must submit an annual performance 

report for each of the core workforce 

programs administered under WIOA as 

required by sec. 116(d) of WIOA and in 

accordance with part 677, subpart A, of 

this chapter. 

(2) For all programs authorized under 

subtitle D of WIOA, each grant recipient 

must complete reports on performance 

indicators or goals specified in its grant 

agreement. 

(e) Due date. (1) For the core 

programs, performance reports are due 

on the date set forth in guidance. 

(2) Financial reports and all 

performance and data reports not 

described in paragraph (e)(1) of this 

section are due no later than 45 days 

after the end of each quarter unless 

otherwise specified in reporting 

instructions. Closeout financial reports 

are required no later than 90 calendar 

days after the expiration of a period of 

performance or period of fund 

availability (whichever comes first) and/ 

or termination of the grant. If required 

by the terms and conditions of the grant, 

closeout performance reports are 

required no later than 90 calendar days 

after the expiration of a period of 

performance or period of fund 

availability (whichever comes first) and/ 

or termination of the grant. 

(f) Format. All reports whenever 

practicable should be collected, 

transmitted, and stored in open and 

machine readable formats. 

(g) Systems compatibility. States and 

grant recipients will develop strategies 

for aligning data systems based upon 

guidelines issued by the Secretary of 

Labor and the Secretary of Education. 

(h) Additional reporting. At the Grant 

Officer’s or Secretary’s discretion, 

reporting may be required more 

frequently of its grant recipients. Such 

requirement is consistent with 2 CFR 

parts 200 and 2900. 

Subpart D—Oversight and Resolution 

of Findings 

§ 683.400 What are the Federal and State 

monitoring and oversight responsibilities? 

(a) The Secretary is authorized to 

monitor all recipients and subrecipients 

of all Federal financial assistance 

awarded and funds expended under 

title I of WIOA and the Wagner-Peyser 

Act to determine compliance with these 

statutes and Department regulations, 

and may investigate any matter deemed 

necessary to determine such 

compliance. Federal oversight will be 

conducted primarily at the recipient 

level. 

(b) As funds allow, in each fiscal year, 

the Secretary also will conduct in-depth 

reviews in several States, including 

financial and performance monitoring, 

to assure that funds are spent in 

accordance with WIOA and the WagnerPeyser Act. 

(c)(1) Each recipient and subrecipient 

must monitor grant-supported activities 

in accordance with 2 CFR part 200. 

(2) In the case of grants under secs. 

128 and 133 of WIOA, the Governor 

must develop a State monitoring system 

that meets the requirements of 

§ 683.410(b). The Governor must 

monitor Local WDBs and regions 

annually for compliance with applicable 

laws and regulations in accordance with 

the State monitoring system. Monitoring 

must include an annual review of each 

local area’s compliance with 2 CFR part 

200. 

(d) Documentation of monitoring, 

including monitoring reports and audit 

work papers, conducted under 

paragraph (c) of this section, along with 

corrective action plans, must be made 

available for review upon request of the 

Secretary, Governor, or a representative 

of the Federal government authorized to 

request the information. 

§ 683.410 What are the oversight roles and 

responsibilities of recipients and 

subrecipients of Federal financial 

assistance awarded under title I of the 

Workforce Innovation and Opportunity Act 

and the Wagner-Peyser Act? 

(a) Each recipient and subrecipient of 

funds under title I of WIOA and under 

the Wagner-Peyser Act must conduct 

regular oversight and monitoring of its 

WIOA and Wagner-Peyser Act 

program(s) and those of its subrecipients 

and contractors as required under title 

I of WIOA and the Wagner-Peyser Act, 

as well as under 2 CFR part 200, 

including 2 CFR 200.327, 200.328, 

200.330, 200.331, and Department 

exceptions at 2 CFR part 2900, in order 

to: 

(1) Determine that expenditures have 

been made against the proper cost 

categories and within the cost 

limitations specified in WIOA and the 

regulations in this part; 

(2) Determine whether there is 

compliance with other provisions of 

WIOA and the WIOA regulations and 

other applicable laws and regulations; 

(3) Assure compliance with 2 CFR 

part 200; and 

(4) Determine compliance with the 

nondiscrimination, disability, and equal 

opportunity requirements of sec. 188 of 

WIOA, including the Assistive 

Technology Act of 1998 (29 U.S.C. 

3003). 

(b) State roles and responsibilities for 

grants under secs. 128 and 133 of 

WIOA: 

(1) The Governor is responsible for 

the development of the State monitoring 

system. The Governor must be able to 

demonstrate, through a monitoring plan 

or otherwise, that the State monitoring 

system meets the requirements of 

paragraph (b)(2) of this section. 

(2) The State monitoring system must: 

(i) Provide for annual on-site 

monitoring reviews of local areas’ 

compliance with 2 CFR part 200, as 

required by sec. 184(a)(3) of WIOA; 

(ii) Ensure that established policies to 

achieve program performance and 

outcomes meet the objectives of WIOA 

and the WIOA regulations; 

(iii) Enable the Governor to determine 

if subrecipients and contractors have 

demonstrated substantial compliance 

with WIOA and Wagner-Peyser Act 

requirements; 

(iv) Enable the Governor to determine 

whether a local plan will be 

disapproved for failure to make 

acceptable progress in addressing 

deficiencies, as required in sec. 108(e) of 

WIOA; and 

(v) Enable the Governor to ensure 

compliance with the nondiscrimination, 

disability, and equal opportunity 

requirements of sec. 188 of WIOA, 

including the Assistive Technology Act 

of 1998 (29 U.S.C. 3003). 

(3) The State must conduct an annual 

on-site monitoring review of each local 

area’s compliance with 2 CFR part 200, 

as required by sec. 184(a)(4) of WIOA. 

(4) The Governor must require that 

prompt corrective action be taken if any 

substantial violation of standards 

identified in paragraph (b)(2) or (3) of 

this section is found. 

(5) The Governor must impose the 

sanctions provided in secs. 184(b)–(c) of 

WIOA in the event of a subrecipient’s 

failure to take required corrective action 

required under paragraph (b)(4) of this 

section. 

(6) The Governor may issue additional 

requirements and instructions to 

subrecipients on monitoring activities. 

(7) The Governor must certify to the 

Secretary every 2 years that: 

(i) The State has implemented 2 CFR 

part 200; 

(ii) The State has monitored local 

areas to ensure compliance with 2 CFR 

part 200, including annual certifications 

and disclosures as outlined in 2 CFR 

200.113, Mandatory Disclosures. Failure 

to do so may result in remedies 

described under 2 CFR 200.338, 

including suspension and debarment; 

and 

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56422 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

(iii) The State has taken appropriate 

corrective action to secure such 

compliance. 

§ 683.420 What procedures apply to the 

resolution of findings arising from audits, 

investigations, monitoring, and oversight 

reviews? 

(a) Resolution of subrecipient-level 

findings. (1) The Governor or direct 

grant recipient is responsible for 

resolving findings that arise from the 

monitoring reviews, investigations, 

other Federal monitoring reviews, and 

audits (including under 2 CFR part 200) 

of subrecipients awarded funds through 

title I of WIOA or the Wagner-Peyser 

Act. 

(i) A State or direct grant recipient 

must utilize the written monitoring and 

audit resolution, debt collection and 

appeal procedures that it uses for other 

Federal grant programs. 

(ii) If a State or direct grant recipient 

does not have such written procedures, 

it must prescribe standards and 

procedures to be used for this grant 

program. 

(2) For subrecipients awarded funds 

through a recipient of grant funds under 

subtitle D of title I of WIOA, the direct 

recipient of the grant funds must have 

written monitoring and resolution 

procedures in place that are consistent 

with 2 CFR part 200. 

(b) Resolution of State and other 

direct recipient-level findings. (1) The 

Secretary is responsible for resolving 

findings that arise from Federal audits, 

monitoring reviews, investigations, 

incident reports, and audits under 2 

CFR part 200 for direct recipients of 

Federal awards under title I of WIOA 

and the Wagner-Peyser Act, as amended 

by WIOA title III. 

(2) The Secretary will use the 

Department audit resolution process, 

consistent with 2 CFR part 200 (and 

Department modifications at 2 CFR part 

2900), and Grant Officer Resolution 

provisions of § 683.440, as appropriate. 

(3) A final determination issued by a 

Grant Officer under this process may be 

appealed to the Department of Labor 

Office of Administrative Law Judges 

under the procedures at § 683.800. 

(c) Resolution of nondiscrimination 

findings. Findings arising from 

investigations or reviews conducted 

under nondiscrimination laws will be 

resolved in accordance with WIOA sec. 

188 of WIOA and the Department of 

Labor nondiscrimination regulations 

implementing sec. 188 of WIOA, 

codified at 29 CFR part 38. 

§ 683.430 How does the Secretary resolve 

investigative and monitoring findings? 

(a) As a result of an investigation, onsite visit, other monitoring, or an audit 

(i.e., Single Audit, OIG Audit, GAO 

Audit, or other audit), the Secretary will 

notify the direct recipient of the Federal 

award of the findings of the 

investigation and give the direct 

recipient a period of time (not more 

than 60 days) to comment and to take 

appropriate corrective actions. 

(1) Adequate resolution. The Grant 

Officer in conjunction with the Federal 

project officer, reviews the complete file 

of the monitoring review, monitoring 

report, or final audit report and the 

recipient’s response and actions under 

paragraph (a) of this section. The Grant 

Officer’s review takes into account the 

sanction provisions of secs. 184(b)–(c) of 

WIOA. If the Grant Officer agrees with 

the recipient’s handling of the situation, 

the Grant Officer so notifies the 

recipient. This notification constitutes 

final agency action. 

(2) Inadequate resolution. If the direct 

recipient’s response and actions to 

resolve the findings are found to be 

inadequate, the Grant Officer will begin 

the Grant Officer resolution process 

under § 683.440. 

(b) Audits from 2 CFR part 200 will 

be resolved through the Grant Officer 

resolution process, as discussed in 

§ 683.440. 

§ 683.440 What is the Grant Officer 

resolution process? 

(a) General. When the Grant Officer is 

dissatisfied with the a recipient’s 

disposition of an audit or other 

resolution of findings (including those 

arising out of site visits, incident reports 

or compliance reviews), or with the 

recipient’s response to findings 

resulting from investigations or 

monitoring reports, the initial and final 

determination process as set forth in 

this section is used to resolve the 

matter. 

(b) Initial determination. The Grant 

Officer makes an initial determination 

on the findings for both those matters 

where there is agreement and those 

where there is disagreement with the 

recipient’s resolution, including the 

allowability of questioned costs or 

activities. This initial determination is 

based upon the requirements of WIOA, 

the Wagner-Peyser Act, and applicable 

regulations, and the terms and 

conditions of the grants or other 

agreements under the award. 

(c) Informal resolution. Except in an 

emergency situation, when the Secretary 

invokes the authority described in sec. 

184(e) of WIOA, the Grant Officer may 

not revoke a recipient’s grant in whole 

or in part, nor institute corrective 

actions or sanctions, without first 

providing the recipient with an 

opportunity to present documentation 

or arguments to resolve informally those 

matters in dispute contained in the 

initial determination. The initial 

determination must provide for an 

informal resolution period of at least 60 

days from issuance of the initial 

determination. If the matters are 

resolved informally, the Grant Officer 

must issue a final determination under 

paragraph (d) of this section which 

notifies the parties in writing of the 

nature of the resolution and may close 

the file. 

(d) Final determination. (1) Upon 

completion of the informal resolution 

process, the Grant Officer provides each 

party with a written final determination 

by certified mail, return receipt 

requested. For audits of recipient-level 

entities and other recipients which 

receive WIOA funds directly from the 

Department, ordinarily, the final 

determination is issued not later than 

180 days from the date that the Office 

of Inspector General (OIG) issues the 

final approved audit report to the 

Employment and Training 

Administration. For audits of 

subrecipients conducted by the OIG, 

ordinarily the final determination is 

issued not later than 360 days from the 

date the OIG issues the final approved 

audit report to ETA. 

(2) A final determination under this 

paragraph (d) must: 

(i) Indicate whether efforts to resolve 

informally matters contained in the 

initial determination have been 

unsuccessful; 

(ii) List those matters upon which the 

parties continue to disagree; 

(iii) List any modifications to the 

factual findings and conclusions set 

forth in the initial determination and 

the rationale for such modifications; 

(iv) Establish a debt, if appropriate; 

(v) Require corrective action, when 

needed; 

(vi) Determine liability, method of 

restitution of funds, and sanctions; and 

(vii) Offer an opportunity for a 

hearing in accordance with § 683.800. 

(3) Unless a hearing is requested, a 

final determination under this 

paragraph (d) is final agency action and 

is not subject to further review. 

Subpart E—Pay-for-Performance 

Contract Strategies 

§ 683.500 What is a Workforce Innovation 

and Opportunity Act Pay-for-Performance 

contract strategy? 

(a) A WIOA Pay-for-Performance 

contract strategy is a specific type of 

performance-based contract strategy that 

has four distinct characteristics: 

(1) It is a strategy to use WIOA Payfor-Performance contracts as they are 

described in § 683.510; 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56423 

(2) It must include the identification 

of the workforce development problem 

and target populations for which a local 

area will pursue a WIOA Pay-forPerformance contract strategy; the 

outcomes the local area would hope to 

achieve through a Pay-for-Performance 

contract relative to baseline 

performance; and the acceptable cost to 

government associated with achieving 

these outcomes; 

(3) It must include a strategy for 

independently validating the 

performance outcomes achieved under 

each contract within the strategy prior 

to payment occurring; and 

(4) It must include a description of 

how the State or local area will 

reallocate funds to other activities under 

the contract strategy in the event a 

service provider does not achieve 

performance benchmarks under a WIOA 

Pay-for-Performance contract. 

(b) Prior to the implementation of a 

WIOA Pay-for-Performance contract 

strategy, a local area must conduct a 

feasibility study to determine whether 

the intervention is suitable for a WIOA 

Pay-for-Performance contract strategy. 

(c) The WIOA Pay-for-Performance 

contract strategy must be developed in 

accordance with guidance issued by the 

Secretary. 

§ 683.510 What is a Workforce Innovation 

and Opportunity Act Pay-for-Performance 

contract? 

(a) Pay-for-Performance contract. A 

WIOA Pay-for-Performance contract is a 

type of Performance-Based contract. 

(b) Applicability. WIOA Pay-forPerformance contracts may only be 

entered into when they are a part of a 

WIOA Pay-for-Performance contract 

strategy described in § 683.500. 

(c) Cost-plus a percentage of cost 

contracts. Use of cost plus a percentage 

of cost contracts is prohibited. (2 CFR 

200.323.) 

(d) Services provided. WIOA Pay-forPerformance contracts must be used to 

provide adult training services 

described in sec. 134(c)(3) of WIOA or 

youth activities described in sec. 

129(c)(2) of WIOA. 

(e) Structure of payment. WIOA Payfor-Performance contracts must specify 

a fixed amount that will be paid to the 

service provider based on the 

achievement of specified levels of 

performance on the performance 

outcomes in sec. 116(b)(2)(A) of WIOA 

for target populations within a defined 

timetable. Outcomes must be 

independently validated, as described 

in paragraph (j) of this section and 

§ 683.500, prior to disbursement of 

funds. 

(f) Eligible service providers. WIOA 

Pay-for-Performance contracts may be 

entered into with eligible service 

providers, which may include local or 

national community-based 

organizations or intermediaries, 

community colleges, or other training 

providers that are eligible under sec. 

122 or 123 of WIOA (as appropriate). 

(g) Target populations. WIOA Pay-forPerformance contracts must identify 

target populations as specified by the 

Local WDB, which may include 

individuals with barriers to 

employment. 

(h) Bonus payments. WIOA Pay-forPerformance contracts may include 

bonus payments for the contractor based 

on achievement of specified levels of 

performance. Bonus payments for 

achieving outcomes above and beyond 

those specified in the contract must be 

used by the service provider to expand 

capacity to provide effective training. 

(i) Performance reporting. 

Performance outcomes achieved under 

the WIOA Pay-for-Performance contract, 

measured against the levels of 

performance specified in the contract, 

must be tracked by the local area and 

reported to the State pursuant to WIOA 

sec. 116(d)(2)(K) and § 677.160 of this 

chapter. 

(j) Validation. WIOA Pay-forPerformance contracts must include 

independent validation of the 

contractor’s achievement of the 

performance benchmarks specified in 

the contract. This validation must be 

based on high-quality, reliable, and 

verified data. 

(k) Guidance. The Secretary may issue 

additional guidance related to use of 

WIOA Pay-for-Performance contracts. 

§ 683.520 What funds can be used to 

support Workforce Innovation and 

Opportunity Act Pay-for-Performance 

contract strategies? 

(a) For WIOA Pay-for-Performance 

contract strategies providing adult and 

dislocated worker training services, 

funds allocated under secs. 133(b)(2)–(3) 

of WIOA can be used. For WIOA Payfor-Performance contract strategies 

providing youth activities, funds 

allocated under WIOA sec. 128(b) can 

be used. 

(b) No more than 10 percent of the 

total local adult and dislocated worker 

allocations can be reserved and used on 

the implementation of WIOA Pay-forPerformance contract strategies for adult 

training services described in sec. 

134(c)(3) of WIOA. No more than 10 

percent of the local youth allocation can 

be reserved and used on the 

implementation of WIOA Pay-forPerformance contract strategies for 

youth training services and other 

activities described in secs. 129(c)(2) of 

WIOA. 

§ 683.530 How long are funds used for 

Workforce Innovation and Opportunity Act 

Pay-for-Performance contract strategies 

available? 

Section 189(g)(2)(D) of WIOA 

authorizes funds used for WIOA Payfor-Performance contract strategies to be 

available until expended. Under WIOA 

sec. 3(47)(C), funds that are obligated 

but not expended due to a contractor 

not achieving the levels of performance 

specified in a WIOA Pay-forPerformance contract may be reallocated 

for further activities related to WIOA 

Pay-for-Performance contract strategies 

only. The Secretary will issue additional 

guidance related to the funds 

availability and reallocation. 

§ 683.540 What is the State’s role in 

assisting local areas in using Workforce 

Innovation and Opportunity Act Pay-forPerformance contract strategies? 

(a) Using funds from the Governor’s 

Reserve the State may: 

(1) Provide technical assistance to 

local areas including assistance with 

structuring WIOA Pay-for-Performance 

contracting strategies, performance data 

collection, meeting performance data 

entry requirements, and identifying 

levels of performance. 

(2) Conduct evaluations of local 

WIOA Pay-for-Performance contracting 

strategies, if appropriate. 

(3) Conduct other activities that 

comply with limitations on the use of 

the Governor’s Reserve. 

(b) Using non-Federal funds, 

Governors may establish incentives for 

Local WDBs to implement WIOA Payfor-Performance contract strategies as 

described in this subpart. 

(c) In the case of a State in which local 

areas are implementing WIOA Pay-forPerformance contract strategies, the 

State must: 

(1) Collect and report to the 

Department data on the performance of 

service providers entering into WIOA 

Pay-for-Performance contracts, 

measured against the levels of 

performance benchmarks specified in 

the contracts, pursuant to sec. 

116(d)(2)(K) of WIOA and § 677.160 of 

this chapter and in accordance with any 

additional guidance issued by the 

Secretary. 

(2) Collect and report to the 

Department State and/or local 

evaluations of the design and 

performance of the WIOA Pay-forPerformance contract strategies, and, 

where possible, the level of satisfaction 

with the strategies among employers 

and participants benefitting from the 

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56424 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

strategies, pursuant to sec. 116(d)(2)(K) 

of WIOA and § 677.160 of this chapter, 

and in accordance with any guidance 

issued by the Secretary. 

(3) Monitor local areas’ use of WIOA 

Pay-for-Performance contract strategies 

to ensure compliance with § 683.500 

and the contract specifications in 

§ 683.510, and State procurement 

policies. 

(4) Monitor local areas’ expenditures 

to ensure that no more than 10 percent 

of a local area’s adult and dislocated 

worker allotments and no more than 10 

percent of a local area’s youth allotment 

is reserved and used on WIOA Pay-forPerformance contract strategies. 

(d) The Secretary will issue additional 

guidance on State roles in WIOA Payfor-Performance contract strategies. 

Subpart F—Grievance Procedures, 

Complaints, and State Appeals 

Processes 

§ 683.600 What local area, State, and direct 

recipient grievance procedures must be 

established? 

(a) Each local area, State, outlying 

area, and direct recipient of funds under 

title I of WIOA, except for Job Corps, 

must establish and maintain a 

procedure for participants and other 

interested parties to file grievances and 

complaints alleging violations of the 

requirements of title I of WIOA, 

according to the requirements of this 

section. The grievance procedure 

requirements applicable to Job Corps are 

set forth at §§ 686.960 and 686.965 of 

this chapter. 

(b) Each local area, State, and direct 

recipient must: 

(1) Provide information about the 

content of the grievance and complaint 

procedures required by this section to 

participants and other interested parties 

affected by the local workforce 

development system, including one-stop 

partners and service providers; 

(2) Require that every entity to which 

it awards title I funds provide the 

information referred to in paragraph 

(b)(1) of this section to participants 

receiving title I-funded services from 

such entities; and 

(3) Must make reasonable efforts to 

assure that the information referred to in 

paragraph (b)(1) of this section will be 

understood by affected participants and 

other individuals, including youth and 

those who are limited-English speaking 

individuals. Such efforts must comply 

with the language requirements of 29 

CFR 37.35 regarding the provision of 

services and information in languages 

other than English. 

(c) Local area procedures must 

provide: 

(1) A process for dealing with 

grievances and complaints from 

participants and other interested parties 

affected by the local workforce 

development system, including one-stop 

partners and service providers; 

(2) An opportunity for an informal 

resolution and a hearing to be 

completed within 60 days of the filing 

of the grievance or complaint; 

(3) A process which allows an 

individual alleging a labor standards 

violation to submit the grievance to a 

binding arbitration procedure, if a 

collective bargaining agreement 

covering the parties to the grievance so 

provides; and 

(4) An opportunity for a local level 

appeal to a State entity when: 

(i) No decision is reached within 60 

days; or 

(ii) Either party is dissatisfied with 

the local hearing decision. 

(d) State procedures must provide: 

(1) A process for dealing with 

grievances and complaints from 

participants and other interested parties 

affected by the statewide Workforce 

Investment programs; 

(2) A process for resolving appeals 

made under paragraph (c)(4) of this 

section; 

(3) A process for remanding 

grievances and complaints related to the 

local Workforce Innovation and 

Opportunity Act programs to the local 

area grievance process; and 

(4) An opportunity for an informal 

resolution and a hearing to be 

completed within 60 days of the filing 

of the grievance or complaint; and 

(5) An opportunity for appeal to the 

Secretary under the circumstances 

described in § 683.610(a). 

(e) Procedures of direct recipients 

must provide: 

(1) A process for dealing with 

grievance and complaints from 

participants and other interested parties 

affected by the recipient’s Workforce 

Innovation and Opportunity Act 

programs; and 

(2) An opportunity for an informal 

resolution and a hearing to be 

completed within 60 days of the filing 

of the grievance or complaint. 

(f) The remedies that may be imposed 

under local, State, and direct recipient 

grievance procedures are enumerated at 

WIOA sec. 181(c)(3). 

(g)(1) The provisions of this section 

on grievance procedures do not apply to 

discrimination complaints brought 

under WIOA sec. 188 and/or 29 CFR 

part 38. Such complaints must be 

handled in accordance with the 

procedures set forth in that regulatory 

part. 

(2) Questions about or complaints 

alleging a violation of the 

nondiscrimination provisions of WIOA 

sec. 188 may be directed or mailed to 

the Director, Civil Rights Center, U.S. 

Department of Labor, Room N4123, 200 

Constitution Avenue NW., Washington, 

DC 20210, for processing. 

(h) Nothing in this subpart precludes 

a grievant or complainant from pursuing 

a remedy authorized under another 

Federal, State, or local law. 

§ 683.610 What processes does the 

Secretary use to review grievances and 

complaints of Workforce Innovation and 

Opportunity Act title I recipients? 

(a) The Secretary investigates 

allegations arising through the grievance 

procedures described in § 683.600 

when: 

(1) A decision on a grievance or 

complaint under § 683.600(d) has not 

been reached within 60 days of receipt 

of the grievance or complaint or within 

60 days of receipt of the request for 

appeal of a local level grievance and 

either party appeals to the Secretary; or 

(2) A decision on a grievance or 

complaint under § 683.600(d) has been 

reached and the party to which such 

decision is adverse appeals to the 

Secretary. 

(b) The Secretary must make a final 

decision on an appeal under paragraph 

(a) of this section no later than 120 days 

after receiving the appeal. 

(c) Appeals made under paragraph 

(a)(2) of this section must be filed 

within 60 days of the receipt of the 

decision being appealed. Appeals made 

under paragraph (a)(1) of this section 

must be filed within 120 days of the 

filing of the grievance with the State, or 

the filing of the appeal of a local 

grievance with the State. All appeals 

must be submitted by certified mail, 

return receipt requested, to the 

Secretary, U.S. Department of Labor, 

200 Constitution Ave. NW., 

Washington, DC 20210, Attention: 

ASET. A copy of the appeal must be 

simultaneously provided to the 

appropriate ETA Regional 

Administrator and the opposing party. 

(d) Except for complaints arising 

under WIOA sec. 184(f) or sec. 188, 

grievances or complaints made directly 

to the Secretary will be referred to the 

appropriate State or local area for 

resolution in accordance with this 

section, unless the Department notifies 

the parties that the Department of Labor 

will investigate the grievance under the 

procedures at § 683.430. Discrimination 

complaints brought under WIOA sec. 

184(f) or sec. 188 or 29 CFR part 38 will 

be referred to the Director of the Civil 

Rights Center. 

(e) Complaints and grievances from 

participants receiving services under the 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56425 

Wagner-Peyser Act will follow the 

procedures outlined at part 658 of this 

chapter. 

§ 683.620 How are complaints and reports 

of criminal fraud and abuse addressed 

under the Workforce Innovation and 

Opportunity Act? 

(a) Information and complaints 

involving criminal fraud, waste, abuse 

or other criminal activity must be 

reported immediately through the 

Department’s Incident Reporting System 

to the Department of Labor Office of 

Inspector General, Office of 

Investigations, Room S5514, 200 

Constitution Avenue NW., Washington, 

DC 20210, or to the corresponding 

Regional Inspector General for 

Investigations, with a copy 

simultaneously provided to the 

Employment and Training 

Administration. The Hotline number is 

1–800–347–3756. The Web site is http:// 

www.oig.dol.gov/contact.htm. 

(b) Complaints of a non-criminal 

nature may be handled under the 

procedures set forth in § 683.600 or 

through the Department’s Incident 

Reporting System. 

§ 683.630 What additional appeal 

processes or systems must a State have for 

the Workforce Innovation and Opportunity 

Act program? 

(a) Non-designation of local areas: 

(1) The State must establish, and 

include in its State Plan, due process 

procedures which provide expeditious 

appeal to the State WDB for a unit of 

general local government (including a 

combination of such units) or grant 

recipient that requests, but is not 

granted, initial or subsequent 

designation of an area as a local area 

under WIOA sec. 106(b)(2) or 106(b)(3) 

and § 679.250 of this chapter. 

(2) These procedures must provide an 

opportunity for a hearing and prescribe 

appropriate time limits to ensure 

prompt resolution of the appeal. 

(3) If the appeal to the State WDB 

does not result in designation, the 

appellant may request review by the 

Secretary under § 683.640. 

(b) Denial or termination of eligibility 

as a training provider: 

(1) A State must establish procedures 

which allow providers of training 

services the opportunity to appeal: 

(i) Denial of eligibility by a Local 

WDB or the designated State agency 

under WIOA sec. 122(b), 122(c), or 

122(d). 

(ii) Termination of eligibility or other 

action by a Local WDB or State agency 

under WIOA sec. 122(f); or 

(iii) Denial of eligibility as a provider 

of on-the-job training (OJT) or 

customized training by a one-stop 

operator under WIOA sec. 122(h). 

(2) Such procedures must provide an 

opportunity for a hearing and prescribe 

appropriate time limits to ensure 

prompt resolution of the appeal. 

(3) A decision under this State appeal 

process may not be appealed to the 

Secretary. 

(c) Testing and sanctioning for use of 

controlled substances. 

(1) A State must establish due process 

procedures, in accordance with WIOA 

sec. 181(f), which provide expeditious 

appeal for: 

(i) Participants in programs under title 

I, subtitle B of WIOA subject to testing 

for use of controlled substances, 

imposed under a State policy 

established under WIOA sec. 181(f)(1); 

and 

(ii) Participants in programs under 

title I, subtitle B of WIOA who are 

sanctioned, in accordance with WIOA 

sec. 181(f)(2), after testing positive for 

the use of controlled substances, under 

the policy described in paragraph 

(c)(1)(i) of this section. 

(2) A decision under this State appeal 

process may not be appealed to the 

Secretary. 

§ 683.640 What procedures apply to the 

appeals of non-designation of local areas? 

(a) A unit of general local government 

(including a combination of such units) 

or grant recipient whose appeal of the 

denial of a request for initial or 

subsequent designation as a local area to 

the State WDB has not resulted in such 

designation, may appeal the State 

WDB’s denial to the Secretary. 

(b) Appeals made under paragraph (a) 

of this section must be filed no later 

than 30 days after receipt of written 

notification of the denial from the State 

WDB, and must be submitted by 

certified mail, return receipt requested, 

to the Secretary, U.S. Department of 

Labor, 200 Constitution Ave. NW., 

Washington, DC 20210, Attention: 

ASET. A copy of the appeal must be 

simultaneously provided to the State 

WDB. 

(c) The appellant must establish that 

it was not accorded procedural rights 

under the appeal process set forth in the 

State Plan, or establish that it meets the 

requirements for designation in WIOA 

sec. 106(b)(2) or 106(b)(3) and § 679.250 

of this chapter. 

(d) If the Secretary determines that the 

appellant has met its burden of 

establishing that it was not accorded 

procedural rights under the appeal 

process set forth in the State Plan, or 

that it meets the requirements for 

designation in WIOA sec. 106(b)(2) or 

106(b)(3) and § 679.250 of this chapter, 

the Secretary may require that the area 

be designated as a local area. In making 

this determination, the Secretary may 

consider any comments submitted by 

the State WDB in response to the appeal 

made under paragraph (a) of this 

section. 

(e) The Secretary must issue a written 

decision to the Governor and the 

appellant. 

§ 683.650 What procedures apply to the 

appeals of the Governor’s imposition of 

sanctions for substantial violations or 

performance failures by a local area? 

(a) A local area which has been found 

in substantial violation of WIOA title I, 

and has received notice from the 

Governor that either all or part of the 

local plan will be revoked or that a 

reorganization will occur, may appeal 

such sanctions to the Secretary under 

WIOA sec. 184(b). The appeal must be 

filed no later than 30 days after receipt 

of written notification of the revoked 

plan or imposed reorganization. 

(b) The sanctions described in 

paragraph (a) of this section do not 

become effective until: 

(1) The time for appeal has expired; 

or 

(2) The Secretary has issued the 

decision described in paragraph (e) of 

this section. 

(c) A local area which has failed to 

meet local performance indicators for 3 

consecutive program years, and has 

received the Governor’s notice of intent 

to impose a reorganization plan, may 

appeal to the Governor to rescind or 

revise such plan, in accordance with 

§ 677.225 of this chapter. 

(d) Appeals to the Secretary made 

under paragraph (a) of this section must 

be submitted by certified mail, return 

receipt requested, to the Secretary, U.S. 

Department of Labor, 200 Constitution 

Ave. NW., Washington, DC 20210, 

Attention: ASET. A copy of the appeal 

must be simultaneously provided to the 

Governor. 

(e) The Secretary will notify the 

Governor and the appellant in writing of 

the Secretary’s decision under 

paragraph (a) of this section within 45 

days after receipt of the appeal. In 

making this determination, the 

Secretary may consider any comments 

submitted by the Governor in response 

to the appeals. 

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56426 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Subpart G—Sanctions, Corrective 

Actions, and Waiver of Liability 

§ 683.700 When can the Secretary impose 

sanctions and corrective actions on 

recipients and subrecipients of title I 

Workforce Innovation and Opportunity Act 

funds? 

(a) Applicability. (1) Except for 

actions under WIOA secs. 116 and 

188(a) or 29 CFR parts 31, 32, 35, and 

38 and 49 CFR part 25, the Grant Officer 

must use the procedures outlined in 

§ 683.440 before imposing a sanction on, 

or requiring corrective action by, 

recipients of funds under title I of 

WIOA. 

(2) To impose a sanction or corrective 

action for a violation of WIOA sec. 

188(a) the Department will use the 

procedures set forth in 29 CFR part 38. 

(3) To impose a sanction or corrective 

action for a violation of WIOA sec. 116 

the Department will use the procedures 

set forth in part 677 of this chapter. 

(b) States. When a Grant Officer 

determines that the Governor has not 

fulfilled its requirements under 2 CFR 

part 200, an audit, or a monitoring 

compliance review set forth at sec. 

184(a)(4) of WIOA and § 683.410, or has 

not taken corrective action to remedy a 

violation as required by WIOA secs. 

184(a)(5) and 184(b)(1), the Grant 

Officer must require the Governor to 

impose the necessary corrective actions 

set forth at WIOA secs. 184(a)(5) and 

184(b)(1), or may require repayment of 

funds under WIOA sec. 184(c). If the 

Secretary determines it is necessary to 

protect the funds or ensure the proper 

operation of a program or activity, the 

Secretary may immediately suspend or 

terminate financial assistance in 

accordance with WIOA sec. 184(e). 

(c) Local areas. If the Governor fails to 

promptly take the actions specified in 

WIOA sec. 184(b)(1) when it determines 

that a local area has failed to comply 

with the requirements described in 

§ 683.720(a), and that the local area has 

not taken the necessary corrective 

action, the Grant Officer may impose 

such actions directly against the local 

area. 

(d) Direct grant recipients. When the 

Grant Officer determines that a direct 

grant recipient of subtitle D of title I of 

WIOA has not taken corrective action to 

remedy a substantial violation as the 

result of noncompliance with 2 CFR 

part 200, the Grant Officer may impose 

sanctions against the grant recipient. 

(e) Subrecipients. The Grant Officer 

may impose a sanction directly against 

a subrecipient, as authorized in WIOA 

sec. 184(d)(3) and 2 CFR 200.338. In 

such a case, the Grant Officer will 

inform the direct grant recipient of the 

action. 

§ 683.710 Who is responsible for funds 

provided under title I of the Workforce 

Innovation and Opportunity Act and the 

Wagner-Peyser Act? 

(a) The recipient of the funds is 

responsible for all funds under its 

grant(s) awarded under WIOA title I and 

the Wagner-Peyser Act. 

(b)(1) The local government’s chief 

elected official(s) in a local area is liable 

for any misuse of the WIOA grant funds 

allocated to the local area under WIOA 

secs. 128 and 133, unless the chief 

elected official(s) reaches an agreement 

with the Governor to bear such liability. 

(2) When a local workforce area or 

region is composed of more than one 

unit of general local government, the 

liability of the individual jurisdictions 

must be specified in a written agreement 

between the chief elected officials. 

(3) When there is a change in the chief 

elected official(s), the Local WDB is 

required to inform the new chief elected 

official(s), in a timely manner, of their 

responsibilities and liabilities as well as 

the need to review and update any 

written agreements among the chief 

elected official(s). 

(4) The use of a fiscal agent does not 

relieve the chief elected official, or 

Governor if designated under paragraph 

(b)(1) of this section, of responsibility 

for any misuse of grant funds allocated 

to the local area under WIOA secs. 128 

and 133. 

§ 683.720 What actions are required to 

address the failure of a local area to comply 

with the applicable uniform administrative 

provisions? 

(a) If, as part of the annual on-site 

monitoring of local areas, the Governor 

determines that a local area is not in 

compliance with 2 CFR part 200, 

including the failure to make the 

required disclosures in accordance with 

2 CFR 200.113 or the failure to disclose 

all violations of Federal criminal law 

involving fraud, bribery or gratuity 

violations, the Governor must: 

(1) Require corrective action to secure 

prompt compliance; and 

(2) Impose the sanctions provided for 

at WIOA sec. 184(b) if the Governor 

finds that the local area has failed to 

take timely corrective action. 

(b) An action by the Governor to 

impose a sanction against a local area, 

in accordance with this section, may be 

appealed to the Secretary in accordance 

with § 683.650. 

(c)(1) If the Secretary finds that the 

Governor has failed to monitor and 

certify compliance of local areas with 

the administrative requirements under 

WIOA sec. 184(a), or that the Governor 

has failed to take the actions promptly 

required upon a determination under 

paragraph (a) of this section, the 

Secretary must take the action described 

in § 683.700(b). 

(2) If the Governor fails to take the 

corrective actions required by the 

Secretary under paragraph (c)(1) of this 

section, the Secretary may immediately 

suspend or terminate financial 

assistance under WIOA sec. 184(e). 

§ 683.730 When can the Secretary waive 

the imposition of sanctions? 

(a)(1) A recipient of title I funds may 

request that the Secretary waive the 

imposition of sanctions authorized 

under WIOA sec. 184. 

(2) A Grant officer may approve the 

waiver described in paragraph (a)(1) of 

this section if the grant officer finds that 

the recipient has demonstrated 

substantial compliance with the 

requirements of WIOA sec. 184(d)(2). 

(b)(1) When the debt for which a 

waiver request was established in a nonFederal resolution proceeding, the 

resolution report must accompany the 

waiver request. 

(2) When the waiver request is made 

during the ETA Grant Officer resolution 

process, the request must be made 

during the informal resolution period 

described in § 683.440(c). 

(c) A waiver of the recipient’s liability 

must be considered by the Grant Officer 

only when: 

(1) The misexpenditure of WIOA 

funds occurred at a subrecipient’s level; 

(2) The misexpenditure was not due 

to willful disregard of the requirements 

of title I of WIOA, gross negligence, 

failure to observe accepted standards of 

administration, and did not constitute 

fraud or failure to make the required 

disclosures in accordance with 2 CFR 

200.113 addressing all violations of 

Federal criminal law involving fraud, 

bribery or gratuity violations (2 CFR part 

180 and 31 U.S.C. 3321) 

(3) If fraud did exist, was perpetrated 

against the recipient/subrecipients, and: 

(i) The recipient/subrecipients 

discovered, investigated, reported, and 

cooperated in any prosecution of the 

perpetrator of the fraud; and 

(ii) After aggressive debt collection 

action, it has been documented that 

further attempts at debt collection from 

the perpetrator of the fraud would be 

inappropriate or futile; 

(4) The recipient has issued a final 

determination which disallows the 

misexpenditure, the recipient’s appeal 

process has been exhausted, and a debt 

has been established; and 

(5) The recipient provides 

documentation to demonstrate that it 

has substantially complied with the 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56427 

requirements of WIOA sec. 184(d)(2) 

and this section. 

(d) The recipient will not be released 

from liability for misspent funds under 

the determination required by WIOA 

sec. 184(d) unless the Grant Officer 

determines that further collection 

action, either by the recipient or 

subrecipient(s), would be inappropriate 

or would prove futile. 

§ 683.740 What is the procedure to handle 

a recipient of title I Workforce Innovation 

and Opportunity Act funds’ request for 

advance approval of contemplated 

corrective actions? 

(a) The recipient may request advance 

approval from the Grant Officer for 

contemplated corrective actions, 

including debt collection actions, which 

the recipient plans to initiate or to 

forego. The recipient’s request must 

include a description and an assessment 

of all actions taken to collect the 

misspent funds. 

(b) Based on the recipient’s request, 

the Grant Officer may determine that the 

recipient may forego certain debt 

collection actions against a subrecipient 

when: 

(1) The subrecipient meets the criteria 

set forth in WIOA sec. 184(d)(2); 

(2) The misexpenditure of funds: 

(i) Was not made by that subrecipient 

but by an entity that received WIOA 

funds from that subrecipient; 

(ii) Was not a violation of WIOA sec. 

184(d)(1), did not constitute fraud, or 

failure to disclose, in a timely manner, 

all violations of Federal criminal law 

involving fraud, bribery, or gratuity 

violations potentially affecting the 

Federal award; or 

(iii) If fraud did exist: 

(A) It was perpetrated against the 

subrecipient; 

(B) The subrecipient discovered, 

investigated, reported, and cooperated 

in any prosecution of the perpetrator of 

the fraud; and 

(C) After aggressive debt collection 

action, it has been documented that 

further attempts at debt collection from 

the perpetrator of the fraud would be 

inappropriate or futile; 

(3) A determination which disallows 

the misexpenditure and establishes a 

debt has been issued at the appropriate 

level; and, 

(4) Further debt collection action by 

that subrecipient or the recipient would 

be either inappropriate or futile. 

§ 683.750 What procedure must be used 

for administering the offset/deduction 

provisions of the Workforce Innovation and 

Opportunity Act? 

(a)(1) For misexpenditures by direct 

recipients of title I and Wagner-Peyser 

Act formula funds the Grant Officer may 

determine that a debt, or a portion 

thereof, may be offset against amounts 

that are allotted to the recipient. 

Recipients must submit a written 

request for an offset to the Grant Officer. 

Generally, the Grant Officer will apply 

the offset against amounts that are 

available at the recipient level for 

administrative costs. 

(2) The Grant Officer may approve an 

offset request, under paragraph (a)(1) of 

this section, if the misexpenditures were 

not due to willful disregard of the 

requirements of WIOA and regulations, 

fraud, gross negligence, failure to 

observe accepted standards of 

administration or a pattern of 

misexpenditure. 

(b) For subrecipient misexpenditures 

that were not due to willful disregard of 

the requirements of WIOA and 

regulations, fraud, gross negligence, 

failure to observe accepted standards of 

administration or a pattern of 

misexpenditure, if the Grant Officer has 

required the State to repay or offset such 

amount, the State may deduct an 

amount equal to the misexpenditure 

from the subrecipient’s allocation of the 

program year after the determination 

was made. Deductions are to be made 

from funds reserved for the 

administrative costs of the local 

programs involved, as appropriate. 

(c) If offset is granted, the debt will 

not be fully satisfied until the Grant 

Officer reduces amounts allotted to the 

recipient by the amount of the 

misexpenditure. 

(d) For recipients of funds under title 

I and Wagner-Peyser Act funds, a direct 

recipient may not make a deduction 

under paragraph (b) of this section until 

the State has taken appropriate 

corrective action to ensure full 

compliance within the local area with 

regard to appropriate expenditure of 

WIOA funds. 

Subpart H—Administrative 

Adjudication and Judicial Review 

§ 683.800 What actions of the Department 

may be appealed to the Office of 

Administrative Law Judges? 

(a) An applicant for financial 

assistance under title I of WIOA who is 

dissatisfied by a determination not to 

award Federal financial assistance, in 

whole or in part, to such applicant; or 

a recipient, subrecipient, or a contractor 

against which the Grant Officer has 

directly imposed a sanction or 

corrective action under sec. 184 of 

WIOA, including a sanction against a 

State under part 677 of this chapter, 

may appeal to the U.S. Department of 

Labor, Office of Administrative Law 

Judges (OALJ) within 21 days of receipt 

of the final determination. 

(b) Failure to request a hearing within 

21 days of receipt of the final 

determination constitutes a waiver of 

the right to a hearing. 

(c) A request for a hearing under this 

subpart must specifically state those 

issues or findings in the final 

determination upon which review is 

requested. Issues or findings in the final 

determination not specified for review, 

or the entire final determination when 

no hearing has been requested within 

the 21 days, are considered resolved and 

not subject to further review. Only 

alleged violations of WIOA, its 

regulations, the grant or other agreement 

under WIOA raised in the final 

determination and the request for 

hearing are subject to review. 

(d) A request for a hearing must be 

transmitted by certified mail, return 

receipt requested, to the Chief 

Administrative Law Judge, U.S. 

Department of Labor, Suite 400, 800 K 

Street NW., Washington, DC 20001, 

with one copy to the Departmental 

official who issued the determination. 

(e) The procedures in this subpart 

apply in the case of a complainant who 

has engaged in the alternative dispute 

resolution process set forth in § 683.840, 

if neither a settlement was reached nor 

a decision issued within the 60 days, 

except that the request for hearing 

before the OALJ must be filed within 15 

days of the conclusion of the 60-day 

period provided in § 683.840. In 

addition to including the final 

determination upon which review is 

requested, the complainant must 

include a copy of any Stipulation of 

Facts and a brief summary of 

proceedings. 

§ 683.810 What rules of procedure apply to 

hearings conducted under this subpart? 

(a) Rules of practice and procedure. 

The rules of practice and procedure 

promulgated by the OALJ at subpart A 

of 29 CFR part 18, govern the conduct 

of hearings under this subpart. 

However, a request for hearing under 

this subpart is not considered a 

complaint to which the filing of an 

answer by the Department or a 

Department agency or official is 

required. Technical rules of evidence 

will not apply to hearings conducted 

pursuant to this part. However, rules or 

principles designed to assure 

production of the most credible 

evidence available and to subject 

testimony to cross-examination will 

apply. 

(b) Prehearing procedures. In all 

cases, the Administrative Law Judge 

(ALJ) should encourage the use of 

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56428 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

prehearing procedures to simplify and 

clarify facts and issues. 

(c) Subpoenas. Subpoenas necessary 

to secure the attendance of witnesses 

and the production of documents or 

other items at hearings must be obtained 

from the ALJ and must be issued under 

the authority contained in WIOA sec. 

183(c), incorporating 15 U.S.C. 49. 

(d) Timely submission of evidence. 

The ALJ must not permit the 

introduction at the hearing of any 

documentation if it has not been made 

available for review by the other parties 

to the proceeding either at the time 

ordered for any prehearing conference, 

or, in the absence of such an order, at 

least 3 weeks prior to the hearing date. 

(e) Burden of production. The Grant 

Officer has the burden of production to 

support her or his decision. This burden 

is satisfied once the Grant Officer 

prepares and files an administrative file 

in support of the decision which must 

be made part of the record. Thereafter, 

the party or parties seeking to overturn 

the Grant Officer’s decision has the 

burden of persuasion. 

§ 683.820 What authority does the 

Administrative Law Judge have in ordering 

relief as an outcome of an administrative 

hearing? 

(a) In ordering relief the ALJ has the 

full authority of the Secretary under 

WIOA, except as described in paragraph 

(b) of this section. 

(b) In grant selection appeals of 

awards funded under WIOA title I, 

subtitle D: 

(1) If the Administrative Law Judge 

rules, under § 683.800, that the 

appealing organization should have 

been selected for an award, the matter 

must be remanded to the Grant Officer. 

The Grant Officer must, within 10 

working days, determine whether the 

organization continues to meet the 

requirements of the applicable 

solicitation, whether the funds which 

are the subject of the ALJ’s decision will 

be awarded to the organization, and the 

timing of the award. In making this 

determination, the Grant Officer must 

take into account disruption to 

participants, disruption to grantees, and 

the operational needs of the program. 

(2) If the Administrative Law Judge 

rules that additional application review 

is required, the Grant Officer must 

implement that review and, if a new 

organization is selected, follow the steps 

laid out in paragraph (b)(1) of this 

section to determine whether the grant 

funds will be awarded to that 

organization. 

(3) In the event that the Grant Officer 

determines that the funds will not be 

awarded to the appealing organization 

for the reasons discussed in paragraph 

(b)(1) of this section, an organization 

which does not have an approved 

Negotiated Indirect Cost Rate Agreement 

will be awarded its reasonable 

application preparation costs. 

(4) If funds are awarded to the 

appealing organization, the Grant 

Officer will notify the current grantee 

within 10 days. In addition, the 

appealing organization is not entitled to 

the full grant amount but only will 

receive the funds remaining in the grant 

that have not been obligated by the 

current grantee through its operation of 

the grant and its subsequent closeout. 

(5) In the event that an organization, 

other than the appealing organization, is 

adversely effected by the Grant Officer’s 

determination upon completion of the 

additional application review under 

paragraph (b)(2) of this section, that 

organization may appeal that decision to 

the Office of Administrative Law Judges 

by following the procedures set forth in 

§ 683.800. 

(6) Any organization selected and/or 

funded under WIOA title I, subtitle D, 

is subject to having its award removed 

if an ALJ decision so orders. As part of 

this process, the Grant Officer will 

provide instructions on transition and 

closeout to both the newly selected 

grantee and to the grantee whose 

position is affected or which is being 

removed. All awardees must agree to the 

provisions of this paragraph (b) as a 

condition of accepting a grant award. 

§ 683.830 When will the Administrative 

Law Judge issue a decision? 

(a) The ALJ should render a written 

decision not later than 90 days after the 

closing of the record. 

(b) The decision of the ALJ constitutes 

final agency action unless, within 20 

days of the decision, a party dissatisfied 

with the ALJ’s decision has filed a 

petition for review with the 

Administrative Review Board (ARB) 

(established under Secretary’s Order No. 

02–2012), specifically identifying the 

procedure, fact, law or policy to which 

exception is taken. Any exception not 

specifically raised in the petition is 

deemed to have been waived. A copy of 

the petition for review also must be sent 

to the opposing party and if an 

applicant or recipient, to the Grant 

Officer and the Grant Officer’s Counsel 

at the time of filing. Unless the ARB, 

within 30 days of the filing of the 

petition for review, notifies the parties 

that the case has been accepted for 

review, the decision of the ALJ 

constitutes final agency action. Any case 

accepted by the ARB must be decided 

within 180 days of acceptance. If not so 

decided, the decision of the ALJ 

constitutes final agency action. 

§ 683.840 Is there an alternative dispute 

resolution process that may be used in 

place of an Office of Administrative Law 

Judges hearing? 

(a) The parties to a complaint which 

has been filed according to the 

requirements of § 683.800 may choose to 

waive their rights to an administrative 

hearing before the OALJ. Instead, they 

may choose to transfer the settlement of 

their dispute to an individual acceptable 

to all parties who will conduct an 

informal review of the stipulated facts 

and render a decision in accordance 

with applicable law. A written decision 

must be issued within 60 days after 

submission of the matter for informal 

review. 

(b) The waiver of the right to request 

a hearing before the OALJ described in 

paragraph (a) of this section will 

automatically be revoked if a settlement 

has not been reached or a written 

decision has not been issued within the 

60 days provided in paragraph (a) of this 

section. 

(c) The decision rendered under this 

informal review process will be treated 

as a final decision of an Administrative 

Law Judge under WIOA sec. 186(b). 

§ 683.850 Is there judicial review of a final 

order of the Secretary issued under WIOA? 

(a) Any party to a proceeding which 

resulted in a Secretary’s final order 

under WIOA sec. 186 in which the 

Secretary awards, declines to award, or 

only conditionally awards financial 

assistance or with respect to a corrective 

action or sanction imposed under WIOA 

sec. 184 may obtain a review in the 

United States Court of Appeals having 

jurisdiction over the applicant or 

recipient of funds involved, by filing a 

review petition within 30 days of the 

issuance of the Secretary’s final order in 

accordance with WIOA sec. 187. 

(b) The court has jurisdiction to make 

and enter a decree affirming, modifying, 

or setting aside the order of the 

Secretary, in whole or in part. 

(c) No objection to the Secretary’s 

order may be considered by the court 

unless the objection was specifically 

urged, in a timely manner, before the 

Secretary. The review is limited to 

questions of law, and the findings of fact 

of the Secretary are conclusive if 

supported by substantial evidence. 

(d) The judgment of the court is final, 

subject to certiorari review by the 

United States Supreme Court. 

■ 17. Add part 684 to read as follows: 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56429 

PART 684—INDIAN AND NATIVE 

AMERICAN PROGRAMS UNDER TITLE 

I OF THE WORKFORCE INNOVATION 

AND OPPORTUNITY ACT 

Subpart A—Purposes and Policies 

Sec. 

684.100 What is the purpose of the 

programs established to serve Indians 

and Native Americans under of the 

Workforce Innovation and Opportunity 

Act? 

684.110 How must Indian and Native 

American programs be administered? 

684.120 What obligation does the 

Department have to consult with the 

Indian and Native American program 

grantee community in developing rules, 

regulations, and standards of 

accountability for Indian and Native 

American programs? 

684.130 What definitions apply to terms 

used in this part? 

Subpart B—Service Delivery Systems 

Applicable to Section 166 Programs 

Sec. 

684.200 What are the requirements to apply 

for a Workforce Innovation and 

Opportunity Act grant? 

684.210 What priority for awarding grants 

is given to eligible organizations? 

684.220 What is the process for applying for 

a Workforce Innovation and Opportunity 

Act grant? 

684.230 What appeal rights are available to 

entities that are denied a grant award? 

684.240 Are there any other ways in which 

an entity may be awarded a Workforce 

Innovation and Opportunity Act grant? 

684.250 Can an Indian and Native 

American program grantee’s grant award 

be terminated? 

684.260 Does the Department have to award 

a grant for every part of the country? 

684.270 How are Workforce Innovation and 

Opportunity Act funds allocated to 

Indian and Native American program 

grantees? 

Subpart C—Services to Customers 

Sec. 

684.300 Who is eligible to receive services 

under the Indian and Native American 

program? 

684.310 What are Indian and Native 

American program grantee allowable 

activities? 

684.320 Are there any restrictions on 

allowable activities? 

684.330 What is the role of Indian and 

Native American program grantees in the 

one-stop delivery system? 

684.340 What policies govern payments to 

participants, including wages, training 

allowances or stipends, or direct 

payments for supportive services? 

684.350 What will the Department do to 

strengthen the capacity of Indian and 

Native American program grantees to 

deliver effective services? 

Subpart D—Supplemental Youth Services 

Sec. 

684.400 What is the purpose of the 

supplemental youth services program? 

684.410 What entities are eligible to receive 

supplemental youth services funding? 

684.420 What are the planning 

requirements for receiving supplemental 

youth services funding? 

684.430 What individuals are eligible to 

receive supplemental youth services? 

684.440 How is funding for supplemental 

youth services determined? 

684.450 How will supplemental youth 

services be provided? 

684.460 What performance indicators are 

applicable to the supplemental youth 

services program? 

Subpart E—Services to Communities 

Sec. 

684.500 What services may Indian and 

Native American program grantees 

provide to or for employers under the 

Workforce Innovation and Opportunity 

Act? 

684.510 What services may Indian and 

Native American program grantees 

provide to the community at large under 

the Workforce Innovation and 

Opportunity Act? 

684.520 Must Indian and Native American 

program grantees give preference to 

Indian and Native American entities in 

the selection of contractors or service 

providers? 

684.530 What rules govern the issuance of 

contracts and/or subgrants? 

Subpart F—Accountability for Services and 

Expenditures 

Sec. 

684.600 To whom is the Indian and Native 

American program grantee accountable 

for the provision of services and the 

expenditure of Indian and Native 

American funds? 

684.610 How is this accountability 

documented and fulfilled? 

684.620 What performance indicators are in 

place for the Indian and Native 

American program? 

684.630 What are the requirements for 

preventing fraud and abuse under the 

WIOA? 

684.640 What grievance systems must an 

Indian and Native American program 

grantee provide? 

684.650 Can Indian and Native American 

program grantees exclude segments of 

the eligible population? 

Subpart G—Section 166 Planning/Funding 

Process 

Sec. 

684.700 What is the process for submitting 

a 4-year plan? 

684.710 What information must be 

included in the 4-year plans as part of 

the competitive application? 

684.720 When must the 4-year plan be 

submitted? 

684.730 How will the Department review 

and approve such plans? 

684.740 Under what circumstances can the 

Department or the Indian and Native 

American program grantee modify the 

terms of the grantee’s plan(s)? 

Subpart H—Administrative Requirements 

Sec. 

684.800 What systems must an Indian and 

Native American program grantee have 

in place to administer an Indian and 

Native American program? 

684.810 What types of costs are allowable 

expenditures under the Indian and 

Native American program? 

684.820 What rules apply to administrative 

costs under the Indian and Native 

American program? 

684.830 Does the Workforce Innovation and 

Opportunity Act administrative cost 

limit for States and local areas apply to 

WIOA grants? 

684.840 How must Indian and Native 

American program grantees classify 

costs? 

684.850 What cost principles apply to 

Indian and Native American funds? 

684.860 What audit requirements apply to 

Indian and Native American grants? 

684.870 What is ‘‘program income’’ and 

how is it regulated in the Indian and 

Native American program? 

Subpart I—Miscellaneous Program 

Provisions 

Sec. 

684.900 Does the Workforce Innovation and 

Opportunity Act provide regulatory and/ 

or statutory waiver authority? 

684.910 What information is required in a 

waiver request? 

684.920 What provisions of law or 

regulations may not be waived? 

684.930 May Indian and Native American 

program grantees combine or consolidate 

their employment and training funds? 

684.940 What is the role of the Native 

American Employment and Training 

Council? 

684.950 Does the Workforce Innovation and 

Opportunity Act provide any additional 

assistance to unique populations in 

Alaska and Hawaii? 

Authority: Secs. 134, 166, 189, 503, Public 

Law 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart A—Purposes and Policies 

§ 684.100 What is the purpose of the 

programs established to serve Indians and 

Native Americans under the Workforce 

Innovation and Opportunity Act? 

(a) The purpose of WIOA Indian and 

Native American (INA) programs in sec. 

166 is to support employment and 

training activities for INAs in order to: 

(1) Develop more fully the academic, 

occupational, and literacy skills of such 

individuals; 

(2) Make such individuals more 

competitive in the workforce and to 

equip them with entrepreneurial skills 

necessary for successful selfemployment; and 

(3) Promote the economic and social 

development of INA communities in 

accordance with the goals and values of 

such communities. 

(b) The principal means of 

accomplishing these purposes is to 

enable tribes and Native American 

organizations to provide employment 

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56430 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

and training services to INAs and their 

communities. Services should be 

provided in a culturally appropriate 

manner, consistent with the principles 

of the Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 450 

et seq.). 

§ 684.110 How must Indian and Native 

American programs be administered? 

(a) INA programs will be administered 

to maximize the Federal commitment to 

support the growth and development of 

INAs and their communities as 

determined by representatives of such 

communities. 

(b) In administering these programs, 

the Department will follow the 

Congressional declaration of policy set 

forth in the Indian Self-Determination 

and Education Assistance Act, at 25 

U.S.C. 450a, as well as the Department 

of Labor’s ‘‘American Indian and Alaska 

Native Policies.’’ 

(c) The regulations in this part are not 

intended to abrogate the trust 

responsibilities of the Federal 

government to Federally recognized 

tribes in any way. 

(d) The Department will administer 

INA programs through a single 

organizational unit and consistent with 

the requirements in sec. 166(i) of WIOA. 

The Division of Indian and Native 

American Programs (DINAP) within the 

Employment and Training 

Administration (ETA) is designated as 

this single organizational unit as 

required by sec. 166(i)(1) of WIOA. 

(e) The Department will establish and 

maintain administrative procedures for 

the selection, administration, 

monitoring, and evaluation of INA 

employment and training programs 

authorized under this Act. 

§ 684.120 What obligation does the 

Department have to consult with the Indian 

and Native American grantee community in 

developing rules, regulations, and 

standards of accountability for Indian and 

Native American programs? 

The Department’s primary 

consultation vehicle for INA programs is 

the Native American Employment and 

Training Council. In addition, the 

Department will consult with the INA 

program grantee community in 

developing policies for the INA 

programs, actively seeking and 

considering the views of INA program 

grantees prior to establishing INA 

program policies and regulations. The 

Department will follow the Department 

of Labor’s tribal consultation policy and 

Executive Order 13175 of November 6, 

2000. 

§ 684.130 What definitions apply to terms 

used in this part? 

In addition to the definitions found in 

secs. 3 and 166 of WIOA, and § 675.300 

of this chapter, the following definitions 

apply: 

Alaska Native-Controlled 

Organization means an organization 

whose governing board is comprised of 

51 percent or more of individuals who 

are Alaska Native as defined in secs. 

3(b) and 3(r) of the Alaska Native Claims 

Settlement Act (43 U.S.C. 1602(b), (r)). 

Carry-in means the total amount of 

funds unobligated by a grantee at the 

end of a program year. If the amount of 

funds unobligated by a grantee at the 

end of a program year is more than 20 

percent of the grantee’s ‘‘total funds 

available’’ for that program year, such 

excess amount is considered ‘‘excess 

carry-in.’’ 

DINAP means the Division of Indian 

and Native American Programs within 

the Employment and Training 

Administration of the U.S. Department 

of Labor. 

Governing body means a body of 

representatives who are duly elected, 

appointed by duly elected officials, or 

selected according to traditional tribal 

means. A governing body must have the 

authority to provide services to and to 

enter into grants on behalf of the 

organization that selected or designated 

it. 

Grant Officer means a U.S. 

Department of Labor official authorized 

to obligate Federal funds. 

High-poverty area means a Census 

tract, a set of contiguous Census tracts, 

an American Indian Reservation, 

Oklahoma Tribal Statistical Area, 

Alaska Native Village Statistical Area, or 

Alaska Native Regional Corporation 

Area, Native Hawaiian Homeland Area 

or county where the poverty rate for the 

INA population is at least 25 percent of 

the total INA population of such area 

using the most recent ACS 5-Year data. 

Alternatively, high-poverty also can 

mean, a Census tract, a set of contiguous 

Census tracts, an American Indian 

Reservation, Oklahoma Tribal Statistical 

Area, Alaska Native Village Statistical 

Area, or Alaska Native Regional 

Corporation Area, Native Hawaiian 

Homeland Area or county where the 

poverty rate for the total population is 

at least 25 percent of such area using the 

most recent ACS 5-Year data. INA 

program grantees may use either 

definition when determining if a Census 

tract is a high-poverty area. 

INA program grantee means an entity 

which is formally selected under 

subpart B of this part to operate an INA 

program and which has a grant 

agreement. 

Incumbent grantee means an entity 

that is currently receiving a grant under 

sec. 166 of WIOA. 

Indian and Native American or INA 

means, for the purpose of this part, an 

individual that is an American Indian, 

Native American, Native Hawaiian, or 

Alaska Native. 

Indian-Controlled Organization 

means an organization whose governing 

board is comprised of 51 percent or 

more individuals who are members of 

one or more Federally recognized tribes. 

Incumbent grantees who were receiving 

INA funding as of October 18, 2016 and 

met the 51 percent threshold with the 

inclusion of members of ‘‘State 

recognized tribes’’ continue to be 

eligible for WIOA sec. 166 funds as an 

Indian-Controlled Organization, as long 

as they have been continuously funded 

under WIOA as recipients of INA 

program grantees since October 18, 

2016. Tribal Colleges and Universities 

meet the definition of Indian-Controlled 

Organization for the purposes of this 

regulation. 

Native Hawaiian-Controlled 

Organization means an organization 

whose governing board is comprised of 

51 percent or more individuals who are 

Native Hawaiian as defined in sec. 7207 

of the Native Hawaiian Education Act 

(20 U.S.C. 7517). 

Total funds available means all funds 

that a grantee had ‘‘available’’ at the 

beginning of a program year. 

Underemployed means an individual 

who is working part-time but desires 

full-time employment, or who is 

working in employment not 

commensurate with the individual’s 

demonstrated level of educational and/ 

or skill achievement. 

Subpart B—Service Delivery Systems 

Applicable to Section 166 Programs 

§ 684.200 What are the requirements to 

apply for a Workforce Innovation and 

Opportunity Act grant? 

(a) To be eligible to apply for a WIOA, 

sec. 166 grant, an entity must have legal 

status as a government or as an agency 

of a government, private non-profit 

corporation, or a consortium whose 

members all qualify as one of these 

entities. 

(b) A new entity (which is not an 

incumbent grantee) must have a 

population within the designated 

geographic service area which would 

receive at least $100,000 under the 

funding formula found at § 684.270(b), 

including any amounts received for 

supplemental youth services under the 

funding formula at § 684.440(a). 

(c) Incumbent grantees which do not 

meet this dollar threshold and were 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56431 

receiving INA funding of less than 

$100,000 as of October 18, 2016 will be 

grandfathered into the program and are 

eligible to be awarded less than 

$100,000 so long as the grantees have 

continuously received less than 

$100,000 since October 18, 2016. 

(d) The Department will make an 

exception to the $100,000 minimum for 

applicants that apply for WIOA funding 

through Public Law 102–477, the 

Indian, Employment, Training, and 

Related Services demonstration 

program, if all resources to be 

consolidated under the Public Law 102– 

477 plan total at least $100,000, with at 

least $20,000 derived from sec. 166 

funds. However, incumbent Public Law 

102–477 grantees that were receiving 

INA funding of less than $20,000 as of 

October 18, 2016 will be grandfathered 

into the program and are eligible to be 

awarded less than $20,000 so long as the 

grantees have continuously received 

less than $20,000 since October 18, 

2016. 

(e) To be eligible to apply as a 

consortium, each member of the 

consortium must meet the requirements 

of paragraph (a) of this section and 

must: 

(1) Be in close proximity to one 

another, but may operate in more than 

one State; 

(2) Have an administrative unit legally 

authorized to run the program and to 

commit the other members to contracts, 

grants, and other legally-binding 

agreements; and 

(3) Be jointly and individually 

responsible for the actions and 

obligations of the consortium, including 

debts. 

(f) Entities eligible under paragraph 

(a)(1) of this section are: 

(1) Federally recognized Indian tribes; 

(2) Tribal organizations, as defined in 

25 U.S.C. 450b; 

(3) Alaska Native-controlled 

organizations; 

(4) Native Hawaiian-controlled 

organizations; 

(5) Indian-controlled organizations 

serving INAs; and 

(6) A consortium of eligible entities 

which meets the legal requirements for 

a consortium described in paragraph (b) 

of this section. 

(g) State-recognized tribal 

organizations that meet the definition of 

an Indian-controlled organization are 

eligible to apply for WIOA sec. 166 

grant funds. State-recognized tribes that 

do not meet this definition but were 

grantees under WIA as of July 1, 2015 

will be grandfathered into WIOA as 

Indian-controlled organizations 

provided they meet the definition of 

Indian-controlled organization in 

§ 684.130. 

§ 684.210 What priority for awarding 

grants is given to eligible organizations? 

(a) Federally recognized Indian tribes, 

Alaska Native entities, or a consortium 

of such entities will have priority to 

receive grants under this part for those 

geographic service areas in which they 

have legal jurisdiction, such as an 

Indian reservation, Oklahoma Tribal 

Service Area (OTSA), or Alaska Native 

Village Service Area (ANVSA). 

(b) If the Department decides not to 

make an award to an Indian tribe or 

Alaska Native entity that has legal 

jurisdiction over a service area, it will 

consult with such tribe or Alaska Native 

entity that has jurisdiction before 

selecting another entity to provide 

services for such areas. 

(c) The priority described in 

paragraphs (a) and (b) of this section 

does not apply to service areas outside 

the legal jurisdiction of an Indian tribe 

or Alaska Native entity. 

§ 684.220 What is the process for applying 

for a Workforce Innovation and Opportunity 

Act grant? 

(a) Entities seeking a WIOA sec. 166 

grant, including incumbent grantees, 

will be provided an opportunity to 

apply for a WIOA sec. 166 grant every 

4 years through a competitive grant 

process. 

(b) As part of the competitive 

application process, applicants will be 

required to submit a 4-year plan as 

described at § 684.710. The requirement 

to submit a 4-year plan does not apply 

to entities that have been granted 

approval to transfer their WIOA funds to 

the Department of the Interior pursuant 

to Public Law 102–477. 

§ 684.230 What appeal rights are available 

to entities that are denied a grant award? 

Any entity that is denied a grant 

award for which it applied in whole or 

in part may appeal the denial to the 

Office of the Administrative Law Judges 

using the procedures at § 683.800 of this 

chapter or the alternative dispute 

resolution procedures at § 683.840 of 

this chapter. The Grant Officer will 

provide an entity whose request for a 

grant award was denied, in whole or in 

part, with a copy of the appeal 

procedures. 

§ 684.240 Are there any other ways in 

which an entity may be awarded a 

Workforce Innovation and Opportunity Act 

grant? 

Yes. For areas that would otherwise 

go unserved, the Grant Officer may 

designate an entity, which has not 

submitted a competitive application, but 

which meets the qualifications for a 

grant award, to serve the particular 

geographic area. Under such 

circumstances, DINAP will seek the 

views of INA leaders in the community 

that would otherwise go unserved 

before making the decision to designate 

the entity that would serve the 

community. DINAP will inform the 

Grant Officer of the INA leaders’ views. 

The Grant Officer will accommodate 

views of INA leaders in such areas to 

the extent possible. 

§ 684.250 Can an Indian and Native 

American grantee’s grant award be 

terminated? 

(a) Yes, the Grant Officer can 

terminate a grantee’s award for cause, or 

the Secretary or another Department of 

Labor official confirmed by the Senate 

can terminate a grantee’s award in 

emergency circumstances where 

termination is necessary to protect the 

integrity of Federal funds or ensure the 

proper operation of the program under 

sec. 184(e) of WIOA. 

(b) The Grant Officer may terminate a 

grantee’s award for cause only if there 

is a substantial or persistent violation of 

the requirements in WIOA or the WIOA 

regulations. The grantee must be 

provided with written notice 60 days 

before termination, stating the specific 

reasons why termination is proposed. 

The appeal procedures at § 683.800 of 

this chapter apply. 

§ 684.260 Does the Department have to 

award a grant for every part of the country? 

No, if there are no entities meeting the 

requirements for a grant award in a 

particular area, or willing to serve that 

area, the Department will not award 

funds for that service area. The funds 

that otherwise would have been 

allocated to that area under § 684.270 

will be distributed to other INA program 

grantees, or used for other program 

purposes such as technical assistance 

and training (TAT). Unawarded funds 

used for TAT are in addition to, and not 

subject to the limitations on, amounts 

reserved under § 684.270(e). Areas 

which are unserved by the INA program 

may be restored during a subsequent 

grant award cycle, when and if a current 

grantee or other eligible entity applies 

for a grant award to serve that area. 

§ 684.270 How are Workforce Innovation 

and Opportunity Act funds allocated to 

Indian and Native American program 

grantees? 

(a) Except for reserved funds 

described in paragraph (e) of this 

section and funds used for other 

program purposes under § 684.260, all 

funds available for WIOA sec. 

166(d)(2)(A)(i) comprehensive 

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56432 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

workforce investment services program 

at the beginning of a program year will 

be allocated to INA program grantees for 

the geographic service area(s) awarded 

to them through the grant competition. 

(b) Each INA program grantee will 

receive the sum of the funds calculated 

using the following formula: 

(1) One-quarter of the funds available 

will be allocated on the basis of the 

number of unemployed American 

Indian, Alaska Native, and Native 

Hawaiian individuals in the grantee’s 

geographic service area(s) compared to 

all such unemployed persons in the 

United States. 

(2) Three-quarters of the funds 

available will be allocated on the basis 

of the number of American Indian, 

Alaska Native, and Native Hawaiian 

individuals in poverty in the grantee’s 

geographic service area(s) as compared 

to all such persons in poverty in the 

United States. 

(3) The data and definitions used to 

implement these formulas are provided 

by the U.S. Bureau of the Census. 

(c) In years immediately following the 

use of new data in the formula 

described in paragraph (b) of this 

section, based upon criteria to be 

described in the Funding Opportunity 

Announcement (FOA), the Department 

may utilize a hold harmless factor to 

reduce the disruption in grantee 

services which would otherwise result 

from changes in funding levels. This 

factor will be determined in 

consultation with the grantee 

community and the Native American 

Employment and Training Council. 

(d) The Department may reallocate 

funds from one INA program grantee to 

another if a grantee is unable to serve its 

area for any reason, such as audit or 

debt problems, criminal activity, 

internal (political) strife, failure to 

adhere to or meet grant terms and 

conditions, or lack of ability or interest. 

If a grantee has excess carry-in for a 

program year, the Department also may 

readjust the awards granted under the 

funding formula so that an amount that 

equals the previous program year’s 

carry-in will be allocated to another INA 

program grantee(s). 

(e) The Department may reserve up to 

one percent of the funds appropriated 

under WIOA sec. 166(d)(2)(A)(i) for any 

program year for TAT purposes. It will 

consult with the Native American 

Employment and Training Council in 

planning how the TAT funds will be 

used, designating activities to meet the 

unique needs of the INA communities 

served by the INA program. INA 

program grantees also will have access 

to resources available to other 

Department programs to the extent 

permitted under other law. 

Subpart C—Services to Customers 

§ 684.300 Who is eligible to receive 

services under the Indian and Native 

American program? 

(a) A person is eligible to receive 

services under the INA program if that 

person is: 

(1) An Indian, as determined by a 

policy of the INA program grantee. The 

grantee’s definition must at least 

include anyone who is a member of a 

Federally-recognized tribe; or 

(2) An Alaska Native, as defined in 

WIOA sec. 166(b)(1); or 

(3) A Native Hawaiian, as defined in 

WIOA sec. 166(b)(3). 

(b) The person also must be any one 

of the following: 

(1) Unemployed; or 

(2) Underemployed, as defined in 

§ 684.130; or 

(3) A low-income individual, as 

defined in sec. 3(36) of WIOA; or 

(4) The recipient of a bona fide layoff notice which has taken effect in the 

last 6 months or will take effect in the 

following 6-month period, who is 

unlikely to return to a previous industry 

or occupation, and who is in need of 

retraining for either employment with 

another employer or for job retention 

with the current employer; or 

(5) An individual who is employed, 

but is determined by the grantee to be 

in need of employment and training 

services to obtain or retain employment 

that allows for self-sufficiency. 

(c) If applicable, male applicants also 

must register or be registered for the 

Selective Service. 

§ 684.310 What are Indian and Native 

American program grantee allowable 

activities? 

(a) Generally, INA program grantees 

must make efforts to provide 

employment and training opportunities 

to eligible individuals (as described in 

§ 684.300) who can benefit from, and 

who are most in need of, such 

opportunities. In addition, INA program 

grantees must make efforts to develop 

programs that contribute to 

occupational development, upward 

mobility, development of new careers, 

and opportunities for nontraditional 

employment. 

(b) Allowable activities for INA 

program grantees are any services 

consistent with the purposes of this part 

that are necessary to meet the needs of 

INAs preparing to enter, reenter, or 

retain unsubsidized employment 

leading to self-sufficiency. 

(c) Examples of career services, which 

may be delivered in partnership with 

the one-stop delivery system, are 

described in sec. 134(c)(2) of WIOA and 

§ 678.430 of this chapter. 

(d) Follow-up services, including 

counseling and supportive services for 

up to 12 months after the date of exit to 

assist participants in obtaining and 

retaining employment. 

(e) Training services include the 

activities described in WIOA sec. 

134(c)(3)(D). 

(f) Allowable activities specifically 

designed for youth, as listed in sec. 129 

of WIOA, include: 

(1) Tutoring, study skills training, 

instruction, and evidence-based dropout 

prevention and recovery strategies that 

lead to completion of the requirements 

for a secondary school diploma or its 

recognized equivalent (including a 

recognized certificate of attendance or 

similar document for individuals with 

disabilities) or for a recognized 

postsecondary credential; 

(2) Alternative secondary school 

services, or dropout recovery services, 

as appropriate; 

(3) Paid and unpaid work experiences 

that have as a component academic and 

occupational education, which may 

include: 

(i) Summer employment 

opportunities and other employment 

opportunities available throughout the 

school year; 

(ii) Pre-apprenticeship programs; 

(iii) Internships and job shadowing; 

and 

(iv) On-the-job training opportunities; 

(4) Occupational skill training, which 

must include priority consideration for 

training programs that lead to 

recognized postsecondary credentials 

that are aligned with in-demand 

industry sectors or occupations in the 

local area involved; 

(5) Education offered concurrently 

with and in the same context as 

workforce preparation activities and 

training for a specific occupation or 

occupational cluster; 

(6) Leadership development 

opportunities, which may include 

community service and peer-centered 

activities encouraging responsibility and 

other positive social and civic 

behaviors, as appropriate; 

(7) Supportive services as defined in 

WIOA sec. 3(59); 

(8) Adult mentoring for the period of 

participation and a subsequent period, 

for a total of not less than 12 months; 

(9) Follow-up services for not less 

than 12 months after the completion of 

participation, as appropriate; 

(10) Comprehensive guidance and 

counseling, which may include drug 

and alcohol abuse counseling and 

referral, as appropriate; 

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(11) Financial literacy education; 

(12) Entrepreneurial skills training; 

(13) Services that provide labor 

market and employment information 

about in-demand industry sectors or 

occupations available in the local area, 

such as career awareness, career 

counseling, and career exploration 

services; and 

(14) Activities that help youth prepare 

for and transition to postsecondary 

education and training. 

(g) In addition, allowable activities 

include job development and 

employment outreach, including: 

(1) Support of the Tribal Employment 

Rights Office (TERO) program; 

(2) Negotiation with employers to 

encourage them to train and hire 

participants; 

(3) Establishment of linkages with 

other service providers to aid program 

participants; 

(4) Establishment of management 

training programs to support tribal 

administration or enterprises; and 

(5) Establishment of linkages with 

remedial education, such as adult basic 

education, basic literacy training, and 

training programs for limited English 

proficient (LEP) individuals, as 

necessary. 

(h) Participants may be enrolled in 

more than one activity at a time and 

may be sequentially enrolled in 

multiple activities. 

(i) Services may be provided to a 

participant in any sequence based on 

the particular needs of the participant. 

§ 684.320 Are there any restrictions on 

allowable activities? 

(a) Training services must be directly 

linked to an in-demand industry sector 

or occupation in the service area, or in 

another area to which a participant 

receiving such services is willing to 

relocate. 

(b) INA program grantees must 

provide on-the-job training (OJT) 

services consistent with the definition 

provided in WIOA sec. 3(44) and other 

limitations in WIOA. Individuals in OJT 

must: 

(1) Be compensated at the same rates, 

including periodic increases, as trainees 

or employees who are similarly situated 

in similar occupations by the same 

employer and who have similar 

training, experience, and skills; and 

(2) Be provided benefits and working 

conditions at the same level and to the 

same extent as other trainees or 

employees working a similar length of 

time and doing the same type of work. 

(c) In addition, OJT contracts under 

this title must not be entered into with 

employers who have: 

(1) Received payments under previous 

contracts under WIOA or the Workforce 

Investment Act of 1998 and have 

exhibited a pattern of failing to provide 

OJT participants with continued, longterm employment as regular employees 

with wages and employment benefits 

(including health benefits) and working 

conditions at the same level and to the 

same extent as other employees working 

a similar length of time and doing the 

same type of work; or 

(2) Have exhibited a pattern of 

violating paragraphs (b)(1) and/or (2) of 

this section. 

(d) INA program grantees are 

prohibited from using funds to 

encourage the relocation of a business, 

as described in WIOA sec. 181(d) and 

§ 683.260 of this chapter. 

(e) INA program grantees must only 

use WIOA funds for activities that are in 

addition to those that would otherwise 

be available to the INA population in 

the area in the absence of such funds. 

(f) INA program grantees must not 

spend funds on activities that displace 

currently employed individuals, impair 

existing contracts for services, or in any 

way affect union organizing. 

(g) Under § 683.255 of this chapter, 

sectarian activities involving WIOA 

financial assistance or participants are 

limited in accordance with the 

provisions of sec. 188(a)(3) of WIOA. 

§ 684.330 What is the role of Indian and 

Native American program grantees in the 

one-stop delivery system? 

(a) In those local areas where an INA 

program grantee conducts field 

operations or provides substantial 

services, the INA program grantee is a 

required partner in the local one-stop 

delivery system and is subject to the 

provisions relating to such partners 

described in part 678 of this chapter. 

Consistent with those provisions, a 

Memorandum of Understanding (MOU) 

between the INA program grantee and 

the Local Workforce Development Board 

(WDB) over the operation of the onestop center(s) in the Local WDB’s 

workforce development area also must 

be executed. Where the Local WDB is an 

alternative entity under § 679.150 of this 

chapter, the INA program grantee must 

negotiate with the alternative entity on 

the terms of its MOU and the scope of 

its on-going role in the local workforce 

development system, as specified in 

§§ 678.420 and 678.500 through 678.510 

of this chapter. In local areas with a 

large concentration of potentially 

eligible INA participants, which are in 

an INA program grantee’s service area 

but in which the grantee does not 

conduct operations or provide 

substantial services, the INA program 

grantee should encourage such 

individuals to participate in the onestop delivery system in that area in 

order to receive WIOA services. 

(b) At a minimum, the MOU must 

contain the provisions listed in WIOA 

sec. 121(c) and: 

(1) The exchange of information on 

the services available and accessible 

through the one-stop delivery system 

and the INA program; 

(2) As necessary to provide referrals 

and case management services, the 

exchange of information on INA 

participants in the one-stop delivery 

system and the INA program; and 

(3) Arrangements for the funding of 

services provided by the one-stop(s), 

consistent with the requirements that no 

expenditures may be made with INA 

program funds for individuals who are 

not eligible or for services not 

authorized under this part. 

(c) Where the INA program grantee 

has failed to enter into a MOU with the 

Local WDB, the INA program grantee 

must describe in its 4-year plan the 

good-faith efforts made in order to 

negotiate an MOU with the Local WDB. 

(d) Pursuant to WIOA sec. 

121(h)(2)(D)(iv), INA program grantees 

will not be subject to the funding of the 

one-stop infrastructure unless otherwise 

agreed upon in the MOU under subpart 

C of part 678 of this chapter. 

§ 684.340 What policies govern payments 

to participants, including wages, training 

allowances or stipends, or direct payments 

for supportive services? 

(a) INA program grantees may pay 

training allowances or stipends to 

participants for their successful 

participation in and completion of 

education or training services (except 

such allowance may not be provided to 

participants in OJT). Allowances or 

stipends may not exceed the Federal or 

State minimum wage, whichever is 

higher. 

(b) INA program grantees may not pay 

a participant in a training activity when 

the person fails to participate without 

good cause. 

(c) If a participant in a WIOA-funded 

activity, including participants in OJT, 

is involved in an employer-employee 

relationship, that participant must be 

paid wages and fringe benefits at the 

same rates as trainees or employees who 

have similar training, experience and 

skills and which are not less than the 

higher of the applicable Federal, State, 

or local minimum wage. 

(d) In accordance with the policy 

described in the 4-year plan submitted 

as part of the competitive process, INA 

program grantees may pay incentive 

bonuses to participants who meet or 

exceed individual employability or 

training goals established in writing in 

the individual employment plan. 

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(e) INA program grantees must 

comply with other restrictions listed in 

WIOA secs. 181 through 195, which 

apply to all programs funded under title 

I of WIOA, including the provisions on 

labor standards in WIOA sec. 181(b). 

§ 684.350 What will the Department do to 

strengthen the capacity of Indian and Native 

American program grantees to deliver 

effective services? 

The Department will provide 

appropriate TAT, as necessary, to INA 

program grantees. This TAT will assist 

INA program grantees to improve 

program performance and improve the 

quality of services to the target 

population(s), as resources permit. 

Subpart D—Supplemental Youth 

Services 

§ 684.400 What is the purpose of the 

supplemental youth services program? 

The purpose of this program is to 

provide supplemental employment and 

training and related services to lowincome INA youth on or near Indian 

reservations and in Oklahoma, Alaska, 

or Hawaii. 

§ 684.410 What entities are eligible to 

receive supplemental youth services 

funding? 

Entities eligible to receive 

supplemental youth services funding 

are limited to: Those tribal, Alaska 

Native, Native Hawaiian and Oklahoma 

tribal grantees funded under WIOA sec. 

166(d)(2)(A)(i) or other grantees serving 

those areas, and entities serving the 

populations specified in § 684.400 that 

received funding under sec. 

166(d)(2)(A)(ii) of the Workforce 

Investment Act. 

§ 684.420 What are the planning 

requirements for receiving supplemental 

youth services funding? 

Applicants eligible to apply for 

supplemental youth funding must 

describe the supplemental youth 

services they intend to provide in the 4- 

year plan that they will submit as part 

of the competitive application process. 

The information on youth services will 

be incorporated into the overall 4-year 

plan, which is more fully described in 

§§ 684.700 and 684.710, and is required 

for both adult and youth funds. As 

indicated in § 684.710(c), additional 

planning information required for 

applicants requesting supplemental 

youth funding will be provided in the 

FOA. The Department envisions that the 

strategy for youth funds will not be 

extensive; however, grantees will be 

required to provide the number of youth 

it plans to serve and projected 

performance outcomes. The Department 

also supports youth activities that 

preserve INA culture and will support 

strategies that promote INA values. 

§ 684.430 What individuals are eligible to 

receive supplemental youth services? 

(a) Participants in supplemental youth 

services activities must be: 

(1) American Indian, Alaska Native or 

Native Hawaiian as determined by the 

INA program grantee according to 

§ 684.300(a); 

(2) Between the age of 14 and 24; and 

(3) A low-income individual as 

defined at WIOA sec. 3(36) except up to 

five percent of the participants during a 

program year in an INA youth program 

may not be low-income individuals 

provided they meet the eligibility 

requirements of paragraphs (a)(1) and 

(2) of this section. 

(b) For the purpose of this section, the 

term ‘‘low-income,’’ used with respect 

to an individual, also includes a youth 

living in a high-poverty area. 

§ 684.440 How is funding for supplemental 

youth services determined? 

(a) Supplemental youth funding will 

be allocated to eligible INA program 

grantees on the basis of the relative 

number of INA youth between the ages 

of 14 and 24 living in poverty in the 

grantee’s geographic service area 

compared to the number of INA youth 

between the ages of 14 and 24 living in 

poverty in all eligible geographic service 

areas. The Department reserves the right 

to redefine the supplemental youth 

funding stream in future program years, 

in consultation with the Native 

American Employment and Training 

Council, as program experience 

warrants and as appropriate data 

become available. 

(b) The data used to implement this 

formula are provided by the U.S. Bureau 

of the Census. 

(c) The hold harmless factor described 

in § 684.270(c) also applies to 

supplemental youth services funding. 

This factor also will be determined in 

consultation with the grantee 

community and the Native American 

Employment and Training Council. 

(d) The reallocation provisions of 

§ 684.270(d) also apply to supplemental 

youth services funding. 

(e) Any supplemental youth services 

funds not allotted to a grantee or refused 

by a grantee may be used for the 

purposes outlined in § 684.270(e), as 

described in § 684.260. Any such funds 

are in addition to, and not subject to the 

limitations on, amounts reserved under 

§ 684.270(e). 

§ 684.450 How will supplemental youth 

services be provided? 

(a) INA program grantees may offer 

supplemental services to youth 

throughout the school year, during the 

summer vacation, and/or during other 

breaks during the school year at their 

discretion. 

(b) The Department encourages INA 

program grantees to work with local 

educational agencies to provide 

academic credit for youth activities 

whenever possible. 

(c) INA program grantees may provide 

participating youth with the activities 

referenced in § 684.310(e). 

§ 684.460 What performance indicators are 

applicable to the supplemental youth 

services program? 

(a) Pursuant to WIOA secs. 166(e)(5) 

and 166(h), the performance indicators 

at WIOA sec. 116(b)(2)(A)(ii) apply to 

the INA youth program, which must 

include: 

(1) The percentage of program 

participants who are in education or 

training activities, or in unsubsidized 

employment, during the second quarter 

after exit from the program; 

(2) The percentage of program 

participants who are in education or 

training activities, or in unsubsidized 

employment, during the fourth quarter 

after exit from the program; 

(3) The median earnings of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(4) The percentage of program 

participants who obtain a recognized 

postsecondary credential, or a 

secondary school diploma or its 

recognized equivalent (subject to WIOA 

sec. 116(b)(2)(A)(iii)) during 

participation in or within 1 year after 

exit from the program; 

(5) The percentage of program 

participants who, during a program 

year, are in an education or training 

program that leads to a recognized 

postsecondary credential or 

employment and who are achieving 

measurable skill gains toward such a 

credential or employment; and 

(6) The indicators of effectiveness in 

serving employers established under 

WIOA sec. 116(b)(2)(A)(iv). 

(b) In addition to the performance 

indicators in paragraphs (a)(1) through 

(6) of this section, the Secretary, in 

consultation with the Native American 

Employment and Training Council, 

must develop a set of performance 

indicators and standards that is in 

addition to the primary indicators of 

performance that are applicable to the 

INA program under this section. 

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Subpart E—Services to Communities 

§ 684.500 What services may Indian and 

Native American grantees provide to or for 

employers under the Workforce Innovation 

and Opportunity Act? 

(a) INA program grantees may provide 

a variety of services to employers in 

their areas. These services may include: 

(1) Workforce planning which 

involves the recruitment of current or 

potential program participants, 

including job restructuring services; 

(2) Recruitment and assessment of 

potential employees, with priority given 

to potential employees who are or who 

might become eligible for program 

services; 

(3) Pre-employment training; 

(4) Customized training; 

(5) OJT; 

(6) Post-employment services, 

including training and support services 

to encourage job retention and 

upgrading; 

(7) Work experience for public or 

private sector work sites; and 

(8) Other innovative forms of worksite 

training. 

(b) In addition to the services listed in 

paragraph (a) of this section, other 

grantee-determined services (as 

described in the grantee’s 4-year plan), 

which are intended to assist eligible 

participants to obtain or retain 

employment also may be provided to or 

for employers. 

§ 684.510 What services may Indian and 

Native American grantees provide to the 

community at large under the Workforce 

Innovation and Opportunity Act? 

(a) INA program grantees may provide 

services to the INA communities in their 

service areas by engaging in program 

development and service delivery 

activities which: 

(1) Strengthen the capacity of Indiancontrolled institutions to provide 

education and work-based learning 

services to INA youth and adults, 

whether directly or through other INA 

institutions such as tribal colleges; 

(2) Increase the community’s capacity 

to deliver supportive services, such as 

child care, transportation, housing, 

health, and similar services needed by 

clients to obtain and retain employment; 

(3) Use program participants engaged 

in education, training, work experience, 

or similar activities to further the 

economic and social development of 

INA communities in accordance with 

the goals and values of those 

communities; and 

(4) Engage in other communitybuilding activities described in the INA 

program grantee’s 4-year plan. 

(b) INA program grantees should 

develop their 4-year plan in conjunction 

with, and in support of, strategic tribal 

planning and community development 

goals. 

§ 684.520 Must Indian and Native 

American program grantees give preference 

to Indian and Native American entities in 

the selection of contractors or service 

providers? 

Yes, INA program grantees must give 

as much preference as possible to Indian 

organizations and to Indian-owned 

economic enterprises, as defined in sec. 

3 of the Indian Financing Act of 1974 

(25 U.S.C. 1452), when awarding any 

contract or subgrant. 

§ 684.530 What rules govern the issuance 

of contracts and/or subgrants? 

In general, INA program grantees 

must follow the rules of Uniform 

Administrative Requirements, Cost 

Principles, & Audit Requirements for 

Federal Awards when awarding 

contracts and/or subgrants under WIOA 

sec. 166. These requirements are 

codified at 2 CFR part 200, subpart E 

(and Department modifications at 2 CFR 

part 2900), and covered in WIOA 

regulations at § 683.200 of this chapter. 

These rules do not apply to OJT contract 

awards. 

Subpart F—Accountability for Services 

and Expenditures 

§ 684.600 To whom is the Indian and 

Native American program grantee 

accountable for the provision of services 

and the expenditure of Indian and Native 

American funds? 

(a) The INA program grantee is 

responsible to the INA community to be 

served by INA funds. 

(b) The INA program grantee also is 

responsible to the Department of Labor, 

which is charged by law with ensuring 

that all WIOA funds are expended: 

(1) According to applicable laws and 

regulations; 

(2) For the benefit of the identified 

INA client group; and 

(3) For the purposes approved in the 

grantee’s plan and signed grant 

document. 

§ 684.610 How is this accountability 

documented and fulfilled? 

(a) Each INA program grantee must 

establish its own internal policies and 

procedures to ensure accountability to 

the INA program grantee’s governing 

body, as the representative of the INA 

community(ies) served by the INA 

program. At a minimum, these policies 

and procedures must provide a system 

for governing body review and oversight 

of program plans and measures and 

standards for program performance. 

(b) Accountability to the Department 

is accomplished in part through on-site 

program reviews (monitoring), which 

strengthen the INA program grantee’s 

capability to deliver effective services 

and protect the integrity of Federal 

funds. 

(c) In addition to audit information, as 

described at § 684.860 and program 

reviews, accountability to the 

Department is documented and fulfilled 

by the submission of quarterly financial 

and program reports, and compliance 

with the terms and conditions of the 

grant award. 

§ 684.620 What performance indicators are 

in place for the Indian and Native American 

program? 

(a) Pursuant to WIOA secs. 166(e)(5) 

and 166(h), the performance indicators 

at WIOA sec. 116(b)(2)(A)(i) apply to the 

INA program which must include: 

(1) The percentage of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(2) The percentage of program 

participants who are in unsubsidized 

employment during the fourth quarter 

after exit from the program; 

(3) The median earnings of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(4) The percentage of program 

participants who obtain a recognized 

postsecondary credential, or a 

secondary school diploma or its 

recognized equivalent (subject to WIOA 

sec. 116(b)(2)(A)(iii)) during 

participation in or within 1 year after 

exit from the program; 

(5) The percentage of program 

participants who, during a program 

year, are in an education or training 

program that leads to a recognized 

postsecondary credential or 

employment and who are achieving 

measurable skill gains toward such a 

credential or employment; and 

(6) The indicators of effectiveness in 

serving employers established under 

WIOA sec. 116(b)(2)(A)(iv). 

(b) In addition to the performance 

indicators at WIOA sec. 116(b)(2)(A)(i), 

the Department, in consultation with 

the Native American Employment and 

Training Council, must develop a set of 

performance indicators and standards 

that are applicable to the INA program. 

§ 684.630 What are the requirements for 

preventing fraud and abuse under the 

WIOA? 

(a) INA program grantees must 

establish such fiscal control and fund 

accounting procedures as may be 

necessary to assure the proper disbursal 

of, and accounting for, Federal funds. 

Such procedures must ensure that all 

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financial transactions are conducted and 

records maintained in accordance with 

generally accepted accounting 

principles. 

(b) Each INA program grantee must 

have rules to prevent conflict of interest 

by its governing body. These conflict of 

interest rules must include a rule 

prohibiting any member of any 

governing body or council associated 

with the INA program grantee from 

voting on any matter which would 

provide a direct financial benefit to that 

member, or to a member of his or her 

immediate family, in accordance with 

§ 683.200(c)(5)(iii) of this chapter and 2 

CFR parts 200 and 2900. 

(c) Officers or agents of the INA 

program grantee must not solicit or 

personally accept gratuities, favors, or 

anything of monetary value from any 

actual or potential contractor, 

subgrantee, vendor, or participant. This 

rule also must apply to officers or agents 

of the grantee’s contractors and/or 

subgrantees. This prohibition does not 

apply to: 

(1) Any rebate, discount, or similar 

incentive provided by a vendor to its 

customers as a regular feature of its 

business; and 

(2) Items of nominal monetary value 

distributed consistent with the cultural 

practices of the INA community served 

by the grantee. 

(d) No person who selects program 

participants or authorizes the services 

provided to them may select or 

authorize services to any participant 

who is such a person’s spouse, parent, 

sibling, or child unless: 

(1)(i) The participant involved is a 

low-income individual; or 

(ii) The community in which the 

participant resides has a population of 

less than 1,000 INAs combined; and 

(2) The INA program grantee has 

adopted and implemented the policy 

described in the 4-year plan to prevent 

favoritism on behalf of such relatives. 

(e) INA program grantees are subject 

to the provisions of 41 U.S.C. 8702 

relating to kickbacks. 

(f) No assistance provided under 

WIOA may involve political activities. 

(g) INA program grantees must 

comply with the restrictions on 

lobbying activities pursuant to sec. 195 

of WIOA and the restrictions on 

lobbying codified in the Department 

regulations at 29 CFR part 93. 

(h) The provisions of 18 U.S.C. 665 

and 666 prohibiting embezzlement 

apply to programs under WIOA. 

(i) Recipients of financial assistance 

under WIOA sec. 166 are prohibited 

from discriminatory practices as 

outlined at WIOA sec. 188, and the 

regulations implementing WIA sec. 188, 

at 29 CFR part 38. However, this does 

not affect the legal requirement that all 

INA participants be INAs. Also, INA 

program grantees are not obligated to 

serve populations outside the 

geographic boundaries for which they 

receive funds. However, INA program 

grantees are not precluded from serving 

eligible individuals outside their 

geographic boundaries if the INA 

program grantee chooses to do so. 

§ 684.640 What grievance systems must 

an Indian and Native American program 

grantee provide? 

INA program grantees must establish 

grievance procedures consistent with 

the requirements of WIOA sec. 181(c) 

and § 683.600 of this chapter. 

§ 684.650 Can Indian and Native American 

grantees exclude segments of the eligible 

population? 

(a) No, INA program grantees cannot 

exclude segments of the eligible 

population except as otherwise 

provided in this part. INA program 

grantees must document in their 4-year 

plan that a system is in place to afford 

all members of the eligible population 

within the service area for which the 

grantee was designated an equitable 

opportunity to receive WIOA services 

and activities. 

(b) Nothing in this section restricts the 

ability of INA program grantees to target 

subgroups of the eligible population (for 

example, the disabled, substance 

abusers, TANF recipients, or similar 

categories), as outlined in an approved 

4-year plan. However, it is unlawful to 

target services to subgroups on grounds 

prohibited by WIOA sec. 188 and 29 

CFR part 38, including tribal affiliation 

(which is considered national origin). 

Outreach efforts, on the other hand, may 

be targeted to any subgroups. 

Subpart G—Section 166 Planning/

Funding Process 

§ 684.700 What is the process for 

submitting a 4-year plan? 

Every 4 years, INA program grantees 

must submit a 4-year strategy for 

meeting the needs of INAs in 

accordance with WIOA sec. 166(e). This 

plan will be part of, and incorporated 

with, the 4-year competitive process 

described in WIOA sec. 166(c) and 

§ 684.220. Accordingly, specific 

requirements for the submission of a 4- 

year plan will be provided in a FOA and 

will include the information described 

at § 684.710. 

§ 684.710 What information must be 

included in the 4-year plans as part of the 

competitive application? 

(a) The 4-year plan, which will be 

submitted as part of the competitive 

process, must include the information 

required at WIOA secs. 166(e)(2)–(5) 

which are: 

(1) The population to be served; 

(2) The education and employment 

needs of the population to be served and 

the manner in which the activities to be 

provided will strengthen the ability of 

the individuals served to obtain or 

retain unsubsidized employment 

leading to self-sufficiency; 

(3) A description of the activities to be 

provided and the manner in which such 

activities are to be integrated with other 

appropriate activities; and 

(4) A description of the performance 

indicators and expected levels of 

performance. 

(b) The 4-year plan also must include 

any additional information requested in 

the FOA. 

(c) INA program grantees receiving 

supplemental youth funds will be 

required to provide additional 

information (at a minimum the number 

of youth it plans to serve and the 

projected performance outcomes) in the 

4-year plan that describes a strategy for 

serving low-income, INA youth. 

Additional information required for 

supplemental youth funding will be 

identified in the FOA. 

§ 684.720 When must the 4-year plan be 

submitted? 

The 4-year plans will be submitted as 

part of the competitive FOA process 

described at § 684.220. Accordingly, the 

due date for the submission of the 4- 

year plan will be specified in the FOA. 

§ 684.730 How will the Department review 

and approve such plans? 

(a) It is the Department’s intent to 

approve a grantee’s 4-year strategic plan 

before the date on which funds for the 

program become available unless: 

(1) The planning documents do not 

contain the information specified in the 

regulations in this part and/or the FOA; 

or 

(2) The services which the INA 

program grantee proposes are not 

permitted under WIOA or applicable 

regulations. 

(b) After competitive grant selections 

have been made, the DINAP office will 

assist INA program grantees in resolving 

any outstanding issues with the 4-year 

plan. However, the Department may 

delay funding to grantees until all issues 

have been resolved. If the issues with 

the application of an incumbent grantee 

cannot be solved, the Department will 

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reallocate funds from the grantee to 

other grantees that have an approved 4- 

year plan. The Grant Officer may delay 

executing a grant agreement and 

obligating funds to an entity selected 

through the competitive process until 

all the required documents—including 

the 4-year plan—are in place and 

satisfactory. 

(c) The Department may approve a 

portion of the plan and disapprove other 

portions. 

(d) The grantee also has the right to 

appeal a nonselection decision or a 

decision by the Department to deny or 

reallocate funds based on unresolved 

issues with the applicant’s application 

or 4-year plan. Such an appeal would go 

to the Office of the Administrative Law 

Judges under procedures at § 683.800 or 

§ 683.840 of this chapter in the case of 

a nonelection. 

§ 684.740 Under what circumstances can 

the Department or the Indian and Native 

American grantee modify the terms of the 

grantee’s plan(s)? 

(a) The Department may unilaterally 

modify the INA program grantee’s plan 

to add funds or, if required by 

Congressional action, to reduce the 

amount of funds available for 

expenditure. 

(b) The INA program grantee may 

request approval to modify its plan to 

add, expand, delete, or diminish any 

service allowable under the regulations 

in this part. The INA program grantee 

may modify its plan without our 

approval, unless the modification 

reduces the total number of participants 

to be served annually under the 

grantee’s program by a number which 

exceeds 25 percent of the participants 

previously proposed to be served, or by 

25 participants, whichever is larger. 

Subpart H—Administrative 

Requirements 

§ 684.800 What systems must an Indian 

and Native American program grantee have 

in place to administer an Indian and Native 

American program? 

(a) Each INA program grantee must 

have a written system describing the 

procedures the grantee uses for: 

(1) The hiring and management of 

personnel paid with program funds; 

(2) The acquisition and management 

of property purchased with program 

funds; 

(3) Financial management practices; 

(4) A participant grievance system 

which meets the requirements in sec. 

181(c) of WIOA and § 683.600 of this 

chapter; and 

(5) A participant records system. 

(b) Participant records systems must 

include: 

(1) A written or computerized record 

containing all the information used to 

determine the person’s eligibility to 

receive program services; 

(2) The participant’s signature 

certifying that all the eligibility 

information he or she provided is true 

to the best of his/her knowledge; and 

(3) The information necessary to 

comply with all program reporting 

requirements. 

§ 684.810 What types of costs are 

allowable expenditures under the Indian 

and Native American program? 

Rules relating to allowable costs 

under WIOA are covered in §§ 683.200 

through 683.215 of this chapter. 

§ 684.820 What rules apply to 

administrative costs under the Indian and 

Native American program? 

The definition and treatment of 

administrative costs are covered in 

§§ 683.205(b) and 683.215 of this 

chapter. 

§ 684.830 Does the Workforce Innovation 

and Opportunity Act administrative cost 

limit for States and local areas apply to 

WIOA grants? 

No, under § 683.205(b) of this chapter, 

limits on administrative costs for sec. 

166 grants will be negotiated with the 

grantee and identified in the grant 

award document. 

§ 684.840 How must Indian and Native 

American program grantees classify costs? 

Cost classification is covered in the 

WIOA regulations at §§ 683.200 through 

683.215 of this chapter. For purposes of 

the INA program, program costs also 

include costs associated with other 

activities such as TERO, and supportive 

services, as defined in WIOA sec. 3(59). 

§ 684.850 What cost principles apply to 

Indian and Native American funds? 

The cost principles at 2 CFR part 200, 

subpart E, Uniform Administrative 

Requirements, Cost Principles, & Audit 

Requirements for Federal Awards, and 

the Department’s modifications to 2 CFR 

part 200, subpart E, at 2 CFR part 2900, 

apply to INA program grantees. 

§ 684.860 What audit requirements apply 

to Indian and Native American grants? 

(a) WIOA sec. 166 grantees must 

follow the audit requirements at 2 CFR 

part 200, subpart F, Uniform 

Administrative Requirements, Cost 

Principles, & Audit Requirements for 

Federal Awards, and the Department’s 

modifications to 2 CFR part 200 at 2 

CFR part 2900. 

(b) Grants made and contracts and 

cooperative agreements entered into 

under sec. 166 of WIOA are subject to 

the requirements of chapter 75 of 

subtitle V of title 31, United States 

Code, and charging of costs under this 

section are subject to appropriate 

circulars issued by the Office of 

Management and Budget and to 2 CFR 

part 200 and the Department’s 

modifications to 2 CFR part 200 at 2 

CFR part 2900. 

§ 684.870 What is ‘‘program income’’ and 

how is it regulated in the Indian and Native 

American program? 

(a) Program income is regulated by 

WIOA sec. 194(7)(A), §§ 683.200(c)(6) 

through (8) and 683.300(c)(5) of this 

chapter, and the applicable rules in 2 

CFR parts 200 and 2900. 

(b) For grants made under this part, 

program income does not include 

income generated by the work of a work 

experience participant in an enterprise, 

including an enterprise owned by an 

INA entity, whether in the public or 

private sector. 

(c) Program income does not include 

income generated by the work of an OJT 

participant in an establishment under 

paragraph (b) of this section. 

Subpart I—Miscellaneous Program 

Provisions 

§ 684.900 Does the Workforce Innovation 

and Opportunity Act provide regulatory 

and/or statutory waiver authority? 

Yes, WIOA sec. 166(i)(3) permits 

waivers of any statutory or regulatory 

requirement of title I of WIOA that are 

inconsistent with the specific needs of 

the INA program grantee (except for the 

areas cited in § 684.920). Such waivers 

may include those necessary to facilitate 

WIOA support of long-term community 

development goals. 

§ 684.910 What information is required in a 

waiver request? 

(a) To request a waiver, an INA 

program grantee must submit a waiver 

request indicating how the waiver will 

improve the grantee’s WIOA program 

activities. The waiver process will be 

generally consistent with, but not 

identical to, the waiver requirements 

under sec. 189(i)(3)(B) of WIOA. INA 

program grantees may submit a waiver 

request as part of the 4-year strategic 

plan. 

(b) A waiver may be requested at the 

beginning of a 4-year grant award cycle 

or anytime during a 4-year award cycle. 

However, all waivers expire at the end 

of the 4-year award cycle. INA program 

grantees seeking to continue an existing 

waiver in a new 4-year grant cycle must 

submit a new waiver request in 

accordance with paragraph (a) of this 

section. 

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56438 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

§ 684.920 What provisions of law or 

regulations may not be waived? 

Requirements relating to: 

(a) Wage and labor standards; 

(b) Worker rights; 

(c) Participation and protection of 

workers and participants; 

(d) Grievance procedures; 

(e) Judicial review; and 

(f) Non-discrimination may not be 

waived. 

§ 684.930 May Indian and Native American 

program grantees combine or consolidate 

their employment and training funds? 

Yes. INA program grantees may 

consolidate their employment and 

training funds under WIOA with 

assistance received from related 

programs in accordance with the 

provisions of the Public Law 102–477, 

the Indian Employment, Training, and 

Related Services Demonstration Act of 

1992, as amended by Public Law 106– 

568, the Omnibus Indian Advancement 

Act of 2000 (25 U.S.C. 3401 et seq.). 

WIOA funds consolidated under Public 

Law 102–477 are administered by 

Department of the Interior (DOI). 

Accordingly, the administrative 

oversight for funds transferred to DOI, 

including the reporting of financial 

expenditures and program outcomes are 

the responsibility of DOI. However, the 

Department must review the initial 477 

plan and ensure that all Departmental 

programmatic and financial obligations 

have been met before WIOA funds are 

approved to be transferred to DOI and 

consolidated with other related 

programs. The initial plan must meet 

the statutory requirements of WIOA. 

After approval of the initial plan, all 

subsequent plans that are renewed or 

updated from the initial plan may be 

approved by DOI without further review 

by the Department. 

§ 684.940 What is the role of the Native 

American Employment and Training 

Council? 

The Native American Employment 

and Training Council is a body 

composed of representatives of the 

grantee community which advises the 

Secretary on the operation and 

administration of the INA employment 

and training program. WIOA sec. 

166(i)(4) continues the Council 

essentially as it is currently constituted. 

The Department continues to support 

the Council. 

§ 684.950 Does the Workforce Innovation 

and Opportunity Act provide any additional 

assistance to unique populations in Alaska 

and Hawaii? 

Yes. Notwithstanding any other 

provision of law, the Secretary is 

authorized to award grants, on a 

competitive basis, to entities with 

demonstrated experience and expertise 

in developing and implementing 

programs for the unique populations 

who reside in Alaska or Hawaii, 

including public and private nonprofit 

organizations, tribal organizations, 

American Indian tribal colleges or 

universities, institutions of higher 

education, or consortia of such 

organizations or institutions, to improve 

job training and workforce investment 

activities for such unique populations. 

■ 18. Add part 685 to read as follows: 

PART 685—NATIONAL FARMWORKER 

JOBS PROGRAM UNDER TITLE I OF 

THE WORKFORCE INNOVATION AND 

OPPORTUNITY ACT 

Subpart A—Purpose and Definitions 

Sec. 

685.100 What is the purpose of the National 

Farmworker Jobs Program and the other 

services and activities established under 

the Workforce Innovation and 

Opportunity Act? 

685.110 What definitions apply to this 

program? 

685.120 How does the Department 

administer the National Farmworker Jobs 

Program? 

685.130 How does the Department assist 

grantees to serve eligible migrant and 

seasonal farmworkers? 

685.140 What Workforce Innovation and 

Opportunity Act (WIOA) regulations 

apply to the programs authorized under 

WIOA? 

Subpart B—The Service Delivery System for 

the National Farmworker Jobs Program 

Sec. 

685.200 Who is eligible to receive a 

National Farmworker Jobs Program 

grant? 

685.210 How does an eligible entity become 

a grantee? 

685.220 What is the role of the grantee in 

the one-stop delivery system? 

685.230 Can a grantee’s designation be 

terminated? 

685.240 How does the Department use 

funds appropriated under the Workforce 

Innovation and Opportunity Act for the 

National Farmworker Jobs Program? 

Subpart C—The National Farmworker Jobs 

Program Services to Eligible Migrant and 

Seasonal Farmworkers 

Sec. 

685.300 What are the general 

responsibilities of grantees? 

685.310 What are the basic components of 

a National Farmworker Jobs Program 

service delivery strategy? 

685.320 Who is eligible to receive services 

under the National Farmworker Jobs 

Program? 

685.330 How are services delivered to 

eligible migrant and seasonal 

farmworkers? 

685.340 What career services may grantees 

provide to eligible migrant and seasonal 

farmworkers? 

685.350 What training services may 

grantees provide to eligible migrant and 

seasonal farmworkers? 

685.360 What housing services may 

grantees provide to eligible migrant and 

seasonal farmworkers? 

685.370 What services may grantees 

provide to eligible migrant and seasonal 

farmworkers youth participants aged 14– 

24? 

685.380 What related assistance services 

may be provided to eligible migrant and 

seasonal farmworkers? 

685.390 When may eligible migrant and 

seasonal farmworkers receive related 

assistance? 

Subpart D—Performance Accountability, 

Planning, and Waiver Provisions 

Sec. 

685.400 What are the indicators of 

performance that apply to the National 

Farmworker Jobs Program? 

685.410 What planning documents must a 

grantee submit? 

685.420 What information is required in the 

grantee program plan? 

685.430 Under what circumstances are the 

terms of the grantee’s program plan 

modified by the grantee or the 

Department? 

685.440 How are costs classified under the 

National Farmworker Jobs Program? 

685.450 What is the Workforce Innovation 

and Opportunity Act administrative cost 

limit for National Farmworker Jobs 

Program grants? 

685.460 Are there regulatory and/or 

statutory waiver provisions that apply to 

the Workforce Innovation and 

Opportunity Act? 

685.470 How can grantees request a waiver? 

Subpart E—Supplemental Youth Workforce 

Investment Activity Funding Under the 

Workforce Innovation and Opportunity Act 

Sec. 

685.500 What is supplemental youth 

workforce investment activity funding? 

685.510 What requirements apply to grants 

funded by the Workforce Innovation and 

Opportunity Act? 

685.520 What is the application process for 

obtaining a grant funded by the 

Workforce Innovation and Opportunity 

Act? 

685.530 What planning documents are 

required for grants funded by the 

Workforce Innovation and Opportunity 

Act? 

685.540 How are funds allocated to grants 

funded by the Workforce Innovation and 

Opportunity Act? 

685.550 Who is eligible to receive services 

through grants funded by the Workforce 

Innovation and Opportunity Act? 

Authority: Secs. 167, 189, 503, Public Law 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56439 

Subpart A—Purpose and Definitions 

§ 685.100 What is the purpose of the 

National Farmworker Jobs Program and the 

other services and activities established 

under the Workforce Innovation and 

Opportunity Act? 

The purpose of the NFJP and the other 

services and activities established under 

WIOA sec. 167 is to strengthen the 

ability of eligible migrant and seasonal 

farmworkers (MSFWs) and their 

dependents to obtain or retain 

unsubsidized employment, stabilize 

their unsubsidized employment and 

achieve economic self-sufficiency, 

including upgraded employment in 

agriculture. This part provides the 

regulatory requirements applicable to 

the expenditure of WIOA secs. 167 and 

127(a)(1) funds for such programs, 

services, and activities. 

§ 685.110 What definitions apply to this 

program? 

In addition to the definitions found in 

§ 675.300 of this chapter, the following 

definitions apply to programs under this 

part: 

Allowances means direct payments 

made to participants during their 

enrollment to enable them to participate 

in the career services described in 

WIOA sec. 134(c)(2)(A)(xii) or training 

services as appropriate. 

Dependent means an individual who: 

(1) Was claimed as a dependent on 

the eligible MSFW’s Federal income tax 

return for the previous year; or 

(2) Is the spouse of the eligible 

MSFW; or 

(3) If not claimed as a dependent for 

Federal income tax purposes, is able to 

establish: 

(i) A relationship as the eligible 

MSFW’s; 

(A) Child, grandchild, great 

grandchild, including legally adopted 

children; 

(B) Stepchild; 

(C) Brother, sister, half-brother, halfsister, stepbrother, or stepsister; 

(D) Parent, grandparent, or other 

direct ancestor but not foster parent; 

(E) Foster child; 

(F) Stepfather or stepmother; 

(G) Uncle or aunt; 

(H) Niece or nephew; 

(I) Father-in-law, mother-in-law, sonin-law; or 

(J) Daughter-in-law, brother-in-law, or 

sister-in-law; and 

(ii) The receipt of over half of his/her 

total support from the eligible MSFW’s 

family during the eligibility 

determination period. 

Eligibility determination period 

means any consecutive 12-month period 

within the 24-month period 

immediately preceding the date of 

application for the MSFW program by 

the applicant MSFW. 

Eligible migrant farmworker means an 

eligible seasonal farmworker as defined 

in WIOA sec. 167(i)(3) whose 

agricultural labor requires travel to a job 

site such that the farmworker is unable 

to return to a permanent place of 

residence within the same day; and 

dependents of the migrant farmworker, 

as described in WIOA sec. 167(i)(2). 

Eligible migrant and seasonal 

farmworker means an eligible migrant 

farmworker or an eligible seasonal 

farmworker, also referred to in this 

regulation as an ‘‘eligible MSFW,’’ as 

defined in WIOA sec. 167(i). 

Eligible MSFW youth means an 

eligible MSFW aged 14–24 who is 

individually eligible or is a dependent 

of an eligible MSFW. The term eligible 

MSFW youth is a subset of the term 

eligible MSFW defined in this section. 

Eligible seasonal farmworker means a 

low-income individual who for 12 

consecutive months out of the 24 

months prior to application for the 

program involved, has been primarily 

employed in agricultural or fish farming 

labor that is characterized by chronic 

unemployment or underemployment; 

and faces multiple barriers to economic 

self-sufficiency; and dependents of the 

seasonal farmworker as described in 

WIOA sec. 167(i)(3). 

Emergency assistance is a form of 

‘‘related assistance’’ and means 

assistance provided by grantees that 

addresses immediate needs of eligible 

MSFWs and their dependents. An 

applicant’s self-certification is accepted 

as sufficient documentation of eligibility 

for emergency assistance. 

Family, for the purpose of reporting 

housing assistance grantee indicators of 

performance as described in in 

§ 685.400, means the eligible MSFW(s) 

and all the individuals identified under 

the definition of dependent in this 

section who are living together in one 

physical residence. 

Farmwork means work while 

employed in the occupations described 

in § 651.10 of this chapter. 

Grantee means an entity to which the 

Department directly awards a WIOA 

grant to carry out programs to serve 

eligible MSFWs in a service area, with 

funds made available under WIOA sec. 

167 or 127(a)(1). 

Housing assistance means housing 

services which contribute to safe and 

sanitary temporary and permanent 

housing constructed, supplied, or 

maintained with NFJP funding. 

Lower living standard income level 

means the income level as defined in 

WIOA sec. 3(36)(B). 

Low-income individual means an 

individual as defined in WIOA sec. 

3(36)(A). 

MOU means Memorandum of 

Understanding. 

National Farmworker Jobs Program 

(NFJP) is the Department of Laboradministered workforce investment 

program for eligible MSFWs established 

by WIOA sec. 167 as a required partner 

of the one-stop delivery system and 

includes both career services and 

training grants, and housing grants. 

Recognized postsecondary credential 

means a credential as defined in WIOA 

sec. 3(52). 

Related assistance means short-term 

forms of direct assistance designed to 

assist eligible MSFWs retain or stabilize 

their agricultural employment. 

Examples of related assistance may 

include, but are not limited to, services 

such as transportation assistance or 

providing work clothing. 

Self-certification means an eligible 

MSFW’s signed attestation that the 

information he/she submits to 

demonstrate eligibility for the NFJP is 

true and accurate. 

Service area means the geographical 

jurisdiction, which may be comprised of 

one or more designated State or subState areas, in which a WIOA sec. 167 

grantee is designated to operate. 

Supportive services means the 

services defined in WIOA sec. 3(59). 

Technical assistance means the 

guidance provided to grantees and 

grantee staff by the Department to 

improve the quality of the program and 

the delivery of program services to 

eligible MSFWs. 

§ 685.120 How does the Department 

administer the National Farmworker Jobs 

Program? 

The Department’s Employment and 

Training Administration (ETA) 

administers NFJP activities required 

under WIOA sec. 167 for eligible 

MSFWs. As described in § 685.210, the 

Department designates grantees using 

procedures consistent with standard 

Federal government competitive 

procedures. 

§ 685.130 How does the Department assist 

grantees to serve eligible migrant and 

seasonal farmworkers? 

The Department provides guidance, 

administrative support, technical 

assistance, and training to grantees for 

the purposes of program 

implementation, and program 

performance management to enhance 

services and promote continuous 

improvement in the employment 

outcomes of eligible MSFWs. 

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56440 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

§ 685.140 What Workforce Innovation and 

Opportunity Act (WIOA) regulations apply 

to the programs authorized under WIOA? 

The regulations that apply to 

programs authorized under WIOA sec. 

167 include but are not limited to: 

(a) The regulations found in this part; 

(b) The general administrative 

requirements found in part 683 of this 

chapter, including the regulations 

concerning Complaints, Investigations 

and Hearings found at part 683, subparts 

D through H, of this chapter, which 

cover programs under WIOA sec. 167; 

(c) Uniform Guidance at 2 CFR part 

200 and the Department’s exceptions at 

2 CFR part 2900 pursuant to the 

effective dates in 2 CFR parts 200 and 

2900; 

(d) The regulations on partnership 

responsibilities contained in parts 679 

(Statewide and Local Governance) and 

678 (the One-Stop System) of this 

chapter; and 

(e) The Department’s regulations at 29 

CFR part 38, which implement the 

nondiscrimination provisions of WIOA 

sec. 188. 

Subpart B—The Service Delivery 

System for the National Farmworker 

Jobs Program 

§ 685.200 Who is eligible to receive a 

National Farmworker Jobs Program grant? 

To be eligible to receive a grant under 

this section, an entity must have: 

(a) An understanding of the problems 

of eligible MSFWs; 

(b) A familiarity with the agricultural 

industries and the labor market needs of 

the proposed service area; and 

(c) The ability to demonstrate a 

capacity to administer and deliver 

effectively a diversified program of 

workforce investment activities, 

including youth workforce investment 

activities, and related assistance for 

eligible MSFWs. 

§ 685.210 How does an eligible entity 

become a grantee? 

To become a grantee and receive a 

grant under this subpart, an applicant 

must respond to a Funding Opportunity 

Announcement (FOA). Under the FOA, 

grantees will be selected using standard 

Federal government competitive 

procedures. The entity’s proposal must 

include a program plan, which is a 4- 

year strategy for meeting the needs of 

eligible MSFWs in the proposed service 

area, and a description of the entities 

experience working with the broader 

workforce delivery system. Unless 

specified otherwise in the FOA, grantees 

may serve eligible MSFWs, including 

eligible MSFW youth, under the grant. 

An applicant whose application for 

funding as a grantee under this section 

is denied in whole or in part may 

request an administrative review under 

§ 683.800 of this chapter. 

§ 685.220 What is the role of the grantee in 

the one-stop delivery system? 

In those local areas where the grantee 

operates its NFJP as described in its 

grant agreement, the grantee is a 

required one-stop partner, and is subject 

to the provisions relating to such 

partners described in part 678 of this 

chapter. Consistent with those 

provisions, the grantee and Local 

Workforce Development Board (WDB) 

must develop and enter into an MOU 

which meets the requirements of 

§ 678.500 of this chapter, and which sets 

forth their respective responsibilities for 

providing access to the full range of 

NFJP services through the one-stop 

delivery system to eligible MSFWs. 

§ 685.230 Can a grantee’s designation be 

terminated? 

Yes, a grantee’s designation may be 

terminated by the Department for cause: 

(a) In emergency circumstances when 

such action is necessary to protect the 

integrity of Federal funds or to ensure 

the proper operation of the program. 

Any grantee so terminated will be 

provided with written notice and an 

opportunity for a hearing within 30 days 

after the termination; or 

(b) By the Department’s Grant Officer, 

if the recipient materially fails to 

comply with the terms and conditions 

of the award. In such a case, the Grant 

Officer will follow the administrative 

regulations at § 683.440 of this chapter. 

§ 685.240 How does the Department use 

funds appropriated under the Workforce 

Innovation and Opportunity Act for the 

National Farmworker Jobs Program? 

At least 99 percent of the funds 

appropriated each year for WIOA sec. 

167 activities must be allocated to 

service areas, based on the distribution 

of the eligible MSFW population 

determined under a formula established 

by the Secretary. The Department will 

award grants pursuant to § 685.210 for 

the provision of services to eligible 

MSFWs within each service area. The 

Department will use a percentage of the 

funds allocated for State service areas 

for housing grants, specified in a FOA 

issued by the Department. The 

Department will use up to one percent 

of the appropriated funds for 

discretionary purposes, such as 

technical assistance to eligible entities 

and other activities prescribed by the 

Secretary. 

Subpart C—The National Farmworker 

Jobs Program Services to Eligible 

Migrant and Seasonal Farmworkers 

§ 685.300 What are the general 

responsibilities of grantees? 

(a) The Department awards career 

services and training grants and housing 

grants through the FOA process 

described in § 685.210. Career services 

and training grantees are responsible for 

providing appropriate career services, 

training, and related assistance to 

eligible MSFWs. Housing grantees are 

responsible for providing housing 

assistance to eligible MSFWs. 

(b) Grantees will provide these 

services in accordance with the service 

delivery strategy meeting the 

requirements of § 685.310 and as 

described in their approved program 

plan described in § 685.420. These 

services must reflect the needs of the 

MSFW population in the service area 

and include the services that are 

necessary to achieve each participant’s 

employment goals or housing needs. 

(c) Grantees are responsible for 

coordinating services, particularly 

outreach to MSFWs, with the State 

Workforce Agency as defined in 

§ 651.10 of this chapter and the State’s 

Monitor Advocate. 

(d) Grantees are responsible for 

fulfilling the responsibilities of one-stop 

partners described in § 678.420 of this 

chapter. 

§ 685.310 What are the basic components 

of a National Farmworker Jobs Program 

service delivery strategy? 

The NFJP service delivery strategy 

must include: 

(a) A customer-focused case 

management approach; 

(b) The provision of workforce 

investment activities to eligible MSFWs 

which include career services and 

training, as described in WIOA secs. 

167(d) and 134, and part 680 of this 

chapter; 

(c) The provision of youth workforce 

investment activities described in WIOA 

sec. 129 and part 681 of this chapter 

may be provided to eligible MSFW 

youth; 

(d) The arrangements under the 

MOUs with the applicable Local WDBs 

for the delivery of the services available 

through the one-stop delivery system to 

MSFWs; and 

(e) Related assistance services. 

§ 685.320 Who is eligible to receive 

services under the National Farmworker 

Jobs Program? 

Eligible migrant farmworkers 

(including eligible MSFW youth) and 

eligible seasonal farmworkers (including 

eligible MSFW youth) as defined in 

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§ 685.110 are eligible for services 

funded by the NFJP. 

§ 685.330 How are services delivered to 

eligible migrant and seasonal farmworkers? 

To ensure that all services are focused 

on the customer’s needs, services are 

provided through a case-management 

approach emphasizing customer choice 

and may include: Appropriate career 

services and training; related assistance, 

which includes emergency assistance; 

and supportive services, which includes 

allowance payments. The basic services 

and delivery of case-management 

activities are further described in 

§§ 685.340 through 685.390. 

§ 685.340 What career services may 

grantees provide to eligible migrant and 

seasonal farmworkers? 

(a) Grantees may provide the career 

services described in WIOA secs. 167(d) 

and 134(c)(2), and part 680 of this 

chapter to eligible MSFWs. 

(b) Grantees may provide other 

services identified in the approved 

program plan. 

(c) The delivery of career services to 

eligible MSFWs by the grantee and 

through the one-stop delivery system 

must be discussed in the required MOU 

between the Local WDB and the grantee. 

§ 685.350 What training services may 

grantees provide to eligible migrant and 

seasonal farmworkers? 

(a) Grantees may provide the training 

activities described in WIOA secs. 

167(d) and 134(c)(3)(D), and part 680 of 

this chapter to eligible MSFWs. These 

activities include, but are not limited to, 

occupational-skills training and on-thejob training (OJT). Eligible MSFWs are 

not required to receive career services 

prior to receiving training services. 

(1) When providing OJT services NFJP 

grantees may reimburse employers for 

the extraordinary costs of training by up 

to 50 percent of the wage rate of the 

participant for OJT. 

(2) Grantees also may increase the OJT 

reimbursement rate up to 75 percent of 

the wage rate of a participant under 

certain conditions, provided that such 

reimbursement is being provided 

consistent with the reimbursement rates 

used under WIOA sec. 134(c)(3)(H)(i) for 

the local area(s) in which the grantee 

operates its program. 

(b) Training services must be directly 

linked to an in-demand industry sector 

or occupation in the service area, or in 

another area to which an eligible MSFW 

receiving such services is willing to 

relocate. 

(c) Training activities must encourage 

the attainment of recognized 

postsecondary credentials as defined in 

§ 685.110 when appropriate for an 

eligible MSFW. 

§ 685.360 What housing services may 

grantees provide to eligible migrant and 

seasonal farmworkers? 

(a) Housing grantees must provide 

housing services to eligible MSFWs. 

(b) Career services and training 

grantees may provide housing services 

to eligible MSFWs as described in their 

program plan. 

(c) Housing services may include the 

following: 

(1) Permanent housing that is owneroccupied, or occupied on a permanent, 

year-round basis (notwithstanding 

ownership) as the eligible MSFW’s 

primary residence to which he/she 

returns at the end of the work or 

training day. 

(i) Types of permanent housing may 

include rental units, single family 

homes, duplexes, and other multifamily structures, dormitories, group 

homes, and other housing types that 

provide short-term, seasonal, or yearround housing opportunities in 

permanent structures. Modular 

structures, manufactured housing, or 

mobile units placed on permanent 

foundations and supplied with 

appropriate utilities, and other 

infrastructure also are considered 

permanent housing. 

(ii) Permanent housing services 

include but are not limited to: 

Investments in development services, 

project management, and resource 

development to secure acquisition, 

construction/renovation and operating 

funds, property management services, 

and program management. New 

construction, purchase of existing 

structures, and rehabilitation of existing 

structures, as well as the infrastructure, 

utilities, and other improvements 

necessary to complete or maintain those 

structures also may be considered part 

of managing permanent housing. 

(2) Temporary housing that is not 

owner-occupied and is used by MSFWs 

whose employment requires occasional 

travel outside their normal commuting 

area. 

(i) Types of temporary housing may 

include: Housing units intended for 

temporary occupancy located in 

permanent structures, such as rental 

units in an apartment complex or in 

mobile structures that provide shortterm, seasonal housing opportunities; 

temporary structures that may be moved 

from site to site, dismantled and reerected when needed for farmworker 

occupancy, closed during the off-season, 

or handled through other similar 

arrangements; off-farm housing operated 

independently of employer interest in, 

or control of, the housing; or on-farm 

housing located on property owned by 

an agricultural employer and operated 

by an entity such as an agricultural 

employer or a nonprofit organization; 

and other housing types that provide 

short-term, seasonal, or temporary 

housing opportunities in temporary 

structures. 

(ii) Temporary housing services 

include but are not limited to: Managing 

temporary housing which may involve 

property management of temporary 

housing facilities, case management, 

and referral services, and emergency 

housing payments, including vouchers 

and cash payments for rent/lease and 

utilities. 

(d) Permanent housing developed 

with NFJP funds must be promoted and 

made widely available to eligible 

MSFWs, but occupancy is not restricted 

to eligible MSFWs. Temporary housing 

services must only be provided to 

eligible MSFWs. 

(e) Except as provided in paragraph (f) 

of this section, NFJP funds used for 

housing assistance must ensure the 

provision of safe and sanitary temporary 

and permanent housing that meets the 

Federal housing standards at part 654 of 

this chapter (ETA housing for 

farmworkers) or 29 CFR 1910.10 (OSHA 

housing standards). 

(f) When NFJP grantees provide 

temporary housing assistance that 

allows the participant to select the 

housing, including vouchers and cash 

payments for rent, lease, and utilities, 

NFJP grantees are not required to ensure 

that such housing meets the Federal 

housing standards at part 654 of this 

chapter or 29 CFR 1910.10. 

§ 685.370 What services may grantees 

provide to eligible migrant and seasonal 

farmworkers youth participants aged 14– 

24? 

(a) Based on an evaluation and 

assessment of the needs of eligible 

MSFW youth, grantees may provide 

activities and services that include but 

are not limited to: 

(1) Career services and training as 

described in §§ 685.340 and 685.350; 

(2) Youth workforce investment 

activities specified in WIOA sec. 129; 

(3) Life skills activities which may 

include self- and interpersonal skills 

development; 

(4) Community service projects; and 

(5) Other activities and services that 

conform to the use of funds for youth 

activities described in part 681 of this 

chapter. 

(b) Grantees may provide these 

services to any eligible MSFW youth, 

regardless of the participant’s eligibility 

for WIOA title I youth activities as 

described in WIOA sec. 129(a). 

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§ 685.380 What related assistance services 

may be provided to eligible migrant and 

seasonal farmworkers? 

Related assistance may include shortterm direct services and activities. 

Examples include emergency assistance, 

as defined in § 685.110, and those 

activities identified in WIOA sec. 

167(d), such as: English language and 

literacy instruction; pesticide and 

worker safety training; housing 

(including permanent housing), as 

described in § 685.360 and as provided 

in the approved program plan; and 

school dropout prevention and recovery 

activities. Related assistance may be 

provided to eligible MSFWs not 

enrolled in career services, youth 

services, or training services. 

§ 685.390 When may eligible migrant and 

seasonal farmworkers receive related 

assistance? 

Eligible MSFWs may receive related 

assistance services when the grantee 

identifies and documents the need for 

the related assistance, which may 

include a statement by the eligible 

MSFW. 

Subpart D—Performance 

Accountability, Planning, and Waiver 

Provisions 

§ 685.400 What are the indicators of 

performance that apply to the National 

Farmworker Jobs Program? 

(a) For grantees providing career 

services and training, the Department 

will use the indicators of performance 

common to the adult and youth 

programs, described in WIOA sec. 

116(b)(2)(A). 

(b) For grantees providing career 

services and training, the Department 

will reach agreement with individual 

grantees on the levels of performance for 

each of the primary indicators of 

performance, taking into account 

economic conditions, characteristics of 

the individuals served, and other 

appropriate factors, and using, to the 

extent practicable, the statistical 

adjustment model under WIOA sec. 

116(b)(3)(A)(viii). Once agreement on 

the levels of performance for each of the 

primary indicators of performance is 

reached with individual grantees, the 

Department will incorporate the 

adjusted levels of performance in the 

grant plan. For the purposes of 

performance reporting, eligible MSFWs 

who receive any career services, youth 

services, training, or certain related 

assistance are considered participants as 

defined in § 677.150 of this chapter and 

must be included in performance 

calculations for the indicators of 

performance. Eligible MSFWs who 

receive only those services identified in 

§ 677.150(a)(3)(ii) or (iii) of this chapter 

are not included in performance 

calculations for the indicators of 

performance described in WIOA sec. 

116(b)(2)(A). 

(c) For grantees providing housing 

services only, grantees will use the total 

number of eligible MSFWs served and 

the total number of eligible MSFW 

families served as indicators of 

performance. Additionally, grantees 

providing permanent housing 

development activities will use the total 

number of individuals served and the 

total number of families served as 

indicators of performance. 

(d) The Department may develop 

additional performance indicators with 

appropriate levels of performance for 

evaluating programs that serve eligible 

MSFWs and which reflect the State 

service area economy, local 

demographics of eligible MSFWs, and 

other appropriate factors. If additional 

performance indicators are developed, 

the levels of performance for these 

additional indicators must be negotiated 

with the grantee and included in the 

approved program plan. 

(e) Grantees may develop additional 

performance indicators and include 

them in the program plan or in periodic 

performance reports. 

§ 685.410 What planning documents must 

a grantee submit? 

Each grantee receiving WIOA sec. 167 

program funds must submit to the 

Department a comprehensive program 

plan and a projection of participant 

services and expenditures in accordance 

with instructions issued by the 

Secretary. 

§ 685.420 What information is required in 

the grantee program plan? 

A grantee’s 4-year program plan must 

describe: 

(a) The service area that the applicant 

proposes to serve; 

(b) The population to be served and 

the education and employment needs of 

the MSFW population to be served; 

(c) The manner in which proposed 

services to eligible MSFWs will 

strengthen their ability to obtain or 

retain unsubsidized employment or 

stabilize their unsubsidized 

employment, including upgraded 

employment in agriculture; 

(d) The related assistance and 

supportive services to be provided and 

the manner in which such assistance 

and services are to be integrated and 

coordinated with other appropriate 

services; 

(e) The performance accountability 

measures that will be used to assess the 

performance of the entity in carrying out 

the NFJP program activities, including 

the expected levels of performance for 

the primary indicators of performance 

described in § 685.400; 

(f) The availability and accessibility of 

local resources, such as supportive 

services, services provided through onestop delivery systems, and education 

and training activities, and how the 

resources can be made available to the 

population to be served; 

(g) The plan for providing services 

including strategies and systems for 

outreach, career planning, assessment, 

and delivery through one-stop delivery 

systems; 

(h) The methods the grantee will use 

to target its services on specific 

segments of the eligible population, as 

appropriate; and 

(i) Such other information as required 

by the Secretary in instructions issued 

under § 685.410. 

§ 685.430 Under what circumstances are 

the terms of the grantee’s program plan 

modified by the grantee or the Department? 

(a) Plans must be modified to reflect 

the funding level for each year of the 

grant. The Department will provide 

instructions annually on when to 

submit modifications for each year of 

funding, which will generally be no 

later than June 1 prior to the start of the 

subsequent year of the grant cycle. 

(b) The grantee must submit a request 

to the Department for any proposed 

modifications to its plan to add, delete, 

expand, or reduce any part of the 

program plan or allowable activities. 

The Department will consider the cost 

principles, uniform administrative 

requirements, and terms and conditions 

of award when reviewing modifications 

to program plans. 

(c) If the grantee is approved for a 

regulatory waiver under §§ 685.460 and 

685.470, the grantee must submit a 

modification of its grant plan to reflect 

the effect of the waiver. 

§ 685.440 How are costs classified under 

the National Farmworker Jobs Program? 

(a) Costs are classified as follows: 

(1) Administrative costs, as defined in 

§ 683.215 of this chapter; and 

(2) Program costs, which are all other 

costs not defined as administrative. 

(b) Program costs must be classified 

and reported in the following categories: 

(1) Related assistance (including 

emergency assistance); 

(2) Supportive services; and 

(3) All other program services. 

§ 685.450 What is the Workforce 

Innovation and Opportunity Act 

administrative cost limit for National 

Farmworker Jobs Program grants? 

Under § 683.205(b) of this chapter, 

limits on administrative costs for 

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programs operated under subtitle D of 

WIOA title I will be identified in the 

grant or contract award document. 

Administrative costs will not exceed 15 

percent of total grantee funding. 

§ 685.460 Are there regulatory and/or 

statutory waiver provisions that apply to the 

National Farmworker Jobs Program? 

(a) The statutory waiver provision at 

WIOA sec. 189(i) and discussed in 

§ 679.600 of this chapter does not apply 

to any NFJP grant under WIOA sec. 167. 

(b) Grantees may request waiver of 

any regulatory provisions only when 

such regulatory provisions are: 

(1) Not required by WIOA; 

(2) Not related to wage and labor 

standards, non-displacement protection, 

worker rights, participation and 

protection of workers and participants, 

and eligibility of participants, grievance 

procedures, judicial review, 

nondiscrimination, allocation of funds, 

procedures for review and approval of 

plans; and 

(3) Not related to the basic purposes 

of WIOA, described in § 675.100 of this 

chapter. 

§ 685.470 How can grantees request a 

waiver? 

To request a waiver, a grantee must 

submit to the Department a waiver plan 

that: 

(a) Describes the goals of the waiver, 

the expected programmatic outcomes, 

and how the waiver will improve the 

provision of program activities; 

(b) Is consistent with any guidelines 

the Department establishes; 

(c) Describes the data that will be 

collected to track the impact of the 

waiver; and 

(d) Includes a modified program plan 

reflecting the effect of the requested 

waiver. 

Subpart E—Supplemental Youth 

Workforce Investment Activity Funding 

Under the Workforce Innovation and 

Opportunity Act 

§ 685.500 What is supplemental youth 

workforce investment activity funding? 

Pursuant to WIOA sec. 127(a)(1), if 

Congress appropriates more than $925 

million for WIOA youth workforce 

investment activities in a fiscal year, 4 

percent of the excess amount must be 

used by the Department to provide 

workforce investment activities for 

eligible MSFW youth under WIOA sec. 

167. 

§ 685.510 What requirements apply to 

grants funded by the Workforce Innovation 

and Opportunity Act? 

The requirements in subparts A 

through D of this part apply to grants 

funded by WIOA sec. 127(a)(1), except 

that grants described in this subpart 

must be used only for workforce 

investment activities for eligible MSFW 

youth, as described in § 685.370 and 

WIOA sec. 167(d) (including related 

assistance and supportive services). 

§ 685.520 What is the application process 

for obtaining a grant funded by the 

Workforce Innovation and Opportunity Act? 

The Department will issue a separate 

FOA for grants funded by WIOA sec. 

127(a)(1). The selection will be made in 

accordance with the procedures 

described in § 685.210, except that the 

Department reserves the right to provide 

priority to applicants that are WIOA sec. 

167 grantees. 

§ 685.530 What planning documents are 

required for grants funded by the Workforce 

Innovation and Opportunity Act? 

The required planning documents 

will be described in the FOA. 

§ 685.540 How are funds allocated to 

grants funded by the Workforce Innovation 

and Opportunity Act? 

The allocation of funds will be based 

on the comparative merits of the 

applications, in accordance with criteria 

set forth in the FOA. 

§ 685.550 Who is eligible to receive 

services through grants funded by the 

Workforce Innovation and Opportunity Act? 

Eligible MSFW youth as defined in 

§ 685.110 are eligible to receive services 

through grants funded by WIOA sec. 

127(a)(1). 

■ 19. Add part 686 to read as follows: 

PART 686—THE JOB CORPS UNDER 

TITLE I OF THE WORKFORCE 

INNOVATION AND OPPORTUNITY ACT 

Subpart A—Scope and Purpose 

Sec. 

686.100 What is the scope of this part? 

686.110 What is the Job Corps program? 

686.120 What definitions apply to this part? 

Subpart B—Site Selection and Protection 

and Maintenance of Facilities 

Sec. 

686.200 How are Job Corps center locations 

and sizes determined? 

686.210 How are center facility 

improvements and new construction 

handled? 

686.220 Who is responsible for the 

protection and maintenance of center 

facilities? 

Subpart C—Funding and Selection of 

Center Operators and Service Providers 

Sec. 

686.300 What entities are eligible to receive 

funds to operate centers and provide 

training and operational support 

services? 

686.310 How are entities selected to receive 

funding to operate centers? 

686.320 What if a current center operator is 

deemed to be an operator of a highperforming center? 

686.330 What is the length of an agreement 

entered into by the Secretary for 

operation of a Job Corps center and what 

are the conditions for renewal of such an 

agreement? 

686.340 How are entities selected to receive 

funding to provide outreach and 

admission, career transition and other 

operations support services? 

686.350 What conditions apply to the 

operation of a Civilian Conservation 

Center? 

686.360 What are the requirements for 

award of contracts and payments to 

Federal agencies? 

Subpart D—Recruitment, Eligibility, 

Screening, Selection and Assignment, and 

Enrollment 

Sec. 

686.400 Who is eligible to participate in the 

Job Corps program? 

686.410 Are there additional factors which 

are considered in selecting an eligible 

applicant for enrollment? 

686.420 Are there any special requirements 

for enrollment related to the Military 

Selective Service Act? 

686.430 What entities conduct outreach and 

admissions activities for the Job Corps 

program? 

686.440 What are the responsibilities of 

outreach and admissions providers? 

686.450 How are applicants who meet 

eligibility and selection criteria assigned 

to centers? 

686.460 What restrictions are there on the 

assignment of eligible applicants for 

nonresidential enrollment in Job Corps? 

686.470 May an individual who is 

determined to be ineligible or an 

individual who is denied enrollment 

appeal that decision? 

686.480 At what point is an applicant 

considered to be enrolled in Job Corps? 

686.490 How long may a student be 

enrolled in Job Corps? 

Subpart E—Program Activities and Center 

Operations 

Sec. 

686.500 What services must Job Corps 

centers provide? 

686.505 What types of training must Job 

Corps centers provide? 

686.510 Are entities other than Job Corps 

center operators permitted to provide 

academic and career technical training? 

686.515 What are advanced career training 

programs? 

686.520 What responsibilities do the center 

operators have in managing work-based 

learning? 

686.525 Are students permitted to hold jobs 

other than work-based learning 

opportunities? 

686.530 What residential support services 

must Job Corps center operators provide? 

686.535 Are Job Corps centers required to 

maintain a student accountability 

system? 

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686.540 Are Job Corps centers required to 

establish behavior management systems? 

686.545 What is Job Corps’ zero tolerance 

policy? 

686.550 How does Job Corps ensure that 

students receive due process in 

disciplinary actions? 

686.555 What responsibilities do Job Corps 

centers have in assisting students with 

child care needs? 

686.560 What are the center’s 

responsibilities in ensuring that 

students’ religious rights are respected? 

686.565 Is Job Corps authorized to conduct 

pilot and demonstration projects? 

Subpart F—Student Support 

Sec. 

686.600 Are students provided with 

government-paid transportation to and 

from Job Corps centers? 

686.610 When are students authorized to 

take leaves of absence from their Job 

Corps centers? 

686.620 Are Job Corps students eligible to 

receive cash allowances and 

performance bonuses? 

686.630 Are student allowances subject to 

Federal payroll taxes? 

686.640 Are students provided with 

clothing? 

Subpart G—Career Transition and Graduate 

Services 

Sec. 

686.700 What are a Job Corps center’s 

responsibilities in preparing students for 

career transition services? 

686.710 What career transition services are 

provided for Job Corps enrollees? 

686.720 Who provides career transition 

services? 

686.730 What are the responsibilities of 

career transition service providers? 

686.740 What services are provided for 

program graduates? 

686.750 Are graduates provided with 

transition allowances? 

686.760 What services are provided to 

former enrollees? 

Subpart H—Community Connections 

Sec. 

686.800 How do Job Corps centers and 

service providers become involved in 

their local communities? 

686.810 What is the makeup of a workforce 

council and what are its responsibilities? 

686.820 How will Job Corps coordinate 

with other agencies? 

Subpart I—Administrative and Management 

Provisions 

Sec. 

686.900 Are damages caused by the acts or 

omissions of students eligible for 

payment under the Federal Tort Claims 

Act? 

686.905 Are loss and damages that occur to 

persons or personal property of students 

at Job Corps centers eligible for 

reimbursement? 

686.910 If a student is injured in the 

performance of duty as a Job Corps 

student, what benefits may the student 

receive? 

686.915 When is a Job Corps student 

considered to be in the performance of 

duty? 

686.920 How are students protected from 

unsafe or unhealthy situations? 

686.925 What are the requirements for 

criminal law enforcement jurisdiction on 

center property? 

686.930 Are Job Corps operators and service 

providers authorized to pay State or local 

taxes on gross receipts? 

686.935 What are the financial management 

responsibilities of Job Corps center 

operators and other service providers? 

686.940 Are center operators and service 

providers subject to Federal audits? 

686.945 What are the procedures for 

management of student records? 

686.950 What procedures apply to 

disclosure of information about Job 

Corps students and program activities? 

686.955 What are the reporting 

requirements for center operators and 

operational support service providers? 

686.960 What procedures are available to 

resolve complaints and disputes? 

686.965 How does Job Corps ensure that 

complaints or disputes are resolved in a 

timely fashion? 

686.970 How does Job Corps ensure that 

centers or other service providers 

comply with the Workforce Innovation 

and Opportunity Act and the WIOA 

regulations? 

686.975 How does Job Corps ensure that 

contract disputes will be resolved? 

686.980 How does Job Corps resolve 

disputes between the U.S. Department of 

Labor and the U.S. Department of 

Agriculture regarding the operation of 

Job Corps centers? 

686.985 What Department of Labor equal 

opportunity and nondiscrimination 

regulations apply to Job Corps? 

Subpart J—Performance 

Sec. 

686.1000 How is the performance of the Job 

Corps program assessed? 

686.1010 What are the primary indicators of 

performance for Job Corps centers and 

the Job Corps program? 

686.1020 What are the indicators of 

performance for Job Corps outreach and 

admissions providers? 

686.1030 What are the indicators of 

performance for Job Corps career 

transition service providers? 

686.1040 What information will be 

collected for use in the Annual Report? 

686.1050 How are the expected levels of 

performance for Job Corps centers, 

outreach and admissions providers and 

career transition service providers 

established? 

686.1060 How are center rankings 

established? 

686.1070 How and when will the Secretary 

use performance improvement plans? 

Authority: Secs. 142, 144, 146, 147, 159, 

189, 503, Pub. L. 113–128, 128 Stat. 1425 

(Jul. 22, 2014). 

Subpart A—Scope and Purpose 

§ 686.100 What is the scope of this part? 

The regulations in this part outline 

the requirements that apply to the Job 

Corps program. More detailed policies 

and procedures are contained in a 

Policy and Requirements Handbook 

issued by the Secretary. Throughout this 

part, ‘‘instructions (procedures) issued 

by the Secretary’’ and similar references 

refer to the Policy and Requirements 

Handbook and other Job Corps 

directives. 

§ 686.110 What is the Job Corps program? 

Job Corps is a national program that 

operates in partnership with States and 

communities, Local Workforce 

Development Boards (WDBs), Youth 

Standing Committees where established, 

one-stop centers and partners, and other 

youth programs to provide academic, 

career and technical education, servicelearning, and social opportunities 

primarily in a residential setting, for 

low-income young people. The objective 

of Job Corps is to support responsible 

citizenship and provide young people 

with the skills they need to lead to 

successful careers that will result in 

economic self-sufficiency and 

opportunities for advancement in indemand industry sectors or occupations 

or the Armed Forces, or to enrollment 

in postsecondary education. 

§ 686.120 What definitions apply to this 

part? 

The following definitions apply to 

this part: 

Absent Without Official Leave 

(AWOL) means an adverse enrollment 

status to which a student is assigned 

based on extended, unapproved absence 

from his/her assigned center or offcenter place of duty. Students do not 

earn Job Corps allowances while in 

AWOL status. 

Applicable Local WDB means a Local 

WDB that: 

(1) Works with a Job Corps center and 

provides information on local 

employment opportunities and the job 

skills and credentials needed to obtain 

the opportunities; and 

(2) Serves communities in which the 

graduates of the Job Corps seek 

employment. 

Applicable one-stop center means a 

one-stop center that provides career 

transition services, such as referral, 

assessment, recruitment, and placement, 

to support the purposes of the Job 

Corps. 

Capital improvement means any 

modification, addition, restoration or 

other improvement: 

(1) Which increases the usefulness, 

productivity, or serviceable life of an 

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existing site, facility, building, structure, 

or major item of equipment; 

(2) Which is classified for accounting 

purposes as a ‘‘fixed asset;’’ and 

(3) The cost of which increases the 

recorded value of the existing building, 

site, facility, structure, or major item of 

equipment and is subject to 

depreciation. 

Career technical training means 

career and technical education and 

training. 

Career transition service provider 

means an organization acting under a 

contract or other agreement with Job 

Corps to provide career transition 

services for graduates and, to the extent 

possible, for former students. 

Civilian Conservation Center (CCC) 

means a center operated on public land 

under an agreement between the 

Department of Labor (the Department) 

and the Department of Agriculture, 

which provides, in addition to other 

training and assistance, programs of 

work-based learning to conserve, 

develop, or manage public natural 

resources or public recreational areas or 

to develop community projects in the 

public interest. 

Contract center means a Job Corps 

center operated under a contract with 

the Department. 

Contracting officer means an official 

authorized to enter into contracts or 

agreements on behalf of the Department. 

Enrollee means an individual who has 

voluntarily applied for, been selected 

for, and enrolled in the Job Corps 

program, and remains with the program, 

but has not yet become a graduate. 

Enrollees also are referred to as 

‘‘students’’ in this part. 

Enrollment means the process by 

which an individual formally becomes a 

student in the Job Corps program. 

Former enrollee means an individual 

who has voluntarily applied for, been 

selected for, and enrolled in the Job 

Corps program, but left the program 

prior to becoming a graduate. 

Graduate means an individual who 

has voluntarily applied for, been 

selected for, and enrolled in the Job 

Corps program and who, as a result of 

participation in the program, has 

received a secondary school diploma or 

recognized equivalent, or has completed 

the requirements of a career technical 

training program that prepares 

individuals for employment leading to 

economic self-sufficiency or entrance 

into postsecondary education or 

training. 

Individual with a disability means an 

individual with a disability as defined 

in sec. 3 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12102). 

Interagency agreement means a formal 

agreement between the Department and 

another Federal agency administering 

and operating centers. The agreement 

establishes procedures for the funding, 

administration, operation, and review of 

those centers as well as the resolution 

of any disputes. 

Job Corps means the Job Corps 

program established within the 

Department of Labor and described in 

sec. 143 of the Workforce Innovation 

and Opportunity Act (WIOA). 

Job Corps center means a facility and 

an organizational entity, including all of 

its parts, providing Job Corps training 

and designated as a Job Corps center, as 

described in sec. 147 of WIOA. 

Job Corps Director means the chief 

official of the Job Corps or a person 

authorized to act for the Job Corps 

Director. 

Low-income individual means an 

individual who meets the definition in 

WIOA sec. 3(36). 

National Office means the national 

office of Job Corps. 

National training contractor means a 

labor union, union-affiliated 

organization, business organization, 

association, or a combination of such 

organizations, which has a contract with 

the national office to provide career 

technical training, career transition 

services, or other services. 

Operational support services means 

activities or services required to support 

the operation of Job Corps, including: 

(1) Outreach and admissions services; 

(2) Contracted career technical 

training and off-center training; 

(3) Career transition services; 

(4) Continued services for graduates; 

(5) Certain health services; and 

(6) Miscellaneous logistical and 

technical support. 

Operator means a Federal, State or 

local agency, or a contractor selected 

under this subtitle to operate a Job 

Corps center under an agreement or 

contract with the Department. 

Outreach and admissions provider 

means an organization that performs 

recruitment services, including outreach 

activities, and screens and enrolls youth 

under a contract or other agreement 

with Job Corps. 

Participant, as used in this part, 

includes both graduates and enrollees 

and former enrollees that have 

completed their career preparation 

period. It also includes all enrollees and 

former enrollees who have remained in 

the program for at least 60 days. 

Placement means student 

employment, entry into the Armed 

Forces, or enrollment in other training 

or education programs following 

separation from Job Corps. 

Regional appeal board means the 

board designated by the Regional 

Director to consider student appeals of 

disciplinary discharges. 

Regional Director means the chief Job 

Corps official of a regional office or a 

person authorized to act for the Regional 

Director. 

Regional office means a regional office 

of Job Corps. 

Regional Solicitor means the chief 

official of a regional office of the 

Department of Labor Office of the 

Solicitor, or a person authorized to act 

for the Regional Solicitor. 

Separation means the action by which 

an individual ceases to be a student in 

the Job Corps program, either 

voluntarily or involuntarily. 

Service provider means an entity 

selected under this subtitle to provide 

operational support services described 

in this subtitle to a Job Corps center. 

Student means an individual enrolled 

in the Job Corps. 

Unauthorized goods means: 

(1) Firearms and ammunition; 

(2) Explosives and incendiaries; 

(3) Knives; 

(4) Homemade weapons; 

(5) All other weapons and 

instruments used primarily to inflict 

personal injury; 

(6) Stolen property; 

(7) Drugs, including alcohol, 

marijuana, depressants, stimulants, 

hallucinogens, tranquilizers, and drug 

paraphernalia except for drugs and/or 

paraphernalia that are prescribed for 

medical reasons; and 

(8) Any other goods prohibited by the 

Secretary, center director, or center 

operator in a student handbook. 

Subpart B—Site Selection and 

Protection and Maintenance of 

Facilities 

§ 686.200 How are Job Corps center 

locations and sizes determined? 

(a) The Secretary must approve the 

location and size of all Job Corps centers 

based on established criteria and 

procedures. 

(b) The Secretary establishes 

procedures for making decisions 

concerning the establishment, 

relocation, expansion, or closing of 

contract centers. 

§ 686.210 How are center facility 

improvements and new construction 

handled? 

The Secretary establishes procedures 

for requesting, approving, and initiating 

capital improvements and new 

construction on Job Corps centers. 

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56446 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

§ 686.220 Who is responsible for the 

protection and maintenance of center 

facilities? 

(a) The Secretary establishes 

procedures for the protection and 

maintenance of contract center facilities 

owned or leased by the Department of 

Labor, that are consistent with the 

current Federal Property Management 

Regulations. 

(b) The U.S. Department of 

Agriculture, when operating Civilian 

Conservation Centers (CCC) on public 

land, is responsible for the protection 

and maintenance of CCC facilities. 

(c) The Secretary issues procedures 

for conducting periodic facility surveys 

of centers to determine their condition 

and to identify needs such as correction 

of safety and health deficiencies, 

rehabilitation, and/or new construction. 

Subpart C—Funding and Selection of 

Center Operators and Service 

Providers 

§ 686.300 What entities are eligible to 

receive funds to operate centers and 

provide training and operational support 

services? 

(a) Center operators. Entities eligible 

to receive funds under this subpart to 

operate centers include: 

(1) Federal, State, and local agencies; 

(2) Private organizations, including 

for-profit and non-profit corporations; 

(3) Indian tribes and organizations; 

and 

(4) Area career and technical 

education or residential career and 

technical schools. 

(b) Service providers. Entities eligible 

to receive funds to provide outreach and 

admissions, career transition services 

and other operational support services 

are local or other entities with the 

necessary capacity to provide activities 

described in this part to a Job Corps 

center, including: 

(1) Applicable one-stop centers and 

partners; 

(2) Organizations that have a 

demonstrated record of effectiveness in 

serving at-risk youth and placing them 

into employment, including community 

action agencies; business organizations, 

including private for-profit and nonprofit corporations; and labor 

organizations; and 

(3) Child welfare agencies that are 

responsible for children and youth 

eligible for benefits and services under 

sec. 477 of the Social Security Act (42 

U.S.C. 677). 

§ 686.310 How are entities selected to 

receive funding to operate centers? 

(a) The Secretary selects eligible 

entities to operate contract centers on a 

competitive basis in accordance with 

applicable statutes and regulations. In 

selecting an entity, ETA issues requests 

for proposals (RFPs) for the operation of 

all contract centers according to the 

Federal Acquisition Regulation (48 CFR 

chapter 1) and Department of Labor 

Acquisition Regulation (48 CFR chapter 

29). ETA develops RFPs for center 

operators in consultation with the 

Governor, the center workforce council 

(if established), and the Local WDB for 

the workforce development area in 

which the center is located. 

(b) The RFP for each contract center 

describes uniform specifications and 

standards, as well as specifications and 

requirements that are unique to the 

operation of the specific center. 

(c) The contracting officer selects and 

funds Job Corps contract center 

operators on the basis of an evaluation 

of the proposals received using criteria 

established by the Secretary, and set 

forth in the RFP. The criteria include 

the following: 

(1) The offeror’s ability to coordinate 

the activities carried out through the Job 

Corps center with activities carried out 

under the appropriate State and local 

workforce investment plans; 

(2) The offeror’s ability to offer career 

technical training that has been 

proposed by the workforce council and 

the degree to which the training reflects 

employment opportunities in the local 

areas in which most of the enrollees 

intend to seek employment; 

(3) The degree to which the offeror 

demonstrates relationships with the 

surrounding communities, including 

employers, labor organizations, State 

WDBs, Local WDBs, applicable one-stop 

centers, and the State and region in 

which the center is located; 

(4) The offeror’s past performance, if 

any, relating to operating or providing 

activities to a Job Corps center, 

including information regarding the 

offeror in any reports developed by the 

Office of the Inspector General of the 

Department of Labor and the offeror’s 

demonstrated effectiveness in assisting 

individuals in achieving the indicators 

of performance for eligible youth 

described in sec. 116(b)(2)(A)(ii) of 

WIOA, listed in § 686.1010; and 

(5) The offeror’s ability to demonstrate 

a record of successfully assisting at-risk 

youth to connect to the workforce, 

including providing them with 

intensive academics and career 

technical training. 

(d) In order to be eligible to operate 

a Job Corps center, the offeror also must 

submit the following information at 

such time and in such manner as 

required by the Secretary: 

(1) A description of the program 

activities that will be offered at the 

center and how the academics and 

career technical training reflect State 

and local employment opportunities, 

including opportunities in in-demand 

industry sectors and occupations 

recommended by the workforce council; 

(2) A description of the counseling, 

career transition, and support activities 

that will be offered at the center, 

including a description of the strategies 

and procedures the offeror will use to 

place graduates into unsubsidized 

employment or education leading to a 

recognized postsecondary credential 

upon completion of the program; 

(3) A description of the offeror’s 

demonstrated record of effectiveness in 

placing at-risk youth into employment 

and postsecondary education, including 

past performance of operating a Job 

Corps center and as appropriate, the 

entity’s demonstrated effectiveness in 

assisting individuals in achieving the 

indicators of performance for eligible 

youth described in sec. 116(b)(2)(A)(ii) 

of WIOA, listed in § 686.1010; 

(4) A description of the relationships 

that the offeror has developed with State 

WDBs, Local WDBs, applicable one-stop 

centers, employers, labor organizations, 

State and local educational agencies, 

and the surrounding communities in 

which the center is located; 

(5) A description of the offeror’s 

ability to coordinate the activities 

carried out through the Job Corps center 

with activities carried out under the 

appropriate State Plan and local plans; 

(6) A description of the strong fiscal 

controls the offeror has in place to 

ensure proper accounting of Federal 

funds and compliance with the 

Financial Management Information 

System established by the Secretary 

under sec. 159(a) of WIOA; 

(7) A description of the steps to be 

taken to control costs in accordance 

with the Financial Management 

Information System established by the 

Secretary; 

(8) A detailed budget of the activities 

that will be supported using Federal 

funds provided under this part and nonFederal resources; 

(9) An assurance the offeror is 

licensed to operate in the State in which 

the center is located; 

(10) An assurance that the offeror will 

comply with basic health and safety 

codes, including required disciplinary 

measures and Job Corps’ Zero Tolerance 

Policy; and 

(11) Any other information on 

additional selection factors required by 

the Secretary. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56447 

§ 686.320 What if a current center operator 

is deemed to be an operator of a highperforming center? 

(a) If an offeror meets the 

requirements as an operator of a highperforming center as applied to a 

particular Job Corps center, that 

operator will be allowed to compete in 

any competitive selection process 

carried out for an award to operate that 

center. 

(b) An offeror is considered to be an 

operator of a high-performing center if 

the Job Corps center operated by the 

offeror: 

(1) Is ranked among the top 20 percent 

of Job Corps centers for the most recent 

preceding program year according to the 

rankings calculated under § 686.1060; 

and 

(2) Meets the expected levels of 

performance established under 

§ 686.1050 with respect to each of the 

primary indicators of performance for 

Job Corps centers: 

(i) For the period of the most recent 

preceding 3 program years for which 

information is available at the time the 

determination is made, achieved an 

average of 100 percent, or higher, of the 

expected level of performance for the 

indicator; and 

(ii) For the most recent preceding 

program year for which information is 

available at the time the determination 

is made, achieved 100 percent, or 

higher, of the expected level of 

performance established for the 

indicator. 

(c) If any of the program years 

described in paragraphs (b)(2)(i) and (ii) 

of this section precedes the 

implementation of the establishment of 

the expected levels of performance 

under § 686.1050 and the application of 

the primary indicators of performance 

for Job Corps centers identified in 

§ 686.1010, an entity is considered an 

operator of a high-performing center 

during that period if the Job Corps 

center operated by the entity: 

(1) Meets the requirements of 

paragraph (b)(2) of this section with 

respect to such preceding program years 

using the performance of the Job Corps 

center regarding the national goals or 

targets established by the Office of the 

Job Corps under the previous 

performance accountability system for— 

(i) The 6-month follow-up placement 

rate of graduates in employment, the 

military, education, or training; 

(ii) The 12-month follow-up 

placement rate of graduates in 

employment, the military, education, or 

training; 

(iii) The 6-month follow-up average 

weekly earnings of graduates; 

(iv) The rate of attainment of 

secondary school diplomas or their 

recognized equivalent; 

(v) The rate of attainment of 

completion certificates for career 

technical training; 

(vi) Average literacy gains; and 

(vii) Average numeracy gains; or 

(2) Is ranked among the top five 

percent of Job Corps centers for the most 

recent preceding program year 

according to the rankings calculated 

under § 686.1060. 

§ 686.330 What is the length of an 

agreement entered into by the Secretary for 

operation of a Job Corps center and what 

are the conditions for renewal of such an 

agreement? 

(a) Agreements are for not more than 

a 2-year period. The Secretary may 

exercise any contractual option to renew 

the agreement in 1-year increments for 

not more than 3 additional years. 

(b) The Secretary will establish 

procedures for evaluating the option to 

renew an agreement that includes: An 

assessment of the factors described in 

paragraph (c) of this section; a review of 

contract performance and financial 

reporting compliance; a review of the 

program management and performance 

data described in §§ 686.1000 and 

686.1010; an assessment of whether the 

center is on a performance improvement 

plan as described § 686.1070 and if so, 

whether the center is making 

measureable progress in completing the 

actions described in the plan; and an 

evaluation of the factors described in 

paragraph (d) of this section. 

(c) The Secretary only will renew the 

agreement of an entity to operate a Job 

Corps center if the entity: 

(1) Has a satisfactory record of 

integrity and business ethics; 

(2) Has adequate financial resources 

to perform the agreement; 

(3) Has the necessary organization, 

experience, accounting and operational 

controls, and technical skills; and 

(4) Is otherwise qualified and eligible 

under applicable laws and regulations, 

including that the contractor is not 

under suspension or debarred from 

eligibility for Federal contractors. 

(d) The Secretary will not renew an 

agreement for an entity to operate a Job 

Corps center for any additional 1-year 

period if, for both of the 2 most recent 

preceding program years for which 

information is available at the time the 

determination is made, or if a second 

program year is not available, the 

preceding year for which information is 

available, such center: 

(1) Has been ranked in the lowest 10 

percent of Job Corps centers according 

to the rankings calculated under 

§ 686.1060; and 

(2) Failed to achieve an average of 50 

percent or higher of the expected level 

of performance established under 

§ 686.1050 with respect to each of the 

primary indicators of performance for 

eligible youth described in sec. 

116(b)(2)(A)(ii) of WIOA, listed in 

§ 686.1010. 

(e)(1) Information will be considered 

to be available for a program year for 

purposes of paragraph (d) of this section 

if for each of the primary indicators of 

performance, all of the students 

included in the cohort being measured 

either began their participation under 

the current center operator or, if they 

began their participation under the 

previous center operator, were on center 

for at least 6 months under the current 

operator. If an operator assumes 

operation of a center that meets the 

criteria under paragraphs (d)(1) and (2) 

of this section, the first contractual 

option year will not be denied based on 

the application of paragraph (d) of this 

section provided that the operator 

otherwise meets the requirements for 

renewal described in paragraphs (a) 

through (c) of this section. 

(2) If complete information for any of 

the indicators of performance described 

in paragraph (d)(2) of this section is not 

available for either of the 2 program 

years described in paragraph (d) of this 

section, the Secretary will review partial 

program year data from the most recent 

program year for those indicators, if at 

least two quarters of data are available, 

when making the determination 

required under paragraph (d)(2) of this 

section. 

(f) If any of the program years 

described in paragraph (d) of this 

section precede the implementation of 

the establishment of the expected levels 

of performance under § 686.1050 and 

the application of the primary indicators 

of performance for Job Corps centers 

described in § 686.1010, the evaluation 

described in paragraph (d) of this 

section will be based on whether in its 

operation of the center the entity: 

(1) Is ranked among the lowest 10 

percent of Job Corps centers for the most 

recent preceding program year 

according to the ranking calculated 

under § 686.1060; and 

(2) Meets the requirement of 

paragraph (d)(2) of this section with 

respect to such preceding program years 

using the performance of the Job Corps 

center regarding the national goals or 

targets established by the Office of the 

Job Corps under the previous 

performance accountability system for— 

(i) The 6-month follow-up placement 

rate of graduates in employment, the 

military, education, or training; 

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56448 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

(ii) The 12-month follow-up 

placement rate of graduates in 

employment, the military, education, or 

training; 

(iii) The 6-month follow-up average 

weekly earnings of graduates; 

(iv) The rate of attainment of 

secondary school diplomas or their 

recognized equivalent; 

(v) The rate of attainment of 

completion certificates for career 

technical training; 

(vi) Average literacy gains; and 

(vii) Average numeracy gains. 

(g) The Secretary can exercise an 

option to renew the agreement with an 

entity notwithstanding the requirements 

in paragraph (d) of this section for no 

more than 2 additional years if the 

Secretary determines that a renewal 

would be in the best interest of the Job 

Corps program, taking into account 

factors including: 

(1) Significant improvements in 

program performance in carrying out a 

performance improvement plan; 

(2) That the performance is due to 

circumstances beyond the control of the 

entity, such as an emergency or disaster; 

(3) A significant disruption in the 

operations of the center, including in 

the ability to continue to provide 

services to students, or significant 

increase in the cost of such operations; 

or 

(4) A significant disruption in the 

procurement process with respect to 

carrying out a competition for the 

selection of a center operator. 

(h) If the Secretary does make an 

exception and exercises the option to 

renew per paragraph (g) of this section, 

the Secretary will provide a detailed 

explanation of the rationale for 

exercising the option to the Committee 

on Education and the Workforce of the 

House of Representatives and the 

Committee on Health, Education, Labor, 

and Pensions of the Senate. 

§ 686.340 How are entities selected to 

receive funding to provide outreach and 

admission, career transition and other 

operations support services? 

(a) The Secretary selects eligible 

entities to provide outreach and 

admission, career transition, and 

operational services on a competitive 

basis in accordance with applicable 

statutes and regulations. In selecting an 

entity, ETA issues requests for proposals 

(RFP) for operational support services 

according to the Federal Acquisition 

Regulation (48 CFR chapter 1) and 

Department of Labor Acquisition 

Regulation (48 CFR chapter 29). ETA 

develops RFPs for operational support 

services in consultation with the 

Governor, the center workforce council 

(if established), and the Local WDB for 

the workforce development area in 

which the center is located. 

(b) The RFP for each support service 

contract describes uniform 

specifications and standards, as well as 

specifications and requirements that are 

unique to the specific required 

operational support services. 

(c) The contracting officer selects and 

funds operational support service 

contracts on the basis of an evaluation 

of the proposals received using criteria 

established by the Secretary and set 

forth in the RFP. The criteria may 

include the following, as applicable: 

(1) The ability of the offeror to 

coordinate the activities carried out in 

relation to the Job Corps center with 

related activities carried out under the 

appropriate State Plan and local plans; 

(2) The ability of the entity to offer 

career technical training that has been 

proposed by the workforce council and 

the degree to which the training reflects 

employment opportunities in the local 

areas in which most of the students 

intend to seek employment; 

(3) The degree to which the offeror 

demonstrates relationships with the 

surrounding communities, including 

employers, labor organizations, State 

WDBs, Local WDBs, applicable one-stop 

centers, and the State and region in 

which the services are provided; 

(4) The offeror’s past performance, if 

any, relating to providing services to a 

Job Corps center, including information 

regarding the offeror in any reports 

developed by the Office of the Inspector 

General of the Department of Labor and 

the offeror’s demonstrated effectiveness 

in assisting individuals in achieving the 

indicators of performance for eligible 

youth described in sec. 116(b)(2)(A)(ii) 

of WIOA, listed in § 686.1010; 

(5) The offeror’s ability to demonstrate 

a record of successfully assisting at-risk 

youth to connect to the workforce; and 

(6) Any other information on 

additional selection factors required by 

the Secretary. 

§ 686.350 What conditions apply to the 

operation of a Civilian Conservation 

Center? 

(a) The Secretary of Labor may enter 

into an agreement with the Secretary of 

Agriculture to operate Job Corps centers 

located on public land, which are called 

Civilian Conservation Centers (CCCs). 

Located primarily in rural areas, in 

addition to academics, career technical 

training, and workforce preparation 

skills training, CCCs provide programs 

of work experience to conserve, 

develop, or manage public natural 

resources or public recreational areas or 

to develop community projects in the 

public interest. 

(b) When the Secretary of Labor enters 

into an agreement with the Secretary of 

Agriculture for the funding, 

establishment, and operation of CCCs, 

provisions are included to ensure that 

the Department of Agriculture complies 

with the regulations under this part. 

(c) Enrollees in CCCs may provide 

assistance in addressing national, State, 

and local disasters, consistent with 

current child labor laws. The Secretary 

of Agriculture must ensure that 

enrollees are properly trained, 

equipped, supervised, and dispatched 

consistent with the standards for the 

conservation and rehabilitation of 

wildlife established under the Fish and 

Wildlife Coordination Act (16 U.S.C. 

661 et seq.). 

(d) The Secretary of Agriculture must 

designate a Job Corps National Liaison 

to support the agreement between the 

Departments of Labor and Agriculture to 

operate CCCs. 

(e) The Secretary of Labor, in 

consultation with the Secretary of 

Agriculture, may select an entity to 

operate a CCC in accordance with the 

requirements of § 686.310 if the 

Secretary of Labor determines 

appropriate. 

(f) The Secretary of Labor has the 

discretion to close CCCs if the Secretary 

determines appropriate. 

§ 686.360 What are the requirements for 

award of contracts and payments to Federal 

agencies? 

(a) The requirements of the Federal 

Property and Administrative Services 

Act of 1949, as amended; the Federal 

Grant and Cooperative Agreement Act of 

1977; the Federal Acquisition 

Regulation (48 CFR chapter 1); and the 

Department of Labor Acquisition 

Regulation (48 CFR chapter 29) apply to 

the award of contracts and to payments 

to Federal agencies. 

(b) Job Corps funding of Federal 

agencies that operate CCCs are made by 

a transfer of obligational authority from 

the Department to the respective 

operating agency. 

Subpart D—Recruitment, Eligibility, 

Screening, Selection and Assignment, 

and Enrollment 

§ 686.400 Who is eligible to participate in 

the Job Corps program? 

(a) To be eligible to participate in the 

Job Corps, an individual must be: 

(1) At least 16 and not more than 24 

years of age at the time of enrollment, 

except that: 

(i) The Job Corps Director may waive 

the maximum age limitation described 

in paragraph (a)(1) of this section, and 

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the requirement in paragraph (a)(1)(ii) of 

this section for an individual with a 

disability if he or she is otherwise 

eligible according to the requirements 

listed in this section and § 686.410; and 

(ii) Not more than 20 percent of 

individuals enrolled nationwide may be 

individuals who are aged 22 to 24 years 

old; 

(2) A low-income individual; 

(3) An individual who is facing one or 

more of the following barriers to 

education and employment: 

(i) Is basic skills deficient, as defined 

in WIOA sec. 3; 

(ii) Is a school dropout; 

(iii) Is homeless as defined in sec. 

41403(6) of the Violence Against 

Women Act of 1994 (42 U.S.C. 14043e2(6)); is a homeless child or youth, as 

defined in sec. 725(2) of the McKinneyVento Homeless Assistance Act (42 

U.S.C. 11434a(2)); or is a runaway, an 

individual in foster care; or an 

individual who was in foster care and 

has aged out of the foster care system. 

(iv) Is a parent; or 

(v) Requires additional education, 

career technical training, or workforce 

preparation skills in order to obtain and 

retain employment that leads to 

economic self-sufficiency; and 

(4) Meets the requirements of 

§ 686.420, if applicable. 

(b) Notwithstanding paragraph (a)(2) 

of this section, a veteran is eligible to 

become an enrollee if the individual: 

(1) Meets the requirements of 

paragraphs (a)(1) and (3) of this section; 

and 

(2) Does not meet the requirement of 

paragraph (a)(2) of this section because 

the military income earned by the 

individual within the 6-month period 

prior to the individual’s application for 

Job Corps prevents the individual from 

meeting that requirement. 

§ 686.410 Are there additional factors 

which are considered in selecting an 

eligible applicant for enrollment? 

Yes, in accordance with procedures 

issued by the Secretary, an eligible 

applicant may be selected for 

enrollment only if: 

(a) A determination is made, based on 

information relating to the background, 

needs, and interests of the applicant, 

that the applicant’s educational and 

career and technical needs can best be 

met through the Job Corps program; 

(b) A determination is made that there 

is a reasonable expectation the applicant 

can participate successfully in group 

situations and activities, and is not 

likely to engage in actions that would 

potentially: 

(1) Prevent other students from 

receiving the benefit of the program; 

(2) Be incompatible with the 

maintenance of sound discipline; or 

(3) Impede satisfactory relationships 

between the center to which the student 

is assigned and surrounding local 

communities; 

(c) The applicant is made aware of the 

center’s rules, what the consequences 

are for failure to observe the rules, and 

agrees to comply with such rules, as 

described in procedures issued by the 

Secretary; 

(d) The applicant has not been 

convicted of a felony consisting of 

murder, child abuse, or a crime 

involving rape or sexual assault. Other 

than these felony convictions, no one 

will be denied enrollment in Job Corps 

solely on the basis of contact with the 

criminal justice system. All applicants 

must submit to a background check 

conducted according to procedures 

established by the Secretary and in 

accordance with applicable State and 

local laws. If the background check 

finds that the applicant is on probation, 

parole, under a suspended sentence, or 

under the supervision of any agency as 

a result of court action or 

institutionalization, the court or 

appropriate supervising agency may 

certify in writing that it will approve of 

the applicant’s participation in Job 

Corps, and provide full release from its 

supervision, and that the applicant’s 

participation and release does not 

violate applicable laws and regulations; 

and 

(e) Suitable arrangements are made for 

the care of any dependent children for 

the proposed period of enrollment. 

§ 686.420 Are there any special 

requirements for enrollment related to the 

Military Selective Service Act? 

(a) Yes, each male applicant 18 years 

of age or older must present evidence 

that he has complied with sec. 3 of the 

Military Selective Service Act (50 U.S.C. 

App. 451 et seq.) if required; and 

(b) When a male student turns 18 

years of age, he must submit evidence 

to the center that he has complied with 

the requirements of the Military 

Selective Service Act (50 U.S.C. App. 

451 et seq.). 

§ 686.430 What entities conduct outreach 

and admissions activities for the Job Corps 

program? 

The Secretary makes arrangements 

with outreach and admissions providers 

to perform Job Corps recruitment, 

screening and admissions functions 

according to standards and procedures 

issued by the Secretary. Entities eligible 

to receive funds to provide outreach and 

admissions services are identified in 

§ 686.300. 

§ 686.440 What are the responsibilities of 

outreach and admissions providers? 

(a) Outreach and admissions agencies 

are responsible for: 

(1) Developing outreach and referral 

sources; 

(2) Actively seeking out potential 

applicants; 

(3) Conducting personal interviews 

with all applicants to identify their 

needs and eligibility status; and 

(4) Identifying youth who are 

interested and likely Job Corps 

participants. 

(b) Outreach and admissions 

providers are responsible for completing 

all Job Corps application forms and 

determining whether applicants meet 

the eligibility and selection criteria for 

participation in Job Corps as provided 

in §§ 686.400 and 686.410. 

(c) The Secretary may decide that 

determinations with regard to one or 

more of the eligibility criteria will be 

made by the National Director or his or 

her designee. 

§ 686.450 How are applicants who meet 

eligibility and selection criteria assigned to 

centers? 

(a) Each applicant who meets the 

application and selection requirements 

of §§ 686.400 and 686.410 is assigned to 

a center based on an assignment plan 

developed by the Secretary in 

consultation with the operators of Job 

Corps centers. The assignment plan 

identifies a target for the maximum 

percentage of students at each center 

who come from the State or region 

nearest the center, and the regions 

surrounding the center. The assignment 

plan is based on an analysis of the 

following non-exclusive list of factors 

that will be analyzed in consultation 

with center operators: 

(1) The number of eligible individuals 

in the State and region where the center 

is located and the regions surrounding 

where the center is located; 

(2) The demand for enrollment in Job 

Corps in the State and region where the 

center is located and in surrounding 

regions; 

(3) The size and enrollment level of 

the center, including the education, 

training, and supportive services 

provided through the center; and 

(4) The performance of the Job Corps 

center relating to the expected levels of 

performance for indicators described in 

WIOA sec. 159(c)(1), and whether any 

actions have been taken with respect to 

the center under secs. 159(f)(2) and 

159(f)(3) of WIOA. 

(b) Eligible applicants are assigned to 

the center that offers the type of career 

technical training selected by the 

individual, and among the centers that 

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offer such career technical training, is 

closest to the home of the individual. 

The Secretary may waive this 

requirement if: 

(1) The enrollee would be unduly 

delayed in participating in the Job Corps 

program because the closest center is 

operating at full capacity; or 

(2) The parent or guardian of the 

enrollee requests assignment of the 

enrollee to another Job Corps center due 

to circumstances in the community that 

would impair prospects for successful 

completion by the enrollee. 

(c) If a parent or guardian objects to 

the assignment of a student under the 

age of 18 to a center other than the 

center closest to home that offers the 

desired career technical training, the 

Secretary must not make such an 

assignment. 

§ 686.460 What restrictions are there on 

the assignment of eligible applicants for 

nonresidential enrollment in Job Corps? 

No more than 20 percent of students 

enrolled in Job Corps nationwide may 

be nonresidential students. 

§ 686.470 May an individual who is 

determined to be ineligible or an individual 

who is denied enrollment appeal that 

decision? 

(a) A person who is determined to be 

ineligible to participate in Job Corps 

under § 686.400 or a person who is not 

selected for enrollment under § 686.410 

may appeal the determination to the 

outreach and admissions agency within 

60 days of the determination. The 

appeal will be resolved according to the 

procedures in §§ 686.960 and 686.965. If 

the appeal is denied by the outreach/

admissions contractor or the center, the 

person may appeal the decision in 

writing to the Regional Director within 

60 days of the date of the denial. The 

Regional Director will decide within 60 

days whether to reverse or approve the 

appealed decision. The decision by the 

Regional Director is the Department’s 

final decision. 

(b) If an applicant believes that he or 

she has been determined ineligible or 

not selected for enrollment based upon 

a factor prohibited by sec. 188 of WIOA, 

the individual may proceed under the 

applicable Department 

nondiscrimination regulations 

implementing WIOA sec. 188 at 29 CFR 

part 38. 

(c) An applicant who is determined to 

be ineligible or a person who is denied 

enrollment must be referred to the 

appropriate one-stop center or other 

local service provider. 

§ 686.480 At what point is an applicant 

considered to be enrolled in Job Corps? 

(a) To be considered enrolled as a Job 

Corps student, an applicant selected for 

enrollment must physically arrive at the 

assigned Job Corps center on the 

appointed date. However, applicants 

selected for enrollment who arrive at 

their assigned centers by government 

furnished transportation are considered 

to be enrolled on their dates of 

departure by such transportation. 

(b) Center operators must document 

the enrollment of new students 

according to procedures issued by the 

Secretary. 

§ 686.490 How long may a student be 

enrolled in Job Corps? 

(a) Except as provided in paragraph 

(b) of this section, a student may remain 

enrolled in Job Corps for no more than 

2 years. 

(b)(1) An extension of a student’s 

enrollment may be authorized in special 

cases according to procedures issued by 

the Secretary; 

(2) A student’s enrollment in an 

advanced career training program may 

be extended in order to complete the 

program for a period not to exceed 1 

year; 

(3) An extension of a student’s 

enrollment may be authorized in the 

case of a student with a disability who 

would reasonably be expected to meet 

the standards for a Job Corps graduate 

if allowed to participate in the Job Corps 

for not more than 1 additional year; and 

(4) An enrollment extension may be 

granted to a student who participates in 

national service, as authorized by a 

Civilian Conservation Center, for the 

amount of time equal to the period of 

national service. 

Subpart E—Program Activities and 

Center Operations 

§ 686.500 What services must Job Corps 

centers provide? 

(a) Job Corps centers must provide an 

intensive, well-organized, and fully 

supervised program including: 

(1) Educational activities, including: 

(i) Career technical training; 

(ii) Academic instruction; 

(iii) Employability and skills training; 

and 

(iv) Independent learning and living 

skills development. 

(2) Work-based learning and 

experience; 

(3) Residential support services; and 

(4) Other services as required by the 

Secretary. 

(b) In addition, centers must provide 

students with access to the career 

services described in secs. 

134(c)(2)(A)(i)–(xi) of WIOA. 

§ 686.505 What types of training must Job 

Corps centers provide? 

(a) Job Corps centers must provide 

students with a career technical training 

program that is: 

(1) Aligned with industry-recognized 

standards and credentials and with 

program guidance; and 

(2) Linked to employment 

opportunities in in-demand industry 

sectors and occupations both in the area 

in which the center is located and, if 

practicable, in the area the student plans 

to reside after graduation. 

(b) Each center must provide 

education programs, including: An 

English language acquisition program, 

high school diploma or high school 

equivalency certification program, and 

academic skills training necessary for 

students to master skills in their chosen 

career technical training programs. 

(c) Each center must provide 

programs for students to learn and 

practice employability and independent 

learning and living skills including: job 

search and career development, 

interpersonal relations, driver’s 

education, study and critical thinking 

skills, financial literacy and other skills 

specified in program guidance. 

(d) All Job Corps training programs 

must be based on industry and 

academic skills standards leading to 

recognized industry and academic 

credentials, applying evidence-based 

instructional approaches, and resulting 

in: 

(1) Students’ employment in 

unsubsidized, in-demand jobs with the 

potential for advancement 

opportunities; 

(2) Enrollment in advanced education 

and training programs or 

apprenticeships, including registered 

apprenticeship; or 

(3) Enlistment in the Armed Services. 

(e) Specific career technical training 

programs offered by individual centers 

must be approved by the Regional 

Director according to policies issued by 

the Secretary. 

(f) Center workforce councils 

described in § 686.810 must review 

appropriate labor market information, 

identify in-demand industry sectors and 

employment opportunities in local areas 

where students will look for 

employment, determine the skills and 

education necessary for those jobs, and 

as appropriate, recommend changes in 

the center’s career technical training 

program to the Secretary. 

(g) Each center must implement a 

system to evaluate and track the 

progress and achievements of each 

student at regular intervals. 

(h) Each center must develop a 

training plan that must be available for 

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review and approval by the appropriate 

Regional Director. 

§ 686.510 Are entities other than Job 

Corps center operators permitted to provide 

academic and career technical training? 

(a) The Secretary may arrange for the 

career technical and academic 

education of Job Corps students through 

local public or private educational 

agencies, career and technical 

educational institutions or technical 

institutes, or other providers such as 

business, union or union-affiliated 

organizations with demonstrated 

effectiveness, as long as the entity can 

provide education and training 

substantially equivalent in cost and 

quality to that which the Secretary 

could provide through other means. 

(b) Entities providing these services 

will be selected in accordance with the 

requirements of § 686.310. 

§ 686.515 What are advanced career 

training programs? 

(a) The Secretary may arrange for 

programs of advanced career training 

(ACT) for selected students, which may 

be provided through the eligible training 

providers identified in WIOA sec. 122 

in which the students continue to 

participate in the Job Corps program for 

a period not to exceed 1 year in addition 

to the period of participation to which 

these students would otherwise be 

limited. 

(b) Students participating in an ACT 

program are eligible to receive: 

(1) All of the benefits provided to a 

residential Job Corps student; or 

(2) A monthly stipend equal to the 

average value of the benefits described 

in paragraph (b)(1) of this section. 

(c) Any operator may enroll more 

students than otherwise authorized by 

the Secretary in an ACT program if, in 

accordance with standards developed 

by the Secretary, the operator 

demonstrates: 

(1) Participants in such a program 

have achieved a satisfactory rate of 

completion and placement in trainingrelated jobs; and 

(2) For the most recently preceding 2 

program years, the operator has, on 

average, met or exceeded the expected 

levels of performance under WIOA sec. 

159(c)(1) for each of the primary 

indicators described in WIOA sec. 

116(b)(2)(A)(ii), listed in § 686.1010. 

§ 686.520 What responsibilities do the 

center operators have in managing workbased learning? 

(a) The center operator must 

emphasize and implement work-based 

learning programs for students through 

center program activities, including 

career and technical skills training, and 

through arrangements with employers. 

Work-based learning must be under 

actual working conditions and must be 

designed to enhance the employability, 

responsibility, and confidence of the 

students. Work-based learning usually 

occurs in tandem with students’ career 

technical training. 

(b) The center operator must ensure 

that students are assigned only to 

workplaces that meet the safety 

standards described in § 686.920. 

§ 686.525 Are students permitted to hold 

jobs other than work-based learning 

opportunities? 

Yes, a center operator may authorize 

a student to participate in gainful 

leisure time employment, as long as the 

employment does not interfere with 

required scheduled activities. 

§ 686.530 What residential support 

services must Job Corps center operators 

provide? 

Job Corps center operators must 

provide the following services according 

to procedures issued by the Secretary: 

(a) A center-wide quality living and 

learning environment that supports the 

overall training program and includes a 

safe, secure, clean and attractive 

physical and social environment, 7 days 

a week, 24 hours a day; 

(b) An ongoing, structured personal 

counseling program for students 

provided by qualified staff; 

(c) A quality, safe and clean food 

service, to provide nutritious meals for 

students; 

(d) Medical services, through 

provision or coordination of a wellness 

program which includes access to basic 

medical, dental and mental health 

services, as described in the Policy and 

Requirements Handbook, for all 

students from the date of enrollment 

until separation from the Job Corps 

program; 

(e) A recreation/avocational program 

that meets the needs of all students; 

(f) A student leadership program and 

an elected student government; and 

(g) A student welfare association for 

the benefit of all students that is funded 

by non-appropriated funds that come 

from sources such as snack bars, 

vending machines, disciplinary fines, 

donations, and other fundraising 

activities, and is run by an elected 

student government, with the help of a 

staff advisor. 

§ 686.535 Are Job Corps centers required 

to maintain a student accountability 

system? 

Yes, each Job Corps center must 

establish and implement an effective 

system to account for and document the 

daily whereabouts, participation, and 

status of students during their Job Corps 

enrollment. The system must enable 

center staff to detect and respond to 

instances of unauthorized or 

unexplained student absence. Each 

center must operate its student 

accountability system according to 

requirements and procedures issued by 

the Secretary. 

§ 686.540 Are Job Corps centers required 

to establish behavior management 

systems? 

(a) Yes, each Job Corps center must 

establish and maintain its own student 

incentives system to encourage and 

reward students’ accomplishments. 

(b) The Job Corps center must 

establish and maintain a behavior 

management system, based on a 

behavior management plan, according to 

standards of conduct and procedures 

established by the Secretary. The 

behavior management plan must be 

approved by the Job Corps regional 

office and reviewed annually. The 

behavior management system must 

include a zero tolerance policy for 

violence and drugs as described in 

§ 686.545. All criminal incidents will be 

promptly reported to local law 

enforcement. 

§ 686.545 What is Job Corps’ zero 

tolerance policy? 

(a) All center operators must comply 

with Job Corps’ zero tolerance policy as 

established by the Secretary. Job Corps 

has a zero tolerance policy for 

infractions including but not limited to: 

(1) Acts of violence, as defined by the 

Secretary; 

(2) Use, sale, or possession of a 

controlled substance, as defined at 21 

U.S.C. 802; 

(3) Abuse of alcohol; 

(4) Possession of unauthorized goods; 

or 

(5) Other illegal or disruptive activity. 

(b) As part of this policy, all students 

must be tested for drugs as a condition 

of participation. 

(c) The zero tolerance policy specifies 

the offenses that result in the separation 

of students from the Job Corps. The 

center director is expressly responsible 

for determining when there is a 

violation of this policy. 

§ 686.550 How does Job Corps ensure that 

students receive due process in 

disciplinary actions? 

The center operator must ensure that 

all students receive due process in 

disciplinary proceedings according to 

procedures developed by the Secretary. 

These procedures must include center 

fact-finding and behavior review boards, 

a code of sanctions under which the 

penalty of separation from Job Corps 

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might be imposed, and procedures for 

students to submit an appeal to a Job 

Corps regional appeal board following a 

center’s decision to discharge 

involuntarily the student from Job 

Corps. 

§ 686.555 What responsibilities do Job 

Corps centers have in assisting students 

with child care needs? 

(a) Job Corps centers are responsible 

for coordinating with outreach and 

admissions agencies to assist applicants, 

whenever feasible, with making 

arrangements for child care. Prior to 

enrollment, a program applicant with 

dependent children who provides 

primary or custodial care must certify 

that suitable arrangements for child care 

have been established for the proposed 

period of enrollment. 

(b) Child development programs may 

be located at Job Corps centers with the 

approval of the Secretary. 

§ 686.560 What are the center’s 

responsibilities in ensuring that students’ 

religious rights are respected? 

(a) Centers must ensure that a student 

has the right to worship or not worship 

as he or she chooses. 

(b) Students who believe their 

religious rights have been violated may 

file complaints under the procedures set 

forth in 29 CFR part 38. 

(c) Requirements related to equal 

treatment of religious organizations in 

Department of Labor programs, and to 

protection of religious liberty of 

Department of Labor social service 

providers and beneficiaries, are found at 

subpart D of 29 CFR part 2. See also 

§§ 683.255 and 683.285 of this chapter; 

29 CFR part 38. 

§ 686.565 Is Job Corps authorized to 

conduct pilot and demonstration projects? 

Yes, the Secretary may undertake 

experimental, research and 

demonstration projects related to the Job 

Corps program according to WIOA sec. 

156(a), provided that such projects are 

developed, approved, and conducted in 

accordance with policies and 

procedures developed by the Secretary. 

Subpart F—Student Support 

§ 686.600 Are students provided with 

government-paid transportation to and from 

Job Corps centers? 

Yes, Job Corps provides for the 

transportation of students between their 

homes and centers as described in 

policies and procedures issued by the 

Secretary. 

§ 686.610 When are students authorized to 

take leaves of absence from their Job Corps 

centers? 

(a) Job Corps students are eligible for 

annual leaves, emergency leaves and 

other types of leaves of absence from 

their assigned centers according to 

criteria and requirements issued by the 

Secretary. Additionally, enrollees in 

Civilian Conservation Centers may take 

leave to provide assistance in 

addressing national, State, and local 

disasters, consistent with current laws 

and regulations, including child labor 

laws and regulations. 

(b) Center operators and other service 

providers must account for student 

leave according to procedures issued by 

the Secretary. 

§ 686.620 Are Job Corps students eligible 

to receive cash allowances and 

performance bonuses? 

(a) Yes, according to criteria and rates 

established by the Secretary, Job Corps 

students receive cash living allowances, 

performance bonuses, and allotments 

for care of dependents. Graduates 

receive post-separation transition 

allowances according to § 686.750. 

(b) In the event of a student’s death, 

any amount due under this section is 

paid according to the provisions of 5 

U.S.C. 5582 governing issues such as 

designation of beneficiary, order of 

precedence, and related matters. 

§ 686.630 Are student allowances subject 

to Federal payroll taxes? 

Yes, Job Corps student allowances are 

subject to Federal payroll tax 

withholding and social security taxes. 

Job Corps students are considered to be 

Federal employees for purposes of 

Federal payroll taxes. 

§ 686.640 Are students provided with 

clothing? 

Yes, Job Corps students are provided 

cash clothing allowances and/or articles 

of clothing, including safety clothing, 

when needed for their participation in 

Job Corps and their successful entry into 

the work force. Center operators and 

other service providers must issue 

clothing and clothing assistance to 

students according to rates, criteria, and 

procedures issued by the Secretary. 

Subpart G—Career Transition and 

Graduate Services 

§ 686.700 What are a Job Corps center’s 

responsibilities in preparing students for 

career transition services? 

Job Corps centers must assess and 

counsel students to determine their 

competencies, capabilities, and 

readiness for career transition services. 

§ 686.710 What career transition services 

are provided for Job Corps enrollees? 

Job Corps career transition services 

focus on placing program graduates in: 

(a) Full-time jobs that are related to 

their career technical training and career 

pathway that lead to economic selfsufficiency; 

(b) Postsecondary education; 

(c) Advanced training programs, 

including registered apprenticeship 

programs; or 

(d) The Armed Forces. 

§ 686.720 Who provides career transition 

services? 

The one-stop delivery system must be 

used to the maximum extent practicable 

in placing graduates and former 

enrollees in jobs. Multiple other 

resources also may provide postprogram services, including but not 

limited to Job Corps career transition 

service providers under a contract or 

other agreement with the Department of 

Labor, and State vocational 

rehabilitation agencies for individuals 

with disabilities. 

§ 686.730 What are the responsibilities of 

career transition service providers? 

(a) Career transition service providers 

are responsible for: 

(1) Contacting graduates; 

(2) Assisting them in improving skills 

in resume preparation, interviewing 

techniques and job search strategies; 

(3) Identifying job leads or 

educational and training opportunities 

through coordination with Local WDBs, 

one-stop operators and partners, 

employers, unions and industry 

organizations; 

(4) Placing graduates in jobs, 

registered apprenticeship, the Armed 

Forces, or postsecondary education or 

training, or referring former students for 

additional services in their local 

communities as appropriate; and 

(5) Providing placement services for 

former enrollees according to 

procedures issued by the Secretary. 

(b) Career transition service providers 

must record and submit all Job Corps 

placement information according to 

procedures established by the Secretary. 

§ 686.740 What services are provided for 

program graduates? 

According to procedures issued by the 

Secretary, career transition and support 

services must be provided to program 

graduates for up to 12 months after 

graduation. 

§ 686.750 Are graduates provided with 

transition allowances? 

Yes, graduates receive post-separation 

transition allowances according to 

policies and procedures established by 

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the Secretary. Transition allowances are 

incentive-based to reflect a graduate’s 

attainment of academic credentials and 

those associated with career technical 

training such as industry-recognized 

credentials. 

§ 686.760 What services are provided to 

former enrollees? 

(a) Up to 3 months of employment 

services, including career services 

offered through a one-stop center, may 

be provided to former enrollees. 

(b) According to procedures issued by 

the Secretary, other career transition 

services as determined appropriate may 

be provided to former enrollees. 

Subpart H—Community Connections 

§ 686.800 How do Job Corps centers and 

service providers become involved in their 

local communities? 

(a) The director of each Job Corps 

center must ensure the establishment 

and development of mutually beneficial 

business and community relationships 

and networks. Establishing and 

developing networks includes 

relationships with: 

(1) Local and distant employers; 

(2) Applicable one-stop centers and 

Local WDBs: 

(3) Entities offering apprenticeship 

opportunities, including registered 

apprenticeships, and youth programs; 

(4) Labor-management organizations 

and local labor organizations; 

(5) Employers and contractors that 

support national training programs and 

initiatives; and 

(6) Community-based organizations, 

non-profit organizations, and 

intermediaries providing workforce 

development-related services. 

(b) Each Job Corps center also must 

establish and develop relationships with 

members of the community in which it 

is located. Members of the community 

must be informed of the projects of the 

Job Corps center and changes in the 

rules, procedures, or activities of the 

center that may affect the community. 

Events of mutual interest to the 

community and the Job Corps center 

must be planned to create and maintain 

community relations and community 

support. 

§ 686.810 What is the makeup of a 

workforce council and what are its 

responsibilities? 

(a) Each Job Corps center must 

establish a workforce council, according 

to procedures established by the 

Secretary. The workforce council must 

include: 

(1) Non-governmental and private 

sector employers; 

(2) Representatives of labor 

organizations (where present) and of 

employees; 

(3) Job Corps enrollees and graduates; 

and 

(4) In the case of a single-State local 

area, the workforce council must 

include a representative of the State 

WDB constituted under § 679.110 of this 

chapter. 

(b) A majority of the council members 

must be business owners, chief 

executives or chief operating officers of 

nongovernmental employers or other 

private sector employers, or their 

designees, who have substantial 

management, hiring or policy 

responsibility and who represent 

businesses with employment 

opportunities in the local area and the 

areas in which students will seek 

employment. 

(c) The workforce council may 

include, or otherwise provide for 

consultation with, employers from 

outside the local area who are likely to 

hire a significant number of enrollees 

from the Job Corps center. 

(d) The workforce council must: 

(1) Work with all applicable Local 

WDBs and review labor market 

information to determine and provide 

recommendations to the Secretary 

regarding the center’s career technical 

training offerings, including 

identification of emerging occupations 

suitable for training; 

(2) Review all relevant labor market 

information, including related 

information in the State Plan or the 

local plan, to: 

(i) Recommend in-demand industry 

sectors or occupations in the area in 

which the center operates; 

(ii) Determine employment 

opportunities in the areas in which 

enrollees intend to seek employment; 

(iii) Determine the skills and 

education necessary to obtain the 

identified employment; and 

(iv) Recommend to the Secretary the 

type of career technical training that 

must be implemented at the center to 

enable enrollees to obtain the 

employment opportunities identified; 

and 

(3) Meet at least once every 6 months 

to reevaluate the labor market 

information, and other relevant 

information, to determine and 

recommend to the Secretary any 

necessary changes in the career 

technical training provided at the 

center. 

§ 686.820 How will Job Corps coordinate 

with other agencies? 

(a) The Secretary issues guidelines for 

the national office, regional offices, Job 

Corps centers and operational support 

providers to use in developing and 

maintaining cooperative relationships 

with other agencies and institutions, 

including law enforcement, educational 

institutions, communities, and other 

employment and training programs and 

agencies. 

(b) The Secretary develops polices 

and requirements to ensure linkages 

with the one-stop delivery system to the 

greatest extent practicable, as well as 

with other Federal, State, and local 

programs, and youth programs funded 

under title I of WIOA. These linkages 

enhance services to youth who face 

multiple barriers to employment and 

must include, where appropriate: 

(1) Referrals of applicants and 

students; 

(2) Participant assessment; 

(3) Pre-employment and work 

maturity skills training; 

(4) Work-based learning; 

(5) Job search, occupational, and basic 

skills training; and 

(6) Provision of continued services for 

graduates. 

(c) Job Corps is identified as a 

required one-stop partner. Wherever 

practicable, Job Corps centers and 

operational support contractors must 

establish cooperative relationships and 

partnerships with one-stop centers and 

other one-stop partners, Local WDBs, 

and other programs for youth. 

Subpart I—Administrative and 

Management Provisions 

§ 686.900 Are damages caused by the acts 

or omissions of students eligible for 

payment under the Federal Tort Claims 

Act? 

Yes, students are considered Federal 

employees for purposes of the FTCA. 

(28 U.S.C. 2671 et seq.) Claims for such 

damage must be filed pursuant to the 

procedures found in 29 CFR part 15, 

subpart D. 

§ 686.905 Are loss and damages that 

occur to persons or personal property of 

students at Job Corps centers eligible for 

reimbursement? 

Yes, the Job Corps may pay students 

for valid claims under the procedures 

found in 29 CFR part 15, subpart D. 

§ 686.910 If a student is injured in the 

performance of duty as a Job Corps 

student, what benefits may the student 

receive? 

(a) Job Corps students are considered 

Federal employees for purposes of the 

Federal Employees’ Compensation Act 

(FECA) as specified in sec. 157(a)(3) of 

WIOA. (29 U.S.C. 2897(a)(3)) 

(b) Job Corps students may be entitled 

to benefits under FECA as provided by 

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5 U.S.C. 8143 for injuries occurring in 

the performance of duty. 

(c) Job Corps students must meet the 

same eligibility tests for FECA benefits 

that apply to all other Federal 

employees. The requirements for FECA 

benefits may be found at 5 U.S.C. 8101, 

et seq. and part 10 of this title. The 

Department of Labor’s Office of 

Workers’ Compensation Programs 

(OWCP) administers the FECA program; 

all FECA determinations are within the 

exclusive authority of the OWCP, 

subject to appeal to the Employees’ 

Compensation Appeals Board. 

(d) Whenever a student is injured, 

develops an occupationally related 

illness, or dies while in the performance 

of duty, the procedures of the OWCP, at 

part 10 of this title, must be followed. 

To assist OWCP in determining FECA 

eligibility, a thorough investigation of 

the circumstances and a medical 

evaluation must be completed and 

required forms must be timely filed by 

the center operator with the 

Department’s OWCP. Additional 

information regarding Job Corps FECA 

claims may be found in OWCP’s 

regulations and procedures available on 

the Department’s Web site located at 

https://www.dol.gov/. 

§ 686.915 When is a Job Corps student 

considered to be in the performance of 

duty? 

(a) Performance of duty is a 

determination that must be made by the 

OWCP under FECA, and is based on the 

individual circumstances in each claim. 

(b) In general, residential students 

may be considered to be in the 

‘‘performance of duty’’ when: 

(1) They are on center under the 

supervision and control of Job Corps 

officials; 

(2) They are engaged in any 

authorized Job Corps activity; 

(3) They are in authorized travel 

status; or 

(4) They are engaged in any 

authorized offsite activity. 

(c) Non-resident students are 

generally considered to be ‘‘in 

performance of duty’’ as Federal 

employees when they are engaged in 

any authorized Job Corps activity, from 

the time they arrive at any scheduled 

center activity until they leave the 

activity. The standard rules governing 

coverage of Federal employees during 

travel to and from work apply. These 

rules are described in guidance issued 

by the Secretary. 

(d) Students are generally considered 

to be not in the performance of duty 

when: 

(1) They are Absent Without Leave 

(AWOL); 

(2) They are at home, whether on pass 

or on leave; 

(3) They are engaged in an 

unauthorized offsite activity; or 

(4) They are injured or ill due to their 

own willful misconduct, intent to cause 

injury or death to oneself or another, or 

through intoxication or illegal use of 

drugs. 

§ 686.920 How are students protected from 

unsafe or unhealthy situations? 

(a) The Secretary establishes 

procedures to ensure that students are 

not required or permitted to work, be 

trained, reside in, or receive services in 

buildings or surroundings or under 

conditions that are unsanitary or 

hazardous. Whenever students are 

employed or in training for jobs, they 

must be assigned only to jobs or training 

which observe applicable Federal, State 

and local health and safety standards. 

(b) The Secretary develops procedures 

to ensure compliance with applicable 

Department of Labor Occupational 

Safety and Health Administration 

regulations and Wage and Hour Division 

regulations. 

§ 686.925 What are the requirements for 

criminal law enforcement jurisdiction on 

center property? 

(a) All Job Corps property which 

would otherwise be under exclusive 

Federal legislative jurisdiction is 

considered under concurrent 

jurisdiction with the appropriate State 

and locality with respect to criminal law 

enforcement. Concurrent jurisdiction 

extends to all portions of the property, 

including housing and recreational 

facilities, in addition to the portions of 

the property used for education and 

training activities. 

(b) Centers located on property under 

concurrent Federal-State jurisdiction 

must establish agreements with Federal, 

State and local law enforcement 

agencies to enforce criminal laws. 

(c) The Secretary develops procedures 

to ensure that any searches of a 

student’s person, personal area, or 

belongings for unauthorized goods 

follow applicable right-to-privacy laws. 

§ 686.930 Are Job Corps operators and 

service providers authorized to pay State or 

local taxes on gross receipts? 

(a) A private for-profit or a non-profit 

Job Corps service provider is not liable, 

directly or indirectly, to any State or 

subdivision for any gross receipts taxes, 

business privilege taxes measured by 

gross receipts, or any similar taxes in 

connection with any payments made to 

or by such service provider for operating 

a center or other Job Corps program or 

activity. The service provider is not 

liable to any State or subdivision to 

collect or pay any sales, excise, use, or 

similar tax imposed upon the sale to or 

use by such deliverer of any property, 

service, or other item in connection 

with the operation of a center or other 

Job Corps program or activity. 

(b) If a State or local authority 

compels a center operator or other 

service provider to pay such taxes, the 

center operator or service provider may 

pay the taxes with Federal funds, but 

must document and report the State or 

local requirement according to 

procedures issued by the Secretary. 

§ 686.935 What are the financial 

management responsibilities of Job Corps 

center operators and other service 

providers? 

(a) Center operators and other service 

providers must manage Job Corps funds 

using financial management information 

systems that meet the specifications and 

requirements of the Secretary. 

(b) These financial management 

systems must: 

(1) Provide accurate, complete, and 

current disclosures of the costs of their 

Job Corps activities; 

(2) Ensure that expenditures of funds 

are necessary, reasonable, allocable, and 

allowable in accordance with applicable 

cost principles; 

(3) Use account structures specified 

by the Secretary; 

(4) Ensure the ability to comply with 

cost reporting requirements and 

procedures issued by the Secretary; and 

(5) Maintain sufficient cost data for 

effective planning, monitoring, and 

evaluation of program activities and for 

determining the allowability of reported 

costs. 

§ 686.940 Are center operators and service 

providers subject to Federal audits? 

(a) Yes, Center operators and service 

providers are subject to Federal audits. 

(b) The Secretary arranges for the 

survey, audit, or evaluation of each Job 

Corps center and service provider at 

least once every 3 years, by Federal 

auditors or independent public 

accountants. The Secretary may arrange 

for more frequent audits. 

(c) Center operators and other service 

providers are responsible for giving full 

cooperation and access to books, 

documents, papers and records to duly 

appointed Federal auditors and 

evaluators. 

§ 686.945 What are the procedures for 

management of student records? 

The Secretary issues guidelines for a 

system for maintaining records for each 

student during enrollment and for 

disposition of such records after 

separation. 

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§ 686.950 What procedures apply to 

disclosure of information about Job Corps 

students and program activities? 

(a) The Secretary develops procedures 

to respond to requests for information or 

records or other necessary disclosures 

pertaining to students. 

(b) Department disclosure of Job 

Corps information must be handled 

according to the Freedom of Information 

Act and according to Department 

regulations at 29 CFR part 70. 

(c) Job Corps contractors are not 

‘‘agencies’’ for Freedom of Information 

Act purposes. Therefore, their records 

are not subject to disclosure under the 

Freedom of Information Act or 29 CFR 

part 70. 

(d) The regulations at 29 CFR part 71 

apply to a system of records covered by 

the Privacy Act of 1974 maintained by 

the Department or to a similar system 

maintained by a contractor, such as a 

screening agency, contract center 

operator, or career transition service 

provider on behalf of the Job Corps. 

§ 686.955 What are the reporting 

requirements for center operators and 

operational support service providers? 

The Secretary establishes procedures 

to ensure the timely and complete 

reporting of necessary financial and 

program information to maintain 

accountability. Center operators and 

operational support service providers 

are responsible for the accuracy and 

integrity of all reports and data they 

provide. 

§ 686.960 What procedures are available to 

resolve complaints and disputes? 

(a) Each Job Corps center operator and 

service provider must establish and 

maintain a grievance procedure for 

filing complaints and resolving disputes 

from applicants, students and/or other 

interested parties about its programs 

and activities. A hearing on each 

complaint or dispute must be conducted 

within 30 days of the filing of the 

complaint or dispute. A decision on the 

complaint must be made by the center 

operator or service provider, as 

appropriate, within 60 days after the 

filing of the complaint, and a copy of 

the decision must be immediately 

served, by first-class mail, on the 

complainant and any other party to the 

complaint. Except for complaints under 

§ 686.470 or complaints alleging fraud 

or other criminal activity, complaints 

may be filed within 1 year of the 

occurrence that led to the complaint. 

(b) The procedure established under 

paragraph (a) of this section must 

include procedures to process 

complaints alleging violations of sec. 

188 of WIOA, consistent with 

Department nondiscrimination 

regulations implementing sec. 188 of 

WIOA at 29 CFR part 38 and § 686.985. 

§ 686.965 How does Job Corps ensure that 

complaints or disputes are resolved in a 

timely fashion? 

(a) If a complaint is not resolved by 

the center operator or service provider 

in the time frames described in 

§ 686.960, the person making the 

complaint may request that the Regional 

Director determine whether reasonable 

cause exists to believe that WIOA or 

regulations for this part of WIOA have 

been violated. The request must be filed 

with the Regional Director within 60 

days from the date that the center 

operator or service provider should have 

issued the decision. 

(b) Following the receipt of a request 

for review under paragraph (a) of this 

section, the Regional Director must 

determine within 60 days whether there 

has been a violation of WIOA or the 

WIOA regulations. If the Regional 

Director determines that there has been 

a violation of WIOA or WIOA 

regulations, (s)he may direct the 

operator or service provider to remedy 

the violation or direct the service 

provider to issue a decision to resolve 

the dispute according to the service 

provider’s grievance procedures. If the 

service provider does not comply with 

the Regional Director’s decision within 

30 days, the Regional Director may 

impose a sanction on the center operator 

or service provider for violating WIOA 

or WIOA regulations, and/or for failing 

to issue a decision. Decisions imposing 

sanctions upon a center operator or 

service provider may be appealed to the 

Department of Labor Office of 

Administrative Law Judges under 

§ 683.800 or § 683.840 of this chapter. 

§ 686.970 How does Job Corps ensure that 

centers or other service providers comply 

with the Workforce Innovation and 

Opportunity Act and the WIOA regulations? 

(a) If the Department receives a 

complaint or has reason to believe that 

a center or other service provider is 

failing to comply with the requirements 

of WIOA or WIOA regulations, the 

Regional Director must investigate the 

allegation and determine within 90 days 

after receiving the complaint or 

otherwise learning of the alleged 

violation, whether such allegation or 

complaint is true. 

(b) As a result of such a 

determination, the Regional Director 

may: 

(1) Direct the center operator or 

service provider to handle a complaint 

through the grievance procedures 

established under § 686.960; or 

(2) Investigate and determine whether 

the center operator or service provider 

is in compliance with WIOA and WIOA 

regulations. If the Regional Director 

determines that the center or service 

provider is not in compliance with 

WIOA or WIOA regulations, the 

Regional Director may take action to 

resolve the complaint under 

§ 686.965(b), or will report the incident 

to the Department of Labor Office of the 

Inspector General, as described in 

§ 683.620 of this chapter. 

§ 686.975 How does Job Corps ensure that 

contract disputes will be resolved? 

A dispute between the Department 

and a Job Corps contractor will be 

handled according to the Contract 

Disputes Act and applicable regulations. 

§ 686.980 How does Job Corps resolve 

disputes between the U.S. Department of 

Labor and the U.S. Department of 

Agriculture regarding the operation of Job 

Corps centers? 

Disputes between the U.S. 

Department of Labor and the U.S. 

Department of Agriculture regarding 

operating a center will be handled 

according to the interagency agreement 

between the two agencies. 

§ 686.985 What Department of Labor equal 

opportunity and nondiscrimination 

regulations apply to Job Corps? 

Nondiscrimination requirements, 

procedures, complaint processing, and 

compliance reviews are governed by, as 

applicable, provisions of the following 

Department of Labor regulations: 

(a) Regulations implementing sec. 188 

of WIOA for programs receiving Federal 

financial assistance under WIOA found 

at 29 CFR part 38; 

(b) Title 29 CFR part 33 for programs 

conducted by the Department of Labor; 

and 

(c) Title 41 CFR chapter 60 for entities 

that have a Federal government 

contract. 

Subpart J—Performance 

§ 686.1000 How is the performance of the 

Job Corps program assessed? 

(a) The performance of the Job Corps 

program as a whole, and the 

performance of individual centers, 

outreach and admissions providers, and 

career transition service providers, is 

assessed in accordance with the 

regulations in this part and procedures 

and standards issued by the Secretary, 

through a national performance 

management system, including the 

Outcome Measurement System (OMS). 

(b) The national performance 

management system will include 

measures that reflect the primary 

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indicators of performance described in 

§ 686.1010, the information needed to 

complete the Annual Report described 

in § 686.1040, and any other 

information the Secretary determines is 

necessary to manage and evaluate the 

effectiveness of the Job Corps program. 

The Secretary will issue annual 

guidance describing the performance 

management system and outcome 

measurement system. 

(c) Annual performance assessments 

based on the measures described in 

paragraph (b) of this section are done for 

each center operator and other service 

providers, including outreach and 

admissions providers and career 

transition providers. 

§ 686.1010 What are the primary indicators 

of performance for Job Corps centers and 

the Job Corps program? 

The primary indicators of 

performance for eligible youth are 

described in sec. 116(b)(2)(A)(ii) of 

WIOA. They are: 

(a) The percentage of program 

participants who are in education or 

training activities, or in unsubsidized 

employment, during the second quarter 

after exit from the program; 

(b) The percentage of program 

participants who are in education or 

training activities, or in unsubsidized 

employment, during the fourth quarter 

after exit from the program; 

(c) The median earnings of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(d) The percentage of program 

participants who obtain a recognized 

postsecondary credential, or a 

secondary school diploma or its 

recognized equivalent during 

participation in or within 1 year after 

exit from the program. Program 

participants who obtain a secondary 

school diploma or its recognized 

equivalent will be included in the 

percentage only if they also have 

obtained or retained employment, or are 

in an education or training program 

leading to a recognized postsecondary 

credential, within 1 year after exit from 

the program; 

(e) The percentage of program 

participants who, during a program 

year, are in an education or training 

program that leads to a recognized 

postsecondary credential or 

employment and who are achieving 

measurable skill gains toward such a 

credential or employment; and 

(f) The indicators of effectiveness in 

serving employers established by the 

Secretaries of Education and Labor, 

pursuant to sec. 116(b)(2)(A)(iv) of 

WIOA. 

§ 686.1020 What are the indicators of 

performance for Job Corps outreach and 

admissions providers? 

The Secretary establishes performance 

indicators for outreach and admission 

service providers serving the Job Corps 

program. They include, but are not 

limited to: 

(a) The number of enrollees recruited, 

compared to the established goals for 

such recruitment, and the number of 

enrollees who remain committed to the 

program for 90 days after enrollment; 

(b) The percentage and number of 

former enrollees, including the number 

dismissed under the zero tolerance 

policy described in sec. 152(b) of WIOA 

and § 686.545; 

(c) The maximum attainable percent 

of enrollees at the Job Corps center that 

reside in the State in which the center 

is located, and the maximum attainable 

percentage of enrollees at the Job Corps 

center that reside in the State in which 

the center is located and in surrounding 

regions, as compared to the percentage 

targets established by the Secretary for 

the center for each of those measures; 

(d) The cost per enrollee, calculated 

by comparing the number of enrollees at 

the center in a program year to the total 

budget for such center in the same 

program year; and 

(e) Additional indicators of 

performance, as necessary. 

§ 686.1030 What are the indicators of 

performance for Job Corps career transition 

service providers? 

The Secretary establishes performance 

indicators for career transition service 

providers serving the Job Corps 

program. These include, but are not 

limited to, the following: 

(a) The primary indicators of 

performance for eligible youth in WIOA 

sec. 116(b)(2)(A)(ii), as listed in 

§ 686.1010; 

(b) The number of graduates who 

entered the Armed Forces; 

(c) The number of graduates who 

entered registered apprenticeship 

programs; 

(d) The number of graduates who 

entered unsubsidized employment 

related to the career technical training 

received through the Job Corps program; 

(e) The number of graduates who 

entered unsubsidized employment not 

related to the education and training 

received through the Job Corps program; 

(f) The percentage and number of 

graduates who enter postsecondary 

education; 

(g) The average wage of graduates who 

entered unsubsidized employment: 

(1) On the first day of such 

employment; and 

(2) On the day that is 6 months after 

such first day; and 

(h) Additional indicators of 

performance, as necessary. 

§ 686.1040 What information will be 

collected for use in the Annual Report? 

The Secretary will collect and submit 

in the Annual Report described in sec. 

159(c)(4) of WIOA, which will include 

the following information on each Job 

Corps center, and the Job Corps program 

as a whole: 

(a) Information on the performance, 

based on the performance indicators 

described § 686.1010, as compared to 

the expected level of performance 

established under § 686.1050 for each 

performance indicator; 

(b) Information on the performance of 

outreach service providers and career 

transition service providers on the 

performance indicators established 

under §§ 686.1020 and 686.1030, as 

compared to the expected levels of 

performance established under 

§ 686.1050 for each of those indicators; 

(c) The number of enrollees served; 

(d) Demographic information on the 

enrollees served, including age, race, 

gender, and education and income level; 

(e) The number of graduates of a Job 

Corps center; 

(f) The number of graduates who 

entered the Armed Forces; 

(g) The number of graduates who 

entered registered apprenticeship 

programs; 

(h) The number of graduates who 

received a regular secondary school 

diploma; 

(i) The number of graduates who 

received a State recognized equivalent 

of a secondary school diploma; 

(j) The number of graduates who 

entered unsubsidized employment 

related to the career technical training 

received through the Job Corps program 

and the number who entered 

unsubsidized employment not related to 

the education and training received; 

(k) The percentage and number of 

former enrollees, including the number 

dismissed under the zero tolerance 

policy described in § 686.545; 

(l) The percentage and number of 

graduates who enter postsecondary 

education; 

(m) The average wage of graduates 

who enter unsubsidized employment: 

(1) On the first day of such 

employment; and 

(2) On the day that is 6 months after 

such first day; 

(n) The maximum attainable percent 

of enrollees at a Job Corps center that 

reside in the State in which the center 

is located, and the maximum attainable 

percentage of enrollees at a Job Corps 

center that reside in the State in which 

the center is located and in surrounding 

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regions, as compared to the percentage 

targets established by the Secretary for 

the center for each of those measures; 

(o) The cost per enrollee, which is 

calculated by comparing the number of 

enrollees at the center in a program year 

to the total budget for such center in the 

same program year; 

(p) The cost per graduate, which is 

calculated by comparing the number of 

graduates of the center in a program 

year compared to the total budget for 

such center in the same program year; 

(q) Information regarding the state of 

Job Corps buildings and facilities, 

including a review of requested 

construction, rehabilitation, and 

acquisition projects, by each Job Corps 

center, and a review of new facilities 

under construction; 

(r) Available information regarding 

the national and community service 

activities of enrollees, particularly those 

enrollees at Civilian Conservation 

Centers; and 

(s) Any additional information 

required by the Secretary. 

§ 686.1050 How are the expected levels of 

performance for Job Corps centers, 

outreach and admissions providers and 

career transition service providers 

established? 

(a) The Secretary establishes expected 

levels of performance for Job Corps 

centers, outreach and admissions 

providers and career transition service 

providers and the Job Corps program 

relating to each of the primary 

indicators of performance described in 

§§ 686.1010, 686.1020, and 686.1030. 

(b) As described in § 686.1000, the 

Secretary will issue annual guidance 

describing the national performance 

management system and outcomes 

measurement system, which will 

communicate the expected levels of 

performance for each primary indicator 

of performance for each center, and each 

indicator of performance for each 

outreach and admission provider, and 

for each career transition service 

provider. Such guidance also will 

describe how the expected levels of 

performance were calculated. 

§ 686.1060 How are center rankings 

established? 

(a) The Secretary calculates annual 

rankings of center performance based on 

the performance management system 

described in § 686.1000 as part of the 

annual performance assessment 

described in § 686.1000(c). 

(b) The Secretary will issue annual 

guidance that communicates the 

methodology for calculating the 

performance rankings for the year. 

§ 686.1070 How and when will the 

Secretary use performance improvement 

plans? 

(a) The Secretary establishes 

standards and procedures for 

developing and implementing 

performance improvement plans. 

(1) The Secretary will develop and 

implement a performance improvement 

plan for a center when that center fails 

to meet the expected levels of 

performance described in § 686.1050. 

(i) The Secretary will consider a 

center to have failed to meet the 

expected level of performance if the 

center: 

(A) Is ranked among the lowest 10 

percent of Job Corps centers for the most 

recent preceding program year 

according to the rankings calculated 

under § 686.1060; and 

(B) The center fails to achieve an 

average of 90 percent of the expected 

level of performance for all of the 

primary indicators. 

(ii) For any program year that 

precedes the implementation of the 

establishment of the expected levels of 

performance under § 686.1050 and the 

application of the primary indicators of 

performance for Job Corps centers 

identified in § 686.1010, the Secretary 

will consider a center to have failed to 

meet the expected levels of performance 

if the center: 

(A) Is ranked among the lowest 10 

percent of Job Corps centers for the most 

recent preceding program year 

according to the rankings calculated 

under § 686.1060; and 

(B) The center’s composite OMS score 

for the program year is 88 percent or 

less of the year’s OMS national average. 

(2) The Secretary also may develop 

and implement additional performance 

improvement plans, which will require 

improvements for a Job Corps center 

that fails to meet criteria established by 

the Secretary other than the expected 

levels of performance. 

(b) A performance improvement plan 

will require action be taken to correct 

identified performance issues within 1 

year of the implementation of the plan, 

and it will identify criteria that must be 

met for the center to complete the 

performance improvement plan. 

(1) The center operator must 

implement the actions outlined in the 

performance improvement plan. 

(2) If the center fails to take the steps 

outlined in the performance 

improvement plan or fails to meet the 

criteria established to complete the 

performance improvement plan after 1 

year, the center will be considered to 

have failed to improve performance 

under a performance improvement plan 

detailed in paragraph (a) of this section. 

(i) Such a center will remain on a 

performance improvement plan and the 

Secretary will take action as described 

in paragraph (c) of this section. 

(ii) If a Civilian Conservation Center 

fails to meet expected levels of 

performance relating to the primary 

indicators of performance specified in 

§ 686.1010, or fails to improve 

performance under a performance 

improvement plan detailed in paragraph 

(a) of this section after 3 program years, 

the Secretary, in consultation with the 

Secretary of Agriculture, must select an 

entity to operate the Civilian 

Conservation Center on a competitive 

basis, in accordance with the 

requirements of § 686.310. 

(c) Under a performance improvement 

plan, the Secretary may take the 

following actions, as necessary: 

(1) Providing technical assistance to 

the center; 

(2) Changing the management staff of 

a center; 

(3) Changing the career technical 

training offered at the center; 

(4) Replacing the operator of the 

center; 

(5) Reducing the capacity of the 

center; 

(6) Relocating the center; or 

(7) Closing the center in accordance 

with the criteria established under 

§ 686.200(b). 

■ 20. Add part 687 to read as follows: 

PART 687—NATIONAL DISLOCATED 

WORKER GRANTS 

Sec. 

687.100 What are the types and purposes of 

National Dislocated Worker Grants under 

the Workforce Innovation and 

Opportunity Act? 

687.110 What are major economic 

dislocations or other events which may 

qualify for a National Dislocated Worker 

Grant? 

687.120 Who is eligible to apply for 

National Dislocated Worker Grants? 

687.130 When must applications for 

National Dislocated Worker Grants be 

submitted to the Department? 

687.140 What activities are applicants 

expected to conduct before a National 

Dislocated Worker Grant application is 

submitted? 

687.150 What are the requirements for 

submitting applications for National 

Dislocated Worker Grants? 

687.160 What is the timeframe for the 

Department to issue decisions on 

National Dislocated Worker Grant 

applications? 

687.170 Who is eligible to be served under 

National Dislocated Worker Grants? 

687.180 What are the allowable activities 

under National Dislocated Worker 

Grants? 

687.190 How do statutory and regulatory 

waivers apply to National Dislocated 

Worker Grants? 

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56458 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

687.200 What are the program and 

administrative requirements that apply 

to National Dislocated Worker Grants? 

Authority: Secs. 170, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 

§ 687.100 What are the types and 

purposes of National Dislocated Worker 

Grants under the Workforce Innovation and 

Opportunity Act? 

There are two types and purposes of 

National Dislocated Worker Grants 

(DWGs) under sec. 170 of WIOA: 

Employment Recovery DWGs and 

Disaster Recovery DWGs. 

(a) Employment Recovery DWGs 

provide employment and training 

activities for dislocated workers and 

other eligible populations. They are 

intended to expand service capacity 

temporarily at the State and local levels, 

by providing time-limited funding 

assistance in response to major 

economic dislocations or other events 

that affect the U.S. workforce that 

cannot be accommodated with WIOA 

formula funds or other relevant existing 

resources. 

(b) Disaster Recovery DWGs allow for 

the creation of disaster relief 

employment to assist with clean-up and 

recovery efforts from emergencies or 

major disasters and the provision of 

employment and training activities, in 

accordance with § 687.180(b). 

§ 687.110 What are major economic 

dislocations or other events which may 

qualify for a National Dislocated Worker 

Grant? 

(a) Qualifying events for Employment 

Recovery DWGs include: 

(1) Plant closures or mass layoffs 

affecting 50 or more workers from one 

employer in the same area; 

(2) Closures and realignments of 

military installations; 

(3) Plant closures or layoffs that have 

significantly increased the total number 

of unemployed individuals in a 

community; 

(4) Situations where higher-thanaverage demand for employment and 

training activities for dislocated 

members of the Armed Forces, 

dislocated spouses of members of the 

Armed Forces on active duty (as defined 

in 10 U.S.C. 101(d)(1)), or members of 

the Armed Forces described in 

§ 687.170(a)(1)(iii), exceeds State and 

local resources for providing such 

activities; and 

(5) Other events, as determined by the 

Secretary. 

(b) Qualifying events for Disaster 

Recovery DWGs include: 

(1) Emergencies or major disasters, as 

defined in paragraphs (1) and (2), 

respectively, of sec. 102 of the Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act (42 U.S.C. 5122(1) and 

(2)) which have been declared eligible 

for public assistance by the Federal 

Emergency Management Agency 

(FEMA); 

(2) An emergency or disaster situation 

of national significance, natural or manmade, that could result in a potentially 

large loss of employment, as declared or 

otherwise recognized and issued in 

writing by the chief official of a Federal 

Agency with jurisdiction over the 

Federal response to the emergency or 

disaster situation; and 

(3) Situations where a substantial 

number of workers from a State, tribal 

area, or outlying area in which an 

emergency or disaster has occurred 

relocate to another State, tribal area, or 

outlying area. 

§ 687.120 Who is eligible to apply for 

National Dislocated Worker Grants? 

(a) For Employment Recovery DWGs, 

the following entities are eligible to 

apply: 

(1) States or outlying areas, or a 

consortium of States; 

(2) Local Workforce Development 

Boards (WDBs), or a consortium of 

WDBs; 

(3) An entity described in sec. 166(c) 

of WIOA (relating to Indian and Native 

American programs); 

(4) Other entities determined to be 

appropriate by the Governor of the State 

or outlying area involved; and 

(5) Other entities that demonstrate to 

the Secretary the capability to respond 

effectively to circumstances relating to 

particular dislocations. 

(b) For Disaster Recovery DWGs, the 

following entities are eligible to apply: 

(1) States; 

(2) Outlying areas; and 

(3) Indian tribal governments as 

defined by the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act (42 U.S.C. 5122(6)). 

§ 687.130 When must applications for 

National Dislocated Worker Grants be 

submitted to the Department? 

(a) Applications for Employment 

Recovery DWGs may be submitted at 

any time during the year and must be 

submitted to respond to eligible events 

as soon as possible when: 

(1) The applicant receives a 

notification of a mass layoff or a closure 

as a result of a Worker Adjustment and 

Retraining Notification (WARN) Act 

notice, a general announcement, or 

some other means, or in the case of 

applications to address situations 

described in § 687.110(a)(4), when 

higher-than-average demand for 

employment and training activities for 

those members of the Armed Forces and 

military spouses exceeds State and local 

resources for providing such activities; 

(2) Worker need and interest in 

services has been determined through 

Rapid Response, or other means, and is 

sufficient to justify the need for a DWG; 

and 

(3) A determination has been made, in 

collaboration with the applicable local 

area, that State and local formula funds 

are inadequate to provide the level of 

services needed by the affected workers. 

(b) Applications for Disaster Recovery 

DWGs to respond to an emergency or 

major disaster must be submitted as 

soon as possible when: 

(1) As described in § 687.110(b)(1), 

FEMA has declared that the affected 

area is eligible for public assistance; 

(2) A situation as described in 

§ 687.110(b)(2) occurs. The applications 

must indicate the applicable Federal 

agency declaration, describe the impact 

on the local and/or State economy, and 

describe the proposed activities; or 

(3) A situation as described in 

§ 687.110(b)(3) occurs, and interest in 

services has been determined and is 

sufficient to justify the need for a DWG. 

§ 687.140 What activities are applicants 

expected to conduct before a National 

Dislocated Worker Grant Application is 

submitted? 

Prior to submitting an application for 

DWG funds, applicants must: 

(a) For Employment Recovery DWGs: 

(1) Collect information to identify the 

needs and interests of the affected 

workers through rapid response 

activities (described in § 682.330 of this 

chapter), or other means; 

(2) Provide appropriate services to 

eligible workers including other rapid 

response activities, based on 

information gathered as described in 

paragraph (a)(1) of this section; and 

(3) Coordinate with the Local WDB 

and chief elected official(s) of the local 

area(s) in which the proposed DWG 

project is to operate. 

(b) For Disaster DWGs: 

(1) Conduct a preliminary assessment 

of the clean-up and humanitarian needs 

of the affected areas; 

(2) Reasonably ascertain that there is 

a sufficient population of eligible 

individuals to conduct the planned 

work; and 

(3) Coordinate with the Local WDB 

and chief elected official(s) of the local 

area(s) in which the proposed project is 

to operate. 

§ 687.150 What are the requirements for 

submitting applications for National 

Dislocated Worker Grants? 

The Department will publish 

guidance on the requirements for 

submitting applications for DWGs. 

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Requirements may vary depending on 

the DWG. A project implementation 

plan must be submitted after receiving 

the DWG award, unless otherwise 

specified. 

§ 687.160 What is the timeframe for the 

Department to issue decisions on National 

Dislocated Worker Grant applications? 

The Department will issue a final 

decision on a DWG application within 

45 calendar days of receipt of an 

application that meets the requirements 

of this part. Applicants are encouraged 

to review their DWG application 

submissions carefully and consult with 

the appropriate Employment and 

Training Administration Regional Office 

to ensure their applications meet the 

requirements established in this part 

and those that may be set forth in 

guidance. 

§ 687.170 Who is eligible to be served 

under National Dislocated Worker Grants? 

(a) For Employment Recovery DWGs: 

(1) In order to receive employment 

and training activities, an individual 

must be: 

(i) A dislocated worker within the 

meaning of sec. 3(15) of WIOA; 

(ii) A person who is either: 

(A) A civilian employee of the 

Department of Defense or the 

Department of Energy employed at a 

military installation that is being closed 

or will undergo realignment within 24 

months after the date of determination 

of eligibility; or 

(B) An individual employed in a nonmanagerial position with a Department 

of Defense contractor determined by the 

Secretary of Defense to be at risk of 

termination from employment as a 

result of reductions in defense 

expenditures and whose employer is 

converting from defense to non-defense 

applications in order to prevent worker 

layoffs; or 

(iii) A member of the Armed Forces 

who: 

(A) Was on active duty or full-time 

National Guard duty; 

(B) Is involuntarily separated from 

active duty or full-time National Guard 

duty (as defined in 10 U.S.C. 1141), or 

is separated from active duty or fulltime National Guard duty pursuant to a 

special separation benefits program 

under 10 U.S.C. 1174a, or the voluntary 

separation incentive program under 10 

U.S.C. 1175; 

(C) Is not entitled to retired or 

retained pay incident to the separation 

described in paragraph (a)(1)(iii)(B) of 

this section; and 

(D) Applies for employment and 

training assistance under this part 

before the end of the 180-day period 

beginning on the date of the separation 

described in paragraph (a)(1)(iii)(B) of 

this section. 

(iv) For Employment Recovery DWGs 

awarded for situations described in 

§ 687.110(a)(4), a person who is: 

(A) A dislocated member of the 

Armed Forces or member of the Armed 

Forces described in paragraph (a)(1)(iii) 

of this section; or 

(B) The dislocated spouse of a 

member of the Armed Forces on active 

duty (as defined in 10 U.S.C. 101(d)(1)). 

(2) [Reserved] 

(b) For Disaster Recovery DWGs: 

(1) In order to be eligible to receive 

disaster relief employment under sec. 

170(b)(1)(B)(i) of WIOA, an individual 

must be: 

(i) A dislocated worker; 

(ii) A long-term unemployed 

individual; 

(iii) An individual who is temporarily 

or permanently laid off as a 

consequence of the emergency or 

disaster; or 

(iv) An individual who is selfemployed and becomes unemployed or 

significantly underemployed as a result 

of the emergency or disaster. 

(2) In order to be eligible to receive 

employment and training activities and 

in rare instances, disaster relief 

employment under sec. 170(b)(1)(B)(ii) 

of WIOA, an individual must have 

relocated or evacuated from an area as 

a result of a disaster that has been 

declared or otherwise recognized, and 

be: 

(i) A dislocated worker; 

(ii) A long-term unemployed 

individual; 

(iii) An individual who is temporarily 

or permanently laid off as a 

consequence of the emergency or 

disaster; or 

(iv) An individual who is selfemployed and becomes unemployed or 

significantly underemployed as a result 

of the emergency or disaster. 

(c) For Disaster Recovery DWG funds, 

individuals described in paragraph 

(b)(2) of this section are eligible to 

receive services provided with DWG 

funds in the State, tribal area, or 

outlying area in which the disaster 

occurred or the State, tribal area, or 

outlying area to which they have 

relocated. In certain cases determined 

by the Secretary, individuals described 

in paragraph (b)(2) of this section are 

eligible to receive services in both the 

State, tribal area, or outlying area in 

which the disaster occurred and the 

State, tribal area, or outlying area to 

which they have relocated. 

§ 687.180 What are the allowable activities 

under National Dislocated Worker Grants? 

(a) For Employment Recovery DWGs: 

(1) Employment and training 

assistance, including those activities 

authorized at secs. 134(c) through (d) 

and 170(b)(1) of WIOA. The services to 

be provided in a particular project are 

negotiated between the Department and 

the grantee, taking into account the 

needs of the target population covered 

by the grant, and may be changed 

through grant modifications, if 

necessary. 

(2) DWGs may provide for supportive 

services, including needs-related 

payments (subject to the restrictions in 

sec. 134(d)(3) of WIOA, where 

applicable, and the terms and 

conditions of the grant) to help workers 

who require such assistance to 

participate in the activities provided for 

in the grant. Generally, the terms of a 

grant must be consistent with local 

policies governing such financial 

assistance under its formula funds 

(including the payment levels and 

duration of payments). The terms of the 

grant agreement may diverge from 

established local policies, in the 

following instances: 

(i) If unemployed dislocated workers 

served by the project are not able to 

meet the 13 or 8 weeks enrollment in 

training requirement established by sec. 

134(d)(3)(B) of WIOA because of the 

lack of formula or DWG funds in the 

State or local area at the time of the 

dislocation, such individuals may be 

eligible for needs-related payments if 

they are enrolled in training by the end 

of the 6th week following the date of the 

DWG award; or 

(ii) Under other circumstances as 

specified in guidance governing DWG 

application requirements. 

(b) For Disaster DWGs: Funds 

provided under sec. 170(b)(1)(B) of 

WIOA can support a different array of 

activities, depending on the 

circumstances surrounding the situation 

for which the grant was awarded: 

(1) For DWGs serving individuals in 

an emergency or disaster area declared 

eligible for public assistance by FEMA, 

disaster relief employment is authorized 

to support projects that provide food, 

clothing, shelter, and other 

humanitarian assistance for emergency 

and disaster victims, and projects 

regarding demolition, cleaning, repair, 

renovation, and reconstruction of 

damaged and destroyed structures, 

facilities, and lands located within the 

disaster area and in offshore areas 

related to the emergency or disaster in 

coordination with the Administrator of 

FEMA. Employment and training 

activities also may be provided, as 

appropriate. An individual’s disaster 

relief employment is limited to 12 

months or less for work related to 

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recovery from a single emergency or 

disaster. The Secretary may extend an 

individual’s disaster relief employment 

for up to an additional 12 months, if it 

is requested and sufficiently justified by 

an entity described in § 687.120(b). 

(2) For DWGs serving individuals who 

have relocated from an emergency or 

disaster area, only employment and 

training activities will be authorized, 

except where disaster relief employment 

is appropriate. 

(3) For DWGs awarded to States for 

events that have designations from 

Federal agencies (other than FEMA) that 

recognize an emergency or disaster 

situation as one of national significance 

that could result in a potentially large 

loss of employment, disaster relief 

employment and/or employment and 

training activities may be authorized, 

depending on the circumstances 

associated with the specific event. 

(c) Disaster Recovery DWG funds may 

be expended through public and private 

agencies and organizations engaged in 

the activities described in this 

paragraph (b) of this section. 

§ 687.190 How do statutory and regulatory 

waivers apply to National Dislocated 

Worker Grants? 

(a) For DWGs, utilization of statutory 

or regulatory waivers is limited to 

waivers already approved by the 

Department under sec. 189(i) of WIOA, 

separate from the DWG process. WIOA 

sec. 189(i) gives the Department the 

authority to waive provisions under 

subtitles A, B, and/or E of WIOA; 

requirements of DWGs in WIOA subtitle 

D cannot and will not be waived. 

(b) A grant application must include 

a description of the approved waiver 

and request that the waiver be applied 

to the DWG. The Department will 

consider such requests as part of the 

overall DWG application review and 

decision process; however, applicants 

may not use this process to request new 

waivers. 

(c) If during the operation of a DWG, 

the grantee wishes to utilize a statutory 

or regulatory waiver that the 

Department has already approved under 

sec. 189(i), but it was not included in 

the grantee’s original DWG application, 

the grantee must submit a grant 

modification that describes the waiver 

and requests application of the waiver 

to the DWG. Grantees may not use this 

process to request new waivers. 

§ 687.200 What are the program and 

administrative requirements that apply to 

National Dislocated Worker Grants? 

(a) Unless otherwise authorized in a 

DWG agreement, the financial and 

administrative rules contained in part 

683 of this chapter apply to awards 

under this part. 

(b) Exceptions include: 

(1) Funds provided in response to a 

disaster may be used for temporary job 

creation in areas declared eligible for 

public assistance by FEMA, and, in 

some instances, areas impacted by an 

emergency or disaster situation of 

national significance, as provided in 

§ 687.110(b)(2), and subject to the 

limitations of sec. 170(d) of WIOA, this 

part, and any guidance issued by the 

Department; 

(2) Per sec. 170(d)(4) of WIOA, in 

extremely limited instances, as 

determined by the Secretary or the 

Secretary’s designee, any Disaster 

Recovery DWG funds that are available 

for expenditure under any grant 

awarded under this part may be used for 

additional disasters or situations of 

national significance experienced by an 

entity described in § 687.120(b) in the 

same program year the funds were 

awarded; 

(3) DWG funds may be used to pay an 

appropriate level of administrative costs 

based on the design and complexity of 

the project. The Department will 

negotiate administrative costs with the 

applicant as part of the application 

review and grant award and 

modification processes. Administrative 

cost limits will be calculated against the 

amount of the grant awarded; 

(4) The period of availability for 

expenditure of funds under a DWG is 

specified in the grant agreement; 

(5) The Department may establish 

supplemental reporting, monitoring, 

and oversight requirements for DWGs. 

The requirements will be identified in 

the grant application instructions or the 

grant document; and 

(6) The Department may negotiate and 

fund projects under terms other than 

those specified in this part where it can 

be clearly demonstrated that such 

adjustments will achieve a greater 

positive benefit for the workers and/or 

communities being assisted. 

■ 21. Add part 688 to read as follows: 

PART 688—PROVISIONS GOVERNING 

THE YOUTHBUILD PROGRAM 

Subpart A—Purpose and Definitions 

Sec. 

688.100 What is YouthBuild? 

688.110 What are the purposes of the 

YouthBuild program? 

688.120 What definitions apply to this part? 

Subpart B—Funding and Grant Applications 

Sec. 

688.200 How are YouthBuild grants funded 

and administered? 

688.210 How does an eligible entity apply 

for grant funds to operate a YouthBuild 

program? 

688.220 How are eligible entities selected to 

receive grant funds? 

688.230 What are the minimum 

requirements to apply for YouthBuild 

funds? 

688.240 How are eligible entities notified of 

approval for grant funds? 

Subpart C—Program Requirements 

Sec. 

688.300 Who is an eligible participant? 

688.310 Are there special rules that apply 

to veterans? 

688.320 What eligible activities may be 

funded under the YouthBuild program? 

688.330 What level of training qualifies a 

construction project as a qualifying work 

site under the YouthBuild program? 

688.340 What timeframes apply to 

participation? 

688.350 What timeframes must be devoted 

to education and workforce investment 

or other activities? 

688.360 What timeframes apply to followup services? 

688.370 What are the requirements for exit 

from the YouthBuild program? 

688.380 What is the role of the YouthBuild 

grantee in the one-stop delivery system? 

Subpart D—Performance Indicators 

Sec. 

688.400 What are the performance 

indicators for YouthBuild grants? 

688.410 What are the required levels of 

performance for the performance 

indicators? 

688.420 What are the reporting 

requirements for YouthBuild grantees? 

688.430 What are the due dates for 

quarterly reporting? 

Subpart E—Administrative Rules, Costs, 

and Limitations 

Sec. 

688.500 What administrative regulations 

apply to the YouthBuild program? 

688.510 How may grantees provide services 

under the YouthBuild program? 

688.520 What cost limits apply to the use 

of YouthBuild program funds? 

688.530 What are the cost-sharing or 

matching requirements of the 

YouthBuild program? 

688.540 What are considered to be 

leveraged funds? 

688.550 How are the costs associated with 

real property treated in the YouthBuild 

program? 

688.560 What participant costs are 

allowable under the YouthBuild 

program? 

688.570 Does the Department allow 

incentive payments in the YouthBuild 

program? 

688.580 What effect do payments to 

YouthBuild participants have on 

eligibility for other Federal needs-based 

benefits? 

688.590 What program income 

requirements apply under the 

YouthBuild program? 

688.600 Are YouthBuild programs subject 

to the Davis-Bacon Act labor standards? 

688.610 What are the recordkeeping 

requirements for YouthBuild programs? 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56461 

Subpart F—Additional Requirements 

Sec. 

688.700 What are the safety requirements 

for the YouthBuild program? 

688.710 What are the reporting 

requirements for youth safety? 

688.720 What environmental protection 

laws apply to the YouthBuild program? 

688.730 What requirements apply to 

YouthBuild housing? 

Authority: Secs. 171, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart A—Purpose and Definitions 

§ 688.100 What is YouthBuild? 

(a) YouthBuild is a workforce 

development program that provides 

employment, education, leadership 

development, and training opportunities 

to disadvantaged and low-income youth 

between the ages of 16 and 24, most of 

whom are secondary school drop outs 

and are either a member of a lowincome family, a foster care youth, a 

youth who is homeless, an offender, a 

youth with a disability, a child of an 

incarcerated parent, or a migrant youth. 

(b) Program participants receive 

education services that may lead to 

either a high school diploma or its Staterecognized equivalent. Further, they 

receive occupational skills training and 

are encouraged to pursue postsecondary 

education or additional training, 

including registered apprenticeship and 

pre-apprenticeship programs. The 

program is designed to create a skilled 

workforce either in the construction 

industry, through the rehabilitation and 

construction of housing for homeless 

and low-income individuals and 

families, as well as public facilities, or 

in other in-demand industries or 

occupations. The program also benefits 

the larger community because it 

provides increased access to affordable 

housing. 

§ 688.110 What are the purposes of the 

YouthBuild program? 

The overarching goal of the 

YouthBuild program is to provide 

disadvantaged and low-income youth 

the opportunity to obtain education and 

employment skills in local in-demand 

jobs to achieve economic selfsufficiency. Additionally, the 

YouthBuild program has as goals to: 

(a) Enable disadvantaged youth to 

obtain the education and employment 

skills necessary to achieve economic 

self-sufficiency through employment in 

in-demand occupations and pursuit of 

postsecondary education and training 

opportunities; 

(b) Provide disadvantaged youth with 

opportunities for meaningful work and 

service to their communities; 

(c) Foster the development of 

employment and leadership skills and 

commitment to community 

development among youth in lowincome communities; 

(d) Expand the supply of permanent 

affordable housing for homeless 

individuals and families, homeless 

youth, and low-income families by 

utilizing the talents of disadvantaged 

youth. The program seeks to increase 

the number of affordable and 

transitional housing units available to 

decrease the rate of homelessness in 

communities with YouthBuild 

programs; and 

(e) Improve the quality and energy 

efficiency of community and other nonprofit and public facilities, including 

those that are used to serve homeless 

and low-income families. 

§ 688.120 What definitions apply to this 

part? 

In addition to the definitions at sec. 

3 of the Workforce Innovation and 

Opportunity Act (WIOA) and § 675.300 

of this chapter, the following definitions 

apply: 

Adjusted income means, with respect 

to a family, the amount (as determined 

by the Housing Development Agency) of 

the income of the members of the family 

residing in a dwelling unit or the 

persons on a lease, after any income 

exclusions as follows: 

(1) Mandatory exclusions. In 

determining adjusted income, a Housing 

Development Agency must exclude 

from the annual income of a family the 

following amounts: 

(i) Elderly and disabled families. $400 

for any elderly or disabled family. 

(ii) Medical expenses. The amount by 

which three percent of the annual 

family income is exceeded by the sum 

of: 

(A) Unreimbursed medical expenses 

of any elderly family or disabled family; 

(B) Unreimbursed medical expenses 

of any family that is not covered under 

paragraph (1)(ii)(A) of this definition, 

except that this paragraph (1)(ii)(B) only 

applies to the extent approved in 

appropriation Acts; and 

(C) Unreimbursed reasonable 

attendant care and auxiliary apparatus 

expenses for each handicapped member 

of the family, to the extent necessary to 

enable any member of such family 

(including such handicapped member) 

to be employed. 

(iii) Child care expenses. Any 

reasonable child care expenses 

necessary to enable a member of the 

family to be employed or to further his 

or her education. 

(iv) Minors, students, and persons 

with disabilities. $480 for each member 

of the family residing in the household 

(other than the head of the household or 

his or her spouse) who is less than 18 

years of age or is attending school or 

vocational training on a full-time basis, 

or who is 18 years of age or older and 

is a person with disabilities. 

(v) Child support payments. Any 

payment made by a member of the 

family for the support and maintenance 

of any child who does not reside in the 

household, except that the amount 

excluded under this clause may not 

exceed $480 for each child for whom 

such payment is made; except that this 

clause only applies to the extent 

approved in appropriations Acts. 

(vi) Spousal support expenses. Any 

payment made by a member of the 

family for the support and maintenance 

of any spouse or former spouse who 

does not reside in the household, except 

that the amount excluded under this 

clause must not exceed the lesser of the 

amount that such family member has a 

legal obligation to pay, or $550 for each 

individual for whom such payment is 

made; except that this clause only 

applies to the extent approved in 

appropriations Acts. 

(vii) Earned income of minors. The 

amount of any earned income of a 

member of the family who is not: 

(A) 18 years of age or older; and 

(B) The head of the household (or the 

spouse of the head of the household). 

(2) Permissive exclusions for public 

housing. In determining adjusted 

income, a Housing Development Agency 

may, at the discretion of the agency, 

establish exclusions from the annual 

income of a family residing in a public 

housing dwelling unit. Such exclusions 

may include the following amounts: 

(i) Excessive travel expenses. 

Excessive travel expenses in an amount 

not to exceed $25 per family per week, 

for employment or education-related 

travel. 

(ii) Earned income. An amount of any 

earned income of the family, established 

at the discretion of the Housing 

Development Agency, which may be 

based on: 

(A) All earned income of the family, 

(B) The amount earned by particular 

members of the family; 

(C) The amount earned by families 

having certain characteristics; or 

(D) The amount earned by families or 

members during certain periods or from 

certain sources. 

(iii) Others. Such other amounts for 

other purposes, as the Housing 

Development Agency may establish. 

Applicant means an eligible entity 

that has submitted an application under 

§ 688.210. 

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56462 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Basic skills deficient means an 

individual: 

(1) Who is a youth, and who has 

English reading, writing, or computing 

skills at or below the eighth grade level 

on a generally accepted standardized 

test; or 

(2) Who is a youth or adult, and who 

is unable to compute or solve problems, 

or read, write, or speak English, at a 

level necessary to function on the job, 

in the individual’s family, or in society. 

Community or other public facility 

means those facilities which are either 

privately owned by non-profit 

organizations, including faith-based and 

community-based organizations, and 

publicly used for the benefit of the 

community, or publicly owned and 

publicly used for the benefit of the 

community. 

Construction Plus means the 

inclusion of occupational skills training 

for YouthBuild participants in indemand occupations other than 

construction. 

Eligible entity means a public or 

private non-profit agency or 

organization (including a consortium of 

such agencies or organizations), 

including: 

(1) A community-based organization; 

(2) A faith-based organization; 

(3) An entity carrying out activities 

under this title, such as a Local 

Workforce Development Board (WDB); 

(4) A community action agency; 

(5) A State or local Housing 

Development Agency; 

(6) An Indian tribe or other agency 

primarily serving Indians; 

(7) A community development 

corporation; 

(8) A State or local youth service or 

conservation corps; and 

(9) Any other entity eligible to 

provide education or employment 

training under a Federal program (other 

than the program carried out under this 

section). 

English language learner, when used 

with respect to a participant, means an 

eligible individual who has limited 

ability in reading, writing, speaking, or 

comprehending the English language, 

and: 

(1) Whose native language is a 

language other than English; or 

(2) Who lives in a family or 

community environment where a 

language other than English is the 

dominant language. 

Exit, as used in § 688.400, has the 

same meaning as in § 677.150(c) of this 

chapter. 

Follow-up services include: 

(1) The leadership development and 

supportive service activities listed in 

§§ 681.520 and 681.570 of this chapter; 

(2) Regular contact with a youth 

participant’s employer, including 

assistance in addressing work-related 

problems that arise; 

(3) Assistance in securing better 

paying jobs, career development, and 

further education; 

(4) Work-related peer support groups; 

(5) Adult mentoring; and 

(6) Services necessary to ensure the 

success of youth participants in 

employment and/or postsecondary 

education. 

Homeless child or youth means an 

individual who lacks a fixed, regular, 

and adequate nighttime residence and 

includes a child or youth who: 

(1) Is sharing the housing of other 

persons due to loss of housing, 

economic hardship, or a similar reason; 

(2) Is living in a motel, hotel, trailer 

park, or campground due to the lack of 

alternative adequate accommodations; 

(3) Is living in an emergency or 

transitional shelter, is abandoned in a 

hospital, or is awaiting foster care 

placement; 

(4) Has a primary nighttime residence 

that is a public or private place not 

designed for or ordinarily used as a 

regular sleeping accommodation for 

human beings; 

(5) Is living in cars, parks, public 

spaces, abandoned buildings, 

substandard housing, bus or train 

stations, or similar settings; or 

(6) Is a migratory child living in 

circumstances described in this 

definition. 

Homeless individual means an 

individual who lacks a fixed, regular, 

and adequate nighttime residence and 

includes an individual who: 

(1) Is sharing the housing of other 

persons due to loss of housing, 

economic hardship, or similar reason; 

(2) Is living in a motel, hotel, trailer 

park, or campground due to the lack of 

alternative adequate accommodations; 

(3) Is living in an emergency or 

transitional shelter; 

(4) Is abandoned in a hospital, or is 

awaiting foster care placement; 

(5) Has a primary nighttime residence 

that is a public or private place not 

designed for or ordinarily used as 

regular sleeping accommodation for 

human beings; or 

(6) Is a migratory child living in 

circumstances described in this 

definition. 

Housing Development Agency means 

any agency of a Federal, State or local 

government, or any private non-profit 

organization, that is engaged in 

providing housing for homeless 

individuals or low-income families. 

Income, as defined in the United 

States Housing Act of 1937 (42 U.S.C. 

1437a(b)(2)), means income is from all 

sources of each member of the 

household, as determined in accordance 

with the criteria prescribed by the 

Secretary of Labor, in consultation with 

the Secretary of Agriculture, except that 

any amounts not actually received by 

the family and any amounts which 

would be eligible for exclusion under 

sec. 1382b(a)(7) of the United States 

Housing Act of 1937, may not be 

considered as income under this 

definition. 

In-Demand Industry Sector or 

Occupation means: 

(1) An industry sector that has a 

substantial current or potential impact 

(including through jobs that lead to 

economic self-sufficiency and 

opportunities for advancement) on the 

State, regional, or local economy, as 

appropriate, and that contributes to the 

growth or stability of other supporting 

business, or the growth of other industry 

sectors; or 

(2) An occupation that currently has 

or is projected to have a number of 

positions (including positions that lead 

to economic self-sufficiency and 

opportunities for advancement) in an 

industry sector so as to have a 

significant impact on the State, regional, 

or local economy, as appropriate. 

Indian, as defined in the Indian SelfDetermination and Education 

Assistance Act (25 U.S.C. 450b), means 

a person who is a member of an Indian 

tribe. 

Indian tribe means any Indian tribe, 

band, nation, or other organized group 

or community, including any Alaska 

Native village or regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (85 Stat. 688; 43 U.S.C. 

1601 et seq.), which is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians. 

Individual with a disability means an 

individual with a disability as defined 

in sec. 3 of the Americans with 

Disabilities Act of 1990 (42 U.S.C. 

12102). 

Low-income family means a family 

whose income does not exceed 80 

percent of the median income for the 

area unless the Secretary determines 

that a higher or lower ceiling is 

warranted. This definition includes 

families consisting of one person as 

defined by 42 U.S.C. 1437a(b)(3). 

Migrant youth means a youth, or a 

youth who is the dependent of someone 

who, during the previous 12 months, 

has: 

(1) Worked at least 25 days in 

agricultural labor that is characterized 

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by chronic unemployment or 

underemployment; 

(2) Made at least $800 from 

agricultural labor that is characterized 

by chronic unemployment or 

underemployment, if at least 50 percent 

of his or her income came from such 

agricultural labor; 

(3) Was employed at least 50 percent 

of his or her total employment in 

agricultural labor that is characterized 

by chronic unemployment or 

underemployment; or 

(4) Was employed in agricultural 

labor that requires travel to a jobsite 

such that the farmworker is unable to 

return to a permanent place of residence 

within the same day. 

Needs-based payments means 

additional payments beyond regular 

stipends for program participation that 

are based on defined needs that enable 

a youth to participate in the program. 

Occupational skills training means an 

organized program of study that 

provides specific vocational skills that 

lead to proficiency in performing actual 

tasks and technical functions required 

by certain occupational fields at entry, 

intermediate, or advanced levels. 

Occupational skills training includes 

training programs that lead to 

recognized postsecondary credentials 

that align with in-demand industry 

sectors or occupations in the local area. 

Such training must: 

(1) Be outcome-oriented and focused 

on an occupational goal specified in the 

individual service strategy; 

(2) Be of sufficient duration to impart 

the skills needed to meet the 

occupational goal; and 

(3) Result in attainment of a 

recognized postsecondary credential. 

Offender means an adult or juvenile 

who: 

(1) Is or has been subject to any stage 

of the criminal justice process, and who 

may benefit from WIOA services; or 

(2) Requires assistance in overcoming 

artificial barriers to employment 

resulting from a record of arrest or 

conviction. 

Participant means an individual who 

has been determined eligible to 

participate in the YouthBuild program, 

and who enrolls in the program and 

receives services or training described 

in § 688.320. 

Pre-apprenticeship, as defined in 

§ 681.480 of this chapter, means a 

program designed to prepare 

individuals to enter and succeed in an 

apprenticeship program registered 

under the Act of August 16, 1937 

(commonly known as the ‘‘National 

Apprenticeship Act’’; 50 Stat. 664, 

chapter 663; 29 U.S.C. 50 et seq.) 

(referred to in this part as a ‘‘registered 

apprenticeship’’ or ‘‘registered 

apprenticeship program’’) and includes 

the following elements: 

(1) Training and curriculum that 

aligns with the skill needs of employers 

in the economy of the State or region 

involved; 

(2) Access to educational and career 

counseling and other supportive 

services, directly or indirectly; 

(3) Hands-on, meaningful learning 

activities that are connected to 

education and training activities, such 

as exploring career options, and 

understanding how the skills acquired 

through coursework can be applied 

toward a future career; 

(4) Opportunities to attain at least one 

industry-recognized credential; and 

(5) A partnership with one or more 

registered apprenticeship programs that 

assists in placing individuals who 

complete the pre-apprenticeship 

program in a registered apprenticeship 

program. 

(6) YouthBuild programs that receive 

funding under this part are considered 

pre-apprenticeship programs under this 

definition. 

Recognized postsecondary credential 

means a credential consisting of an 

industry-recognized certificate or 

certification, a certificate of completion 

of a registered apprenticeship, a license 

recognized by the State involved or 

Federal government, or an associate or 

baccalaureate degree. 

Registered apprenticeship program 

means an apprenticeship program that: 

(1) Is registered under the Act of 

August 16, 1937 (commonly known as 

the ‘‘National Apprenticeship Act’’ (50 

Stat. 664; 20 U.S.C. 50 et seq.)); and 

(2) Meets such other criteria as the 

Secretary may establish. 

School dropout means an individual 

who no longer attends any school and 

who has not received a secondary 

school diploma or its State-recognized 

equivalent. 

Secondary school means a nonprofit 

institutional day or residential school, 

including a public secondary charter 

school, that provides secondary 

education, as determined under State 

law, except that the term does not 

include any education beyond grade 12. 

Section 3 means a program described 

in sec. 3 of the Housing and Urban 

Development Act of 1968, as amended 

by the Housing and Community 

Development Act of 1992. 

Supportive services for youth, as 

defined in § 681.570 of this chapter, are 

services that enable an individual to 

participate in WIOA activities. These 

services include, but are not limited to, 

the following: 

(1) Linkages to community services; 

(2) Assistance with transportation; 

(3) Assistance with child care and 

dependent care; 

(4) Referrals to child support; 

(5) Assistance with housing; 

(6) Needs-related payments; 

(7) Assistance with educational 

testing; 

(8) Reasonable accommodations for 

youth with disabilities; 

(9) Referrals to health care; 

(10) Assistance with uniforms or other 

appropriate work attire and workrelated tools, including such items as 

eyeglasses and protective eye gear; 

(11) Assistance with books, fees, 

school supplies, and other necessary 

items for students enrolled in 

postsecondary education classes; and 

(12) Payments and fees for 

employment and training-related 

applications, tests, and certifications. 

Transitional housing means housing 

provided to ease the movement of 

individuals and families experiencing 

homelessness to permanent housing 

within 24 months or such longer period. 

YouthBuild program means any 

program that receives assistance under 

this part and provides disadvantaged 

youth with opportunities for 

employment, education, leadership 

development, service to the community, 

and training through the rehabilitation 

(which, for purposes of this part, 

includes energy efficiency 

enhancements) or construction of 

housing for homeless individuals and 

low-income families, and public 

facilities. 

Youth in foster care, as defined in 

§ 681.210 of this chapter, means an 

individual in foster care or who has 

aged out of the foster care system or 

who has attained 16 years of age and left 

foster care for kinship, guardianship, or 

adoption; or a child eligible for 

assistance under sec. 477 of the Social 

Security Act (42 U.S.C. 677), or in an 

out-of-home placement. 

Subpart B—Funding and Grant 

Applications 

§ 688.200 How are YouthBuild grants 

funded and administered? 

The Secretary uses funds authorized 

for appropriation under WIOA sec. 

171(i) to administer YouthBuild as a 

national program under title I, subtitle 

D of WIOA. YouthBuild grants are 

awarded to eligible entities, as defined 

in § 688.120, through the competitive 

selection process described in § 688.210. 

§ 688.210 How does an eligible entity 

apply for grant funds to operate a 

YouthBuild program? 

The Secretary announces the 

availability of grant funds through a 

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56464 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

Funding Opportunity Announcement 

(FOA). The FOA contains instructions 

for what the Department requires in the 

grant application, describes eligibility 

requirements, the rating criteria that the 

Department will use in reviewing grant 

applications, and special reporting 

requirements to operate a YouthBuild 

project. The FOA, along with the 

requisite forms needed to apply for 

grant funds, can be found at http://

www.doleta.gov/grants/find_grants.cfm. 

§ 688.220 How are eligible entities selected 

to receive grant funds? 

In order to receive funds under the 

YouthBuild program, an eligible entity 

must meet selection criteria established 

by the Secretary which include: 

(a) The qualifications or potential 

capabilities of an applicant; 

(b) An applicant’s potential to 

develop a successful YouthBuild 

program; 

(c) The need for an applicant’s 

proposed program, as determined by the 

degree of economic distress of the 

community from which participants 

would be recruited (measured by 

indicators such as poverty, youth 

unemployment, and the number of 

individuals who have dropped out of 

secondary school) and of the 

community in which the housing and 

community and public facilities 

proposed to be rehabilitated or 

constructed are located (measured by 

indicators such as incidence of 

homelessness, shortage of affordable 

housing, and poverty); 

(d) The commitment of an applicant 

to provide skills training, leadership 

development, counseling and case 

management, and education to 

participants; 

(e) The focus of a proposed program 

on preparing youth for local in-demand 

sectors or occupations, or postsecondary 

education and training opportunities; 

(f) The extent of an applicant’s 

coordination of activities to be carried 

out through the proposed program with: 

(1) Local WDBs, one-stop center 

operators, and one-stop partners 

participating in the operation of the onestop delivery system involved, or the 

extent of the applicant’s good faith 

efforts, as determined by the Secretary, 

in achieving such coordination; 

(2) Public education, criminal justice, 

housing and community development, 

national service, or postsecondary 

education or other systems that relate to 

the goals of the proposed program; and 

(3) Employers in the local area; 

(g) The extent to which a proposed 

program provides for inclusion of 

tenants who were previously homeless 

individuals or families in the rental of 

housing provided through the program; 

(h) The commitment of additional 

resources to the proposed program (in 

addition to the funds made available 

through the grant) by: 

(1) An applicant; 

(2) Recipients of other Federal, State, 

or local housing and community 

development assistance who will 

sponsor any part of the rehabilitation, 

construction, operation and 

maintenance, or other housing and 

community development activities 

undertaken as part of the proposed 

program; or 

(3) Entities carrying out other Federal, 

State, or local activities or activities 

conducted by Indian tribes, including 

vocational education programs, adult 

and language instruction educational 

programs, and job training using funds 

provided under WIOA; 

(i) An applicant’s ability to enter 

partnerships with: 

(1) Education and training providers 

including: 

(i) The kindergarten through twelfth 

grade educational system; 

(ii) Adult education programs; 

(iii) Community and technical 

colleges; 

(iv) Four-year colleges and 

universities; 

(v) Registered apprenticeship 

programs; and 

(vi) Other training entities; 

(2) Employers, including professional 

organizations and associations. An 

applicant will be evaluated on the 

extent to which employers participate 

in: 

(i) Defining the program strategy and 

goals; 

(ii) Identifying needed skills and 

competencies; 

(iii) Designing training approaches 

and curricula; 

(iv) Contributing financial support; 

and 

(v) Hiring qualified YouthBuild 

graduates; 

(3) The workforce development 

system which may include: 

(i) State and Local WDBs; 

(ii) State workforce agencies; and 

(iii) One-stop centers and their 

partner programs; 

(4) The juvenile and adult justice 

systems, and the extent to which they 

provide: 

(i) Support and guidance for 

YouthBuild participants with court 

involvement; 

(ii) Assistance in the reporting of 

recidivism rates among YouthBuild 

participants; and 

(iii) Referrals of eligible participants 

through diversion or reentry from 

incarceration; 

(5) Faith-based and community 

organizations, and the extent to which 

they provide a variety of grant services 

such as: 

(i) Case management; 

(ii) Mentoring; 

(iii) English as a Second Language 

courses; and 

(iv) Other comprehensive supportive 

services, when appropriate; 

(j) The applicant’s potential to serve 

different regions, including rural areas 

and States that may not have previously 

received grants for YouthBuild 

programs; and 

(k) Such other factors as the Secretary 

determines to be appropriate for 

purposes of evaluating an applicant’s 

potential to carry out the proposed 

program in an effective and efficient 

manner. 

(l) The weight to be given to these 

factors will be described in a FOA 

issued under § 688.210. 

§ 688.230 What are the minimum 

requirements to apply for YouthBuild 

funds? 

At minimum, applications for 

YouthBuild funds must include the 

following elements: 

(a) Labor market information for the 

relevant labor market area, including 

both current data (as of the date of 

submission of the application) and 

projections on career opportunities in 

construction and in-demand industry 

sectors or occupations; 

(b) A request for the grant, specifying 

the amount of the grant requested and 

its proposed uses; 

(c) A description of the applicant and 

a statement of its qualifications, 

including a description of the 

applicant’s relationship with Local 

WDBs, one-stop operators, employers, 

local unions, entities carrying out 

registered apprenticeship programs, 

other community groups, and the 

applicant’s past experience with 

rehabilitation or construction of housing 

or public facilities (including 

experience with programs through the 

U.S. Department of Housing and Urban 

Development (HUD) under sec. 3 of the 

Housing and Urban Development Act of 

1968 (12 U.S.C. 1701u)), and with youth 

education and employment training 

programs); 

(d) A description of the proposed site 

for the proposed program; 

(e) A description of the educational 

and job training activities, work 

opportunities, postsecondary education 

and training opportunities, and other 

services that will be provided to 

participants, and how those activities, 

opportunities, and services will prepare 

youth for employment in in-demand 

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industry sectors or occupations in the 

labor market area described in 

paragraph (a) of this section; 

(1) A description of the proposed 

activities to be undertaken under the 

grant related to rehabilitation or 

construction, and, in the case of an 

applicant requesting approval from the 

Secretary to carry out additional 

activities related to in-demand industry 

sectors or occupations, a description of 

such additional activities. 

(2) The anticipated schedule for 

carrying out all activities proposed 

under paragraph (f) of this section; 

(f) A description of the manner in 

which eligible youth will be recruited 

and selected as participants, including a 

description of arrangements that will be 

made with Local WDBs, one-stop 

operators, faith and community-based 

organizations, State education agencies 

or local education agencies (including 

agencies of Indian tribes), public 

assistance agencies, the courts of 

jurisdictions, agencies that serve youth 

who are homeless individuals 

(including those that operate shelters), 

foster care agencies, and other 

appropriate public and private agencies; 

(g) A description of the special 

outreach efforts that will be undertaken 

to recruit eligible young women 

(including young women with 

dependent children) as participants; 

(h) A description of the specific role 

of employers in the proposed program, 

such as their role in developing the 

proposed program and assisting in 

service provision and placement 

activities; 

(i) A description of how the proposed 

program will be coordinated with other 

Federal, State, and local activities 

conducted by Indian tribes, such as 

workforce investment activities, career 

and technical education and training 

programs, adult and language 

instruction educational programs, 

activities conducted by public schools, 

activities conducted by community 

colleges, national service programs, and 

other job training provided with funds 

available under WIOA, in particular 

how programs will coordinate with 

local Workforce Development funds 

outlined in WIOA sec. 129(c)(2); 

(j) Assurances that there will be a 

sufficient number of adequately trained 

supervisory personnel in the proposed 

program; 

(k) A description of the level of 

performance to be achieved with respect 

to primary indicators of performance for 

eligible youth as described in § 688.410; 

(l) The organization’s past 

performance under a grant issued by the 

Secretary to operate a YouthBuild 

program; 

(m) A description of the applicant’s 

relationship with local building trade 

unions regarding their involvement in 

training to be provided through the 

proposed program, the relationship of 

the proposed program to established 

registered apprenticeship programs and 

employers, the ability of the applicant to 

grant an industry-recognized certificate 

or certification through the program, 

and the quality of the program leading 

to the certificate or certification; 

(n) A description of activities that will 

be undertaken to develop leadership 

skills of participants; 

(o) A detailed budget and description 

of the system of fiscal controls, and 

auditing and accounting procedures, 

that will be used to ensure fiscal 

soundness for the proposed program; 

(p) A description of the commitments 

for any additional resources (in addition 

to funds made available through the 

grant) to be made available to the 

proposed program from: 

(1) The applicant; 

(2) Recipients of other Federal, State, 

or local housing and community 

development assistance that will 

sponsor any part of the rehabilitation or 

construction, operation or maintenance, 

or other housing and community 

development activities undertaken as 

part of the proposed program; or 

(3) Entities carrying out other Federal, 

State or local activities conducted by 

Indian tribes, including career and 

technical education and training 

programs, and job training provided 

with funds under WIOA; 

(q) Information identifying and 

describing of, the financing proposed for 

any: 

(1) Rehabilitation of the property 

involved; 

(2) Acquisition of the property; or 

(3) Construction of the property; 

(r) Information identifying and 

describing of, the entity that will 

manage and operate the property; 

(s) Information identifying and 

describing of, the data collection 

systems to be used; 

(t) A certification, by a public official 

responsible for the housing strategy for 

the State or unit of general local 

government within which the proposed 

program is located, that the proposed 

program is consistent with the housing 

strategy; 

(u) A certification that the applicant 

will comply with requirements of the 

Fair Housing Act (42 U.S.C. 3601 et 

seq.) and will affirmatively further fair 

housing; and 

(v) Any additional requirements that 

the Secretary determines are 

appropriate. 

§ 688.240 How are eligible entities notified 

of approval for grant funds? 

The Secretary will, to the extent 

practicable, notify each eligible entity 

applying for funds no later than 5 

months from the date the application is 

received, whether the application is 

approved or disapproved. In the event 

additional funds become available, the 

Employment and Training 

Administration (ETA) reserves the right 

to use such funds to select additional 

grantees from applications submitted in 

response to a FOA. 

Subpart C—Program Requirements 

§ 688.300 Who is an eligible participant? 

(a) Eligibility criteria. Except as 

provided in paragraph (b) of this 

section, an individual is eligible to 

participate in a YouthBuild program if 

the individual is: 

(1) Not less than age 16 and not more 

than age 24 on the date of enrollment; 

(2) A school dropout or an individual 

who has dropped out of school and has 

subsequently reenrolled; and 

(3) Is one or more of the following: 

(i) A member of a low-income family; 

(ii) A youth in foster care; 

(iii) An offender; 

(iv) A youth who is an individual 

with a disability; 

(v) The child of a current or formerly 

incarcerated parent; or 

(vi) A migrant youth. 

(b) Exceptions. Not more than 25 

percent of the participants in a program, 

under this section, may be individuals 

who do not meet the requirements of 

paragraph (a)(2) or (3) of this section, if 

such individuals: 

(1) Are basic skills deficient, as 

defined in § 688.120, despite attainment 

of a secondary school diploma or its 

recognized State equivalent (including 

recognized certificates of attendance or 

similar documents for individuals with 

disabilities); or 

(2) Have been referred by a local 

secondary school for participation in a 

YouthBuild program leading to the 

attainment of a secondary school 

diploma if such referral is to a 

YouthBuild program offering a 

secondary school diploma. 

§ 688.310 Are there special rules that 

apply to veterans? 

Special rules for determining income 

for veterans are found in § 683.230 of 

this chapter and for the priority of 

service provisions for qualified persons 

are found in 20 CFR part 1010. Those 

special rules apply to covered persons 

who are eligible to participate in the 

YouthBuild program. 

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§ 688.320 What eligible activities may be 

funded under the YouthBuild program? 

Grantees may provide one or more of 

the following education and workforce 

investment and other activities to 

YouthBuild participants: 

(a) Eligible education and workforce 

activities including: 

(1) Work experience and skills 

training (coordinated, to the maximum 

extent feasible, with registered 

apprenticeship programs), including: 

(i) Supervision and training for 

participants in the rehabilitation or 

construction of housing, including 

residential housing for homeless 

individuals or low-income families, or 

transitional housing for homeless 

individuals and in additional indemand industry sectors or occupations 

in the region in which the program 

operates (as approved by the Secretary); 

(ii) Supervision and training for 

participants in the rehabilitation or 

construction of community and other 

public facilities, except that not more 

than 15 percent of grant fundsappropriated to carry out this section 

may be used for this activity; and 

(iii) Supervision and training for 

participants in in-demand industry 

sectors or occupations in the region in 

which the program operates, if such 

activity is approved by the Secretary; 

(2) Occupational skills training; 

(3) Other paid and unpaid work 

experiences, including internships and 

job shadowing; 

(4) Services and activities designed to 

meet the educational needs of 

participants, including: 

(i) Basic skills instruction and 

remedial education; 

(ii) Language instruction educational 

programs for participants who are 

English language learners; 

(iii) Secondary education services and 

activities, including tutoring, study 

skills training, and school dropout 

prevention and recovery activities, 

designed to lead to the attainment of a 

secondary school diploma or its 

recognized equivalent (including 

recognized certificates of attendance or 

similar documents for individuals with 

disabilities); 

(iv) Counseling and assistance in 

obtaining postsecondary education and 

required financial aid; and 

(v) Alternative secondary school 

services; 

(5) Counseling services and related 

activities, such as comprehensive 

guidance and counseling on drug and 

alcohol abuse, referrals to mental health 

services, and referrals to victim services; 

(6) Activities designed to develop 

employment and leadership skills, 

which may include community service 

and peer-centered activities encouraging 

responsibility, interpersonal skills, and 

other positive social behaviors, and 

activities related to youth policy 

committees that participate in decisionmaking related to the program; 

(7)(i) Supportive services and needsbased payments necessary to enable 

individuals to participate in the 

program and to assist individuals, for a 

period of time not to exceed 12 months 

after the completion of training, in 

obtaining or retaining employment or 

applying for and transitioning to 

postsecondary education or training; 

(ii) To provide needs-based payments, 

a grantee must have a written policy 

which: 

(A) Establishes participant eligibility 

for such payments; 

(B) Establishes the amounts to be 

provided; 

(C) Describes the required 

documentation and criteria for 

payments; and 

(D) Applies consistently to all 

program participants; and 

(8) Job search and assistance; 

(b) Payment of the administrative 

costs of the applicant, including 

recruitment and selection of 

participants, except that not more than 

10 percent of the amount awarded 

under § 688.210 may be used for such 

costs; 

(c) Adult mentoring; 

(d) Provision of wages, stipends, or 

benefits to participants in the program; 

(e) Ongoing training and technical 

assistance that is related to developing 

and carrying out the program; and 

(f) Follow-up services. 

§ 688.330 What level of training qualifies a 

construction project as a qualifying work 

site under the YouthBuild program? 

At a minimum, in order to qualify as 

a work site for the purposes of the 

YouthBuild program, a work site must: 

(a) Provide participants with the 

opportunity to have hands-on training 

and experience in two or more modules, 

each within a different skill area, in a 

construction skills training program that 

offers an industry-recognized credential; 

(b) Be built or renovated for lowincome individuals or families; 

(c) Have a restrictive covenant in 

place that only allows for rental or 

resale to low-income participants as 

required by § 688.730; and 

(d) Adhere to the allowable 

construction and other capital asset 

costs applicable to the YouthBuild 

program. 

§ 688.340 What timeframes apply to 

participation? 

An eligible individual selected for 

participation in the program must be 

offered full-time participation in the 

program for not less than 6 months and 

not more than 24 months. 

§ 688.350 What timeframes must be 

devoted to education and workforce 

investment or other activities? 

YouthBuild grantees must structure 

programs so that participants in the 

program are offered: 

(a) Education and related services and 

activities designed to meet educational 

needs, such as those specified in 

§ 688.320(a)(4) through (7), during at 

least 50 percent of the time during 

which they participate in the program; 

and 

(b) Workforce and skills development 

activities, such as those specified in 

§ 688.320(a)(1) through (3), during at 

least 40 percent of the time during 

which they participate in the program. 

(c) The remaining 10 percent of the 

time of participation may be used for 

the activities described in paragraphs (a) 

and (b) of this section and/or for 

leadership development and community 

service activities. 

§ 688.360 What timeframes apply to followup services? 

Grantees must provide follow-up 

services to all YouthBuild participants 

for a period of 12 months after a 

participant successfully exits a 

YouthBuild program. 

§ 688.370 What are the requirements for 

exit from the YouthBuild program? 

At a minimum, to be a successful exit, 

the Department of Labor requires that: 

(a) Participants receive hands-on 

construction training or hands-on 

training in another industry or 

occupation, in the case of Construction 

Plus grantees; and 

(b) Participants meet the exit policies 

established by the grantee. 

(1) Such policies must describe the 

program outcomes and/or individual 

goals that must be met by each 

participant in order to successfully 

complete the program; and 

(2) Grantees must apply the policies 

consistently to determine when a 

successful exit has occurred. 

§ 688.380 What is the role of the 

YouthBuild grantee in the one-stop delivery 

system? 

In those local areas where the grantee 

operates its YouthBuild program, the 

grantee is a required partner of the local 

one-stop delivery system and is subject 

to the provisions relating to such 

partners described in part 678 of this 

chapter. 

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Subpart D—Performance Indicators 

§ 688.400 What are the performance 

indicators for YouthBuild grants? 

The performance indicators for 

YouthBuild grants include: 

(a) The percentage of program 

participants who are in education and 

training activities, or in unsubsidized 

employment, during the second quarter 

after exit from the program; 

(b) The percentage of program 

participants who are in education or 

training activities, or in unsubsidized 

employment, during the fourth quarter 

after exit from the program; 

(c) The median earnings of program 

participants who are in unsubsidized 

employment during the second quarter 

after exit from the program; 

(d) The percentage of program 

participants who obtain a recognized 

postsecondary credential or secondary 

school diploma or its recognized 

equivalent (and for those achieving the 

secondary diploma or its recognized 

equivalent, such participants also have 

obtained or retained employment or are 

in an education or training program 

leading to a recognized postsecondary 

credential within 1 year after exit from 

the program); 

(e) The percentage of program 

participants who, during a program 

year, are in an education and training 

program that leads to a recognized 

postsecondary credential or 

employment and who are achieving 

measurable skill gains toward such a 

credential or employment; 

(f) The indicator of effectiveness in 

serving employers described at 

§ 677.155(c)(6) of this chapter; and 

(g) Other indicators of performance as 

may be required by the Secretary. 

§ 688.410 What are the required levels of 

performance for the performance 

indicators? 

(a) The Secretary must annually 

establish expected levels of performance 

for YouthBuild programs relating to 

each of the primary indicators of 

performance. The expected levels of 

performance for each of the performance 

indicators are national standards that 

are provided in separately issued 

guidance. Short-term or other 

performance indicators will be provided 

in separately issued guidance or as part 

of the FOA or grant agreement. 

Performance level expectations will be 

based on available YouthBuild data and 

data from similar WIOA youth programs 

and may change from one grant 

competition to another. The expected 

national levels of performance will take 

into account the extent to which the 

levels promote continuous improvement 

in performance. 

(b) The levels of performance 

established will at a minimum: 

(1) Be expressed in an objective, 

quantifiable, and measurable form; and 

(2) Indicate continuous improvement 

in performance. 

§ 688.420 What are the reporting 

requirements for YouthBuild grantees? 

Each grantee must provide such 

reports as are required by the Secretary 

in separately issued guidance, 

including: 

(a) The quarterly performance report; 

(b) The quarterly narrative progress 

report; 

(c) The financial report; and 

(d) Such other reports as may be 

required by the grant agreement. 

§ 688.430 What are the due dates for 

quarterly reporting? 

(a) Quarterly reports are due no later 

than 45 days after the end of the 

reporting quarter, unless otherwise 

specified in the reporting guidance 

issued under § 688.420; and 

(b) A final financial report is required 

90 days after the expiration of a funding 

period or the termination of grant 

support. 

Subpart E—Administrative Rules, 

Costs, and Limitations 

§ 688.500 What administrative regulations 

apply to the YouthBuild program? 

Each YouthBuild grantee must 

comply with the following: 

(a) The regulations found in this part; 

(b) The general administrative 

requirements found in part 683 of this 

chapter, except those that apply only to 

the WIOA title I, subtitle B program and 

those that have been modified by this 

section; 

(c) The Department’s regulations on 

government-wide requirements, which 

include: 

(1) The regulations codifying the 

Office of Management and Budget’s 

(OMB) government-wide grants 

requirements at 2 CFR parts 200 and 

2900, as applicable; 

(2) The Department’s regulations at 29 

CFR part 38, which implement the 

nondiscrimination provisions of WIOA 

sec. 188; 

(3) The Department’s regulations at 29 

CFR parts 93, 94, and 98 relating to 

restrictions on lobbying, drug free 

workplace, and debarment and 

suspension; and 

(4) The audit requirements of the 

Office of Management and Budget at 2 

CFR parts 200 and 2900, as applicable; 

and 

(d) Relevant State and local 

educational standards. 

§ 688.510 How may grantees provide 

services under the YouthBuild program? 

Each recipient of a grant under the 

YouthBuild program may provide the 

services and activities described in 

these regulations either directly or 

through subgrants, contracts, or other 

arrangements with local educational 

agencies, postsecondary educational 

institutions, State or local housing 

development agencies, other public 

agencies, including agencies of Indian 

tribes, or private organizations. 

§ 688.520 What cost limits apply to the use 

of YouthBuild program funds? 

(a) Administrative costs for programs 

operated under YouthBuild are limited 

to 10 percent of the grant award. The 

definition of administrative costs can be 

found in § 683.215 of this chapter. 

(b) The cost of supervision and 

training for participants involved in the 

rehabilitation or construction of 

community and other public facilities is 

limited to no more than 15 percent of 

the grant award. 

§ 688.530 What are the cost-sharing or 

matching requirements of the YouthBuild 

program? 

(a) In addition to the rules described 

in paragraphs (b) through (f) of this 

section, the cost-sharing or matching 

requirements applicable to a 

YouthBuild grant will be addressed in 

the grant agreement. 

(b) The value of construction 

materials used in the YouthBuild 

program is an allowable cost for the 

purposes of the required non-Federal 

share or match. 

(c) The value of land acquired for the 

YouthBuild program is not an allowable 

cost-sharing or match. 

(d) Federal funds may not be used as 

cost-sharing or match resources except 

as provided by Federal law. 

(e) The value of buildings acquired for 

the YouthBuild program is an allowable 

match, provided that the following 

conditions apply: 

(1) The purchase cost of buildings 

used solely for training purposes is 

allowable; and 

(2) For buildings used for training and 

other purposes, the allowable amount is 

determined based on the proportionate 

share of the purchase price related to 

direct training activities. 

(f) Grantees must follow the 

requirements of Uniform Guidance at 2 

CFR parts 200 and 2900 in the 

accounting, valuation, and reporting of 

the required non-Federal share. 

§ 688.540 What are considered to be 

leveraged funds? 

(a) Leveraged funds may be used to 

support allowable YouthBuild program 

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56468 Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 

activities and consist of payments made 

for allowable costs funded by both nonYouthBuild Federal, and non-Federal, 

resources which include: 

(1) Costs which meet the criteria for 

cost-sharing or match in § 688.530 and 

are in excess of the amount of costsharing or match resources required; 

(2) Costs which would meet the 

criteria in § 688.530 except that they are 

paid for with other Federal resources; 

and 

(3) Costs which benefit the grant 

program and are otherwise allowable 

under the cost principles but are not 

allowable under the grant because of 

some statutory, regulatory, or grant 

provision, whether paid for with 

Federal or non-Federal resources. 

(b) The use of leveraged funds must 

be reported in accordance with 

Departmental instructions. 

§ 688.550 How are the costs associated 

with real property treated in the YouthBuild 

program? 

(a) As provided in paragraphs (b) and 

(c) of this section, the costs of the 

following activities associated with real 

property are allowable solely for the 

purpose of training YouthBuild 

participants: 

(1) Rehabilitation of existing 

structures for use by homeless 

individuals and families or low-income 

families or for use as transitional 

housing; 

(2) Construction of buildings for use 

by homeless individuals and families or 

low-income families or for use as 

transitional housing; and 

(3) Construction or rehabilitation of 

community or other public facilities, 

except, as provided in § 688.520(b), only 

15 percent of the grant award is 

allowable for such construction and 

rehabilitation. 

(b) The costs for acquisition of 

buildings that are used for activities 

described in paragraph (a) of this 

section are allowable with prior grant 

officer approval and only under the 

following conditions: 

(1) The purchase cost of buildings 

used solely for training purposes is 

allowable; and 

(2) For buildings used for training and 

other purposes, the allowable amount is 

determined based on the proportionate 

share of the purchase cost related to 

direct training. 

(c) The following costs are allowable 

to the extent allocable to training 

YouthBuild participants in the 

construction and rehabilitation 

activities specified in paragraph (a) of 

this section: 

(1) Trainees’ tools and clothing 

including personal protective 

equipment (PPE); 

(2) On-site trainee supervisors; 

(3) Construction management; 

(4) Relocation of buildings; and 

(5) Clearance and demolition. 

(d) Architectural fees, or a 

proportionate share thereof, are 

allowable when such fees can be related 

to items such as architectural plans or 

blueprints on which participants will be 

trained. 

(e) The following costs are 

unallowable: 

(1) The costs of acquisition of land; 

and 

(2) Brokerage fees. 

§ 688.560 What participant costs are 

allowable under the YouthBuild program? 

Allowable participant costs include: 

(a) The costs of payments to 

participants engaged in eligible workrelated YouthBuild activities; 

(b) The costs of payments provided to 

participants engaged in non-workrelated YouthBuild activities; 

(c) The costs of needs-based 

payments; 

(d) The costs of supportive services; 

and 

(e) The costs of providing additional 

benefits to participants or individuals 

who have exited the program and are 

receiving follow-up services, which may 

include: 

(1) Tuition assistance for obtaining 

college education credits; 

(2) Scholarships to a registered 

apprenticeship or technical education 

program; and 

(3) Employer- or Governmentsponsored health programs. 

§ 688.570 Does the Department allow 

incentive payments in the YouthBuild 

program? 

(a) Grantees are permitted to provide 

incentive payments to youth 

participants for recognition and 

achievement directly tied to training 

activities and work experiences. 

Grantees must tie the incentive 

payments to the goals of the specific 

grant program and outline such goals in 

writing prior to starting the program that 

makes incentive payments. 

(b) Prior to providing incentive 

payments, the organization must have 

written policies and procedures in place 

governing the awarding of incentives, 

and the incentives provided under the 

grant must align with these 

organizational policies. 

(c) All incentive payments must 

comply with the requirements in 

Uniform Guidance at 2 CFR part 200. 

§ 688.580 What effect do payments to 

YouthBuild participants have on eligibility 

for other Federal needs-based benefits? 

Under § 683.275(d) of this chapter, the 

Department does not consider 

allowances, earnings, and payments to 

individuals participating in programs 

under title I of WIOA as income for 

purposes of determining eligibility for 

and the amount of income transfer and 

in-kind aid furnished under any Federal 

or Federally-assisted program based on 

need other than as provided under the 

Social Security Act (42 U.S.C. 301). 

§ 688.590 What program income 

requirements apply under the YouthBuild 

program? 

(a) Except as provided in paragraph 

(b) of this section, program income 

requirements, as specified in the 

applicable Uniform Administrative 

Requirements at 2 CFR parts 200 and 

2900, apply to YouthBuild grants. 

(b) Revenue from the sale of buildings 

rehabilitated or constructed under the 

YouthBuild program to homeless 

individuals and families and lowincome families is not considered 

program income. Grantees are 

encouraged to use that revenue for the 

long-term sustainability of the 

YouthBuild program. 

§ 688.600 Are YouthBuild programs 

subject to the Davis-Bacon Act labor 

standards? 

(a) YouthBuild programs and grantees 

are subject to Davis-Bacon labor 

standards requirements under the 

circumstances set forth in paragraph (b) 

of this section. In those instances where 

a grantee is subject to Davis-Bacon 

requirements, the grantee must follow 

applicable requirements in the 

Department’s regulations at 29 CFR 

parts 1, 3, and 5, including the 

requirements contained in the DavisBacon contract provisions set forth in 29 

CFR 5.5. 

(b) YouthBuild participants are 

subject to Davis-Bacon Act labor 

standards when they perform DavisBacon-covered laborer or mechanic 

work, defined at 29 CFR 5.2(m), on 

Federal or Federally-assisted projects 

that are subject to the Davis-Bacon Act 

labor standards. The Davis-Bacon 

prevailing wage requirements apply to 

hours worked on the site of the work. 

(c) YouthBuild participants who are 

not registered and participating in a 

training program approved by the ETA 

must be paid not less than the 

applicable wage rate on the wage 

determination for the classification of 

work actually performed. 

§ 688.610 What are the recordkeeping 

requirements for YouthBuild programs? 

(a) Grantees must follow the 

recordkeeping requirements specified in 

the Uniform Administrative 

Requirements, at 29 CFR 95.53 and 

97.42, as appropriate. 

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Federal Register / Vol. 81, No. 161 / Friday, August 19, 2016 / Rules and Regulations 56469 

(b) Grantees must maintain such 

additional records related to the use of 

buildings constructed or rehabilitated 

with YouthBuild funds as specified in 

the grant agreement or in the 

Department’s guidance. 

Subpart F—Additional Requirements 

§ 688.700 What are the safety 

requirements for the YouthBuild program? 

(a) YouthBuild Grantees must comply 

with § 683.280 of this chapter, which 

applies Federal and State health and 

safety standards to the working 

conditions under WIOA-funded projects 

and programs. These health and safety 

standards include ‘‘hazardous orders’’ 

governing child labor at 29 CFR part 

570. 

(b) YouthBuild grantees are required 

to: 

(1) Provide comprehensive safety 

training for youth working on 

YouthBuild construction projects; 

(2) Have written, jobsite-specific 

safety plans overseen by an on-site 

supervisor with authority to enforce 

safety procedures; 

(3) Provide necessary personal 

protective equipment to youth working 

on YouthBuild projects; and 

(4) Submit required injury incident 

reports. 

§ 688.710 What are the reporting 

requirements for youth safety? 

YouthBuild grantees must ensure that 

YouthBuild program sites comply with 

the Occupational Safety and Health 

Administration’s (OSHA) reporting 

requirements in 29 CFR part 1904. A 

YouthBuild grantee is responsible for 

sending a copy of OSHA’s injury 

incident report form to the ETA within 

7 days of any reportable injury suffered 

by a YouthBuild participant. The injury 

incident report form is available from 

OSHA and can be downloaded at http:// 

www.osha.gov/recordkeeping/

RKforms.html. Reportable injuries 

include those that result in death, days 

away from work, restricted work or 

transfer to another job, medical 

treatment beyond first aid, or loss of 

consciousness. 

§ 688.720 What environmental protection 

laws apply to the YouthBuild program? 

YouthBuild program grantees are 

required, where applicable, to comply 

with all environmental protection 

statutes and regulations. 

§ 688.730 What requirements apply to 

YouthBuild housing? 

(a) YouthBuild grantees must ensure 

that all residential housing units which 

are constructed or rehabilitated using 

YouthBuild funds must be available 

solely for: 

(1) Sale to homeless individuals and 

families or low-income families; 

(2) Rental by homeless individuals 

and families or low-income families; 

(3) Use as transitional or permanent 

housing for the purpose of assisting in 

the movement of homeless individuals 

and families to independent living. In 

the case of transitional housing, the 

unit(s) must be occupied no more than 

24 months by the same individual(s); or 

(4) Rehabilitation of homes for lowincome homeowners. 

(b) For rentals of residential units 

located on the property which are 

constructed or rehabilitated using 

YouthBuild funds: 

(1) The property must maintain at 

least a 90 percent level of occupancy for 

low-income families. The income test 

will be conducted only at the time of 

entry for each available unit or 

rehabilitation of occupant-owned home. 

If the grantee cannot find a qualifying 

tenant to lease the unit, the unit may be 

leased to a family whose income is 

above the income threshold to qualify as 

a low-income family but below the 

median income for the area. Leases for 

tenants with higher incomes will be 

limited to not more than 2 years. The 

leases provided to tenants with higher 

incomes are not subject to the 

termination clause that is described in 

paragraph (b)(2) of this section. 

(2) The property owner must not 

terminate the tenancy or refuse to renew 

the lease of a tenant occupying a 

residential rental housing unit 

constructed or rehabilitated using 

YouthBuild funds except for serious or 

repeated violations of the terms and 

conditions of the lease, for violation of 

applicable Federal, State, or local laws, 

or for good cause. Any termination or 

refusal to renew the lease must be 

preceded by not less than a 30-day 

written notice to the tenant specifying 

the grounds for the action. The property 

owner may waive the written notice 

requirement for termination in 

dangerous or egregious situations 

involving the tenant. 

(c) All transitional or permanent 

housing for homeless individuals or 

families or low-income families must be 

safe and sanitary. The housing must 

meet all applicable State and local 

housing codes and licensing 

requirements in the jurisdiction in 

which the housing is located. 

(d) For sales or rentals of residential 

housing units constructed or 

rehabilitated using YouthBuild funds, 

YouthBuild grantees must ensure that 

owners of the property record a 

restrictive covenant at the time that an 

occupancy permit is issued against such 

property which includes the use 

restrictions set forth in paragraphs (a), 

(b), and (c) of this section and 

incorporates the following definitions at 

§ 688.120: Homeless individual, Lowincome family, and Transitional 

housing. The term of the restrictive 

covenant must be at least 5 years from 

the time of the issuance of the 

occupancy permit, unless a time period 

of more than 5 years has been 

established by the grantee. The 

Department advises that any additional 

stipulations imposed by a grantee or 

property owner be clearly stated in the 

covenant. 

(e) Any conveyance document 

prepared in the 5-year period of the 

restrictive covenant must inform the 

buyer of the property that all residential 

housing units constructed or 

rehabilitated using YouthBuild funds 

are subject to the restrictions set forth in 

paragraphs (a) through (d) of this 

section. 

Signed at Washington, DC, this 29th day of 

June 2016. 

Thomas E. Perez, 

Secretary of Labor. 

[FR Doc. 2016–15975 Filed 8–8–16; 11:15 am] 

BILLING CODE 4510–FR–P; 4510–FT–P 

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