Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13595 

Technical Note: The term Gy (silicon) 

refers to the energy in Joules per kilogram 

absorbed by an unshielded silicon sample 

when exposed to ionizing radiation.* 

* * * * * 

6A293 Cameras not classified ECCNs 

6A003 or 6A203 with all the following 

characteristics: (see List of Items 

Controlled). 

License Requirements 

Reason for Control: NP, AT 

Control(s) 

Country chart 

(see Supp. No. 

1 to part 738) 

NP applies to entire 

entry.

NP Column 1 

AT applies to entire 

entry.

AT Column 1 

List Based License Exceptions (See Part 740 

for a Description of All License Exceptions) 

LVS: N/A 

GBS: N/A 

Special Conditions for STA 

STA: License Exception STA (§ 740.20 of the 

EAR) may not be used for ECCN 6A293. 

List of Items Controlled 

Related Controls: See ECCNs 6A003 and 

6A203. 

Related Definitions: N/A 

Items: 

a. Minimum exposure time of 1 

microsecond or faster, and 

b. a throughput of 13.43 Giga Pixels/s or 

greater when taken at 205,000 frames/s. 

Technical Note: Throughput = Width 

(pixels) x Height (pixels) x Frames per 

Second. The width and Height in pixels are 

those that are achieved at 205,000 frames per 

second. 

Note: This entry includes cameras which 

may be referred to as high-speed digital 

imaging cameras, high-speed video cameras 

or slow-motion cameras or any other camera 

that meets these parameters. 

* * * * * 

Thea R. Kendler, 

Assistant Secretary for Export 

Administration. 

[FR Doc. 2024–03661 Filed 2–22–24; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Parts 684, 686, and 688 

[Docket No. ETA–2022–0005] 

RIN 1205–AC08 

Workforce Innovation and Opportunity 

Act Title I Non-Core Programs 

Effectiveness in Serving Employers 

Performance Indicator 

AGENCY: Employment and Training 

Administration (ETA), Labor. 

ACTION: Final rule. 

SUMMARY: The Workforce Innovation 

and Opportunity Act (WIOA) 

establishes six primary indicators of 

performance for certain WIOAauthorized programs and defines five of 

the six performance indicators. The U.S. 

Departments of Labor and Education 

(the Departments) published a final rule 

under RIN 1205–AC01 to define the 

sixth performance indicator— 

effectiveness in serving employers—as 

Retention with Same Employer into the 

implementing regulations for the six 

WIOA core programs. In this related 

final rule, the Department of Labor (DOL 

or the Department) is incorporating the 

same definition of the ESE performance 

indicator into regulations for the 

following WIOA title I non-core 

programs: the Indian and Native 

American (INA), the Job Corps, and the 

YouthBuild program. This final rule 

makes two changes from the notice of 

proposed rulemaking (NPRM) for the 

WIOA title I non-core programs: the 

final rule permits the use of 

supplemental wage information in the 

definition of the effectiveness in serving 

employers performance indicator, and it 

specifies that the definition is 

measuring retention in unsubsidized 

employment. 

DATES: This final rule is effective March 

25, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Paczynski, Administrator, 

Office of Policy Development and 

Research, 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), 1–877–872–5627, or 1– 

800–326–2577 (telecommunications 

device for the deaf). 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Background and Rulemaking Authority 

A. WIOA Background 

B. Summary of Changes From NPRM to 

Final Rule of the Effectiveness in Serving 

Employers Performance Indicator for 

WIOA Non-Core Programs 

C. Effectiveness in Serving Employers 

Performance Indicator Approaches for 

WIOA Core Programs, as Relevant to 

WIOA Title I Non-Core Programs 

D. Effectiveness in Serving Employers 

Performance Indicator for WIOA Title I 

Non-Core Programs 

E. Public Comments Received on the 

Proposed Rule 

II. Section-by-Section Analysis of This Final 

Rule 

A. Comments Received on Effectiveness in 

Serving Employers Performance 

Indicator Approaches, as Relevant to 

WIOA Non-Core Programs 

B. Part 684—Indian and Native American 

Programs 

C. Part 685—National Farmworker Jobs 

Program 

D. Part 686—Job Corps Program 

E. Part 688—YouthBuild Programs 

F. Impacts of the Final Rule on Other NonCore WIOA Programs for Which the 

Department Has Applied WIOA Sec. 116 

Primary Indicators of Performance 

III. Regulatory Analysis and Review 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 13272 

(Proper Consideration of Small Entities 

in Agency Rulemaking) 

C. Paperwork Reduction Act 

D. Executive Order 13132 (Federalism) 

E. Unfunded Mandates Reform Act 

F. Executive Order 13175 (Indian Tribal 

Governments) 

Acronyms and Abbreviations 

AEFLA Adult Education and Family 

Literacy Act 

AJC American Job Center 

CFR Code of Federal Regulations 

Departments U.S. Departments of Labor and 

Education 

DOL or Department U.S. Department of 

Labor 

E.O. Executive Order 

ES Employment Service 

ETA Employment and Training 

Administration 

FR Federal Register 

GPMS Grantee Performance Management 

System 

ICR Information Collection Request 

INA Indian and Native American 

MSFW migrant and seasonal farmworker 

NAETC Native American Employment and 

Training Council 

NFJP National Farmworker Jobs Program 

NPRM or proposed rule notice of proposed 

rulemaking 

OIRA Office of Information and Regulatory 

Affairs 

OMB Office of Management and Budget 

PIRL Participant Individual Record Layout 

PRA Paperwork Reduction Act of 1995 

Pub. L. Public Law 


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13596 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

1Section 116(b)(2)(A)(i) of WIOA states the 

primary indicators of performance: (1) the 

percentage of participants who are employed during 

the second and (2) fourth quarters after exit from 

the program, (3) the median earnings of participants 

who are employed during the second quarter after 

exit, (4) the percentage of participants who obtain 

a recognized postsecondary credential during the 

program or within 1 year of exit, (5) the percentage 

of participants who achieve measurable skill gains 

during a program year, and (6) ‘‘indicators of 

effectiveness in serving employers.’’ This last 

indicator is the subject of this final rule. Definitions 

of the others were included in the WIOA 

regulations promulgated in August 2016 (81 FR 

55791; see 20 CFR 677.155, 34 CFR 361.155, 34 CFR 

463.155). 

2ETA, TEGL No. 14–18, ‘‘Aligning Performance 

Accountability Reporting, Definitions, and Policies 

Across Workforce Employment and Training 

Programs Administered by the U.S. Department of 

Labor (DOL),’’ Mar. 25, 2019, https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

PY Program Year 

REO Reentry Employment Opportunities 

RFA Regulatory Flexibility Act 

RIA Regulatory impact analysis 

RIN Regulation Identifier Number 

Stat. United States Statutes at Large 

UI unemployment insurance 

UMRA Unfunded Mandates Reform Act 

U.S.C. United States Code 

TEGL Training and Employment Guidance 

Letter 

VR Vocational Rehabilitation 

WIOA Workforce Innovation and 

Opportunity Act 

WIPS Workforce Integrated Performance 

System 

I. Background and Rulemaking 

Authority 

A. WIOA Background 

President Barack Obama signed WIOA 

into law on July 22, 2014. WIOA 

superseded the Workforce Investment 

Act of 1998 and amended the WagnerPeyser Act and the Rehabilitation Act of 

1973. In WIOA sec. 503(f), Congress 

directed the Department to issue 

regulations implementing statutory 

requirements to ensure that the public 

workforce system operates as a 

comprehensive, integrated, and 

streamlined system to provide pathways 

to prosperity and continuously improve 

the quality and performance of its 

services to job seekers and employers. 

Additionally, WIOA sec. 189(a) permits 

the Secretary of Labor to prescribe rules 

and regulations to carry out title I of 

WIOA. 

The law includes a common 

performance accountability system, 

consisting of six statutory primary 

indicators of performance, applicable to 

all WIOA core programs: adult, 

dislocated worker, and youth programs 

under title I of WIOA; the Adult 

Education and Family Literacy Act 

(AEFLA) program under title II; the 

Employment Service (ES) program 

authorized under the Wagner-Peyser Act 

as amended by WIOA title III; and the 

Vocational Rehabilitation (VR) program 

authorized under title I of the 

Rehabilitation Act as amended by WIOA 

title IV. WIOA also requires that the six 

statutory primary indicators of 

performance apply to four WIOA title I, 

DOL-administered non-core programs: 

INA programs (WIOA sec. 166(e)(5)), the 

NFJP (WIOA sec. 167(c)(2)(C)), Job 

Corps (WIOA sec. 159(c)(1)), and 

YouthBuild (WIOA sec. 171(f)(1)) 

(hereinafter ‘‘title I non-core programs’’). 

Although not mandated by WIOA, the 

Department requires several other DOLadministered WIOA title I non-core 

programs and projects also to report on 

the WIOA sec. 116 primary indicators of 

performance. For example, the 

Department requires Reentry 

Employment Opportunities (REO) grants 

(authorized under WIOA sec.169 and 

annual appropriation acts) to report on 

the sec. 116 primary indicators of 

performance. The Department 

anticipates applying the definition of 

the effectiveness in serving employers 

performance indicator adopted in this 

final rule to those programs. 

In WIOA, Congress directed the 

Department to issue regulations 

implementing statutory requirements to 

ensure that the public workforce system 

operates as a comprehensive, integrated, 

and streamlined system in order to 

provide pathways to prosperity and 

continuously improve the quality and 

performance of its services to job 

seekers and employers. On August 19, 

2016, the Department issued the 

Workforce Innovation and Opportunity 

Act; Final Rule (DOL WIOA Final Rule) 

to implement WIOA for the title I noncore programs (81 FR 56071). That same 

day the Departments jointly issued the 

Workforce Innovation and Opportunity 

Act; Joint Rule for Unified and 

Combined State Plans, Performance 

Accountability, and the One-Stop 

System Joint Provisions; Final Rule 

(Joint WIOA Final Rule) to implement 

WIOA for the six core programs (81 FR 

55791). 

The WIOA statute defines five of the 

six performance indicators. However, 

the statute did not specify how the sixth 

performance indicator, effectiveness in 

serving employers, should be measured. 

Instead, WIOA directed the Departments 

to develop a definition for the 

effectiveness in serving employers 

performance indicator (WIOA sec. 

116(b)(2)(A)(iv)).1 At that time, the 

Departments concluded that there was 

not enough evidence of what should be 

measured to assess the effectiveness in 

serving employers to adopt a standard 

definition. Therefore, in the Joint WIOA 

Final Rule, the Departments determined 

that it was prudent to pilot three 

definitions for the sixth performance 

indicator to test the feasibility and rigor 

of three approaches to measure a State’s 

effectiveness in serving employers 

through its WIOA-authorized core 

programs. As discussed more fully 

below, during the pilot period, the 

Department, through guidance 2 and the 

‘‘DOL-Only Performance 

Accountability, Information, and 

Reporting System’’ Information 

Collection Request (ICR), approved 

under Office of Management and Budget 

(OMB) Control Number 1205–0521, 

required the WIOA title I non-core 

programs to report on Retention with 

the Same Employer, one of the three 

definitions being piloted by the six 

WIOA core programs. 

That pilot, as well as a study of the 

results from the pilot, are now complete. 

The definition in this final rule applies 

to both WIOA core programs—which 

are addressed in the concurrently 

published Workforce Innovation and 

Opportunity Act Effectiveness in Serving 

Employers Performance Indicator; Joint 

Final Rule (RIN 1205–AC01) 

(hereinafter referred to as Joint WIOA 

Effectiveness in Serving Employers 

Final Rule)—as well as the four title I 

non-core programs, which are addressed 

in this final rule. 

WIOA secs. 159(c)(1) (Job Corps), 

166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 

171(f)(1) (YouthBuild) specify that 

performance for these title I non-core 

programs must be assessed using the 

primary indicators of performance in 

sec. 116 of WIOA. On September 14, 

2022, the Departments published a joint 

NPRM in which the Departments 

proposed to codify the approach for 

evaluating a WIOA core program’s 

effectiveness in serving employers (87 

FR 56318) (Joint WIOA Effectiveness in 

Serving Employers NPRM). On the same 

day, DOL published an NPRM in which 

the Department proposed to codify the 

approach for evaluating a WIOA title I 

non-core program’s effectiveness in 

serving employers (87 FR 56340) 

(hereinafter referred to as the NPRM). 

B. Summary of Changes From NPRM to 

Final Rule of the Effectiveness in 

Serving Employers Performance 

Indicator for WIOA Non-Core Programs 

This final rule implements Retention 

with the Same Employer as the 

definition for effectiveness in serving 

employers for WIOA title I non-core 

programs, as proposed in the NPRM, 

with two changes from the NPRM made 

in response to comments received on 

the Joint WIOA Effectiveness in Serving 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13597 

3This joint guidance, ‘‘Performance 

Accountability Guidance for Workforce Innovation 

and Opportunity Act (WIOA) Title I, Title II, Title 

III, and Title IV Core Programs,’’ was concurrently 

issued on December 19, 2016, as TEGL No. 10–16 

by the Department of Labor, and as Office of Career, 

Technical, and Adult Education Program 

Memorandum 17–2 and Rehabilitation Services 

Administration Technical Assistance Circular 

(TAC) TAC–17–01 by the Department of Education. 

4S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act,’’ Jan. 2021, 

https://wdr.doleta.gov/research/FullText_

Documents/ETAOP2021-17%20Measures%20

of%20Effectiveness%20

in%20Serving%20Employers_Final%20Report.pdf 

(hereinafter ‘‘Final Pilot Study Report’’). 

5See id. at 3–6 (stating that validity ‘‘is used to 

assess whether you are measuring what you intend 

to measure’’; that reliability ‘‘refers to the ability to 

maintain consistency in data collection over time 

and across the organizations collecting the data’’; 

that practicality means that the measure ‘‘must be 

relatively uncomplicated and simple to administer 

to avoid threats to reliability and validity’’ and 

‘‘must be practical to use in administrating 

programs’’; and that unintended consequences are 

‘‘negative consequences or behaviors that result 

. . . such as the displacement of other goals or 

conflict between goals’’). 

6See Joint WIOA Final Rule, 81 FR 55791, 

55845–55846 (discussing the pilot and the three 

proposed definitions for the effectiveness in serving 

employers performance indicator); ETA, TEGL No. 

10–16, ‘‘Performance Accountability Guidance for 

Workforce Innovation and Opportunity Act (WIOA) 

Title I, Title II, Title III, and Title IV Core 

Programs,’’ Dec. 19, 2016, https://wdr.doleta.gov/ 

directives/corr_doc.cfm?DOCN=8226; ETA, TEGL 

No. 14–18, ‘‘Aligning Performance Accountability 

Reporting, Definitions, and Policies Across 

Workforce Employment and Training Programs 

Administered by the U.S. Department of Labor 

(DOL),’’ Mar. 25, 2019, https://wdr.doleta.gov/ 

directives/corr_doc.cfm?docn=7611 (referring the 

title I non-core programs to TEGL No. 10–16 for a 

description of the pilot). 

Employers NPRM, which were also 

relevant to the NPRM. 

Specifically, in the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule the Departments determined 

that supplemental wage information 

plays a vital role when wage records are 

either unavailable for a participant or 

difficult to obtain. For this reason, the 

Departments revised § 677.155(a)(1)(vi) 

and (c)(6) in the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule to remove the requirement 

that wage records be used to document 

a participant’s employment status for 

purposes of the effectiveness in serving 

employers performance indicator, 

thereby allowing for the use of 

supplemental wage data. Second, the 

Joint WIOA Effectiveness in Serving 

Employers Final Rule definition for 

effectiveness in serving employers adds 

the requirement that the participant 

must have been in ‘‘unsubsidized 

employment’’ in the second and fourth 

quarters after exit. The reasons for 

changing the Joint WIOA Effectiveness 

in Serving Employers Final Rule text 

also apply to the WIOA title I non-core 

programs. Therefore, the changes to the 

§ 677.155 regulatory text have been 

carried over to this final rule at revised 

§ 684.460(a)(6) for INA Youth, revised 

§ 684.620(a)(6) for INA, revised 

§ 686.1010(f) for Job Corps, and revised 

§ 688.400(f) for YouthBuild. 

C. Effectiveness in Serving Employers 

Performance Indicator Approaches for 

WIOA Core Programs, as Relevant to 

WIOA Title I Non-Core Programs 

Section 677.155 sets forth the primary 

indicators by which the performance of 

core programs is evaluated, as required 

by WIOA sec. 116(b)(2)(A)(i). These 

primary indicators of performance apply 

to the core programs described in WIOA 

sec. 116(b)(3)(A)(ii), as well as to the 

title I non-core programs. These primary 

indicators of performance create a 

common language shared across the 

programs’ performance metrics, support 

system alignment, enhance 

programmatic decision making, and 

help participants make informed 

decisions related to training. Sections 

116(b)(2)(A)(i)(VI) and (b)(2)(A)(iv) of 

WIOA require the Secretaries of Labor 

and Education to jointly develop and 

establish the sixth performance 

indicator—effectiveness in serving 

employers—after consultation with 

representatives of State and local 

governments, business and industry, 

and other interested parties. 

In the Joint WIOA Effectiveness in 

Serving Employers NPRM, the 

Departments proposed to define the 

effectiveness in serving employers 

performance indicator in 

§ 677.155(a)(1)(vi) as the percentage of 

participants with wage records who 

exited a program and were employed by 

the same employer in the second and 

fourth quarters after exit and specified 

that this is a statewide indicator 

reported by one core program on behalf 

of all six core programs in the State. In 

the NPRM, the Department proposed 

this same language for the WIOA title I 

non-core programs; however, as 

proposed in the NPRM, the statewide 

aspect of the proposed definition in the 

Joint WIOA Effectiveness in Serving 

Employers NPRM would not apply to 

WIOA title I non-core programs. The 

Department sought comment on how 

the proposed definition of effectiveness 

in serving employers performance 

indicator would impact the WIOA title 

I non-core programs. 

Prior to selecting this single approach 

to propose, the Departments selected 

three approaches for measuring 

effectiveness in serving employers to be 

piloted by WIOA core programs. The 

Departments assessed the use of each of 

the three approaches with a focus on 

minimizing employer burden and using 

information that would provide an 

accurate picture of how well the public 

workforce system serves employers. 

Under the guidance of the 

Departments,3 each State piloted its 

choice of any two of three definitions 

for the effectiveness in serving 

employers performance indicator for 

WIOA core programs: (1) Retention with 

the Same Employer: Percentage of 

participants with wage records who 

exited from WIOA core programs and 

were employed by the same employer in 

the second and fourth quarters after exit; 

(2) Repeat Business Customer: 

Percentage of employers who have used 

WIOA core program services more than 

once during the last three reporting 

periods; and (3) Employer Penetration: 

Percentage of employers using WIOA 

core program services out of all 

employers in the State. 

The Departments assessed the pilot 

through a DOL contract that resulted in 

a final report titled Measuring the 

Effectiveness of Services to Employers: 

Options for Performance Measures 

under the Workforce Innovation and 

Opportunity Act (Final Pilot Study 

Report).4 Specifically, the study 

assessed each approach to defining the 

effectiveness in serving employers 

performance indicator for validity, 

reliability, practicality, and unintended 

consequences.5 Though the study did 

not definitively recommend one 

approach, in assessing the study’s 

findings for each of the three 

approaches of the effectiveness in 

serving employers performance 

indicator, the Departments concluded 

that the Retention with the Same 

Employer approach provides a valid and 

reliable approach to measuring the 

indicator, while also placing the least 

amount of burden on States to 

implement. 

D. Effectiveness in Serving Employers 

Performance Indicator for WIOA Title I 

Non-Core Programs 

Although the four WIOA title I noncore programs discussed in this rule— 

Job Corps, INA, NFJP, and YouthBuild— 

did not participate in the core program 

pilot, these title I non-core program 

fund recipients (i.e., Job Corps 

contractors and INA, NFJP, and 

YouthBuild grantees) have been 

required to report on Retention with the 

Same Employer since 2019, following 

the issuance of Training and 

Employment Guidance Letter (TEGL) 

No. 14–18 on March 25, 2019.6 In TEGL 

No. 14–18, the Department 


ddrumheller on DSK120RN23PROD with RULES1
13598 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

7ETA, Training and Employment Notice (TEN) 

No. 08–16, ‘‘Implementation of an Integrated 

Performance Reporting System for Multiple 

Employment and Training Administration (ETA) 

and Veterans’ Employment and Training Service 

(VETS) Administered Programs,’’ Aug. 24, 2016, 

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

08-16.pdf; ETA, TEN No. 40–16, ‘‘Workforce 

Integrated Performance System (WIPS) User 

Resource Library Information Page,’’ Apr. 11, 2017, 

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

40-16_Acc.pdf.; ETA, TEGL No. 14–18, ‘‘Aligning 

Performance Accountability Reporting, Definitions, 

and Policies Across Workforce Employment and 

Training Programs Administered by the U.S. 

Department of Labor (DOL),’’ Mar. 25, 2019, https:// 

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

8ETA, ‘‘Workforce Integrated Performance 

System (WIPS),’’ https://www.dol.gov/agencies/eta/ 

performance/wips (last visited October 30, 2023). 

9Specifically, the programs are required to report 

the Social Security Number (SSN) from the relevant 

participants who chose to disclose their SSN in 

order to obtain an unemployment insurance (UI) 

wage record match or may use available 

supplemental wage information, as directed in 

program-specific guidance. These data are used to 

identify whether a program participant’s employer 

is the same in the second and fourth quarters after 

exit from the program. 

implemented WIOA’s performance 

reporting requirements by requiring the 

title I non-core programs to use the 

Retention with the Same Employer 

definition of the effectiveness in serving 

employers performance indicator. 

Under this final rule, the WIOA title 

I non-core programs will be subject to 

the same data collection and reporting 

requirements as they have been under 

TEGL No. 14–18. The TEGL specified 

that, starting in Program Year (PY) 2018 

(or the point at which wage matching 

data becomes available to the program), 

the Job Corps, INA, NFJP, and 

YouthBuild programs were to begin 

tracking the effectiveness in serving 

employers performance indicator using 

the Retention with the Same Employer 

definition. 

Consistent with related guidance 

issued in PYs 2016, 2017, and 2018,7

these programs were required to use the 

Workforce Integrated Performance 

System (WIPS), the online performance 

reporting system for the Department’s 

employment and training grants,8 to 

submit information that would be used 

for calculating the effectiveness in 

serving employers performance 

indicator.9 These requirements are all 

included in an existing information 

collection, the WIOA Participant 

Individual Record Layout (PIRL) (ETA 

9172), in the ‘‘DOL-Only Performance 

Accountability, Information, and 

Reporting System’’ ICR, approved under 

OMB Control Number 1205–0521. 

By codifying the use of Retention with 

the Same Employer for this indicator, 

this final rule requires programs to use 

already-collected data and the existing 

performance reporting system, WIPS. 

Thus, programs will not have additional 

burden to collect and report on any 

other type of additional data to calculate 

and report results for other possible 

approaches to defining this performance 

indicator. 

Finally, TEGL No. 14–18 also put 

forth program-specific timelines for 

implementation of the WIOA reporting 

requirements factoring in data lags 

associated with the performance 

indicator as well as known 

implementation actions such as case 

management system development, 

which are further detailed in each 

program-specific section in the sectionby-section discussion of the final rule 

below (Section II). 

In summary, for the Job Corps, INA, 

and YouthBuild programs, this final 

rule codifies in regulation the existing 

practice of reporting Retention with the 

Same Employer in order to measure a 

program’s effectiveness in serving 

employers and adds the option for 

WIOA title I grantees and Job Corps 

contractors to choose to provide 

supplemental wage information on the 

measure. The Department will use this 

same definition for the effectiveness in 

serving employers performance 

indicator for the NFJP program. Existing 

guidance in Appendix VI of TEGL No. 

14–18 addresses the use of 

supplemental wage information for 

WIOA core performance indicators, so 

the use of supplemental wage 

information will not be new to the 

regulated community. The Department 

intends to issue updated guidance 

regarding use of supplemental wage 

information specifically for the 

effectiveness in serving employers 

performance indicator for these 

programs. 

In the NPRM, the Department 

solicited comments to better inform 

implementation of the effectiveness in 

serving employers performance 

indicator for these programs, 

particularly challenges that they might 

face in implementing this proposed 

definition of the effectiveness in serving 

employers performance indicator; 

challenges they have faced under TEGL 

No. 14–18; and other definitions that 

might be more suitable. 

E. Public Comments Received on the 

Proposed Rule 

The NPRM invited written comments 

from the public concerning the 

proposed rule through November 14, 

2022. No commenters requested an 

extension of the comment period. The 

comments received may be viewed by 

entering docket number ETA–2022– 

0005 at https://www.regulations.gov. 

The Department received 18 

comments in the docket for this 

rulemaking. Of these 18 comments, 10 

were unique, 6 were form letter copies, 

1 was a duplicate, and 1 was outside the 

scope of the proposed rule. Public sector 

commenters included State and local 

government agencies and one-stop 

operators. Non-profit sector commenters 

included professional associations and 

career or employment services 

providers. The Department also received 

comments from anonymous 

commenters. 

This section of the final rule provides 

a general overview of the comments 

received. Section II (Section-by-Section 

Discussion of this Final Rule) describes 

the comments in more detail and 

provides the Department’s responses to 

them. 

Some commenters expressed overall 

concerns about and opposed the 

proposed Retention with the Same 

Employer definition of the effectiveness 

in serving employers performance 

indicator. Other commenters suggested 

that the Department consider other 

potential approaches for defining the 

effectiveness in serving employers 

performance indicator. The 

Department’s responses to concerns 

about Retention with the Same 

Employer definition and suggestions for 

alternative are discussed below in 

Section II.A. 

With regard to impact or concerns 

about the four specific WIOA title I noncore programs subject to this rule, the 

Department received a total of three 

comments. The Department did not 

receive any comments on the impacts of 

the proposed Retention with the Same 

Employer effectiveness in serving 

employers definition on three of the 

four programs: NFJP, Job Corps, or 

YouthBuild programs. The proposed 

regulatory changes for the INA programs 

received one comment submission that 

expressed concerns about reporting 

burden for INA programs under the 

proposed rule and requested that the 

Department consult with the WIOA sec. 

166 programs, the Native American 

Employment and Training Council 

(NAETC), and Tribal officials to develop 

and establish the effectiveness in 

serving employers performance 

indicator. Another commenter 

discussed the impact of the proposed 

rule on non-core WIOA programs 

providing employment services to two 

specific target demographics: justiceinvolved individuals and older workers. 

The Department’s responses to the INArelated comments are discussed below 

in Section II.B and responses to 

comments for programs serving justiceVerDate Sep<11>2014 15:57 Feb 22, 2024 Jkt 262001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\23FER1.SGM 23FER1

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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13599 

involved individuals and older workers 

are discussed below, in Section II.F. 

II. Section-by-Section Discussion of 

This Final Rule 

Section II of this final rule provides 

the Department’s responses to 

comments and explains the two changes 

in the final rule from the proposed rule. 

Section II.A discusses comments 

received on the proposed definition for 

and implementation of the effectiveness 

in serving employers performance 

indicator for the WIOA title I non-core 

programs. Sections II.B, II.C, II.D, and 

II.E address comments received on the 

proposed changes to ETA’s INA 

program regulations (20 CFR part 684), 

NFJP regulations (20 CFR part 685), Job 

Corps program regulations (20 CFR part 

686), and YouthBuild program 

regulations (20 CFR part 688) to adopt 

Retention with the Same Employer as 

the definition for the effectiveness in 

serving employers performance 

indicator, respectively. Section II.F 

discusses comments received relating to 

impacts that this final rule could have 

on other non-core WIOA programs for 

which the Department has applied the 

WIOA sec. 116 primary indicators of 

performance. 

A. Comments Received on the 

Effectiveness in Serving Employers 

Performance Indicator, as Relevant to 

WIOA Title I Non-Core Programs 

Support for Retention With the Same 

Employer Definition 

Comments: Expressing support for 

Retention with the Same Employer, one 

commenter argued that Retention with 

the Same Employer is easy to administer 

and consistent across WIOA programs. 

Similarly, another commenter stated 

that it would be the least burdensome of 

the WIOA core programs’ three piloted 

approaches to administer. 

Department Response: We appreciate 

commenters supporting Retention with 

the Same Employer as the definition for 

effectiveness in serving employers. We 

agree that this definition best aligns 

with WIOA employment performance 

indicators by using existing PIRL terms 

and data elements (i.e., use of 

‘‘participants,’’ ‘‘unsubsidized 

employment,’’ and ‘‘exit’’) and 

measuring the same quarters as the 

employment rate indicators (i.e., the 

second and fourth quarters after 

program exit). Additionally, we agree 

that Retention with the Same Employer 

is the least burdensome definition of the 

WIOA core programs’ three piloted 

measures, effectively illustrates the 

workforce system’s ability to serve 

employers by reducing new employee 

turnover, and minimizes the burden on 

WIOA title I non-core grantees and Job 

Corps contractors and employers in 

measuring effectiveness in serving 

employers. 

Retention With the Same Employer and 

Job Seeker/Worker Mobility 

Comments: One commenter expressed 

concern that the Retention with the 

Same Employer measure could limit job 

seekers’ ability to move from low-wage 

jobs into higher wage jobs. Another 

commenter stated that measuring 

success through Retention with the 

Same Employer is contrary to American 

Job Center (AJC) practice and DOL 

guidance encouraging job seekers to 

work to gain skills and experience that 

allow them to move to higher paying 

jobs. A third commenter also opposed 

the proposed definition, stating that 

service providers do not play a 

significant role in how long a 

participant decides to stay with the 

same employer. Another commenter 

stated that high housing costs and 

inflation have caused many workers to 

move and change employers, and 

Retention with the Same Employer is a 

particularly undesirable measure in 

States where many workers are 

transient. 

Department Response: In the NPRM, 

the Department acknowledged that the 

limitations for Retention with the Same 

Employer could include the unintended 

consequences that this approach may be 

at odds with an employee seeking a 

higher paying job or employment 

benefits, and the possibility that the 

performance outcome for this indicator 

might not be the result of an employer 

receiving a service from the workforce 

development system. The Department 

agrees that many circumstances affect 

an employer’s retention of employees, 

some of which may be outside the 

purview of WIOA services, including 

the general economy and business 

landscape of an area, which may 

include seasonal employers, transient 

worker populations, or industries with 

cyclical work cycles that could impact 

calculated retention rates. However, the 

Department determined that Retention 

with the Same Employer is the preferred 

approach of measuring effectiveness in 

serving employers, due to the 

prioritization of and weight placed on 

the advantages of Retention with the 

Same Employer: stable data collection 

mechanism, alignment with other 

employment performance indicators, 

and demonstrating maintained 

relationships between employers and 

employees. For these reasons, the 

Department defines effectiveness in 

serving employers for WIOA title I noncore programs using Retention with the 

Same Employer in this final rule. 

The Department notes that 

individuals who move to a new job with 

the same employer would be considered 

a successfully retained participant 

under this indicator because the 

indicator measures retention ‘‘with the 

same employer’’ in the second and 

fourth quarters; there is no requirement 

the participant remain in the same 

employment status (e.g., full-time vs. 

part-time) or position with the employer 

to count as a positive outcome. The 

Department also notes that the employer 

that will be measured for purposes of 

this indicator for this particular 

participant is not always the same 

employer that received services from a 

WIOA title I non-core program and 

initially hired the participant. 

The Department acknowledges that 

individuals may leave for higher wages 

with a new employer, but WIOA title I 

non-core grantees and program 

operators can seek to address these 

concerns in a variety of ways that are 

beneficial to both the employer and the 

participant, such as striving to find 

quality job placements or working with 

employers to develop career pathways 

and good jobs that more effectively 

incentivize participants they have hired 

to maintain their employment with the 

same employer. Despite these concerns, 

the Department is adopting the 

Retention with the Same Employer 

definition of the indicator for multiple 

reasons, specifically because it: is the 

least burdensome since it uses data 

elements reported by WIOA title I noncore grantees and Job Corps contractors 

for other performance indicators; has a 

stable data collection mechanism in that 

the requisite data are already reported 

via an OMB-approved information 

collection request; aligns with other 

employment performance indicators in 

that it uses similar terminology and data 

elements; and demonstrates maintained 

relationships between employers and 

employees, thereby demonstrating that 

the services provided by the WIOA 

programs not only meet the long-term 

needs of the participants but also the 

needs of employers in each State. The 

Department gives particular weight to 

reporting burden, especially for the 

competitive grantees with generally less 

reporting capacity than States, in order 

to allow WIOA title I non-core grantees 

and Job Corps contractors to focus on 

services and improve the accuracy and 

completeness of the data. 


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13600 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

Retention With the Same Employer and 

Other Aspects of Effectiveness in 

Serving Employers 

Comments: One commenter asserted 

that Retention with the Same Employer 

has no mechanism for linking the 

retention of a particular employee with 

instances of employer services being 

provided, therefore only indirectly 

reflecting effectiveness in serving 

employers and failing to inform strategic 

action to improve performance. 

Another commenter noted Retention 

with the Same Employer does not speak 

to ‘‘acuity’’ of a job placement (e.g., how 

difficult a position was to fill, how in 

demand the position is, whether the role 

was seasonal specific and not intended 

to maintain retention, rarity of skill set, 

or time to hire). 

One commenter asserted that the 

proposed measure is not a good 

indicator of WIOA program performance 

because it is significantly impacted by 

employers’ choices as to wages, working 

conditions, and workplace culture, over 

which WIOA programs have little 

control. 

Another commenter expressed 

concern that Retention with the Same 

Employer would not capture all services 

provided to employers by workforce 

systems; in particular, services to 

employers that are not attached to 

WIOA-funded job seekers. 

Department Response: The 

Department recognizes that there are 

many factors beyond the control of the 

programs that can impact a participant’s 

retention with the same employer. 

However, as noted previously, the 

Department has determined that an 

indication that an employee maintains 

employment with the same employer in 

both the second and fourth quarters 

after exiting from a WIOA program 

demonstrates a level of success for 

employers (i.e., successfully preparing 

participants to fill jobs that meet 

employers’ needs), as well as a success 

for WIOA service providers in matching 

the employer with the job seeker. 

Regarding the commenter’s concern 

that it would be inappropriate to only 

measure success for WIOA-enrolled 

customers, the Department notes that 

the services delivered by WIOA-funded 

program operators routinely benefit the 

broader employer community by 

increasing basic skills of the candidate 

pool, enhancing free job posting and 

search tools, and preparing workplaces 

and job seekers with disabilities for 

successful employment. Program 

participants who receive services that 

successfully prepare them to fill jobs 

that meet employers’ needs benefit all 

the employers in the local economy, 

regardless of whether a specific 

employer directly received services 

from a grantee. Therefore, the 

Department has determined that 

excluding employers that have not 

received a service from a grantee under 

a non-core program or a Job Corps 

contractor within the reporting period is 

not an appropriate holistic measure of 

the workforce system’s impact on 

Retention with the Same Employer. 

In fact, such an approach would be 

contrary to the purpose of the 

performance measure itself. For 

example, it would be possible for a 

participant to obtain employment as a 

result of services received under a 

WIOA title I non-core program, but 

change jobs within the first quarter after 

exiting the program to a new job where 

the participant remained for at least a 

year. In this final rule, the Department 

defines the effectiveness in serving 

employers performance indicator as the 

participant’s Retention with the Same 

Employer in the second and fourth 

quarters after exiting the program. In 

other words, in this example, the 

employer that will be measured for 

purposes of this indicator for this 

particular participant is not the same 

employer that received services from a 

WIOA title I non-core program and 

initially hired the participant. Regarding 

concerns that the Retention with the 

Same Employer indicator does not 

measure the acuity of the WIOA 

participant’s job placement, the 

Department acknowledges that this 

metric is one of many aspects of 

effectiveness in serving employers but 

believes that retention is an important 

aspect to measure as stated by employer 

representatives during stakeholder 

engagements. The Department 

encourages grantees and contractors 

under WIOA title I non-core programs to 

also measure effectiveness in serving 

employers using other methods for their 

own program management purposes, 

though these other methods are not 

required to be reviewed or submitted to 

the Department. 

Regarding whether the proposed 

indicator measures all aspects of 

effectiveness in serving employers, the 

Department believes there are many 

aspects to a program’s effectiveness in 

serving employers, some of which are 

very difficult to quantify and report. 

Therefore, the Department chose one 

aspect of effectiveness that employers 

stated would be beneficial and can be 

measured across WIOA core programs 

and title I non-core programs with 

minimal burden to employers— 

employee retention. 

Retention With the Same Employer Is 

Not a Good Fit for Certain Sectors 

Comments: A commenter argued that 

Retention with the Same Employer 

would be particularly problematic for 

seasonal employment in agriculture, 

hospitality, and construction. This 

commenter urged the Department to 

modify the statistical adjustment model 

to account for fluctuations in the 

seasonal workforce. 

Department Response: In cases of 

temporary seasonal work, WIOA title I 

non-core grantees and Job Corps 

contractors should strive to place 

participants into long-term employment 

opportunities when possible. While a 

seasonal employee may not be a positive 

outcome in the indicator, the 

Department understands this concern 

and does not expect grantees and Job 

Corps contactors to achieve a 100 

percent positive outcome. The 

Department will take these factors into 

account when analyzing a grantee’s 

performance on this indicator. For 

example, the Department could exercise 

its discretion when establishing 

performance goals to set feasible targets 

for the grantee to meet taking into 

account that programs that have high 

placement in seasonal employment 

might have a lower retention rate than 

other programs. Furthermore, for the 

INA and NFJP programs, the WIOA 

statute requires the Department to use a 

statistical adjustment model, when 

practicable. When the Department uses 

a statistical adjustment model for 

establishing effectiveness in serving 

employers indicator targets for WIOA 

title I non-core programs, the 

Department anticipates that the 

statistical adjustment model will adjust 

for these issues. 

Performance Goals for Retention With 

the Same Employer 

Comment: One commenter asserted 

that, while the proposed measure might 

be the least burdensome of the piloted 

measures, meeting performance goals 

under it would be challenging and 

negate any cost savings. 

Department Response: The 

Department recognizes that drawbacks 

to this definition exist for the WIOA 

title I non-core programs, especially due 

to the unique nature of each of these 

programs. Nevertheless, the Department 

believes that the benefits of this 

approach outweigh those drawbacks. As 

explained above, the benefits of this 

definition are that Retention with the 

Same Employer will be straightforward 

to implement because the measure uses 

already-collected data and the existing 

performance reporting system, thereby 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13601 

10ETA, TEGL No. 14–18, ‘‘Aligning Performance 

Accountability Reporting, Definitions, and Policies 

Across Workforce Employment and Training 

Programs Administered by the U.S. Department of 

Labor (DOL),’’ p. 8, Mar. 25, 2019, https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

avoiding any additional burden. 

Moreover, the Department intends to 

mitigate any drawbacks, if necessary, by 

exercising its discretion, to establish 

appropriate performance goals and 

place appropriate weight on the 

effectiveness in serving employers 

performance indicator. WIOA title I 

non-core programs that serve youth, for 

example, focus on employment, career 

readiness, retention in education, and 

life skills to support youth participants 

in obtaining academic and career skills 

necessary to be successful in the job 

market, and success for youth is more 

likely to include progression in jobs. 

Recognizing the unique circumstances 

WIOA title I non-core programs may 

face, the Department expects variability 

in the reported outcomes from program 

to program, especially for programs 

serving youth, and intends to take this 

variability into account when 

negotiating levels of performance. These 

considerations are consistent with TEGL 

No. 14–18 guidance for applicability of 

primary performance indicators, which 

specifies that, as a general matter, 

participants’ outcomes on the applicable 

primary indicators of performance may 

be relevant for negotiating levels of 

performance, decisions related to 

contract awards and renewal, and the 

award of competitive grants.10

Other Approaches To Measuring 

Effectiveness in Serving Employers 

Comments: One commenter opposed 

to the proposed Retention with the 

Same Employer definition and stated 

that the other piloted measures for the 

WIOA core programs more directly 

relate to WIOA employer services 

delivered. The commenter stated that 

the Repeat Business Customer measure 

would reflect the employer’s perception 

or experience of the quality of services 

received and that the Employer 

Penetration measure would represent 

the level of impact of employer services 

in a State. Another commenter remarked 

that Retention with the Same Employer 

was the least selected approach among 

the piloted measures for the WIOA core 

programs. 

Another commenter recommended 

that the Department review other 

methods of assessing effectiveness in 

serving employers, including: 

measuring the use of incumbent worker 

training to serve local businesses, scored 

based on the overall percentage of 

WIOA funds used and the number of 

businesses served. Another commenter 

recommended that effectiveness in 

serving employers should positively 

count any individual who is employed 

in the fourth quarter after exit and who 

has improved either their wages, 

benefits, or working conditions since 

the second quarter after exit, rather than 

only those with the same employer. 

Another commenter asserted that the 

proposed rule does not establish an 

objective standard for measuring 

effectiveness in serving employers, and 

suggested that the measure could 

address timeliness, professionalism, or 

English proficiency. 

Department Response: The 

Department appreciates these 

suggestions and acknowledges the 

potential benefits of the different 

proposed approaches for measuring the 

effectiveness in serving employers 

indicator, however the Department does 

not think that these metrics apply well 

to the WIOA title I non-core programs 

due to differences in program design. 

Additionally, the Department 

considered the possibility of 

implementing more than one metric for 

measuring effectiveness in serving 

employers. However, the Department 

determined a single indicator approach 

is most logistically feasible due to its 

alignment with the existing performance 

indicator structure (i.e., the performance 

indicators for employment in the second 

and fourth quarters after exit, which are 

existing performance indicators on 

which all programs already report) and 

its reporting burden to WIOA title I noncore program grantees and contractors 

and employers relative to the other 

definitions piloted by the core 

programs. 

The suggested alternative approaches 

mentioned in the comments, such as 

Employer Penetration and Repeat 

Business Customer, were ultimately not 

selected as the definition for the 

effectiveness in serving employer 

performance indicator due to: (1) the 

nature of a very low employer 

penetration rate compared to all 

businesses within a State, leading to 

difficulties in improving the measure 

over time; and (2) the fact that a 

satisfied business may not need to 

partner with the State workforce system 

again. Additionally, these alternative 

measures are not based on existing 

standardized reporting mechanisms and 

would be impractical to apply to all 

grantees across WIOA core programs 

and WIOA title I non-core programs. 

Regarding the commenter’s 

observation that the fewest number of 

States selected Retention with the Same 

Employer measure for the WIOA core 

program pilot and the commenter’s 

interpretation that this lowest adoption 

rate indicates that States did not think 

it was a useful measure for the WIOA 

core program, the Department did not 

inquire why States chose certain 

measures during the pilot period and 

notes that there is no evidence that a 

lower adoption rate correlates with a 

lack of usefulness in measuring 

effectiveness in serving employers in 

the State . The Department notes that 

Retention with the Same Employer was 

the easiest measure for States to 

implement for the WIOA core programs 

based on it being calculated from 

existing PIRL elements. Therefore, it is 

plausible that fewer States chose to pilot 

this measure for WIOA core programs 

because they already knew how to 

calculate this measure and would not 

have needed to test how to implement 

it in their State. They may have wanted 

to assess how the two other pilot 

measures would work for WIOA core 

programs. 

The Department appreciates the 

commenters’ ideas for additional data 

points to be collected and encourages 

WIOA title I non-core program grantees 

and Job Corps contractors to do so 

where it aids in guiding service delivery 

policies. Specifically, a commenter 

recommended including collecting and 

reporting data on: the number of job 

orders posted and number of candidates 

referred per posting; use of incumbent 

worker training (by percentage of WIOA 

funds used and number of businesses 

served); number, array, and availability 

of business services offered by a 

workforce development board or AJC; 

funding passed from workforce 

development boards or AJCs through to 

local businesses; or number of 

businesses engaged with Registered 

Apprenticeship opportunities through 

workforce development boards or AJCs. 

The Department declines to use these 

additional data points in defining the 

effectiveness in serving employers 

indicator because they are not 

applicable to all of the WIOA title I noncore programs and would, therefore, not 

further the goal of consistent 

performance measurement across all 

WIOA programs. In cases where the 

metric is a count of services, these 

suggested data collection points would 

merely measure the quantity of services 

provided to employers rather than the 

effectiveness of those services rather 

than quality or effectiveness. The 

Department believes these suggestions 

would measure outputs compared to an 

outcome. In most cases, an output like 

the number of services provided may 

not correlate to the ultimate goal, 

placing and retaining quality employees 


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13602 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

11ETA’s WorkforceGPS technical assistance 

website provides access to materials from trainings 

and stakeholder engagements, including: (1) the 

Effectiveness in Serving Employers Resource Page 

accessible at https://

performancereporting.workforcegps.org/resources/ 

2018/01/29/21/13/Effectiveness-in-ServingEmployers-Resource-Page; (2) the 2019 Performance 

Accountability Training accessible at https://

performancereporting.workforcegps.org/resources/ 

2019/10/03/20/25/WIOA_2019_Performance_

Accountability_Training; and (3) the January 2020 

Peer Learning Group event accessible at https://

www.workforcegps.org/events/2020/01/13/17/40/ 

WIOA-Performance-Peer-Learning-GroupEffectiveness-in-Serving-Employers. 

12Annual performance reports can be found on 

ETA’s website. ETA, ‘‘Workforce Performance 

Results,’’ https://www.dol.gov/agencies/eta/ 

performance/results (last visited Oct 30, 2023). 

in this case, and therefore is not ideal 

for measuring effectiveness in serving 

employers. 

Regarding suggestions that the 

measure could address timeliness, 

professionalism, or English proficiency 

of participants, the Department has 

considered these approaches, but rejects 

them and declines to make revisions. 

These types of factors are subjective, not 

easily measurable, and may require the 

use of surveys. The Department notes 

that employer satisfaction surveys 

introduce a higher level of burden and 

potentially inconsistent results 

compared to the Retention with the 

Same Employer metric. Furthermore, 

during previous webinars and town 

halls with State workforce agencies, 

members of the employer community, 

and other stakeholders that the 

Departments held in September and 

October 2014 to inform the development 

of the Joint WIOA NPRM (80 FR 20609) 

and the Joint WIOA Final Rule (81 FR 

55848), employers specifically 

commented that they consider 

satisfaction surveys burdensome and 

recommended they not be used in this 

indicator. 

After careful consideration of public 

comment opportunities, ongoing 

stakeholder engagement efforts,11

review of WIOA core program pilot data 

and narrative input submitted since 

2017 through required annual 

performance reports for WIOA core 

programs,12 and a third-party study, the 

Department is not persuaded to change 

course and adopt either of the other 

alternative definitions for the 

effectiveness in serving employers 

performance indicator for the WIOA 

title I non-core programs. Instead, as 

discussed above, the Department 

concluded that the Retention with the 

Same Employer approach provided a 

valid and reliable approach to 

measuring the indicator while placing 

the least amount of burden on WIOA 

title I non-core program grantees and Job 

Corps contractors to implement. 

Data Sources for Retention With Same 

Employer 

Comment: One commenter stated that 

workforce programs may not receive 

hiring outcome information and may be 

unable to report data for performance 

measures. The commenter also 

expressed concern that wage records are 

not readily available for Federal, 

military, and self-employment, which 

could significantly impact the reported 

performance of States with high 

proportions of such employment. 

Department Response: The 

Department proposed that the 

effectiveness in serving employers 

indicator only include participants 

whose employment status is obtainable 

through wage records because wage 

records are the least burdensome 

records to use and they are the most 

standardized and statistically valid 

records available. Most employers are 

covered through unemployment 

insurance (UI) wage records and, 

therefore, wage records remain the most 

accurate and least burdensome method 

of calculating this indicator. 

However, the Department 

acknowledges that certain categories of 

employment, such as entrepreneurial 

employment, Federal employment, 

employment with the U.S. Postal 

Service and the military, and farmwork, 

are not reflected in State UI wage record 

databases. Additionally, participants are 

not required to provide Social Security 

numbers, which are needed to use wage 

records, to obtain services and some 

participants may be reluctant to share 

this information. 

To ensure that effectiveness in serving 

these additional employers is assessed, 

the Department concurs with 

commenters that the Retention with the 

Same Employer measure should be 

expanded to include the number of 

participants with wage records or 

supplemental wage information who 

exit during the reporting period and 

were employed by the same employer 

during the second quarter after exit and 

the fourth quarter after exit divided by 

the number of participants with wage 

records or supplemental wage 

information who exit and were 

employed during the second quarter 

after exit. Organizations collecting 

supplemental wage information for the 

purposes of calculating Retention with 

the Same Employer must be able to 

ascertain that the participant’s wage 

information reflects the same 

establishment (which may include tax 

documents, payroll records, employer 

records, and follow-up surveys from 

program participants) in both the 

second and fourth quarters after exit. 

The Department agrees that 

supplemental wage information could 

play a vital role when wage records are 

either unavailable for a participant or 

difficult to obtain. For this reason, we 

have revised proposed §§ 684.460(a)(6), 

684.620(a)(6), 686.1010(f), and 

688.400(f) to remove the requirement 

that wage records be used to document 

a participant’s employment status for 

purposes of the effectiveness in serving 

employers performance indicator. This 

change allows for the effectiveness in 

serving employers indicator to include 

the same data sources as other 

employment-based primary indicators 

of performance, including supplemental 

wage information. 

As noted above, the Department also 

wants to make clear the final rule uses 

the term ‘‘unsubsidized employment’’ to 

align the effectiveness in serving 

employers performance indicator to 

WIOA statutory language, specifically 

referring to unsubsidized employment 

in the second and fourth quarters after 

exit, which are key inputs to this 

indicator’s definition of Retention with 

the Same Employer. These changes to 

the § 677.155 regulatory text for WIOA 

core programs have been carried over to 

this final rule at revised § 684.460(a)(6) 

for INA Youth, revised § 684.620(a)(6) 

for INA, revised § 686.1010(f) for Job 

Corps, and revised § 688.400(f) for 

YouthBuild, where the regulatory text 

changes were intended to align with the 

§ 677.155 WIOA core programs 

definition of the effectiveness in serving 

employers performance indicator. 

B. Part 684—Indian and Native 

American Programs 

Part 684 governs the INA programs 

authorized under WIOA sec. 166, 

including programs for Native American 

youth (INA Supplemental Youth 

Services). The INA programs are 

intended to support employment and 

training activities for INA program 

participants in order to develop more 

fully academic, occupational, and 

literacy skills and to serve unemployed 

and low-income Indian and Native 

American populations seeking to 

achieve economic self-sufficiency 

consistent with the goals and values of 

the particular communities. Where 

active, INA programs are required onestop center partners. The Department 

administers these programs to maximize 

Federal commitment to support the 

growth and development of INAs and 

their communities as determined by 

representatives of such communities 

while meeting the applicable statutory 

and regulatory requirements. 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13603 

13ETA, TEGL No. 14–18, ‘‘Aligning Performance 

Accountability Reporting, Definitions, and Policies 

Across Workforce Employment and Training 

Programs Administered by the U.S. Department of 

Labor (DOL),’’ p. 8, Mar. 25, 2019, https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

14ETA, TEGL No. 04–19, ‘‘Waiver Authority for 

the INA Program and Implementation of Additional 

Indicators of Performance,’’ Aug. 29, 2019, https:// 

wdr.doleta.gov/directives/attach/TEGL/TEGL_4-19_

acc.pdf. 

WIOA sec. 166(h)(2) requires the 

Department to reach an agreement with 

the entities described in WIOA sec. 

166(c) as to the levels of performance 

required for each core indicator, 

including an effectiveness in serving 

employers performance indicator. The 

Department is also required to work 

with the NAETC to develop a set of 

performance indicators and standards 

for the INA adult and youth programs in 

addition to the primary indicators used 

to measure performance (WIOA sec. 

166(h)(1)(A)). 

Section III.F of this document, which 

pertains to Executive Order (E.O.) 13175 

(Indian Tribal Governments), 

summarizes details from the 

Department’s efforts to engage with INA 

program grantees and representatives of 

Tribal entities to explain how the 

indicator works and receive feedback on 

concerns INA program grantees may 

have with the effectiveness in serving 

employers performance indicator. 

In response to the NPRM, the 

Department received feedback on the 

proposed use of Retention with the 

Same Employer as the effectiveness in 

serving employers performance 

indicator for INA programs. 

Comments: A commenter expressed 

concern that the proposed rule would 

increase the reporting burden for the 

INA programs under WIOA sec. 166 due 

to the greater complexity of the 

performance measures used and urged 

the Department to consider how 

effectiveness in serving employers 

performance indicator will be 

implemented and managed. The 

commenter suggested that grantees 

should not be penalized if reported 

outcomes do not meet established target 

levels for the effectiveness in serving 

employers performance indicator, and 

that the indicator should instead serve 

only as ‘‘credit for job retention as 

required by the program.’’ 

The commenter also discussed the 

regulatory background requiring WIOA 

sec. 166 programs to be consistent with 

the self-determined economic and social 

development goals of the Indian, Alaska 

Native, and Hawaiian communities 

served, the Indian Self-Determination 

and Education Assistance Act, and the 

government-to-government relationship 

between the Federal Government and 

Indian Tribal Governments, and 

concluded that the effectiveness in 

serving employers performance measure 

does not meet the needs of the 

communities represented and should 

not be applied to the WIOA INA 

programs for adult and youth. 

Department Response: The 

Department appreciates concerns about 

reporting burden and acknowledges the 

challenges related to reporting for INA 

program grantees. The Department 

continues to work to ensure that all INA 

program grantees have the systems and 

resources needed to report the 

information required for this 

performance indicator. Part of this is 

accomplished by the Department 

continuing to conduct UI wage record 

matching on behalf of grantees for all 

employment-related performance 

indicators to mitigate any reporting 

burdens. Because the final rule adds the 

option for grantees to provide 

supplemental wage information, but 

does not require use of supplemental 

information, grantees may elect to rely 

on UI wage record matching as the 

Department conducts wage matching on 

behalf of INA grantees. The Department 

also notes that this final rule is 

codifying in regulations what is already 

required of grantees currently in the 

‘‘DOL-Only Performance 

Accountability, Information, and 

Reporting System’’ ICR, approved under 

OMB Control Number 1205–0521, and 

therefore grantees should not see an 

increased burden in reporting on the 

effectiveness in serving employers 

indicator. 

The Department acknowledges the 

commenter’s concern about the impact 

of the effectiveness in serving employers 

indicator on grantee performance 

reports. The Department intends to 

exercise its discretion to place 

appropriate weight on the effectiveness 

in serving employers performance 

indicator relative to other indicators of 

performance in assessing current or past 

grantee performance. For example, the 

Department could exercise its discretion 

when reviewing grantee performance 

during monitoring in order to take all 

indicators into consideration including 

the additional measures described in 

TEGL No. 04–19, ‘‘Waiver Authority for 

the INA Program and Implementation of 

Additional Indicators of Performance,’’ 

discussed further below. The 

Department could also exercise its 

discretion when setting criteria in grant 

competitions, such as limiting the 

weight the Department places on 

previous performance of this measure or 

only considering it alongside the 

employment goals, economic situation, 

and unique circumstances of the 

individuals the grantee serves. 

Recognizing the unique circumstances 

WIOA title I non-core programs may 

face, the Department expects variability 

in the reported outcomes from program 

to program, especially for programs 

serving youth, and intends to take this 

variability into account when 

establishing levels of performance. 

These considerations are consistent 

with TEGL No. 14–18 guidance for 

applicability of primary performance 

indicators, which specifies that, as a 

general matter, participants’ outcomes 

on the applicable primary indicators of 

performance may be relevant for 

establishing levels of performance, 

decisions related to contract awards and 

renewal, and the award of competitive 

grants.13

The Department also notes that WIOA 

sec. 166(i)(3) and the WIOA regulations 

at 20 CFR part 684, subpart I allow the 

Department to waive requirements, 

including performance requirements, 

that are inconsistent with the specific 

needs of INA grantees if certain 

conditions are met. Based on 

consultation with the NAETC, the 

Department issued guidance TEGL No. 

04–19, ‘‘Waiver Authority for the INA 

Program and Implementation of 

Additional Indicators of 

Performance,’’ 14 which explains how 

INA grantees can request waivers of 

performance indicators. With this final 

rule and consistent with this waiver 

guidance, the Department will accept 

and promptly make determinations on 

requests submitted by grantees for 

waivers of performance indicators, 

including effectiveness in serving 

employers, so that grantees can 

structure their performance indicators to 

best fit the economic circumstances of 

the communities served and improve 

positive outcomes. 

The Department appreciates the 

commenter’s suggestion to use the 

effectiveness in serving employers 

indicator as a ‘‘credit,’’ rather than for 

assessing the performance of the 

grantee. However, 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), for assessing 

performance. Moreover, the Department 

disagrees that using this measure as a 

‘‘credit’’ is appropriate. The Department 

recognizes that there are many ways to 

consider the success of grantees in 

addition to performance measurement 

outcomes. The Department gathers 

qualitative information from grantees in 

grant competitions and through grant 


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monitoring to consider the totality of 

grantee performance. Therefore, the 

Department will not use this indicator 

as a ‘‘credit.’’ The Department notes that 

WIOA sec. 116(h)(2) requires the 

Department to reach agreement on the 

levels of performance with grantees 

taking into account economic 

conditions, characteristics of the 

individuals served, and other 

appropriate factors. The Department 

will take these factors into consideration 

in establishing the anticipated level of 

performance on this indicator and, as 

mentioned above, the Department 

intends to exercise its discretion and 

apply appropriate weight to the 

effectiveness in serving employers 

performance indicator relative to the 

other primary indicators of performance 

in assessing current or past grantee 

performance. 

Regarding the commenter’s 

conclusion that performance measures 

do not meet the needs of the 

communities represented and should 

not be applied to the WIOA INA 

programs for adult and youth, the 

Department acknowledges the concerns 

of Tribal communities and their unique 

needs. The Department notes that WIOA 

makes provision for the Department to 

negotiate additional performance 

indicators and standards taking into 

account the needs of participants and 

the economic circumstances of the 

communities INA program grantees 

serve. See WIOA sec. 166(h)(1). The 

Department has negotiated these 

additional performance indicators 

which are described in TEGL No. 04–19. 

INA program grantee performance also 

is assessed based on these outcomes. 

Effectiveness in serving employers is 

not the only metric for assessing INA 

program grantee performance. 

We also note that WIOA requires the 

performance of these programs to be 

measured using the WIOA sec. 116 six 

statutory indicators of performance, 

including effectiveness in serving 

employers. Specifically, WIOA sec. 

166(h)(2) requires the Secretary to reach 

agreement on the levels of performance 

for each of the primary indicators of 

performance described in WIOA sec. 

116(b)(2)(A), which includes the 

effectiveness in serving employers 

indicator. 

Further, as explained above, the 

benefits of defining this measure using 

Retention with the Same Employer, 

including that it minimizes reporting 

burdens for INA program grantees, 

outweigh the drawbacks, as well as 

providing more benefits than the use of 

either of the other performance 

indicator definitions piloted by the core 

programs. To fulfill the intent of 

WIOA’s common performance 

accountability system, the final rule 

defines effectiveness in serving 

employers for the INA programs using 

the Retention with the Same Employer 

approach so that the Department can 

measure effectiveness in serving 

employers consistently across core 

programs and the WIOA title I non-core 

programs. 

The commenter also requested that 

the Department consult with the WIOA 

sec. 166 programs, the NAETC, and 

Tribal officials in the development and 

establishment of the effectiveness in 

serving employers performance 

indicator definition. As further detailed 

below in Section III.F, the Department 

conducted a Tribal consultation to 

consult with Tribal leaders and WIOA 

sec. 166 grantees. 

Section 684.460—What performance 

indicators are applicable to the 

supplemental youth services program? 

Section 684.460(a) sets out the 

performance indicators that apply to 

INA youth programs, including an 

indicator of the effectiveness of serving 

employers—specifically in paragraph 

(a)(6)—as established under WIOA sec. 

116(b)(2)(A)(iv). The NPRM proposed to 

change the language in paragraph (a)(6) 

to align with the effectiveness in serving 

employers performance indicator 

language proposed at § 677.155(a)(1)(vi) 

in the Joint WIOA Effectiveness in 

Serving Employers NPRM. For the 

reasons discussed earlier in this section, 

the Department affirms the approach of 

aligning changes to § 684.460(a)(6) with 

the effectiveness in serving employers 

performance indicator language adopted 

for WIOA core programs in the Joint 

WIOA Effectiveness in Serving 

Employers Final Rule. 

The final rule implements the 

§ 684.460(a)(6) changes as proposed, 

except with minor modifications 

reflecting the revisions made to 

§ 677.155(a)(1)(vi) in the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule. Specifically, § 684.460(a)(6) 

defines the required effectiveness in 

serving employers performance 

indicator as the percentage of 

participants in unsubsidized 

employment during the second quarter 

after exit from the program who were 

employed by the same employer in the 

second and fourth quarters after exit. As 

discussed above, these revisions from 

the proposed rule align the regulations 

for INA youth program with the Joint 

WIOA Effectiveness in Serving 

Employers Final Rule and remove the 

requirement that wage records be used 

to document a participant’s employment 

status for purposes of the effectiveness 

in serving employers performance 

indicator, thereby allowing for the use 

of supplemental wage information. 

Additionally, § 684.460(a)(6) now uses 

the term ‘‘unsubsidized employment’’ to 

better align with WIOA statutory 

language, specifically referring to 

unsubsidized employment in the second 

and fourth quarters after exit, which are 

key inputs to the definition of Retention 

with the Same Employer. 

Section 684.620—What performance 

indicators are in place for the Indian 

and Native American program? 

Section 684.620(a) lists the 

performance indicators used to evaluate 

the INA programs, including an 

effectiveness in serving employers 

performance indicator. Like the changes 

to § 684.460(a)(6), the Department is 

revising the language at § 684.620(a)(6) 

to define the required effectiveness in 

serving employers performance 

indicator as the percentage of 

participants in unsubsidized 

employment during the second quarter 

after exit from the program who were 

employed by the same employer in the 

second and fourth quarters after exit. 

This definition of effectiveness in 

serving employers at § 684.620(a)(6) 

aligns with the effectiveness in serving 

employers performance indicator 

language at § 677.155(a)(1)(vi), as 

discussed above. 

C. Part 685—National Farmworker Jobs 

Program 

Part 685 establishes regulations for 

NFJP, authorized in title I, subtitle D of 

WIOA. The NFJP is a nationally 

directed, locally administered program 

of services for migrant and seasonal 

farmworkers (MSFW) and their 

dependents. Grant recipients help 

program participants acquire new skills 

to either stabilize or advance their 

agricultural careers or obtain 

employment in a new industry. The 

program also works to meet the critical 

need of safe and sanitary permanent and 

temporary housing for farmworkers and 

their families. 

Section 167(c)(3) of WIOA (29 U.S.C. 

3222) requires the Department to use the 

six WIOA primary indicators of 

performance, including the effectiveness 

in serving employers performance 

indicator, to assess the performance of 

the NFJP. As explained in the proposed 

rule, part 685 specifies that NFJP 

grantees providing career services and 

training must use the indicators of 

performance described in WIOA sec. 

116(b)(2)(A) (§ 685.400(a) and (b)) but 

does not list each performance 

indicator. Therefore, the Department did 

not propose any changes to part 685. 


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NFJP housing grantees, which provide 

housing assistance rather than training 

and employment placement services, 

are required to report a different set of 

performance indicators as defined in 

§ 685.400(c), specifically the total 

number served of eligible MSFWs, other 

individuals, eligible MSFW families, 

and other families. Therefore, the 

revised definition of the effectiveness in 

serving employers performance 

indicator in 20 CFR part 677 finalized 

in the Joint WIOA Effectiveness in 

Serving Employers Final Rule applies to 

NFJP career services grantees but not 

housing grantees. 

The Department notes that this will 

have no noticeable change to procedures 

for career services grantees, as they 

already report this information in 

accordance with TEGL No. 14–18, using 

the Retention with the Same Employer 

definition of the performance indicator. 

No comments were received on the 

applicability of the effectiveness in 

serving employers performance 

indicator to the NFJP in response to the 

proposed rule. With the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule, NFJP career services 

grantees will use the revised definition 

of the effectiveness in serving employers 

performance indicator in 20 CFR part 

677. 

D. Part 686—Job Corps Program 

Part 686 establishes regulations for 

the Job Corps program, authorized in 

title I, subtitle C of WIOA. Job Corps is 

a no-cost education and career technical 

training program administered by the 

Department, which includes 121 Job 

Corps centers across the United States. 

The program aims to help young 

people—ages 16 to 24—gain academic 

credentials and career technical training 

skills and secure quality employment. 

No comments were received on the 

proposed changes to part 686 and, thus, 

the Department adopts the proposed 

changes to § 686.1010, with minor 

revisions, as described below. 

Job Corps historically has used postseparation surveys to capture postprogram employment results. Job Corps’ 

current surveys (OMB Control Number 

1205–0426) are administered to 

participants immediately following the 

second and fourth quarters after exit and 

capture information related to whether 

they are employed or in an educational 

or training program during those 

quarters and if they have attained any 

additional certifications or credentials 

after exit from the program. In PY 2018, 

Job Corps revised the reporting periods 

in the post-separation surveys to replace 

program-specific definitions of the 

second and fourth quarters after exit 

with the same definitions used by other 

DOL employment and training 

programs. 

This definitional shift created 

alignment with quarterly wage records 

and facilitated calculation of common 

exit and outcomes across WIOA 

programs. With this change in 

definition, Job Corps has been able to 

apply the effectiveness in serving 

employers performance indicator as it is 

described in TEGL No. 14–18, using the 

Retention with the Same Employer 

definition of the performance indicator. 

While the post-separation surveys are a 

supplemental data source for reporting 

on the primary indicators of 

performance, Job Corps did not gain 

access to wage record matches, the 

primary data source, until the fourth 

quarter of PY 2020. All reported 

outcomes for Job Corps prior to this 

period were based solely on the 

supplemental data source. Job Corps 

began certifying its program results in 

WIPS for all the primary measures of 

performance, including the Retention 

with the Same Employer indicator, in 

the first quarter of PY 2020. 

Starting with the fourth quarter of PY 

2020, Job Corps obtained quarterly wage 

record matches and, combined with the 

supplemental data from the surveys, has 

been able to report fully on the primary 

measures of performance, including the 

Retention with the Same Employer 

indicator. 

Section 686.1010—What are the primary 

indicators of performance for Job Corps 

centers and the Job Corps program? 

Section 686.1010 lists the primary 

indicators used to measure the 

performance of Job Corps centers, which 

includes the effectiveness in serving 

employers performance indicator. This 

performance indicator is reported based 

on data collected from former students 

during the second and fourth quarters 

after exit. 

No comments were received on the 

applicability of the effectiveness in 

serving employers performance 

indicator to the Job Corps Program in 

response to the proposed rule. However, 

as discussed above, the final rule 

implements the § 686.1010(f) changes as 

proposed, but with minor modifications 

reflecting the revisions made to 

§ 677.155(a)(1)(vi) in the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule. Specifically, revised 

§ 686.1010(f) defines the required 

effectiveness in serving employers 

performance indicator as the percentage 

of participants in unsubsidized 

employment during the second quarter 

after exit from the program who were 

employed by the same employer in the 

second and fourth quarters after exit. 

E. Part 688—YouthBuild Programs 

Part 688 establishes regulations for 

the YouthBuild programs, authorized in 

title I, subtitle D of WIOA. YouthBuild 

is a pre-apprenticeship program that 

provides education and job training 

opportunities for at risk youth (ages 16– 

24) who have dropped out of school, or 

subsequently re-enrolled, and meet 

certain other requirements. Program 

participants learn vocational skills 

focused on the construction industry, as 

well as other in-demand industries 

including healthcare, information 

technology, and hospitality, while also 

earning their high school diploma. No 

comments were received on the 

proposed changes to part 688 and, thus, 

the Department adopts the proposed 

changes to § 688.400, with minor 

revisions, as described below. 

Section 688.400—What are the 

performance indicators for YouthBuild 

grants? 

Section 688.400 lists the primary 

indicators used to measure the 

performance of YouthBuild programs, 

which also includes a performance 

indicator for effectiveness in serving 

employers. 

No comments were received on the 

applicability of the effectiveness in 

serving employers performance 

indicator to the YouthBuild programs in 

response to the proposed rule. However, 

as discussed above, the final rule 

implements the § 688.400(f) changes as 

proposed, but with minor modifications 

reflecting the revisions made to 

§ 677.155(a)(1)(vi) in the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule. Specifically, finalized 

§ 688.400(f) defines the required 

effectiveness in serving employers 

performance indicator as the percentage 

of participants in unsubsidized 

employment during the second quarter 

after exit from the program who were 

employed by the same employer in the 

second and fourth quarters after exit. 

F. Impacts of the Final Rule on Other 

Non-Core WIOA Programs for Which the 

Department Has Applied WIOA Sec. 

116 Primary Indicators of Performance 

Although WIOA only mandated the 

use of the sec. 116 performance 

indicators for the four non-core 

programs addressed in this final rule, 

the Department has chosen to apply the 

sec. 116 performance indicators to other 

non-core programs to assess program 

performance, including REO grants 

(authorized under WIOA sec. 169 and 


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13606 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

15Pages 2 through 5 of TEGL No. 14–18, 

‘‘Aligning Performance Accountability Reporting, 

Definitions, and Policies Across Workforce 

Employment and Training Programs Administered 

by the U.S. Department of Labor (DOL),’’ provide 

the current list of DOL-administered non-core 

programs for which DOL has chosen to apply these 

performance reporting requirements, which include 

programs authorized by WIOA, as well as programs 

authorized by other Federal legislation. ETA, TEGL 

No. 14–18, Mar. 25, 2019, https://wdr.doleta.gov/ 

directives/corr_doc.cfm?docn=7611. 

16ETA, TEGL No. 14–18, ‘‘Aligning Performance 

Accountability Reporting, Definitions, and Policies 

Across Workforce Employment and Training 

Programs Administered by the U.S. Department of 

Labor (DOL),’’ p. 8, Mar. 25, 2019, https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

17Patricia M. Harris and Kimberly S. Keller, ‘‘ExOffenders Need Not Apply: The Criminal 

Background Check in Hiring Decisions,’’ Journal of 

Contemporary Criminal Justice, 2005, pages 6–30, 

https://journals.sagepub.com/doi/10.1177/ 

1043986204271678; Jennifer Hickes Lundquist, 

Devah Pager, and Eiko Strader, ‘‘Does a Criminal 

Past Predict Worker Performance? Evidence from 

One of America’s Largest Employers,’’ Social 

Forces, March 2018, pages 1039–1068, https://

academic.oup.com/sf/article-abstract/96/3/1039/ 

4802355?redirectedFrom=fulltext; Dylan Minor, 

Nicola Persico, and Deborah M. Weiss, ‘‘Criminal 

Background and Job Performance,’’ Feb. 3 2017, 

https://insight.kellogg.northwestern.edu/article/ 

should-you-hire-someone-with-a-criminal-record; 

Oluwasegun Obatusin and Debbie Ritter-Williams, 

‘‘A phenomenological study of employer 

perspectives on hiring ex-offenders,’’ Cogent Social 

Sciences, Feb. 14, 2019, https://doi.org/10.1080/ 

23311886.2019.1571730; Pamela D. Paulk, ‘‘The 

Johns Hopkins Hospital Success in Hiring ExOffenders,’’ May 2015, https://

www.bgcheckinfo.org/sites/default/files/public/ 

5thMtg_1-0c-Plenary_Pamela_Paulk_

Presentation.pdf; SHRM Foundation, ‘‘2021 Getting 

Talent Back to Work Report,’’ 2021, https:// 

www.gettingtalentbacktowork.org/wp-content/ 

uploads/2021/05/2021-GTBTW_Report.pdf; Prison 

Fellowship, ‘‘6 Lessons for Employers Considering 

Hiring Former Prisoners,’’ Prison Fellowship,’’ 

https://www.prisonfellowship.org/resources/ 

support-friends-family-of-prisoners/supportingsuccessful-prisoner-reentry/6-lessons-foremployers-considering-hiring-former-prisoners/ 

(last visited Nov. 9, 2023). 

annual appropriations acts).15 The 

NPRM stated that, for these programs, 

the proposed definition of the 

effectiveness in serving employers 

performance indicator also would be 

applied. The Department maintains this 

same position in this final rule and 

intends to continue to apply the same 

definition of effectiveness in serving 

employers to these other non-core 

programs after publication of this final 

rule. 

Comment: One commenter discussed 

the impact of the proposed rule on the 

REO grants program, which provides 

employment services to justice-involved 

individuals. The commenter argued that 

performance accountability for the 

WIOA non-core programs should reflect 

the distinct populations served by those 

programs (e.g., reentry programs help 

justice-involved individuals overcome 

barriers to employment). As the NPRM 

noted, the commenter remarked, a 

limitation of the Retention with the 

Same Employer measure of effectiveness 

in serving employers is that it may not 

reflect the career path of greatest 

opportunity for those employment 

program participants who seek to 

change their jobs for improved 

opportunities, which the commenter 

said is a point of particular concern for 

REO grant program participants who are 

reentering the job market after leaving 

the justice system. The commenter 

wrote that while gaining work 

experience is ‘‘an important first step 

toward a rewarding career’’ for justiceinvolved individuals, continuing with 

the same employer could deny them 

opportunities to achieve greater 

financial stability and advance in their 

careers. 

The commenter also stated a concern 

with the proposed requirement that REO 

programs collect and report 

supplemental wage information, 

discussing the ways this requirement to 

retain paystubs or other wage 

documentation would put a distinct 

burden on REO program staff to collect 

additional information and follow up 

with program participants. The 

commenter also expressed concern that 

disclosure of a program participant’s 

criminal background to an employer 

could limit the participant’s prospects 

for job placement. The commenter 

suggested that supplemental wage data 

should be accessible from the 

employment programs themselves, not 

the employers, in order to give program 

participants the best chance at moving 

forward and to best fulfill the missions 

of these programs. 

To address these concerns, the 

commenter recommended the 

Department do the following: 

• Provide clear program guidance for 

REO program grantees on regulatory 

definitions. 

• Determine that grantees can access 

wage record data in order to report 

employment outcomes of program 

participants. 

• Consider other performance 

outcomes that would capture 

effectiveness in serving employers and 

provide a benefit to fair-chance 

employers, like the Federal bonding 

program and Work Opportunity Tax 

Credit do. 

• Find measures of program 

performance that align with the goals of 

providing the best chances for success 

for justice-involved individuals. 

Department Response: While 

reporting this performance indicator 

contributes to the holistic data analysis 

of the workforce system, the Department 

recognizes that drawbacks to this 

proposed definition exist for the title I 

non-core programs, especially due to the 

unique nature of programs focused on 

youth and justice-involved individuals. 

Nevertheless, the Department believes 

that the benefits of this approach 

outweigh those drawbacks. Moreover, 

the Department intends to mitigate these 

drawbacks, if necessary, by exercising 

its discretion to place appropriate 

weight on the effectiveness in serving 

employers performance indicator 

relative to the other primary indicators 

of performance in assessing current or 

past grantee performance. 

As the commenter mentions, success 

for justice-involved individuals is more 

likely to include progression in jobs. 

Recognizing the unique circumstances 

such as this, the Department expects 

variability in the reported outcomes 

from program to program and intends to 

take this variability into account when 

negotiating levels of performance. These 

considerations are consistent with TEGL 

No. 14–18 guidance for applicability of 

primary performance indicators, which 

specifies that, as a general matter, 

participants’ outcomes on the applicable 

primary indicators of performance may 

be relevant for negotiating levels of 

performance, decisions related to 

contract awards and renewal, and the 

award of competitive grants.16

It should be kept in mind that the 

effectiveness in serving employers 

performance indicator is unique among 

all other indicators in that it is 

employer-focused. Employers are 

critical partners with WIOA title I noncore programs in providing quality 

services and employment opportunities 

to program participants. Furthermore, 

there is anecdotal evidence from 

employers, as well as a few small 

studies that suggest justice-involved 

individuals tend to have lower turnover 

rates relative to the average employee.17

Tracking this performance indicator will 

provide further evidence to evaluate the 

potential employer benefit for hiring 

justice-involved individuals. 

The Department also notes that while 

this indicator allows for the use of 

supplemental wage information, 

collecting such information is not 

mandatory. ETA will continue to 

conduct UI wage matching on behalf of 

reentry grantees for this and other 

employment-related performance 

indicators to reduce the burden of 

collecting this information manually. 

Therefore, it is not necessary for 

grantees to have access to wage record 

data to comply with this reporting 

requirement. 


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The Department considered the 

commenter’s request that the other 

performance outcomes be used such as 

is done with the Federal bonding 

program and the Work Opportunity Tax 

Credit. However, the Department has 

determined Retention with the Same 

Employer is appropriate after piloting 

three approaches of the effectiveness in 

serving employers performance 

indicator. The Department concluded 

that the Retention with the Same 

Employer approach provides a valid and 

reliable approach to measuring the 

indicator, while also placing the least 

amount of burden on REO grant 

recipients to implement. 

The Department will update guidance 

and technical assistance on this topic 

for reentry grantees as needed following 

the publication of the final rule. 

Comment: One commenter discussed 

the impact of the proposed rule on 

Senior Community Service Employment 

Program (SCSEP), which provides 

employment services to older workers. 

The commenter discussed the unique 

needs and employment patterns of the 

older workers served by SCSEP 

programs, who may have more ‘‘fluid’’ 

employment patterns than other 

workers due to health issues, caregiving 

obligations, or preferences for part-time 

employment. The commenter wrote that 

the SCSEP program it administers uses 

surveys to assess employer satisfaction 

and expressed interest in continuing 

this practice, stating that it provides 

depth of analysis and affords careful 

delivery of targeted programs utilizing 

strong employer partnerships. The 

commenter urged the Department to 

allow these assessment practices to 

continue in order to best maintain 

targeted SCSEP program deliverables for 

the target population of older workers. 

To address these concerns, the 

commenter recommended the 

Department do the following: 

• Retain the current definition and 

practices for assessing effectiveness of 

SCSEP programs in serving employers. 

• Provide clear guidance on any 

intentions to change definitions of the 

performance indicator of effectiveness 

in serving employers for SCSEP 

programs. 

Department Response: The 

Department notes that this indicator 

does not apply to the SCSEP program 

grantees, and the Department will not be 

making changes to any SCSEP 

definitions as a result of this rule. 

Comment: Discussing the impact of 

the proposed rule on non-core WIOA 

programs providing employment 

services to justice-involved individuals 

and older workers, a commenter argued 

that the Department has an obligation to 

provide clear guidance to program 

grantees working with these target 

populations on the implications of the 

rulemaking process and possible 

implementation of rule changes. 

Relatedly, the commenter suggested that 

the Department should continue to work 

with reentry service providers, SCSEP 

providers, and related stakeholders to 

best address the needs of the target 

populations by providing further 

opportunities to share insights, present 

feedback, and raise concerns and 

questions on the proposed rule. 

Department Response: The 

Department is committed to providing 

clear guidance and technical assistance 

to grantees in implementing any 

changes, and notes that this rule does 

not change any current practices for 

reentry providers and SCSEP providers. 

III. Regulatory Analysis and Review 

A. Executive Orders 12866 (Regulatory 

Planning and Review), 13563 

(Improving Regulation and Regulatory 

Review), and 14094 (Modernizing 

Regulatory Review) and Subtitle E of the 

Small Business Regulatory and Fairness 

Act of 1996) 

Under E.O. 12866, the Office of 

Information and Regulatory Affairs 

(OIRA) determines whether a regulatory 

action is significant and, therefore, 

subject to the requirements of the E.O. 

and review by OMB. See 58 FR 51735 

(Oct. 4, 1993). Section 1(b) of E.O. 14094 

amends sec. 3(f) of E.O. 14094 to define 

a ‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that may: (1) have an annual effect on 

the economy of $200 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, territorial, or tribal 

governments or communities (also 

referred to as economically significant); 

(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 legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the E.O. See 88 FR 21879 

(Apr. 11, 2023). This final rule is a 

significant regulatory action under 

section 3(f) of E.O. 12866, as amended 

by E.O.14094. 

E.O. 13563 directs agencies to propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; the regulation is tailored 

to impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. E.O. 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

1. Outline of the Analysis 

Section III.A.2 provides a summary of 

the results of the RIA. Section III.A.3 

describes the need for the final rule, and 

Section III.A.4 describes the process 

used to estimate the costs of the final 

rule and the general inputs used, such 

as wages and number of affected 

entities. Section III.A.5 explains how 

the provisions of the final rule will 

result in quantifiable costs and presents 

the calculations the Department used to 

estimate them. In addition, Section 

III.A.5 describes the qualitative benefits 

of the final rule. Section III.A.6 

summarizes the estimated first-year and 

10-year total and annualized costs of the 

final rule. Finally, Section III.A.7 

describes the regulatory alternatives 

considered when developing the final 

rule. 

2. Analysis Overview 

The Department did not receive 

comments on the proposed rule 

economic analysis. Changes in this final 

rule economic analysis include 

updating wage rates and the number of 

affected entities to reflect the most 

recent data available. The new wage 

rates and affected entities are presented 

in Section III.A.4. 

The Department estimates that the 

final rule will result in costs and 

qualitative benefits. As shown in 

Exhibit 1, the final rule is expected to 

have a one-time cost of $52,223. The 

Department estimates that the final rule 

will result in an annualized net 

quantifiable cost of $7,435 at a discount 

rate of 7 percent and expressed in 2022 

dollars. 

EXHIBIT 1—ESTIMATED MONETIZED

COSTS OF THE FINAL RULE

[2022 dollars] 

Cost 

10-Year Total with a Discount Rate of 3% .............. $52,223 

10-Year Total with a Discount Rate of 7% .............. 52,223 

10-Year Average .................. 5,222 


ddrumheller on DSK120RN23PROD with RULES1
13608 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

18The 237 YouthBuild entities consist of grantees 

within each of the four currently active grant 

classes (68 grantees in the 2022 class, 68 grantees 

in the 2021 class, 68 grantees in the 2020 class, and 

34 grantees in the 2019 grant class). 

19See S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act,’’ Jan. 2021, 

Chapter 5 (Alternative Measures and Data Sources), 

https://wdr.doleta.gov/research/FullText_

Documents/ETAOP2021- 

17%20Measures%20of%20Effectiveness%20in%20

Serving%20Employers_Final%20Report.pdf. 

20ETA, TEGL No. 14–18, ‘‘Aligning Performance 

Accountability Reporting, Definitions, and Policies 

Across Workforce Employment and Training 

Programs Administered by the U.S. Department of 

Labor (DOL),’’ Mar. 25, 2019, https://

wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. 

EXHIBIT 1—ESTIMATED MONETIZED

COSTS OF THE FINAL RULE—Continued 

[2022 dollars] 

Cost 

Annualized at a Discount 

Rate of 3% ........................ 6,122 

Annualized at a Discount 

Rate of 7% ........................ 7,435 

The cost of the final rule is associated 

with rule familiarization for all 121 Job 

Corps centers and 97 career transition 

service providers for a total of 218 Job 

Corps entities, 53 NFJP career service 

and training grantees, 64 INA youth 

grantees, 97 INA adult grantees, and 237 

YouthBuild grantees.18 See the costs 

subsections of Section III.A.5 (Subjectby-Subject Analysis) below for a 

detailed explanation. 

The Department cannot quantify the 

benefits of the final rule; therefore, 

Section III.A.5 (Subject-by-Subject 

Analysis) describes the benefits 

qualitatively. 

3. Need for Regulation 

This final rule is necessary to 

complete implementation of the 

performance accountability 

requirements as discussed in the Joint 

WIOA Final Rule and required by 

statute. WIOA included a common 

performance accountability system, 

consisting of six statutory primary 

indicators of performance, applicable to 

all WIOA core programs: adult, 

dislocated worker, and youth programs 

under title I of WIOA; the AEFLA 

program under title II; the ES program 

authorized under the Wagner-Peyser Act 

as amended by WIOA title III; and the 

VR program authorized under title I of 

the Rehabilitation Act, as amended by 

WIOA title IV. WIOA also required that 

the six statutory primary indicators of 

performance apply to four WIOA title I, 

DOL-administered non-core programs: 

INA, NFJP, Job Corps, and YouthBuild 

(‘‘title I non-core programs’’). The 

statute defines five of the six 

performance indicators. However, 

WIOA did not specify how effectiveness 

in serving employers should be 

measured. Instead, WIOA directed the 

Departments to develop a definition for 

the effectiveness in serving employers 

performance indicator (WIOA sec. 

116(b)(2)(A)(iv)). In the Joint WIOA 

Final Rule, the Departments determined 

that it was prudent to pilot three 

definitions for the sixth performance 

indicator, which measures a State’s 

effectiveness in serving employers 

through its WIOA-authorized programs. 

As explained earlier in this final rule, 

that pilot, as well as a study of the 

results from the pilot, Measuring the 

Effectiveness of Services to Employers: 

Options for Performance Measures 

Under the Workforce Innovation and 

Opportunity Act 19 (Final Pilot Study 

Report), is now complete. The 

Departments are engaging in two 

rulemakings to incorporate into the 

WIOA regulations a standard definition 

of the performance indicator for 

effectiveness in serving employers. This 

performance indicator definition is 

meant to apply to both WIOA core 

programs—which are addressed in the 

concurrently published Joint WIOA 

Effectiveness in Serving Employers 

Final Rule—as well as the four title I 

non-core programs, which are addressed 

in this final rule. This rule codifies the 

use of all the primary performance 

indicators for the evaluation of title I 

non-core program performance— 

including the effectiveness in serving 

employers indicator—just as with the 

WIOA core programs. 

4. Analysis Considerations 

a. Baseline for Title I Non-Core 

Programs: Indian and Native American, 

National Farmworker Jobs, Job Corps, 

and YouthBuild 

The Department estimated the costs of 

the final rule relative to the existing 

baseline. The Department determined 

that the final rule will result in no 

change from the baseline for the title I 

non-core programs. As a result, the 

Department estimates only the costs of 

rule familiarization for the title I noncore programs. 

WIOA secs. 159(c)(1) (Job Corps), 

166(e)(5) (INA), 167(c)(2)(C) (NFJP), and 

171(f)(1) (YouthBuild) specify that 

performance for these title I non-core 

programs must be assessed using the 

WIOA sec. 116 primary indicators of 

performance for WIOA core programs. 

In this final rule, the Department is 

codifying the approach for evaluating a 

program’s effectiveness in serving 

employers, as put into practice through 

previously issued guidance 20 and the 

‘‘DOL-Only Performance 

Accountability, Information, and 

Reporting System’’ ICR, approved under 

OMB Control Number 1205–0521 for the 

title I non-core programs. 

All title I non-core programs, except 

the INA Supplemental Youth Services 

program, are able to report the Retention 

with the Same Employer definition of 

effectiveness in serving employers 

performance indicator, as required in 

TEGL No. 14–18, through WIPS or 

GPMS. Unlike the other title I non-core 

programs, the INA Supplemental Youth 

Services program is not currently 

reporting, and will not immediately be 

able to report, the effectiveness in 

serving employers performance 

indicator. The INA Supplemental Youth 

Services case management system is 

available for grantees to enter data for 

youth participants who were served on 

or after April 15, 2023, and produces 

program reports. Because grantees are 

still tracking in legacy systems the data 

for participants whose services began 

before April, INA youth grantees will, 

for a period of time, use WIOA 

transition authority with regard to 

collecting and reporting on WIOA 

performance indicators, including the 

effectiveness in serving employers 

performance indicator. The Department 

is continuing, independent of this 

rulemaking, to build new functionality 

into the recent case management system 

for INA youth grantees that provides for 

the collection and reporting of the 

effectiveness in serving employers 

performance indicator. Therefore, this 

final rule does not impose any new cost 

associated with the case management 

system. When the case management 

system is built, the INA youth grantees 

will use it to collect and report the 

outcomes for the effectiveness in serving 

employers performance indicator. The 

use of the new system to report the 

effectiveness in serving employers 

performance indicator will impose a de 

minimis cost for the INA youth grantees. 

When the INA Supplemental Youth 

Services case management system is 

complete, the INA youth program 

grantees would face a de minimis cost 

associated with reporting the 

effectiveness in serving employers 

performance indicator in the new 

system. 

Exhibit 2 presents the number of 

entities the Department expects the final 

rule to affect. The Department provides 

these estimates and uses them to 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13609 

21BLS, ‘‘May 2022 National Industry-Specific 

Occupational Employment and Wage Estimates: 

NAICS 999300—Local Government, excluding 

schools and hospitals (OEWS Designation),’’ 

https://www.bls.gov/oes/current/naics4_

999300.htm (last updated April 25, 2023). 22U.S. Environmental Protection Agency, ‘‘Wage 

Rates for Economic Analyses of the Toxics Release 

Inventory Program,’’ June 10, 2002, https://

www.regulations.gov/document/EPA-HQ-OPPT2018-0321-0046. DOL has used 17 percent in prior 

final rules including the Adverse Effect Wage Rate 

Methodology for the Temporary Employment of H– 

2A Nonimmigrants in Non-Range Occupations in 

the United States Final Rule (RIN 1205–AC05), 

Temporary Agricultural Employment of H–2A 

Nonimmigrants in the United States (RIN 1205– 

AB89), Cranes and Derricks in Construction: 

Railroad Roadway Work (RIN 1218–AD07), and 

Occupational Exposure to Beryllium and Beryllium 

Compounds in Construction and Shipyard Sectors 

Final Rule (RIN 1218–AD29). 

23BLS, ‘‘Employer Costs for Employee 

Compensation—March 2022,’’ June. 16, 2022, 

https://www.bls.gov/news.release/archives/ecec_

06162022.pdf. Calculated using Table 1. Employer 

Costs for Employee Compensation by ownership 

24S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act (Research 

Report),’’ Jan. 2021, https://www.urban.org/sites/ 

default/files/publication/104160/measuring-theeffectiveness-of-services-to-employers_1_0.pdf. 

calculate the cost of rule familiarization 

for the title I non-core programs. 

EXHIBIT 2—TITLE I NON-CORE PROGRAMS NUMBER OF AFFECTED ENTITIES BY TYPE

Entity type Number 

Job Corps: 

Current centers .............. 121 

Career transition service 

providers .................... 97 

NFJP: 

Career services and 

training grantees ........ 53 

Indian and Native American: 

Number of INA youth 

grants awarded under 

WIOA sec. 166 .......... 64 

EXHIBIT 2—TITLE I NON-CORE PROGRAMS NUMBER OF AFFECTED ENTITIES BY TYPE—Continued 

Entity type Number 

Grantees for the Comprehensive Services 

Program/INA adult 

program ...................... 97 

YouthBuild: 

Grantees in active grant 

classes ....................... 237 

b. Compensation Rates 

In Section III.A.5 (Subject-by-Subject 

Analysis), the Department presents the 

costs, including labor, associated with 

the final rule. Exhibit 3 presents the 

hourly compensation rates for the 

occupational categories expected to 

experience a change in level of effort 

(workload) due to the final rule. We use 

the Bureau of Labor Statistics (BLS) 

mean hourly wage rate for local 

government employees.21 To reflect 

total compensation, wage rates include 

nonwage factors such as overhead and 

fringe benefits (e.g., health and 

retirement benefits). We use an 

overhead rate of 17 percent 22 and a 

fringe benefits rate of 62 percent,23

which represents the ratio of average 

total compensation to average wages for 

State and local government workers in 

March 2022. We then multiply the sum 

of the loaded wage factor and overhead 

rate by the corresponding occupational 

category wage rate to calculate an 

hourly compensation rate. 

EXHIBIT 3—COMPENSATION RATES

[2022 dollars] 

Position Grade 

level 

Base hourly 

wage rate Loaded wage factor Overhead costs 

Hourly 

compensation 

rate 

(a) (b) (c) d = a + b + c 

Management Analyst ............................... N/A $43.61 $27.04 ($43.61 × 0.62) $7.41 ($43.61 × 0.17) $78.06 

5. Subject-by-Subject Analysis 

The Department’s analysis below 

covers the estimated cost of the final 

rule. 

c. Costs 

The following sections describe the 

costs of the final rule. 

(1) DOL-Only Non-Core Programs Rule 

Familiarization 

INA, YouthBuild, NFJP, and Job Corps 

programs would need to familiarize 

themselves with the new regulation. 

Consequently, this will impose a onetime cost in the first year. 

To estimate the first-year cost of rule 

familiarization for INA, YouthBuild, 

NFJP, and Job Corps programs, the 

Department multiplied the estimated 

number of management analysts (1) by 

the time required to read and review the 

rule (1 hour), and by the applicable 

hourly compensation rate ($78.06/hour). 

We multiplied this result by the number 

Job Corps active centers (218), NFJP 

grantees (53), INA Youth program 

grantees (64), INA Adult program 

grantees (97), and the number of 

YouthBuild grantees (237). This 

calculation yields $52,536 in one-time 

labor costs for Job Corps, NFJP, 

YouthBuild, INA Youth, and INA Adult 

programs to read and review the rule. 

Over the 10-year period of analysis, 

these estimated one-time costs result in 

an average annual cost of $5,222 

undiscounted, or $6,122 and $7,435 at 

discount rates of 3 and 7 percent, 

respectively. 

d. Qualitative Benefits Discussion 

(1) General Benefits of Measuring 

Effectiveness in Serving Employers 

The Department cannot quantify the 

final rule’s benefits associated with 

improving the title I non-core programs’ 

effectiveness in serving employers. 

Measuring effectiveness in serving 

employers allows title I non-core 

programs to set goals, monitor, and 

learn how to serve employers more 

effectively.24 Reporting a measure of 

effectiveness in serving employers also 

helps Federal, State, and local 

policymakers evaluate program 

performance and inform future policy 

changes to better meet program goals, 

particularly providing employers with 

skilled workers and other services. 

The Department cannot quantify these 

estimated benefits because we do not 

have quantitative data on how the 

effectiveness in serving employers 

performance indicator has influenced 

program implementation and how much 

it would influence future policies. 

(2) Specific Benefits of Reporting 

Retention With the Same Employer 

Requiring the calculation and 

reporting of Retention with the Same 

Employer as the effectiveness in serving 

employers performance indicator will 

make it easier to compare WIOA title I 


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13610 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

25S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act (Research 

Report),’’ Jan. 2021, https://www.urban.org/sites/ 

default/files/publication/104160/measuring-theeffectiveness-of-services-to-employers_1_0.pdf. 

26S. Spaulding, et al., ‘‘Measuring the 

Effectiveness of Services to Employers: Options for 

Performance Measures under the Workforce 

Innovation and Opportunity Act,’’ Jan. 2021, 

https://wdr.doleta.gov/research/FullText_

Documents/ETAOP2021-17%20Measures%20of%

20Effectiveness%20in%20Serving%20Employers_

Final%20Report.pdf. 

non-core programs’ effectiveness in 

serving employers performance across 

grant programs. Retention with the 

Same Employer demonstrates a 

continued relationship between the 

employer and participants who have 

exited WIOA programs. While many 

circumstances can have an impact on an 

employer’s retention of employees, an 

indication that an employee is still 

working for the same employer in both 

the second and fourth quarters after 

exiting from a WIOA program 

demonstrates a level of success for both 

parties, as retention of an employee 

reduces the costs to the employer 

associated with employee turnover and 

retraining. Thus, reporting Retention 

with the Same Employer can help 

inform design and implementation of 

program services to reduce job turnover 

and improve employer-employee match 

quality. Improved matching and 

reduced turnover allow employees and 

employers to operate closer to their 

productive potential and can make it 

more worthwhile for employers to 

invest in training its employees and for 

employees to invest in learning 

employer-specific skills. 

6. Summary of the Analysis 

The Department estimates the total 

net cost of the final rule at $52,223 at 

a discount rate of 7 percent. The 

Department estimates the annualized 

net cost of the final rule at $7,435 at a 

discount rate of 7 percent. Exhibit 4 

summarizes the estimated cost of the 

final rule over the 10-year analysis 

period. 

EXHIBIT 4—ESTIMATED MONETIZED

COSTS OF THE FINAL RULE

[2022 dollars] 

Costs 

2024 ...................................... $52,223 

2025 ...................................... 0 

2026 ...................................... 0 

2027 ...................................... 0 

2028 ...................................... 0 

2029 ...................................... 0 

2030 ...................................... 0 

2031 ...................................... 0 

2032 ...................................... 0 

2033 ...................................... 0 

10-Year Total with a Discount Rate of 3% .............. 52,223 

10-Year Total with a Discount Rate of 7% .............. 52,223 

10-Year Average .................. 5,222 

Annualized with a Discount 

Rate of 3% ........................ 6,122 

Annualized with a Discount 

Rate of 7% ........................ 7,435 

7. Regulatory Alternatives 

The Department considered two 

alternatives to the finalized definition of 

the effectiveness in serving employers 

performance indicator. First, the 

Department considered requiring use of 

the Employer Penetration pilot 

approach, which reports the percentage 

of employers using services out of all 

employers in the State. This approach 

would have required counts of services 

provided to employers requiring States 

and local areas to report unique counts 

of employer establishments receiving 

services through WIOA’s programs. 

Employer Penetration would require a 

more data-intensive analysis than the 

Retention with the Same Employer 

approach. Employer Penetration would 

have the benefit of capturing the extent 

to which employers within a State are 

engaged with WIOA-funded services 

and would provide State programs an 

incentive to work with additional 

employers. In the Final Pilot Report 

Study, the Department found 

weaknesses in this pilot approach 

including: (1) emphasis on quantity 

rather than quality or intensity of the 

employer service provided; (2) 

reliability issues associated with data 

entry and the process to count unique 

establishments; (3) measurement of 

program output rather than outcome; (4) 

potential for creation of perverse 

incentives to prioritize program breadth 

rather than depth in service and 

delivery; and (5) lack of sensitivity to 

industry sectors targeted by State and 

local workforce agencies.25

The Department considered a second 

regulatory alternative that would require 

the use of the Repeat Business Customer 

approach to the effectiveness in serving 

employers performance indicator, 

which reports the percentage of 

employers receiving services in a year 

who also received services within the 

previous 3 years. This approach to the 

effectiveness in serving employers 

measure requires counts of services 

provided to employers through WIOA’s 

programs. Repeat Business Customer 

requires a more data-intensive analysis 

than the proposed approach of 

Retention with the Same Employer. 

Repeat Business Customer captures the 

extent to which employers within a 

State can find workers and the 

employer’s level of satisfaction with the 

public workforce system services. In the 

Final Pilot Study Report, the 

Department found weaknesses in this 

pilot approach including that it: (1) may 

provide a disincentive to reach out to 

new employers; (2) is subject to 

variation in industry and sector 

economic conditions; and (3) may 

require a SAM to mitigate the 

weaknesses and improve 

implementation and interpretation.26

The Department prefers the Retention 

with the Same Employer approach 

because it has data more readily 

available and, therefore, it is less 

burdensome. The Retention with the 

Same Employer approach better aligns 

with workforce system goals of 

matching employers with job seekers 

and reducing turnover without the 

weaknesses associated with the other 

two approaches to defining the 

effectiveness in serving employers 

performance indicator. In addition, 

because title I non-core programs are 

already required to report the Retention 

with the Same Employer measure, the 

two alternative measures would impose 

new costs to affected entities associated 

with collecting data, calculation of, and 

reporting the alternative measure. 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

13272 (Proper Consideration of Small 

Entities in Agency Rulemaking) 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (Mar. 29, 1996), 

requires Federal agencies engaged in 

rulemaking to consider the impact of 

their proposals on small entities, 

consider alternatives to minimize that 

impact, and solicit public comment on 

their analyses. The RFA requires the 

assessment of the impact of a regulation 

on a wide range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. Agencies 

must perform a review to determine 

whether a proposed or final rule would 

have a significant economic impact on 

a substantial number of small entities. 5 

U.S.C. 603 and 604. 

The Department finds that this final 

rule will not have a significant 

economic impact on a substantial 

number of small entities. Based on this 

determination, the Department certifies 


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Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 13611 

27NAETC, ‘‘41st National Indian and Native 

American Employment and Training Program,’’ 

Sept. 20–23, 2021, http://www.ninaetc.net/ 

41%20NINAETC%20PROGRAM_FINAL.pdf. 

28 DOL, ‘‘Tribal Consultation for WIOA 

Effectiveness in Serving Employers Indicator 

Proposed Rulemaking,’’ https://

www.workforcegps.org/events/2021/09/14/13/57/ 

Tribal-Consultation-for-WIOA-Effectiveness-inServing-Employers-Indicator-Proposed-Rulemaking 

(last visited Nov. 10, 2023); see also ‘‘Tribal 

Consultation; Workforce Innovation and 

Opportunity Act, Implementation of the 

Effectiveness in Serving Employers Performance 

Indicator; Notice of Tribal Consultation; Virtual 

Meeting,’’ 86 FR 54244 (Sept. 30, 2021). 

that this final rule does 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 WIOA. In addition, the 

calculated cost of this rule is a one-time 

per-entity cost of $78.06 associated with 

rule familiarization and would therefore 

have a de minimis impact on any 

particular entity. 

This final rule can be expected to 

impact small entities within the Job 

Corps, NFJP, and INA programs. These 

small entities can be, for example, 

Tribal or non-profit grantees, including 

regionally focused entities. The 

Department has estimated costs that are 

new to this final rule. As discussed in 

Section III.A, the calculated cost of this 

rule is a one-time per-entity cost of 

$78.06 associated with rule 

familiarization and would, therefore, 

have a de minimis impact on any one 

particular entity. Therefore, the 

Department certifies that this final rule 

does not have a significant economic 

impact on a substantial number of small 

entities. 

C. Paperwork Reduction Act 

The Department previously submitted 

and received OMB approval for the 

information collection discussed above 

(OMB Control Number 1205–0521) in 

Section I, Background and Rulemaking 

Authority. See ICR Reference Number 

202104–1205–003 (OMB Control 

Number 1205–0521). This final rule 

does not modify any of the content in 

the exiting OMB Control Number 1205– 

0521. 

D. Executive Order 13132 (Federalism) 

E.O. 13132 aims to guarantee the 

division of governmental 

responsibilities between the National 

Government and the States and to 

further the policies of the Unfunded 

Mandates Reform Act of 1995 (UMRA). 

Accordingly, E.O. 13132 requires 

executive departments and agencies to 

ensure that the principles of federalism 

guide them in the formulation and 

implementation of policies. Further, 

agencies must adhere to constitutional 

principles, examine the constitutional 

and statutory authority supporting a 

regulation that would limit the 

policymaking discretion of the States, 

and assess the need for such a 

regulation. To the extent practicable, 

agencies must consult State and local 

officials before implementing any such 

regulation. 

E.O. 13132 further provides that 

agencies must implement a regulation 

that limits the policymaking discretion 

of the States only where there is 

constitutional and statutory authority 

for the regulation and it addresses a 

problem of national significance. For a 

regulation administered by the States, 

the National Government must grant the 

States the maximum administrative 

discretion possible to avoid intrusive 

Federal oversight of State 

administration, and agencies must 

adhere to special requirements for a 

regulation that preempts State law. E.O. 

13132 also sets forth the procedures that 

agencies must follow for certain 

regulations with federalism 

implications, such as preparation of a 

summary impact statement. 

Accordingly, the Department has 

reviewed this WIOA-required final rule 

and has concluded that the rule has no 

Federalism implications. This final rule 

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. Therefore, the Department 

has concluded that this final rule does 

not have a sufficient Federalism 

implication to warrant the preparation 

of a summary impact statement. 

E. Unfunded Mandates Reform Act 

UMRA directs agencies to assess the 

effects of Federal regulatory actions on 

State, local, and Tribal governments, as 

well as 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 upon the private sector 

that is not voluntary. 

Following consideration of the above 

factors, the Department has concluded 

that this 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.’’ 

No additional burden related to 

reporting the effectiveness in serving 

employers performance indicator is 

being placed on State, local, and Tribal 

governments, as this information 

already is being collected and reported 

on. Furthermore, the reporting is a 

contingent to receiving Federal program 

funding. Any associated reporting 

mandate cannot, therefore, be 

considered ‘‘unfunded.’’ Because the 

decision by a private training entity to 

participate as a provider under a WIOA 

core program is purely voluntary, the 

information collection burden does not 

impose a duty on the private sector that 

is not voluntarily assumed. 

F. Executive Order 13175 (Indian Tribal 

Governments) 

The Department reviewed this final 

rule, as well as the Joint WIOA 

Effectiveness in Serving Employers 

Final Rule published concurrently with 

this final rule elsewhere in this issue of 

the Federal Register, under the terms of 

E.O. 13175 and DOL’s Tribal 

Consultation Policy (77 FR 71833 (Dec. 

4, 2012)) and has determined that it will 

have Tribal implications, because the 

final rule would 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. 

Therefore, the Department prepared a 

Tribal summary impact statement. 

Engagement With Indian Tribes 

The Department engaged with INA 

grantees and the Tribal community at 

several points in this rulemaking. Prior 

to issuing the NPRM, the Department 

held two events to consult with INA 

program grantees and representatives of 

Tribal institutions about their 

experiences with the implementation 

and operation of the effectiveness in 

serving employers performance 

indicator. These two events consisted of 

a town hall meeting attended both in 

person and virtually and a formal 

consultation webinar. The town hall, 

entitled ‘‘Town Hall Discussion: 

Effectiveness in Serving Employers 

Performance Indicator,’’ occurred on 

September 21, 2021, at the 41st National 

Indian and Native American 

Employment and Training conference.27

The consultation webinar, entitled 

‘‘Tribal Consultation for WIOA 

Effectiveness in Serving Employers 

Indicator Proposed Rulemaking,’’ 

occurred on October 19, 2021.28 At the 

consultation webinar, the Department 

provided an opportunity for 

stakeholders to submit written feedback 

through DOL’s Tribal consultation email 

account by October 29, 2021. The 

Department did not receive any written 


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29Meeting proceedings are located on the NAETC 

web page. ETA, ‘‘Native American Employment and 

Training Council,’’ https://www.dol.gov/agencies/ 

eta/dinap/council (last visited Nov. 10, 2023). 

feedback through DOL’s Tribal 

consultation email account but received 

one letter after the consultation period 

for October 2021 consultation webinar, 

which raised similar issues to those 

articulated at the consultation event and 

summarized below. This letter was not 

formally considered during the 

development of the NPRM due to the 

late nature of its submission, though it 

raised similar issues to those articulated 

at the consultation event and 

summarized below. 

After the release of the NPRM, the 

Department discussed the NPRM with 

NAETC at the October 2022 NAETC 

meeting.29 During this discussion, the 

Department encouraged submission of 

comments on the NPRM. In response to 

the NPRM, the Department received one 

public comment submission, which is 

discussed above in Section III.F, and 

that requested that the Department 

consult with the WIOA sec. 166 

programs, the NAETC, and Tribal 

officials in order to develop and 

establish the performance indicator. 

Summary of Concerns 

These various engagements provided 

the Department with feedback from the 

INA community, Tribal representatives, 

and the general public that indicating 

several areas of interest concerning the 

definition of the effectiveness in serving 

employers performance indicator for 

WIOA programs. These concerns are 

summarized below. 

Employer, Wage, or Position Changes 

Consultation participants expressed 

concern about impacts of individuals 

changing employers for higher wages or 

different positions. Specifically, several 

consultation participants asked how the 

Retention with the Same Employer 

definition of the performance indicator 

would apply to individuals who have 

continuous employment through the 

second and fourth quarters, but with 

different employers. Some consultation 

participants expressed concern that this 

definition of the performance indicator 

would not consider individuals who 

advance to better employment 

opportunities. One consultation 

participant expressed concern that the 

program would be penalized if 

employees change employers. 

Temporary, Seasonal, and Youth 

Employment 

Many consultation participants 

expressed concern about how temporary 

jobs, such as seasonal or contract-based 

employment, would be considered. 

Specifically, one consultation 

participant gave an example of 

contractor jobs where individuals may 

not stay with the same employer and 

instead change from job to job, such as 

in construction. Additionally, another 

consultation participant stated that 

employers that regularly lay off and 

then rehire employees would affect 

outcomes. 

A consultation participant asked if 

this measure applies to the INA youth 

program. Another consultation 

participant expressed concern about the 

impact on performance of limitedduration summer employment 

opportunities for high school students 

within INA youth programs. The 

consultation participants also 

questioned DOL’s willingness to invest 

in developing a data collection and 

reporting process for INA youth 

programs. 

Other consultation participants 

expressed concern about how seasonal 

jobs would be addressed and that 

certain areas have more seasonal 

employment than other areas do. 

Another consultation participant stated 

that individuals who participate in the 

program on a short-term basis while 

serving time with the Department of 

Corrections and later return to a 

different State may impact the 

performance indicator calculation. A 

different consultation participant stated 

that many participating employers 

primarily provide entry-level positions 

focused on gaining work experience. 

Performance Indicator Calculation 

Many consultation participants 

inquired about how the performance 

indicator is calculated. One consultation 

participant asked a question in which 

the sound quality of the audio was not 

clear. However, the subject-matter 

expert interpreted the question to ask if 

supplemental wages are considered. 

One consultation participant stated that 

UI records may not capture individuals 

who are self-employed. Another 

consultation participant said that 

certain States do not have access to UI 

information that would enable them to 

calculate the performance indicator. 

Many consultation participants 

suggested other ways to calculate the 

performance indicator. Examples 

provided by one consultation 

participant included employer 

satisfaction surveys, number of 

employers served, number of repeat 

employers, and number of job fairs 

coordinated with employers. Another 

consultation participant said they 

measure success when an employer 

enquires about recent graduates to fill 

open positions. A different consultation 

participant stated that they understood 

the options DOL considered for how to 

measure effectiveness in serving 

employers to include how well 

programs have assisted employers in 

hiring new employees through job fairs, 

work experience to full-time hires, 

pre-screening of candidates, and 

individual hiring events for specific 

employers. 

Tribal Community Impacts 

Some consultation participants had 

questions and comments about how the 

performance indicator would 

specifically impact Tribal communities. 

One consultation participant expressed 

the need for consideration of all Tribal 

communities and their unique needs. 

The consultation participant stated that 

measures used for all INA programs 

must not only satisfy the intent of the 

performance indicator but also be 

meaningful, which is part of the 

purpose of WIOA sec. 166. The 

commenter also suggested that grantees 

should establish a work group within 

the NAETC to develop information to 

share with Tribal leaders so that they 

have background and can communicate 

what these performance indicators 

would mean for INA programs. 

Another consultation participant cited 

the DOL-commissioned third-party 

study of the performance indicator, 

‘‘Measuring the Effectiveness of Service 

to Employers,’’ and questioned why 

some States with many Indian and 

Native American participants were not 

included in the pilot study. The 

consultation participant also asked if 

any INA WIOA programs were included 

in the study. Additionally, a 

consultation participant said that DOL 

is seeking support from Tribes on how 

to measure a performance indicator they 

may not want. 

Process Questions and Other 

Observations 

Many consultation participants asked 

questions about the rulemaking process 

and how the Department decided on the 

proposed definition of the performance 

indicator. Some consultation 

participants asked if this performance 

indicator is required. One consultation 

participant asked if the performance 

indicator can be customized based on 

the grantee’s status, for example with 

different requirements for rural and 

urban programs. A different 

consultation participant asked if DOL 

would decide after consultation with 

Tribes whether or not to apply the 

performance indicator to INA programs. 

Other consultation participants asked if 

the definition of this performance 


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indicator would be permanent or if it 

would be re-evaluated in the future. 

Additionally, a consultation participant 

asked if they could review the draft rule 

with others before it is published, when 

the proposed rule would be published, 

and when the final rule would take 

effect. 

A consultation participant asked if 

other performance indicator definitions 

have been submitted for consideration, 

for example from the NAETC. Another 

consultation participant stated that 

grantees with direct employer 

relationships differ from grantees that 

work with AJCs to facilitate 

employment for employers. 

Additionally, a consultation participant 

asked how grantees can assist 

participants who are facing issues at a 

new employment site, such as being 

picked on or treated unfairly, and 

whether it would be appropriate to act 

as a mediator between the employer and 

the participant. 

Need for the Regulation 

The Department appreciates the 

valuable feedback received through 

these engagements with INA program 

grantees and representatives of Tribal 

institutions and has considered this 

feedback carefully in crafting this final 

rule and its planned implementation. 

The effectiveness in serving employers 

performance indicator is required by the 

WIOA statute for the INA program, as 

WIOA sec. 166(h)(2) requires using the 

primary indicators of performance 

described in sec. 116(b)(2)(A). 

Therefore, the Department has 

determined that a standard definition 

for the effectiveness in serving 

employers performance indicator would 

be proposed and finalized for the INA 

program. As such, the Department is 

aligning its definition of this indicator 

for the sec. 166 INA program with the 

WIOA Effectiveness in Serving 

Employers Joint Final Rule. 

However, the Department 

acknowledges the concerns raised 

through the consultations. In 

recognition of these concerns, the 

Department intends to take several steps 

to address these matters. First, as 

discussed above in Section III.F, the 

Department will exercise its discretion 

to place appropriate weight on the 

effectiveness in serving employers 

performance indicator in assessing INA 

grantee performance. The Department 

recognizes the unique circumstances 

INA grantees may face and the expects 

variability in the reported outcomes 

from program to program, especially for 

programs serving youth, and intends to 

take this variability into account when 

establishing levels of performance. 

These considerations are consistent 

with TEGL No. 14–18 guidance for 

applicability of primary performance 

indicators, which specifies that, as a 

general matter, participants’ outcomes 

on the applicable primary indicators of 

performance may be relevant for 

establishing levels of performance, 

decisions related to contract awards and 

renewal, and the award of competitive 

grants. 

Second as explained above in Section 

I.D and III.F, the Department notes that 

the selected measure should not impose 

any additional burden on INA program 

grantees as the definition of the 

effectiveness in serving employers 

measure will not require any additional 

reporting from INA program grantees 

above what is currently collected for the 

approved ‘‘DOL-Only Performance 

Accountability, Information, and 

Reporting System’’ ICR. 

Finally, the Department reaffirms the 

ability of INA program grantees to 

request a waiver of performance 

indicators as described in TEGL No. 04– 

19, ‘‘Waiver Authority for the INA 

Program and Implementation of 

Additional Indicators of Performance,’’ 

and discussed above in Section III.F. As 

part of the implementation of this final 

rule, the Department will provide 

dedicated technical assistance to INA 

program grantees regarding the use of 

this indicator. 

List of Subjects 

20 CFR Part 684 

Employment, Grant programs—labor, 

Indians, Reporting and recordkeeping 

requirements. 

20 CFR Part 686 

Employment, Grant programs—labor, 

Job Corps. 

20 CFR Part 688 

Employment, Grant programs—labor, 

Youth, YouthBuild. 

For the reasons discussed in the 

preamble, the Department of Labor 

proposes to amend 20 CFR parts 684, 

686, and 688 as follows: 

PART 684—INDIAN AND NATIVE 

AMERICAN PROGRAMS UNDER TITLE 

I OF THE WORKFORCE INNOVATION 

AND OPPORTUNITY ACT 

■ 1. The authority citation for part 684 

continues to read as follows: 

Authority: Secs. 134, 166, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 

Subpart D—Supplemental Youth 

Services 

■ 2. Amend § 684.460 by revising 

paragraph (a)(6) to read as follows: 

§ 684.460 What performance indicators are 

applicable to the supplemental youth 

services program? 

(a) * * * 

(6) The percentage of participants in 

unsubsidized employment during the 

second quarter after exit from the 

program who were employed by the 

same employer in the second and fourth 

quarters after exit. 

* * * * * 

Subpart F—Accountability for Services 

and Expenditures 

■ 3. Amend § 684.620 by revising 

paragraph (a)(6) to read as follows: 

§ 684.620 What performance indicators are 

in place for the Indian and Native American 

program? 

(a) * * * 

(6) The percentage of participants in 

unsubsidized employment during the 

second quarter after exit from the 

program who were employed by the 

same employer in the second and fourth 

quarters after exit. 

* * * * * 

PART 686—THE JOB CORPS UNDER 

TITLE I OF THE WORKFORCE 

INNOVATION AND OPPORTUNITY ACT 

■ 4. The authority citation for part 686 

continues to read as follows: 

Authority: Secs. 142, 144, 146, 147, 159, 

189, 503, Pub. L. 113–128, 128 Stat. 1425 

(Jul. 22, 2014). 

Subpart J—Performance 

■ 5. Amend § 686.1010 by revising 

paragraph (f) to read as follows: 

§ 686.1010 What are the primary indicators 

of performance for Job Corps centers and 

the Job Corps program? 

* * * * * 

(f) The percentage of participants in 

unsubsidized employment during the 

second quarter after exit from the 

program who were employed by the 

same employer in the second and fourth 

quarters after exit. 

PART 688—PROVISIONS GOVERNING 

THE YOUTHBUILD PROGRAM 

■ 6. The authority citation for part 688 

continues to read as follows: 

Authority: Secs. 171, 189, 503, Pub. L. 

113–128, 128 Stat. 1425 (Jul. 22, 2014). 


ddrumheller on DSK120RN23PROD with RULES1
13614 Federal Register / Vol. 89, No. 37 / Friday, February 23, 2024 / Rules and Regulations 

1Office of Management and Budget, M–24–07–, 

Memorandum for the Heads of Executive 

Departments and Agencies, Implementation of 

Penalty Inflation Adjustments for 2024, Pursuant to 

the Federal Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015. (https://

www.whitehouse.gov/wp-content/uploads/2023/12/ 

M-24-07-Implementation-of-Penalty-InflationAdjustments-for-2024.pdf). (October 2023 CPI–U 

(307.671)/October 2022 CPI–U (298.012) = 1.03241). 

2 28 U.S.C. 2461 note. 

3For certain programs including Multifamily, 

Section 202, and Section 811 mortgagors under 24 

CFR 30.45 and Section 8 owners under 24 CFR 

30.68, penalty amounts provided in a pre-penalty 

notice to a respondent pursuant to 24 CFR 30.70 is 

not considered having been assessed under this 

rule. For these programs, penalty amounts are 

considered to be assessed once the penalty amounts 

have been adjudicated as final or agreed upon 

under a settlement agreement. 

Subpart D—Performance Indicators 

■ 7. Amend § 688.400 by revising 

paragraph (f) to read as follows: 

§ 688.400 What are the performance 

indicators for YouthBuild grants? 

* * * * * 

(f) The percentage of participants in 

unsubsidized employment during the 

second quarter after exit from the 

program who were employed by the 

same employer in the second and fourth 

quarters after exit; and 

* * * * * 

Julie A. Su, 

Acting Secretary of Labor. 

[FR Doc. 2024–03279 Filed 2–22–24; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Parts 28, 30, 87, 180, and 3282 

[Docket No. FR–6446–F–01] 

Adjustment of Civil Monetary Penalty 

Amounts for 2024 

AGENCY: Office of the General Counsel, 

HUD. 

ACTION: Final rule. 

SUMMARY: This rule provides for 2024 

inflation adjustments of civil monetary 

penalty amounts required by the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, as amended by the Federal 

Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015 (the 2015 

Act). 

DATES: Effective date for 2024 inflation 

adjustment: March 25, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Aaron Santa Anna, Associate General 

Counsel for Legislation and Regulations, 

Office of the General Counsel, 

Department of Housing and Urban 

Development, 451 7th Street SW, Room 

10276, Washington, DC 20024; 

telephone number 202–402–5138 (this 

is not a toll-free number). HUD 

welcomes and is prepared to receive 

calls from individuals who are deaf or 

hard of hearing, as well as from 

individuals with speech or 

communication disabilities. To learn 

more about how to make an accessible 

telephone call, please visit https://

www.fcc.gov/consumers/guides/ 

telecommunications-relay-service-trs. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (the 2015 Act) (Pub. L. 114–74, 

Sec. 701), which further amended the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Pub. L. 101– 

410), requires agencies to make annual 

adjustments to civil monetary penalty 

(CMP) amounts for inflation 

‘‘notwithstanding section 553 of title 5, 

United States Code.’’ Section 553 refers 

to the Administrative Procedure Act, 

which provides for advance notice and 

public comment during the rulemaking 

process. However, as explained in 

Section III below, HUD has determined 

that advance notice and public 

comment on this final rule is 

unnecessary. 

This annual adjustment is for 2024. 

The annual adjustment is based on the 

percent change between the U.S. 

Department of Labor’s Consumer Price 

Index for All Urban Consumers (‘‘CPI– 

U’’) for the month of October preceding 

the date of the adjustment, and the CPI– 

U for October of the prior year (28 

U.S.C. 2461 note, section (5)(b)(1)). 

Based on that formula, the cost-of-living 

adjustment multiplier for 2024 is 

1.03241.1 Pursuant to the 2015 Act, 

adjustments are rounded to the nearest 

dollar.2

II. This Final Rule 

This final rule makes the required 

2024 inflation adjustment of HUD’s civil 

money penalty amounts. The 2024 

increases apply to penalties assessed 3

on or after this rule’s effective date (if 

the violation occurred after the 

enactment of the 2015 Act). HUD 

provides a table showing how, for each 

component, the penalties are being 

adjusted for 2024 pursuant to the 2015 

Act. In the first column (‘‘Description’’), 

HUD provides a description of the 

penalty. In the second column 

(‘‘Statutory Citation’’), HUD provides 

the United States Code statutory citation 

providing for the penalty. In the third 

column (‘‘Regulatory Citation’’), HUD 

provides the Code of Federal 

Regulations citation under Title 24 for 

the penalty. In the fourth column 

(‘‘Previous Amount’’), HUD provides the 

amount of the penalty pursuant to the 

rule implementing the 2023 adjustment 

(88 FR 9745, February 15, 2023). In the 

fifth column (‘‘2024 Adjusted 

Amount’’), HUD lists the penalty after 

applying the 2024 inflation adjustment. 

Description Statutory citation 

Regulatory 

citation 

(24 CFR) 

Previous amount 2024 Adjusted amount 

False Claims ............................. Omnibus Budget Reconciliation Act of 1986 

(31 U.S.C. 3802(a)(1)).

§ 28.10(a) ..... $13,508 .................................... $13,946. 

False Statements ..................... Omnibus Budget Reconciliation Act of 1986 

(31 U.S.C. 3802 (a)(2)).

§ 28.10(b) ..... $13,508 .................................... $13,946. 

Advance Disclosure of Funding Department of Housing and Urban Development Act (42 U.S.C. 3537a(c)).§ 30.20 .......... $23,727 .................................... $24,496. 

Disclosure of Subsidy Layering Department of Housing and Urban Development Act (42 U.S.C. 3545(f)).§ 30.25 .......... $23,727 .................................... $24,496. 

FHA Mortgagees and Lenders 

Violations.

HUD Reform Act of 1989 (12 U.S.C. 1735f– 

14(a)(2)).

§ 30.35 .......... Per Violation: $11,864; Per 

Year: $2,372,677.

Per Violation: $12,249; Per 

Year: $2,449,575. 

Other FHA Participants Violations.HUD Reform Act of 1989 (12 U.S.C. 1735f– 

14(a)(2)).

§ 30.36 .......... Per Violation: $11,864; Per 

Year: $2,372,677.

Per Violation: $12,249; Per 

Year: $2,449,575. 

Indian Home Loan Guarantee 

Lender or Holder Violations.

Housing Community Development Act of 1992 

(12 U.S.C. 1715z–13a(g)(2)).

§ 30.40 .......... Per Violation: $11,864; Per 

Year: $2,372,677.

Per Violation: $12,249; Per 

Year: $2,449,575. 

Multifamily & Section 202 or 

811 Owners Violations.

HUD Reform Act of 1989 (12 U.S.C. 1735f– 

15(c)(2)).

§ 30.45 .......... $59,316 .................................... $61,238. 

Ginnie Mae Issuers & 

Custodians Violations.

HUD Reform Act of 1989 (12 U.S.C. 1723i(a)) § 30.50 .......... Per Violation: $11,864; Per 

Year: $2,372,677.

Per Violation: $12,249; Per 

Year: $2,449,575. 


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