[Excerpt from Federal Register / Vol. 59, No. 170 / Friday, September 2, 1994
/ 45815 (amendments to JTPA regulations)]
Subpart E--Grievance Procedures at the State and Local Level
The new part 627, subpart E, sets forth the grievance procedures
required at the State and SDA and SSG levels, including State review,
that were generally found at 20 CFR 629.52.
A commenter suggested that the reference to the handling of
complaints alleging discrimination in Sec. 627.500(a) be made a
separate paragraph.
The Department agrees with the suggestion and Sec. 627.500 is
revised to redesignate the last sentence in paragraph (a) as a new
paragraph (b), Handling of discrimination complaints. In addition,
paragraphs (b) and (c) are redesignated as paragraphs (c) and (d),
respectively.
A commenter observed that under the previous regulations,
complaints involving fraud, waste, abuse, or criminal activity were to
be reported to the Secretary, and that Sec. 627.500(b) of the interim
final regulations now provides that such complaints are to be reported
to the DOL OIG. The commenter's concern was that ETA might not be aware
of, but had a need to know of, such complaints, and recommended that
the regulations be amended to also include notification to ETA for such
complaints. Another commenter suggested that complaints be reported
concurrently to ETA and the OIG.
The purpose of the interim final regulations was to ensure that
criminal activity was directed to the OIG for resolution. Other
processes set forth in the regulations for the handling of complaints
are designed for non-criminal JTPA complaints. The provision at
Sec. 627.500(b) is amended to provide for reporting criminal activity
to the OIG, Office of Investigations through the Department's Incident
Reporting System, with a copy simultaneously provided to ETA. Other
non-criminal complaints will continue to be handled under the
procedures set forth at part 627, subparts E and F, and through the
Department's Incident Reporting System.
A commenter recommended deleting Sec. 627.500(c)(2) concerning a
private right of action with respect to alleged violations of JTPA
statute or regulations in pursuing non-JTPA remedies since there is no
statutory authority for the provision.
The provision at Sec. 627.500(c)(2) is not a new provision. Prior
to the interim final rule, it was set forth at 20 CFR 629.51(b)(3)
since the March 15, 1983 regulations implementing JTPA. It does not
preclude a private right of action if one exists, but rather indicates
that nothing in the Act or in the regulations creates such a right. No
change is made to the final rule.
A commenter recommended that States, SDA's, and SSG's be required
to develop their grievance procedures in such a way as to broadly
inform participants under the JTPA system of their rights.
The Department believes that the Act and regulations clearly set
out the broad outlines of the grievance, hearings, and appeal rights
under JTPA for interested parties. The specific complaint and grievance
procedures to be followed are appropriately developed at the State and
local level in accordance with the provisions of the Act and these
regulations. Such procedures are routinely made available to
participants upon entering the program, and to subrecipients and other
interested parties. No change is made to the final rule.
A commenter recommended that States should be required to establish
timeframes for resolving complaints and recommended a 60-day time
period.
The Department expects that State, SDA and SSG grievance procedures
already address this issue as an integral and necessary part of their
procedures. In any case, the regulations already include a 60-day time
period at Secs. 627.502(c) and 627.503 (a) and (c) of the interim final
rule. Therefore, no change is made to the final rule.
A commenter recommended that a neutral third party be included in
the grievance processes at the State level under Sec. 627.501, and the
SDA and SSG level under Sec. 627.502, to hear and act upon complaints.
In addition, the commenter suggested that programs should be encouraged
to take advantage of recent Federal initiatives related to mediation of
disputes.
The interim final regulations already provide for the use of
neutrals in the JTPA grievance process in certain situations. For
instance, such use is included in binding arbitration proceedings under
the alternate procedure for handling labor standards violation under
section 144 of the Act, and the alternative dispute resolution
provisions at Sec. 627.805 available to parties to a complaint under
Sec. 627.801, Procedures for filing a request for hearing. The
regulations also provide for an independent review of complaints at the
State level pursuant to the provisions at Sec. 627.503. No change is
made to the final rule.
A commenter recommended increased DOL participation in monitoring
and handling complaint processes at the State and SDA and SSG levels,
including regular participation in grievance hearings.
The grievance procedures established pursuant to section 144 of the
Act, and set forth at Secs. 627.501 and 627.502 of the interim final
rule, are intended to ensure due process and to provide for the timely
and orderly processing of JTPA complaints at the State and local
levels. The regulations also provide for a State-level review of local
grievances, as set forth at Sec. 627.503. There is also provision for
Federal-level review of State and local-level complaints without
decision at Secs. 627.601(a) and 627.605. It would be premature and
improper to interject the Department into a State or local grievance
process before it is completed. It would also create problems in the
event that the Department was subsequently requested to review a
complaint in which it had participated. The Department believes that
the regulations set forth in the interim final rule are appropriate and
consistent with the legislative provisions. Therefore, no change is
made to the final rule.
A commenter recommended that the time period for requesting a
State-level review of a local complaint, provided under Sec. 627.503(c)
of the interim final rule, be increased from 10 and 15 days to 30 days.
Under the statutory provisions at section 144, and the regulatory
provisions at part 627, subparts E, F, G and H, the grievance
procedures established at the various levels are intended to provide
the speedy processing of filed complaints. The Department believes that
the timeframes established in the regulations are consistent with the
statutory scheme. No change is made to the final rule.
A commenter recommended including examples of independent reviewers
at Sec. 627.503(b) pertaining to State level review of complaints.
The Department does not believe that it is appropriate to include a
laundry list of examples of possible independent reviewers in the
regulations, but agrees that some clarification in this area is
warranted. Section 627.503(b) is amended in the final rule to indicate
that independent review should be conducted by a reviewer who is not
connected with the JTPA program.
A commenter recommended amending the employer-level grievance
provisions at Sec. 627.504 to indicate that if an employer is required
to use grievance procedures under a covered collective bargaining
agreement, then those should be the operative procedures for the
handling of JTPA complaints at that level. In addition, it was
recommended that if no collective bargaining agreement exists,
participants should be made fully aware of their rights to file a
grievance either by using the employer's grievance procedures or the
SDA's JTPA grievance procedures.
The Department agrees that where the employer is required to follow
a certain grievance procedure under the provisions of a collective
bargaining agreement, those procedures should be followed for
complaints pertaining to the terms and conditions of employment of JTPA
participants, therefore, Sec. 627.504(b) is revised accordingly. The
regulations provide that recipients, SDA's and SSG's shall ensure that
employers have grievance procedures available to their JTPA
participants. Some commenters suggested that participants be permitted
to choose a grievance procedure under which to process a complaint. The
regulations indicate that employers of JTPA participants may elect to
operate their own grievance procedures or use the recipient's, SDA's or
SSG's grievance procedures established pursuant to section 144 of the
Act. The employer must inform participants of the procedures they are
to follow when they begin employment. The choice of which grievance
procedure to follow does not extend to the individual participants.
Since the relationship exists between the employer and the JTPA entity
in the first instance, it is important that all of the procedures and
provisions applicable to a given employer, including grievance
procedures, are clearly established in the agreement. The Department
believes that the existing regulatory provision is consistent with the
provisions of the Act, avoids potential confusion that could result
from the recommended change, and provides for the consistent treatment
and processing of JTPA complaints at the employer level. No change is
made to the final rule.
Subpart F--Federal Handling of Non-criminal Complaints and Other
Allegations
A commenter recommended that the reference to the handling of
discrimination complaints at 20 CFR 627.600 be made a separate
paragraph. The Department agrees with this recommendation and is
amending the final regulations to redesignate the first two sentences
of Sec. 627.600 as paragraph (a), and the last sentence, pertaining to
discrimination complaints, as paragraph (b).
A commenter recommended revising Sec. 627.601, noting that section
authorizes the receipt of complaints at the Federal level without
mention of the statutory preconditions for such acceptance that are
partially explained in paragraphs (a)(2), (a)(3) and (a)(5) of that
section. Further, the commenter argued that although some of the
preconditions for acceptance of a complaint at the Federal level appear
in later sections of the regulations, Sec. 627.601, as written, is
unauthorized by the Act and is misleading.
The provisions at Sec. 627.601 are not intended, by themselves, to
spell out all of the preconditions that apply to the various complaints
and allegations that may be filed at the Federal level, but rather are
intended to indicate the types of such complaints that may be received
and the options available to the Secretary for the handling of such
complaints. The provisions that apply to the Federal handling of non-
criminal complaints and other allegations are set out in all of subpart
F and must be viewed in their entirety to determine how they apply. The
various sections in subpart F either include the preconditions for
filing a complaint or cite other provisions of the Act and/or JTPA
regulations which spell out such preconditions. The Department believes
that the regulatory provisions are consistent with, and accurately
reflect, the provisions of the Act. No change is made to the final
rule.
A commenter suggested that, under the provision at Sec. 627.601,
the Governor does not have final determination authority in any
complaint because the regulations specify that Federal level reviews
may include all of paragraph (a), which includes any violation of the
Act, and recommended that the final rule provide clarification in this
area.
The regulations, at Sec. 627.503(d), provide that, with the
exception of complaints alleging violations of the labor standards at
section 143 of the Act, the Governor's decision is final unless the
Secretary exercises the authority for Federal-level review set forth at
Sec. 627.601 of the interim final regulations. The provisions at
Sec. 627.601(a) reserve the Secretary's authority to receive and review
complaints alleging a specific violation of the Act and/or JTPA
regulations, notwithstanding resolution of a complaint under procedures
at a lower level. Upon receipt, the Secretary may handle such
complaints, as set forth at paragraph (b) of that section. The
Department believes that the regulations accurately reflect the
Secretary's and Governor's authority in this area and that further
clarification in the regulations is not needed. No change is made to
the final rule.
A commenter noted that, in the remedies available for labor
standards violations, Sec. 627.603(c)(3) refers to "back pay," and
paragraph (d)(2) of that section refers to "lost wages" and asked for
a definition of these terms.
The interim final regulations incorporated the statutory language
pertaining to remedies for labor standards violations at section 143(f)
of the Act, which includes these two terms. The Department believes
that, from a practical standpoint, there is no difference in these two
terms. Both terms refer generically to "compensation" in the context
of appropriate remedies; under paragraph (c)(3), wages are not an
available remedy, while they are an available remedy under paragraph
(d)(2). In applying a remedy, these terms would refer to the amount of
compensation (excluding benefits which are separately provided for)
that a person would have received had the violation not occurred. The
Department believes that the regulations are sufficiently clear and
that further clarification is not needed. No change is made to the
final regulations.
A commenter disagreed with the provision at Sec. 627.603(b)(4)
which provides that there is no ALJ review of the Secretary's decision
upholding the Governor's decision in complaints alleging section 143
labor standard violations.
The Act, at section 144(d)(2), specifically provides that the
Secretary may modify or reverse the Governor's decision on a complaint
alleging a labor standards violation, or issue a decision if no
decision has been issued, only after an opportunity for a hearing
before an administrative law judge of the Department of Labor. The
opportunity for an ALJ hearing is limited to actions by the Secretary
to change a Governor's decision or to issue a decision as provided for
at section 144(d)(2) of the Act. The provisions at section 144(d)(3),
pertaining to the Secretary upholding the Governor's decision,
specifically state that the Secretary's decision "shall become the
final decision of the Secretary." The Department believes that the
regulations accurately reflect, and implement, the provisions at
section 144(d) of the Act. No change is made to the final regulations.
No comments were received on Sec. 627.604 and no change is made to
the final rule.
A commenter recommended that under the provisions at Sec. 627.605,
Special Federal review of SDA and SSG-level complaints without
decision, where there has been no action on a complaint at the local
level the Department should not only act on the individual complaint,
but also conduct a thorough review of the administrative capabilities
of the SDA/SSG. In addition, the Secretary should be prepared to impose
more than just a sanction for failing to issue a complaint decision,
but also impose corrective actions up to and including reorganization
of the SDA/SSG.
The provision at Sec. 627.605 pertains to actions that may be taken
against the Governor for failing to provide a decision as required at
Sec. 627.503(a) of the regulations. These actions may include imposing
a sanction for failing to issue a decision pursuant to the provisions
at Sec. 627.605(b). The right of the Secretary to review SDA/SSG
operations for compliance with the Act and applicable JTPA regulations
is reserved at Sec. 627.601(b) of the regulations. The Department
believes that the regulations provide adequate and appropriate
procedures for the handling of complaints alleging violations of the
Act and JTPA regulations at the Federal, State, and SDA/SSG levels,
consistent with implementing the provisions of the Act. No change is
made to the final rule.
A commenter indicated that there were two paragraphs (d) in
Sec. 627.606. The second is now redesignated as paragraph (e). Another
commented that the correct reference in Sec. 627.606(d)(2)(vii) should
be subpart H. The final rule is corrected. Also, the heading of
Sec. 627.606(c) is changed to read, "Informal resolution".
Subpart G--Sanctions for Violations of the Act Liability of Units of
Local Government
A few commenters objected to the Department's singling out units of
local government for bearing liability for funds misexpended by their
SDA/SSG. It is not the Department's intent to single out units of local
government to bear liability, but it is the Department's intent to make
clear that neither a separately incorporated administrative entity
(e.g., a PIC) nor a local unit of government can insulate (liability-
proof) itself from responsibility for misexpended funds. This is a more
clearly expressed statement of the Department's position, and does not
constitute a change in policy or position. One commenter expressed full
support for the provision while another thought it should be made even
stronger by requiring local government units to be held liable. The
provision is not changed. The Department encourages incorporated PIC's
to be active participants in the delivery of JTPA services. To this
end, the provisions of Sec. 628.415(b) indicate that the Governor's
requirements on responsibility for JTPA funds may not, on their face,
preclude the selection of an incorporated PIC as the grant recipient.
Waiver of State Liability
As a result of a comment concerning Sec. 627.480(f), discussed
above, the second sentence of Sec. 627.704(a) is removed. It is
replaced with two new paragraphs, (b)(1) and (b)(2), which address the
timing of requests for waiver of State liability. The remaining two
paragraphs are redesignated as paragraphs (c) and (d), respectively.
A few commenters suggested that SDA's should be allowed to request
waivers. Some indicated that such requests should be made in
conjunction with States, while others seemed to imply that such
requests could be made directly, bypassing the State. However, as
indicated at Sec. 627.702(e), it is the recipient that is held liable
by ETA. Therefore, the only liability that ETA can waive is the
recipient's liability for the sanction imposed on it.
Several commenters suggested that the provision should be revised
to permit a waiver in those instances where the fraud was perpetrated
against the recipient/subrecipient so as to avoid penalizing entities
which discover, report, investigate and prosecute the perpetrator of
such fraud. Both this provision at Sec. 627.704 and the provision at
Sec. 627.706 Process for advance approval of a recipient's contemplated
corrective actions are revised for such situations.
Offset Process
A few commenters expressed the belief that States would not request
"offset" if it were limited to State-level administrative funding. A
commenter also indicated that most misexpenditures occur at the
subrecipient level and that, if it is not a section 164(e)(1)
violation, offset should be allowed at the level where the
misexpenditure occurred. Another suggested the need to be flexible
after considering all of the circumstances in the individual case.
Section 164(d) of the Act indicates that offset may be "against any
other amounts to which the recipient is or may be entitled * * *."
(Emphasis added) Under title II, the recipient must allocate 77 percent
of the funds to SDA's and is entitled to retain 23 percent of the funds
allotted for specifically identified activities. It is the Department's
position that a reduction in the funds available through the "offset"
process should not adversely impact the delivery of training and
services to participants, nor the incentive grant and capacity building
activities. Therefore, the Department believes that only the title II
five percent (5 percent) administrative funds to which the recipient is
entitled should be available for offset. Similar reasoning applies to
the Department's restriction for title III funds. The Department fully
expects that recipients will seriously consider their options, and the
consequences thereof, and will not make frivolous use of this
provision.
A commenter indicated that use of the phrase, "amounts
chargeable", in Sec. 627.708(b), conveys the implication that the
administrative costs must be incurred before they can be "offset".
This was not the Department's intent. The provision is rewritten to
indicate that "offset" may be against amounts allotted that are
expected to be used for recipient-level administrative costs.
Subpart H--Hearings by the Office of Administrative Law Judges
A commenter recommended amending the regulations at Sec. 627.800(a)
to include Grant Officer Final Determinations made pursuant to
Sec. 627.606 under the ALJ hearing process in addition to those
specified at section 166(a) arising in connection with alleged
violations of sections 141(c), 144 (d) and (e), 164(f) and 167 of the
Act.
Section 166(a) of the Act provides that an ALJ hearing may be
requested by any recipient upon whom a corrective action or sanction
has been imposed by the Secretary. By definition this would include
final determinations made by the Grant Officer. The Department believes
that the general provision included in section 166(a) of the Act is
sufficiently clear in establishing the jurisdiction of the ALJ and that
further clarification is not needed. No change is made to the final
regulations.
A commenter objected to the restrictions placed on the jurisdiction
of the OALJ regarding specific sections of the law which the commenter
believes will reduce the opportunity for complainants to have full
redress of their grievances at the highest levels.
The OALJ coverage is as provided for at section 166 of the Act, and
set forth at Sec. 627.800 of the interim final regulations. As noted in
the response to the preceding comment, the OALJ's jurisdiction includes
more than just the specific sections cited at section 166(a) of the
Act. No change is made to the final rule.
A commenter raised some concerns regarding the entities specified
at Sec. 627.801(a) that may request an ALJ hearing based on a Grant
Officer's final determination which imposes a sanction, a corrective
action, or denies financial assistance. It was correctly suggested that
the Grant Officer might issue a sanction upon a "vendor" and
paragraph (a) is amended to cover such situations. A commenter
recommended that the provisions at Sec. 627.801(a) pertaining to
procedures for filing a request for an ALJ hearing could be made clear
that a request for a hearing must be submitted by certified mail, by
changing the words "may transmit by certified mail" to "must
transmit by certified mail."
The Department agrees that the provision at Sec. 627.801(a) of the
interim final regulations seems to indicate that the use of certified
mail to transmit a request for a ALJ hearing is discretionary, which
was not intended. The provision at Sec. 627.801(a) is amended to
indicate that the Grant Officer's final determination to impose a
sanction or corrective action, or to deny financial assistance may be
appealed to the OALJ within 21 days of receipt of the final
determination, and that a request for a hearing shall be transmitted by
certified mail, return receipt requested to the Chief Administrative
Law Judge.
The Department has reviewed Sec. 627.802(e) in light of the recent
Supreme Court decision in Director, Office of Workers' Compensation
Programs v. Greenwich Collieries, 114 S.Ct. 2251, 62 U.S.L.W. 4543
(June 20, 1994) which addresses the allocation of burden of proof in
cases governed by Sec. 7(c) of the Administrative Procedure Act and has
concluded that no change in this section is required. In Greenwich
Collieries, the Supreme Court concluded that a claimant for benefits
under the Black Lung Benefits Act was the "proponent of a rule or
order" under section 7(c) of the APA and, as such, carried the burden
of persuasion. Section 627.802(e) of these regulations is predicated on
the fact that in appeals from Grant Officer Final Determinations the
grantee is the proponent of the rule since, in the absence of an
appeal, the Final Determination would represent a final debt due and
owing the United States. The grantee seeking to avoid this outcome is
clearly the "proponent of the rule or order." This construction is
also consistent with section 165 of the Act which places on grantees
the affirmative obligation to maintain adequate documentation to prove
the allowability of costs incurred. While the grantee has the burden of
persuasion, in our desire to ensure orderly presentation of evidence,
the Grant Officer retains the obligation to prepare and present the
administrative file.
In addition, a few of the commenters noted typographical errors or
incorrect statutory and/or regulatory citations in part 627, subparts
E, F, G, and H which are corrected in the final rule.
Subpart I--Transition and Implementation
On June 3, 1993, the interim final rule was amended to revise the
transition provisions at part 627, subpart I (58 FR 31471). Those
requirements are restated in the final rule, along with the addition of
a definition of "initiation of procurement" (Sec. 627.904(e)) and a
provision for the transfer of summer program funds
(Sec. 627.904(k)(2)).
A number of general comments were received on the difficulties and
uncertainties of the transition to the new program to be implemented on
July 1, 1993 and whether the contents of the interim final rule
adequately addressed a range of questions on the transition. Subsequent
to the publication of the interim final rule on December 29, 1992, the
Department conducted implementation training for the States in February
and March of 1992, provided transition guidance in Training and
Employment Guidance Letter 7-92 on March 8, 1993, and issued two sets
of questions and answers on the transition and interim final rule to
the Department of Labor regional offices by Field Memorandum that were
widely circulated throughout the JTPA system. The Department believes
that these mechanisms with the additional guidance reflected in the
June 3, 1993 Federal Register document, referenced above, substantially
answered the various transition questions and issues that were raised
and that a further discussion here is not required.
Part 628--Programs under Title II of the Job Training Partnership
Act
Nontraditional Employment for Women (NEW) Act (Pub. L. 102-235)
The Nontraditional Employment for Women (NEW) Act includes a series
of amendments to the JTPA. NEW's purposes are to provide a wider range
of training opportunities for women under existing JTPA programs; to
provide incentives for the establishment of programs that train, place,
and retain women in nontraditional fields; and to facilitate
coordination of JTPA and vocational education resources available for
training and placing women in nontraditional employment. Further, the
NEW Act is consistent with the overall goal of JTPA programs to
increase participants' employment, earnings, educational and
occupational skills. This separate discussion of the NEW Act is
provided as a reminder to States and SDAs of the importance of efforts
to train and place women in nontraditional employment and the emphasis
the Department places on such efforts. There are contained in the final
rule various references to the requirements pertaining to
nontraditional employment for women, especially as they pertain to
planning and setting goals, the assessment process and development of
the individual service strategy, and to the various reports required by
the Act.
"Nontraditional employment" is defined in the NEW Act as
occupations or fields of work where women comprise less than 25 percent
of the individuals employed in such occupation or field of work.
Although nontraditional occupations are usually thought of only as
construction or skilled trades, these occupations encompass a much
broader spectrum of jobs, including those in technical and other
fields.
Nontraditional occupations have the potential for greatly improving
the economic status of women, particularly when they are growth
occupations with increased wage potential. Nontraditional training for
women also provides benefits for the States and the SDA's. The
Department believes that this kind of training expands the occupational
mix available to all customers, and can enhance coordination with other
education and training programs, as well as with labor and
apprenticeship programs. It helps advance efforts by the States and/or
SDA's to be a valuable source of trained individuals for employers and
unions. Through the implementation of NEW, it is the Department's
intent that changes will occur throughout the job training system so
that training in nontraditional occupations becomes institutionalized
in each State. The GCSSP and the job training plan prepared by each SDA
were required to include goals, actions, and accomplishments for the
training and placement of women in nontraditional employment for the 2-
year period beginning July 1, 1992 and beyond. NEW does not establish
specific numerical goals by SDA or State. However, using General
Accounting Office data (GAS/HRD-89-152FS, September 1989), the
Department estimates that the proportion of women currently trained by
JTPA in nontraditional occupations nationwide is about 9 percent.
Therefore, at their option, States and SDA's may use this figure as a
substitute for a particular State's baseline until they can collect
data specific to that State. States should strive for a goal for
training and placing more than 9 percent of women participants in
nontraditional occupations.
The Department expects that the GCSSP and the SDA's job training
plan will reflect specific measurable activities to train and to place
women in nontraditional employment and apprenticeships, as required by
the statute. As mentioned earlier, SDA's may wish to consider using the
national figure of 9 percent as an indication of the pre-NEW level of
nontraditional training until geographic-specific data becomes
available. Sections 104(b)(6) and (13), 121(b)(3) and 122(b)(5)-(7) of
the Act require the States and SDA's to set goals and report on program
accomplishments. The Department intends to look closely at these
activities to ensure compliance with requirements of NEW.
Further, the Department expects that each State's and SDA's plans
and activities will reflect the development of outreach and promotional
materials and/or activities aimed at making women aware of the programs
and the services available through JTPA, particularly of nontraditional
training and placement opportunities. Examples of outreach materials
include, but are not limited to, nontraditional career information
modules, video and print materials on nontraditional career options
(for counselors), recruitment brochures targeted at both the customer
and the employer, and dissemination of preexisting resource materials
and/or model curricula. States may also wish to undertake statewide
public education campaigns, similar to those conducted for literacy
programs, on nontraditional training and employment opportunities. The
Department expects statewide dissemination of model programs/approaches
to serve as a method of encouraging the replication and
institutionalization of nontraditional training in the State. The
Department encourages the States to disseminate to SDA's and service
providers the SJTCC's summary report on promising programs funded by
JTPA or the Carl Perkins Vocational Education and Applied Technology
Act.
Most of the comments that pertained to NEW sought to add to the
regulations a number of specific requirements regarding services to
women and focussed on nontraditional employment. These suggested
requirements ranged from language to requiring OJT goals for women in
nontraditional employment, as well as standards for OJT contracts, to
specific procurement requirements as they pertain to women-owned
businesses, and specific monitoring requirements. The Department
believes that many of these ideas have merit but does not believe that
it is appropriate to establish them as Federal regulatory requirements
beyond that which would otherwise be required by the provisions of the
Act--particularly as the Federal Government looks to reduce
administrative requirements. On the other hand, a commenter suggested
that the regulations ought to reflect the statutory requirements. The
Department is persuaded that the NEW's requirements should be
emphasized by referencing them, as appropriate, in the regulations and
has done so in appropriate sections, including: Sec. 627.455, for the
annual report to the Governor that is to be described in the job
training plan; Sec. 628.205, pertaining to the State goals for the
training and training-related placement of women in nontraditional
employment and apprenticeships; Sec. 628.210, for the responsibility of
the SJTCC to review and analyze the annual reports of SDA's and to
distribute them in the State and to the Secretary; and Sec. 628.420,
for the SDA's local goals for the training and training-related
placement of women in nontraditional employment. These are not new
regulatory requirements; rather they are reflections of statutory
requirements.
Specific changes in PART 628--Programs under Title II of the Job
Training Partnership Act are as follows:
Governor's Coordination and Special Services Plans
Several comments were received on the Governor's coordination and
special services plans. Section 628.205(c) of the interim final
regulations required the States to provide their respective SDA's prior
to December 31 of the year preceding the program years for which the
plan is developed, information on its plans to undertake State
activities in program areas, including education coordination and
services to older workers, and capacity building.
Several commenters requested removal of the December 31 date. The
commenters suggested the language be revised to say that the State
should issue this information to SDA's in sufficient time for them to
be able to take it into consideration in developing plans. The
Department agrees with the commenters and this change is made to the
final regulations in a new paragraph (c)(2).
State Job Training Coordinating Council
One commenter suggested that there should be a representative of
the JOBS program on the Council. The Department agrees that this would
be a good step. However, since JOBS representatives can be included
within the meaning of "representatives of state public assistance
agencies", as set forth at section 122(a)(3)(b)(i) of the Act, no
change is made in the final regulations.
State Human Resource Investment Council
Several commenters were concerned that the regulations did not
require, or at least encourage, that membership on the SJTCC or the
HRIC include the State Agency on Aging or a designee to ensure that the
needs of older workers are addressed. It was stressed that such
representation on these councils would improve the commitment to older
workers and promote the development of integrated service systems for
older workers. The Department agrees that the needs of older
individuals should be addressed in the provision of JTPA services;
however, in interpreting requirements of the Act at sections
122(a)(3)(B)(i)(SJTCC) and 702(b)(5)(HRIC), the Department believes
there is already sufficient latitude and flexibility for the Governor
to appoint a representative from the State Agency on Aging and further
regulation is not necessary.
A commenter noted that it would be helpful to clarify in paragraph
(a) of the regulation that, when the State Council on Vocational
Education (SCOVE) is incorporated in the HRIC, the HRIC is responsible
for carrying out the functions of the SCOVE. The Department believes
that this is clear in the provisions of the Act and in Sec. 628.215(e)
of the regulations. No change is made to the final rule.
A commenter suggested that, when the SCOVE is included within the
HRIC, it would be beneficial to include the State Director of
vocational education on the HRIC since the State Director plays an
important role in education within each State, especially in
coordination and improvement of educational services. The Department
agrees and the final rule at Sec. 628.215(c) encourages the Governor to
consider appointment of the State Director to the HRIC.
A few commenters questioned the accounting basis for funds that are
made available to the HRIC. Some wished to ensure that when funds are
made available to the council the statutory activities for which they
are intended are accomplished. Another commenter pointed out that the
requirement to allocate funds on the basis of "benefits received"
goes beyond the requirements of the Act and the Conference Report,
which simply specified that State agencies were encouraged to provide
funds in a manner consistent with their representation on the council
and that no agency's contribution be disproportionate. The Department
has examined this issue and believes that the Act contemplates some
flexibility in terms of how the costs of the activities of the Council
relate to the various applicable programs. This is particularly true
under circumstances in which there is a reasonable contribution on
behalf of an applicable program. The Department has determined that, as
specified in the Conference Report, the costs of the Council may be
allocated upon the basis of the relationship of each funding source to
the total funding of all applicable sources or programs that are
represented on the Council. Finally, on the condition that there is a
reasonable contribution from other involved Federal and State programs,
the various activities of the council fall within the overall
coordination mandates of the Act and the related costs are allowable
JTPA costs to the extent that JTPA funds are available from applicable
JTPA sources. The final rule is revised accordingly in paragraph (d).
In order to clarify the requirement of paragraph (g) regarding the
certification of the HRIC by the Governor, the final rule is changed to
indicate that the certification is to be in writing with a copy
provided to the Secretary of Education.
Education Coordination and Grants
A number of comments were received on State education coordination
and grants found at Sec. 628.315 of the interim final regulations. In
addition to the specific areas discussed below, the comments suggested
confusion about the administrative framework for the development of the
section 123 program and the need for a general description of the
program. The section 123 program is to be a partnership between the
JTPA program and the education system in the State. The Act provides a
strong role for the State education agency by requiring that funds be
allocated to the agency, and that the agency have a central role in
planning and in the operation of the program. In order to foster
coordination at the State level, the Act requires that the Governor and
the State education agency agree on the use of funds as part of the
joint development of the education part of the GCSSP. If there is no
agreement, the regulations provide that neither party may use the
funds. To foster coordination at the local level, the Act requires the
State education agency to enter into agreements with the JTPA SDA
administrative entities. If there is no agreement with the
administrative entity, the Act indicates that the amount of funds
specified for the SDA in the State-level agreement may be unilaterally
used by the Governor for meeting the goals of section 123(c).
Several commenters raised concerns regarding the definition of
State education agency. The commenters requested that the final
regulations specify that the Governor may allocate the 8 percent funds
only to the State Education Agency, as defined by the Elementary and
Secondary Education Act of 1965. The Department believes that
clarification is needed. The commenters argued that the definition of
"state educational agency" in section 4(23) of the Act specifically
refers to the agency defined in the Elementary and Secondary Education
Act as the state education agency for JTPA purposes. The Department
interprets the Act differently. The term "state educational agency"
is a different term from the term "state education agency," which is
used in section 123(a) of the Act. The term defined in section 4 of the
Act is used in section 122(a)(3)(B)(1) of the Act to describe
membership on the SJTCC. Support for the view that the terms used in
sections 4 and 123 of the Act are intended to be different is found in
the use of the phrase "any State education agency" in section 123(a).
If the Department were to read this phrase to mean a single agency, the
reading would render the word "any" redundant. The Department reads
section 123(a) to mean that, at a minimum, the Governor may consider as
the State education agency that agency responsible for primary and
secondary education, or responsible for vocational education programs
under the Carl Perkins Vocational and Applied Technology Education Act
and the Adult Education Act. In addition, the Department finds that a
number of States have consolidated a number of education functions and
agencies into various cabinet arrangements. For this reason, the
Department has determined that the regulations should retain the
statutory language "any education agency," but some changes are made
in Sec. 628.315(a) of the final rule. The phrase "or agencies" is
removed from the final rule because the Department does not intend to
cause confusion or appear to encourage the designation of multiple
agencies; however, the rule should not be read to absolutely prohibit
this practice under justifiable circumstances when significant parts of
the education function are not within one agency. As previously
reflected in the interim final rule, the Governor is not permitted to
designate any agency for which "education" is not the primary and
operational function, which means that the entity must actually be
responsible for the operation of educational programs.
A commenter questioned the conditions under which the State JTPA
entity can be found eligible to be a subrecipient of the 8-percent
monies. The Act envisions the state education agency as receiving and
using the section 123 funds. The State JTPA entity is only eligible to
be a subrecipient if the agreement with the Governor and State
education agency stipulates this as a part of the agreement. In
response to the question of whether a portion of the funds may be used
for certain administrative functions (i.e., audit, oversight) the
Department has stated in previous guidance that limited funds may be
set aside for this purpose. This would be described in the joint
agreement.
A commenter raised a concern regarding the time limit for
negotiation between the Governor and the State education agency when
negotiating the joint agreement in accordance with the provisions found
at Sec. 628.315(b) of the interim final regulations. While there is no
specific time limit, the Department expects that the agreement would be
in place in time to allow for the expenditure of funds allotted for the
designated program period. No change is made to the final rule.
A few commenters questioned whether the State JTPA entity or the
State education agency was responsible for the development of the plan
for the use of funds. The Department believes that the State education
agency has the primary role in development of the plan, but that the
plan is to be developed jointly or in consultation. In practice, most
arrangements for development of the plan which are satisfactory to the
parties will be accepted by the Department, so long as there is joint
agreement.
Several commenters raised concerns about the provision of the
interim final rule that stipulates that when the Governor and the State
education agency fail to agree to develop a joint plan for use of the
Education Coordination and Grants funds "the Governor shall not
allocate funds under section 123(a)(1) to such education agency, nor
shall such funds be available for expenditure by the Governor". The
purpose of the rule is to indicate that neither party should benefit
from a failure to agree on the use of education coordination funds. The
Department believes that this position is consistent with the
provisions of the Act that call for joint agreement between the
Governor and the State education agency and, therefore, no change is
made to this section of the regulations. The Department wishes to
clarify that this agreement between the Governor and the State
education agency is not the same as specified in section 123(e) between
the State education agency and the SDA.
A commenter requested that the barriers discussed in
Sec. 628.315(d) be defined. The barriers discussed in this section are
the same barriers that are specified under title II-A and II-C of the
Act or any additional barriers the Governor may specify. No changes are
made to this section.
A commenter pointed out that Sec. 628.315(d)(1)(i) of the interim
final rule did not contain a citation to the provision of title II-C
authorizing funds for section 123 programs. The Department agrees and
the final rule contains that citation.
Some commenters inquired whether youth who are in compensatory
education programs under chapter I of title I of the Elementary and
Secondary Education Act of 1965, who are found to meet the eligibility
requirements for free lunch under the National School Lunch Act, or who
are in school-wide projects would fall within the meaning of
economically disadvantaged to satisfy the requirement to serve the
disadvantaged. The Department believes that they do, and has drafted
the regulations to reflect the applicability of the eligibility
criteria from one section or part of the Act to other parts wherever
practicable. So, for example, the final rule is revised, in
Sec. 628.315(d)(1)(ii), to indicate that the criteria discussed above
apply to the education coordination grant program.
A few commenters questioned whether Sec. 628.315(d)(1)(iii) should
refer directly to the non-economically disadvantaged. Additionally, the
commenters expressed concern that priority for these funds should be
given to in-school projects as opposed to Title III eligible
participants. The interim final rule referenced non-economically
disadvantaged. The final rule is revised to reflect the statutory
language, although the meaning is not changed. No change is made to the
regulations regarding the priority for Title III eligible participants
since that priority is statutory.
Several commenters thought that the regulations should allow for
direct allocation of State education coordination and grants funds to
the SDA. No change is made in the regulations since the Act is specific
as it relates to the Governor allocating funds to the State education
agency and the State education agency being the entity that determines
how and where the funds will be distributed.
Several commenters were concerned with the State matching
requirements which changed the requirement from an 80 percent to a 100
percent match for Federal funds received for the State education
coordination grants. These comments do not appear to have recognized
the change in statutory language wrought by the amendments. Prior to
the amendments, section 123(c) of the Act required only that matching
funds be provided for three of the four kinds of projects specified in
section 123(a). The amended law, in section 123(a)(3), requires
matching funds for all the kinds of projects specified. Thus, while the
matching requirement originally applied only to the kinds of projects
to which 80 percent of the funds available under section 123 were
allotted, the law has been changed so that all funds are required to be
matched. Similarly, the language in section 123 describing the "20%"
projects has been changed. The original language was that Federal funds
could be used to pay the cost of "20%" projects based on JTPA section
123(c)(2)(A). The new language is that Federal funds may be used to pay
the Federal share of "20%" projects based on JTPA section
123(d)(2)(A). The final rule is revised to clarify that the matching
requirement for the State is for an amount equal to the total of
section 123 funds. Further, the rule clarifies that if there is no
agreement between the State education agency and the administrative
entity in the SDA, the matching requirement does not apply.
Services to Older Individuals
The State set-aside program for older workers was incorporated into
section 204(d) of the Act. Requirements for the older workers program
are set forth in Sec. 628.320 of the interim final rule. The Governor
continues to be responsible for carrying out these programs pursuant to
agreements with public agencies, PIC's, SDA's, non-profits or private
businesses. The Amendments require that, in entering into these
agreements, the Governor is to give priority to organizations which
have a record of demonstrated effectiveness in serving older
individuals.
During the development of the final rule, the Older Americans Act
was amended by Public Law 103-171 to revise the eligibility criteria as
they pertain to older workers served in JTPA programs. It provides, as
had been the case for the regular title II program (and as is reflected
at Sec. 628.605(e) of this rule), that older individuals participating
in joint programs with sponsors under title V of the Older Americans
Act who are eligible under title V are deemed to satisfy the
requirements of section 203(a) of the Act. A new paragraph (d)(2) is
added to Sec. 628.320 to reflect this amendment. It is important to
recognize that a purpose of the Older Americans Act Amendments is to
enable Senior Community Service Employment Program participants who are
in joint programs to participate in JTPA activities. In response to
questions concerning the nature of an agreement for a joint program
between JTPA and the title V program sponsor, the Department notes
that, for purposes of both Secs. 628.320(d)(2) and 628.605(e), the
written agreement that sets forth the joint program should be
structured so that both the JTPA and the title V program provide
services to participants consistent with the objective of the
participant and the resources of the participating program. For JTPA
participants, services will be provided under the ISS.
Several commenters were concerned that the inclusion of Social
Security and Supplemental Security Income in the definition of "family
income" severely limits the number of older individuals who are
eligible for the program. This issue is addressed under the definition
of "family income" in Sec. 626.5 of the final rule. The revised
definition clarifies the treatment of Social Security income and that
Supplemental Security Income is not considered in the calculation of
family income. No change is made in this section of the final rule.
A few commenters recommended the removal of limitations on job
search assistance in Sec. 628.535 as they might apply to older workers.
Job search assistance, including the application of the job search
limitation restrictions as they apply to older workers, is covered in
the discussion of the job search limitations under Sec. 628.535
elsewhere in this preamble.
A few commenters recommended that the Department define "equitable
basis" as it relates to fund availability for older worker services.
The Department's view is that the definition of "equitable basis"
will vary from State to State based upon local circumstances and,
therefore, the Governor should determine the basis upon which funds
will be distributed, taking into account the population of eligible
older workers, their distribution throughout the State, and the
availability of resources for this population. However, in considering
the question of whether funds are distributed on an "equitable
basis", the Department does not believe that all circumstances require
that each SDA or area within the State receive funds under this set-
aside. Each State is to develop some reasonable measure, including
older individuals' share of the population or share of the labor force,
in determining how these funds and services will be provided throughout
the State. No change is made to the final rule.
Several commenters expressed concern that the performance standards
for the older worker set-aside should be specifically tailored to the
unique needs of this population. As noted earlier in the discussion of
the performance standards section, the Department has convened a
technical work group on the development of the new performance
standards which includes representatives of older workers, and will
take these and other comments under consideration in developing
performance standards.
Capacity Building and Technical Assistance
The JTPA has been amended to include capacity building and
technical assistance as priorities at the national, State and local
levels for JTPA and other related human service programs. Section 453
of the Act calls for the creation of a national Capacity Building and
Information and Dissemination Network and a Replication Grant Program.
State and local priorities are established through sections
202(c)(2)(A) and 262(c)(2)(A) of the Act, which make available up to 33
percent of the 5 percent incentive funds for capacity building and
technical assistance activities. Section 121(a)(3) of the Act, requires
that capacity building and technical assistance plans be included in
the GCSSP. Greater emphasis is placed on general technical assistance
activities for the development and training of State, SDA, and service
provider staff.
The majority of comments received on the interim final regulations
supported the use of incentive funds for capacity building and
technical assistance activities and supported the need to develop the
capacity of JTPA personnel at all levels.
Commenters requested that Private Industry Councils and other job
training councils, as well as those who administer JTPA, be included in
capacity building activities. It was also requested that the inclusion
of front-line staff be made more evident. It is the Department's intent
that capacity building and technical assistance activities be targeted
to all personnel who staff and administer JTPA at all level of the
system. Section 628.325(c)(1) is revised to include PIC's and other
councils, as well as other related human service systems provided for
in section 205(a) of the Act. The word "administer" is added to the
definition of capacity building at Sec. 626.5, and "front-line" staff
are included in Sec. 628.325(c)(2)(ii).
Comments were received requesting further clarification on the use
of funds for the upgrade of Management Information Systems (MIS).
Section 628.325(c)(2)(iii) provides for the use of the 33 percent of
the 5-percent incentive funds authorized under the JTPA amendments for
the purchase of hardware and/or software only if directly related to
capacity building and technical assistance activities of the National
Capacity Building and Information Dissemination Network (Network).
These 5-percent funds may not be used exclusively for MIS;
Sec. 628.325(c)(2)(iii) sets forth specific guidance on the purchase of
hardware/ software. Funding for MIS redesign is addressed in Training
and Employment Information Notice 2-92, which provides for the use of
PY 1992 6-percent incentive funds for MIS upgrading and re-design.
Some commenters continued to express concern that the non-
duplication provision in section 202(c)(3)(B) of the Act could
seriously hamper State and local flexibility in developing products and
delivering training. Section 628.325(c)(2)(iv) of the final regulations
specifies that State and local capacity building efforts are to be
coordinated and integrated with the National Capacity Building
Information Dissemination Network (Network), pursuant to sections
202(c)(3)(B) and 262(c)(3)(B) of the Act. In order to maximize funds
available, the Network will build, to the extent possible, on what
already exists in the system. Through its clearinghouse, it will make
information accessible to the JTPA system on current and planned
Network products so that duplication of effort may be avoided as States
and SDA's plan their capacity building agendas. Non-duplication should
be viewed by the system as a means for maximizing scarce resources and
not as limiting the flexibility of States and SDA's to tailor Network
products to their own needs and/or to produce and train on similar or
related products when local circumstances so dictate.
Some commenters requested that the regulations mandate that the 33
percent of 5 percent incentive grant funds available to the States for
capacity building be passed to the SDA level for capacity building and
technical assistance activities. The final regulations continue to
strongly encourage Governors to use these funds for the development of
staff capabilities at all levels, and particularly for front-line
staff, through a comprehensive capacity building and technical
assistance strategy. While neither the Act nor the regulations require
that funds be passed directly to the SDA's, the final regulations, at
Sec. 628.325(c)(2)(ii), offer a variety of State options for ensuring
coverage of SDA and front-line staff. Section 628.205 encourages
Governors to share capacity building plans in advance with SDA's and
requires that capacity building plans be included in the GCSSP.
More specific information was requested as to what related human
service programs are covered under section 453 of the Act. Section
628.325 (c)(1) and (d) includes those programs listed in section 205(a)
of the Act among those human service programs.
Several commenters requested clarification on the allowable uses
for incentive funds by SDA's, specifically asking if there is any limit
on the amount of incentive funds used for capacity building and if
incentive funds can be used solely for administration. One commenter
suggested a maximum limit of 30% on the use of incentive funds for
administration in order to insure that their primary use focuses on
training and capacity building. The Department intends to allow the
SDA's flexibility in determining how their incentive funds are best
utilized. Section 627.440(c)(2) specifies that incentive funds may be
used without regard to cost limitations. However, a new paragraph (5)
is added to Sec. 628.325(b) specifying that SDA's should use incentive
funds for capacity building, technical assistance and services to
eligible participants. The former paragraphs (3) and (6) in
Sec. 628.325(b) which dealt with this topic are removed; the remaining
paragraphs are redesignated accordingly. Further clarification on SDA
capacity building responsibilities is also found in Sec. 628.420, the
Job Training Plan.
A technical correction is made at Sec. 628.325(c)(1) to include the
citation of section 262(c)(1)(B) of the Act.
SDA Designation Process
The interim final regulations, at Sec. 628.405, clarified the SDA
designation process. The language in the supplementary information
section indicated that SDA designations are to occur every 2 years,
consistent with the preparation of the 2-year GCSSP and the SDA job
training plan. This information is incorrect and will be addressed in
the context of discussing the comments received in this area.
The regulations also: established minimum criteria to be used by
the Governor in considering discretionary SDA designation requests
under the provisions at section 101(a)(4)(B) of the Act; provided
clarification on the handling of competing SDA designation requests
under section 101(a)(4)(A) of the Act; and defined the terms
"substantial portion" and "substantial part" of a labor market area
for the purposes of SDA designations under section 101(a)(4) (A)(ii)
and (B) of the Act.
A few commenters noted that there was nothing at section 101 of the
Act nor Sec. 628.405(a) that indicates that SDA designations are
required to occur every two years, as indicated in the preamble of the
interim final rule. The concerns expressed in the comments were that to
mandate that SDA's be designated every two years would be disruptive
and would serve to increase the number of SDA's rather than decrease
them as intended.
The commenters are correct that there is nothing in the Act nor the
regulations that requires that SDA's be designated by the Governor
every two years. The preamble did not clearly convey the intent of the
interim final regulations. The intent of the preamble was to indicate
that SDA designations, when they occurred, were to coincide with the 2-
year cycle for the GCSSP and the local job training plan. This was to
clarify that SDA designations could not be made for an off year of a 2-
year period covered by the approved GCSSP and local job training plans.
Section 628.405 is amended to more clearly convey this requirement.
A commenter indicated that SDA designation, under
Sec. 628.405(a)(3) of the interim final rule, should not be required
for a previously designated SDA which has complied with all of the JTPA
mandates and has successfully operated good training programs.
There is nothing in the Act or interim final regulations that
requires existing SDA's to formally apply for designation or
redesignation by the Governor when such designations are to be made
within the State. Section 628.405(a)(3) only indicates that the
Governor should address the treatment of existing SDA's in the
procedures developed to govern the SDA designation process within the
State. Thus, the Governor may choose to require reapplication for each
designation cycle or to permit existing SDA's to continue without the
need for a new application. Section 628.405(a)(2) of the interim final
regulations is redesignated, in part, as (a)(3), and is amended to
clarify this issue.
A few commenters took exception to the requirement that the
Governor establish standards by which to evaluate discretionary SDA
designation requests under section 101(a)(4)(B) of the Act which, at a
minimum, must include the criteria set forth at Sec. 628.405(d). These
requirements are viewed as overly prescriptive, limiting the Governor's
discretion in making SDA designations and establishing a higher
standard than that provided for in the Act.
The Department believes that neither the provisions of the Act nor
the interim final regulations, at Sec. 628.405(d), inhibit the Governor
from making discretionary SDA designations, pursuant to section
101(a)(4)(B) of the Act. The Department does not believe that the
regulatory provisions are overly prescriptive in establishing some
uniform minimum standards for the Governor to evaluate such designation
requests. With approximately one-third of the over 640 current SDA's
being discretionary designations, it is necessary to ensure the
viability of such SDA's to adequately administer and promote effective
delivery of JTPA services to a substantial portion of the eligible
population in the area to be served. The regulations simply formalize
the minimum standards that Governors would need to consider and, in
most instances, probably already have established, in making
discretionary SDA designations consistent with the provisions at
section 101 of the Act. The Department believes that the regulations in
this area are consistent with the provisions at section 101 of the Act
and the Secretary's authority to promulgate regulations to implement
the provisions of the Act. No change is made to the final regulations.
Several commenters took exception to defining "substantial part"
and "substantial portion" of a labor market area (LMA) for the
purposes of SDA designations under section 101(a)(4) (A)(ii) and (B) of
the Act, respectively. These commenters argue that the requirement that
the prospective SDA serve 10 percent of the population of an LMA is
arbitrary, artificial and exceeds the language in the Act, unduly
limiting the Governor's flexibility to determine SDA's for the State.
The commenters recommended that the 10-percent provision be withdrawn
from the final rule. A few of the commenters suggested including a
"grandfather" provision for existing SDA's in the regulations, if the
10-percent provision is not removed in the final rule.
The Act provides that prospective entities seeking SDA status under
the provisions of section 101(a)(4) (A)(ii) and (B) of the Act serve a
substantial portion/part of an LMA as a statutory criteria for
designation. In the past, the Department has deferred to the Governor's
definition of "substantial" for the purposes of such designations,
which has resulted in a wide range of thresholds being established,
from levels significantly below the 10 percent provided for in the
regulations, to a majority of an LMA. The Department reached the 10-
percent figure taking into consideration the need for a rational figure
which would assist the Governors in the SDA designation process and
still ensure the statutory mandate for serving a substantial portion or
part of an LMA, as appropriate. The regulations still provide that the
Governor defines these terms, with the 10 percent floor as a minimum
requirement. The Department believes that the 10-percent figure is
reasonable and consistent with the provisions of the Act and the
Secretary's authority to promulgate regulations implementing the Act,
while still maintaining the Governor's flexibility in designating
SDA's. No change is made to the final rule.
On the suggestion that existing SDA's be "grandfathered"
notwithstanding the 10-percent requirement, part 627, Subpart I,
Transition Provisions, of the interim final rule addresses this issue.
The regulation, at Sec. 627.904(l), indicates that, at the Governor's
discretion, SDA's designated prior to July 1, 1992, need not be subject
to the provisions at Sec. 628.405. The Department does not believe that
further clarification is needed. No change is made to the final rule.
Private Industry Council
Section 628.410 of the interim final rule set forth requirements
relating to the establishment and functioning of the PIC. Comments on
the provisions of this section fell mainly into three areas: PIC
recertification, joint agreement on the plan for Wagner-Peyser
activities of the employment service and PIC representation.
A number of commenters questioned the requirement of
Sec. 628.410(a)(2) that the Governor recertify the PIC biennially, one
year prior to the date of submission of the job training plan. The
commenters indicated that this requirement was an undue administrative
burden and appeared to go beyond the provisions of section 102(g) of
the Act, which states: "The Governor shall certify a private industry
council if the Governor determines that its composition and
appointments are consistent with this subsection." In response to this
concern, Sec. 628.410(a)(2) is amended to require the Governor to
review the PIC certification biennially rather than to formally
recertify the PIC. The review process is intended to afford the
Governor a continuing role in ensuring that the PIC is an effective
local policy making body. The requirements specified in
Sec. 628.410(a)(3) encompass three areas: the PIC membership and the
nomination process, the PIC/chief elected official agreement, and the
responsibilities of the PIC to carry out its role.
Several commenters indicated that the requirement for a new PIC/CEO
agreement was beyond the requirements of the Act and was potentially
disruptive of agreements and arrangements that had been carefully and
delicately worked out at the inception of JTPA. There is no requirement
to negotiate or renegotiate an otherwise satisfactory agreement which
is in place. The regulations only require the Governor to review the
sufficiency of the PIC/CEO agreement in terms of the requirements of
the Act.
In response to comments on Sec. 628.410(a)(3) of the interim final
rule which requested clarification of the meaning of paragraph
(a)(3)(iv), this paragraph is removed in the final rule, since it is
largely redundant of the contents of the PIC/CEO agreement and the
material that follows in paragraph (b) which the Governor may review in
the course of normal oversight.
A few commenters asked for clarification on the components of the
Wagner-Peyser plan which were applicable to SDA's. The SESA agreement
requirements are set forth in the Wagner-Peyser Act, at section
8(b)(1). These requirements generally deal with employment service
operational plans for carrying out the provisions of the Wagner-Peyser
Act which must be developed jointly with the PIC and local chief
elected official.
Regarding PIC membership selection, a few comments touched on the
selection process for representatives of organized labor. One comment
asked that the regulations define "labor federation" to mean the AFL-
CIO at the State and local levels and that a process be instituted for
the Chief Elected Official (CEO) to ensure PIC representation by the
local AFL-CIO rather than by individual workers. As provided in section
102(c)(3) of the Act, CEO's are to consult recognized State and local
labor federations for recommendations for the labor representatives to
the PIC and not an individual labor organization. For this reason, a
description of the nomination process is specifically required to be
included in the PIC certification to be reviewed by the Governor. The
Department agrees, however, that there is a need for clarification as
to what constitutes a labor federation and is adding language in the
final rule, at Sec. 628.410(a)(3), to indicate that a labor federation
is an alliance of two or more labor unions, an example of which is the
AFL-CIO.
With respect to PIC representation in general, several commenters
stressed the importance of ensuring that the nomination process is
opened up to balance important interests in the community, including
the interests of older individuals and women. The Department recognizes
the importance of balanced demographic and community interest
representation and sensitivity to the diverse populations being served.
This sensitivity is best displayed at the local level where the
composition of the community is known. While the Department strongly
encourages CEO's and PIC's to make every effort to assure that PIC
membership is broadly representative of the community, the Department
does not believe it is appropriate to require this result through
national rules. Thus, the Department has decided not to impose
membership requirements beyond those enumerated in section 102 of the
Act. In communities with public housing agencies, given the
similarities in target populations, the Department does, however,
encourage chief elected officials to include such representation in
their PIC membership under the category of "public assistance
agency".
A few commenters were concerned that appointing representatives of
certain kinds of organizations to the PIC would represent an inherent
conflict of interest. Conflict of interest rules for PIC members are
discussed in Procurement (Sec. 627.420(c)(4)).
Selection of SDA Grant Recipient and Administrative Entity
One commenter indicated that the intent of this section was
unclear. The Department believes that the lack of clarity may pertain
to the kinds of criteria that the Governor may establish that would
affect the PIC's and CEO's selection of a grant recipient and
administrative entity. The Act, at section 103(b)(1)(B), specifies
entities that may be selected as grant recipient and administrative
entity, which may be the PIC, a unit of local government or a non-
profit organization. While the Governor may establish criteria for the
selection of grant recipients and administrative entities, the criteria
may not specifically exclude a type of entity specified in the Act from
being selected.
Job Training Plan
Sections 628.420 through 628.430 deal with the submission, review
and approval of the job training plan. There were a few comments
regarding the contents of the job training plan which are addressed in
Sec. 628.420(b)(1), through a reference to the requirements of section
104(b) of the Act. There were requests for certain specific references
in the text of the regulation. One comment requested that the
requirements of the NEW Act be specifically referenced. As previously
discussed in this supplementary information section, the Department
agrees and has added a reference to the requirements of section
104(b)(7) in Sec. 628.420(b)(1). Another commenter requested that a
specific reference be made to consultation with public housing
agencies. While these agencies are not specifically referenced in
section 104 of the Act, they are included among those agencies with
which the SDA is to develop the coordination and linkage arrangements
that would be described pursuant to section 104(b)(4) of the Act.
A few commenters raised concerns about the requirement in paragraph
(e) of Sec. 628.420 that modifications are to be submitted jointly by
the PIC and chief elected officials (CEO's) to the Governor. These
commenters appear to be confusing modifications to the SDA job training
plan with contract modifications. The commenters stated that the
procurement regulations in Sec. 627.420 require that every contract
change order, such as a decrease of one participant, necessitates a
contract modification. The procurement process requirements in
Sec. 627.420 do not apply to the plan and plan modification process,
and Sec. 628.420(e) addresses the requirements for the modification of
the job training plan, not contract modifications. Language is added to
paragraph (e) to clarify that a "major" modification is to be
specified by the Governor. In so specifying, the Department suggests
that the Governor consider conditions which result in a variance of 20
percent from the approved plan in the budget, level of participant
services, number of participants served, participant outcomes, or other
core elements.
Further, there was an inadvertent oversight in the interim final
rule in Sec. 628.420(d) and (e), concerning the submission of local
plans or plan modifications to the Governor. The interim final rule
indicated that the plan or plan modifications must be jointly submitted
but omitted the statutory requirement that such plans or plan
modifications also must be jointly approved as a condition for
submittal to the Governor. Paragraphs (d) and (e) of Sec. 628.420 are
amended to more accurately reflect the statutory provisions of section
103(d) of the Act.
One commenter requested that the time limit provided in
Sec. 628.426(b) for chief elected officials and the PIC to correct any
deficiencies the Governor identifies in disapproving a job training
plan be changed from 20 days to 30 days to allow SDA's adequate time.
This change is incorporated into the final rule.
Finally, a commenter requested that the final rule clarify that the
references in the Act and regulations refer to "working days". In
fact, this is not the case and the references, as is the practice,
refer to consecutive calendar days. No change is made in the final
rule.
Subpart E--Program Design Requirements for Programs Under Title II of
the Job Training Partnership Act
In response to a few comments, the final rule is revised in a few
introductory statements to clarify that references to title I refer to
programs undertaken pursuant to sections 121 or 123.
General Program Design Requirement
The Act contains significant requirements in the front-end
operations for most SDA's, which will cause major alterations in the
intake structure and will necessitate revisions in the appraisal of
each participant's capabilities, needs, and occupational goals. In the
final regulations, the Department has provided necessary direction
based on the Amendments and has clarified and highlighted significant
changes from the "old" statute.
Eligibility Determination and Intake
Two major criteria must be considered in the process of determining
which applicants are eligible for title II JTPA program services. As
set forth in Sec. 628.505, the first criterion is age. The second is
economic disadvantage. The standard for determining economic
disadvantage will be income as described in the annual Department of
Health and Human Services poverty guidelines. The use of these
guidelines provides a standardized income determination across
federally funded programs. The Department's approach to the eligibility
determination process has been to attempt to minimize the amount of
documentation necessary to establish an individual's eligibility for
services, while maintaining the necessary safeguards to prevent misuse
of program funds.
A number of commenters encouraged a streamlining of the eligibility
documentation process, including use of self-attestation. Several
requested guidance on what documentation would be required for
barriers. The Department has issued, in February 1993, and provided
training on an eligibility documentation TAG to be used by SDA's in the
eligibility determination process. This should provide clarification of
these issues. The procedures in this title II, Eligibility
Documentation TAG, if followed by the SDA's, will protect them from
audit disallowances based on inadequate documentation. In response to
several comments that the Department should stick by its guidance, the
final rule clarifies the intent of the interim final rule that when it
is determined that the State, SDA or service provider followed the
Department's written guidance, the Grant Officer will not disallow
costs related to required documentation of an individual's eligibility.
Section 628.510 describes the requirements for intake, targeting
and referral of applicants. During the intake process, personal data on
individuals are collected and a preliminary determination regarding
suitability for title II services is made. A number of commenters
expressed the need for clarification of the suitability issue.
Suitability for program participation is a determination, based on
preliminary information, of which eligible applicants should be
considered for JTPA program services. This determination is made
against the backdrop of the limited availability of JTPA resources and
services and the practical necessity that the JTPA program must decide
which individuals fall within the 5 to 10 percent of the eligible
population that can be served. It includes a determination whether an
individual falls within a category targeted for service by virtue of
having a "barrier" to employment and whether there are other programs
and services reasonably available to an individual within the
community. The JTPA title II program is not intended or structured to
remove all barriers to employment that applicants for services may
have. Therefore, the suitability determination also should consider
which eligible applicants, with the provision of locally available
supportive services, can best be served and benefit from JTPA
participation by acquisition of educational and occupational skills or
competencies and eventual employment. The regulations provide that some
limited assessment activities may be undertaken, the results of which
may be used in connection with a determination of suitability. A
determination that an individual may be eligible but not suitable
results in referrals to other sources of assistance, provision of
information on other programs, or in the case of a service provider, in
referral to the SDA for further consideration. In making suitability
determinations, SDA's should keep in mind their obligations under
applicable civil rights and equal opportunity laws. SDA's should
consider advising applicants of the process and possible results of
intake, assessment and suitability determinations and, particularly,
that not all eligible applicants can be served.
In order to focus program services on harder to serve individuals,
not less than 65 percent of participants must have one or more barriers
to employment, as specified at section 203(b) of the Act. SDA's may
also specify an additional barrier for each of the title II-A and II-C
programs. An example of an appropriate "additional barrier" under
section 203(b)(7) of the Act was requested. In response to this
request, the Department is providing several examples, however, SDA's
are not limited to these and are encouraged to develop "additional
barrier" guidelines tailored to local population and labor market
needs. For communities with public housing, the Department believes
that "public housing assistance recipients" who are otherwise income
eligible would constitute an appropriate "additional barrier". An
employment-authorized refugee might be included, as well as a displaced
homemaker, or substance abuser. Finally, the Department counsels that a
member of a group protected under the civil rights statutes may not be
designated as having a barrier to employment solely on the basis of the
characteristics that cause them to fall under the civil rights
legislation. So, for example, a racial group could not be designated
under the additional barrier provisions.
Several commenters requested clarification of the documentation
requirements for referrals in Sec. 628.510(d). The Department describes
the minimum required documentation at Sec. 628.510(d) and at
Sec. 628.530(c). The Department expects that SDA's will develop
standardized information on programs and services available in the
community. This information may be provided in written form to the
eligible applicant. A record of the referral will be maintained and may
take the form of an incomplete ISS. No further followup is required
beyond referral. Section 628.510(d) is revised to incorporate this
principle. The idea is that the SDA must assume some limited
responsibility to eligible applicants who come for services even though
the Act recognizes that not all will be served. The SDA should be in a
better position than an individual applicant to be aware of the
services available within the community and to make referrals so that
the applicant can benefit from these other sources. In part, this is a
principle behind recent initiatives by States, SDA's and the Department
to facilitate a concept of "one-stop" service.
In addition, Sec. 628.510(d) is amended to specifically mention
referrals to Job Corps to parallel the amendment to Sec. 628.803(d)(2).
This change is made to foster JTPA/Job Corps coordination.
Section 628.510(e) describes the requirement for service providers
to refer eligible applicants or participants who cannot be served by
its program back to the SDA for further assessment, if necessary, and
suitable referral to other appropriate programs. Several commenters
questioned whether there is a requirement for centralized intake. There
is no such requirement. The requirement is that the SDA put in place a
system that works independently of an individual service provider. This
"system" would also cover situations described by commenters in which
the SDA administrative entity does not perform intake. In other words,
an SDA must have some mechanism by which an eligible applicant or
participant can be considered for enrollment in all of the services
available through the SDA, not just those of a single service provider.
The Department believes that this is a program design issue for local
discretion and that there will be a number of effective approaches to
meet these requirements. The intent of the regulation is simply to
assure that participants will be exposed to the full range of available
services and that they will have a fair opportunity to receive services
appropriate to their individual needs.
The States and/or SDA's will establish procedures to ensure
compliance with the targeting requirements of sections 203 and 263 of
the Act and to determine actions to address noncompliance with the
requirements. Many commenters questioned how compliance would be
calculated. Some noted that a strict reading of the Act would provide
that any "participant" (i.e., any individual who has been determined
eligible and received a service, including objective assessment) could
be included in the calculation to meet the targeting requirement.
Others observed that while assessment was an important activity, it did
not necessarily constitute a training or employment service that would
result in a measurable outcome of the effectiveness of the program. In
considering the comments, the Department recognizes that, at the
suggestion of individuals identifying implementation issues, it was
determined that only individuals enrolled in an activity subsequent to
objective assessment would be included in performance standards
calculations. The rationale for that decision was that many individuals
had not made a final decision to participate in the program and have
dropped out before any meaningful intervention. Therefore, for
consistency, the Department has determined that the 65-percent
requirement also is to be calculated on those participants who receive
services or training subsequent to the objective assessment. Section
628.510 is revised to add a new paragraph (f)(2) to this effect.
Objective Assessment
Objective assessment should be a continuous, customer-centered and
flexible process. The objective assessment should not be viewed as a
discrete activity that begins and ends early in the stages of program
participation, but rather as one that will continue throughout
participation in JTPA.
Several comments received on the front-end design of the JTPA
program discussed the assessment process. All supported the concept and
the intent of individualized program services. A few commenters
expressed concern over staff development needs for implementing
assessment. Many commenters requested guidance in the development of
assessment and service strategies. While the Department expects that
States and SDA's will retain authority for program design, technical
assistance has and will continue to be provided on assessment and
development of the ISS. The Department encourages use of funds for the
capacity building of staff (see Sec. 628.325), including staff training
in objective assessment techniques; however, the Department declines to
establish credentialing standards as one commenter suggested. The
Department believes that staffing and standards should be a State and
local decision.
A few commenters addressed confidentiality issues arising in the
intake, assessment and referral processes. The same kinds of concerns
over disclosure of information were expressed in connection with the
discussion of Sec. 627.463. The Department has not addressed
confidentiality in Sec. 627.515 because confidentiality issues are not
new. The Department thinks that traditional standards of professional
conduct on confidentiality issues should be continued. Further, the
Department expects that protections against the disclosure of
information that would constitute a clearly unwarranted invasion of
personal privacy, as permitted by section 165(a)(4)(B)(i) of the Act,
will protect the confidentiality of customer information.
A number of commenters expressed confusion over the determination
of when an applicant becomes a participant, how much assessment could
be provided at the intake/ eligibility stage prior to enrollment of an
eligible applicant and to which cost category this would be charged.
Costs incurred on behalf of an applicant, including intake, eligibility
and suitability determination (which may include some limited
assessment of an applicant), and any assessment necessary to facilitate
the eligibility determination, consistent with the provisions of
Sec. 627.440(d)(3)(i) are to be charged to the training-related and
supportive services cost category. Once an applicant is determined to
be eligible and the decision made to enroll the applicant, a full
objective assessment may begin and the applicant may receive other
program services. As specified in Sec. 627.440(d)(1)(i), assessment at
this stage may be charged to the direct training cost category. Receipt
of objective assessment or other services would confer participant
status consistent with the definition of participant in section 4(37)
of the Act. The Department believes that the preoccupation with
participant status may be misplaced because the principal issue of
program credit has been addressed in the context of when the
performance standards are to be applied.
The Department expects assessment of eligible applicants to be used
only in those cases when an eligible applicant's suitability for
enrollment is unclear. While the regulations afford an opportunity to
charge the costs of preliminary assessment functions to the training-
related and supportive services cost category to aid in the
determination of an applicant's suitability, the Department expects the
restriction on the cost categories to act as a natural control on SDA's
while still allowing the flexibility for individual decisions. The
Department would like to emphasize that the limited availability of
funds will restrict over-use of preliminary assessment as part of the
decision to enroll. SDA's are expected to finance intensive services
expected to enable participants to complete successfully the longer
term JTPA service strategies within this cost category.
Section 628.515 sets forth the requirements of the objective
assessment. The scope of the objective assessment should not be limited
to only services or training programs already available in an SDA.
A few commenters questioned whether basic skills evaluation was
required as part of the objective assessment. The Department intends
the evaluation to be of both basic and occupational skills. The
definition of "objective assessment" in Sec. 628.515(b)(1) is
revised, therefore, to include basic as well as occupational skills
evaluation.
The objective assessment is ongoing and should not be viewed as a
one-time event. It should be a multi-faceted process which includes a
full array of options including items such as structured interviews,
paper and pencil tests, performance tests, behavioral observations,
interest inventories, career guidance instruments, aptitude tests, and
basic skills tests. From these options, and others, assessment staff
may select the most appropriate tools for each participant to measure
skills, abilities, aptitudes, interests, supportive service and
financial needs, and to counsel participants on how their assessment
results relate to local labor market demands.
SDA's are strongly encouraged to prudently select appropriate
measuring tools that will provide necessary information for the
reasonable development of an individual service strategy leading to a
realistic employment goal. JTPA resources are limited and JTPA is not
an entitlement program. The Department expects SDA's to develop
practical applications for career counseling and assessments for basic
skills and occupational training.
The objective assessment process should be sensitive to the testing
and evaluation environment and the comfort and confidence level of the
participant. The temptation to over-test or over-evaluate, providing
excess information for which there is no immediate application, does
not serve the customer's best interest, is detrimental to the customer/
counselor relationship, and is costly to the SDA. The objective
assessment is to be revisited regularly and the resulting information
used to amend the ISS, as appropriate, when additional needs are
identified or goals achieved.
Assessments recently conducted by other human service programs or
schools are viable options and their use is encouraged, where
appropriate, rather than requiring the customer to undergo additional
assessments that duplicate information already obtained.
Finally, the Department notes that the objective assessment process
for title II-B may be different in scope than that for the regular
title II-A and II-C program, as indicated in Sec. 628.515(b)(2). This
may also be the case for limited function programs (such as literacy
programs) mounted under section 123, although this is clearly an
exception to the normal expectation in conducting an assessment.
Individual Service Strategy
Section 628.520 establishes the requirements for the Individual
Service Strategy (ISS). The ISS is an individual plan that is developed
based on information obtained through the objective assessment. It is
the framework within which decisions regarding individual participants
are recorded. It should be considered a living document that reflects
decisions concerning the appropriate mix and sequence of services to be
provided leading to, and including, a realistic employment goal.
Several commenters requested clarification of the outcomes to be sought
in the development of the ISS for youth. The Department agrees that
there is a need to focus on youth returning to or remaining in school
and, thus, that the ISS should focus more on education as it relates to
a long term career. In title II-B and II-C, the employment goal should
be interpreted broadly for those individuals returning to school and
may reflect long-term career goals.
A few commenters asked for clarification of what had to be listed
in the ISS. The ISS should briefly note any need for financial
resources or supportive services and record the amount of each. The
expected outcome of each activity should be indicated with a notation
of the provision and schedule for each. Referral to other programs, and
referral out of title II must be noted on the ISS. The rationale or
justification for other decisions may be referenced in the ISS, but
need not be recorded there. The Department provides further
clarification of the use of the ISS for recording referrals out of
title II by revising Sec. 628.530(c), as was requested by several
commenters. This section now states that further tracking or follow-up
is not required for referrals out of title II. This section is also
revised to correct language in the interim final regulations that
indicated referrals out of title II would not be calculated in
performance standards only if an ISS had not been completed. Since, as
commenters noted, an ISS is to be developed for each participant, this
section now allows recording the referral in a partial ISS without any
effect on performance standards.
Several commenters indicated confusion over counseling and the
development of the job goal in the ISS. The provisions of this section
reflect the need for program-related application of career counseling,
but the Department cautions program operators to prudently provide
career counseling related to the realistic goals of the JTPA program.
While the objective assessment/individual service strategy process is
customer-centered, JTPA services are expected to guide participants
toward realistic employment goals for which training and job demand are
available in the community. Pure career counseling for its own sake
should be left to other, more appropriate, sources. Development of a
final employment goal may be delayed where the objective assessment
indicates a need for further career exploration or assessment. In this
case, a career cluster should temporarily be indicated in place of the
employment goal. The ISS should be revised to reflect the employment
goal prior to the start of specific occupational skills training. The
employment goal may be revised if the continuing objective assessment
indicates a need to do so.
A number of comments were received concerning participant
signatures on the ISS. This requirement was perceived as an unnecessary
administrative burden. Section 628.520(c) is revised to indicate that
there is not a requirement for a participant signature. However, the
decisions reflected in the service strategy about goals, objectives and
services to be provided are to be made in partnership with the
participant and are to be determined in conformance with applicable
civil rights provisions.
Participant signatures on the ISS may be requested, but are not
required to indicate the joint development of the document.
The Department encourages communication with participants and
reminds program operators, especially program monitors and auditors,
that the intent of the ISS is to be a program tool and not a compliance
document that forms the basis for cost disallowance. The Department
does not doubt that participant records, including the ISS, will be
reviewed to determine whether SDA's and others have adhered to certain
requirements of the Act. This is unavoidable. However, for the ISS to
have the anticipated value as a program tool, it must not be developed
and used with compliance in mind, but rather with the needs of the
customer as its focus. One commenter suggested that if documentation is
required, e.g., to document a payment decision, that it be recorded
elsewhere in the participant record so that the ISS and compliance
documentation can be kept separate. While somewhat artificial, if this
concept helps, the Department has no objection to using it. Ultimately,
however, the decision on how much detailed information to record on the
ISS is one for States and SDA's.
The final rule is revised by adding a new paragraph (h) in
Sec. 628.520 to emphasize that the ISS is a working record of progress
and references to "documentation" are revised to read "record."
The ISS, to be effective, must be regularly reviewed and adjusted
to reflect the progress and to meet the continuing needs of each
participant. The ISS will serve as the basis for the entire case
management strategy. Case management is an allowable direct training
activity and the Department encourages its use as an effective strategy
for providing quality services to the participant.
A few commenters indicated confusion over the application of case
management to the JTPA program. The Department encourages application
of case management principles to participant services. In section 4(32)
of the Act, the term case management is defined to mean the provision
of a customer-centered approach in the delivery of services, designed
to prepare and coordinate comprehensive employment plans to ensure
access to the necessary training and supportive services, and to
provide job and career counseling during program participation and
after job placement. The Department expects SDA's to make every
reasonable effort to provide the services and training indicated by the
assessment and ISS and, where possible, to apply standard case
management principles. The Department recognizes, however, that JTPA is
not an entitlement program and that not all services and training will
be available regardless of the level of coordination in an area. Case
management is an administrative management tool, not an individual
service to be delivered to participants. There is no change in the
final rule.
A few commenters expressed concern over the ability to provide all
services indicated by the objective assessment and the ISS. Section
628.520(e) recognizes that an SDA may not always be able to provide the
full array of services indicated by the objective assessment and
recorded in the ISS. In arranging for the mix and sequence of
appropriate services, it is fully expected that SDA's will refer
participants to other programs for certain specified activities as part
of the JTPA service strategy. In those cases, particularly in rural
areas, where services required are indicated on the ISS and not
available from any source in the SDA, such information is to be
recorded in the ISS and an alternate plan developed which may include
referral to another program. SDA's are expected to make every
reasonable effort to make available the recommended training or
services to each participant; however, consistent with Sec. 628.525, it
is understood that the objective assessment and ISS do not give legal
or entitlement rights to participants for services. JTPA is not an
entitlement program and available resources are limited.
Some commenters thought that language in the preamble to the
interim final regulations authorized States and SDA's not to serve the
disabled or other hard-to-serve persons, if they needed substantial
supportive services. The Department acknowledges that it may have
inadvertently suggested that an individual, with excessive supportive
service needs, such as a person with a disability, could automatically
be referred out of the program to other sources. This is not the case.
Such decisions must be made on the basis of the individual's and the
program's circumstances. While JTPA is not required to directly serve
every person, including every person with a disability, it is intended
to focus more on the hard-to-serve. The fact that an individual may be
difficult or costly to serve should not, in itself, preclude serving
that person.
Consistent with Sec. 628.520(f), service providers and contractors
may conduct the objective assessment and develop the ISS. It is the
responsibility of the SDA administrative entity to ensure that the
objective assessment and the development of the ISS reflect the
customer-centered approach required by law are provided to each
participant whether they are provided in-house or by service providers.
Limitations
In response to comments on the provisions of Sec. 628.510 and
Sec. 628.530, Sec. 628.525 is also revised for further clarity to
indicate that neither eligibility nor participation create a right to
JTPA services.
Referrals of Eligible Applicants and Participants to Other Programs
The final regulations further clarify the subject of referrals of
both eligible applicants and participants due to confusion expressed by
a number of commenters. The regulations, at Sec. 628.510(d) and at
Sec. 628.530(c), specify the requirements for referral of eligible
applicants and participants for whom available title II services are
not deemed suitable or adequate to appropriate human service programs
in the community. Section 628.510(d) deals with the situation in which
an eligible applicant is referred to non-title II services during the
intake process. Section 628.530 refers to referrals of participants,
those individuals who have been determined to be eligible and have
begun to receive objective assessment or other services. In the final
regulations, both provisions are revised for clarity and to reduce the
burden of documenting the referrals. Section 628.510(d) allows the SDA
to conduct limited assessment of eligible applicants as a part of a
determination of suitability, before they are enrolled as participants.
The purpose of this pre-participation assessment is to enable SDA's to
make more precise judgments as to the suitability of the applicant for
participation in JTPA and/or additional services.
The responsibility of the SDA at this point in the intake process
is to assure that eligible applicants not suitable for title II
participation are "provided information on the full array of
applicable or appropriate services that are available." (Section
204(a)(2)(A) of the Act) and that necessary arrangements are made for
individuals to make contact with those services.
Section 628.530(c) addresses referral of participants out of title
II services. A number of commenters indicated concern over burdensome
paperwork requirements for referral of participants to other than title
II programs. The Department has addressed these concerns by amending
Sec. 628.320(c) to permit referral decisions for participants with whom
there will be no continuing relationship to be recorded in a partial
ISS. No further tracking of such referred participants is required. Of
course, where there will be a continuing relationship with the referred
participant, Sec. 628.530(a) provides that the referral decision should
be recorded in the ISS and that the participant's progress should be
tracked.
In the case of service providers who discover that an eligible
applicant cannot be served by its program, Sec. 628.510(e) requires
that service providers refer such individuals to the SDA for further
assessment and referral.
Clarification of referral responsibilities was requested by a
number of commenters. In addition to the above explanations,
Sec. 628.510(d) and Sec. 628.530(c) are revised to specify that no
follow-up is required for referrals of eligible applicants or
participants with whom there will not be a continuing relationship.
Further, the Department wishes to point out that either an applicant or
a participant may be referred out of JTPA at any time, if warranted by
customer need or preference. Some commenters seemed to think that both
an objective assessment and ISS "must be completed" prior to referral
outside the program. Since both assessment and the ISS are presumed to
be continually reviewed and evolving during participation, this
assumption is not warranted.
Job Search Limitations
A fundamental change in section 204(c)(2) of the Act regarding
program design is the requirement that job search, job clubs, and work
experience activities be accompanied by other services that increase a
participant's educational and occupational skills. This change reflects
evidence that, in some cases, suggests that quick turnaround placement
programs have minimal long-term impact when provided in isolation from
other more comprehensive and intensive services. The Department's
Inspector General, in a 1988 report, concluded that the number of JTPA
participants on public assistance was only slightly reduced after
completion of JTPA programs. On the other hand, The National JTPA Study
found a 39% earnings gain for adult women from the provision of stand
alone job search services. This new limitation reflects an overall
thrust of JTPA to provide quality services to participants. For
example, short-term job search assistance alone might result in a job
placement for low-skilled individuals, but job retention is not likely
without concomitant services aimed at increasing participants' needed
basic or occupational skills. Accordingly, Sec. 628.535 codifies
section 204(c)(2)(B) of the Act which limits the provision of stand-
alone job search assistance, job search skills training, and job club
activities to title II participants. "Job search assistance" itself
is defined in Sec. 626.5.
Comments generally addressed two issues: Interfacing with the
Employment Service (ES), and the preference of older individuals for
immediate job placement. With regard to the Employment Service, many
questioned the ability of the local ES office to provide adequate
services to JTPA participants. They were concerned that ES may lack in-
house expertise to provide sufficient assistance for groups with
special needs. Citing the provisions in the Act governing the
determination of duplicative services, several commenters believed that
the ability of the ES office to provide assistance to special needs
groups should be a criterion for this determination. Others pointed out
that, since job search activities are a critical part of any ISS, and
service providers have already established successful networks of
employer contacts, ES offices should not be the presumptive deliverer
for providing adequate job search activities for all participants.
These commenters suggested that Sec. 628.535(d) be either deleted or
revised to permit SDA's to determine whether to use the ES to provide
job search services.
On the other hand, several commenters stated that allowing SDA's to
determine unilaterally whether adequate job search assistance is
available through the local ES office (Sec. 628.535(c)(2)) defeats one
of the basic goals of the Amendments: To focus JTPA on providing more
training and less stand-alone job placement. Unless there is a
mechanism for ES input into the determination as to whether job search
services are available, the concern is that an SDA could simply assert
that services are not available to avoid coordinating with the ES,
leading to duplication. One suggestion was that the Governor decide the
criteria for the availability of job search assistance. Another
commenter stated that any requirement to document that job search
services are unavailable from the ES for each participant or training
program should be done only once per program year or Job Training Plan
cycle.
Another commenter pointed out that because job search assistance
was defined as a service "designed to give a participant skills in
acquiring full-time employment," and the local job service office was
considered the appropriate purveyor of these skills (Sec. 628.535(d)),
this provision should be removed because ES offices may not always be
able to provide such services.
The Department decided not to remove Sec. 628.535(d) because it
interprets section 204(c)(2)(B)(ii) of the Act to accord the employment
service a special status in terms of providing job search. Also, this
provision of the Act is not substantially different from the provisions
of sections 107 and 141 of the Act which prohibit duplication of
services. It remains to be determined whether job search assistance is
universally available within each community from the Employment
Service. The SDA may look at whether local employment service resources
are sufficient to provide the job search assistance for all potential
JTPA referrals.
The final rule, at Sec. 628.535(d), is amended to indicate that a
determination is to be made by the SDA in active consultation with the
employment service and other public agencies. These determinations must
be documented in the SDA's job training plan since the employment
service is on the PIC and coordination with the employment service is
among the topics to be included in the plan. Standardized inquiries
regarding local job search assistance availability from the employment
service may be developed by the Governor in consultation with the State
ES Director.
A number of commenters representing older workers recommended
either a waiver of the stand-alone job search limitations for this
population or a provision allowing the Governor to request a waiver
when sufficient evidence demonstrates that the interests of older
workers would not be well served by these limitations. These commenters
recognized the priority placed on training for younger individuals but
expressed doubts that career training was a realistic and relevant goal
for older workers who, generally are not attracted to long-term
assistance that mandates skills training, who do not thrive in
classroom training designed for youth and young adults, and who do not
tend to seek assistance from the ES or other public agency
environments. For these reasons, several commenters asked that older
workers, or the older worker set-aside program, be exempted from this
section altogether and that job search assistance be a service strategy
for this population without justification in the ISS.
The Department considered these comments carefully and has decided
that, like all title II-A participants, older worker participants
require assessment and need a justification in the ISS for stand-alone
job search activities. However, a new Sec. 628.535(e) is added in the
final regulations to recognize the preference of older individuals for
immediate job placement and to provide some flexibility in recognition
of the special characteristics of older workers. The Department's view
is that this provision should not establish a routine practice to avoid
the provision of needed training services. The intent of the JTPA
program remains to provide needed services to the hard to serve,
including older workers.
A few commenters noted an ambiguity in the interim final
regulations, that Sec. 628.804(d) and (e) limit the provision of
preemployment and work maturity skills training and work experience, in
addition to job search assistance, unless they are accompanied by
additional services; while Sec. 628.535(b)(2) states, as an example,
that work experience can be combined with job search training.
Accordingly, Sec. 628.535(b)(2) is revised to specifically exclude this
example as well as other services which may not be used to meet the
combination requirement. Additional services which may be provided in
conjunction with job search may include the training services specified
in JTPA section 204(b)(1), except stand-alone skill assessment,
counseling, work experience and case management, and the direct
training services listed in 264(b) of the Act excluding tutoring,
stand-alone skill assessment, counseling, work experience and case
management. Commenters also pointed out that the title II-C program
does not contain an "exceptions" provision to this requirement as
section 204(c)(2)(B)(ii) of the Act does for the title II-A program. To
address this inconsistency, Sec. 628.535(c) is amended to state that
the exceptions are not applicable to title II-C. On the other hand, it
is important to note that, for the purposes of this section, because
title II-C in-school youth are enrolled in educational programs, they
meet the requirement of being enrolled in "other additional services"
(Sec. 628.804(d) and (e)).
The Volunteer Program
Several commenters felt that the requirements at Sec. 628.540 were
too restrictive and burdensome. In response, and in consideration of
the principle that a volunteer program should, in fact, be voluntary
for former participants, the Department is removing the goals,
objectives and documentation requirements in the final rule. Section
628.540, as revised, merely repeats the statutory requirement which the
Department believes is self-explanatory. The Department encourages the
SDA's to work with former participants to have them share their
experiences in the program and in the workplace with current
participants. The Department also advises the SDA's to document any use
of JTPA funds for this volunteer program.
Linkages and Coordination
Sections 205 and 265 of the Act require that SDA's operating adult
and year-round youth programs establish appropriate linkages with other
Federal human resource programs, including Department of Health and
Human Services' (HHS) JOBS program, the Department of Housing and Urban
Development's (HUD) Comprehensive Modernization Program, the Department
of Energy's (DOE) Low Income Weatherization Grant program and programs
under the National Service Act. Other linkages may also be established
with appropriate State and local educational, social service, and
public housing agencies, including CBO's, business and labor
organizations, volunteer groups and others, such as women and older
worker organizations, to avoid duplication and to enhance the delivery
of services. In addition, youth programs are required to establish
linkages with appropriate educational agencies which include formal
agreements for procedures for referring and serving in-school youth,
methods of assessment, notification when students drop out of school,
and arrangements with educational agencies for services for in-school
and out-of-school youth. These provisions are reflected in
Sec. 628.545.
Several commenters urged that coordination should begin at the
Federal level. The Department agrees and has begun discussions with a
number of other Federal agencies to increase coordination at the
Federal level and, as the commenters requested, to seek ways to develop
common definitions and procedures applicable across program lines. The
commenters were concerned that all the responsibility for coordination
rests on the JTPA system. It is, of course, true that the Act and these
regulations, since they focus on the JTPA system place a burden on the
system to be a prime mover in the process of developing coordinated
program relationships. A State or SDA is required to make good faith
efforts to seek coordination and cooperation where it is possible to do
so.
Several commenters questioned the ability of SDA's to establish
appropriate linkages if other agencies are not operating under similar
mandates. Some comments recommended that the Governor encourage
coordination efforts through the SJTCC and, where feasible, develop
agreements at the State level which would provide the basis and
authority for local agreements and ensure the best utilization of funds
between agencies. The Department agrees that these recommendations are
a good way to establish effective and systematic coordination and
language to this effect is added to Sec. 628.545(a). The new language
recognizes both the SJTCC and the HRIC, whichever is in place in a
State, as useful focus points for coordination efforts. In addition, a
few comments referred to the importance of the SDA's documenting
instances of attempted coordination efforts and of sharing this
information with the Governor's office. This provision also is included
in Sec. 628.545(a) to link State coordination agreements with local
achievements by means of the job training plans.
In addition, to emphasize the importance of "one-stop shop"
career centers and seamless "single point of contact" delivery
systems, which was the concern of several commenters, a new
Sec. 628.545(b) is added. SDA's are encouraged to facilitate such
delivery systems in coordination with other agencies, which may include
both the development of ISS plans and of a common program application,
as well as a unified job development effort and comprehensive program
design. Such linkages may provide for a JTPA entity jointly funding or
administering a program with funds from another agency, such as an SDA
jointly funding aspects of a public housing agency's Comprehensive
odernization Program or the local JOBS program. Alternatively, when
appropriate, the SDA could earmark funds to be spent within public
housing areas for services to residents.
Other coordination issues discussed were the difficulty of defining
and receiving information on dropouts from some local educational
agencies and the fact that agreements should be limited to those
education agencies which plan in-school activities. With regard to
obtaining information on school dropouts, the Department has initiated
discussions with the Department of Education with the goal of working
out a common definition and systematic approach for identifying and
serving dropouts. In the meantime, States are encouraged to negotiate
agreements with State educational agencies to facilitate this task.
With regard to limiting the agreements required at the local level with
educational agencies, Sec. 628.545(c) is amended to reflect these
concerns by the addition of the qualifying terms "appropriate" and
"which participate in JTPA programs."
Transfer of Funds
A few commenters raised questions concerning timing issues not
addressed in Sec. 628.550 of the interim final rule: whether transfers
must occur at the beginning of the program year; whether they may occur
at any time during the 3-year funding period; and whether the
provisions are applicable to the 1993 title II-B program. The
Department does not address these issues in the final rule, leaving the
first two issues to be addressed at the Governor's discretion. In
response to the third issue, the provisions are applicable to the 1993
title II-B program; this issue is addressed in the transition
provisions at Sec. 627.904(k)(2) of the final rule.
In addition, paragraph (b) is revised to permit transfers of up to
20% of the title II B funds allocated to an SDA under section 252(b) of
the Act to title II C. This change is consistent with the amendment
made to section 256 of the Act by the Goals 2000: Educate America Act,
Pub. L. 103-227.
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