Vol. 81 Friday,
No. 161 August 19, 2016
Part VI
Department of Labor Employment and Training Administration 20CFR Parts 603, 651, 652, et al. Workforce Innovation andOpportunity Act; Final Rule
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56072 Federal Register / Vol. 81, No. 161 / Friday, August 19,2016 / Rules and Regulations
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 603, 651, 652, 653, 654, 658, 675, 679, 680, 681,682, 683, 684, 685, 686, 687, and 688
[Docket No. ETA–2015–0001]
RIN 1205–AB73
Workforce Innovation and Opportunity Act
AGENCY: Employment and Training Administration (ETA), Labor.ACTION: Final rule.
SUMMARY: The Department of Labor (DOL or the Department) issuesthis Final Rule to implement titles I and III of the WorkforceInnovation and Opportunity Act (WIOA). Through these regulations,the Department reforms and modernizes our nation’s workforcedevelopment system. This rule provides the framework for changesfor statewide and local workforce development systems to increasethe employment, retention, earnings, and occupational skillattainment of U.S. workers, particularly those individuals withbarriers to employment, so they can move into good jobs and careersand provide businesses with the skilled workforce needed to makethe United States more competitive in the 21st Century globaleconomy. DATES: This Final Rule is effective October 18, 2016. FORFURTHER INFORMATION CONTACT: Adele Gagliardi, Administrator, Officeof Policy Development and Research (OPDR), U.S. Department ofLabor, Employment and Training Administration, 200 ConstitutionAvenue NW., Room N–5641, Washington, DC 20210, Telephone: (202)693–3700 (voice) (this is not a toll- free number). If you use atelecommunications device for the deaf (TDD), call 1–800–326–2577.SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary A. Purpose of the Regulatory Action B.Summary of Major Provisions C. Costs and Benefits
II. Acronyms and Abbreviations III. Rulemaking Authority andBackground
A. Workforce Innovation and Opportunity Act Principles
B. Major Changes From the Workforce Investment Act of 1998
C. Workforce Innovation and Opportunity Act RulemakingProcess
D. Legal Basis IV. Public Comments Received on the Notice
of Proposed Rulemaking
V. Section-by-Section Discussion of the Public Comments andFinal Regulations
A. Part 603—Federal-State Unemployment Compensation Program
B. Part 675—Introduction to the Regulations for the WorkforceDevelopment Systems Under Title I of the Workforce Innovation andAct
C. Part 679—Statewide and Local Governance of the WorkforceDevelopment System Under Title I of the Workforce Innovation andOpportunity Act
D. Part 680—Adult and Dislocated Worker Activities Under Title Iof the Workforce Innovation and Opportunity Act
E. Part 681—Youth Activities Under Title I of the WorkforceInnovation and Opportunity Act
F. Part 682—Statewide Activities Under Title I of the WorkforceInnovation and Opportunity Act
G. Part 683—Administrative Provisions Under Title I of theWorkforce Innovation and Opportunity Act
H. Part 684—Indian and Native American Programs Under Title I ofthe Workforce Innovation and Opportunity Act
I. Part 685—National Farmworker Jobs Program Under Title I ofthe Workforce Innovation and Opportunity Act
J. Part 686—The Job Corps Under Title I of the WorkforceInnovation and Opportunity Act
K. Part 687—National Dislocated Worker Grants
L. Part 688—Provisions Governing the YouthBuild Program
M. Part 651—General Provisions Governing the Wagner-Peyser ActEmployment Service
N. Part 652—Establishment and Functioning of State EmploymentService
O. Part 653—Services of the Wagner-Peyser Act EmploymentService
P. Part 654—Special Responsibilities of the EmploymentService
Q. Part 658—Administrative Provisions Governing theWagner-Peyser Act Employment Service
VI. Rulemaking Analyses and Notices A. Executive Orders 12866and 13563:
Regulatory Planning and Review B. Regulatory Flexibility Act C.Small Business Regulatory Enforcement
Fairness Act of 1996 D. Paperwork Reduction Act E. ExecutiveOrder 13132 (Federalism) F. Unfunded Mandates Reform Act of 1995 G.Plain Language H. Assessment of Federal Regulations and
Policies on Families I. Executive Order 13175 (Indian Tribal
Governments) J. Executive Order 12630 (Government
Actions and Interference With Constitutionally ProtectedProperty Rights)
K. Executive Order 12988 (Civil Justice Reform)
L. Executive Order 13211 (Energy Supply)
I. Executive Summary
A. Purpose of the Regulatory Action On July 22, 2014, PresidentObama
signed the Workforce Innovation and Opportunity Act (WIOA) (Pub.L. 113– 128), comprehensive legislation that reforms and modernizesthe public workforce system. WIOA reaffirms the role of the publicworkforce system, and brings together and enhances several keyemployment, education, and training programs. This new law providesresources, services, and leadership tools for the public workforcesystem to help individuals find good jobs and stay employed andimproves employer prospects for success in the global marketplace.It ensures that the public workforce system operates as acomprehensive, integrated, and streamlined system to providepathways to prosperity for those it serves and continuouslyimproves the quality and performance of its services.
The Department is publishing this Final Rule to implement thoseprovisions of WIOA that affect the core programs under title I, theWagner- Peyser Act Employment Service (ES) program, as amended byWIOA title III (ES program), and the Job Corps and nationalprograms authorized under title I which will be administered by theDepartment. In addition to this DOL WIOA Final Rule, theDepartments of Education (ED) and Labor jointly are publishing aFinal Rule to implement those provisions of WIOA that affect all ofthe WIOA core programs (titles I through IV) and which will have tobe overseen and administered jointly by both Departments. Readersshould note that in this DOL WIOA Final Rule there are a number ofcross-references to the Joint WIOA Final Rule published by ED andDOL, including those provisions in the Joint WIOA Final Ruleregarding performance reporting. In addition to the Joint WIOAFinal Rule, ED and DOL are issuing separate final rules toimplement program-specific requirements of WIOA that fall undereach Department’s purview. DOL is issuing this Final Rule governingprogram-specific requirements under WIOA title I and for the ESprogram, as amended by WIOA title III. ED is issuing three finalrules: One implementing program-specific requirements of the AdultEducation and Family Literacy Act (AEFLA), as reauthorized by titleII of WIOA; and two final rules implementing all program-specificrequirements for programs authorized under the Rehabilitation Actof 1973, as amended by title IV of WIOA. The Joint WIOA Final Ruleand other Department- specific final rules are published
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elsewhere in this issue of the Federal Register.
WIOA seeks to deliver a broad array of integrated services tocustomers of the public workforce system, which include bothindividuals seeking jobs and skills training and employers seekingskilled workers. The law improves the public workforce system bymore closely aligning it with regional economies and strengtheningthe network of about 2,500 one-stop centers. Customers must haveaccess to a seamless system of high-quality services throughcoordination of programs, services, and governance structures. TheAct builds closer ties among key workforce partners—businessleaders, State and Local Workforce Development Boards (WDBs), laborunions, community colleges, non-profit organizations, youth-servingorganizations, and State and local officials—in striving for a morejob- driven approach to training and skills development.
WIOA will help job seekers and workers access employment,education, training, and support services to succeed in the labormarket and match employers with the skilled workers they need tocompete in the global economy. The purposes of WIOA described inthe statute include:
• Increasing access to and opportunities for the employment,education, training, and support services that individuals need,particularly those with barriers to employment.
• Supporting the alignment of workforce investment, education,and economic development systems, in support of a comprehensive,accessible, and high-quality workforce development system.
• Improving the quality and labor market relevance of workforceinvestment, education, and economic development efforts.
• Promoting improvement in the structure and delivery ofservices.
• Increasing the prosperity of workers and employers.
• Providing workforce development activities that increaseemployment, retention, and earnings of participants and thatincrease postsecondary credential attainment and as a result,improve the quality of the workforce,
reduce welfare dependency, increase economic self-sufficiency,meet skill requirements of employers, and enhance productivity, andthe competitiveness of our nation.
WIOA’s passage and implementation builds upon the groundworkalready laid by an Administration-wide review of employment,education, and training programs to ensure Federal agencies doeverything possible to prepare ready-to- work-Americans withready-to-be-filled jobs. That review identified several prioritiesfor Federally supported training programs, including employerengagement; promoting work-based learning strategies, such ason-the job training and registered apprenticeships, careerpathways, and regional collaboration; increasing access to trainingby breaking down barriers; and data-driven program management andevaluation.
As WIOA implementation progresses, success in accomplishing thepurposes of WIOA at the State, local, and regional levels, will bedetermined by whether:
• One-stop centers are recognized as a valuable communityresource and are known for high quality, comprehensive services forcustomers.
• The core programs and one-stop partners provide seamless,integrated customer service.
• Program performance, labor market, and related data drivepolicy and strategic decisions and inform customer choice.
• Youth programs reconnect out-of- school youth (OSY) toeducation and jobs.
• Job seekers access quality career services either online or ina one-stop center through a ‘‘common front door’’ that connectsthem to the right services.
• One-stop centers facilitate access to high quality, innovativeeducation and training.
• Services to businesses are robust and effective, meetingbusinesses’ workforce needs across the business lifecycle.
As noted throughout this Final Rule, the Department will beissuing guidance to help our regulated communities understand theirrights and responsibilities under WIOA and these regulations.Consistent with the Administrative Procedure Act’s exemption fromits notice and comment
requirement for general statements of policy, interpretations,and procedural instructions, this guidance will provideinterpretations of many of the terms and provisions of theseregulations and more detailed procedural instructions that wouldnot be appropriate to set out in regulations. The Department alsowill be issuing guidance to provide information on currentpriorities and initiatives, suggested best practices, and inresponse to stakeholder questions.
B. Summary of Major Provisions
To implement WIOA title I, the Department has added several newCFR parts to title 20, chapter V (ETA’s regulations). Inparticular, because the WIA regulations will continue to bereferenced in existing and historic documents for some time afterthe WIOA transition, the Department is creating entirely newprogrammatic regulations to reflect the requirements of WIOA,rather than amending the WIA title I regulations found at 20 CFRparts 660 through 672. Table 1 below presents a crosswalk for thesenew CFR parts to illustrate how they relate to the existing WIAregulations.
In addition, the Department is revising in this DOL WIOA FinalRule certain other CFR parts in accordance with WIOA, rather thancreating entirely new parts, where it was not necessary to retainthe WIA version of the regulation. For example, the Departmentretains the Wagner-Peyser Act implementing regulations in 20 CFRparts 651 through 658 and is revising in this Final Rule only thoseparts that are affected by WIOA, i.e., parts 651 through 654 and658. Further, the Department is amending portions of part 603(Federal-State Unemployment Compensation (UC) Program;Confidentiality and Disclosure of State UC Information) inaccordance with WIOA. These CFR parts that are amended but not newin this DOL WIOA Final Rule are indicated in Table 1 by showingthat they do not change location in the CFR from WIA to WIOA. Theremainder of this section I.B briefly summarizes each CFR part inthis Final Rule and any significant differences between the noticeof proposed rulemaking (NPRM) and Final Rule.
TABLE 1—CROSSWALK OF WIA AND WIOA REGULATIONS
Subject matter WIA CFR part WIOA CFR part
Federal-State UC Program............................................................................................20 CFR part 603 ................ 20 CFR part 603.Definitions/Introduction to Regulations..........................................................................20 CFR part 660 ................ 20 CFR part 675. State and LocalWDBs, Local and Regional Plans, Waivers....................................... 20 CFR part 661................ 20 CFR part 679. Adult and Dislocated Workers.......................................................................................20 CFR part 663 ................ 20 CFR part 680.
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TABLE 1—CROSSWALK OF WIA AND WIOA REGULATIONS—Continued
Subject matter WIA CFR part WIOA CFR part
Youth Activities..............................................................................................................20 CFR part 664 ................ 20 CFR part 681. StatewideActivities........................................................................................................20 CFR part 665 ................ 20 CFR part 682. AdministrativeProvisions...............................................................................................20 CFR part 667 ................ 20 CFR part 683. Indian and NativeAmerican Programs.........................................................................20 CFR part 668 ................ 20 CFR part 684. NationalFarmworker Jobs Program..............................................................................20 CFR part 669 ................ 20 CFR part 685. Job Corps......................................................................................................................20 CFR part 670 ................ 20 CFR part 686. NationalDislocated Worker Grants...............................................................................20 CFR part 671 ................ 20 CFR part 687. YouthBuild......................................................................................................................20 CFR part 662 ................ 20 CFR part 688. Wagner-Peyser ActEmployment Service—Definitions................................................. 20 CFR part 651................ 20 CFR part 651. Wagner-Peyser Act EmploymentService—Establishment and Functioning ................ 20 CFR part652 ................ 20 CFR part 652. Wagner-Peyser Act EmploymentService—Services.................................................... 20 CFR part653 ................ 20 CFR part 653. Wagner-Peyser Act EmploymentService—Special Responsibilities ............................ 20CFR part 654 ................ 20 CFR part 654. Wagner-Peyser ActEmployment Service—Administrative Provisions......................... 20 CFR part 658 ................ 20 CFRpart 658.
1. Part 603—Federal-State Unemployment Compensation Program
The Department is amending its regulations at 20 CFR part 603 tohelp States comply with WIOA. WIOA requires that States use‘‘quarterly wage records’’ in assessing the performance of certainFederally funded employment and training programs. In particular,this Final Rule amends part 603 to clarify and expand, in a limitedfashion, those public officials with whom the State may sharecertain confidential information to carry out requirements underWIOA, including the use of wage records to meet performancereporting requirements and cooperation with certain DOL and EDevaluations. The Department is amending part 603 as proposed in theNPRM.
2. Part 675—Introduction to the Regulations for the WorkforceDevelopment System Under Title I of the Workforce Innovation andOpportunity Act
Part 675 discusses the purpose of title I of the WIOA, explainsthe format of the regulations governing title I, and providesadditional definitions for terms used in the law.
The most notable changes to this part from the regulatory textproposed in the NPRM include the addition of a definition of‘‘family’’ and strengthening the definition of ‘‘consultation.’’The DOL WIOA Final Rule defines ‘‘family’’ in the same way as theWIA definition of ‘‘family,’’ except that instead of using thegender-specific ‘‘husband’’ and ‘‘wife’’ terms that were in WIA, itsubstitutes ‘‘a married couple.’’ This is intended to bring thedefinition into conformance with the recent Supreme Court decisionsabout marriage equality.
Regarding the revised definition of ‘‘consultation,’’ inresponse to public comments expressing concern that the proposeddefinition was not specific enough, the Final Rule definitionbetter
focuses on the public workforce system and is necessary toclarify that consultation constitutes a coming together ofstakeholders, robust conversation, and opportunity for all partiesto express thoughts and opinions.
The Department also changed the terms ‘‘workforce innovation andopportunity system,’’ and ‘‘workforce investment system’’ to‘‘workforce development system’’ throughout this rule. This wasdone to enhance consistency across parts and avoid confusion, andto be emphasize the role of workforce development boards in thissystem.
3. Part 679—Statewide and Local Governance of the WorkforceDevelopment System Under Title I of the Workforce Innovation andOpportunity Act
Part 679 addresses the statewide and local governance provisionsof the workforce development system under WIOA title I. This partincludes provisions that govern the conditions under which theGovernor must establish the State WDB (subpart A); the requirementsfor designation of regions and local areas under WIOA (subpart B);the role of Local WDBs, Local WDB membership, and the role of chiefelected officials (CEOs) (subpart C); the requirements relating toregional and local plans (subpart D); the statutory and regulatorywaiver authority provided by WIOA sec. 189(i), including therequirements for submitting a workforce flexibility plan under WIOAsec. 190 (subpart E).
As for notable changes to this part from the NPRM regulatorytext, to address concerns about representation of core programs onthe State WDB was raised by many commenters, the Department hasrevised the final regulations to clarify that, for the WIOA title Iand ES programs, a single lead State official with primary
responsibility for those programs may represent more than one ofthose programs. However, WIOA title II programs must have a single,unique representative, and the Vocational Rehabilitation (VR)program administered by ED and authorized under title I of theRehabilitation Act of 1973, as amended by WIOA title IV (VRprogram), must have a single, unique representative. See §679.110(b)(3)(iii)(A)(1)(i) through (iii).
Further, the Department clarified the regulatory text byproviding details on the duration of initial local area designationand the timing of the first available opportunity for local areasubsequent designation to occur. The Department revised theproposed requirement to clarify that initial designation isapplicable only to Program Year (PY) 2016 and PY 2017. Noting thecommenters’ concerns regarding availability of WIOA performancedata, which is required for the determination of designation, theDepartment added § 679.250(c) to clarify that no determination ofsubsequent designation may be made before the conclusion of PY2017. The section-by- section discussion of part 679 below detailsother changes to the part 679 regulatory text, as well asDepartment responses to all substantive public comments.
4. Part 680—Adult and Dislocated Worker Activities Under Title Iof the Workforce Innovation and Opportunity Act
In this part of the Final Rule, the Department describesrequirements relating to the services that are available for adultsand dislocated workers under WIOA title I. Under WIOA, adults anddislocated workers may access career services and trainingservices. Training is provided through a robust eligible trainingprovider and program list (ETPL), comprised of entities with ademonstrated capability of training
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individuals to enter quality employment. WIOA also providesenhanced access and flexibility for work-based training options,such as on- the-job training (OJT), customized training, andincumbent worker training. In this part, the Department alsodiscusses supportive services and needs-related payments that canbe provided, based on customer needs, to enable them to participatein WIOA career and training services.
Some of the notable changes to this part from the NPRMregulatory text include that the Final Rule clarifies that thepriority of service in the adult program for individuals who arepublic assistance recipients, other low-income individuals and forindividuals who are basic skills deficient exists at all times, notjust when funds are limited.
Regarding the role of registered apprenticeship programs, theFinal Rule emphasizes the key role WIOA envisions for registeredapprenticeship programs by highlighting these programs as atraining service for both Individual Training Accounts (ITAs) andas OJT. The Final Rule allows apprenticeship programs that are notregistered to go through the eligible training provider (ETP)process if they want to be on the ETP list; the rule does notprovide apprenticeship programs that are not registered specialaccess to the ETPL. The Department also clarifies in this FinalRule that registered apprenticeship programs are automaticallyeligible for the ETPL and the State is required to notify them oftheir automatic eligibility and allow the registered apprenticeshipprogram an opportunity to consent to be on the State ETPL (see §680.470). This mechanism must be minimal burden to registeredapprenticeship programs and must comply with Federal guidance. TheDepartment further clarifies in this Final Rule that local areas,which have the authority to set more stringent standards than theState for eligibility of training providers, may not do so forregistered apprenticeship programs that are on the State ETPL.Finally, the Department clarifies in this Final Rule thatregistered apprenticeship programs may be removed from the StateETPL for enforcement reasons other than performance, such as aclear violation of WIOA (see § 680.470). Although registeredapprenticeship programs are not required to report in the same wayas other ETPs, they are required to be a part of the State annualETP performance report under WIOA sec. 116(d)(2).
5. Part 681—Youth Activities Under Title I of the WorkforceInnovation and Opportunity Act
Part 681 describes requirements relating to the services thatare available to youth under WIOA title I, subtitle B, as part 664did for youth activities funded under WIA. The most significantchange to the youth formula program under WIOA is the shift tofocus resources primarily on OSY. WIOA increases the minimumpercentage of program funds required to be spent on OSY from 30 to75 percent. The Department plans to release subsequent guidance andtechnical assistance on how States and local areas can incorporatestrategies for recruiting and serving more OSY.
In addition, WIOA includes a major focus on providing youth withwork experience opportunities with a requirement that local areasmust spend a minimum of 20 percent of local area funds on workexperience. And although work experience becomes the most importantof the program elements, WIOA also introduces 5 new programelements: Financial literacy; entrepreneurial skills training;services that provide labor market and employment information aboutin- demand industry sectors or occupations available in the localareas; activities that help youth prepare for and transition topostsecondary education and training; and education offeredconcurrently with and in the same context as workforce preparationactivities and training for a specific occupation or occupationalcluster.
The most significant change between the NPRM and the Final Ruleoccurs in § 681.400. This section clarifies that youth activitiesmay be conducted by the local grant recipient and that when theLocal WDB chooses to award grants or contracts to youth serviceproviders, such awards must be made using a competitive procurementprocess in accordance with WIOA sec. 123. The section-by-sectiondiscussion of part 681 below details other changes to the part 681regulatory text, as well as Department responses to all substantivepublic comments.
6. Part 682—Statewide Activities Under Title I of the WorkforceInnovation and Opportunity Act
WIOA provides a reservation of funds for statewide employmentand training activities. These activities are undertaken by theStates, rather than by Local WDBs; both the required and allowableactivities are addressed by part 682. WIOA designates thepercentage of funds that may be devoted
to these activities from annual allotments to the States—up to15 percent must be reserved from youth, adult, and dislocatedworker funding streams, and up to an additional 25 percent ofdislocated worker funds must be reserved for statewide rapidresponse activities.
Some of the notable changes to this part from the NPRMregulatory text include the specification that layoff aversion is arequired rapid response activity, as applicable. Layoff aversionactivities may include employer-focused activities such asproviding assistance to employers in managing reductions in force,funding feasibility studies to determine if the employer’soperation may be sustained through a buy-out, etc. Further, the DOLWIOA Final Rule specifies that a successful rapid response systemincludes comprehensive business engagement. Finally, the DOL WIOAFinal Rule specifies that rapid response funds may be used to payfor incumbent worker training as long as it is part of a broaderlayoff aversion strategy. Incumbent worker training is also avaluable layoff aversion tool and, under WIA, many States requesteda waiver to allow such training with rapid response funds. ThisFinal Rule change recognizes the value of incumbent worker trainingfor this purpose and includes it as allowable under rapid responsewithin the context of layoff aversion activities.
7. Part 683—Administrative Provisions Under Title I of theWorkforce Innovation and Opportunity Act
Part 683 establishes the administrative provisions for theprograms authorized under title I of WIOA. Some of the provisionsare also applicable to grants provided under the Wagner-Peyser Act,as indicated in specific sections of the part. The remainingWagner-Peyser Act administrative regulations are located in part658. Additionally, please note that administrative provisions forJob Corps (subtitle C of title I of WIOA) contracts are addressedseparately in part 686.
This DOL WIOA Final Rule adds a requirement that the Governorestablish criteria or factors for approving Local WDB transfers offunds between the adult and dislocated worker programs and thatthese criteria must be in a written policy, such as the State Planor other written policy.
Regarding Pay-for-Performance contract strategies, the finalregulations made a change from the NPRM in that the Department hasadded a new section that maintained the requirement for afeasibility study prior to implementing a Pay-for-Performancecontract strategy
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but removed it from the 10 percent limitation of funds.
8. Part 684—Indian and Native American Programs Under Title I ofthe Workforce Innovation and Opportunity Act
Part 684 governs the Indian and Native American (INA) programauthorized under WIOA sec. 166. WIOA and part 684 streamline thecompetitive process for awarding the INA program grants. Section166 of WIOA requires both that grants be awarded through acompetitive process and that grantees submit a 4-year plan (WIOAsecs. 166(c) and 166(e)). These WIOA regulations streamline thegrant award process to ease the administrative burdens. TheDepartment will no longer designate grantees or require a notice ofintent. Moreover, the part 684 WIOA regulations have incorporatedthe 4-year plan into the competitive grant award process. Becausethese changes will help streamline the process for awarding grants,these WIOA regulations should result in less of an administrativeburden on both applicants and the Department.
Other than a few technical, non- substantive edits, theDepartment has made no changes to the regulatory text in part684.
9. Part 685—National Farmworker Jobs Program Under Title I ofthe Workforce Innovation and Opportunity Act
The purpose of part 685 is to implement WIOA sec. 167, whichauthorizes migrant and seasonal farmworker (MSFW) programs. Indrafting these regulations, the Department consulted with Statesand MSFW groups during stakeholder consultation sessions conductedin August and September 2014, as required by WIOA sec. 167(f). MSFWprograms include career services and training, housing assistance,youth services, and related assistance to eligible MSFWs.
The regulations in part 685 support strategic alignment acrossworkforce development programs by: Aligning the definition of‘‘farmwork’’ found in this part with that used in the ES program;adjusting the upper and lower age ranges of eligible MSFW youth toconform to those established in WIOA sec. 129 for OSY and ISY; andrequiring that grantees coordinate services, particularly outreachto MSFWs, with the State Workforce Agency (SWA) in their servicearea and the State Monitor Advocate. These changes are intended tosupport coordination between MSFW programs and other workforceprograms such as the ES program, and facilitate
MSFW youth co-enrollments with other WIOA title I programs.
Part 685 includes language regarding training services thatreinforces that training must be directly linked to an in- demandindustry or occupation that leads to economic self-sufficiency andencourages the attainment of recognized postsecondary credentialswhen appropriate (see § 685.350).
Part 685 also establishes that grantees funded under WIOA sec.167 can serve eligible MSFW youth participants (see §§ 685.320 and685.510). These regulations also require that a percentage of thetotal funds appropriated each year for WIOA sec. 167 activitiesmust be used for housing grants, and described specific housingassistance activities to better articulate the types of servicesthat can be delivered to eligible MSFWs (see § 685.360).
Based on the public comments received in response to the NPRM,the Department made the following significant changes to part 685as proposed:
• The Final Rule permits a National Farmworker Jobs Program(NFJP) grantee some flexibility to increase the OJT reimbursem*ntrate up to 75 percent of the wage rate of a participant, providedthat such reimbursem*nt rates are consistent with the rates set bythe Governor in the State or Local WDB(s) in the local area(s) inwhich the grantee operates in accordance with WIOA sec.134(c)(3)(H)(i);
• The Final Rule revises § 685.360(d) to clarify thatNFJP-funded permanent housing development activities that benefiteligible MSFWs do not require individual eligibilitydeterminations;
• The Final Rule clarifies in § 685.360 that development ofon-farm housing located on property owned and operated by anagricultural employer is an allowable activity; and
• In response to commenters’ concerns regarding the negativeimpact that would result on performance indicator calculations byincluding individuals who receive only certain minimal ‘‘relatedassistance’’ services, which do not require a significantinvestment of staff time and resources, the Department has addedlanguage to § 685.400 that puts the NFJP program in alignment withother WIOA authorized programs regarding performance accountabilitycalculations.
10. Part 686—The Job Corps Under Title I of the WorkforceInnovation and Opportunity Act
This part establishes regulations for the Job Corps program,authorized in title I, subtitle C of WIOA. The
regulations address the scope and purpose of the Job Corpsprogram and provide requirements relating to site selection,protection, and maintenance of Job Corps facilities; funding andselection of center operators and service providers; recruitment,eligibility, screening, selection and assignment, and enrollment ofJob Corps students; Job Corps program activities and centeroperations; student support; career transition services andgraduate services; community connections; and administrative andmanagement requirements. The regulations carry out Congressionaldirection on contracting and competition for centers andincorporate the requirements of title I, subtitle C of WIOA.Specifically, the regulations describe how the Job Corps program isoperated in order to deliver relevant academic and career technicaltraining (CTT) that leads to meaningful employment or postsecondaryeducation and explain the requirements necessitated by the uniqueresidential environment of a Job Corps center.
Although the Department received some public comments thatopposed the proposed provision stating that the Secretary of Labor,in consultation with the Secretary of Agriculture, may select anentity to operate a Civilian Conservation Center (CCC) or close lowperforming CCCs if the Secretary of Labor deems appropriate (§686.350(e) through (f)), the DOL WIOA Final Rule retains theseparagraphs as proposed because the regulatory text mirrors thestatutory requirements at WIOA sec. 159(f)(2). In addition,regarding concerns expressed by commenters that the proposedhigh-performing center criteria were too difficult to achieve, theDepartment is retaining § 686.320 as proposed because the languagein the regulation mirrors that of WIOA and the Department does nothave the discretion to loosen the criteria.
11. Part 687—National Dislocated Worker Grants
National Dislocated Worker Grants (DWGs) are discretionaryawards that temporarily expand service capacity at the State andlocal levels through time- limited funding assistance in responseto significant dislocation events. These grants are governed bysec. 170 of WIOA. The part 687 regulations set forth the keyelements and requirements for DWGs. Additional guidance on DWGs andthe application requirements for these grants was publishedseparately by the Department in Training and Employment GuidanceLetter (TEGL) No. 01–15, ‘‘Operational Guidance for NationalDislocated Worker Grants, pursuant to the
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Workforce Innovation and Opportunity Act (WIOA or OpportunityAct).’’
The part 687 regulations establish a framework that will enableeligible applicants to apply quickly for grants to relieve theimpact of layoffs, emergencies, and disasters on employment in theimpacted area and to meet the training and reemployment needs ofaffected workers and to enable them to obtain new jobs as quicklyas possible. These regulations call for early assessment of theneeds and interests of the affected workers, through either rapidresponse activities or other means, as well as an indication of theother resources available to meet these needs, to aid in thecreation of a customer- centered service proposal. The earlycollection of information about affected workers will allowapplicants to have an understanding of the needs and interests ofthe impacted workers to enable a prompt application for theappropriate level of DWG funds. Early collection of informationalso will facilitate the receipt of DWG funds when the Secretarydetermines that there are insufficient State and local formulafunds available. Early intervention to assist workers beingdislocated is critical to enable them to access work- basedlearning opportunities and other types of training that lead toindustry- recognized credentials, as appropriate, to help them findnew employment in in-demand industries and occupations as soon aspossible after their dislocation occurs.
The Department has made several global changes and technicaledits to the part 687 regulations proposed in the NPRM for clarityand technical accuracy. For example, ‘‘National Dislocated WorkerGrants’’ will be referred to by the acronym ‘‘DWGs’’ in this partfor simplicity. In addition, the Department has determined it isnecessary to alter the labels of what the NPRM called ‘‘Regular’’and ‘‘Disaster’’ DWGs to describe more accurately their purpose andintended use. ‘‘Regular’’ DWGs have been renamed ‘‘EmploymentRecovery’’ DWGs, and ‘‘Disaster’’ DWGs have been renamed ‘‘DisasterRecovery’’ DWGs. Further, the terms ‘‘career services’’ and‘‘employment-related assistance’’ have been changed to ‘‘employmentand training assistance’’ to clarify that the use of DWG funds isnot limited to only career services. Training and supportiveservices also may be provided as appropriate and in accordance withthe requirements of part 687. Finally, the term ‘‘temporaryemployment’’ has been replaced with the term ‘‘disaster reliefemployment’’ to better align the text of this part 687 with that ofWIOA sec.
170. In addition, this DOL WIOA Final Rule clarifies thatindividuals who relocate to another State, tribal, or outlying areaafter a disaster may receive services in either the disaster areaor the area to which they relocate. However, the Final Rule alsoincludes a provision for the Secretary to allow, in certaincirc*mstances, individuals to receive services in both the disasterand the relocation area. Other non- substantive changes andtechnical edits are described in detail in the section-by- sectiondiscussion of part 687 below.
12. Part 688—Provisions Governing the YouthBuild Program
The YouthBuild program authorizes grants for job training andeducational activities for at-risk youth who, as part of theirtraining, help construct or rehabilitate housing for homelessindividuals and families and low- income families in theirrespective communities. Participants receive a combination ofclassroom training, job skills development, and on-site training inthe construction trades. The Department wants to emphasize theconnections across all of our youth- serving programs under WIOA,including the WIOA youth formula program and associated boards andyouth committees, connections to pre- apprenticeship and registeredapprenticeship programs, and Job Corps centers across the country.WIOA is an opportunity to align and coordinate service strategiesfor these ETA youth training programs, as well as to align with ourFederal partners that serve these same customers. WIOA also ensuresthat these programs are using common performance indicators andstandard definitions, which includes aligning the definitions forhomeless youth, basic skills deficient, occupational skillstraining, and supportive services. Additionally, the YouthBuildregulation adopts the six new performance indicators that werecodified across WIOA youth-serving programs and aligns YouthBuildwith the WIOA youth formula program performance outcomes.
WIOA affirms the Department’s commitment to providinghigh-quality education, training, and employment services for youthand young adults through YouthBuild grants by expanding theoccupational skills training offered at local YouthBuild programs.YouthBuild programs can offer occupational skills training in in-demand occupations, such as health care, advanced manufacturing,and IT, as approved by the Secretary and based on the maturity ofthe program and local labor market information.
Other changes include revisions to the duration of therestrictive covenant clause, clarifying eligibility criteria forparticipation, and describing qualifying work sites and minimumcriteria for successful exit from the YouthBuild program. Beyondthese regulations, the Department will continue to develop guidanceand technical assistance to help grantees and the workforcedevelopment community operate highly effective YouthBuildprograms.
13. Part 651—General Provisions Governing the Wagner-Peyser ActEmployment Service
The Wagner-Peyser Act of 1933 established the ES program, whichis a nationwide system of public employment offices that providepublic labor exchange services. The ES program seeks to improve thefunctioning of the nation’s labor markets by bringing togetherindividuals seeking employment with employers seeking workers. In1998, the ES program was amended to make it part of the one-stopdelivery system established under WIA. The ES program has now beenamended again under title III of WIOA.
WIOA expands upon the previous workforce reforms in the WIA and,among other provisions, identifies the ES as a core program in theone-stop delivery system, embeds ES State planning requirementsinto a unified planning approach, and requires the colocation of ESoffices into the one- stop centers. The regulations in parts 651,652, 653, 654, and 658 update the language and content of theregulations to implement amendments made by title III of WIOA tothe Wagner-Peyser Act. In some areas, these regulations establishentirely new responsibilities and procedures. In other areas, theregulations clarify and update requirements already established.The regulations make important changes to the following componentsof the ES program: definitions, data submission, and increasedcollaboration requirements, among others.
Part 651 sets forth definitions for 20 CFR parts 652, 653, 654,and 658. The Department received several comments regarding thesedefinitions and has eliminated, revised, and added definitions, asneeded. Some commenters suggested new terms they would like to seedefined in part 651, and other commenters expressed concerns orsuggestions relating to specific proposed definitions.Additionally, the Department has made technical and clarifyingchanges to some of the definitions.
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14. Part 652—Establishment and Functioning of State EmploymentService
The regulations at 20 CFR part 652 set forth standards andprocedures regarding the establishment and functioning of State ESoperations. These regulations align part 652 with the WIOAamendments to the ES program, and with the WIOA reforms to thepublic workforce system that affect the ES program. TheWIOA-amended Wagner-Peyser Act furthers longstanding goals ofcloser collaboration with other employment and training programs bymandating colocation of ES offices with one-stop centers; aligningservice delivery in the one-stop delivery system; and ensuringalignment of State planning and performance indicators in theone-stop delivery system. Other new Wagner- Peyser Act provisionsare consistent with long-term Departmental policies, includingincreased emphasis on reemployment services for UI claimants (sec.7(a)); promoting robust Workforce Labor Market Information (WLMI);the development of national electronic tools for job seekers andbusinesses (sec. 3(e)); dissemination of information on bestpractices (sec. 3(c)(2)); and professional development for ES staff(secs. 3(c)(4) and 7(b)(3)).
Several public comments received in response to the NPRMprompted the Department to make minor changes to parts of theregulations in this section. For example, the Department agreedwith comments regarding ensuring comprehensive front-line stafftraining; and direct language has been added to § 652.204 from sec.3(c)(4) of the Wagner-Peyser Act (as amended by WIOA sec.303(b)(4)) to indicate that professional development and careeradvancement can be supported by the Governor’s Reserve. TheDepartment agreed with the commenter-suggested benefits of aligningdefinitions across the core programs, and as a result, the terms‘‘reportable individual’’ and ‘‘participant’’ have been revised toalign with the performance accountability of the other coreprograms. The Department also agreed with commenters who suggestedthat career services under WIOA are not a substitute forWagner-Peyser Act sec. 7(a) services; § 652.3(f) has been amendedto reference sec. 7(a) of the Wagner-Peyser Act. The Departmentcontinues to seek alignment of service delivery with WIOA coreprograms.
The Department received several varying comments regardingcolocation. This part clarifies the intent of colocation; howES-only affiliate sites
do not meet the intent of WIOA; the Department’s decision tobroaden language in 20 CFR 678.315(b) to allow multiple programs tomeet the more than 50 percent threshold by combining the time theirstaff members are physically present (see Joint WIOA Final Rule);and the expectation that colocation should be completed asexpeditiously as possible, and that the Department will issuefuture guidance on this topic. Many commenters also raisedquestions and provided comments regarding the allowable uses ofWagner-Peyser Act funds. The Department clarified that there are nochanges in the activities that may be funded by Wagner-Peyser Actfunds. Specifically, training services may not be provided withsec. 7(a) of the Wagner-Peyser Act funding; however, appropriatecareer services and labor exchange services may be provided toindividuals in training and there is no restriction on fundingtraining services with sec. 7(b) funds under the Wagner- PeyserAct.
In regard to WLMI, some of the clarifications identified in thispart include: There is a need to provide extensive education andtechnical assistance with regard to accessing wage record data; theWorkforce Information Advisory Council (WIAC) will advise on WLMIand may consider what kind of information is needed for planning,but it will not be involved in developing State Plans; and theDepartments of Labor and Education will issue joint guidance withregard to use of wage data for performance in the context of theconfidentiality requirements for the use of UI wage record data andeducation data under the Family Educational Rights and Privacy Act(FERPA). The Department also made other clarifying changes to part652, as discussed elsewhere in this Final Rule.
15. Part 653—Services of the Wagner- Peyser Act EmploymentService
Part 653 sets forth standards and procedures for providingservices to MSFWs and provides regulations governing theAgricultural Recruitment System (ARS), a system for interstate andintrastate agricultural job recruitment. In subparts B and F ofpart 653, the Department is implementing the WIOA title IIIamendments to the Wagner-Peyser Act, as well as streamlining andupdating certain sections to eliminate duplicative and obsoleteprovisions. Despite these changes, part 653 remains consistent withthe ‘‘Richey Order.’’ NAACP v. Brennan, 1974 WL 229, at *7 (D.D.C.Aug. 13, 1974).
Upon the consideration of comments suggesting that theDepartment require outreach workers to be trained on not only howto identify and refer possible incidents of sexual harassment, butalso on similar issues such as sexual coercion, assault, and humantrafficking, the Department has added such language to theregulatory text at § 653.107(b)(7). Training outreach workers inthis way is key in helping to connect victims with appropriateresources and support networks.
16. Part 654—Special Responsibilities of the Employment ServiceSystem
In 1980, the Department published amended regulations at 20 CFRpart 654, subpart E, providing agricultural housing standards forMSFWs. In the NPRM, the Department proposed to revise theseagricultural housing regulations (hereinafter ‘‘ETA standards’’) byupdating outdated terminology and by establishing an expirationdate for the ETA standards. This proposed expiration date wasintended to transition housing currently governed by the ETAstandards to the Occupational Safety and Health Administration(OSHA) regulations governing temporary labor camps for agriculturalworkers as set forth at 29 CFR 1910.142. After considering thepublic comments received on this aspect of the proposal, theDepartment is rescinding its proposal to establish an expirationdate for the ETA standards in order to transition housing currentlygoverned by the ETA standards to the OSHA standards, as explainedin further detail in this Final Rule.
17. Part 658—Administrative Provisions Governing theWagner-Peyser Act Employment Service
Part 658 sets forth systems and procedures for complaints,monitoring for compliance assessment, enforcement, and sanctionsfor violations of the ES regulations and employment-related laws,including discontinuation of services to employers anddecertification of SWAs. The Department’s proposed changes to part658 updated terminology and responsibilities and reorganizedvarious regulations to increase the clarity and efficiency of theprovisions involved. Additionally, headings were revised, whennecessary, to reflect changes to the regulations, and language wasadded to permit, where relevant, the use of electronic mail andelectronic signatures.
Overall, the Department received several comments seekingclarification on processing complaints and apparent violations,attempting informal
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resolution, and the role of MSFW complainant’s representatives,among many others. The Department has addressed these requests forclarification in the responses to public comments contained in thepart 658 section-by-section discussion below (see section V.Q).Additionally, the Department will issue guidance on the ComplaintSystem, informal resolution, referring complaints and apparentviolations, and on part 658, subpart F (Discontinuation of Servicesto Employers by the Employment Service System).
C. Costs and Benefits This Final Rule has been designated
an ‘‘economically significant rule’’ under sec. 3(f)(4) ofExecutive Order (E.O.) 12866. Therefore, the Office of Managementand Budget (OMB) has reviewed the Final Rule, and the Departmenthas conducted a regulatory impact analysis to estimate the costs,benefits, and transfers associated with the Final Rule, which isdetailed in full in section V.A of the Final Rule below. In total,the Department estimates that this Final Rule will have an averageannual net benefit of $14,806,210 and a total 10-year net benefitof $95,836,706 (with 7-percent discounting).
The Department estimates that this Final Rule will have anaverage annual cost of $35,037,540 and a total 10-year cost of$278,750,652 (with 7-percent discounting). The largest contributorto the cost is the requirement related to the development andcontinuous improvement of the workforce development system,followed by the career pathways development and the colocation ofES services.
The Department quantified the expected incremental benefitsassociated with this Final Rule relative to the baseline of thecurrent practice under the Workforce Investment Act of 1998 (WIA),where possible. Specifically, the Department quantified thebenefits expected to result from required competition for allone-stop operators. Competition for all one-stop operators willresult in cost reductions for Local WDBs due to increases inefficiency, which are estimated to amount to approximately$49,843,750 per year and $374,587,357 over the 10- year period(with 7-percent discounting). This quantified benefit resultingfrom increased competition for all one-stop operators, however,does not account for several other important benefits to societythat the Department was unable to quantify due to data limitationsor lack of existing data or evaluation findings. Based on a reviewof empirical studies (primarily studies
published in peer-reviewed academic publications and studiessponsored by the Department), however, the Department identified avariety of societal benefits: (1) Training services increase jobplacement rates; (2) participants in occupational trainingexperience higher reemployment rates; (3) training is associatedwith higher earnings; and (4) State performance accountabilitymeasures, in combination with the board membership provisionrequiring employer/business representation, can be expected toimprove the quality of the training and, ultimately, the number andcaliber of job placements. The Department identified severalchannels through which these benefits might be achieved: (1) Betterinformation about training providers will enable workers to makebetter informed choices about programs to pursue; (2) sanctions tounder- performing States will serve as an incentive for both Statesand local entities to monitor performance more effectively and tointervene early; and (3) enhanced services for dislocated workers,self-employed individuals, and workers with disabilities will leadto the benefits discussed above.
In addition, the Final Rule will result in transfer payments,i.e., a shift in costs or benefits from one group to another thatdoes not affect total resources available to society. TheDepartment estimates that this Final Rule will result in annualaverage transfer payments of $12,887,628 and a total 10-yeartransfer payment of $96,853,514 (with 7-percent discounting). Thesetransfers result from increased funding for targeting OSY.
The Department has determined that the Final Rule will have nocost impact on small entities and will not impose an unfundedmandate on Federal, State, local, or tribal governments as definedby the Unfunded Mandates Reform Act of 1995.
II. Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
ALJ Administrative Law Judge ACS American Community Survey ADAAmericans with Disabilities Act ANRC Alaska Native RegionalCorporation ANVSA Alaska Native Village Service Area AOPAgricultural Outreach Plan ARC Analyst Resource Center ARSAgricultural Recruitment System ATAP Assistive Technology ActProgram AWPA Migrant and Seasonal Agricultural
Worker Protection Act AWOL Absent Without Official Leave BCLBusiness and Community Liaison BLS Bureau of Labor Statistics CBOCommunity-based organization CCC Civilian Conservation Center CDBGCommunity Development Block
Grant
CEO Chief elected official CEP Concentrated Employment ProgramCFR Code of Federal Regulations Complaint System Employment Serviceand
Employment-Related Law Complaint System
COO Chief operating officer COSO Committee of Sponsoring
Organizations of the Treadway Commission
CPARS Contract Performance Assessment Reports
CPP Career Preparation Period CRIS Common ReportingInformation
System CTS Career Transition Services CTT Career TechnicalTraining DACA Deferred Action for Childhood
Arrivals DINAP Division of Indian and Native
American Programs DOL Department of Labor DVOP Disabled VeteransOutreach Program DWG Dislocated Worker Grant EBSS EnterpriseBusiness Support System ED Department of Education EEOC EqualEmployment Opportunity
Commission E.O. Executive Order EO Equal opportunity ESEmployment Service ESA Employment Standards
Administration ESARS Employment Security Automated
Reporting System ETA Employment and Training
Administration ETP Eligible training provider ETPL Eligibletraining provider list FAR Federal Acquisition Regulations FECAFederal Employees Compensation
Act FEIN Federal employer identification
number FEMA Federal Emergency Management
Agency FERPA Family Educational Rights and
Privacy Act FLSA Fair Labor Standards Act FOA FundingOpportunity Announcement FPO Federal Project Officer FR FederalRegister FTE Full Time Equivalent GED General EducationalDevelopment GIS Geographic information system GPRA GovernmentPerformance and
Results Act HEARTH Homeless Emergency Assistance
and Rapid Transition to Housing Act of 2009
HHS Department of Health and Human Services
HOME HOME Investment Partnerships HSD High School Diploma HSEHigh School Equivalent HUD U.S. Department of Housing and
Urban Development IC Information collection ICR InformationCollection Request IEP Individual Employment Plan IEVS Income andEligibility Verification
System INA Indian and Native American IRFA Initial RegulatoryFlexibility Analysis IRS Internal Revenue Service ISDEAA IndianSelf-Determination and
Education Assistance Act
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ISS Individual Service Strategy ISY In-school youth ITInformation technology ITA Individual Training Account JIS JobInformation Service JS Job Service JTPA Job Training PartnershipAct JVSG Jobs for Veterans State Grants LEARS Labor ExchangeAgricultural
Reporting System LEHD Longitudinal Employer-Household
Dynamics LEP Limited English proficiency LEWIS Local Employmentand Wage
Information System LLC Limited Liability Corporation LLSIL LowerLiving Standard Income Level LMI Labor Market Information Local WDBLocal Workforce Development
Board MOU Memorandum of Understanding MPO Management PerformanceOutcome MSFW Migrant and Seasonal Farmworker MSWR MedicalSeparation with
Reinstatement Rights NAA National Apprenticeship Act NAACPNational Association for the
Advancement of Colored People NAETC Native American Employmentand
Training Council NAFTA North American Free Trade
Agreement NAICS North American Industry
Classification System NDWG National Dislocated Worker Grant NEGNational Emergency Grant NFJP National Farmworker Jobs ProgramNICRA Negotiated Indirect Cost Rate
Agreement NIEM National Information Exchange
Model NLX National Labor Exchange NPRM Notice of ProposedRulemaking OA Outreach and Admissions OALJ Office of AdministrativeLaw Judges OBS On-board strength ODEP Office of Disability andEmployment
Policy OFLC Office of Foreign Labor Certification OIG Office ofthe Inspector General OJT On-the-job training OMB Office ofManagement and Budget OMS Outcome Measurement System OPDR Office ofPolicy Development and
Research OSHA Occupational Safety and Health
Administration OSY Out-of-school youth OTSA Oklahoma TribalService Area OWI Office of Workforce Investment PART ProgramAssessment and Rating Tool PBP Program Budget Plan PEDCS PostEnrollment Data Collection
System PIA Privacy Impact Assessment PII Personally identifiableinformation PIP Performance improvement plan PIRL ParticipantIndividual Record Layout PMP Projections Managing Partnership PPACAPatient Protection and Affordable
Care Act PRA Paperwork Reduction Act of 1995 PREP ProfilingReemployment Program PRH Policy and Requirements Handbook Pub. L.Public Law PY Program year
REA Reemployment and Eligibility Assessment
RESEA Reemployment Services and Eligibility
RFA Regulatory Flexibility Act RFP Requests for proposals RHYRunaway or Homeless Youth Richey Order Judge Richey Court Order RINRegulatory Information Number RMA Regional Monitor Advocate RSARehabilitation Services Administration SBA Small BusinessAdministration SBREFA Small Business Regulatory
Enforcement Fairness Act of 1996 SDA Service delivery area sec.Section of a Public Law or the United
States Code SESA State Employee Security Act S–FTP Secure FileTransfer Protocol SMA State Monitor Advocate SOC StandardOccupational Classification SNAP Supplemental NutritionAssistance
Program SSA Social Security Act SSDI Social Security DisabilityInsurance SSN Social Security Number State WDB State WorkforceDevelopment
Board STAWRS Simplified Tax and Wage
Reporting System SWA State Workforce Agency SWCAP Statewide CostAllocation Plans TAA Trade Adjustment Assistance TANF TemporaryAssistance for Needy
Families TAPR Trade Act Participant Report TAT TechnicalAssistance and Training TDD Telephone device for the deaf TEAPTrainee Employee Assistance
Program TEGL Training and Employment Guidance
Letter TEN Training and Employment Notice UC UnemploymentCompensation UCX Unemployment Compensation for Ex-
service members UI Unemployment insurance U.S.C. United StatesCode VA Department of Veterans Affairs VETS Veterans’ Employmentsand Training
Service VR Vocational rehabilitation Wagner-Peyser ActWagner-Peyser Act of
1933 WARN Worker Adjustment and Retraining
Notification WDB Workforce Development Board WHD Wage and HourDivision WIA Workforce Investment Act of 1998 WIAC WorkforceInformation Advisory
Council WIASRD Workforce Investment Act
Standardized Record Data WIB Workforce investment boards WICWorkforce Information Council WIOA Workforce Innovation and
Opportunity Act WLMI Workforce and Labor Market
Information WLMIS Workforce and Labor Market
Information System WPRS Worker Profiling and Reemployment
Services WRIS Wage Record Interchange System YB-TAP YouthBuildTrainee
Apprenticeship Program
ZT Zero Tolerance
III. Rulemaking Authority and Background
A. Workforce Innovation and Opportunity Act Principles
On July 22, 2014, President Obama signed WIOA, the firstlegislative reform of the public workforce system in more than 15years, which passed Congress by a wide bipartisan majority. WIOAsupersedes WIA and amends the Adult Education and Family LiteracyAct (AEFLA), the Wagner-Peyser Act, and the Rehabilitation Act of1973. WIOA presents an extraordinary opportunity for the publicworkforce system to accelerate its transformational efforts anddemonstrate its ability to improve job and career options for ourcitizens through an integrated, job-driven public workforce systemthat links diverse talent to our nation’s businesses. It supportsthe development of strong, vibrant regional economies wherebusinesses thrive and people want to live and work.
WIOA reaffirms the role of the customer-focused one-stopdelivery system, a cornerstone of the public workforce developmentsystem, and enhances and increases coordination among several keyemployment, education, and training programs. Most provisions inWIOA took effect on July 1, 2015, the first full program year afterenactment, although the new statutory State Plans and performanceaccountability system requirements take effect July 1, 2016. TitleIV of WIOA, however, took effect upon enactment.
WIOA is designed to help job seekers access employment,education, training, and support services to succeed in the labormarket and to match employers with the skilled workers they need tocompete in the global economy. WIOA has six main purposes: (1)Increasing access to and opportunities for the employment,education, training, and support services for individuals,particularly those with barriers to employment; (2) supporting thealignment of workforce investment, education, and economicdevelopment systems in support of a comprehensive, accessible, andhigh-quality workforce development system; (3) improving thequality and labor market relevance of workforce investment,education, and economic development efforts; (4) promotingimprovement in the structure and delivery of services; (5)increasing the prosperity of workers and employers; and (6)providing workforce development activities that increaseemployment, retention, and earnings of participants and thatincrease
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postsecondary credential attainment and as a result, improve thequality of the workforce, reduce welfare dependency, increaseeconomic self- sufficiency, meet skill requirements of employers,and enhance productivity and competitiveness of the nation.
Beyond achieving the requirements of the new law, WIOA offers anopportunity to continue to modernize the public workforce system,and achieve key hallmarks of a customer centered public workforcesystem, where the needs of business and workers drive workforcesolutions, where one-stop centers and partners provide excellentcustomer service to job seekers and businesses, where the publicworkforce system pursues continuous improvement through evaluationand data-driven policy, and where the public workforce systemsupports strong regional economies.
Regulations and guidance implementing WIOA titles I and III areissued by DOL, with the exception of the joint regulations issuedby DOL and ED on the provisions in title I relating to unified andcombined planning, performance, and the one-stop delivery system.Regulations and guidance on implementing titles II and IV of WIOAare issued by ED. The Joint WIOA Final Rule and the ED WIOA FinalRules are published elsewhere in this issue of the FederalRegister.
WIOA retains much of the structure of WIA, but with criticalchanges to advance greater coordination and alignment. Under titleI, subtitle A, each State will be required to develop a single,unified strategic plan that is applicable to six core workforcedevelopment programs. The core programs consist of the adult,dislocated worker, and youth formula programs administered by theDepartment under WIOA title I; the Adult Education and FamilyLiteracy program administered by ED under WIOA title II; the ESprogram administered by the Department and authorized by theWagner-Peyser Act, as amended by WIOA title III; and the VR programadministered by ED and authorized under title I of theRehabilitation Act of 1973, as amended by WIOA title IV (VRprogram). In addition to core programs, WIOA provides States theopportunity to include other key one-stop partner programs such asthe Supplemental Nutrition Assistance Program (SNAP), UnemploymentInsurance (UI), Temporary Assistance for Needy Families (TANF), andPerkins Career Technical Education in a Combined State Plan. Thelaw also includes a common performance accountability
system applicable to all of the core programs.
The remainder of WIOA title I authorizes the adult, dislocatedworker, and youth formula programs; the State and local WDBs(formerly workforce investment boards or WIBs); the designation ofregions and local areas; local plans; the one-stop delivery system;national programs, including Job Corps, YouthBuild, Indian andNative American (INA) programs, and Migrant and Seasonal Farmworker(MSFW) programs; technical assistance and evaluations; and generaladministrative provisions currently authorized under title I ofWIA. Title II retains and amends the Adult Education and FamilyLiteracy Program currently authorized under title II of WIA. TitleIII contains amendments to the Wagner- Peyser Act relating to theES and Workforce and Labor Market Information System (WLMIS), andrequires the Secretary to establish a WIAC. Title IV containsamendments to the Rehabilitation Act of 1973, which were alsoincluded under title IV of WIA; it also requires the Secretary ofLabor to establish an Advisory Committee on Increasing CompetitiveIntegrated Employment for Individuals with Disabilities. Finally,title V contains general provisions similar to the provisionsapplicable under title V of WIA as well as the effective dates andtransition provisions.
B. Major Changes From the Workforce Investment Act of 1998
This section contains a summary of the major changes from WIA.As indicated above, WIOA retains much of the structure of WIA.Major changes in WIOA are:
• Aligns Federal investments to support job seekers andemployers. The Act provides for States to prepare a single UnifiedState Plan that identifies a 4-year strategy for achieving thestrategic vision and goals of the State for preparing an educatedand skilled workforce and for meeting the skilled workforce needsof employers. States govern the core programs as one systemassessing strategic needs and aligning them with service strategiesto ensure the public workforce system meets employment and skillneeds of all workers and employers.
• Streamlines the governing bodies that establish State,regional and local workforce investment priorities. WIOA makesState and Local WDBs more agile and well positioned to meet localand regional employers’ workforce needs by reducing the size of theWDBs and assigning them additional responsibilities to assist inthe
achievement of the State and local strategic workforce visionand goals. The State WDBs continue to have a majority of businessrepresentation and a business chair and work for all workers andjob seekers, including low- skilled adults, youth, and individualswith disabilities, while they foster innovation, and ensurestreamlined operations and service delivery excellence.
• Creates a common performance accountability system andinformation for job seekers and the public. WIOA ensures thatFederal investments in employment, education, and training programsare evidence-based and data- driven, and accountable toparticipants and the public. It establishes a performanceaccountability system that applies across the core programs, bygenerally applying six primary indicators of performance: Entryinto unsubsidized employment at two points in time, medianearnings, attainment of postsecondary credentials, measurable skillgains, and effectiveness in serving employers.
• Fosters regional collaboration to meet the needs of regionaleconomies. WIOA promotes alignment of workforce developmentprograms with regional economic development strategies to meet theneeds of local and regional employers.
• Enhances access to high quality services through the networkof one-stop delivery system. WIOA helps job seekers and employersacquire the services they need in centers and online, clarifies theroles and responsibilities of the one-stop partner programs, addsthe TANF program as a required one-stop partner unless the Governorobjects, requires competitive selection of one-stop operators, andrequires the use by the one-stop delivery system of a commonone-stop delivery identifier or brand developed by the Secretary ofLabor (‘‘American Job Center,’’ see Joint WIOA Final Rule).
• Improves services to individuals with disabilities. WIOAstresses physical and programmatic accessibility, including the useof accessible technology to increase individuals with disabilities’access to high quality workforce services.
• Makes key investments for disconnected youth. WIOA emphasizesservices to disconnected youth to prepare them for successfulemployment by requiring that a minimum of 75 percent of youthformula program funds be used to help OSY, in contrast to the 30percent required under WIA. WIOA increases OSYs’ access to WIOAservices, including pre-apprenticeship
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opportunities that result in registered apprenticeship. It addsa requirement that at least 20 percent of formula funds at thelocal level be used on work-based training activities such assummer jobs, OJT, and apprenticeship.
• Helps employers find workers with the necessary skills. WIOAcontributes to economic growth and business expansion by ensuringthe public workforce system is job-driven— matching employers withskilled individuals. WIOA requires Local WDBs to promote the use ofindustry and sector partnerships that include key stakeholders inan industry cluster or sector that work with public entities toidentify and address the workforce needs of multiple employers.
Additionally, successful implementation of many of theapproaches called for within WIOA, such as career pathways andsector strategies, require robust relationships across programs andwith businesses, economic development, education and traininginstitutions, including community colleges and career and technicaleducation, local entities, and supportive services agencies.
C. Workforce Innovation and Opportunity Act RulemakingProcess
Since the enactment of WIOA, the Department has used a varietyof means to coordinate with other Federal agencies that have rolesand responsibilities under the Act. The Department works closelywith staff at ED and the Department of Health and Human Services(HHS) on all shared policy and implementation matters. Key areas ofcollaboration include the Unified State Plan, performancereporting, one-stop service delivery, and services to disconnectedyouth and to individuals with disabilities. WIOA created anopportunity to enhance coordination and collaboration across otherFederal programs through the Combined State Plan and the Departmentmeets with the other Federal agencies regarding those plans.
Before publishing the WIOA NPRM (80 FR 20690, Apr. 16, 2015),the Department solicited broad input through a variety ofmechanisms including:
• Issued Training and Employment Notice (TEN) No. 05–14 tonotify the public workforce system that WIOA was enacted,accompanied by a statutory implementation timeline, a fact sheetthat identified key reforms to the public workforce system, and alist of frequently asked questions.
• Issued TEN No. 06–14 to announce a series of webinars toengage WIOA
stakeholders in implementation of WIOA.
• Issued TEN No. 12–14 to provide guidance to States and otherrecipients of funds under title I of WIA on the use and reportingof PY 2014 funds for planning and implementation activitiesassociated with the transition to WIOA.
• Established a WIOA Resource Page (www.doleta.gov/WIOA) toprovide updated information related to WIOA implementation to thepublic workforce system and stakeholders;
• Established a dedicated email address for the public workforcesystem and stakeholders to ask questions and offer ideas related toWIOA ([emailprotected]);
• Conducted, in conjunction with ED and HHS, outreach calls,webinars, and stakeholder and in-person town halls in each ETAregion. The Department and its Federal partners hosted 10 townhalls across the country, reaching over 2,000 system leaders andstaff representing core programs and one- stop partners, employers,and performance staff. This included a town hall with INA leadersand membership organizations serving Indians and Native Americans,Hawaiians, and Alaskan Natives as well as a formal consultationwith members of the Native American Employment and TrainingAdvisory Council to the Secretary of Labor.
• Conducted readiness assessments to implement WIOA in allStates and 70 local workforce areas to inform technicalassistance.
Since the DOL WIOA NPRM was published, the Department has issuedadditional WIOA guidance using various mechanisms including thefollowing:
• Issued numerous pieces of official guidance to the publicworkforce system on policies related to WIOA implementation (somejointly with ED), including ‘‘Vision for the One-Stop DeliverySystem under WIOA’’ (Aug. 13, 2015) and TEGL No. 14–15, ‘‘WorkforceInnovation and Opportunity Act (WIOA) Requirements for Unified andCombined State Plans.’’ See http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
• Provided on-going technical assistance to the public workforcesystem in the form of Frequently Asked Questions. Seehttps://www.doleta.gov/wioa/FAQs.cfm.
• Developed a network of peer learners titled the Innovation andOpportunity Network (ION) that is designed to help all levels ofworkforce development professionals, stakeholders, and partnersconnect with others throughout the public workforce
system who are working to implement WIOA. ION’s in-personcollaboration is provided through the Department’s regional FederalProject Officers, and regional meetings with State and localstakeholders. Regarding online collaboration, the ION Web siteprovides webinars, quick start action planners, podcasts fromvoices in the field describing their experiences in implementation,and other online resources.
• Conducted, in conjunction with ED and HHS, webinars forstakeholders on a variety of topics, including: Credentials thatCount for Youth (Apr. 29, 2015); ION (May 13 and June 3, 2015);Firing Up Youth Standing Committees (May 27, 2015); Making theShift—Successfully Leveraging In- School Youth (ISY) and OSYResources and Services (June 24, 2015); WIOA Act Now Series:Partnerships in Action (July 1, 2015); Webinar Series Act Now:Governance, Leadership, and Building a Strategic Board (July 15,2015); Collaborative Partnerships Serving Youth wish Disabilities(July 29, 2015); Customer-Centered Design Implementation WIOA (July29, 2015); WIOA Eligible Training Provider Provisions: The FirstYear (Aug. 5, 2015); WIOA Performance Accountability ReportingRequirements—Overview of Layout and Templates (Aug. 12 and 13,2015); Career Pathways for Youth (Aug. 26, 2015); ProposedInformation Collection: Required Elements for Submission of theUnified or Combined State Plan and Plan Modifications Under WIOA(Aug. 27, 2015); Implementing WIOA in Rural Areas (Sept. 30, 2015);DEI Lessons Learned for WIA/WIOA: How Integrated Resource TeamsAchieved WIA Outcomes for Populations that Experience MultipleChallenges to Employment and Implications for WIOA (Oct. 22, 2015);ApprenticeshipUSA Online Toolkit: A New Tool to AdvanceApprenticeship Under WIOA (Oct. 26, 2015); Partnership Between WIOAand TANF to Serve Youth (Oct. 28, 2015).
Workforce Innovation and Opportunity Act Information CollectionRequests
There are two new Information Collection Requests (ICRs) and sixexisting OMB-approved information collections that are beingrevised as part of this DOL WIOA Final Rule. Section V.B of theNPRM (Paperwork Reduction Act) included descriptions of the newICRs and how the proposal would change each of the existinginformation collections. Section VI.D of this Final Rule (PaperworkReduction Act) provides summary information about the publiccomments received on these
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ICRs and details the final burden estimates for the revisedinformation collections.
Soon after publication of the DOL WIOA NPRM and the Joint WIOANPRM, DOL and ED published a notice in the Federal Registerannouncing the joint ICR for the WIOA Performance Management,Information, and Reporting System (80 FR 43474, July 22, 2015) andrequested comments on this ICR during a 60-day public commentperiod (hereinafter ‘‘WIOA Joint Performance ICR’’) (seehttps://www.regulations.gov/#!docketDetail;D=ETA-2015-0007). OnSeptember 1, 2015, DOL solicited comments on its own WIOAperformance accountability ICR to require the following programs toreport on a standardized set of data elements through the WIOAWorkforce Performance Accountability, Information, and ReportingSystem: WIOA adult, dislocated worker, and youth, ES, NationalFarmworker Jobs, Trade Adjustment Assistance, YouthBuild, INA, andthe Jobs for Veterans’ State Grants (80 FR 52798) (hereinafter‘‘DOL Performance ICR’’) (seehttps://www.regulations.gov/#!docketDetail;D=ETA-2015-0008). OnApril 16, 2015, ED solicited comments on its ICR related to the VRprogram Case Service Report (RSA–911) to require VR agencies toreport data required under sec. 101(a)(10) of the RehabilitationAct of 1973, as amended by WIOA, as well as performanceaccountability data under title I of WIOA (hereinafter‘‘RSA–911’’). DOL and ED received 112 public comment submissions inresponse to the WIOA Joint Performance ICR, DOL received publiccomments on the DOL Performance ICR, and ED received publiccomments on the RSA–911, respectively. The Departments addressthose comments in the final WIOA Joint Performance and DOL WIOAICRs.
On August 6, 2015, the U.S. Departments of Labor, Education,Health and Human Services, Agriculture, and Housing and UrbanDevelopment proposed a new information collection regardingrequired elements for submission of the Unified or Combined StatePlan and Plan modifications under WIOA (hereinafter ‘‘WIOA StatePlan ICR’’) (80 FR 47003) (seehttps://www.regulations.gov/#!docketDetail;D=ETA-2015-0006). TheWIOA State Plan ICR received a total of 16 public comments. Thesepublic comment submissions informed the development of the finalWIOA State Plan ICR, which OMB approved on February 19, 2016. Seehttp://
www.reginfo.gov/public/do/PRASearch (ICR Reference No.201601–1205–001).
D. Legal Basis On July 22, 2014, the President signed
WIOA (Pub. L. 113–128) into law. WIOA repeals WIA (29 U.S.C.2801 et seq.). As a result, the WIA regulations no longer reflectcurrent law. Section 503(f) of WIOA required that the Departmentissue an NPRM and then a Final Rule that implements the changesWIOA makes to the public workforce system in regulations.Therefore, the Department has developed and issued this Final Rulethat implements WIOA. The Department has issued regulationsregarding the WIOA sec. 188 nondiscrimination and equal opportunityprovisions through separate rulemaking. See 80 FR 43872 (July 23,2015) (establishing WIOA sec. 188 implementing regulations at 29CFR part 38); 81 FR 4494 (Jan. 26, 2016) (proposing updates to 29CFR part 38 consistent with current equal opportunity law).
IV. Public Comments Received on the Notice of ProposedRulemaking
The Department’s NPRM to implement titles I and III of WIOA waspublished on April 16, 2015 (80 FR 20690). During the 60-day publiccomment period, the Department received a total of 767 publiccomments on the WIOA NPRM. In addition to these submissions, theDepartment also considered portions of 84 public commentsubmissions from the Joint WIOA NPRM docket that the Departmentdetermined related to the DOL WIOA NPRM. The Joint WIOA NPRM, whichproposed regulations to implement jointly administered activitiesauthorized under WIOA title I, was also published on April 16, 2015(80 FR 20574).
General Comments Comments: Several commenters
expressed general support for the proposed regulation,commenting that the regulations would increase employment, make theUnited States more competitive, lead to higher wages, and produceother benefits. Some of these commenters expressed confidence thatthat the Department can deliver on this proposal, and that theassociated expense is necessary. Several comments made generalpositive remarks about WIOA, and specifically cited an emphasis onone or more specific aspects of the law, such as adult education,college and career readiness, strengthening connections amongprograms and recognizing the role of distance learning andtechnology in
reaching broader audiences. The commenters suggested that WIOAprovides adequate flexibility to accommodate differences amongStates (e.g., size, population density and population diversity.Some commenters discussed workforce development- related servicescurrently provided or cited statistics that they assertedillustrate the current or historical use of the public workforcesystem in terms of services and participant demographic
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