U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210
April 1, 1997
TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 06-96
ALL STATE JTPA LIAISONS
ROBERT S. KENYON
Guidelines for Implementing Job Training System Improvements through Waivers of the Job Training Partnership Act (JTPA) and the Wagner-Peyser Act
Purpose. To transmit guidance for the development and submission of a request for waiver of JTPA and Wagner-Peyser Act general statutory/regulatory provisions.
References. The Department of Labor Appropriations Act of 1997 (Public Law 104-208 sections 101(e) and 105); Training and Employment Information Notice No. 11-96, Statutory and Regulatory Waiver Authority of the JTPA and the Wagner-Peyser Act.
Background. The Department of Labor Appropriations Act of 1997, (Public Law 104-208) contains three provisions relating to waivers:
general Statutory/Regulatory Waiver Authority for JTPA & Wagner-Peyser;
the Work-Flex Partnership Demonstration Program; and
continuation of the existing waiver authority for the State of Oregon.
These guidelines do not address the continuation of the Oregon waiver provision or the Work-Flex Partnership Demonstration Program. A separate TEGL will be issued on Work-Flex.
The Statutory/Regulatory Waiver provision gives the Secretary authority to grant both statutory and regulatory waivers of JTPA (Titles I-III) and Wagner-Peyser Act (Sections 8-10) and contains "exclusions," i.e., provisions that may not be waived. The general waiver authority is for a period of one program year beginning July 1, 1997 and provides:
increased flexibility to States and local areas in implementing reforms to the workforce development system in exchange for State and local accountability for results including improved performance.
an important opportunity for States and localities to begin or continue to organize services into a workforce development system through One-Stop Career Centers and School-to-Work systems which enhance the training and employment opportunities available to adults and youth.
Principles for Further Reforms of the Job Training System. The Department of Labor's (DOL) guiding principles for providing flexibility through statutory/regulatory waivers to the State job training systems include:
Individual Opportunity and Customer Choice. Empowering participants who need employment and training services with the resources and information needed to make good choices.
Leaner Government. Replacing separate programs with streamlined systems for youth and adults, organized within the School-to-Work and One-Stop systems.
Greater Accountability. Ensuring a clear focus on results, not process, through mutually agreed upon improved performance outcomes.
State and Local Flexibility. Providing States, local communities and training systems with the freedom to tailor programs to meet real, locally determined needs.
Strong Private Sector Roles. Ensuring that business, labor and community organizations are full partners in system design and quality assurance.
The employment and training community has been provided with new authority to build a Workforce Development System. The Department believes that effective use of the authority will demonstrate Federal, State and local commitment to meeting the needs of our joint customers.
Statutory and/or Regulatory Requirements Covered by the Waiver Authority. The statutory and regulatory waiver authority applies to Titles I-III of the Job Training Partnership Act and to sections 8-10 of the Wagner-Peyser Act.
Exclusions. Under the waiver provisions in the 1997 Appropriations Act, the following JTPA requirements may not be waived.
wage and labor standards;
worker rights, participation and protection;
grievance procedures and judicial review;
allocation of funds to local areas;
review and approval of plans;
establishment and functions of service delivery areas and private industry councils; and
the basic purposes of the act.
Requirements under the Wagner-Peyser Act relating to the following may not be waived:
services to unemployment insurance claimants and veterans;
universal access to basic labor exchange services without cost to job seekers.
The Department is very interested in working with States to use the statutory authority to make improvements in the workforce delivery system. To this end, the Department wants the States to know that it will actively consider specific requests for waivers to remove both programmatic and administrative barriers: that will result in improved services and outcomes; that will assist the State and its local service delivery structure in implementing workforce delivery system improvements; or that will remove requirements, either program or administrative, that do not add value to the organization or to the delivery of quality services. DOL Employment and Training Regional Administrators are available to discuss the provisions of the statute that may fall within the above cited exclusions.
The Department does not intend to use this process to waive other legislation which extends beyond the authority provided in Public Law 104-208, non-JTPA regulations, or Office of Management and Budget Circulars which apply to the State Employment Security Agencies. Therefore, should a request be received for waivers which extend beyond the existing authority, it will not be granted. In a similar manner, the Department cannot entertain requests for retroactive changes in program requirements. Retroactive approval for changes in financial reporting requirements may be granted.
Policy. In developing waiver requests, States should take into consideration that the Department will not entertain the granting of waivers which result in the commingling of funds or which undermine accountability, as discussed below. In addition to the exclusions set forth in section 5 of this TEGL, the following significant policy considerations will affect the Department's decision on granting waivers.
Prohibition on Commingling of Funds. One of the purposes that could be served with the waiver authority is to make programs seamless from the participant's perspective. However, it also should be noted that the waiver provisions do not authorize the commingling of funds from separate appropriations. General appropriations law (31 U.S.C. 1301 (a)) requires that appropriations be applied only to the objects for which the appropriations were made unless the law otherwise provides. In this case, the waiver provisions do not provide authority to merge (as opposed to transfer) program funds. In fact, since eligibility is not waivable, for example, funds appropriated to provide assistance to dislocated workers under Title III would have to be expended for that purpose, even though the particular requirements relating to the form of such assistance could be waived. Therefore, while the Department is committed to assisting States and SDAs in minimizing accounting and reporting burdens, the waiver authority does not permit the Department to relieve these entities from the responsibility of assuring that each appropriation is only expended for its intended purpose. The funds for Titles II-A and III would still have to be accounted for separately.
Disadvantaged Youth. The Department wishes to remind the States of the importance of serving economically disadvantaged youth during the summer months. Given the transfer provisions, commingling of funds does not present an issue between the Title II-B and Title II-C programs. However, the Department emphasizes the importance of maintaining a summer jobs component to serve economically disadvantaged youth during the summer months.
Accountability. To ensure programmatic and fiscal integrity, it is extremely important that there be both adequate oversight and complete, consistent reporting. Reporting must be sufficient to provide: a record of individual need; the programmatic and financial outcomes achieved reflecting, at a minimum, a core set of measures; and the resultant indication of success and improvement traceable from an established baseline, using public use quality data. Monitoring is key to ensuring that the goals and objectives of both the program and of any waivers granted will be achieved. While the Department may entertain waiver requests that pertain to reporting, it will not approve any such request that undermines the ability to account to the Congress for fundamental programmatic and financial outcomes or the ability to make basic comparisons in the performance among States. Also, the Department expects that State waiver requests will include plans to monitor performance under the waiver(s) in order to demonstrate to the Secretary that the anticipated goals and objectives described in the State plan have been achieved.
Waiver Elements. Submission of waiver requests are voluntary. The Appropriations Act requires the State to provide a minimum amount of information regarding the waiver requested (see Item 9.b. below). The "Waiver Plan" is the State's request to waive certain statutory or regulatory requirements. Upon approval of the State's request for waiver, the "Waiver Plan" will be treated as a formal modification to GCSSP required by section 121 of JTPA, the State's Job Training Plan (JTP) under Title III, or the Wagner-Peyser Plans, whichever is applicable. All provisions approved for waiver will be incorporated into the State's Grant Agreement as appropriate. This agreement will be signed by both the Governor and the DOL and will include a provision that indicates that the plan (GCSSP, State JTP for Title III, or Wagner-Peyser) is modified as specified in the attached waiver plan.
Duration and Applicability of Waiver. The waivers are for one year, starting on July 1, 1997, through June 30, 1998 and will apply to funds available for expenditure in program year 1997. This includes formula available funds from PY 1995, 1996 and 1997. While the ETA's statutory/regulatory waiver authority is limited to one year, it is anticipated that, if the authority is extended by the Congress, and the States have used their authority prudently and demonstrated that they are fulfilling the terms of the State plan, then the waivers would be continued, as has been the case in other similar instances.
Waiver Plan Submission.
Development of Waiver Request. The Employment and Training Administration (ETA) Regional Offices will be responsible for providing guidance and assistance to the States as they are developing their waiver requests, answering questions about the ETA waiver policy and advising the Assistant Secretary regarding approval of the waiver request(s) It is expected that the Regional Offices will have continuing dialogue with their States during the developmental stages of waiver requests. The Regional Offices are available to review and provide comments on draft proposals and provide assistance in preparation of the waiver plan submission.
The Department intends that the process for development of waivers will be in partnership with the State. To this end, States are invited to engage Regional Offices in the development of their waivers. The ETA Regional Administrators will make themselves and their appropriate staff available to consult with States and to provide technical assistance as necessary. Upon completion of the waiver request, the Governor will submit two copies of their waiver request to the appropriate Regional Administrator. As an alternative, we encourage Governors to submit the proposal in electronic form in order to reduce paperwork.
Minimum Requirements. The statute requires the Secretary to make a determination of how a State's request to waive certain statutory and regulatory requirements would remove impediments and improve the State's or local service delivery areas's ability to achieve its goals. It also requires the State to include a summary description of the programmatic or administrative goals to be achieved in order to overcome the barrier.
The Governor must provide at least the minimum information indicated below in order for ETA to make an informed decision on whether to approve the requested waiver. Where documentation (e.g., statistical information, reports, focus groups, customer surveys) is available, it should be provided to corroborate the statements made in the waiver request. In the absence of such data, the State is expected to provide a substantive discussion and examples of barriers and proposed solutions which support the proposed removal of the requirements.
(1) State and Local Goals. Provide an introductory statement on the workforce development system that the State is attempting to build and how the waivers relate to that broader vision, including the accountability framework. The goals provided should take into consideration the principles articulated above.
(2) Summary of Waiver Request(s). Describe the specific waiver(s) requested (including the legislative and/or regulatory citations), the barrier which the request addresses, and the outcome that will be achieved by the granting of the waiver. In addition, the request should identify similar State requirements and how they would be waived.
(3) Impact of Waivers/Outcomes and Performance Targets. Describe the anticipated outcomes and/or performance improvements, including qualitative and/or quantitative outcomes to be achieved. Specify how success and/or progress on outcomes will be measured or determined, including how the baseline will be established and what data sources will be used.
(4) State and Local Service Delivery Areas Actions Taken to Remove Barriers. Describe specific actions taken or to be taken by the State or local service delivery areas to remove state and local barriers (e.g., policies, guidelines, rules and regulations).
(5) Comments Process. Describe the consultation process within the State, including the process for review and comment on the State's waiver request, per section (c) below.
(6) Monitoring. Describe the process the State will use to monitor the implementation and impact of the waiver. Specify how the State will evaluate progress and continuous program improvement fostered by the approved waiver and the corresponding programmatic and operating systems, i.e., reports and analysis. Specify how outcomes/progress will be reported to DOL and how the integrity of public funds will be ensured.
Public Consultation and Comment Process. The Department expects the State to involve the local elected officials, PICs, community based organizations and other stakeholders in the process when developing the plan which accompanies the waiver application. Consistent with the general waiver request, the State must provide interested parties an opportunity to review and comment on the proposed waiver. At a minimum, the law requires that the following groups be afforded the opportunity to review and comment on the proposed waiver request: (1) the State Job Training Coordinating Council; (2) each house of the State legislature; (3) local elected officials and Private Industry Councils; (4) appropriate local educational and other public and private non-profit agencies in the service delivery areas; and (5) labor organizations in the area which represent employees having the skills in which training is proposed. If a State is a One-Stop implementation grantee, it should involve all One-Stop participating agencies in the waiver development process. In the case of a waiver request concerning Title III, the State is expected to consult with appropriate labor organizations.
Also, the proposed plan must be made reasonably available to the general public through such means as public hearings and local news media. All comments received on the waiver request should be forwarded with the waiver request to the Department of Labor.
Timeframe for Response. The Department will make every effort to act upon proposals by July 1, 1997, if they are received by April 30. In general, the Department intends to respond to most waiver requests within 60 days from the date of receipt. Each waiver request will be evaluated on its own merits. Where necessary, the Department may seek further discussions or negotiations on a waiver request, either with regard to changing certain aspects of the request or with regard to the quality of the proposed improvements or outcomes. In order to provide a prompt response, the Department may respond with a partial approval in those instances where a request contains multiple parts and further information or clarification is required on one or more parts of the request.
In the spirit of a continuing partnership to improve the workforce development system, the Department recognizes that the need for additional waivers may become apparent to the State during the implementation of its plan. Therefore, States may submit a request for an additional waiver as the need arises, following the process described in this TEGL.
Impact of New Statutory/Regulatory Waiver Authority on Current Regulatory Waiver Authority Promulgated at 20 CFR 627.201:.
As indicated earlier in this TEGL, DOL's 1997 Appropriations Act provided authority for the Secretary to grant waivers, within limits, of statutory and regulatory requirements for titles I-III of the JTPA and for Sections 8-10 of the Wagner-Peyser Act. Until the enactment of the JTPA Amendments and the promulgation of the September 2, 1994 Final Rule implementing those amendments, the Secretary did not have the authority to waive either the Act or regulations under either JTPA or Wagner-Peyser. The Final Rule included a provision for the Secretary of Labor to waive certain administratively imposed requirements as set forth at 20 CFR 627.201. This limited waiver authority did not extend to statutory requirements or statutorily-based regulatory requirements, which could not be waived. This authority also did not cover Wagner-Peyser provisions.
The new JTPA statutory and regulatory authority will have no impact on waivers which have been granted under the regulatory authority codified at 20 CFR 627.201. Waivers previously granted under the old regulatory waiver authority will continue to remain in effect until such time as the Governor decides that the waiver is no longer necessary, or the duration of the granted waiver expires, whichever comes first.
It is conceivable that a State may still wish to request a waiver under the authority outlined at 20 CFR 627.201. States should clearly indicate under which authority (i.e., JTPA regulations or DOL Appropriations Act) they are requesting a waiver. Failure to do so can slow down the review and approval/disapproval process.
Action Required. States are expected to fully involve local areas in the development of the waivers. They are also requested to distribute the information on both the Federal process described in this TEGL and the State-established waiver process to their State staff (both JTPA and ES), the SESA local offices, the JTPA SDAs/SSAs, and other interested stakeholders throughout the State.
OMB Reporting Burden. Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Public reporting of information is estimated to average 80 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the Office of IRM Policy, U.S. Department of Labor, N-1301, 200 Constitution Avenue, N.W., Washington, D.C. 20210 (Paperwork Reduction Project 1205-0376).
Inquiries and Comments. Requests for technical assistance or other inquiries should be directed to the Regional Office (see Attachment for list of Regional liaisons).
Attachment. List of Regional Liaisons on Waiver Requests