Proposed Rule2022-19003
Workforce Innovation and Opportunity Act Title I Non-Core Programs Effectiveness in Serving Employers Performance Indicator
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Published
September 14, 2022
Issuing agencies
Labor DepartmentEmployment and Training Administration
Abstract
The Workforce Innovation and Opportunity Act (WIOA) established six primary indicators of performance for certain WIOA- authorized programs. Currently, the regulations contain definitions for five of the six performance indicators. In the final rule implementing WIOA, the U.S. Departments of Labor and Education (the Departments) indicated that they would initially implement the sixth indicator of performance--effectiveness in serving employers--in the form of a pilot program to test the feasibility and rigor of three proposed approaches. With the pilot completed, the Departments are engaging in a rulemaking under RIN 1205-AC01 to incorporate a standard definition of the performance indicator for effectiveness in serving employers into the implementing regulations for the six WIOA core programs. In this related rulemaking, the Department of Labor (DOL or the Department) is proposing to incorporate the same definition of the effectiveness in serving employers performance indicator into regulations for title I non-core programs: the Indian and Native American (INA) programs, the Job Corps program, the YouthBuild programs, and the National Farmworker Jobs Program (NFJP).
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<title>Federal Register, Volume 87 Issue 177 (Wednesday, September 14, 2022)</title>
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[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Proposed Rules]
[Pages 56340-56354]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19003]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 684, 686, and 688
[Docket No. ETA-2022-0005]
RIN 1205-AC08
Workforce Innovation and Opportunity Act Title I Non-Core
Programs Effectiveness in Serving Employers Performance Indicator
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Proposed rule.
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SUMMARY: The Workforce Innovation and Opportunity Act (WIOA)
established six primary indicators of performance for certain WIOA-
authorized programs. Currently, the regulations contain definitions for
five of the six performance indicators. In the final rule implementing
WIOA, the U.S. Departments of Labor and Education (the Departments)
indicated that they would initially implement the sixth indicator of
performance--effectiveness in serving employers--in the form of a pilot
program to test the feasibility and rigor of three proposed approaches.
With the pilot completed, the Departments are engaging in a rulemaking
under RIN 1205-AC01 to incorporate a standard definition of the
performance indicator for effectiveness in serving employers into the
implementing regulations for the six WIOA core programs. In this
related rulemaking, the Department of Labor (DOL or the Department) is
proposing to incorporate the same definition of the effectiveness in
serving employers performance indicator into regulations for title I
non-core programs: the Indian and Native American (INA) programs, the
Job Corps program, the YouthBuild programs, and the National Farmworker
Jobs Program (NFJP).
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before November 14, 2022.
ADDRESSES: You may submit comments, identified by Docket No. ETA-2022-
0005 and Regulatory Identification Number (RIN) 1205-AC08, through the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Search for the
above-referenced RIN, open the proposed rule, and follow the on-screen
instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking or ``1205-AC08.'' Because of the
narrow scope of this proposed regulation, the Department encourages
commenters to submit, and the Department will consider only comments,
regarding the definition of the effectiveness in serving employers
performance indicator for WIOA title I non-core programs as set forth
herein. The proposed amendments are limited to the sections of the
regulations detailed in this rulemaking.
Please be advised that the Department will post all comments
received that relate to this notice of proposed rulemaking (NPRM)
without changes to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided. The <a href="https://www.regulations.gov">https://www.regulations.gov</a> website is the
Federal e-Rulemaking Portal and all
[[Page 56341]]
comments posted there are available and accessible to the public.
Therefore, the Department recommends that commenters remove personal
information (either about themselves or others) such as Social Security
numbers, personal addresses, telephone numbers, and email addresses
included in their comments, as such information may become easily
available to the public via the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. It
is the responsibility of the commenter to safeguard personal
information.
Because of the direct relationship between this proposed rule and
the Workforce Innovation and Opportunity Act Effectiveness in Serving
Employers Performance Indicator; Joint proposed rule (RIN 1205-AC01)
and to ensure that comments are reviewed and considered, the Department
encourages commenters to submit only comments regarding the proposed
amendments to the title I non-core program regulations, which are
limited to the sections of the regulations detailed in this proposed
rule, to the docket that corresponds to this rulemaking action.
Comments on other provisions and aspects of the WIOA regulations will
be considered outside the scope of this rulemaking and will not be
considered by the Department.
Docket: For access to the docket to read background documents or
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search using RIN
1205-AC08 or Docket No. ETA-2022-0005).
Comments Under the Paperwork Reduction Act of 1995 (PRA): In
addition to filing comments on any aspect of this proposed rule with
the Department, interested parties may submit comments that concern the
information collection (IC) aspects of this NPRM to the Office of
Information and Regulatory Affairs (OIRA) at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. Find the relevant information collection by
selecting ``Currently under Review--Open for Public Comments'' or by
using the search function.
FOR FURTHER INFORMATION CONTACT: Heidi Casta, Acting Administrator,
Office of Policy Development and Research, U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW,
Room N-5641, Washington, DC 20210, Telephone: 202-693-3700 (voice)
(this is not a toll-free number), 1-877-872-5627, or 1-800-326-2577
(telecommunications device for the deaf).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Background and Rulemaking Authority
II. Effectiveness in Serving Employers Performance Indicator
Approaches for WIOA Core Programs, as Relevant to WIOA Non-Core
Programs
III. Effectiveness in Serving Employers Performance Indicator for
WIOA Title I Non-Core Programs
A. Part 684--Indian and Native American Programs
B. Part 685--National Farmworker Jobs Program
C. Part 686--Job Corps Program
D. Part 688--YouthBuild Programs
IV. Regulatory Analysis and Review
A. Executive Orders 12866 (Regulatory Planning and Review) and
13563 (Improving Regulation and Regulatory Review)
B. Regulatory Flexibility Act, Small Business Regulatory
Enforcement Fairness Act, and Executive Order 13272 (Proper
Consideration of Small Entities in Agency Rulemaking)
C. Paperwork Reduction Act
D. Executive Order 13132 (Federalism)
E. Unfunded Mandates Reform Act
F. Executive Order 13175 (Indian Tribal Governments)
Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
CFR Code of Federal Regulations
Departments U.S. Departments of Labor and Education
DOL or Department U.S. Department of Labor
E.O. Executive Order
ES Employment Service
ETA Employment and Training Administration
FR Federal Register
GPMS Grantee Performance Management System
ICR Information Collection Request
INA Indian and Native American
MSFW migrant and seasonal farmworker
NAETC Native American Employment and Training Council
NFJP National Farmworker Jobs Program
NPRM or proposed rule notice of proposed rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
PY Program Year
RFA Regulatory Flexibility Act
RIA Regulatory impact analysis
RIN Regulation Identifier Number
Stat. United States Statutes at Large
UI unemployment insurance
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
TEGL Training and Employment Guidance Letter
VR Vocational Rehabilitation
WIOA Workforce Innovation and Opportunity Act
WIPS Workforce Integrated Performance System
I. Background and Rulemaking Authority
President Barack Obama signed WIOA into law on July 22, 2014. WIOA,
the first legislative reform of the public workforce system in more
than 15 years, superseded the Workforce Investment Act of 1998 and
amended the Wagner-Peyser Act and the Rehabilitation Act of 1973. WIOA
reaffirmed the role of the customer-focused one-stop delivery system, a
cornerstone of the public workforce system, and enhanced and increased
coordination among several key employment, education, and training
programs. The law also includes a common performance accountability
system, consisting of six statutory primary indicators of performance,
applicable to all WIOA core programs: adult, dislocated worker, and
youth programs under title I of WIOA; the Adult Education and Family
Literacy Act (AEFLA) program under title II; the Employment Service
(ES) program authorized under the Wagner-Peyser Act as amended by WIOA
title III; and the Vocational Rehabilitation (VR) program authorized
under title I of the Rehabilitation Act as amended by WIOA title IV.
WIOA also required that the six statutory primary indicators of
performance apply to four WIOA title I, DOL-administered non-core
programs: INA programs (WIOA sec. 166(e)(5)), the NFJP (WIOA sec.
167(c)(2)(C)), Job Corps (WIOA sec. 159(c)(1)), and YouthBuild (WIOA
sec. 171(f)) (hereinafter ``title I non-core programs'').
Other DOL-administered WIOA title I non-core programs and projects
(e.g., National Dislocated Worker Grants under WIOA sec. 170, the
Reentry Employment Opportunities grants under WIOA sec. 169 and annual
appropriations acts) also report on the WIOA sec. 116 primary
indicators of performance, as directed by Training and Employment
Guidance Letter (TEGL) No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor (DOL),''
and the DOL-only performance Information Collection Request (ICR),
Office of Management and Budget (OMB) Control Number 1205-0521, ``DOL-
Only Performance Accountability, Information, and Reporting System.''
However, unlike the other title I non-core programs that are the
subject of this rulemaking, WIOA did not mandate the use of the sec.
116 performance indicators for these other title I programs. Those
programs are not the subject of, or addressed in, this
[[Page 56342]]
rulemaking, but for some of these programs, the Department has chosen
to apply the sec. 116 primary indicators to assess performance.\1\ For
those programs, the proposed definition of effectiveness in serving
employers performance indicator also would be applied.
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\1\ Pages 2 through 5 of TEGL No. 14-18, ``Aligning Performance
Accountability Reporting, Definitions, and Policies Across Workforce
Employment and Training Programs Administered by the U.S. Department
of Labor (DOL),'' provide the current list of DOL-administered non-
core programs for which DOL has chosen to apply these performance
reporting requirements, which include programs authorized by WIOA,
as well as programs authorized by other Federal legislation. TEGL
No. 14-18, Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a>. The list of programs may change to reflect
policy changes and updates to Federal legislation authorizing DOL's
non-core programs.
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In WIOA, Congress directed the Department to issue regulations
implementing statutory requirements to ensure that the public workforce
system operates as a comprehensive, integrated, and streamlined system
in order to provide pathways to prosperity and continuously improve the
quality and performance of its services to job seekers and employers.
On August 19, 2016, the Department issued the Workforce Innovation and
Opportunity Act; Final Rule (DOL WIOA Final Rule) to implement WIOA for
the title I non-core programs (81 FR 56071). That same day the
Departments jointly issued the Workforce Innovation and Opportunity
Act; Joint Rule for Unified and Combined State Plans, Performance
Accountability, and the One-Stop System Joint Provisions; Final Rule
(Joint WIOA Final Rule) to implement WIOA for the six core programs (81
FR 55791).
Under WIOA, there are six primary indicators of performance that
apply to the core programs and the title I non-core programs authorized
under WIOA. The statute defines five of the six performance indicators.
However, the statute did not specify how effectiveness in serving
employers should be measured. Instead, WIOA directed the Departments to
develop a definition for the effectiveness in serving employers
performance indicator (WIOA sec. 116(b)(2)(A)(iv)).\2\ At that time,
the Departments concluded that there was not enough evidence to adopt a
standard definition. Therefore, in the Joint WIOA Final Rule, the
Departments determined that it was prudent to pilot three definitions
for the sixth performance indicator to test the feasibility and rigor
of three approaches to measure a State's effectiveness in serving
employers through its WIOA-authorized programs. As discussed more fully
below, during the pilot period the Department, through guidance \3\ and
the ``DOL-Only Performance Accountability, Information, and Reporting
System'' ICR, approved under OMB Control Number 1205-0521, required the
title I non-core programs to report on one of the three definitions
being piloted.
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\2\ Section 116(b)(2)(A) of WIOA states the primary indicators
of performance: (1) the percentage of participants who are employed
during the second and (2) fourth quarters after exit from the
program, (3) the median earnings of participants who are employed
during the second quarter after exit, (4) the percentage of
participants who obtain a recognized postsecondary credential during
the program or within 1 year of exit, (5) the percentage of
participants who achieve measurable skill gains during a program
year, and (6) ``indicators of effectiveness in serving employers.''
This last indicator is the subject of this NPRM. Definitions of the
others were included in the WIOA regulations promulgated in August
2016 (81 FR 55791; see 20 CFR 677.155, 34 CFR 361.155, 34 CFR
463.155).
\3\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a>.
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As detailed later in this NPRM, that pilot, as well as a study of
the results from the pilot, are now complete. The Departments are
engaging in two rulemakings to incorporate into the WIOA regulations a
proposed standard definition of the performance indicator for
effectiveness in serving employers. This proposed definition is meant
to apply to both WIOA core programs--which are addressed in the
concurrently published Workforce Innovation and Opportunity Act
Effectiveness in Serving Employers Performance Indicator; Joint
proposed rule (RIN 1205-AC01) (herein after referred to as Joint
Effectiveness in Serving Employers NPRM)--as well as the four title I
non-core programs, which are addressed in this NPRM.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C)
(NFJP), and 171(f) (YouthBuild) specify that performance for these
title I non-core programs must be assessed using the primary indicators
of performance for WIOA core programs. In this proposed rule, the
Department is proposing to codify the approach for evaluating a
program's effectiveness in serving employers. When finalized, this
rulemaking would result in the codification of all the primary
performance indicators for these programs--including the effectiveness
in serving employers indicator--just as with the WIOA core programs.
II. Effectiveness in Serving Employers Performance Indicator Approaches
for WIOA Core Programs, as Relevant to WIOA Non-Core Programs
Section 677.155 sets forth the primary indicators by which the
performance of core programs is evaluated, as required by WIOA sec.
116(b)(2)(A)(i). These primary indicators of performance apply to the
core programs described in WIOA sec. 116(b)(3)(A)(ii), as well as to
the title I non-core programs. These primary indicators of performance
create a common language shared across the programs' performance
metrics, support system alignment, enhance programmatic decision
making, and help participants make informed decisions related to
training. Sections 116(b)(2)(A)(i)(VI) and (iv) of WIOA require the
Secretaries of Labor and Education to jointly develop and establish the
sixth performance indicator--effectiveness in serving employers--after
consultation with representatives of State and local governments,
business and industry, and other interested parties.
In the Joint Effectiveness in Serving Employers NPRM, the
Departments are proposing to define the effectiveness in serving
employers performance indicator in Sec. 677.155(a)(1)(vi) as the
percentage of participants with wage records who exited a program and
were employed by the same employer in the second and fourth quarters
after exit and specifies that this is a statewide indicator reported by
one core program on behalf of all six core programs in the State. The
Department is proposing this is same language for the WIOA title I non-
core programs in this NPRM; however, the statewide aspect of the
definition in the proposed Joint Effectiveness in Serving Employers
NPRM would not apply to WIOA title I non-core programs. The Department
seeks comment in this NPRM on how the proposed definition of
effectiveness in serving employers performance indicator would impact
the title I non-core programs.
Prior to selecting this single approach to propose, the Departments
selected three approaches for measuring effectiveness in serving
employers to be piloted by WIOA core programs. The Departments assessed
the use of each of the three approaches with a focus on minimizing
employer burden and using information that would provide an accurate
picture of how well the public workforce system serves employers.
Under the guidance of the Departments,\4\ each State piloted its
[[Page 56343]]
choice of any two of three definitions for the effectiveness in serving
employers performance indicator for WIOA core programs: (1) Retention
with the Same Employer: Percentage of participants with wage records
who exited from WIOA core programs and were employed by the same
employer in the second and fourth quarters after exit; (2) Repeat
Business Customer: Percentage of employers who have used WIOA core
program services more than once during the last three reporting
periods; and (3) Employer Penetration: Percentage of employers using
WIOA core program services out of all employers in the State.
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\4\ This joint guidance, ``Performance Accountability Guidance
for Workforce Innovation and Opportunity Act (WIOA) Title I, Title
II, Title III, and Title IV Core Programs,'' was concurrently issued
on December 19, 2016, as TEGL No. 10-16 by the Department of Labor,
and as Office of Career, Technical, and Adult Education Program
Memorandum 17-2 and Rehabilitation Services Administration Technical
Assistance Circular (TAC) TAC-17-01 by the Department of Education.
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The Departments assessed the pilot through a Department of Labor
contract that resulted in a final report titled Measuring the
Effectiveness of Services to Employers: Options for Performance
Measures under the Workforce Innovation and Opportunity Act.\5\
Specifically, the study assessed each approach to defining the
effectiveness in serving employers performance indicator for validity,
reliability, practicality, and unintended consequences.\6\ Though the
study did not definitively recommend one approach, in assessing the
study's findings for each of the three approaches of the effectiveness
in serving employers performance indicator, the Departments concluded
that the Retention with the Same Employer approach provides a valid and
reliable approach to measuring the indicator, while also placing the
least amount of burden on States to implement.
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\5\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, <a href="https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf">https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf</a>.
\6\ See id. at 3-6 (stating that validity ``is used to assess
whether you are measuring what you intend to measure''; that
reliability ``refers to the ability to maintain consistency in data
collection over time and across organizations collecting the data'';
that practicality means that the measure ``must be relatively
uncomplicated and simple to administer to avoid threats to
reliability and validity'' and ``must be practical to use in
administrating programs''; and that unintended consequences are
``negative consequences or behaviors that result, like the
displacement of goals or conflict with other goals.''
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The study authors identified strengths for the Repeat Business
Customer approach, including that it serves as a proxy for employer
satisfaction. In the study, the authors also identified weaknesses in
the Repeat Business Customer approach, including that it: (1) may
provide a disincentive to reach out to new employers; (2) is subject to
variation in industry and sector economic conditions; and (3) may
require a statistical adjustment model to mitigate the weaknesses and
improve implementation and interpretation.\7\ The study authors
identified strengths for the Employer Penetration approach, including
that the dataset used for this measure is comprehensive, covering more
than 95 percent of U.S. jobs. The study authors also identified
weaknesses in the Employer Penetration approach through the study,
including: (1) emphasis on quantity rather than quality or intensity of
the employer service provided; (2) reliability issues associated with
data entry and the process to count unique establishments; (3)
measurement of program output rather than outcome; (4) potential for
creation of perverse incentives to prioritize program breadth rather
than depth in service and delivery; and (5) lack of sensitivity to
industry sectors targeted by State and local workforce agencies.\8\ The
Departments considered the study's findings and concurred with its
conclusions on the Repeat Business Customer and Employer Penetration
approaches.
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\7\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, p. 67,
<a href="https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf">https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf</a>.
\8\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, p. 68,
<a href="https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf">https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf</a>.
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The study did not identify any significantly advantageous
alternatives to defining the effectiveness in serving employers
performance indicator outside of the three proposals (Executive
Summary, pp. xx-xxi).
Nevertheless, the Departments identified the following advantages
regarding the Retention with the Same Employer definition of the
effectiveness in serving employers performance indicator:
<bullet> Demonstration of Effectiveness: Retention with the Same
Employer demonstrates a continued relationship between the employer and
participants who have exited WIOA programs. While many circumstances
affect an employer's retention of employees, an indication that an
employee maintains employment with the same employer in both the second
and fourth quarters after exiting from a WIOA program demonstrates a
level of success for WIOA customers (i.e., successfully preparing
participants to fill jobs that meet employers' needs). Retention of an
employee reduces the costs to the employer associated with employee
turnover and retraining. The other two approaches are based only on
employer data and fail to capture any level of job match effectiveness.
<bullet> Stable Collection Mechanism: Retention with the Same
Employer uses data already collected in the WIOA Joint Performance ICR
(OMB Control Number 1205-0526). While not all States selected this
approach in the pilot, all States collect this information under the
existing WIOA Joint Performance ICR. In contrast, the Participant
Individual Record Layout (PIRL) in the WIOA Joint Performance ICR does
not currently collect data elements used for the Repeat Business
Customer and Employer Penetration approaches to the performance
indicator.
<bullet> Alignment with Employment Performance Indicators:
Retention with the Same Employer aligns with the performance indicators
for employment in the second and fourth quarters after exit, which are
existing performance indicators that all WIOA core programs already
report.
Of the three approaches piloted with the States, Retention with the
Same Employer is the least burdensome for both States and employers, as
noted in the Joint WIOA Final Rule regulatory impact analysis (RIA) (81
FR 55792, 55968). DOL gives particular weight to reporting burden,
especially for the competitive grantees with generally less reporting
capacity than States, in order to allow grantees to focus on services
and improve the accuracy and completeness of the data. However, the
Department acknowledges that the limitations for Retention with the
Same Employer could include the unintended consequences that this
approach may be at odds with an employee seeking a higher paying job or
employment benefits, and the possibility that the performance outcome
for this indicator might not be the result of an employer receiving a
service from the workforce development system. Prioritizing the
advantages discussed above (i.e., stable data collection mechanism,
alignment with other employment performance indicators, and
demonstrating maintained relationships between employers and
employees), the Department has determined Retention
[[Page 56344]]
with the Same Employer is the preferred approach of measuring
effectiveness in serving employers and are proposing that approach in
the Joint Effectiveness in Serving Employers NPRM. For further
information on the pilot, including the Departments' findings regarding
the utility of each pilot definition and reasoning for selecting the
Retention with the Same Employer performance indicator definition,
please refer to the Joint Effectiveness in Serving Employers NPRM,
which is published concurrently with this NPRM elsewhere in this issue
of the Federal Register.
III. Effectiveness in Serving Employers Performance Indicator for WIOA
Title I Non-Core Programs
Although the four WIOA title I non-core programs in this
rulemaking--Job Corps, INA, NFJP, and YouthBuild--did not participate
in the core program pilot, these title I non-core program fund
recipients (i.e., Job Corps contractors and INA, NFJP, and YouthBuild
grantees) were apprised of the three proposed definitions for the
effectiveness in serving employers performance indicator that the pilot
studied.\9\ Moreover, the title I non-core program recipients have been
required to report on Retention with the Same Employer since at least
2019. In TEGL No. 14-18 the Department implemented WIOA's performance
reporting requirements by requiring the non-core programs to use the
Retention with the Same Employer definition of the effectiveness in
serving employers performance indicator.
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\9\ See Joint WIOA Final Rule, 81 FR 55791, 55845-55846
(discussing the pilot and the three proposed definitions for the
effectiveness in serving employers performance indicator); ETA, TEGL
No. 10-16, ``Performance Accountability Guidance for Workforce
Innovation and Opportunity Act (WIOA) Title I, Title II, Title III,
and Title IV Core Programs,'' Dec. 19, 2016, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8226">https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8226</a>; ETA, TEGL No. 14-18, ``Aligning
Performance Accountability Reporting, Definitions, and Policies
Across Workforce Employment and Training Programs Administered by
the U.S. Department of Labor (DOL),'' Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a> (referring the
title I non-core programs to TEGL No. 10-16 for a description of the
pilot).
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Under this proposed rule, the WIOA title I non-core programs would
be subject to the same data collection and reporting requirements as
they have been under TEGL No. 14-18. The TEGL specified that, starting
in Program Year (PY) 2018 (or the point at which wage matching data
becomes available to the program), the Job Corps, INA, NFJP, and
YouthBuild programs were to begin tracking the effectiveness in serving
employers performance indicator using the Retention with the Same
Employer definition. Consistent with related guidance issued in PYs
2016, 2017, and 2018,\10\ these programs were required to use the
Workforce Integrated Performance System (WIPS), the online performance
reporting system for the Department's employment and training
grants,\11\ to submit information that would be used for calculating
the effectiveness in serving employers performance indicator.\12\ These
requirements are all included in an existing information collection,
the WIOA PIRL (ETA 9172), in the ``DOL-Only Performance Accountability,
Information, and Reporting System'' ICR, approved under OMB Control
Number 1205-0521. By proposing to use the Retention with the Same
Employer definition for this indicator, the NPRM would require programs
to use already-collected data and the existing performance reporting
system, WIPS. Thus, programs would not have additional burden to
collect and report on any other type of additional data to calculate
and report results for other possible approaches to defining this
performance indicator. Finally, TEGL No. 14-18 also put forth program-
specific timelines for implementation of the WIOA reporting
requirements factoring in data lags associated with the performance
indicator as well as known implementation actions such as case
management system development, which are further detailed below in each
program-specific section. In summary, for these four title I non-core
programs (Job Corps, INA, NFJP, and YouthBuild), this NPRM proposes to
codify in regulation the existing practice of reporting Retention with
the Same Employer in order to measure a program's effectiveness in
serving employers.
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\10\ ETA, Training and Employment Notice (TEN) No. 08-06,
``Implementation of an Integrated Performance Reporting System for
Multiple Employment and Training Administration (ETA) and Veterans'
Employment and Training Service (VETS) Administered Programs,'' Aug.
24, 2016, <a href="https://wdr.doleta.gov/directives/attach/TEN/TEN_08-16.pdf">https://wdr.doleta.gov/directives/attach/TEN/TEN_08-16.pdf</a>; ETA, TEN 40-16, ``Workforce Integrated Performance System
(WIPS) User Resource Library Information Page,'' Apr. 11, 2017,
<a href="https://wdr.doleta.gov/directives/attach/TEN/TEN_40-16_Acc.pdf">https://wdr.doleta.gov/directives/attach/TEN/TEN_40-16_Acc.pdf</a>.;
ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a>.
\11\ ETA, ``Workforce Integrated Performance System (WIPS),''
<a href="https://www.dol.gov/agencies/eta/performance/wips">https://www.dol.gov/agencies/eta/performance/wips</a> (last visited Jan.
9, 2022).
\12\ Specifically, the programs are required to report the wage
records or supplemental wage information, as directed in program-
specific guidance, which are used to identify whether a program
participant's employer wage record indicates a match of the same
establishment identifier (e.g., Federal Employer Identification
Number or State tax identifier) in the second and fourth quarters
after exit from the program.
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As discussed above, the Department has concluded that the benefits
of this proposed performance indicator definition with regard to the
core programs--that, among other things, it places a low burden on the
programs and employers, has a stable method of collection through wage
records, and demonstrates a level of success for WIOA customers--are
also applicable to the title I non-core programs. Using the proposed
Retention with the Same Employer definition of the effectiveness in
serving employers indicator, which would be the same definition used to
assess the core programs, has the advantage of assessing performance
consistently across the WIOA programs. This is consistent with one of
the central purposes of WIOA: ``[t]o support the alignment of workforce
investment, education, and economic development systems in support of a
comprehensive, accessible, and high-quality workforce development
system in the United States.'' WIOA sec. 2(2). Additionally, because
WIOA applies the effectiveness in serving employers performance
indicator to the WIOA core and title I non-core programs, applying the
same definition of effectiveness in serving employers for all of these
WIOA programs could allow the Department to build a common body of data
that can be used to study effectiveness in serving employers across the
entire workforce system.
While reporting this performance indicator contributes to the
holistic data analysis of the workforce system, the Department
recognizes that drawbacks to this proposed definition exist for the
title I non-core programs, especially due to the unique nature of
programs focused on youth and migrant or seasonal workers.
Nevertheless, the Department believes that the benefits of this
approach outweigh those drawbacks. Moreover, the Department intends to
mitigate these drawbacks, if necessary, by exercising its discretion to
place appropriate weight on the effectiveness in serving employers
performance indicator. Title I non-core programs that serve youth, for
example, focus on employment, career readiness, retention in education,
and life skills to support youth participants in obtaining academic and
career skills necessary to be successful in the job market, and success
for youth is more likely to include progression in jobs. Recognizing
the unique circumstances title I non-core programs may face, the
Department expects variability in the reported outcomes from program to
program,
[[Page 56345]]
especially for programs serving youth, and intends to take this
variability into account when negotiating levels of performance. These
considerations are consistent with TEGL No. 14-18 guidance for
applicability of primary performance indicators, which specifies that,
as a general matter, participants' outcomes on the applicable primary
indicators of performance may be relevant for negotiating levels of
performance, decisions related to contract awards and renewal, and the
award of competitive grants.\13\
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\13\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' p. 8, Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a>.
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It should be kept in mind that the effectiveness in serving
employers performance indicator is unique among all other indicators in
that it is employer-focused. Employers are critical partners with title
I non-core programs in providing quality services and employment
opportunities to program participants.
While WIOA does require an effectiveness in serving employers
indicator to be applied to the title I non-core programs that are the
subject of this rulemaking, the Department is soliciting comments to
better inform implementation of the effectiveness in serving employers
performance indicator for these programs, particularly those currently
undergoing transition to the Grantee Performance Management System
(GPMS). The Department is particularly interested in hearing from the
regulated community regarding challenges that they might face in
implementing this proposed definition of the effectiveness in serving
employers performance indicator; challenges they have faced under TEGL
No. 14-18, which serves as the basis for how the performance indicator
is proposed to be defined in this NPRM; experiences they have had in
considering alternate ways to measure effectiveness in serving
employers; and other definitions that might be more suitable.
A. Part 684--Indian and Native American Programs
Part 684 governs the INA programs authorized under WIOA sec. 166,
including programs for Native American youth (INA Supplemental Youth
Services). The INA programs are intended to support employment and
training activities for INA program participants in order to develop
more fully academic, occupational, and literacy skills and to serve
unemployed and low-income INA populations seeking to achieve economic
self-sufficiency consistent with the goals and values of the particular
communities. Where active, INA programs are required one-stop center
partners. The Department administers these programs to maximize Federal
commitment to support the growth and development of INAs and their
communities as determined by representatives of such communities while
meeting the applicable statutory and regulatory requirements.
WIOA sec. 166(h)(2) requires the Department to reach an agreement
with Tribal Governments--and the respective entities administering the
programs--as to the levels of performance required for each core
indicator, including an effectiveness in serving employers performance
indicator. The Department is also required to work with the Native
American Employment and Training Council (NAETC) to develop a set of
performance indicators and standards for the INA adult and youth
programs in addition to the primary indicators used to measure
performance (WIOA sec. 166(h)(1)(A)).
Beginning with PY 2018, ETA has applied the effectiveness in
serving employers performance indicator to INA adult grants as it is
described in TEGL No. 14-18, using the Retention with the Same Employer
definition of the performance indicator. Specifically, on March 25,
2019, TEGL No. 14-18, Attachment 2 provided that the definition for
effectiveness in serving employers performance indicator for INA
program reporting purposes would be consistent with the Retention with
the Same Employer approach applicable to DOL-administered WIOA title I
non-core programs and described in Appendix I of the TEGL. On November
20, 2019, the ICR approved under OMB Control Number 1205-0521 formally
established for INA programs the calculation of effectiveness in
serving employers and the collection of required elements for the
effectiveness in serving employers performance indicator. The cohort of
INA adult program participants who exited after July 1, 2020, is the
first that may have effectiveness in serving employers data collected,
which will be compiled and analyzed in summer 2022.
For the INA Supplemental Youth Services program, the DOL WIOA Final
Rule and TEGL No. 14-18 both acknowledged the significant challenges in
implementing the performance indicators in WIOA sec. 116(b)(2)(A)(ii).
In implementing these performance indicators in TEGL No. 14-18, the
Department gave consideration as to how youth performance indicators
can be implemented in a way that is realistic and feasible for INA
program grantees while also implementing the requirements in WIOA. INA
Supplemental Youth Services program participants will be reported once
the INA youth case management system modernization has been completed,
at which time it will be at least six additional quarters until the
first data on effectiveness in serving employers will be available. INA
grantees will eventually report on this performance indicator, but
given the complexity of aligning data elements and building new systems
to report such data, the Department is using the transition authority
found in WIOA sec. 503(b) to work co-operatively with grant program
organizations to transition to reporting of the information over
time.\14\
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\14\ ETA, TEN No. 8-16, ``Implementation of an Integrated
Performance Reporting System for Multiple Employment and Training
Administration (ETA) and Veterans' Employment and Training Service
(VETS) Administered Programs,'' Aug. 24, 2016.
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In 2021, as part of the development of this proposed rule, the
Department held two events \15\ to consult with INA program grantees
and representatives of Tribal institutions about their experiences with
the implementation and operation of the effectiveness in serving
employers performance indicator under TEGL No. 14-18. Participants at
these two events expressed several concerns and questions, including:
(1) how the Retention with the Same Employer performance indicator
definition takes into account participants' employer, wage, or position
changes; (2) how temporary jobs, such as seasonal or contract-based
employment, would be considered; (3) the impact on performance of
limited-duration summer employment opportunities for high school
students within INA youth programs, (4) data collection and reporting
process for INA youth programs, (5) use of and access to wage records
that may not account for self-employed participants, and (6) the need
for consideration of all Tribal communities and their unique needs.
Other commenters suggested other ways to define the calculation of the
[[Page 56346]]
performance indicator. One commenter asserted that the Department is
not required to assess INA grantees on their effectiveness in serving
employers. Section IV.F of this document, which pertains to Executive
Order (E.O.) 13175 (Indian Tribal Governments), summarizes details from
these events and requests further comments to provide the Department
with recommendations and suggestions to address the issues identified
through this consultation. The concerns raised during the consultation
process can be classified into several categories: (1) issues focusing
on services to participants (wages and position changes, temporary or
contract jobs, and summer employment); (2) administrative and data
tracking (data collection and use of wage records); (3) the needs of
the Tribal communities.
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\15\ The first event was a town hall discussion on September 21,
2021. See NAETC, ``41st National Indian and Native American
Employment and Training Program,'' Sept. 20-23, 2021, <a href="http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf">http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf</a>. The second event,
a consultation webinar, occurred on October 19, 2021. See ``Tribal
Consultation; Workforce Innovation and Opportunity Act,
Implementation of the Effectiveness in Serving Employers Performance
Indicator; Notice of Tribal Consultation; Virtual Meeting,'' 86 FR
54244 (Sept. 30, 2021).
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If this rulemaking is finalized as proposed, the Department intends
to work with INA program grantees to mitigate these concerns. First,
INA program grantees' services to participants also are measured and
assessed through the other five WIOA primary indicators of performance,
and the Department recognizes the importance of these indicators in
assessing the performance of INA program grantees. The effectiveness in
serving employers performance indicator, unlike the other indicators,
which are focused on program participants, focuses on how the WIOA
programs are serving employers. As explained above, the proposed
performance indicator definition of Retention with the Same Employer is
one metric by which to ascertain how employers are being served by
these programs. Second, the Department acknowledges and understands the
challenges related to reporting for INA program grantees and is working
to ensure that all INA program grantees have the systems and resources
needed to report the information required for this performance
indicator. Third, the Department acknowledges the concerns of Tribal
communities and their unique needs. WIOA makes provision for the
Department to negotiate additional performance indicators and standards
taking into account the needs of participants and the economic
circumstances of the communities INA program grantees serve. See WIOA
sec. 166(h)(1). The Department will negotiate these additional
performance indicators keeping these considerations in the forefront of
the negotiations process. INA program grantee performance also is
assessed based on these outcomes. Effectiveness in serving employers is
not the only metric for assessing INA program grantee performance.
While the Department acknowledges the concerns that have been
expressed by INA grantees during the Tribal consultation for this
proposed rule regarding application of the effectiveness in serving
employers to INA adult and youth programs and will work to mitigate the
issues such concerns raise, we note that WIOA requires the performance
of these programs to be measured using the WIOA sec. 116 six statutory
indicators of performance, including effectiveness in serving
employers. Specifically, WIOA sec. 166(h)(2) requires the Secretary to
reach agreement on the levels of performance for each of the primary
indicators of performance described in WIOA sec. 116(b)(2)(A), which
includes the effectiveness in serving employers indicator.
Further, as explained above, the benefits of defining this measure
using Retention with the Same Employer, including that it minimizes
reporting burdens for INA program grantees, outweigh the drawbacks, as
well as providing more benefits than the use of either of the other
performance indicator definitions piloted by the core programs. To
fulfill the intent of WIOA's common performance accountability system,
the Department is proposing to define effectiveness in serving
employers for the INA programs using the Retention with the Same
Employer approach so that the Department can measure effectiveness in
serving employers consistently across core programs and the title I
non-core programs.
Additionally, the Department notes that WIOA sec. 166(i)(3) and the
WIOA regulations at 20 CFR part 684 subpart I allow the Department to
waive requirements, including performance requirements, that are
inconsistent with the specific needs of INA grantees. Based on
consultation with the NAETC, the Department issued guidance TEGL No.
04-19, ``Waiver Authority for the INA Program and Implementation of
Additional Indicators of Performance,'' \16\ which provides how INA
grantees can request waivers of performance indicators, and how
grantees with waivers can report on alternative performance indicators
for INA adult and youth programs. As consultation commenters discussed,
performance reporting can be particularly challenging for smaller
grantees. Therefore, if this rulemaking is finalized as proposed,
consistent with this waiver guidance, the Department would accept and
promptly make determinations on requests submitted by grantees for
waivers of performance indicators, including effectiveness in serving
employers, so that grantees can structure their performance indicators
to best fit the economic circumstances of the communities served and
improve positive outcomes.
---------------------------------------------------------------------------
\16\ ETA, TEGL No. 04-19, ``Waiver Authority for the INA Program
and Implementation of Additional Indicators of Performance,'' Aug.
29, 2019, <a href="https://wdr.doleta.gov/directives/attach/TEGL/TEGL_4-19_acc.pdf">https://wdr.doleta.gov/directives/attach/TEGL/TEGL_4-19_acc.pdf</a>.
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Section 684.460--What performance indicators are applicable to the
supplemental youth services program?
Section 684.460(a) sets out the performance indicators that apply
to INA youth programs, including an indicator of the effectiveness of
serving employers--specifically in paragraph (a)(6)--as established
under WIOA sec. 116(b)(2)(A)(iv). This NPRM proposes to change the
language currently found in paragraph (a)(6) to align with the
effectiveness in serving employers performance indicator language
proposed at Sec. 677.155(a)(1)(vi) in the Joint Effectiveness in
Serving Employers NPRM. Specifically, proposed Sec. 684.460(a)(6)
would define the required effectiveness in serving employers
performance indicator as the percentage of participants with wage
records in the second quarter after exit who were employed by the same
employer in the second and fourth quarters after exit.
Section 684.620--What performance indicators are in place for the
Indian and Native American program?
Section 684.620(a) lists the performance indicators used to
evaluate the INA programs, including an effectiveness in serving
employers performance indicator. Like the proposed changes to Sec.
684.460(a)(6), the Department proposes changing the existing language
at Sec. 684.620(a)(6) to define the required effectiveness in serving
employers performance indicator as the percentage of participants with
wage records in the second quarter after exit who were employed by the
same employer in the second and fourth quarters after exit. This
definition of effectiveness in serving employers aligns with the
effectiveness in serving employers performance indicator language
proposed at Sec. 677.155(a)(1)(vi) in the Joint Effectiveness in
Serving Employers NPRM.
[[Page 56347]]
B. Part 685--National Farmworker Jobs Program
Part 685 establishes regulations for NFJP, authorized in title I,
subtitle D of WIOA. The NFJP is a nationally directed, locally
administered program of services for migrant and seasonal farmworkers
(MSFWs) and their dependents. Grant recipients help program
participants acquire new skills to either stabilize or advance their
agricultural careers or obtain employment in a new industry, as well as
working to meet the critical need of safe and sanitary permanent and
temporary housing for farmworkers and their families.
The NFJP would be impacted by the proposed addition of the
definition of the effectiveness in serving employers performance
indicator in 20 CFR part 677. Section 167(c)(3) of WIOA (29 U.S.C.
3222) requires the Department to use the six WIOA primary indicators of
performance, including the effectiveness in serving employers
performance indicator, to assess the performance of the NFJP. In the
DOL WIOA Final Rule, the Department implemented this requirement in 20
CFR 685.400(a) and (b), which states that NFJP grantees providing
career services and training use the indicators of performance
described in WIOA sec. 116(b)(2)(A). NFJP housing grantees, which
provide housing assistance rather than training and employment
placement services, are required to report a different set of
performance indicators as defined in 20 CFR 685.400(c), specifically
the total number served of eligible MSFWs, other individuals, eligible
MSFW families, and other families. Therefore, if finalized, the
proposed definition of the effectiveness in serving employers
performance indicator in 20 CFR part 677 in the Joint Effectiveness in
Serving Employers NPRM would apply to NFJP career services grantees but
not housing grantees, although it would have no noticeable change to
procedures for career services grantees as they already report this
information in accordance with TEGL No. 14-18. Beginning with PY 2018,
NFJP career services grants have applied the effectiveness in serving
employers performance indicator as it is described in TEGL No. 14-18,
using the Retention with the Same Employer definition of the
performance indicator. However, the third quarter of PY 2020 was the
first quarter where NFJP generated quarterly performance reports in
WIPS with the effectiveness in serving employers performance indicator.
No changes to the regulatory text at 20 CFR part 685 are necessary to
implement this change, as the regulations currently state that the
Department uses the indicators of performance described in WIOA
sec.116(b)(2)(A) and do not state a definition directly.
C. Part 686--Job Corps Program
Part 686 establishes regulations for the Job Corps program,
authorized in title I, subtitle C of WIOA. Job Corps is a no-cost
education and career technical training program administered by the
Department, which includes 121 Job Corps centers across the United
States. The program aims to help young people--ages 16 to 24--gain
academic credentials and career technical training skills and secure
quality employment.
Job Corps historically has used post-separation surveys to capture
post-program employment results. Job Corps' current surveys (OMB
Control Number 1205-0426) are administered to participants immediately
following the second and fourth quarters after exit and capture
information related to whether they are employed or in an educational
or training program during those quarters and if they have attained any
additional certifications or credentials after exit from the program.
In PY 2018, Job Corps revised the reporting periods in the post-
separation surveys to replace program-specific definitions of the
second and fourth quarters after exit with the same definitions used by
other DOL employment and training programs. This definitional shift
created alignment with quarterly wage records and facilitated
calculation of common exit and outcomes across WIOA programs. With this
change in definition, Job Corps has been able to apply the
effectiveness in serving employers performance indicator as it is
described in TEGL No. 14-18, using the Retention with the Same Employer
definition of the performance indicator. While the post-separation
surveys are a supplemental data source for reporting on the primary
indicators of performance, Job Corps did not gain access to wage record
matches, the primary data source, until the fourth quarter of PY 2020.
All reported outcomes for Job Corps prior to this period were based
solely on the supplemental data source. Job Corps began certifying its
program results in WIPS for all the primary measures of performance,
including the Retention with the Same Employer indicator, in the first
quarter of PY 2020. Starting with the fourth quarter of PY 2020, Job
Corps obtained quarterly wage record matches and, combined with the
supplemental data from the surveys, has been able to report fully on
the primary measures of performance, including the Retention with the
Same Employer indicator.
Section 686.1010--What are the primary indicators of performance for
Job Corps centers and the Job Corps program?
Section 686.1010 lists the primary indicators used to measure the
performance of Job Corps centers, which includes the effectiveness in
serving employers performance indicator. The effectiveness in serving
employers performance indicator specifically applies to Job Corps
center operators and career transition service providers. The
Department proposes to change the existing language found at Sec.
686.1010(f) to align with the effectiveness in serving employers
performance indicator language proposed at Sec. 677.155(a)(1)(vi) in
the Joint Effectiveness in Serving Employers NPRM. Specifically,
proposed Sec. 686.1010(f) would define the required effectiveness in
serving employers performance indicator as the percentage of
participants with wage records in the second quarter after exit who
were employed by the same employer in the second and fourth quarters
after exit.
D. Part 688--YouthBuild Programs
Part 688 establishes regulations for the YouthBuild programs,
authorized in title I, subtitle D of WIOA. YouthBuild is a pre-
apprenticeship program that provides educational and job training
opportunities for at-risk youth (ages 16-24) who have previously
dropped out of high school. Program participants learn vocational
skills focused on the construction industry, as well as other in-demand
industries including healthcare, information technology, and
hospitality. Participants earn their high school diploma while
splitting time between the vocational training work site and the
classroom, as well as preparing for postsecondary training
opportunities, such as Registered Apprenticeships, college, and
eventual employment. Community service is required of participants,
including through construction and rehabilitation of affordable housing
for low-income and homeless families, often in their own neighborhoods.
YouthBuild programs include mentoring, follow-up education, employment,
and personal counseling services as support systems for program
participants as well. YouthBuild grants include a 4-month planning
period and run on a cohort model, which spans from 6 to 12 months.
On March 25, 2019, TEGL No. 14-18, Attachment 11, provided that the
definition for the effectiveness in serving employers performance
[[Page 56348]]
indicator for YouthBuild reporting purposes would be consistent with
the Retention with the Same Employer approach generally applicable to
DOL-administered WIOA programs and described in Appendix I to the TEGL.
On November 20, 2019, the ICR approved under OMB Control Number 1205-
0521 formally established for YouthBuild programs the calculation of
effectiveness in serving employers and the collection of required
elements for effectiveness in serving employers. YouthBuild program
participants will be reported once the case management system
modernization is completed, at which time it will be at least an
additional six quarters until the first data on effectiveness in
serving employers will be available. The YouthBuild participants from
the grant class that began on July 1, 2021, is the first that may have
effectiveness in serving employers data available, which would be
available in the quarter ending on September 30, 2023.
Section 688.400--What are the performance indicators for YouthBuild
grants?
Section 688.400 lists the primary indicators used to measure the
performance of YouthBuild programs, which also includes a performance
indicator for effectiveness in serving employers. This NPRM proposes to
codify current practices by replacing existing language in Sec.
688.400(f) with language that aligns with the effectiveness in serving
employers performance indicator language proposed at Sec.
677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM.
Specifically, proposed Sec. 688.400(f) would define the required
effectiveness in serving employers performance indicator as the
percentage of participants with wage records in the second quarter
after exit who were employed by the same employer in the second and
fourth quarters after exit.
IV. Regulatory Analysis and Review
A. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
Under E.O. 12866, OIRA determines whether a regulatory action is
significant and, therefore, subject to the requirements of the E.O. and
review by OMB. See 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O.
12866 defines a ``significant regulatory action'' as an action that is
likely to result in a rule that: (1) has an annual effect on the
economy of $100 million or more, or adversely affects in a material way
a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities (also referred to as economically
significant); (2) creates serious inconsistency or otherwise interferes
with an action taken or planned by another agency; (3) materially
alters the budgetary impacts of entitlement grants, user fees, or loan
programs, or the rights and obligations of recipients thereof; or (4)
raises novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the E.O. Id.
This proposed rule is a significant regulatory action, although not an
economically significant regulatory action under sec. 3(f) of E.O.
12866. Accordingly, OMB reviewed this proposed rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
1. Outline of the Analysis
Section IV.A.2 provides a summary of the results of the RIA.
Section IV.A.3 describes the need for the proposed rule, and Section
IV.A.4 describes the process used to estimate the costs and cost
savings of the proposed rule and the general inputs used, such as wages
and number of affected entities. Section IV.A.5 explains how the
provisions of the proposed rule would result in quantifiable costs and
cost savings and presents the calculations the Department used to
estimate them. In addition, Section IV.A.5 describes the qualitative
benefits of the proposed rule. Section IV.A.6 summarizes the estimated
first-year and 10-year total and annualized costs, cost savings, net
costs, and transfer payments of the proposed rule. Finally, Section
IV.A.7 describes the regulatory alternatives considered when developing
the proposed rule.
2. Analysis Overview
The Department estimates that the proposed rule would result in
costs and qualitative benefits. As shown in Exhibit 1, the proposed
rule is expected to have a one-time cost of $41,551. The Departments
estimate that the proposed rule would result in an annualized net
quantifiable cost of $5,916 at a discount rate of 7 percent and
expressed in 2020 dollars.
Exhibit 1--Estimated Monetized Costs of the Proposed Rule
[2020 dollars]
------------------------------------------------------------------------
Cost
------------------------------------------------------------------------
10-Year Total with a Discount Rate of 3%................ $41,551
10-Year Total with a Discount Rate of 7%................ 41,551
10-Year Average......................................... 4,155
Annualized at a Discount Rate of 3%..................... 4,871
Annualized at a Discount Rate of 7%..................... 5,916
------------------------------------------------------------------------
The cost of the proposed rule is associated with rule
familiarization for all 121 Job Corps centers and 1 career transition
service provider for a total of 122 Job Corps entities, 53 NFJP career
service and training grantees, 69 INA youth grantees, 104 INA adult
grantees, and 216 YouthBuild grantees.\17\ See the costs subsections of
Section IV.A.5 (Subject-by-Subject Analysis) below for a detailed
explanation.
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\17\ The 216 YouthBuild entities consist of grantees within each
of the three currently active grant classes (67 grantees in the 2020
class, 68 grantees in the 2019 class, and 81 grantees in the 2018
class).
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The Department cannot quantify the benefits of the proposed rule;
therefore, Section IV.A.5 (Subject-by-Subject Analysis) describes the
benefits qualitatively.
3. Need for Regulation
This proposed rulemaking is necessary to complete implementation of
the performance accountability requirements as discussed in the Joint
WIOA Final Rule and required by statute. WIOA included a common
performance accountability system, consisting of six statutory primary
indicators of performance, applicable to all WIOA core programs: adult,
dislocated worker, and youth programs under title I of WIOA; the AEFLA
program under title II; the ES program authorized under the Wagner-
Peyser Act as amended by WIOA title III; and the VR program authorized
under title I of the Rehabilitation Act, as amended by WIOA title IV.
WIOA also required that the six statutory primary indicators of
performance apply to four WIOA title I, DOL-administered non-core
programs: INA, NFJP, Job Corps, and YouthBuild (``title I non-core
programs''). The
[[Page 56349]]
statute defines five of the six performance indicators. However, WIOA
did not specify how effectiveness in serving employers should be
measured. Instead, WIOA directed the Departments to develop a
definition for the effectiveness in serving employers performance
indicator (WIOA sec. 116(b)(2)(A)(iv)). In the Joint WIOA Final Rule,
the Departments determined that it was prudent to pilot three
definitions for the sixth performance indicator, which measures a
State's effectiveness in serving employers through its WIOA-authorized
programs. As explained earlier in this proposal, that pilot, as well as
a study of the results from the pilot, is now complete. The Departments
are engaging in two rulemakings to incorporate into the WIOA
regulations a proposed standard definition of the performance indicator
for effectiveness in serving employers. This proposed performance
indicator definition is meant to apply to both WIOA core programs--
which are addressed in the concurrently published Joint Effectiveness
in Serving Employers NPRM--as well as the four title I non-core
programs, which are addressed in this NPRM. When finalized, this
rulemaking would codify the use of all the primary performance
indicators for the evaluation of title I non-core program performance--
including the effectiveness in serving employers indicator--just as
with the WIOA core programs.
4. Analysis Considerations
a. Baseline for Title I Non-Core Programs: Indian and Native American,
Job Corps, and YouthBuild
The Department estimated the costs of the proposed rule relative to
the existing baseline. The Department determined that the proposed rule
would result in no change from the baseline for the title I non-core
programs. As a result, the Department estimates only the costs of rule
familiarization for the title I non-core programs.
WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C)
(NFJP), and 171(f) (YouthBuild) specify that performance for these
title I non-core programs must be assessed using the WIOA sec. 116
primary indicators of performance for WIOA core programs. In this
proposed rule, the Department is codifying the approach for evaluating
a program's effectiveness in serving employers, as put into practice
through previously issued guidance \18\ and the ``DOL-Only Performance
Accountability, Information, and Reporting System'' ICR, approved under
OMB Control Number 1205-0521 for the title I non-core programs.
---------------------------------------------------------------------------
\18\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability
Reporting, Definitions, and Policies Across Workforce Employment and
Training Programs Administered by the U.S. Department of Labor
(DOL),'' Mar. 25, 2019, <a href="https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611">https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611</a>.
---------------------------------------------------------------------------
All title I non-core programs, except the INA Supplemental Youth
Services program, are able to report the Retention with the Same
Employer definition of effectiveness in serving employers performance
indicator, as required in TEGL No. 14-18, through WIPS or GPMS. Unlike
the other title I non-core programs, the INA Supplemental Youth
Services program is not currently reporting, and will not immediately
be able to report, the effectiveness in serving employers performance
indicator. The INA Supplemental Youth Services case management system
modernization has not been completed at the time of this rulemaking;
therefore, INA youth grantees will, for a period of time, use WIOA
transition authority with regard to collecting and reporting on WIOA
performance indicators, including the proposed effectiveness in serving
employers performance indicator. The Department is planning,
independent of this rulemaking, to build a new case management system
for INA youth grantees that will provide for the collection and
reporting of the effectiveness in serving employers performance
indicator. Therefore, this proposed rule does not impose any new cost
associated with the case management system. When the case management
system is built, the INA youth grantees will use it to collect and
report the outcomes for the effectiveness in serving employers
performance indicator. The use of the new system to report the
effectiveness in serving employers performance indicator would impose a
de minimis cost for the INA youth grantees. When the INA Supplemental
Youth Services case management system is complete, the INA youth
program grantees would face a de minimis cost associated with reporting
the effectiveness in serving employers performance indicator in the new
system.
Exhibit 2 presents the number of entities the Department expects
the proposed rule to affect. The Department provides these estimates
and uses them to calculate the cost of rule familiarization for the
title I non-core programs.
Exhibit 2--Title I Non-Core Programs Number of Affected Entities by Type
------------------------------------------------------------------------
Entity type Number
------------------------------------------------------------------------
Job Corps:
Current centers..................................... 121
Career transition service providers................. 1
NFJP:
Career services and training grantees............... 53
Indian and Native American:
Number of INA youth grants awarded under WIOA sec. 69
166................................................
Grantees for the Comprehensive Services Program/INA 104
adult program......................................
YouthBuild:
Grantees in active grant classes.................... 216
------------------------------------------------------------------------
b. Compensation Rates
In Section IV.A.5 (Subject-by-Subject Analysis), the Department
presents the costs, including labor, associated with the proposed rule.
Exhibit 3 presents the hourly compensation rates for the occupational
categories expected to experience a change in level of effort
(workload) due to the proposed rule. We use the Bureau of Labor
Statistics (BLS) mean hourly wage rate for local government
employees.\19\ To reflect total compensation, wage rates include
nonwage factors such as overhead and fringe benefits (e.g., health and
retirement benefits). We use an overhead rate of 17 percent \20\ and a
fringe benefits rate of 62 percent,\21\ which represents the ratio of
average total compensation to average wages for State and local
government workers in March 2021. We then multiply the sum of the
loaded wage factor and overhead rate by the corresponding occupational
category wage rate to calculate an hourly compensation rate.
---------------------------------------------------------------------------
\19\ BLS, ``May 2020 National Industry-Specific Occupational
Employment and Wage Estimates: NAICS 999300--Local Government,
excluding schools and hospitals (OEWS Designation),'' <a href="https://www.bls.gov/oes/current/naics4_999300.htm">https://www.bls.gov/oes/current/naics4_999300.htm</a> (last visited Jan. 9,
2022).
\20\ U.S. Environmental Protection Agency, ``Wage Rates for
Economic Analyses of the Toxics Release Inventory Program,'' June
10, 2002, <a href="https://www.regulations.gov/document/EPA-HQ-OPPT-2018-0321-0046">https://www.regulations.gov/document/EPA-HQ-OPPT-2018-0321-0046</a>.
\21\ BLS, ``Employer Costs for Employee Compensation--March
2021,'' June 17, 2021, Calculated using Table 1. Employer Costs for
Employee Compensation by ownership, <a href="https://www.bls.gov/news.release/archives/ecec_06172021.htm">https://www.bls.gov/news.release/archives/ecec_06172021.htm</a>.
[[Page 56350]]
Exhibit 3--Compensation Rates [2020 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Base hourly Loaded wage factor Overhead costs compensation
wage rate rate
............... (a) (b) (c) d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management Analyst........................................... N/A $41.23 $25.43 ($41.23 x $7.01 ($41.23 x $73.67
0.62) 0.17)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5. Subject-by-Subject Analysis
The Department's analysis below covers the estimated cost of the
proposed rule.
c. Costs
The following sections describe the costs of the proposed rule.
(1) DOL-Only Non-Core Programs Rule Familiarization
If the proposed rule is finalized, INA, YouthBuild, NFJP, and Job
Corps programs would need to familiarize themselves with the new
regulation. Consequently, this would impose a one-time cost in the
first year.
To estimate the first-year cost of rule familiarization for INA,
YouthBuild, NFJP, and Job Corps programs, the Department multiplied the
estimated number of management analysts (1) by the time required to
read and review the rule (1 hour), and by the applicable hourly
compensation rate ($73.67/hour). We multiplied this result by the
number Job Corps active centers (122), NFJP grantees (53), INA Youth
program grantees (69), INA Adult program grantees (104), and the number
of YouthBuild grantees (216). This calculation yields $41,551 in one-
time labor costs for Job Corps, NFJP, INA Youth, and INA Adult programs
to read and review the rule. Over the 10-year period of analysis, these
estimated one-time costs result in an average annual cost of $4,155
undiscounted, or $4,871 and $5,916 at discount rates of 3 and 7
percent, respectively.
d. Qualitative Benefits Discussion
(1) General Benefits of Measuring Effectiveness in Serving Employers
The Department cannot quantify the proposed rule's benefits
associated with improving the title I non-core programs' effectiveness
in serving employers. Measuring effectiveness in serving employers
allows title I non-core programs to set goals, monitor, and learn how
to serve employers more effectively.\22\ Reporting a measure of
effectiveness in serving employers also helps Federal, State, and local
policymakers evaluate program performance and inform future policy
changes to better meet program goals, particularly providing employers
with skilled workers and other services.
---------------------------------------------------------------------------
\22\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act (Research Report),'' Jan.
2021, <a href="https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf">https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf</a>.
---------------------------------------------------------------------------
The Department cannot quantify these estimated benefits because we
do not have quantitative data on how the effectiveness in serving
employers performance indicator has influenced program implementation
and how much it would influence future policies.
(2) Specific Benefits of Reporting Retention With the Same Employer
Requiring the calculation and reporting of Retention with the Same
Employer as the effectiveness in serving employers performance
indicator would make it easier to compare WIOA title I non-core
programs' effectiveness in serving employers performance across grant
programs. Retention with the Same Employer demonstrates a continued
relationship between the employer and participants who have exited WIOA
programs. While many circumstances can have an impact on an employer's
retention of employees, an indication that an employee is still working
for the same employer in both the second and fourth quarters after
exiting from a WIOA program demonstrates a level of success for both
parties, as retention of an employee reduces the costs to the employer
associated with employee turnover and retraining. Thus, reporting
Retention with the Same Employer can help inform design and
implementation of program services to reduce job turnover and improve
employer-employee match quality. Improved matching and reduced turnover
allow employees and employers to operate closer to their productive
potential and can make it more worthwhile for employers to invest in
training its employees and for employees to invest in learning
employer-specific skills.
6. Summary of the Analysis
The Department estimates the total net cost of the proposed rule at
$41,183 at a discount rate of 7 percent. The Department estimates the
annualized net cost of the proposed rule at $5,864 at a discount rate
of 7 percent. Exhibit 4 summarizes the estimated cost of the proposed
rule over the 10-year analysis period.
Exhibit 4--Estimated Monetized Costs of the Proposed Rule
[2020 dollars]
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
2022.................................................... $41,551
2023.................................................... 0
2024.................................................... 0
2025.................................................... 0
2026.................................................... 0
2027.................................................... 0
2028.................................................... 0
2029.................................................... 0
2030.................................................... 0
2031.................................................... 0
10-Year Total with a Discount Rate of 3%................ 41,551
10-Year Total with a Discount Rate of 7%................ 41,551
10-Year Average......................................... 4,155
Annualized with a Discount Rate of 3%................... 4,871
Annualized with a Discount Rate of 7%................... 5,916
------------------------------------------------------------------------
7. Regulatory Alternatives
The Department considered two alternatives to the proposed
definition of the effectiveness in serving employers performance
indicator. First, the Department considered requiring use of the
Employer Penetration pilot approach, which reports the percentage of
employers using services out of all employers in the State. This
approach would have required counts of services provided to employers
requiring States and local areas to report unique counts of employer
establishments receiving services through WIOA's programs. Employer
Penetration would require a more data-intensive analysis than the
proposed approach of Retention with the Same Employer. Employer
Penetration would have the benefit of capturing the extent to which
employers
[[Page 56351]]
within a State are engaged with WIOA-funded services and would provide
State programs an incentive to work with additional employers. The
Department, in an Urban Institute study, found weaknesses in this pilot
approach including: (1) emphasis on quantity rather than quality or
intensity of the employer service provided; (2) reliability issues
associated with data entry and the process to count unique
establishments; (3) measurement of program output rather than outcome;
(4) potential for creation of perverse incentives to prioritize program
breadth rather than depth in service and delivery; and (5) lack of
sensitivity to industry sectors targeted by State and local workforce
agencies.\23\
---------------------------------------------------------------------------
\23\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act (Research Report),'' Jan.
2021, <a href="https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf">https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf</a>.
---------------------------------------------------------------------------
The Department considered a second regulatory alternative that
would require the use of the Repeat Business Customer approach to the
effectiveness in serving employers performance indicator, which reports
the percentage of employers receiving services in a year who also
received services within the previous 3 years. This approach to the
effectiveness in serving employers measure requires counts of services
provided to employers through WIOA's programs. Repeat Business Customer
requires a more data-intensive analysis than the proposed approach of
Retention with the Same Employer. Repeat Business Customer captures the
extent to which employers within a State can find workers and the
employer's level of satisfaction with the public workforce system
services. The Department, in an Urban Institute study, found weaknesses
in this pilot approach including that it: (1) may provide a
disincentive to reach out to new employers; (2) is subject to variation
in industry and sector economic conditions; and (3) may require a
statistical adjustment model to mitigate the weaknesses and improve
implementation and interpretation.\24\
---------------------------------------------------------------------------
\24\ S. Spaulding, et al., ``Measuring the Effectiveness of
Services to Employers: Options for Performance Measures under the
Workforce Innovation and Opportunity Act,'' Jan. 2021, <a href="https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf">https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf</a>.
---------------------------------------------------------------------------
The Department prefers the proposed approach of requiring the use
of Retention with the Same Employer because it has data more readily
available and, therefore, it is less burdensome. The Retention with the
Same Employer approach better aligns with workforce system goals of
matching employers with job seekers and reducing turnover without the
weaknesses associated with the other two approaches to defining the
effectiveness in serving employers performance indicator. In addition,
because title I non-core programs are already required to report the
Retention with the Same Employer measure, the two alternative measures
would impose new costs to affected entities associated with collecting
data, calculation of, and reporting the alternative measure.
B. Regulatory Flexibility Act, Small Business Regulatory Enforcement
Fairness Act, and Executive Order 13272 (Proper Consideration of Small
Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (Mar. 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C. 603
and 604.
The Department finds that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
Based on this determination, the Department certifies that this
proposed rule does not have a significant economic impact on a
substantial number of small entities. This finding is supported, in
large measure, by the fact that small entities are already receiving
financial assistance under WIOA. In addition, the calculated cost of
this rulemaking is a one-time per-entity cost of $73.67 associated with
rule familiarization and would therefore have a de minimis impact on
any on particular entity.
This proposed rule can be expected to impact small entities within
the Job Corps, NFJP, and INA programs. These small entities can be, for
example, Tribal or non-profit grantees, including regionally focused
entities. The Department has estimated costs that are new to this
proposed rule. As discussed in Section IV.A, the calculated cost of
this rulemaking is a one-time per-entity cost of $73.67 associated with
rule familiarization and would, therefore, have a de minimis impact on
any one particular entity. Therefore, the Department certifies that
this proposed rule does not have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
The Department previously submitted and received OMB approval for
the information collection discussed above (OMB Control Number 1205-
0521) in Section I, Background and Rulemaking Authority, and Section
III, Effectiveness in Serving Employers Performance Indicator for WIOA
Title I Non-Core Programs. See ICR Reference Number 202104-1205-003
(OMB Control Number 1205-0521). This NPRM does not modify any of the
content in the exiting OMB Control Number 1205-0521.
D. Executive Order 13132 (Federalism)
E.O. 13132 aims to guarantee the division of governmental
responsibilities between the National Government and the States and to
further the policies of the Unfunded Mandates Reform Act of 1995
(UMRA). Accordingly, E.O. 13132 requires executive departments and
agencies to ensure that the principles of federalism guide them in the
formulation and implementation of policies. Further, agencies must
adhere to constitutional principles, examine the constitutional and
statutory authority supporting a regulation that would limit the
policymaking discretion of the States, and assess the need for such a
regulation. To the extent practicable, agencies must consult State and
local officials before implementing any such regulation.
E.O. 13132 further provides that agencies must implement a
regulation that limits the policymaking discretion of the States only
where there is constitutional and statutory authority for the
regulation and it addresses a problem of national significance. For a
regulation administered by the States, the National Government must
grant the States the maximum administrative discretion possible to
avoid intrusive Federal oversight of State administration, and agencies
must adhere to special requirements for a regulation that preempts
State law. E.O. 13132 also sets forth the procedures that agencies must
follow for certain regulations with federalism implications, such as
preparation of a summary impact statement.
[[Page 56352]]
Accordingly, the Department has reviewed this WIOA-required NPRM
and has concluded that the rulemaking has no Federalism implications.
This NPRM has no substantial direct effects on States, on the
relationships between the States, or on the distribution of power and
responsibilities among the various levels of government as described by
E.O. 13132. Therefore, the Department has concluded that this NPRM does
not have a sufficient Federalism implication to warrant the preparation
of a summary impact statement.
E. Unfunded Mandates Reform Act
UMRA directs agencies to assess the effects of Federal regulatory
actions on State, local, and Tribal governments, as well as the private
sector. A Federal mandate is any provision in a regulation that imposes
an enforceable duty upon State, local, or Tribal governments, or
imposes a duty upon the private sector that is not voluntary.
Following consideration of the above factors, the Department has
concluded that this NPRM contains no unfunded Federal mandates, which
are defined in 2 U.S.C. 658(6) to include either a ``Federal
intergovernmental mandate'' or a ``Federal private sector mandate.'' No
additional burden related to reporting the effectiveness in serving
employers performance indicator is being proposed to be placed on
State, local, and Tribal governments, as this information already is
being collected and reported on. Furthermore, the reporting is a
contingent to receiving Federal program funding. Any associated
reporting mandate cannot, therefore, be considered ``unfunded.''
Because the decision by a private training entity to participate as a
provider under a WIOA core program is purely voluntary, the information
collection burden does not impose a duty on the private sector that is
not voluntarily assumed.
F. Executive Order 13175 (Indian Tribal Governments)
The Departments of Labor and Education reviewed this proposed rule,
as well as the Joint Effectiveness in Serving Employers NPRM published
concurrently with this NPRM elsewhere in this issue of the Federal
Register, under the terms of E.O. 13175 and DOL's Tribal Consultation
Policy (77 FR 71833 (Dec. 4, 2012)) and have determined that it would
have Tribal implications, because the proposed regulations would have
substantial direct effects on: one or more Indian Tribes; the
relationship between the Federal Government and Indian Tribes; or the
distribution of power and responsibilities between the Federal
Government and Indian Tribes. Therefore, DOL has prepared a Tribal
summary impact statement.
Prior to developing this proposed rule, the Department held two
events to consult with INA program grantees and representatives of
Tribal institutions about their experiences with the implementation and
operation of the effectiveness in serving employers performance
indicator. These two events consisted of a town hall meeting attended
both in person and virtually and a formal consultation webinar. The
town hall, entitled ``Town Hall Discussion: Effectiveness in Serving
Employers Performance Indicator,'' occurred on September 21, 2021, at
the 41st National Indian and Native American Employment and Training
conference.\25\ The consultation webinar, entitled ``Tribal
Consultation for WIOA Effectiveness in Serving Employers Indicator
Proposed Rulemaking,'' occurred on October 19, 2021.\26\ At the
consultation webinar, the Department provided an opportunity for
stakeholders to submit written feedback through DOL's Tribal
consultation email account by October 29, 2021.
---------------------------------------------------------------------------
\25\ NAETC, ``41st National Indian and Native American
Employment and Training Program,'' Sept. 20-23, 2021, <a href="http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf">http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf</a>.
\26\ DOL, ``Tribal Consultation for WIOA Effectiveness in
Serving Employers Indicator Proposed Rulemaking,'' <a href="https://www.workforcegps.org/events/2021/09/14/13/57/Tribal-Consultation-for-WIOA-Effectiveness-in-Serving-Employers-Indicator-Proposed-Rulemaking">https://www.workforcegps.org/events/2021/09/14/13/57/Tribal-Consultation-for-WIOA-Effectiveness-in-Serving-Employers-Indicator-Proposed-Rulemaking</a> (last updated Nov. 3, 2021); see also ``Tribal
Consultation; Workforce Innovation and Opportunity Act,
Implementation of the Effectiveness in Serving Employers Performance
Indicator; Notice of Tribal Consultation; Virtual Meeting,'' 86 FR
54244 (Sept. 30, 2021).
---------------------------------------------------------------------------
At the two events, the Department received feedback from the INA
community and the general public that established several areas of
interest concerning the definition of the effectiveness in serving
employers performance indicator for WIOA programs. These areas of
interest are summarized below. The Department did not receive any
written feedback through DOL's Tribal consultation email account. The
Department received one letter after the consultation period that
raised similar issues to those articulated at the consultation event
and summarized below. This comment was not considered due to the late
nature of its submission, though similar comments made during the
feedback sessions were considered.
Employer, Wage, or Position Changes
Many commenters expressed concern about impacts of individuals
changing employers for higher wages or different positions.
Specifically, several commenters asked how the Retention with the Same
Employer definition of the performance indicator would apply to
individuals who have continuous employment through the second and
fourth quarters, but with different employers. Some commenters
expressed concern that this definition of the performance indicator
would not consider individuals who advance to better employment
opportunities. One commenter expressed concern that the program would
be penalized if employees change employers.
Temporary, Seasonal, and Youth Employment
Many commenters expressed concern about how temporary jobs, such as
seasonal or contract-based employment, would be considered.
Specifically, one commenter gave an example of contractor jobs where
individuals may not stay with the same employer and instead change from
job to job, such as in construction. Additionally, another commenter
stated that employers that regularly lay off and then rehire employees
would affect outcomes.
A commenter asked if this measure applies to the INA youth program.
Another commenter expressed concern about the impact on performance of
limited-duration summer employment opportunities for high school
students within INA youth programs. The commenter also questioned DOL's
willingness to invest in developing a data collection and reporting
process for INA youth programs.
Other commenters expressed concern about how seasonal jobs would be
addressed and that certain areas have more seasonal employment than
other areas do. Another commenter stated that individuals who
participate in the program on a short-term basis while serving time
with the Department of Corrections and later return to a different
State may impact the performance indicator calculation. A different
commenter stated that many participating employers primarily provide
entry-level positions focused on gaining work experience.
Performance Indicator Calculation
Many commenters inquired about how the performance indicator is
calculated. One commenter asked a question in which the sound quality
of the audio was not clear. However, the subject-matter expert
interpreted the
[[Page 56353]]
question to ask if supplemental wages are considered. One commenter
stated that unemployment insurance (UI) records may not capture
individuals who are self-employed. Another commenter said that certain
States do not have access to UI information that would enable them to
calculate the performance indicator.
Many commenters suggested other ways to calculate the performance
indicator. Examples provided by one commenter included employer
satisfaction surveys, number of employers served, number of repeat
employers, and number of job fairs coordinated with employers. Another
commenter said they measure success when an employer enquires about
recent graduates to fill open positions. A different commenter stated
that they understood the options DOL considered for how to measure
effectiveness in serving employers to include how well programs have
assisted employers in hiring new employees through job fairs, work
experience to full[hyphen]time hires, pre[hyphen]screening of
candidates, and individual hiring events for specific employers.
Tribal Community Impacts
Some commenters had questions and comments about how the
performance indicator would specifically impact INA communities. One
commenter expressed the need for consideration of all Tribal
communities and their unique needs. The commenter stated that measures
used for all INA programs must not only satisfy the intent of the
performance indicator but also be meaningful, which is part of the
purpose of WIOA sec. 166. The commenter also suggested that grantees
should establish a work group within the NAETC to develop information
to share with Tribal leaders so that they have background and can
communicate what these performance indicators would mean for INA
programs.
Another commenter cited the DOL-commissioned third-party study of
the performance indicator, ``Measuring the Effectiveness of Service to
Employers,'' and questioned why some States with many INA participants
were not included in the pilot study. The commenter also asked if any
INA WIOA programs were included in the study. Additionally, a commenter
said that DOL is seeking support from Tribes on how to measure a
performance indicator they may not want.
Process Questions and Other Observations
Many commenters asked questions about the rulemaking process and
how the Department decided on the proposed definition of the
performance indicator. Some commenters asked if this performance
indicator is required. One commenter asked if the performance indicator
can be customized based on the grantee's status, for example with
different requirements for rural and urban programs. A different
commenter asked if DOL would decide after consultation with Tribes
whether or not to apply the performance indicator to INA programs.
Other commenters asked if the definition of this performance indicator
would be permanent or if it would be re-evaluated in the future.
Additionally, a commenter asked if they could review the draft rule
with others before it is published, when the proposed rule would be
published, and when the final rule would take effect.
A commenter asked if other performance indicator definitions have
been submitted for consideration, for example from the NAETC. Another
commenter stated that grantees with direct employer relationships
differ from grantees that work with American Job Centers to facilitate
employment for employers. Additionally, a commenter asked how grantees
can assist participants who are facing issues at a new employment site,
such as being picked on or treated unfairly, and whether it would be
appropriate to act as a mediator between the employer and the
participant.
Conclusion
The Department appreciates the valuable feedback received through
this Tribal consultation process and has considered this feedback
carefully in crafting this proposed rule and its planned
implementation, such as use of the waiver process outlined in TEGL No.
04-19, ``Waiver Authority for the INA Program and Implementation of
Additional Indicators of Performance,'' and discussed in Section III.A
of this document. The Department invites and encourages submission of
public comments that provide further information, including detailed
recommendations for program-specific alternatives for the effectiveness
in serving employers performance indicator, so that it may take this
information under further consideration when making determinations
regarding a final rule.
List of Subjects
20 CFR Part 684
Employment, Grant programs--labor, Indians, Reporting and
recordkeeping requirements.
20 CFR Part 686
Employment, Grant programs--labor, Job Corps.
20 CFR Part 688
Employment, Grant programs--labor, Youth, YouthBuild.
For the reasons discussed in the preamble, the Department of Labor
proposes to amend 20 CFR parts 684, 686, and 688 as follows:
PART 684--INDIAN AND NATIVE AMERICAN PROGRAMS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
0
1. The authority citation for part 684 continues to read as follows:
Authority: Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart D--Supplemental Youth Services
0
2. Amend Sec. 684.460 by revising paragraph (a)(6) to read as follows:
Sec. 684.460 What performance indicators are applicable to the
supplemental youth services program?
(a) * * *
(6) The percentage of participants with wage records in the second
quarter after exit who were employed by the same employer in the second
and fourth quarters after exit.
* * * * *
Subpart F--Accountability for Services and Expenditures
0
3. Amend Sec. 684.620 by revising paragraph (a)(6) to read as follows:
Sec. 684.620 What performance indicators are in place for the Indian
and Native American program?
(a) * * *
(6) The percentage of participants with wage records in the second
quarter after exit who were employed by the same employer in the second
and fourth quarters after exit.
* * * * *
PART 686--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INNOVATION
AND OPPORTUNITY ACT
0
4. The authority citation for part 686 continues to read as follows:
Authority: Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L.
113-128, 128 Stat. 1425 (Jul. 22, 2014).
Subpart J--Performance
0
5. Amend Sec. 686.1010 by revising paragraph (f) to read as follows:
[[Page 56354]]
Sec. 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
* * * * *
(f) The percentage of participants with wage records in the second
quarter after exit who were employed by the same employer in the second
and fourth quarters after exit.
PART 688--PROVISIONS GOVERNING THE YOUTHBUILD PROGRAM
0
6. The authority citation for part 688 continues to read as follows:
Authority: Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Subpart D--Performance Indicators
0
7. Amend Sec. 688.400 by revising paragraph (f) to read as follows:
Sec. 688.400 What are the performance indicators for YouthBuild
grants?
* * * * *
(f) The percentage of participants with wage records in the second
quarter after exit who were employed by the same employer in the second
and fourth quarters after exit.
* * * * *
Martin J. Walsh,
Secretary of Labor.
[FR Doc. 2022-19003 Filed 9-13-22; 8:45 am]
BILLING CODE 4510-FN-P
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</html>Indexed from Federal Register on September 14, 2022.
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