U. S. Department of Labor
Employment and Training Administration
Washington, D.C. 20210
CLASSIFICATION
JTPA/Waivers
CORRESPONDENCE SYMBOL
TD
DATE
April 1, 1997
TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 6-96
TO : ALL STATE JTPA
LIAISONS
ALL WAGNER-PEYSER ADMINISTERING AGENCIES
ALL STATE WORKER ADJUSTMENT LIAISONS
ALL ONE-STOP CAREER CENTER SYSTEM LEADS
FROM
: ROBERT S. KENYON
Acting Administrator for Regional Management
SUBJECT : Guidelines
for Implementing Job Training System Improvements through Waivers
of the Job Training Partnership Act (JTPA) and the Wagner-Peyser
Act
1. Purpose. To
transmit guidance for the development and submission of a request
for waiver of JTPA and Wagner-Peyser Act general
statutory/regulatory provisions.
2. References. The Department of Labor
Appropriations Act of 1997 (Public Law 104-208 sections 101(e)
and 105); Training and Employment Information Notice No. 11-96,
Statutory and Regulatory Waiver Authority of the JTPA and the
Wagner-Peyser Act.
3. Background. The Department of Labor
Appropriations Act of 1997, (Public Law 104-208) contains three
provisions relating to waivers:
a. general Statutory/Regulatory Waiver Authority for JTPA
& Wagner-Peyser;
b. the Work-Flex Partnership Demonstration Program; and
c. continuation of the existing waiver authority for the
State of Oregon.
These guidelines do not address the continuation of the Oregon
waiver provision or the Work-Flex Partnership Demonstration
Program. A separate TEGL will be issued on Work-Flex.
The Statutory/Regulatory Waiver provision gives the Secretary
authority to grant both statutory and regulatory waivers of JTPA
(Titles I-III) and Wagner-Peyser Act (Sections 8-10) and
RESCISSIONS
None
EXPIRATION DATE
OMB Approval 1205-0376, Expires 10/31/2000
contains "exclusions," i.e., provisions that may not
be waived. The general waiver authority is for a period of one
program year beginning July 1, 1997 and provides:
increased flexibility to States and local areas in
implementing reforms to the workforce development
system in exchange for State and local accountability
for results including improved performance.
an important opportunity for States and localities to
begin or continue to organize services into a
workforce development system through One-Stop Career
Centers and School-to-Work systems which enhance the
training and employment opportunities available to
adults and youth.
Individual Opportunity and Customer Choice. Empowering
participants who need employment and training
services with the resources and information needed to
make good choices.
Leaner Government. Replacing
separate programs with streamlined systems for youth
and adults, organized within the School-to-Work and
One-Stop systems.
Greater Accountability. Ensuring a
clear focus on results, not process, through mutually
agreed upon improved performance outcomes.
State and Local Flexibility.
Providing States, local communities and training
systems with the freedom to tailor programs to meet
real, locally determined needs.
Strong Private Sector Roles.
Ensuring that business, labor and community
organizations are full partners in system design and
quality assurance.
The employment and training community has been provided with
new authority to build a Workforce Development System. The
Department believes that effective use of the authority will
demonstrate Federal, State and local commitment to meeting the
needs of our joint customers.
Exclusions. Under the waiver provisions in
the 1997 Appropriations Act, the following JTPA requirements may
not be waived.
a. wage and labor standards;
b. worker rights, participation and protection;
c. grievance procedures and judicial review;
d. nondiscrimination;
e. allocation of funds to local areas;
f. eligibility;
g. review and approval of plans;
h. establishment and functions of service delivery areas
and private industry councils; and
i. the basic purposes of the act.
Requirements under the Wagner-Peyser Act relating to the
following may not be waived:
a. services to unemployment insurance claimants and
veterans;
b. universal access to basic labor exchange services
without cost to job seekers.
The Department is very interested in working with States to
use the statutory authority to make improvements in the workforce
delivery system. To this end, the Department wants the States to
know that it will actively consider specific requests for waivers
to remove both programmatic and administrative barriers: that
will result in improved services and outcomes; that will assist
the State and its local service delivery structure in
implementing workforce delivery system improvements; or that will
remove requirements, either program or administrative, that do
not add value to the organization or to the delivery of quality
services. DOL Employment and Training Regional Administrators are
available to discuss the provisions of the statute that may fall
within the above cited exclusions.
The Department does not intend to use this process to waive
other legislation which extends beyond the authority provided in
Public Law 104-208, non-JTPA regulations, or Office of Management
and Budget Circulars which apply to the State Employment Security
Agencies. Therefore, should a request be received for waivers
which extend beyond the existing authority, it will not be
granted. In a similar manner, the Department cannot entertain
requests for retroactive changes in program requirements.
Retroactive approval for changes in financial reporting
requirements may be granted.
6. Policy. In
developing waiver requests, States should take into consideration
that the Department will not entertain the granting of waivers
which result in the commingling of funds or which undermine
accountability, as discussed below. In addition to the exclusions
set forth in section 5 of this TEGL, the following significant
policy considerations will affect the Department's decision on
granting waivers.
a. Prohibition on Commingling of Funds.
One of the purposes that could be served with the waiver
authority is to make programs seamless from the participant's
perspective. However, it also should be noted that the waiver
provisions do not authorize the commingling of funds from
separate appropriations. General appropriations law (31
U.S.C. 1301 (a)) requires that appropriations be applied only
to the objects for which the appropriations were made unless
the law otherwise provides. In this case, the waiver
provisions do not provide authority to merge (as opposed to
transfer) program funds. In fact, since eligibility is not
waivable, for example, funds appropriated to provide
assistance to dislocated workers under Title III would have
to be expended for that purpose, even though the particular
requirements relating to the form of such assistance could be
waived. Therefore, while the Department is committed to
assisting States and SDAs in minimizing accounting and
reporting burdens, the waiver authority does not permit the
Department to relieve these entities from the responsibility
of assuring that each appropriation is only expended for its
intended purpose. The funds for Titles II-A and III would
still have to be accounted for separately.
b. Disadvantaged Youth. The Department
wishes to remind the States of the importance of serving
economically disadvantaged youth during the summer months.
Given the transfer provisions, commingling of funds does not
present an issue between the Title II-B and Title II-C
programs. However, the Department emphasizes the importance
of maintaining a summer jobs component to serve economically
disadvantaged youth during the summer months.
c. Accountability. To ensure programmatic
and fiscal integrity, it is extremely important that there be
both adequate oversight and complete, consistent reporting.
Reporting must be sufficient to provide: a record of
individual need; the programmatic and financial outcomes
achieved reflecting, at a minimum, a core set of measures;
and the resultant indication of success and improvement
traceable from an established baseline, using public use
quality data. Monitoring is key to ensuring that the goals
and objectives of both the program and of any waivers granted
will be achieved. While the Department may entertain waiver
requests that pertain to reporting, it will not approve any
such request that undermines the ability to account to the
Congress for fundamental programmatic and financial outcomes
or the ability to make basic comparisons in the performance
among States. Also, the Department expects that State waiver
requests will include plans to monitor performance under the
waiver(s) in order to demonstrate to the Secretary that the
anticipated goals and objectives described in the State plan
have been achieved.
7.Waiver Elements.
Submission of waiver requests are voluntary. The Appropriations
Act requires the State to provide a minimum amount of information
regarding the waiver requested (see Item 9.b. below). The "Waiver
Plan" is the State's request to waive certain
statutory or regulatory requirements. Upon approval of the
State's request for waiver, the "Waiver Plan"
will be treated as a formal modification to GCSSP required by
section 121 of JTPA, the State's Job Training Plan (JTP) under
Title III, or the Wagner-Peyser Plans, whichever is applicable.
All provisions approved for waiver will be incorporated into the
State's Grant Agreement as appropriate. This agreement will be
signed by both the Governor and the DOL and will include a
provision that indicates that the plan (GCSSP, State JTP for
Title III, or Wagner-Peyser) is modified as specified in the
attached waiver plan.
8.Duration and Applicability of
Waiver. The waivers are for one year, starting on
July 1, 1997, through June 30, 1998 and will apply to funds
available for expenditure in program year 1997. This includes
formula available funds from PY 1995, 1996 and 1997. While the
ETA's statutory/regulatory waiver authority is limited to one
year, it is anticipated that, if the authority is extended by the
Congress, and the States have used their authority prudently and
demonstrated that they are fulfilling the terms of the State
plan, then the waivers would be continued, as has been the case
in other similar instances.
a. Development of Waiver Request. The
Employment and Training Administration (ETA) Regional Offices
will be responsible for providing guidance and assistance to
the States as they are developing their waiver requests,
answering questions about the ETA waiver policy and advising
the Assistant Secretary regarding approval of the waiver
request(s). It is expected that
the Regional Offices will have continuing dialogue with their
States during the developmental stages of waiver requests.
The Regional Offices are available to review and provide
comments on draft proposals and provide assistance in
preparation of the waiver plan submission.
The Department intends that the process for development of
waivers will be in partnership with the State. To this end,
States are invited to engage Regional Offices in the
development of their waivers. The ETA Regional Administrators
will make themselves and their appropriate staff available to
consult with States and to provide technical assistance as
necessary. Upon completion of the waiver request, the
Governor will submit two copies of their waiver request to
the appropriate Regional Administrator. As an alternative, we
encourage Governors to submit the proposal in electronic form
in order to reduce paperwork.
b. Minimum Requirements.
The statute requires the Secretary to make a determination of
how a State's request to waive certain statutory and
regulatory requirements would remove impediments and improve
the State's or local service delivery areas's ability to
achieve its goals. It also requires the State to include a
summary description of the programmatic or administrative
goals to be achieved in order to overcome the barrier.
The Governor must provide at least the minimum information
indicated below in order for ETA to make an informed decision
on whether to approve the requested waiver. Where
documentation (e.g., statistical information, reports, focus
groups, customer surveys) is available, it should be provided
to corroborate the statements made in the waiver request. In
the absence of such data, the State is expected to provide a
substantive discussion and examples of barriers and proposed
solutions which support the proposed removal of the
requirements.
(1) State and Local Goals. Provide an
introductory statement on the workforce development system
that the State is attempting to build and how the waivers
relate to that broader vision, including the accountability
framework. The goals provided should take into consideration
the principles articulated above.
(2) Summary of Waiver Request(s).
Describe the specific waiver(s) requested (including the
legislative and/or regulatory citations), the barrier which
the request addresses, and the outcome that will be achieved
by the granting of the waiver. In addition, the request
should identify similar State requirements and how they would
be waived.
(3) Impact of Waivers/Outcomes and Performance
Targets. Describe the anticipated outcomes and/or
performance improvements, including qualitative and/or
quantitative outcomes to be achieved. Specify how success
and/or progress on outcomes will be measured or determined,
including how the baseline will be established and what data
sources will be used.
(4) State and Local Service Delivery Areas Actions
Taken to Remove Barriers. Describe specific actions
taken or to be taken by the State or local service delivery
areas to remove state and local barriers (e.g., policies,
guidelines, rules and regulations).
(5)Comments Process. Describe
the consultation process within the State, including the
process for review and comment on the State's waiver request,
per section (c) below.
(6)Monitoring. Describe
the process the State will use to monitor the implementation
and impact of the waiver. Specify how the State will evaluate
progress and continuous program improvement fostered by the
approved waiver and the corresponding programmatic and
operating systems, i.e., reports and analysis. Specify how
outcomes/progress will be reported to DOL and how the
integrity of public funds will be ensured.
c. Public Consultation and Comment Process.The Department expects the State to involve the
local elected officials, PICs, community based organizations
and other stakeholders in the process when developing the
plan which accompanies the waiver application. Consistent
with the general waiver request, the State must provide
interested parties an opportunity to review and comment on
the proposed waiver. At a minimum, the law requires that the
following groups be afforded the opportunity to review and
comment on the proposed waiver request: (1) the State Job
Training Coordinating Council; (2) each house of the State
legislature; (3) local elected officials and Private Industry
Councils; (4) appropriate local educational and other public
and private non-profit agencies in the service delivery
areas; and (5) labor organizations in the area which
represent employees having the skills in which training is
proposed. If a State is a One-Stop implementation grantee, it
should involve all One-Stop participating agencies in the
waiver development process. In the case of a waiver request
concerning Title III, the State is expected to consult with
appropriate labor organizations.
Also, the proposed plan must be made reasonably available
to the general public through such means as public hearings
and local news media. All comments received on the waiver
request should be forwarded with the waiver request to the
Department of Labor.
d. Timeframe for Response.
The Department will make every effort to act upon proposals
by July 1, 1997, if they are received by April 30. In
general, the Department intends to respond to most waiver
requests within 60 days from the date of receipt. Each waiver
request will be evaluated on its own merits. Where necessary,
the Department may seek further discussions or negotiations
on a waiver request, either with regard to changing certain
aspects of the request or with regard to the quality of the
proposed improvements or outcomes. In order to provide a
prompt response, the Department may respond with a partial
approval in those instances where a request contains multiple
parts and further information or clarification is required on
one or more parts of the request.
In the spirit of a continuing partnership to improve the
workforce development system, the Department recognizes that
the need for additional waivers may become apparent to the
State
during the implementation of its plan. Therefore, States
may submit a request for an additional waiver as the need
arises, following the process described in this TEGL.
10. Impact of New Statutory/Regulatory Waiver
Authority on Current Regulatory Waiver Authority Promulgated at
20 CFR 627.201:
As indicated earlier in this TEGL, DOL's 1997 Appropriations
Act provided authority for the Secretary to grant waivers, within
limits, of statutory and regulatory requirements for titles I-III
of the JTPA and for Sections 8-10 of the Wagner-Peyser Act. Until
the enactment of the JTPA Amendments and the promulgation of the
September 2, 1994 Final Rule implementing those amendments, the
Secretary did not have the authority to waive either the Act or
regulations under either JTPA or Wagner-Peyser. The Final Rule
included a provision for the Secretary of Labor to waive certain
administratively imposed requirements as set forth at 20 CFR
627.201. This limited waiver authority did not extend to
statutory requirements or statutorily-based regulatory
requirements, which could not be waived. This authority also did
not cover Wagner-Peyser provisions.
The new JTPA statutory and regulatory authority will have no
impact on waivers which have been granted under the regulatory
authority codified at 20 CFR 627.201. Waivers previously granted
under the old regulatory waiver authority will continue to remain
in effect until such time as the Governor decides that the waiver
is no longer necessary, or the duration of the granted waiver
expires, whichever comes first.
It is conceivable that a State may still wish to request a
waiver under the authority outlined at 20 CFR 627.201. States
should clearly indicate under which authority (i.e., JTPA
regulations or DOL Appropriations Act) they are requesting a
waiver. Failure to do so can slow down the review and
approval/disapproval process.
11. Action Required.
States are expected to fully involve local areas in the
development of the waivers. They are also requested to distribute
the information on both the Federal process described in this
TEGL and the State-established waiver process to their State
staff (both JTPA and ES), the SESA local offices, the JTPA
SDAs/SSAs, and other interested stakeholders throughout the
State.
12. OMB Reporting Burden.
Persons are not required to respond to this collection
of information unless it displays a currently valid OMB control
number. Public reporting of information is estimated to average
80 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden
estimate or any other aspect of this collection of
information, including suggestions for reducing this burden to
the Office of IRM Policy, U.S. Department of Labor, N-1301, 200
Constitution Avenue, N.W., Washington, D.C. 20210 (Paperwork
Reduction Project 1205-0376).
13.Inquiries and Comments.
Requests for technical assistance or other inquiries
should be directed to the Regional Office (see Attachment for
list of Regional liaisons).
14. Attachment. List of Regional
Liaisons on Waiver Requests
