Ms. Elizabeth A. Nelson
Deputy Director
Department of Employment
Employment Resources Division
P.O. Box 2760
Casper, Wyoming 82602

Dear Ms. Nelson:

I am pleased to offer Job Training Partnership Act (JTPA) waiver approvals to the State of Wyoming in response to Governor Geringer's request. This could not have been done without the vision, strategy and planning that was produced by the local, State, and Federal (national and regional staff) partnership, of which it has been our pleasure to be a part. I thank you for your and your staff's hard work and patience.

The State's request was considered under the special appropriations act provision granting the Secretary of Labor authority to waive certain requirements of Titles I-III of JTPA, and Sections 8-10 of the Wagner-Peyser Act. This authority was granted to the Secretary in the Department of Labor's (DOL) Appropriation Act for 1997 (Pub. L. 104-208, section 101(e)).

This is a one-year authority and applies only to JTPA funds available for expenditure during the period July 1, 1997 through June 30, 1998, and, therefore, could affect the JTPA Grant Agreements for Program Year (PY) 1997, 1996 and 1995 funds, depending on fund availability during the waiver period. Enclosed you will find an overview and our disposition with regard to each of your requests, as well as copies of our formal response to the Governor. Enclosed also is a grant modification (3 copies) that will require signature by the Governor or the State's JTPA signatory official. Please check off the applicable JTPA grant agreements (PY 97, 96, 95) that the statutory waiver modification will affect. We ask that the documents be signed by the appropriate official and returned to the Grant Officer at the address indicated below:

Mr. James C. De Luca
U.S. Department of Labor - ETA
Office of Grants and Contract
Management - DAA
200 Constitution Avenue, N.W,
Room - South 4203
Washington, D.C. 20210

Upon execution by the appropriate USDOL grant officer, we will return an executed copy for the State's official files. This modification is effective September 30, 1997.

We applaud Wyoming's efforts to focus on a workforce vision and the development of a strategy to meet that vision. Waivers, of course, are only a small part of this strategy. We will continue to work with Wyoming to reach these goals. We expect that these reforms will continue to reflect the Department of Labor's guiding principles: individual opportunity and customer choice; leaner government; greater accountability; State and local flexibility; and strong private sector roles.

This is a living document. As we continue our partnership be sure to let us know if additional waivers or other action would be beneficial.

Sincerely,

John E.(Skip)Sweeney
Acting Regional Administrator

Enclosures

OVERVIEW

The applicable JTPA Grant Agreements between the State of Wyoming and the Department will be modified upon execution of the enclosed Modification. Unless specified otherwise these waivers are authorized for the period beginning July 1, 1997 and ending June 30, 1998. In exchange for these waivers the State is expected to meet the agreed upon performance improvements.

Requests to waive program design components were honored except in the case where the request conflicted with the Secretary's statutory waiver authority, the Department's guiding principles for waivers and the One-Stop Career Centers and School-to-Work Systems principles. Administrative waivers were granted in such a manner as to maintain fiscal responsibility and accountability.

These waivers are based upon the Governor's request, meetings and discussions among staff, and the Department's familiarity with the program in Wyoming. They do not necessarily constitute an endorsement of the examples in Wyoming's waiver request. In several instances, the Department would recommend against the interventions proposed. For example, most research would caution against general use of stand-alone work experience, job search or on-the job training interventions, particularly for youth without a high school diploma or its equivalent. The Department continues to strongly encourage educational components for youth participants.

WAIVERS

A. The State's request to eliminate subsets of programs for titles II-B and II-C and combine into one year-round youth program has not been granted because it is contrary to the prohibition on commingling of appropriated funds. The Training and Employment Guidance Letter (TEGL) No. 6-96, dated April 1, 1997, clearly indicated that waiver requests for commingling of funds would not be granted.

B. As requested, the Secretary waives the youth OJT wage requirement at JTPA § 264(d)(3)(C)(i)(I) and the related regulations at 20 CFR 628.804(j)(1)(i), when indicated as appropriate in the objective assessment and individual service strategy for youth on-the-job training. The State shall assure that the OJT positions for youth have substantial training content and that the training time is correctly determined. In addition, the State should issue policies to assure that youth OJT opportunities reflect positions with career potential and avoid the introduction of abuses in the development of youth OJT slots in low wage, low skill positions which precipitated the enactment of the provisions for which this waiver is requested.

C. As requested, the Secretary waives the prohibition on stand-alone work experience for both youth and adults, in instances when an individual service strategy substantiates its use as appropriate, by waiving JTPA § 204(c)(2)(B)(ii) and 20 CFR 628.535(b)(2) and (c)(1)(ii) and applying JTPA § 264(d)(3)(A) and (B) as if they read "Work experience shall be accompanied by additional services unless the individual service strategy demonstrates such additional services are not warranted." Additionally, the combination requirements at 20 CFR 627.245(d) and 628.804(e) and (f) -- only as they apply to work experience -- are waived. We note that, with the exception of work experience, the State has not asked for a waiver of other combined services requirements, which continue to apply. We wish to point out to the State that there is research suggesting that work experience provided in a stand-alone mode is not as effective as when combined with other needed services and that this authority should be used sparingly.

D. As requested, the Secretary waives the requirements at JTPA § 141(k) that prohibit subsidized employment with private for-profit employers, to permit work experience with private for-profit employers, in cases where the objective assessment and individual service strategy indicate it is the appropriate intervention when:

1. It is used in the private-for-profit sector, as in the public and private non-profit sector for those participants who need to build and demonstrate labor market skills or undertake career exploration, in jobs for which there is a demand in the community and which are within the skills of the participant. This authority shall be administered so as to preclude the reintroduction of abuses where participants are in low skill, low wage paying jobs as a subsidy to the employer;
   
   
2. It is used when on-the-job training is not available or is inappropriate;
   
   
3. The worker protections under JTPA § 143 are in place, particularly health and safety standards and workers' compensation, and no displacement or reduction in hours of regular employees occurs; and
   
   
4. It is provided as a temporary activity, of limited duration of no more than 500 hours.

Private sector work experience may be an effective strategy for TANF recipients and welfare-to-work participants as well as for some of the disadvantaged population. However, its appropriateness for most eligible dislocated workers would appear to be extremely limited. Therefore, we recommend the State implement a State-wide policy which addresses the target populations, including dislocated workers, for which this strategy will be used. The policy for dislocated workers should contain a requirement that the worker's individual assessment must justify such a placement over OJT. We wish to point out to the State that there is research suggesting that work experience provided in a stand-alone mode is not as effective as when combined with other needed services and that, as suggested in the request, this authority will be used sparingly.

E. The Secretary waives the requirements of 20 CFR 627.240(b)(3), which provides maximum time limits during on-the-job training for part-time workers, provided the part-time training time during OJT is correctly determined, taking into consideration the necessary occupational skills, and the time required to acquire such skills, for the participant to function in the job for which the OJT is contracted.

F. The State's request to waive the eligible dislocated worker definition for self-employed individuals at JTPA § 301(a)(1)(D) has not been waived. The Secretary does not have authority to waive eligibility requirements; however, we believe that the flexibility authorized by the statute and the JTPA regulations at 20 CFR 631.3(c) gives the Governor the authority to define the individuals to be served upon these provisions consistent with the requirements and needs of the State. For example, the situations of "general economic conditions" contained in the regulations at 20 CFR 631.3(d) is not all inclusive but provides the opportunity for the Governor to expand upon the definition. Also, we believe the Governor's authority cited in 20 CFR 631.3(e) -- to establish procedures to determine the eligibility to participate, including for self-employed farmers, ranchers, professionals, independent tradespeople and other business persons formerly self-employed but presently unemployed -- provides the type of flexibility required to serve farmers who lost their businesses due to lack of sufficient bank credit to keep the enterprise operational. The type of information that the State requires to substantiate a self-employed individual's unemployment would appear to vary depending upon the individual circumstances; therefore, we believe that the State and/or local communities are in the best position to make this determination.

The same principle applies to the "natural disaster" eligibility requirement. The regulations at 20 CFR 631.3(f) authorize the Governor to establish procedures to identify individuals permanently dislocated from their occupations or fields of work, including self-employed individuals. The listing of possible natural disasters include but is not limited to any "hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, drought, fire, or explosion." The Department will be happy to work with the State to address any issues that have not been identified.

G. The request to waive the needs-related payment eligibility requirements at JTPA § 314(e)(1) for dislocated workers has not been granted. Pursuant to the eligibility requirement exclusion contained in the Appropriation Act of 1997, JTPA § 314(e)(1) is not waived nor is 20 CFR 631.20(b), and shall apply to dislocated workers in order to receive needs-related payments while they participate in training or education. The retention of this eligibility requirement also preserves the policy principle of early intervention and that training is most effective when enrolled early in the adjustment process. Therefore, in order to be eligible for needs-related payments, a dislocated worker must be enrolled in training by the end of the 13th week of the worker's initial unemployment compensation benefit period (following title III qualifying layoff), or if later, the end of the 8th week after an employee is informed that a short-term layoff will in fact exceed six months. This also means that JTPA § 314(e)(2) is not waived and neither is 20 CFR 631.20(c) or (d).

The Secretary will, however, consider an alternative definition of "enrolled in training or education" at 20 CFR 631.20(b)(2) to be used only in extraordinary circumstances if Wyoming wishes to propose such a policy. Any alternative policy should preserve the principle that training is most effective if individuals are enrolled in training early in the adjustment process and take into account the eligibility provisions which permit workers to receive assistance, including education or training, prior to layoff..

H. The Secretary will apply the definition of "family income" in 20 CFR 626.5 such that ". . . . The Governor may, for the purposes of determining income eligibility for services under title II of the Act, exclude up to 50 percent of Social Security and Old Age Survivors' Insurance benefit payments. . . from the definition of family income." This administrative regulatory waiver is granted under the provisions of 20 CFR 627.201 for a period of four years from the effective date of this Grant Modification.

I. The Secretary waives JTPA §§ 108(b)(4)(B) and 315(a), and (b) and 20 CFR 627.445(a)(1)(i) and (a)(2)(i) and 631.14(a) and (b), eliminating the non-administration cost limitations for titles II and III [except for national reserve account (NRA) grants]; the 20% administration limitation for titles II-A and II-C, at JTPA § 108(b)(4)(A), will remain in effect; and the 15% limitation for title III, at JTPA § 315(c), as well as the 15% limitation for title II-B, at JTPA § 253(a)(3) and 20 CFR 627.445(b)(3), will be waived and replaced by the same 20% administration limitation as for titles II-A and II-C at JTPA § 108(b)(4)(A). The provisions at § 108(b)(1) and (c), and all references in the JTPA regulations that address the cost limitations under titles II-A, II-B, II-C, and III [except for NRA grants] shall refer only to the 20% administration cost limitation. The Secretary will apply JTPA § 108(b)(2) and (3) and 20 CFR 627.440(b), (c)(1) and (d) and 631.13(a)(1) to reduce the number of cost categories to two: Administration and Program Costs. The costs of Administration shall be those defined at 20 CFR 627.440(d)(5) for title II and 631.13(f) for title III. Program Costs will consist of all other costs including those defined at 20 CFR 627.440(d)(1), (2), (3), and (4) for title II and at 631.13(c), (d), and (e) for title III. The costs of Rapid Response activities identified at JTPA § 314(b) and 20 CFR 631.13(b) shall continue to be separately reported. Reporting instructions for the two cost category reporting method have been developed and are attached for use by the State.

J. As requested, the Secretary waives the requirement of the JTPA regulations at 20 CFR 627.440 (b)(3), (4), (5), (6), (7), (8) and (9) for separate planning, control and charging of expenditures for eighty percent (80%) of the eight percent (8%) education coordination and grants set-aside program and for the five percent (5%) older worker set-aside program. Because the State of Wyoming operates as a single SDA State and because of the small dollar level of funds actually set aside for these programs in the State of Wyoming, the separate tracking and reporting will not be required for these programs. The State agrees that it will continue to use the 5% older worker funds under Title II-A to serve the target older worker population. The State also agrees to use the JTPA § 123 funds to provide services similar to the intended school-to-work services, literacy and life long learning services, and other appropriate educational services for youth under Title II-C. To accomplish this the current transfer authority will permit the Title II-A funds intended for JTPA § 123 use to be transferred to Title II-C. To ensure that the same level of services continue to be provided for activities under JTPA § 123, the State continues to be required to provide a dollar for dollar match for the level of federal funds that, without this waiver, would be used for educational activities under JTPA § 123 of the Act.

J. The State's request to waive the requirement, "are eligible for or have exhausted their entitlement to unemployment compensation," of the definition of "eligible dislocated worker" at JTPA § 301(a)(1)(A) has not been granted. Pursuant to the eligibility requirement exclusion contained in the 1997 DOL Appropriations Act, the Secretary does not have the authority to waive eligibility requirements of JTPA. However, DOL believes that current regulatory provisions provide authority to serve workers as soon as they have received a notice of layoff under JTPA § 301(a)(1)(A) without the need for a waiver. 20 CFR 631.3(a) states, in part--

"For the purposes of determining eligibility under section 301(a)(1)(A) of the Act, the term 'eligible for' unemployment compensation includes any individual whose wages from employment would be considered in determining eligibility for unemployment compensation under Federal or State unemployment compensation laws."

The Department believes that this permits services to workers as soon as they receive an individual notice of layoff (but are unlikely to return to previous industry or occupation), or to workers who have been laid off but who were not determined to be eligible for any unemployment compensation (including railroad insurance). In keeping with the principle of early intervention, and based upon research that shows that workers are most successful in returning to work quickly when they receive early readjustment services--including retraining, we concur with the State that workers should not be required to delay the receipt of services until they meet a State's definition of "long term unemployed" even when that definition is relatively short-term, (i.e., 15 weeks). Further, we point out that JTPA § 314(h) authorizes retraining for eligible dislocated workers determined to be eligible under JTPA § 301(a)(1)(B) 180 days (6 months) prior to the scheduled closure, and most other services as soon as the announcement occurs.

K. As requested, the Secretary waives the requirement of the JTPA regulations at 20 CFR 627.440 (b)(1), (2) and (10) for separate planning, control and charging of expenditures for the five percent (5%) State administration and program management set-aside, the five percent (5%) incentive grants, capacity building and technical assistance set-aside, and twenty percent (20%) of the eight percent (8%) education coordination and grants set-aside. Because the State of Wyoming operates as a single SDA State and because the activities performed under these set-aside programs are the responsibility of a single administrative entity, the separate tracking and reporting will not be required. The State agrees that it will continue to provide for the administration and management of the program, will provide incentive grants when appropriate, will provide any needed technical assistance and engage in any necessary capacity building activities, and will continue to facilitate coordination of education and training services for eligible participants.

The State's request for a waiver of the provision at 20 CFR 627.440(c)(2) has not been granted. This regulation permits the State to combine the Title II-A and II-C funds for incentive grants and to account for these funds without regard to cost categories or limitations. Also, the State has been granted waivers that eliminate the cost limitations. Thus, there is no purpose to be served by waiving the provision

L. The State's request to waive the obligation basis for title II reallotment and reallocation provisions at § 109(b)(2) has not been granted. This appears to be excepted from the Secretary's waiver authority under the "allocation of funds to local areas" exclusion in the DOL 1997 Appropriations Act, and, therefore, is not waivable. Furthermore, this provision ensures that JTPA funds are expended in a timely manner, and where they are most needed and is not waived for these reasons as well.

M. It is not clear that the Secretary has authority to waive her statutory responsibilities for formula allotment and reallotment, including the requirements under JTPA § 303 for the recapture and reallotment of unexpended Title III formula funds. Moreover, except as described below, the State's request to waive JTPA § 303(b) and 20 CFR 631.12(a) is not approved for the following policy reasons:

• It is the Secretary's responsibility to judiciously manage scarce federal resources nationally, and to ensure that funds are allotted and reallotted to States where they are most needed. The fluidity of movement of dislocated workers within and outside of traditional labor markets; the unpredictability of most layoffs; the ability for workers to access reemployment services quickly in order to maintain the principle of early intervention; and the access of eligible dislocated workers to JTPA services regardless of where they reside increase the need to move funds within the system.
  
  

• Each Governor has a similar requirement under JTPA § 303(d) to obligate and deobligate formula funds, at both the State and Substate area levels, to permit the funding to be available where it is most needed within the State--and to preclude the necessity for the Secretary to recapture funds from a State. In addition, there are several safety nets in place for ensuring that Title III resources are available where and when they are needed:
  
  
  • a Governor may retain up to ten percent of a State's annual allotment for allocation to Substate areas based upon need (JTPA § 302(c)(2));
    
    
  • a Governor may utilize a portion of the State's reserve funds (up to forty percent of annual allotment) as a discretionary allocation to Substate areas to provide additional assistance to areas that experience substantial increases in the number of dislocated workers (JTPA § 302(c)(1)(E));
    
    
  • a Governor may request Secretary's National Reserve funds to supplement resources that are available in a State to provide services resulting from mass layoffs, closures, natural disasters, etc. (JTPA § 323); and
    
    
  • a Governor may request from the Secretary additional financial assistance for the State's and Substate areas' formula programs (JTPA § 323(a)(7)).

As requested, however, the Secretary waives for a period of four years the regulatory provision at 20 CFR 631.12(a)(1)(ii). This will permit the State to expend title III funds in the year of allotment plus two following years, provided that it meets the eighty percent expenditure requirement in the year of the allotment. Also, DOL believes a State's policy for recapture and reallocation of title III funds within a State can accommodate plans to serve dislocated workers who require assistance across program years.

N. As requested, the Secretary waives the provisions at 20 CFR 627.465(e)(1) and (2) of the JTPA regulations for personal property procured before July 1, 1993. The State agrees that the accountability, records retention, use and disposition requirements of 20 CFR 627.465(a) - (d) shall apply to all JTPA personal property. This administrative regulatory waiver is granted under the provisions of 20 CFR 627.201 for a period of four years from the effective date of this Grant Modification.

O. In consideration of the waivers contained in this grant modification, the State agrees to a performance improvement of four percent (4%) at the State level measured at the conclusion of Program Year 1997 using actual performance in PY 1996 as the baseline for improvement. Performance improvements will apply to all the Secretary's performance measures or to their approved equivalents, for titles II-A, II-C, and III. The State will take into account the performance improvement targets in determining the receipt of title II incentive grant awards for PY 1997. In considering whether the State has attained the agreed- upon performance improvement for PY 1997, the Department will apply the Secretary's Adjustment Models, exclusive of Governor's Adjustments, to the performance improvement goals. Program Year 1996 and Program Year 1997 performance will be calculated in the same way for both years.

The Standardized Program Information Report (SPIR) instructions in Training and Employment Information Notice 5-93, Change 1 (dated June 23, 1994), as modified by Training and Employment Information Notice 5-93, Change 2 (dated January 24, 1997), remain in effect where not specifically waived or modified in this Agreement. Also in effect unless specifically waived are the Performance Standards Status Summary Report requirements put forth in Training and Employment Guidance Letter 2-95 (dated August 10, 1995). This requires Governors to report each SDA's final standard and actual performance for each of the Secretary's title II core standards, with required technical assistance plans and reorganization plans attached.

These waivers are open for modification and the Department will also entertain additional requests for waivers during this program year. These waivers apply to the title II and the title III formula programs. However, ETA will consider requests to apply specific waivers to individual title III Secretary's NRA grants which are active during Program Year 1997. In addition, ETA will consider requests to incorporate specific waivers into new individual NRA grants, as appropriate.