ETA
Final Rules
Apprenticeship Programs, Labor Standards for Registration, Amendment of Regulations
[ 10/29/2008]
[ PDF]
FR Doc E8-24917
[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Rules and Regulations]
[Page 64401-64434]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc08-21]
[[Page 64401]]
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Part II
Department of Labor
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Employment and Training Administration
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29 CFR Part 29
Apprenticeship Programs, Labor Standards for Registration, Amendment of
Regulations; Final Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
29 CFR Part 29
RIN 1205-AB50
Apprenticeship Programs, Labor Standards for Registration,
Amendment of Regulations
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL or Department) is issuing this
final rule to update regulations that implement the National
Apprenticeship Act of 1937. 29 U.S.C. 50. DOL issued a notice of
proposed rulemaking (NPRM) on December 13, 2007, outlining proposed
updates to labor standards, policies and procedures for the
registration, cancellation and deregistration of apprenticeship
programs, apprenticeship agreements, and administration of the National
Apprenticeship System. 72 FR 71020, Dec. 13, 2007.
DATES: Effective date: The final rule will become effective December
29, 2008.
FOR FURTHER INFORMATION CONTACT: John Ladd, Administrator, Office of
Apprenticeship, 200 Constitution Avenue, NW., Room N5311, Washington,
DC 20210, e-mail ladd.john@dol.gov; Telephone (202) 693-2796 (this is
not a toll-free number) or (877) 889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION: This preamble is divided into three
sections. Section I provides general background information on the
development of the final rule. Section II discusses the comments and
regulatory changes in the final rule. Section III covers the
administrative requirements for this final rule as mandated by statute
and executive order.
I. Background
On December 13, 2007, the Department published an NPRM (72 FR
71020, Dec. 13, 2007) proposing to revise the regulations that
implement the National Apprenticeship Act of 1937. We initially invited
comments for a 60-day period through February 12, 2008. Several
commenters submitted requests for an extension of the comment period.
In response, we published a notice (73 FR 7693, Feb. 11, 2008)
extending the comment period by 30 days. The comment period closed on
March 12, 2008.
Unique, individual comments received during the comment period
following publication of the NPRM have been posted on
www.regulations.gov. Although we considered all comments, duplicate
copies of comments were not posted.
The National Apprenticeship Act of 1937 authorized DOL to formulate
and promote the furtherance of labor standards necessary to safeguard
the welfare of apprentices, to extend the application of such standards
by encouraging their inclusion in contracts of apprenticeship, to bring
together employers and labor for the formulation of programs of
apprenticeship, and to cooperate with State agencies engaged in the
formulation and promotion of standards of apprenticeship.
The Department promulgated regulations for implementing the
National Apprenticeship Act in 1977. The regulations govern the
National Apprenticeship System in which the Department, State agencies,
industry leaders, employers, employer associations, labor-management
organizations (primarily consisting of labor organizations and
employers), and educational institutions collaborate, develop, operate,
and oversee apprenticeship programs that draw on the skills and
knowledge that business and industry needs from its employees, to
ensure that apprentices develop up-to-date and relevant skills. In the
30 years since, the Department and its partners in the National
Apprenticeship System have recognized that technological advances,
demographic changes, and globalization have significantly altered the
context in which apprenticeship programs operate. The Department and
its partners recognize that for registered apprenticeship to keep pace
with these changes, and to continue apprenticeship's vital role in
developing a skilled, competitive workforce, the regulatory framework
for registration of apprenticeship programs and administration of the
National Apprenticeship System must be updated. For example, many
program sponsors have requested more flexibility in the requirements
for provision of related technical instruction. Other program sponsors,
particularly in industries that have not traditionally used registered
apprenticeship, have sought flexibility in the requirements for length
of time in the on-the-job learning component so that apprentices could
progress toward program completion based on demonstration of
competencies. The Government Accountability Office's August 2005
report, ``Registered Apprenticeship Programs: Labor Can Better Use Data
to Target Oversight,'' and the Office of Management and Budget's
Program Assessment Rating Tool (PART) review of Registered
Apprenticeship, have emphasized the need to improve program quality and
accountability in the National Apprenticeship System.
The December 13, 2007 NPRM proposed to revise 29 CFR part 29 based
on these developments and in consultation with the Advisory Committee
on Apprenticeship (ACA), the National Association of State and
Territorial Apprenticeship Directors (NASTAD), and State Apprenticeship
Agencies. This final rule implements changes to 29 CFR part 29 that
will increase flexibility, enhance program quality and accountability,
and promote apprenticeship opportunity in the 21st century, while
continuing to safeguard the welfare of apprentices. In addition to the
specific changes discussed below, we have made minor editorial changes
throughout the final rule.
The final rule takes effect on December 29, 2008. However, States
will have up to a 2-year period in which to make the changes to State
law, regulation and/or policy needed to come into compliance with this
final rule before having to apply for continued recognition under Sec.
29.13(c). The Department will work with States to make as seamless as
possible the transition from State laws recognized under current
regulations to State laws recognized under the final rule.
II. Discussion of the Comments and Regulatory Changes
Summary of Comments
The Department received 2,660 submissions commenting on the NPRM by
the close of the comment period. All comments were carefully reviewed.
We found 2,437 to be cover letters, form letters or duplicates, a
preponderance of which were from members of a single employer
association supporting the proposed regulatory changes. Of the 223 non-
duplicative comments, the majority were from labor organizations and
employer associations that sponsor registered apprenticeship programs,
and state government entities. All relevant comments are discussed
below. In response to these comments we made several substantive
changes which are discussed below.
Twenty-five commenters expressed general support for the NPRM and
agreed that the proposed changes will update, improve, and advance the
mission of the National Apprenticeship System to meet the needs of
today's industry and economy. Other commenters generally commended the
Department for improving and
[[Page 64403]]
promoting registered apprenticeship and the National Apprenticeship
System.
Twenty-five commenters generally preferred the current regulatory
framework for registered apprenticeship over the proposed changes,
stating that the current regulations work well and that the proposed
changes are unnecessary. We also received comments indicating
disapproval of the proposed changes due to concerns over the potential
impact on State agencies. Additional commenters suggested that the
proposed changes may impact certain apprenticeship programs more than
others. A few commenters disapproved of the proposed changes due to the
potential implications for apprentices.
Discussion of Comments
Purpose and Scope (Sec. 29.1)
A few commenters agreed with the addition to the Purpose and Scope
of the phrase ``promote apprenticeship opportunity.'' They noted that
this addition is a fundamental objective of the National Apprenticeship
Act and should be expressly included in DOL regulations.
Response: After review of the comments we will promulgate the rule
as proposed.
Definitions (Sec. 29.2)
Section 29.2 clarifies and redesignates existing definitions and
establishes new definitions for certain terms used in the registration
of apprenticeship programs and in the ongoing operations of the
National Apprenticeship System. We proposed to carry forward the
following existing definitions for terms defined in the original
regulations: ``administrator,'' ``apprentice,'' ``apprenticeship
program,'' ``cancellation,'' ``Department,'' ``employer,'' ``Federal
purposes,'' ``registration of an apprenticeship agreement,''
``registration of an apprenticeship program,'' ``sponsor,'' and
``State.'' Accordingly, we did not invite comments on these terms.
Similarly, the final rule carries forward the definitions for these
terms, as contained in the existing regulations. Of the proposed new
and amended definitions, we did not receive comments on the definitions
for ``Office of Apprenticeship,'' ``Registration Agency,'' ``technical
assistance,'' and ``State office.'' We made no changes to the proposed
definitions of these terms.
We received one comment about the definitions in general. The
commenter argued that the definitions in Sec. 29.2 would require State
Apprenticeship Agencies to control and direct State Apprenticeship
Councils, thus reversing traditional authority without any clear
explanation of why the Department wants to change the council-agency
relationship. The commenter also asserted that the definitions are an
unauthorized intrusion on a State's legislative rights and priorities.
Response: We have determined that State Apprenticeship Agencies are
the appropriate entities to receive the Department's grant of authority
to register apprenticeship programs and apprentices for Federal
purposes. For reasons enumerated below, we require the State
Apprenticeship Agency to determine the role of the State Apprenticeship
Council. Under the existing regulatory scheme, the Department's
oversight of the National Apprenticeship System has been complicated by
the fact that States in which the Registration Agencies are State
Apprenticeship Councils vary considerably in their policies and
procedures for the administration of registered apprenticeship for
Federal purposes. For example, we have found it difficult to hold State
Apprenticeship Councils accountable for conformity with the
requirements of part 29 because the Councils are sometimes comprised of
independent, appointed individuals, who may not be answerable to the
State government agency that actually operates the daily functions of
registered apprenticeship for Federal purposes in the State. In another
case, the State Apprenticeship Council's limited involvement in the
full time operations of the State's registered apprenticeship
operations has impeded the Department's working relationship with the
State Apprenticeship Council. In other instances, State Apprenticeship
Councils have not made determinations about approval of apprenticeship
program standards in a timely manner. In order to achieve consistency
within the National Apprenticeship System for the promotion of
registered apprenticeship opportunities and for the registration of
apprenticeship standards that meet the requirements of this part, we
have determined that the relationship between the Federal government
and the entities that act on our behalf must be between two government
agencies: DOL and the cabinet-level government agency in each State's
government that operates and manages the functions of registered
apprenticeship in that State. At the same time, we recognize the
considerable value that State Apprenticeship Councils provide for the
promotion and establishment of apprenticeship programs. State
Apprenticeship Council members are often closely associated with
apprenticeship program sponsors and can directly facilitate linkages
between apprentices and program sponsors. As explained below in the
discussion of Sec. 29.13(a)(2), States seeking recognition from the
Department are still required to establish State Apprenticeship
Councils for advisory and or regulatory purposes. Under the revised
regulatory framework, where a State has been ``recognized,'' the State
Apprenticeship Council must operate at the direction of the State
Apprenticeship Agency. Having given full consideration to the general
comment about the impact of the proposed definitions on the
relationship between State Apprenticeship Councils and State
Apprenticeship Agencies, we are promulgating the definitions for State
Apprenticeship Agency and State Apprenticeship Council as proposed.
``Apprenticeship Committee (Committee)''
Five commenters addressed the proposed definition of
``apprenticeship committee,'' which clarified that an apprenticeship
agreement is between an apprentice and either the apprentice's program
sponsor, or an apprenticeship committee acting as an agent for the
program sponsor. One commenter supported the definition as proposed.
Other commenters noted that use of the term ``worker'' may be confusing
in the parenthetical notation in paragraph (b), which defines a non-
joint committee as ``a unilateral or group non-joint (may include
workers) committee [which] has employer representatives but does not
have a bona fide collective bargaining agent as a participant.'' The
commenter suggested that for consistency, the term ``employee'' should
replace the term ``worker.'' Another commenter suggested that the
incumbent workforce of a program sponsor is a stakeholder that should
be included in the definition of ``apprenticeship committee,''
regardless of the status of a collective bargaining agreement in a
program sponsor's workplace. Another commenter recommended removing the
terms ``non-joint,'' in paragraph (b), and ``joint'' in paragraph (a),
which specifies that ``a joint committee is composed of equal number of
representatives of the employer(s) and of the employees represented by
a bona fide collective bargaining agent.'' The commenter suggested the
phrase, ``unilateral or group, which shall include equal numbers from
employer(s) and employees.'' Another commenter suggested that the
proposed change in which an apprenticeship committee acts
[[Page 64404]]
as an agent of the apprenticeship program sponsor, is not the
apprenticeship program sponsor, and is to be subordinate to the
apprenticeship program sponsor, appears to be inconsistent with the
core concepts of the Employee Retirement Income Security Act of 1974
(ERISA).
Response: We agree with the suggestion that the use of the term
``workers,'' in place of ``employees,'' may cause confusion, and so we
have changed the definition by replacing ``workers'' with ``employees''
in paragraph (2). We do not agree with the suggestion to delete the
terms ``joint and non-joint.'' The commenters suggested replacement
wording does not adequately provide the flexibility needed to address
the variety of circumstances faced by apprenticeship committees across
the nation. Nor are we convinced that the terms ``joint and non-joint''
are problematic. These terms are well-recognized and used throughout
the National Apprenticeship System. Accordingly, we have kept the terms
``joint and non-joint.'' We also do not agree with the suggestion that
a program sponsor's incumbent workforce should be required members of
an apprenticeship committee. The determination to include employees on
an apprenticeship committee is most appropriately addressed by the
program sponsor, not DOL. As mentioned, one comment noted that the
definition of ``apprenticeship committee'' may be inconsistent with
ERISA because it might be read as requiring the apprenticeship
committee to always act in the sponsor's interest, rather than in the
interest of the participants when the committee is carrying out
fiduciary responsibilities. Although we do not agree with this reading
of the definition, we have modified the definition to avoid confusion
on this point.
``Certification or Certificate''
Three commenters expressed concern over the potential effect of
paragraph (a) of the proposed definition of ``certification or
certificate'' on individual programs that are currently using State-
approved industry standards. Paragraph (a) provides that in order to
receive certification from the Office of Apprenticeship, national
guidelines for apprenticeship standards which are developed by a
national committee or organization for policy or guideline use by local
affiliates must conform to the standards of apprenticeship set forth in
Sec. 29.5. Commenters stated that standards approved by State
Apprenticeship Agencies are more trade-specific and protective of
apprentices' safety than any proposed national guidelines for
apprenticeship standards. They also stated that it would be problematic
to allow an outside ``national committee or organization'' to dictate
the direction of individual programs and concluded that national
guidelines for apprenticeship standards will ``erode apprenticeship
standards by trade, and blend multiple trades into one standard.'' In
addition, a few commenters questioned who would set the standards used
in national guidelines for apprenticeship standards.
Response: These comments appear to reflect a misunderstanding of
the current definitions of ``certification or certificate.'' The
purpose of national guidelines for apprenticeship standards, as
established by the definition of ``certification'' in the existing
regulations, is to provide policy and guidance to local affiliates of
national organizations in developing standards for approval and
registration. National Guideline Standards are developed by national
committees or organizations, joint or unilateral, and are certified by
DOL's Office of Apprenticeship as substantially conforming to the
requirements of 29 CFR parts 29 and 30. When local affiliates develop
local standards for registration, even though the local standards may
be based upon the organizations' National Guideline Standards, they
must meet all the requirements of and be approved by the Registration
Agency in that State. Thus, the approval of national guidelines for
apprenticeship standards in no way precludes a State Apprenticeship
Agency or a local sponsor from developing apprenticeship standards that
are more trade-specific or protective. This flexibility does not,
however, authorize a State Apprenticeship Agency to develop or approve
standards that improperly restrict registered apprenticeship
opportunities. Therefore, we are promulgating the definition of
``certification or certificate'' as proposed.
``Competency''
Sixteen commenters weighed in on the proposed definition of
``competency,'' which means ``the attainment of manual or technical
skills and knowledge, as specified by an occupational standard.'' Many
expressed apprehension over the implications of the definition,
suggesting that it does not clearly articulate how competency will be
measured (e.g., on a set of validated industry and trade-specific
standards). Others noted that the definition does not mandate specific
types of training (e.g., on-the-job, classroom) that are often critical
to meet industry accepted guidelines for journey-level status. Finally,
others raised concerns that with this definition, journeyworker status
will be determined in a subjective manner, without strict standards for
objective program administration.
Response: We agree that the definition needs to address the
measurement of competency with greater specificity. Therefore, we have
revised the proposed definition to provide for the ``attainment of
manual, mechanical or technical skills and knowledge, as specified by
an occupational standard and demonstrated by an appropriate written and
hands-on measurement of proficiency.'' To align with the criteria for
apprenticeable occupations established under Sec. 29.4(c), the final
rule adds the term ``mechanical'' as a descriptor of the skills and
knowledge that are attained.
Regarding concerns that the definition does not require specific
types of training and that journeyworker status will be determined in a
subjective manner, we have concluded that apprenticeship programs need
flexibility when setting the requirements for training and the
attainment of journeyworker status, so that the program standards can
take into account the circumstances of particular occupations and
programs. Additionally, we note that the requirement for an
apprenticeable occupation to include on-the-job learning as specified
in Sec. 29.4(c), and the requirements for apprenticeship program
standards to include on-the-job learning as specified in Sec.
29.5(b)(2) and related instruction specified in Sec. 29.5(b)(4),
address concerns regarding specific training. Therefore, we do not
adopt the comments that favor a more prescriptive approach to those
matters in the definition of ``competency.''
``Completion Rate''
Several commenters requested a formal definition of the term
``completion rate,'' stating that further guidance was necessary for
evaluating program performance based on a completion rate.
Response: We agree that a definition of ``completion rate'' is
necessary to facilitate compliance with the requirement in Sec. 29.6
to evaluate the performance of apprenticeship programs, which is a
critical component of strengthening accountability for program
outcomes. The final rule adds a definition for the term ``completion
rate'' to mean ``the percentage of an apprenticeship cohort who receive
a certificate of apprenticeship completion within 1 year of the
projected
[[Page 64405]]
completion date. An apprenticeship cohort is the group of individual
apprentices registered to a specific program during a 1 year time
frame.'' This definition is consistent with the methodology used by
other Federal employment and training programs, which measure program
outcomes by calculating rates of program participants who successfully
achieve a specific outcome such as entering employment or retaining
employment. Consistency in methodology will minimize the implementation
burden on Registration Agencies and will further align registered
apprenticeship with other workforce investment programs.
``Electronic Media''
Although commenters did not provide any comments specific to the
proposed definition for ``electronic media,'' many raised concerns that
the use of electronic media in the proposed revision to related
instruction could supplant, reduce, or eliminate an apprentice's
interface with an instructor in a lab or classroom setting. They
emphasized the importance of classroom and hands-on learning for the
successful acquisition of skills and knowledge necessary for completion
of an apprenticeship program.
Response: We recognize the validity of this concern, as addressed
further in the discussion of Sec. 29.5(b)(4). However, we have
determined that the inclusion of electronic media in the definition of
``related instruction'' is necessary to align the National
Apprenticeship System with technological advances in the delivery of
related instruction. We have made no change to the proposed definition
of ``electronic media.''
``Interim Credential''
Some commenters suggested that the proposed definition for
``interim credential,'' which is ``a credential issued by the
Registration Agency, upon the request of the sponsor, as certification
of competency attainment by an apprentice,'' does not sufficiently
include requirements for the recipient to meet an objective, external
standard associated with the subject matter for which an interim
credential is issued. Others asserted that the definition of ``interim
credential'' could diminish the meaning and significance of the status
of ``journeyworker'', and that the use of interim credentials in the
National Apprenticeship System may serve as a disincentive to
completing an apprenticeship program.
Response: We recognize these concerns and address them below in our
discussion of the requirements for program standards in Sec. 29.5(b).
We have made no change to the proposed definition of ``interim
credential.''
Issuance of interim credentials will be determined by the program
sponsor's choice of approach for an apprentice's progression through an
apprenticeship program: Competency-based, time-based, or hybrid.
Program sponsors must identify and define all interim credentials in
the program standards that are registered with the Registration Agency.
Interim credentials may be issued only for industry-recognized
components of an apprenticeable occupation. Therefore, if an
apprenticeship program's standards do not include provisions for
issuance of interim credentials for specific components of an
apprenticeable occupation, the Registration Agency with which the
program is registered may not issue interim credentials to apprentices
registered with that program.
We reiterate that interim credentials are issued by the
Registration Agency, upon request of the appropriate sponsor, as
certification of an apprentice's attainment of competency. Further, the
regulations do not require program sponsors to include interim
credentials in their program standards, nor do they require sponsors to
request that a Registration Agency issue interim credentials to
apprentices registered in their apprenticeship programs. The Department
also recognizes that some Registration Agencies may find the issuance
of interim credentials to be unduly burdensome and beyond their
capabilities. Therefore, Registration Agencies, other than the Office
of Apprenticeship, may opt not to offer this additional service.
We have concluded that the revised regulatory framework does not
detract from the overall goal of the National Apprenticeship System to
support and enable apprentices to complete an apprenticeship program.
Through the authorization of interim credentials, the National
Apprenticeship System recognizes that some industries and occupations
are more amenable to an incremental recognition of an apprentice's
increasing skills, knowledge, and abilities. In such industries the use
of interim credentials can, thereby, afford multiple opportunities for
apprentices to grow and expand their knowledge and their capacity to
meet current, new, and emerging industry advances. Use of interim
credentials also recognizes the fact that not all apprentices will
complete their apprenticeship programs and offers opportunities for
recognition of what these individuals have learned. Therefore, interim
credentials will also enable apprentices to obtain portable credentials
commensurate with the skills and competencies acquired and demonstrated
throughout an apprenticeship. Notwithstanding the value of interim
credentials, the issuance of a certificate of completion of
apprenticeship, and the associated ``journeyworker'' status, remains
the ultimate goal for the National Apprenticeship System.
``Journeyworker''
Ten comments were submitted on the proposed definition of
``journeyworker.'' One commenter requested inserting the word
``abilities'' to the definition to read ``a worker who has attained a
level of skills, abilities, and competencies recognized within an
industry,'' asserting that use of the term ``abilities'' provided a
more thorough recognition of a journeyworker's qualifications. Multiple
commenters recommended using industry standard definitions for
``journeyworker,'' asserting that permitting employers to recognize
other definitions would leave the National Apprenticeship System open
to abuse. Others asserted that by expanding the term to refer to a
mentor, technician, specialist or other skilled worker gives the
employer the authority to determine journeyworker status. One commenter
argued for retention of the term ``journeyman,'' because in the
traditional sense it is not and has not been gender-specific, and that
it refers to rank or status in a skilled trade.
Response: We agree with the suggestion to expand the definition to
include ``abilities,'' and have revised the definition accordingly. We
disagree with the assertion that by granting individual employers the
authority to designate journeyworker status, the term ``journeyworker''
will be subject to abuse in the National Apprenticeship System.
Currently, program sponsors designate an individual as a journeyworker
when that individual has sufficient skills, abilities, and competencies
to be recognized by the employer as a journeyworker. The revised
regulatory framework carries forward this approach currently used in
the National Apprenticeship System. With regard to the use of the term
``journeyworker,'' the Department of Labor is committed to avoiding the
use of terms that are or may appear to be gender-specific, even if the
historic usage of the term has not been so. We disagree with the
assertion that the term journeyman is not gender-specific. Accordingly,
the final rule retains the term ``journeyworker.''
[[Page 64406]]
``Provisional Registration''
Several comments on proposed revisions to Sec. 29.3(g) and Sec.
29.3(h) regarding provisional registration indicate that the proposed
definition of ``provisional registration'' did not adequately specify
the process by which a provisionally registered program would receive
permanent registration, continuance of provisional registration, or
rescission of registration.
Response: We agree with these comments and have clarified the
requirements by expanding the definition of ``provisional
registration'' to refer to the relevant criteria in Sec. 29.3(g) and
Sec. 29.3(h), which provide for provisional registration and review of
provisionally registered programs. These additions will avoid any
ambiguity between the proposed definition of provisional registration
in Sec. 29.2, and the subsequent opportunity for additional review
and/or removal of the provisional status after the first full training
cycle. Accordingly, in the final rule ``provisional registration'' is
defined to mean, ``the 1-year initial approval of newly registered
programs that meet the required standards for program registration,
after which program approval may be made permanent, continued as
provisional, or rescinded following a review by the Registration
Agency, as provided for in the criteria described in Sec. 29.3(g) and
Sec. 29.3(h).''
``Quality Assurance Assessment''
In their discussion of program performance standards in proposed
Sec. 29.6, some commenters recommended establishing a clear definition
of ``quality assurance assessment.''
Response: We agree that Sec. 29.6 will be improved by adding a
formal definition for ``quality assurance assessment,'' so that
programs are assessed consistently and fairly across the National
Apprenticeship System. Accordingly, in the final rule ``quality
assurance assessment'' means, ``a comprehensive review conducted by a
Registration Agency regarding all aspects of an apprenticeship
program's performance, including but not limited to determining if
apprentices are receiving: On-the-job training in all phases of the
apprenticeable occupation; scheduled wage increases consistent with the
registered standards; related instruction through appropriate
curriculum and delivery systems; and that the Registration Agency is
receiving notification of all new registrations, cancellations, and
completions as required in this part.'' This definition codifies the
Office of Apprenticeship's existing practice of reviewing programs for
quality based on the factors described above.
``Registration Agency''
A commenter asserted that by expanding the definition of
``Registration Agency'' to include registration of apprentices and
programs, providing technical assistance, and conducting reviews for
compliance with parts 29 and 30, and quality assurance assessments, the
Department is attempting to retain the services of a State
Apprenticeship Agency without Federal funding or State legislative
approval.
Response: We disagree with these assertions. The definition of
``Registration Agency'' codifies existing practice in the National
Apprenticeship System in which a Registration Agency, whether it is the
Office of Apprenticeship or a recognized State Apprenticeship Agency,
provides guidance and assistance to help program sponsors comply with
this part; reviews registered programs; and registers apprentices and
programs. We view these functions as necessary to properly administer
the National Apprenticeship System. Further, the definition is intended
to emphasize consistency across the National Apprenticeship System
regarding the types of support and assistance that registered
apprenticeship program sponsors should receive from a Registration
Agency, regardless of their geographic location. It should also be
noted that State Apprenticeship Agency recognition as a Registration
Agency, for Federal purposes, is voluntary. We have made no change to
the proposed definition of ``Registration Agency.''
``Related Instruction''
Several commenters noted that the proposed separation of
apprenticeship's theoretical instruction into two terms, ``related
technical instruction'' and ``supplemental instruction,'' creates undue
complications. On the other hand, a commenter praised the addition of
``supplemental instruction,'' stating that such instruction will
increase opportunities for learning, as well as provide additional
opportunities to create and ensure equitable classroom and worksite
environments. Other commenters asserted that ``related instruction''
should not be limited to ``core'' requirements. Further, the commenters
noted that safety processes like CPR/first-aid training may be part of
a related training for many apprenticeable occupations and expressed
concern that valuable training would be marginalized.
Response: We agree that the commenters have raised valid concerns
and we have therefore deleted the proposed definition of ``supplemental
instruction.'' Our intent in separating the two terms was to clarify
that instruction specific to a particular occupation is ``related
instruction,'' and instruction that is relevant but not necessarily
occupationally-specific is ``supplemental instruction.'' However, we
recognize that the proposed elements of supplemental instruction, such
as job site management, leadership, communications, first-aid/CPR,
field trips, and new technologies/processes, and in particular those
pertaining to health and safety, have been long-standing facets of the
term ``related instruction.'' The final rule retains the existing term
``related instruction'' and thus carries forward existing practice in
the National Apprenticeship System which incorporates the components of
the proposed definition of ``supplemental instruction.'' We have also
deleted the term ``core'' from the definition of ``related
instruction,'' to indicate that all components of related instruction
that are related to the occupation are important to an apprenticeship
program, whether or not they are occupation-specific. We have also
added a comma after the phrase ``such instruction may be given in a
classroom,'' to make the definition consistent with the substantive
provisions in Sec. 29.5(b)(4). Therefore, in the final rule, ``related
instruction'' means, ``an organized and systematic form of instruction
designed to provide the apprentice with the knowledge of the
theoretical and technical subjects related to the apprentice's
occupation. Such instruction may be given in a classroom, through
occupational or industrial courses, or by correspondence courses of
equivalent value, electronic media, or other forms of self-study
approved by the Registration Agency.''
``State Apprenticeship Agency''
We received two comments on the definition of ``State
Apprenticeship Agency.'' One commenter stated that the proposed
definition of ``State Apprenticeship Agency'' would allow for the State
Apprenticeship Agency to assume the powers of the State Apprenticeship
Council. The other commenter sought clarification on the proposed
definition.
Response: The proposed definition of ``State Apprenticeship
Agency'' as ``an agency of a State government that has responsibility
and accountability for apprenticeship within the State,'' reflects the
Department's determination
[[Page 64407]]
that only State government entities should be recognized as
Registration Agencies, in order to ensure accountability for oversight
and management of a State's apprenticeship system for Federal purposes.
As discussed above, where a State Apprenticeship Agency has been
``recognized,'' the State Apprenticeship Agency must establish and
maintain a State Apprenticeship Council. Additionally, as explained in
the discussion of Sec. 29.13(a)(2), we have clarified that the Council
operates at the direction of the State Apprenticeship Agency.
Therefore, we have made no changes to the proposed definition of
``State Apprenticeship Agency'' nor to the State Apprenticeship
Agency's role as the only entity authorized to register and oversee
apprenticeship programs and agreements for Federal purposes.
``State Apprenticeship Council''
Two commenters questioned if the definition of ``State
Apprenticeship Council'' would mean that the Council would only serve
an advisory role rather than a regulatory role.
Response: Our intent in the proposed rule was to provide that the
State Apprenticeship Council could serve in either an advisory role or
regulatory role. As explained further in the discussion of Sec.
29.13(a)(2), we have clarified that a State Apprenticeship Council
operates at the direction of the State Apprenticeship Agency. Depending
on how this direction is exercised, a State Apprenticeship Council
could serve either a regulatory or an advisory role. The requirements
for operation of a State Apprenticeship Council are set forth in
Sec. Sec. 29.13(a)(2) and (b)(3). We have made no change to the
proposed definition of ``State Apprenticeship Council.''
``Transfer''
Several commenters noted that the proposed revisions regarding
apprentice transfers in Sec. 29.5(b) and the proposed new definition
of ``transfer'' in Sec. 29.2 raise questions about approval and
consent for transfer and the potential impact on apprenticeship program
sponsors. Several commenters questioned the need for apprentices to
initiate requests for transfers, asserting that such latitude could
enable apprentices to transfer registration without regard to negative
impact on program sponsors. Other commenters suggested that program
sponsors could use the provisions of this definition to transfer an
apprentice to another program or to another employer without the
apprentice's consent, thereby potentially negatively impacting the
safety and welfare of the apprentice.
Response: We do not foresee that the transfer of apprenticeship
registration from one program to another or from one employer to
another would occur frequently or on a regular basis. The intent of
this provision is to provide flexibility for an apprentice to continue
his or her apprenticeship in changing circumstances, such as the need
for geographic relocation for personal reasons. However, we agree that
all parties to the transfer must be in agreement in order to avoid
potential negative impacts. Accordingly, we have revised the definition
to clarify that in order for a transfer to occur, the affected parties
(i.e., the apprentice and each apprenticeship committee or program
sponsor) must reach agreement regarding the shift of the apprentice's
registration from one program to another or from one employer within a
program to another employer within that same program.
Eligibility and Procedure for Registration of an Apprenticeship Program
(Sec. 29.3)
This section addresses the criteria and process used by a
Registration Agency to register apprenticeship programs. In general,
the comments we received supported the proposed changes which were
designed to ensure high quality for registered apprenticeship programs,
assist program sponsors through early intervention and technical
assistance, and foster closer working relationships between the
apprenticeship sponsors and Registration Agencies.
Resources
Several commenters raised concerns about the adequacy of the
resources available to the DOL and the Office of Apprenticeship for
follow through requirements pertaining to provisional registration. Two
commenters asked who would pay for technical assistance provided to new
programs.
Response: As under current regulations, the resources necessary to
carry out the requirements of Sec. 29.3 would be the responsibility of
the Registration Agency, including provision of technical assistance.
States seeking registration authority for Federal purposes must be
prepared to provide resources necessary for these responsibilities.
Provisional Registration
Proposed Sec. 29.3(g) is a new provision which establishes
provisional approval for 1 year of new programs that the Registration
Agency preliminarily determines comply with part 29. Most commenters
supported the concept of provisional registration for new programs, but
expressed concern that DOL currently appears to be understaffed and
would not have adequate resources to perform the reviews required at
the end of a program's first year to determine if the program should
receive full recognition. Some commenters asserted that the
determination to grant provisional program approval, regardless of
length, belongs to State Apprenticeship Agencies.
Response: As discussed in the NPRM, the ``provisional
registration'' concept was added to enhance monitoring of the
performance of apprenticeship programs registered for Federal purposes
by the Office of Apprenticeship and recognized State Apprenticeship
Agencies (i.e., the Registration Agencies). As we have repeatedly
emphasized, the States derive any authority they exercise, for Federal
purposes, from the recognition accorded by the Department. Therefore,
provisional program approval does not impinge on State authority.
We recognize that adequate resources are required to successfully
address the additional workload associated with provisional
registration procedures. Accordingly, we are realigning resources to
provide these services in States where the Office of Apprenticeship
serves as the Registration Agency. As discussed below under Sec.
29.13, Recognition of State Apprenticeship Agencies, States seeking
registration authority for Federal purposes must provide sufficient
resources to perform all the functions of a Registration Agency. We
have revised Sec. 29.3(g) to clarify that the Registration Agency is
responsible for reviewing programs for quality and conformity with the
requirements of this part at the end of the first year after
registration. A program that conforms to the requirements of part 29
may be permanently approved, or the provisional approval may be
extended through the end of the first training cycle. A program not in
operation or not conforming to the regulations during the provisional
approval period must be recommended for deregistration procedures.
Program Reviews
Proposed Sec. 29.3(h) provides that a satisfactory review at the
end of the first full training cycle will result in removal of
provisional approval, and provides that subsequent reviews will be
conducted no less frequently than on a five-year cycle. A few
commenters questioned how this five-year cycle of program reviews,
which generally
[[Page 64408]]
corresponds to the completion of the first full training cycle, aligns
with competency-based or hybrid programs that may have training cycles
of different lengths. Other commenters questioned if the five-year
cycle provided in Sec. 29.3(h) would conflict with a State
Apprenticeship Agency's program review cycle that might occur more
frequently.
Response: Competency-based and hybrid programs also have
requirements for on-the-job work experience associated with program
completion, but the cycles of each may vary in length from traditional
apprenticeship programs. To address this, Sec. 29.3(h) of the final
rule clarifies that subsequent reviews will be completed after a
satisfactory review at the end of the first full training cycle, and
must be conducted no less frequently than every 5 years. Section
29.3(h) does not preclude a State Apprenticeship Agency from conducting
reviews more frequently than prescribed. If a review demonstrates that
a provisionally registered program has satisfactorily met the
requirements of this part in a timeframe shorter than the typical 5
years, provisional registration may be transformed to permanent
registration.
Timeframe for Approval of Proposals and Modifications
A few commenters questioned the requirement in Sec. 29.3(i) for a
Registration Agency to make a determination on whether to approve
sponsor proposals or applications for modifications to registered
programs within 45 days from the date of receipt. Existing regulations
simply provide for ``prompt'' submission of requests for modification
and set no timeframe for a Registration Agency and provide no guidance
on what the Registration Agency must do to process the application or
modification. Commenters asserted that 45 days does not provide
sufficient time for review and comment. In particular, this proposed
requirement would not align with schedules for State Apprenticeship
Councils that only meet quarterly or every 90 days, to review proposals
and modifications for registered apprenticeship programs. Other
commenters did support the proposed 45-day timeframe for the
Registration Agency to make a determination whether to approve such
submissions.
Response: In light of the quarterly meeting schedule used by many
State Apprenticeship Councils and State Apprenticeship Agencies for
review of proposals and modifications, a 90-day timeframe is more
appropriate for the Registration Agency to make determinations whether
to approve such submissions. We have also clarified that if approved,
the Registration Agency will record and acknowledge the modifications
within 90 days of approval. Final Sec. 29.3(i) also clarifies that if
the modifications are not approved, the Registration Agency will notify
the sponsor of the disapproval, and provide reasons therefore. Final
Sec. 29.3(i) has been changed accordingly.
Criteria for Apprenticeable Occupations (Sec. 29.4)
Section 29.4 revises the criteria for determining when an
occupation qualifies as apprenticeable. The revisions proposed in the
NPRM align Sec. 29.4 with changes to ways to progress through an
apprenticeship program, as discussed further in the discussion of Sec.
29.5(b)(2). Some commenters raised questions and concerns about
deletion of the term ``skilled trade'' and inconsistency between an
apprenticeable occupation's requirement for hours of on-the-job
learning and the competency-based approach for completion of an
apprenticeship program, provided by final Sec. 29.5(b)(2).
Deletion of ``Skilled Trade''
A few commenters raised concerns about the deletion of the term
``skilled trade'' in describing an apprenticeable occupation, asserting
that the term is recognized nationally in the construction industry,
and is commonly used.
Response: We acknowledge that the term ``skilled trade'' is a
nationally recognized term in the construction industry, and emphasize
that deletion of this term in the regulations for the National
Apprenticeship System is not meant to discourage continued use of this
term. However, as apprenticeship expands into new industries, we have
determined that more generic approach better reflects the terminology
used by a variety of industries. Accordingly, we have not added
``skilled trade'' to the final rule.
Hours of On-The-Job Learning
Some commenters suggested that requiring at least 2,000 hours of
on-the-job work experience in Sec. 29.4(c) conflicts with the
competency-based approach outlined in Sec. 29.5(b)(2).
Response: The 2000 hour standard in Sec. 29.4(c) is solely for the
purpose of helping to define an apprenticeable occupation. In order for
an occupation to be considered apprenticeable it must be an occupation
which, if learning were conducted in the traditional on-the-job manner,
would require at least 2,000 hours of on-the-job learning. As is
discussed more fully in the next section on standards of
apprenticeship, only ``time-based'' apprenticeship programs will be
required to provide for at least 2000 hours of actual on-the-job
learning. ``Competency-based'' and ``hybrid'' programs also will be
required to provide for on-the-job learning, but the required hours
will vary by program.
The comments on this section have brought to light an inconsistent
and interchangeable use of the terms ``on-the-job training'' and ``work
experience'' throughout the proposed rule to refer to the on-the-job
learning component of registered apprenticeship, as required in Sec.
29.4(c) and Sec. 29.5(b)(2). We have replaced the terms ``on-the-job
training'' and ``on-the-job work experience'' with the term ``on-the-
job learning'' throughout the final rule.
Standards of Apprenticeship (Sec. 29.5)
Proposed changes to Sec. 29.5 regarding standards of
apprenticeship received many comments; over 132 comments pertained to
the use of a competency-based approach to progression through an
apprenticeship. Other significant areas of interest centered on related
instruction, apprentice instructor certification, advanced standing or
credit, transfers, interim credentials, and cancellation rate.
Three Approaches to Completion of Apprenticeship
Section 29.5(b)(2), which is based on the existing requirement that
on-the-job learning must be consistent with industry practice, presents
three methods by which an individual apprentice may progress toward the
industry standard for work experience. These methods are: (i) A time-
based approach involving completion of at least 2,000 of hours of on-
the-job work experience; (ii) a competency-based approach involving
successful demonstration of acquired skills and knowledge by an
apprentice, as verified by the program sponsor, plus an on-the-job
learning component; and (iii) a hybrid approach involving completion of
a specified minimum number of hours plus the successful demonstration
of competency.
Many commenters raised questions and asked for clarification about
the proposed three approaches. Many commenters questioned whether the
competency-based model would require on-the-job learning. Most
commenters expressed concern that the proposed terms were not
adequately defined, that industries should be equipped to monitor
validity and achieve standardization, and that existing
[[Page 64409]]
minimum standards would be compromised. A community-based organization
praised the proposed three approaches, citing studies that indicate
that nontraditional apprentices, such as women, are more likely to
complete programs if such requisites as pre-apprenticeship training
programs were recognized in a competency-based or hybrid approach.
Several commenters expressed concern that the competency-based and the
hybrid methods for completion of an apprenticeship would allow
apprentices to circumvent on-the-job learning and related technical
instruction with a demonstration of acquired skills and knowledge.
Other commenters expressed apprehension over the potential for safety
compromise, particularly in the construction industry, and the need to
``safeguard the welfare of apprentices.'' One commenter asserted that a
competency-based apprenticeship program would not require an apprentice
to demonstrate competency in a ``real time, distracting, sometimes
noisy, sometimes dirty, and often unpredictable environment.'' Many
commenters interpreted proposed Sec. 29.5(b)(2) to mean that all
program sponsors would have to adopt all three approaches for
completion of apprenticeship.
Response: This rule carries forward the traditional model because
it has worked well in many occupations that have used a time-based
approach for registered apprenticeship; we expect that most program
sponsors in those occupations will continue using this approach.
However, as part of the Department's strategic emphasis on meeting the
training needs of business and workers, and our policy of expanding
apprenticeship, it has become clear that the traditional time-based
approach to training does not fit the norms of all industries or
occupations seeking to use the registered apprenticeship model. The
final rule acknowledges the needs of industries that prefer to continue
to use a time-based approach for registered apprenticeship, as well as
those industries that require more flexibility in how an apprentice can
attain the journeyworker level of proficiency.
We agree that clarifying language is required for all three
approaches to ensure that on-the-job learning is a required component
of all apprenticeship programs. Paragraph (ii) of Sec. 29.5(b)(2) has
been revised to include additional language specifying that programs
using the competency-based approach must still require an apprentice to
complete the on-the-job learning component of registered
apprenticeship. We emphasize that on-the-job learning remains the
primary method by which apprentices gain the competencies necessary for
successful completion of a competency-based or hybrid apprenticeship
program. An apprenticeship program's use of a competency-based or
hybrid approach does not exempt apprentices from participating in the
fundamental elements of registered apprenticeship: on-the-job learning
and related instruction.
The Office of Apprenticeship guidance on competency-based and
hybrid apprenticeship in Circular 2005-03 describes how program
sponsors and apprentices can comply with the requirements for minimum
on-the-job learning for each major work process using the competency-
based or hybrid approach outlined in Sec. 29.5(b)(2). Additionally,
materials available on the CareerOneStop Web site (http://
www.careeronestop.org/competencymodel) provide examples of recently
approved competency-based apprenticeship programs in the advanced
manufacturing and health care industries. These examples showcase the
depth and breadth of the information required to define a
``competency,'' establish a proficiency level for that competency, and
develop a test and evaluation for said competency. This guidance
reinforces that the competency-based model does not negate requirements
for on-the-job learning and related instruction. Such requirements will
ensure that all apprentices are exposed to workplace conditions and
properly trained in the safety requirements essential to the industry.
Neither the proposed nor the final rule requires program sponsors
or Registration Agencies to adopt all three approaches. A new paragraph
(iv) has been added to Sec. 29.5(b)(2) to clarify that the
determination of the appropriate approach for the program standards is
made by the program sponsor, subject to approval by the Registration
Agency of the determination as appropriate to the apprenticeable
occupation for which the program standards are registered.
We seek to provide a variety of industries with greater flexibility
and options for approaches to addressing their talent-development needs
through apprenticeship. As discussed in the NPRM, business, industry,
and labor have requested a more flexible and accountable National
Apprenticeship System that meets their workforce development needs.
Through pilot programs in which sponsors measured apprentices'
attainment of certain skills and competencies rather than using the
traditional, time-based approach, many new business, labor, and
industry partners in National Apprenticeship System have found that
competency-based apprenticeship provides the flexibility and
accountability necessary to use registered apprenticeship in their
respective industries and occupations. Final Sec. 29.5(b)(2) provides
greater flexibility for registered apprenticeship programs to address
career development plans of registered apprentices. As we emphasized in
the NPRM, the three approaches reflect the experience of the
traditional building and construction trades and industrial sectors'
use of time-based apprenticeship, while addressing the needs of new and
emerging industries seeking to participate in the National
Apprenticeship System. Therefore, we anticipate that program sponsors
will use the approach that best meets the needs of their particular
industry. We do not intend to discourage the use of the time-based
approach in those occupations in which it has proven successful nor for
any new occupations that lend themselves to that approach.
Related Instruction
The majority of comments on provisions for related and supplemental
instruction stated that training through the use of electronic media as
proposed in Sec. 29.5(b)(4) should not supplant or replace an
apprentice's ongoing, face-to-face interaction and classroom time with
an instructor. Some commenters suggested that the Department clarify
that electronic media can be used to supplement classroom instruction,
but that it is not a substitute for instructor/apprentice interaction.
Many suggested that electronic media should not be allowed as the sole
method for related technical instruction, as it would be open to
widespread misuse and mismanagement. Others suggested that the
regulations require that a majority of, or a significant portion of
related instruction should be provided through in-person instruction.
Other commenters supported the use of electronic media in related
instruction, because it enhances flexibility in registered
apprenticeship and recognizes new training methods and technologies.
Response: The inclusion of electronic media for related instruction
is critical to aligning the National Apprenticeship System with
technological advances and appropriate industry application of such
advances. Section 29.5(b)(4) does not require that all industries and
apprenticeship programs must use electronic media; rather, it permits
use of electronic media as a tool to support
[[Page 64410]]
industry learning styles. Section 29.5(b)(4) retains other methods of
related instruction such as classroom, occupation, or industry courses,
or other instruction approved by the Registration Agency. The extent to
which an apprenticeship program incorporates electronic media into the
provision of related instruction depends on the learning objectives for
the particular occupation associated with that program. Therefore, the
regulatory framework for apprenticeship should not specify how related
technical instruction will be delivered. Such decisions are most
appropriately determined by program sponsors, subject to approval by
the Registration Agency. Through the provisional registration process
and the review of modifications to registered programs established in
Sec. 29.3(g), (h), and (i), Registration Agencies will coordinate with
program sponsors to identify the appropriate method(s) of providing
related technical instruction. The Registration Agency's evaluation of
program performance in the quality assurance assessment process, as
established in Sec. 29.6(b), will identify and assess any changes in
related technical instruction and its effect on the overall operation
and quality of the program. To further address concerns regarding
inappropriate, ineffective use of electronic media in the provision of
related technical instruction, the Office of Apprenticeship will
consult with State Apprenticeship Agencies to develop and issue further
guidance illustrating the appropriate use of electronic media.
Apprenticeship Instructor Qualifications
Proposed requirements for an apprenticeship instructor would be
similar to States' requirements such as meeting the State Department of
Education's requirements for a vocational-technical instructor, and/or
being recognized as a subject matter expert, and would require that
instructors have training in teaching techniques and adult learning
styles. A few commenters generally supported the proposed
qualifications for apprenticeship instructors in Sec. 29.5(b)(4)
because they would raise the quality of apprenticeship instruction.
Some commenters stated the proposed changes did not adequately define
``subject matter expert'' or provide guidance on how an apprenticeship
program or Registration Agency should make a determination of who may
be considered a ``subject matter expert.'' Others agreed with the
concept of improving the quality of apprenticeship instructors, but
stated the proposed changes would be overly restrictive by requiring
all instructors to be certified as having met the state vocational
education instructor requirements. Other commenters questioned whether
journeyworkers would have to be certified by the State vocational
education entity in order to teach the related instruction component of
registered apprenticeship. Some commenters asserted that the proposed
text would eliminate the use of journeyworkers as subject matter
experts or technical experts. Some commenters supported the proposed
requirement in Sec. 29.5(b)(4) that apprenticeship instructors have
training in teaching techniques and adult learning styles. Others
requested clarification on this requirement.
Response: We agree that the proposed rule did not provide adequate
guidance and flexibility for instruction qualifications. Accordingly,
we have revised Sec. 29.5(b)(4) to clarify that an apprenticeship
instructor must either meet the State Department of Education's
requirements for a vocational-technical instructor or be a subject
matter expert. The rule also clarifies that subject matter experts are
individuals who are recognized within an industry as having expertise
in a specific occupation. Journeyworkers can be considered subject
matter experts, and therefore may be appropriate instructors of related
technical instruction. Provisions in Sec. 29.5(b)(4) requiring
instructors to have training in teaching techniques and adult learning
styles will further ensure quality of instruction in the National
Apprenticeship System. Training in and an understanding of teaching
techniques and adult learning styles will enhance instructors'
effectiveness, thereby improving the learning experiences of individual
apprentices and the overall National Apprenticeship System. Such
training may be provided by the apprenticeship program, or through an
accredited institution of higher learning, and may occur before or
after the apprenticeship instructor has started to provide the related
technical instruction.
Probationary Period
Seventeen commenters expressed concern that the length of the
probationary period was not defined in proposed Sec. 29.5(b)(19),
which provided simply that cancellations during an apprentice's
probationary period will not adversely impact the sponsor's completion
rate. The completion rate is a new factor for evaluation of program
performance proposed in Sec. Sec. 29.6(b) and (c). Several commenters
suggested defining a specific ``not to exceed'' time for probationary
periods, such as 15 percent or 20 percent of a program's length. Many
commenters were concerned that without a time limit on the probationary
period, the proposed regulations could permit an apprenticeship program
to leave apprentices in probationary status for an extended period of
time in an effort to improve the program's performance ratings or
conceal the program's deficiencies.
Response: We agree that without a limit to the probationary period,
the regulation could allow the information used in calculating
completion rates to be skewed, thereby impacting the evaluation of
program performance. In recognition of the concerns of the commenters,
we have added language to Sec. 29.5(b)(8) limiting the length of the
probationary period. Historically, national guidelines for
apprenticeship standards recognized by the Office of Apprenticeship
have used 25 percent of the length of the program as the benchmark.
Accordingly, the final rule provides that the probationary period
cannot exceed 25 percent of the length of the program, or one year,
whichever is shorter.
Advanced Standing or Credit
Two commenters discussed Sec. 29.5(b)(12), which provides for
granting an apprentice advanced standing or credit to take into account
demonstrated competencies. One commenter asserted that the proposed
rule could reduce on-the-job learning, possibly compromising safety and
health. The other commenter expressed concerns about how sponsors would
evaluate competencies.
Response: The provisions for granting an apprentice advanced
standing or credit would not negatively impact safety and health
because, as discussed above, apprentices are still required to have on-
the-job learning and related instruction that enable the apprentices to
recognize and protect themselves from safety and health hazards. With
regard to evaluating competency, sponsors would use the definition of
``competency'' in Sec. 29.2, which provides that sponsors use an
appropriate written or hands-on proficiency measurement. Provisions of
final Sec. 29.5(b)(12) are necessary to support the flexible approach
to progression through apprenticeship identified in Sec. 29.5(b)(2).
Accordingly, no changes have been made to the provisions for granting
advanced standing or credit.
[[Page 64411]]
Transfer
Twenty-seven commenters raised questions about the proposed changes
to Sec. 29.5(b)(13) which require program sponsors or committees to:
Provide the transferring apprentice with a transcript of related
training and on-the-job learning completed; permit transfers to either
the same or a related occupation; allow an apprentice, the employer or
the program sponsor to initiate the transfer; and stipulate that a
transfer must occur without adverse impact on the apprentice, the
employer, or the program.
Many commenters raised concerns about how a transfer would be
initiated and the process for executing the transaction. Commenters
questioned whether the proposed provisions would permit an apprentice
to unilaterally transfer from one program to another without the
consent of program sponsors. Two commenters suggested that transfers
should be amicable for all sides and that transferring apprentices
should be tested to ensure proper placement in the new apprenticeship
program. Other commenters asserted that an involuntary transfer could
adversely impact the affected apprentice and the affected
apprenticeship program sponsors or committees. Another commenter
questioned whether the proposed rule requires acceptance of transfers.
Three commenters stated that modifying this section of the rule should
be solely a State and sponsor responsibility.
Response: We agree that the commenters have valid concerns about
unilateral decisions for apprentices to transfer and the potential for
an adverse impact on one of the affected parties. Accordingly, we have
revised Sec. 29.5(b)(13) to provide that a transfer must be based on
agreement between the apprentice and the affected apprenticeship
committees or program sponsors. An apprentice cannot unilaterally
transfer from one program to another or from one employer to another
employer in the same program, without the consent of the affected
apprenticeship committees or program sponsors.
We disagree that modifications to Sec. 29.5(b)(13) should be
solely a State and sponsor responsibility. The regulatory framework for
the National Apprenticeship System, established by this part, must
address the issue of transfer to ensure that all apprentices regardless
of geographic location and program sponsor have equal and uniform
access to the same provisions for transfer. However, procedural and
administrative issues associated with the transfer of apprentices, such
as testing and determination of appropriate placement of the apprentice
and the means of reaching agreement among affected parties, are more
appropriately addressed in policy guidance to be issued by the Office
of Apprenticeship, rather than in the regulatory framework for the
National Apprenticeship System. Accordingly, the Office of
Apprenticeship will consult with apprenticeship program sponsors and
State Apprenticeship Agencies to develop and issue guidance that
effectively addresses these concerns.
Several commenters said provisions in proposed Sec.
29.5(b)(13)(ii) which would permit transfer to a related occupation or
within the same occupation would not benefit apprentices, especially if
a program sponsor or employer were to shift apprentices between jobs
and tasks without ensuring proper skills and knowledge development.
Three commenters suggested that transfers must be within the same
occupation or trade. One commenter noted that many apprenticeship
programs in the building and construction industries have provisions in
their standards for transfer of apprentices to other programs within
their occupations.
Response: The proposed revisions to the requirements for transfers
were intended to benefit the apprentice by providing greater
flexibility should he or she demonstrate that transferring to another
apprenticeship program was necessary to accommodate variations in his
or her career development plans. The proposed changes were not intended
to provide program sponsors with unlimited latitude to move apprentices
among different occupations to accommodate the sponsors' workforce
needs. We have been persuaded by commenters' assertions that an
apprentice does not become a journeyworker in a skilled trade by
transferring from skilled trade to skilled trade; such as an operating
engineer working as a carpenter, electrician or painter. Also, there is
some validity to the concern that reference to a ``related occupation''
could be ambiguous and overly broad and could result in transfers to
different trades or occupations for which the apprentice has no
training under the guise of being ``related.'' Further it would be
unreasonable to expect an employer to pay a transferring apprentice
commensurate period wages without appropriate occupational experience.
Therefore, the final rule carries forward existing provisions which
limit transfer to the same occupation.
Other commenters suggested that provisions in proposed Sec.
29.5(b)(13)(i) requiring that the committee or program provide a
transferring apprentice a transcript of related instruction and on-the-
job learning would encourage recruitment between apprenticeship
programs instead of focusing on greater outreach.
Response: We have not changed the requirement that the transferring
apprentice must be provided a transcript. The requirement for a program
sponsor or committee to provide a transferring apprentice a transcript
of related instruction and on-the-job learning is necessary to further
align the National Apprenticeship System with post-secondary training
and education systems, and credentialing systems. Those systems provide
participants with documentation of what they have learned through a
particular course, series of instructions, or training program.
Additionally, the provisions in the final rule requiring agreement
among the apprentice and the affected apprenticeship committees or
program sponsors for a transfer will mitigate the potential for program
sponsors to focus on recruitment between programs. As discussed above,
the program with which the apprentice is originally registered must
agree to the transfer.
In addition, the final rule continues to serve the purpose of
existing Sec. 29.5(b)(13), which allows an employer to transfer its
training obligation to another employer, with the consent of the
apprentice and the apprenticeship committee or program sponsor. As
discussed above, the Department does not foresee that transfers of
apprenticeship registration from one program to another or from one
employer to another would occur frequently or with regularity. The
intent of this provision is to provide flexibility for an apprentice to
continue his or her apprenticeship in changing circumstances.
Interim Credentials
Changes to proposed Sec. 29.5(b)(15) would add a provision for
issuance of an interim credential in recognition that an apprentices
has attained skills or satisfied certain requirements as he or she
progresses through a competency-based or hybrid apprenticeship program.
The proposed revision also carries forward the existing requirement for
issuance of a certificate of completion in recognition of successful
completion of an apprenticeship program. We received 93 comments on
proposed Sec. 29.5(b)(15). Some commenters expressed support for
[[Page 64412]]
interim credentials. Several commenters questioned the need for
provisions on interim credentials, while others noted that program
sponsors, employers, and others, already issue such credentials.
Response: Section 29.5(b)(15) continues to provide, as does the
existing rule, for a certificate that documents the successful
completion of an apprenticeship program. However, the commenters have
raised some valid concerns as to the proposed requirements for interim
credentials. To address these issues and to further clarify the
requirement for interim credentials, the final rule separates
requirements for interim credentials into a new, discrete paragraph,
Sec. 29.5(b)(16), and renumbers all subsequent paragraphs in Sec.
29.5(b) as final Sec. 29.5(b)(17) through final Sec. 29.5(b)(23).
The proposed provisions for interim credentials were not intended
to require all program sponsors to issue interim credentials, nor even
to require that all sponsors choosing to use the competency-based
approach or hybrid approach issue interim credentials. Final Sec.
29.5(b)(16) clarifies that program standards for apprenticeship program
sponsors that choose to use the competency-based or the hybrid approach
for completion of an apprenticeship and that choose to issue interim
credentials must clearly identify the interim credentials, demonstrate
how these credentials link to the components of the apprenticeable
occupations, and establish the process for assessing an individual
apprentice's demonstration of competency associated with the particular
interim credential. Further, interim credentials must only be issued
for recognized components of an apprenticeable occupation, thereby
linking interim credentials specifically to the knowledge, skills, and
abilities associated with those components of the apprenticeable
occupation.
Commenters expressed concern that the use of interim credentials
would redefine what journeyworker status means. Over twenty commenters
asserted that provisions for interim credentials would diminish the
value of or deter trainees from obtaining journeyworker status. Other
commenters misinterpreted the provisions for interim credentials as
permitting program sponsors to reduce requirements for on-the-job
learning necessary to achieve particular skills and abilities, thereby
producing inadequately trained journeyworkers. Some commenters stated
that these provisions could weaken the workforce by producing workers
with specialized, rather than comprehensive, training for parts of an
occupation. Other commenters asserted that ultimately, issuance of
interim credentials could lead to a segment of the workforce working
for lower wages, with less job security.
Response: We disagree with the assertions that interim credentials
may potentially negatively impact the workforce and the value of
journeyworker status. As discussed above, in some industries program
sponsors in pilots of competency-based apprenticeship programs already
are using interim credentials, having determined that some
apprenticeable occupations are capable of being segregated into
discrete competencies or levels of skill attainment which can serve as
discrete milestones on the path to journeyworker status. Providing an
interim credential to show that an apprentice has reached those
milestones merely acknowledges that fact. Therefore, interim
credentials are not intended to narrow the breadth and depth of the
training component of registered apprenticeship. Rather, they provide
opportunities for apprentices to obtain portable credentials
commensurate with the skills and competencies acquired and demonstrated
throughout an apprenticeship. Therefore, attainment of an interim
credential may provide the apprentice who must leave the program with
the means to obtain a better job than he or she could without the
credential.
As discussed above in the discussion of the definition of interim
credentials, the issuance of a certificate of completion of
apprenticeship, and the associated ``journeyworker'' level status,
remain the ultimate goal for the National Apprenticeship System.
Interim credentials do not indicate that the apprentice has met all of
the requirements of the apprenticeship, nor that he or she has
successfully mastered the full range of skills and competencies
required for an occupation. The certificate of completion is the only
credential that properly conveys that the apprentice has successfully
met the requirements of the apprenticeship program. Therefore,
designation of ``journeyworker'' and the associated status will not be
affected by use of interim credentials. However, in recognition of
stakeholders concerns over the impact of interim credentials, the
Department will establish a process to assess implementation of interim
credentials. Initially, Registration Agencies and program sponsors will
use the quality assurance assessment process to identify and assess any
impact of interim credentials on program operations and outcomes.
Following consultation with stakeholders of the National Apprenticeship
System, the Office of Apprenticeship intends to issue policy guidance
on the review of interim credentials.
Thirty commenters expressed concern about potential negative
impacts for the National Apprenticeship System if interim credentials
are based on sponsor standards instead of industry standards. These
commenters asserted that national standards are necessary so that the
credential can be portable and meaningful to employers across different
regions.
Response: In the National Apprenticeship System, a sponsor can only
register standards for apprenticeship programs that train and employ an
apprentice in occupations that have been determined ``apprenticeable.''
The Office of Apprenticeship has established criteria and procedures
for recognizing an apprenticeable occupation that require industry
verification and validation of the skills and knowledge necessary for
the occupation. This process intentionally incorporates industry
participation so that the credentials associated with progression
through an apprenticeship program for an apprenticeable occupation will
be portable and have meaning to employers nationwide. As discussed
above, new Sec. 29.5(b)(16) clarifies that interim credentials must
only be issued for recognized components of an apprenticeship
occupation. Therefore, the interim credentials associated with the
specific skills and knowledge for an apprenticeable occupation are
verified and validated by industry through the process of approving the
apprenticeable occupation.
Numerous commenters suggested that provisions on interim
credentials would place additional resource (e.g., time and
documentation) burdens on Registration Agencies with no apparent
provisions for verification of the credential's validity. Some
commenters recommended that the use of interim credentials should not
be mandated or should be left to the discretion of States to mandate.
Response: While we consider interim credentials to be a valuable
tool for furthering apprenticeship, we emphasize that program sponsors
are not required to develop and register standards of apprenticeship
that include interim credentials, nor are recognized State
Apprenticeship Agencies required to issue interim credentials. We
anticipate that such credentials will be used most frequently by
programs that
[[Page 64413]]
take the competency-based or hybrid approach to progression through
apprenticeship. Further, in the Department's pilots with competency-
based apprenticeship programs, Registration Agencies have provided
technical assistance to sponsors to help identify the appropriate
procedures and criteria for determining if and when an apprentice
merits receiving an interim credential. The Department anticipates that
Registration Agencies will continue to provide such technical
assistance in the development of competency-based and hybrid
apprenticeship programs, and issuance of interim credentials associated
with these programs. As with certificates of completion, Registration
Agencies are the entities responsible for issuing interim credentials,
at the request of a program sponsor.
The Department acknowledges that instituting a process for the
issuance of interim credentials would constitute an additional burden
for those State Apprenticeship Agencies that currently do not issue
such certifications. Based on comments expressing concern about
potential time and documentation burdens, we agree that State
Apprenticeship Agencies should not be required to issue interim
credentials as a pre-condition for recognition. Accordingly, while
recognized State Apprenticeship Agencies may choose to issue interim
credentials using their own procedures in compliance with this part,
the final rule does not require them to do so. However, in order to
maintain uniformity across the National Apprenticeship System and
further apprentices' progression through apprenticeship, the Department
has determined that opportunities must be available nationwide for
program sponsors to register program standards that use a competency-
based or hybrid approach for completion of apprenticeship and that
issue interim credentials. Therefore, the Office of Apprenticeship will
offer to issue interim credentials, nationwide, where the prerequisites
are met. If a recognized State Apprenticeship Agency registers program
standards that use a competency-based or hybrid approach, but does not
issue interim credentials, the program sponsor may request that the
Office of Apprenticeship issue interim credentials to apprentices who
have successfully met the requirements of an interim credential
established in the program standards for their respective
apprenticeship programs. If a recognized State Apprenticeship Agency
does not register program standards that use a competency-based or
hybrid approach, then a program sponsor can petition to register the
apprenticeship standards with the Office of Apprenticeship for Federal
purposes, and the Office of Apprenticeship will issue interim
credentials, when prerequisites are met.
Two commenters maintained that mandating the use of interim
credentials would cause apprenticeship programs to incur the enormous
costs of developing testing to determine whether apprentices are
entitled to interim credentials.
Response: As discussed above, the final rule does not mandate use
of interim credentials. Program sponsors that chose to register
standards for competency-based or hybrid programs that provide for the
issuance of interim credentials would bear the costs associated with
developing and operating these apprenticeship programs. All registered
apprenticeship program sponsors voluntarily operate apprentice programs
and choose to incur the costs associated with the programs
Cancellation Rate
Seventeen commenters expressed concern that the length of the
probationary period was not defined in proposed Sec. 29.5(b)(19),
which provided simply that cancellations during an apprentice's
probationary period will not adversely impact the sponsor's completion
rate. The completion rate is a new factor for evaluation of program
performance proposed in Sec. Sec. 29.6(b) and (c). Several commenters
suggested defining a specific ``not to exceed'' time for probationary
periods, such as 15 percent or 20 percent of a program's length. Many
commenters were concerned that without a time limit on the probationary
period, the proposed regulations could permit an apprenticeship program
to leave apprentices in probationary status for an extended period of
time in an effort to improve the program's performance ratings or
conceal the program's deficiencies.
Twelve commenters believed that not counting cancellations during
the probationary period, or allowing programs to adjust the length of
the probationary period, could artificially improve completion rates.
Others felt that cancellation rates during the probationary period, if
properly categorized, can be used to evaluate program performance. Some
commenters stated that it would be important to monitor programs that
have a high rate of attrition during probationary period to check for
abuses. Others advocated that only cancellations that were due to
failure to provide training in accordance with the sponsor's approved
standards should be counted in completion rates, asserting that the
proposed rule's inclusion of cancellation rates after the probationary
period in calculation of completion rates did not distinguish between
those cancellations that were the fault of the program and those over
which the program has little if any control.
Response: We agree that it is important to monitor programs with a
high cancellation rate during probationary periods. For many years the
Office of Apprenticeship has included cancellation rates as a factor
for consideration when staff members conduct quality assurance
assessments, and if appropriate, has used this information in the
provision of technical assistance to program sponsors. Although the
final rule does not provide for inclusion of cancellations that occur
during probationary periods in the calculation of completion rates,
this important information is reviewed, evaluated, and addressed
through the quality assurance assessment process.
We also agree that without a limit to the probationary period, the
regulation could allow the information used in calculating completion
rates to be skewed, thereby impacting the evaluation of program
performance. In recognition of the concerns of the commenters, we have
added language to Sec. 29.5(b)(8) limiting the length of the
probationary period. Historically, National Guideline for
Apprenticeship Standards recognized by the Office of Apprenticeship
have used 25 percent of the length of the program as the benchmark.
Accordingly, the final rule provides that the probationary period
cannot exceed 25 percent of the length of the program, or one year,
whichever is shorter.
We disagree that only cancellations due to the failure to provide
training in accordance with the sponsor's approved standards should be
counted in completion rates. Program sponsors' policies and
administrative procedures such as not providing steady work experience
reduce the apprentices' opportunities to earn wages, and thereby can
impact an apprentice's ability to remain registered in a program.
Therefore, analysis of a program's cancellations rates can provide
important indications of the need to further evaluate a program's
operations, policies, and procedures, and if needed provide technical
assistance. As discussed further in the discussion of program
performance standards, we emphasize that a Registration Agency's
evaluation of
[[Page 64414]]
completion rates will include analysis of mitigating factors. No
substantive changes have been made to proposed Sec. 29.5(b)(19); which
will be promulgated as Sec. 29.5(b)(20).
Program Performance Sandards (Sec. 29.6)
Section 29.6 is a new section that focuses on the quality and
performance of registered apprenticeship programs. A few commenters
generally supported the proposed changes to this section, but
questioned the Office of Apprenticeship's ability to successfully
evaluate all of the registered programs, given current budget and
staffing levels.
Response: The Department agrees that a Registration Agency requires
adequate resources to successfully evaluate all registered programs
under the provisions of this section. The Office of Apprenticeship
staff has been conducting quality assurance assessments and Equal
Employment Opportunity Compliance Reviews as part of their normal
responsibilities for helping to ensure that program sponsors comply
with the requirements of these regulations and part 30. The processes
for conducting these reviews currently include assessing a program's
performance against key indicators including completion and
cancellations rates. Therefore, the functions of calculating completion
rates, conducting quality assurance assessments and Employment
Opportunity Compliance Reviews, and providing technical assistance, as
required by final Sec. 29.6 have effectively been a part of the Office
of Apprenticeship's current practices for evaluating and monitoring
programs. To the extent that the Office of Apprenticeship's current
resources may become constrained by requirements of this section, we
may realign resources internally to effectively and efficiently conduct
these activities.
At Least One Registered Apprentice
Section 29.6(a) provides that every program must have at least one
registered apprentice in order to be designated and retain designation
as a registered apprenticeship program for Federal purposes. Commenters
observed concern that there may be times when a program is between
training cycles and has no apprentices for a short period of time.
Other commenters asserted that this provision does not adequately
address apprenticeship programs with one or a few apprentices who never
graduate. Some commenters suggested establishing time frames for
determining if programs have an active apprentice or apprentices.
Response: We agree that there may be times when a sponsor may have
a lag between training cycles and be without a registered apprentice
for a short period of time. However, when a program lies dormant for a
substantial period of time, it is appropriate to consider the program
as no longer viable. Therefore, we agree with the suggestion to
establish time frames for determining if a program has an active
apprentice to account for the short lag times mentioned in the comment
and other reasonable periods of inactivity that may occur in otherwise
active programs. We consider a period of up to 1 year to be a
reasonable period of inactivity. We have determined that the time frame
for a program to not have an apprentice registered with a Registration
Agency should not exceed 1 year. We have revised Sec. 29.6(a)
accordingly.
With regard to commenters assertion that this provision does not
adequately address programs that never graduate an apprentice, the
requirements set forth in 29.6(b) will hold those programs accountable.
Evaluation of Program Performance
Twenty-eight comments addressed Sec. 29.6(b), which provides a
non-exclusive list of tools and factors that must be considered in
evaluating the performance of a registered apprenticeship program. Nine
commenters expressed concern that there is no proposed definition of
``quality assurance assessment,'' one of the tools and factors to be
considered in evaluating performance. Many requested a definition of
``completion rate.'' Other commenters requested that the Department
clarify the intended purpose of each of the performance tools and
factors and how they are to be used. One commenter suggested adding a
requirement that the ``tools and factors'' be consistent with Federal
standards and goals so that States could not add factors that
conflicted with this part, 29 CFR part 30, or the National
Apprenticeship Act.
Response: We agree that definitions for the terms ``completion
rate'' and ``quality assurance assessment'' would provide greater
clarity to the proposed performance accountability framework
established by the final rule. Accordingly, as discussed above, we have
added definitions for the terms ``completion rate'' and ``quality
assurance assessment'' to Sec. 29.2.
The three performance factors specifically required are quality
assurance assessments, Equal Employment Opportunity Compliance Reviews,
and completion rates. As discussed above in the discussion of the
definitions in Sec. 29.2, quality assurance assessments are
comprehensive reviews conducted by a Registration Agency to determine
if an apprenticeship program is addressing its program standards and
meeting the requirements of this part. Equal Employment Opportunity
Compliance Reviews are required under part 30. Data on a program's
completion rates are intended to provide Registration Agencies with
information useful to support technical assistance efforts to improve
program performance. We emphasize that any additional tools and factors
used by Registration Agencies in evaluating program performance must
adhere to the goals and policies of the Department articulated in this
part and in guidance issued by the Office of Apprenticeship.
Completion Rate
A Registration Agency's use of completion rates in evaluating
program performance, provided by proposed Sec. Sec. 29.6(b) and (c),
received mixed reviews. One commenter asserted that the proposed rule
will likely result in an annual effect on the economy of $100 million
or more, and therefore the proposed rule qualifies as a major rule
under Executive Order 12866 and the Small Business Regulatory
Enforcement Act (SBREFA). The commenter asserted that State and local
governments are including bid provisions that require contractors to
have apprentices who have successfully completed an apprenticeship
program approved by the Department or a recognized State Apprenticeship
Agency as a condition of bidding and participating on a project. The
commenter asserted that such bid requirements will likely foreclose
unilateral apprenticeship program sponsors from being able to bid on,
and be awarded State and local construction projects, which will likely
have an annual adverse impact on the economy exceeding $100 million.
Although the comment did not mention a particular section of the rule,
we have determined that the commenter's estimate of anticipated impact
was primarily based on the expected costs of compliance with Sec. Sec.
29.6 (b) and (c). The commenter recommended that the Department
withdraw the proposed provisions for completion rates, so that the
Office of Apprenticeship can conduct further study and discussion with
interested stakeholders.
Many commenters noted that evaluating apprenticeship programs on
the basis of completion rates would align the National Apprenticeship
System with other Federal education programs that make eligibility for
receipt of Federal funding dependent, in
[[Page 64415]]
part, on the program's achievement of minimal graduation rates. Others
stated that the evaluation would improve program accountability, ensure
high-quality training, or reflect the effectiveness of programs.
However, another commenter asserted that reference to completion rates
could unfairly penalize programs that make an affirmative effort to
recruit apprentices from non-traditional pools, as the drop-out rate
for those recruited from riskier groups may be higher than normal.
Other commenters stated that use of completion rates could also
penalize small programs, whose completion rates could be affected
dramatically by the cancellation of only one or two apprenticeship
agreements.
Some commenters opposed provisions of proposed Sec. 29.6(c) that
provide for evaluation of completion rates of programs located in the
same geographical areas, and as necessary, further review and provision
of technical assistance to maintain and improve program performance.
One commenter asserted that it was onerous and short-sighted to compare
programs, rather than individually evaluate programs based on their
merits. Another commenter characterized this particular proposed
provision as highly subjective and ambiguous, suggesting that the
standard should set a minimum completion rate above which a program's
completion rate will not be deemed a negative factor. Another remarked
on the absence of firm standards in this proposed regulation. Others
asserted that this proposed requirement would favor union-operated
programs and do nothing to improve apprenticeship programs.
Response: The Department does not agree that evaluating completion
rates as an indicator of program quality would unfairly penalize
programs that recruit from non-traditional applicant pools, nor do we
agree that completion rates would penalize small programs whose
completion rates could be affected dramatically by cancellation of one
or two apprenticeship agreements. The primary purpose of the completion
rate evaluation is not to penalize programs. As described below, our
goal is to establish an assessment mechanism to identify programs that
will benefit from technical assistance to become high performing
programs. Only when programs demonstrate a persistent and significant
failure to perform successfully will poor completion rates factor into
potential deregistration proceedings.
We agree that comparing like programs, particularly when there may
only be one comparable program in a geographical are, may not be a
feasible, effective approach for the evaluation of completion rates. We
also agree with the suggestion to establish a minimum completion rate
above which a program's completion rate will not be deemed a negative
factor. We have determined that the national average for apprenticeship
completions would be a reasonable benchmark to use in evaluating the
performance of registered apprenticeship programs for purposes of
identifying programs in need of technical assistance. Accordingly, we
have revised Sec. 29.6(c) to require that a Registration Agency review
a program's completion rates in comparison to the national average for
completion rates. Programs with completion rates lower than the
national average will receive technical assistance from a Registration
Agency. As stated in the NPRM, the use of completion rates in program
reviews is not intended to limit or terminate existing apprenticeship
programs that are receiving technical assistance from a Registration
Agency and demonstrating improved program performance, or to impede
prospective apprenticeship program sponsors. Rather, the use of
completion rates is intended to strengthen the program outcomes and
quality in the National Apprenticeship System by setting a benchmark
that identifies programs that could benefit from technical assistance.
In order to reflect the focus on technical assistance for programs
with completion rates below that national average, we have dropped the
reference that appeared in proposed Sec. 29.6(c) for the Registration
Agency to ``take other appropriate action'' against such programs.
Deletion of this phrase is meant to clarify that simply falling below
that national average for completion rates does not lead to
deregistration procedures. Completion rates may potentially factor into
deregistration procedures only when they demonstrate an ongoing pattern
of very low completion rates over a period of several years (see
discussion of ``persistent and significant failure to perform'' below).
Rather than specifying the details for implementation of program
performance standards in registered apprenticeship, we believe the best
use of Sec. 29.6 is to establish a regulatory framework that provides
the basis for the Office of Apprenticeship to issue more detailed
guidance. The Office of Apprenticeship will consult with apprenticeship
program sponsors and recognized State Apprenticeship Agencies to
develop and issue guidance regarding program performance standards and
accountability in the National Apprenticeship System. This consultation
process would also be responsive to a commenter's recommendation to
further discuss provisions for completion rates with interested
stakeholders. This approach is similar to the Department's regulatory
framework and performance management system established for the
programs under the Workforce Investment Act.
The Department disagrees with assertions that there is a
relationship between bid requirements for State and local construction
projects and provisions for completion rates in Sec. Sec. 29.6(b) and
(c) which will likely have an annual impact on the economy exceeding
$100 million. None of the provisions in final Sec. 29.6 nor any other
provision in the final rule provide for or relate to the establishment
bid requirements for State and local construction projects.
Cancellation of Apprenticeship Agreements During Probationary Period
Many commenters opposed provisions of Sec. 29.6(d) which provided
that the cancellation of apprenticeship agreements during the
probationary period would not have an adverse impact on a sponsor's
completion rate. One commenter stated that all cancellations should be
considered in program reviews, particularly to deter program sponsors
who register programs primarily to meet contract requirements for
Federal works projects under the Davis-Bacon Act.
Response: Existing regulations provide for a probationary period,
in recognition that both the apprenticeship sponsor and the apprentice
should have sufficient time to determine if the apprenticeship
agreement is beneficial. During the probationary period, apprentices
may have many reasons for cancelling their agreements, which may have
nothing to do with the program. Including apprenticeship agreement
cancellations during the probationary period in the calculation of
completion rates may inadvertently cause program sponsors to adopt more
stringent selection requirements, in an effort to minimize being
penalized. More stringent selection requirements could reduce or limit
apprenticeship opportunities that would otherwise have been available.
We seek to avoid a regulatory framework that would unintentionally
reduce apprenticeship opportunities. However, Registration Agencies do
include cancellation rates as important information in their oversight
of registered apprenticeship programs. Cancellation rates, including
those that occur during the probationary
[[Page 64416]]
period, are reviewed in conjunction with the Equal Employment
Opportunity compliance reviews. If appropriate, Registration Agencies
use this information for the provision of technical assistance.
Therefore, we have determined that the proposal for the cancellation of
an apprenticeship agreement not to have an adverse impact on a
sponsor's completion rate if the cancellation occurs during the
apprentice's probationary period is an appropriate balance between the
need to hold program sponsors accountable and the need to promote
apprenticeship opportunities. We have made no changes to Sec. 29.6(d).
Apprenticeship Agreement (Sec. 29.7)
We received three comments on proposed Sec. 29.7, regarding
requirements for apprenticeship agreements, none of which advocated for
major changes to the proposed provisions. The proposed changes update
terminology, align the apprenticeship agreement with the three
approaches to apprenticeship progression (time-based, competency-based,
or hybrid), and add space on the agreement in which apprentices would
voluntarily provide their Social Security Number. The Registration
Agency will use apprentices' Social Security Numbers for performance
management and Davis-Bacon Act purposes; in particular, for use in
calculating employment outcomes of the National Apprenticeship System
as defined in the Department's common measures for Federal job training
programs. The Department has an approved information collection request
for the use of Social Security Number information on an apprenticeship
agreement (OMB Control Number 1205-0223). One commenter suggested that
the proposed changes will result in an undue time and financial burden
for State Apprenticeship Agencies. Two commenters suggested additional
requirements for collection of equal employment opportunity
information, which are beyond the scope of revisions to part 29.
Response: While revising forms will require the expenditure of
resources, the changes and resulting revisions to the form will be
minimal. Moreover, the changes are necessary for the National
Apprenticeship System to continue to align with changes in approaches
to on-the-job learning, as well as the broader environment in which
apprenticeship programs operate.
We note that the non-discrimination provisions in Sec. 29.7 are
limited to the prohibitions that are applicable under part 30,
regulations for Equal Employment Opportunity in Apprenticeship and
Training, and do not describe the full range of Equal Employment
Opportunity protections that may be applicable to registered
apprenticeship programs. Registered apprenticeship programs are subject
to other Federal, State and local laws and regulations regarding Equal
Employment Opportunity in employment and training, such as the
Americans with Disabilities Act, the Age Discrimination in Employment
Act, and Title VII of the Civil Rights Act of 1964.
Upon further review, we have determined that there are three minor
changes necessary to align this section with revisions to the
definitions and standards of apprenticeship discussed above. With the
deletion of the definition for ``supplemental instruction,'' as
discussed above in the discussion of definitions, this term is no
longer appropriate for requirements in Sec. 29.7(e)(2) regarding
number of hours in related instruction. We have revised Sec.
29.7(e)(2) accordingly. For consistency with final Sec.
29.5(b)(2)(ii), which specifies that competency-based programs must
still require an apprentice to complete the on-the-job learning
component of registered apprenticeship, we have revised the requirement
in Sec. 29.7(e) for competency-based programs to include statements
about on-the-job learning. We have also replaced the term ``school
time'' in 29.7(g) with a more appropriate term, ``related
instruction,'' to describe whether or not the apprentice is compensated
during the related instruction component of registered apprenticeship.
Deregistration of a Registered Program (Sec. 29.8)
Section 29.8 clarifies the provisions for deregistration of
registered apprenticeship programs. We have corrected a mistake in
proposed Sec. 29.8(b)(1) by replacing ``and'' with ``or'' to clarify
that the Registration Agency may undertake deregistration proceedings
when a program is not conducted, operated or administered in accordance
with the program's registered provisions or with the requirements of 29
CFR part 29.
Five commenters addressed proposed changes in Sec. 29.8, which
clarifies existing Sec. 29.7 provisions for deregistration of
registered apprenticeship programs. One commenter requested
clarification as to whether a program would automatically enter the
deregistration process if it is without an apprentice for 15 or more
days. Two comments expressed concern about the Department's ability to
sufficiently address the burdens associated with deregistration
procedures, emphasizing that deregistration should be conducted at the
local level rather than the Federal level. Three commenters asserted
that the proposed rule would usurp power from State Apprenticeship
Agencies.
Response: A program that is without an apprentice for 15 days is
not subject to deregistration. As discussed with regard to Program
Performance Standards above, revised Sec. 29.6(a) allows for a time
lag of up to 1 year between training cycles, during which a program
could be without a registered apprentice. To address ambiguity
regarding a relationship between failure to meet the new program
performance standards established in Sec. 29.6 and requirements for
deregistration of a registered program established in Sec. 29.8, we
have also revised in the final rule Sec. 29.8(b)(1) to clarify the
circumstances in which deregistration proceedings may be undertaken for
failure to conduct, operate or administer the program in accordance
with the requirements of part 29. These circumstances include: the
failure to meet longstanding standards of the National Apprenticeship
System, such as failure to provide on-the-job learning, failure to
provide related instruction, and failure to pay the apprentice a
progressively increasing schedule of wages consistent with the
apprentice's skills. In addition, the persistent and significant
failure to perform successfully under the new performance standards
established in section 29.6 may also lead to deregistration. However, a
persistent and significant failure to perform successfully does not
occur simply when a program's completion rate falls below the national
average. Deregistration proceedings apply to programs with severe
performance problems. A persistent and significant failure to perform
successfully occurs when a program sponsor consistently fails to
register at least one apprentice, shows a pattern of poor quality
assessment results over a period of several years, demonstrates an
ongoing pattern of very low completion rates over a period of several
years, or shows no indication of improvement in the areas identified by
the Registration Agency during a review process as requiring corrective
action.
With regard to concerns about burdens associated with
deregistration procedures and usurping power from the State
Apprenticeship Agency, Sec. 29.8 deletes the term ``Bureau (Office of
Apprenticeship) registered programs'' and uses the term ``Registration
Agency'' to clarify that program
[[Page 64417]]
deregistration procedures outlined in Sec. Sec. 29.8(a) and (b) are
conducted at the State level, by the Registration Agency. In States
where the State Apprenticeship Agency is the Registration Agency,
deregistration proceedings will be conducted by the State
Apprenticeship Agency. Any such proceeding would be required to comply
with Sec. 29.8.
We emphasize that final Sec. 29.8 carries forward existing
practice that has evolved under current regulations, in which the
Department has deferred to recognized State Apprenticeship Agency
authority in matters of program deregistration. Therefore, the
Department anticipates having sufficient resources to address any
burdens associated with deregistration procedures, as these matters
will primarily pertain to deregistration proceedings in States where
the Department is the Registration Agency.
Final Sec. 29.8(b)(7) clarifies that if a sponsor requests a
hearing, the Administrator refers the matter to an Administrative Law
Judge, who will convene a hearing and issue a decision in accordance
with Sec. 29.10(c). This clarification aligns the final rule with
Secretary's Order 1-2002, 67 FR 64272, Oct. 17, 2002, which provides
that an Administrative Law Judge's decision in a program deregistration
is only subject to discretionary review by the Administrative Review
Board.
Reinstatement of Program Registration (Sec. 29.9)
The Department received one comment on this section. The commenter
agreed with the proposed text on reinstatement of program registration.
Response: We are promulgating final Sec. 29.9 as proposed.
Hearings for Deregistration (Sec. 29.10)
Four commenters addressed proposed changes to Sec. 29.10, which
sets the requirements for deregistration hearings. One commenter agreed
with the proposed changes. Another commenter opposed the provisions in
this section on the basis that hearings for deregistration should be
kept at the State level. A third commenter asked if this section
applies to programs registered with State Apprenticeship Agencies.
Another commenter indicated that the public had not been allowed
sufficient time to review the Office of Administrative Law Judges
hearing rules at 29 CFR part 18, which will apply to deregistration
hearings. This commenter also suggested that the proposed changes to
the method of appeal in existing Sec. 29.9 would reduce access to due
process of law. The commenter suggested that a hearing before an
Administrative Law Judge, as established in Sec. 29.10, differs
considerably from proceedings before a hearing officer or a trial by
jury.
Response: We disagree with the commenter's assertions that the
Administrative Law Judge procedures would reduce access to due process
and that the public has not been allowed sufficient time to review the
Office of Administrative Law Judges hearing rules at 29 CFR part 18.
The applicable rules of procedure at 29 CFR part 18 provide uniform
rules for the conduct of hearings for a wide range of Department of
Labor programs. These rules are consistent with the Administrative
Procedure Act's requirements for the conduct of agency adjudications.
However, upon review further, we have determined that it is more
appropriate for the notice from the Administrative Law Judge to refer
to the request as a request for a hearing, rather than a request for a
review, as proposed in the NPRM. We have revised 29.10(b) accordingly.
We disagree with the commenter's assertion that hearings for
reinstatement of program registration should be kept at the State
level. Under existing Sec. 29.9 such hearings are conducted at the
Federal level. Final Sec. 29.10 merely changes the Federal official
conducting the hearing.
We note that the requirements for hearings for deregistration apply
to all programs that have been registered for Federal purposes,
regardless of whether the program is registered with the Office of
Apprenticeship or for Federal purposes with a recognized State
Apprenticeship Agency.
Except as noted, we will promulgate final Sec. 29.10 as proposed.
Limitations (Sec. 29.11) and Complaints (Sec. 29.12)
One comment was received on each of these two proposed provisions,
both expressing support.
The Department will promulgate Sec. 29.11 and Sec. 29.12 as
proposed.
Recognition of State Apprenticeship Agencies (Sec. 29.13)
Proposed Sec. 29.13 revises the provisions in existing Sec. 29.12
that address the recognition of State Apprenticeship Agencies for
Federal purposes and clarifies how the Office of Apprenticeship
oversees the National Apprenticeship System. We received 125 comments
on this section overall, 110 of which addressed specific provisions,
including limiting recognition to the State Apprenticeship Agency; role
of the State Apprenticeship Council; linkages with economic development
and workforce investment systems; location of a State Apprenticeship
Agency; requirements for resources to carry out the functions of a
Registration Agency; reciprocal approval of programs and standards in
the building and construction industries; Departmental review and
approval of State apprenticeship legislation, regulations, policies,
and operational procedures; application for recognition; and renewal
and maintenance of recognition. Several commenters strongly opposed the
revisions, asserting that the proposed changes were overly prescriptive
and would significantly limit a State's authority to oversee registered
apprenticeship functions within its jurisdiction. It is our
responsibility to ensure that States recognized as having such
authority continue to conform to the Federal requirements on which the
recognition is based. As described below, the Department's recognition
of a State Apprenticeship Agency pertains to granting Federal-State
partnership in which the Department grants the State authority to act
on our behalf as a Registration Agency. The provisions of parts 29 and
30 set the conditions for a State to obtain and maintain that
authority; these provisions are not meant to impact State authority to
regulate apprenticeship for State purposes.
Roles of State Apprenticeship Agencies
Twelve comments focused on proposed Sec. 29.13(a), which provides
for ``recognition'' only of a State Apprenticeship Agency, and not a
State Apprenticeship Council, and provides that the Department's
recognition of the State Apprenticeship Agency confers ``non-exclusive
authority'' to determine whether an apprenticeship program meets
published standards and is eligible for those Federal purposes which
require such a determination. Some commenters asserted that these
changes conflict with their States' current law, whereby a State
Apprenticeship Council oversees the State's apprenticeship system or
promulgates regulations that oversee a State Apprenticeship Agency's
work. Thus, the proposed changes would require revisions to State
apprenticeship law and regulation. Another suggested that the
Department should not dictate to the States the nature and structure of
their government.
Response: Our experience has shown that a government-to-government
relationship with a State Apprenticeship Agency facilitates the
[[Page 64418]]
smooth functioning of the National Apprenticeship System, thus best
protecting apprentices' interests. Although the members of a State
Apprenticeship Council represent diverse employer, labor, and public
interests and have knowledge and experience that enables them to be
strong advocates for apprenticeship, many of them are not State
officials. Therefore, members of the State Apprenticeship Council are
not, ultimately, accountable to the State or to the Department for
their actions. Such accountability is essential to the functioning of
the National Apprenticeship System, especially where it comes to
safeguarding the welfare of apprentices and promoting apprenticeship
opportunity. State officials represent the interests of the entire
State and are accountable for their actions. Accordingly, our proposal
to extend recognition only to State Apprenticeship Agencies is
necessary to ensure that the entity that is held accountable for
conformity with part 29 is clearly identified. This proposal does not
dictate the nature and structure of State government; it merely
identifies the State government entity to which the Department will
grant authority to act on our behalf as a Registration Agency. The
existing regulations do not specify that a recognized Registration
Agency must be a government cabinet-level agency. Changes to Sec.
29.13(a) clarify this requirement and further align the proposed
regulations for the National Apprenticeship System with the National
Apprenticeship Act, which states that the Department is to ``cooperate
with State agencies engaged in the formulation and promotion of
standards of apprenticeship.'' Therefore, we have made no changes to
Sec. 29.13(a)(1).
Role of State Apprenticeship Councils
We received twenty (20) comments regarding proposed Sec.
29.13(a)(2), which consolidates the provisions on State Apprenticeship
Councils. Several commenters asserted that the current roles and
responsibilities of State Apprenticeship Councils and State
Apprenticeship Agencies work well, and questioned the need to adjust
this system. Many expressed concern that we are eliminating State
Apprenticeship Councils. One commenter suggested that removing a State
Apprenticeship Council's decision-making role would significantly
reduce the level of participation from key stakeholders, potentially
creating far-reaching negative effects for apprenticeship programs.
Another commenter questioned why the proposed regulations do not
identify acceptable State Apprenticeship Council membership, as
provided in existing part 29.
Response: As described above, we have determined that the effective
functioning of the Federal-State partnership in the registered
apprenticeship system requires a direct relationship between Federal
and State agencies. However, while we no longer recognize State
Apprenticeship Councils for registration purposes, we are not
eliminating the requirement to establish a State Apprenticeship Council
for regulatory or advisory purposes. Members of State Apprenticeship
Councils will continue to be critical stakeholders, whose active
participation is essential for the successful operation of registered
apprenticeship programs in their States. Based on the new
organizational system, we are limiting our direct regulation to
requirements applicable to recognized State Apprenticeship Agencies.
Given that the final rule makes recognized State Apprenticeship
Agencies responsible for registered apprenticeship for Federal purposes
in their States, we have determined that it is appropriate for such
Registration Agencies to direct the operations of the corresponding
State Apprenticeship Councils. Accordingly, we have revised Sec.
29.13(a)(2) to clarify that a State Apprenticeship Council operates
under the direction of the State Apprenticeship Agency. We reiterate
that Sec. Sec. 29.13(a)(2)(i) and (ii) carry forward provisions from
the existing regulations pertaining to State Apprenticeship Council
membership criteria. Except as noted, we are promulgating Sec.
29.13(a)(2) as proposed.
Linkages With Economic Development and Workforce Investment
Two commenters asserted that the Department lacked statutory
authority to require or mandate that the State Apprenticeship Agency
integrate with the State's economic development strategies and public
workforce investment system, as provided in Sec. 29.13(a)(6). Another
commenter expressed support for this provision, and suggested that the
Department also should encourage registered apprenticeship programs to
develop agreements with community colleges.
Response: The National Apprenticeship Act's broad mandate to
safeguard the welfare of apprentices fully authorizes the proposed
requirement for integration of registered apprenticeship into economic
and workforce development efforts. This requirement is part of a
broader trend among Federal and State workforce development programs to
increase coordination across programs in an effort to more effectively
meet the needs of businesses, workers, and regional areas. As part of
the workforce investment system, registered apprenticeship programs
should align closely with regionally coordinated talent development
strategies aimed at providing workers with the 21st century skills that
businesses and industries demand. However, upon review, we have
concluded that the terms of proposed Sec. 29.13(a)(6) regarding
linkages and coordination with economic development and the workforce
investment system fit within proposed Sec. 29.13(a)(4), which pertains
to basic standards, criteria, and requirements for program registration
and/or approval. Therefore, proposed Sec. 29.13(a)(6) has been
consolidated into Sec. 29.13(a)(4). Further, we have revised
terminology that refers to the workforce system so it includes the
phrase ``publicly-funded workforce investment system,'' to clarify that
public funding can support these linkages and coordination across State
Apprenticeship Agencies and the States' workforce investment and
economic development strategies. This revision aligns with efforts to
expand apprenticeship into high-growth, high-demand occupations.
Location of State Apprenticeship Agency
We received ten comments opposing the proposed deletion of existing
Sec. 29.12(b)(1), which sets requirements for the location of the
State Apprenticeship Agency in the State Department of Labor or in the
agency of State government having jurisdiction of laws and regulations
governing wages, hours, and working conditions. Eight commenters
suggested that relocating a State Apprenticeship Agency would likely
diminish the safety, health, and welfare of apprentices in the
workplace. One commenter stated that as a result of the rule change,
the apprenticeship program could be placed within a department or
division of State government that is not familiar with or qualified to
address issues pertaining to registered apprenticeship. Another
commenter stated that the rule change is counter to the integration of
apprenticeship into the public workforce development system and would
interfere with seamless integration of worker protection
considerations. One commenter stated that as a result of the rule
change, the apprenticeship program could be placed within a department
or division of State
[[Page 64419]]
government that is not familiar with or qualified to address issues
pertaining to registered apprenticeship.
Response: We disagree that the proposed deletion of regulatory
provisions specifying the location of a State Apprenticeship Agency
will negatively impact the welfare of apprentices, and that it counters
efforts to integrate registered apprenticeship with the public
workforce development system. Historically, registered apprenticeship
functions have resided in the area of State government that oversees
wage and hour functions, and this approach has functioned very well for
most States. However, many State governments have reorganized, and the
various State governments function differently. In light of these
organizational changes, the final rule affords the flexibility
necessary for States to determine the most appropriate location for
registered apprenticeship, based on their organizational configuration.
Regardless of that location, a recognized State Apprenticeship Agency
still must meet the requirements of this part, including provisions in
Sec. 29.5 that safeguard the welfare of the apprentice, and provisions
in Sec. 29.13(a)(4) requiring demonstration of linkages with the
State's economic development strategies and public workforce system.
Further, the effective functioning of the Federal-State partnership for
registered apprenticeship does not require specificity for the
organizational location of the State government agency.
Resources
Proposed Sec. 29.13(b)(2), which required that State
Apprenticeship Agencies provide sufficient budget and staff to carry
out the functions of a Registration Agency, also generated considerable
opposition. Four commenters stated that the proposed requirements in
Sec. 29.13(b)(2) are worthwhile guidelines for Registration Agencies,
but asserted that the Department does not allocate sufficient staff and
budget to carry out its responsibilities in the twenty-five States
where the Office of Apprenticeship is the Registration Agency. Four
commenters indicated that the Department does not have the authority to
dictate budget mandates to the States.
Response: The Department is currently the Registration Agency in 25
States, and provides dedicated staff and resources sufficient to
fulfill its responsibilities for registered apprenticeship for Federal
purposes in those States. In the other 25 States, where we have
conferred recognition to States to register apprentices and
apprenticeship programs for Federal purposes under the current
regulations, it is our responsibility to ensure that we provide
recognition to States that have dedicated the necessary resources for
such functions. The proposed rule's provisions for sufficient resources
do not dictate budget mandates; the responsibility for establishing
budget mandates remains with State governments. However, we have been
persuaded by comments that it is more appropriate to use language that
is less prescriptive than ``allocate sufficient budget and staff'' to
describe how a Registration Agency will address these functions.
Therefore, we have revised final rule Sec. 29.13(b)(2) to require
simply that the State provide ``sufficient resources'' to carry out the
functions of a Registration Agency. In the final rule, provisions
establishing that the functions of a Registration Agency, which include
outreach and education, registration of programs and apprentices,
provision of technical assistance, and monitoring, as required to
fulfill the requirements of this part are unchanged.
Reciprocal Approval
We received thirty-eight comments about proposed Sec. 29.13(b)(7),
which would expand current provisions for reciprocal approval by
eliminating the exception for programs and standards in the building
and construction industries. The majority of comments opposed the
proposal, and many requested that DOL reinstate the exception for
building and construction industries. Two commenters asked DOL to
clarify why the exemption was originally granted, why the proposed
revisions would eliminate the exemption, and how this action will
impact other related regulations, such as those pertaining to Federal
works projects subject to the Davis-Bacon Act.
More than a dozen commenters raised issues associated with
variations among State Apprenticeship Agency requirements for program
registration. One set of commenters addressed variations in wage rates,
asserting that it is unfair and economically disruptive to allow trades
from one State to use the pay scale from their own State to bid on work
in other States, particularly for apprentices employed on projects
subject to the Davis-Bacon Act. Other commenters asserted that States
have different quality (e.g., training hours) and licensing standards,
which the proposed rule fails to recognize. A commenter stated that the
proposed rule lacks language that would require a visiting sponsor
registered in another State to meet or exceed existing local
requirements for apprenticeship registration. A State asked DOL to
clarify whether the host State's laws or the home State's laws would
apply to the apprentice.
Response: The exemption for reciprocal approval for apprenticeship
programs in the construction industry in the current regulations was
based on the view that the seasonality of construction work could
potentially interrupt an apprentice's on-the-job learning, require that
an apprentice be supervised by several employers, and require provision
of related instruction in several places, rather than one location,
thereby negatively impacting the quality of apprenticeship programs in
the construction industry. With advances in technology to assist in the
provision of related instruction and supervision of apprentices, the
Department believes that these arguments for exempting construction
industry programs from reciprocal approval are no longer valid. In
particular, the use of electronic media in related instruction, as
permitted by final Sec. 29.2, will provide construction apprenticeship
programs with the ability to ensure consistency in related technical
instruction across the country, regardless of geographic location. High
quality standards for apprenticeship programs can be attained in the
construction industry, regardless of the seasonal nature of
construction work. Therefore, the extension of reciprocal approval to
construction industry programs, as well as to non-construction
programs, will enable the National Apprenticeship System to further
address the apprenticeship needs of businesses and labor.
We acknowledge that commenters have raised important concerns about
differences between the home States' and the host States' requirements.
Revisions to Sec. 29.13(b)(7) were intended to provide program
sponsors registered for Federal purposes in one State with fairness in
contractor bidding on Federal public works projects in another State
that are subject to the Davis-Bacon Act, while still safeguarding the
welfare of registered apprentices. We agree that the application of a
home State's wage and hour and apprentice ratios in a host State could
confer an unfair advantage to an out-of-state contractor bidding on a
Federal public works project. Such an outcome would be unacceptable.
That is why, in all instances where we have negotiated memoranda of
understanding with recognized States to arrange for reciprocal approval
of apprenticeship programs in the building and construction trades, we
have consistently required that the wage and hour and apprenticeship
ratio
[[Page 64420]]
requirements of the host State apply. As stated in the Federalism
section of the Administrative Requirements discussion in the NPRM, the
extension of reciprocal approval to the construction industry programs
allows a State Registration Agency to retain authority to enforce its
State labor law, such as provisions covering apprentice wage rates and
ratios. For further explanation, we have added language to the final
rule to clarify that the program sponsor seeking reciprocal approval
must comply with the host State's wage and hour and apprentice ratio
standards. With this clarification, final Sec. 29.13(b)(7) prohibits
an out-of-state program sponsor seeking reciprocal approval from a host
State from gaining a competitive advantage in registering and operating
apprenticeship programs for Federal purposes. Extension of reciprocal
approval in final Sec. 29.13(b)(7) will not impact a State's
implementation of regulations pertaining to Federal works projects
subject to the Davis Bacon Act. We further emphasize that final Sec.
29.13(b)(7) does not address other aspects of a host State's
legislative, regulatory, or procedural requirements for registered
apprenticeship for State or local purposes because part 29 pertains to
registered apprenticeship for Federal purposes. Issues such as
licensure requirements and contributions to a State apprenticeship
training fund are State matters and are not covered by the requirements
for reciprocal approval for Federal purposes in final Sec.
29.13(b)(7).
State Apprenticeship Legislation, Regulations, Policies, and
Operational Procedures
Twenty-seven commenters expressed concerns about proposed Sec.
29.13(b)(9), which explicitly requires State Apprenticeship Agencies to
submit proposed modifications in the State's apprenticeship
legislation, regulations, policies, and/or operational procedures for
Departmental review and approval, prior to implementation, for
conformity with the National Apprenticeship Act and the implementing
regulations in 29 CFR parts 29 and 30.
Many comments expressed concern that proposed Sec. 29.13(b)(9)
ignores a State's authority to set policy and establish law to meet the
unique needs of its industry and citizens. One commenter asserted that
this change usurps States' authority and exceeds the authority granted
by the National Apprenticeship Act. Other commenters asserted that the
Office of Apprenticeship's required review will inhibit the State
regulatory process and decrease State government's responsiveness to
the public.
Response: Given the National Apprenticeship Act's broad mandate for
the Department to safeguard the welfare of apprentices, the proposed
requirement for Departmental review, prior to implementation, of a
State's revision to an approved apprenticeship law is within our
authority under the Act.
Further, the requirement is necessary for the Department's
management of the National Apprenticeship System. Before it is
permitted to register apprentices and apprenticeship programs, for
Federal purposes, a State wishing to participate in the National
Apprenticeship System must submit its apprenticeship law and other
information (Sec. Sec. 29.13(a) and (b)) to the Department for a
determination that they conform to the requirements of Federal
apprenticeship law. But, the State Apprenticeship Agency's
responsibility to follow Federal law does not end there. Rather, a
recognized State Apprenticeship Agency must continue to conform with
the requirements of Federal law, particularly when the Agency wants to
make changes to is own laws or regulations. Recent experience with
reviews of recognized State Apprenticeship Agencies has underscored the
need for the Department to monitor States' efforts to modify their
apprenticeship laws, as they pertain to registered apprenticeship for
Federal purposes. The Office of Apprenticeship's reviews have
repeatedly identified provisions of State laws and regulations that
were not consistent with Federal apprenticeship law; this has led to
our requiring State Apprenticeship Agencies to take the corrective
action necessary for them to attain conformity with parts 29 and 30 and
with the National Apprenticeship Act.
Notice to the Office of Apprenticeship and an opportunity to review
proposed changes to a State's apprenticeship law, regulation, and
policies are necessary for Departmental oversight. However, the effect
of purpose of proposed Sec. 29.13(b)(9) will be to facilitate the
Department's management of the National Apprenticeship System, not to
usurp State authority to establish State law and policy. Accordingly,
and in recognition of the concerns raised by commenters, we have
revised Sec. 29.13(b)(9) to provide that a State must submit all
proposed modifications in apprenticeship legislation, regulations,
policies and/or operational procedures for Office of Apprenticeship
review and concurrence, rather than approval. The Office of
Apprenticeship's ``concurrence'' will simply reflect a finding that the
proposed modification conforms to part 29 and that implementation of
the proposal will not affect the State's recognition status. If the
Office of Apprenticeship finds that a proposed modification does not
conform to part 29, it will notify the State of its concerns and work
with the State to resolve them, providing technical assistance as
appropriate. This will provide the State and Office of Apprenticeship
with an opportunity to identify and work out issues that potentially
affect a State's recognition status before the proposals take effect
and must be undone to preserve recognition. The State will be notified
of the Office of Apprenticeship's findings as to conformity within 45
days from the date that the Office of Apprenticeship receives the
proposed modification, as provided by Sec. 29.13(e)(4).
Although the process for Office of Apprenticeship review and
concurrence of a State's apprenticeship legislation, regulations,
policies, and/or operational procedures may extend the time necessary
for modifications, the potential imposition of additional time is
justified by the need to ensure that revisions to State apprentice law,
regulations, policies, and procedures conform to parts 29 and 30 and
the National Apprenticeship Act.
Registration Agencies can help to maximize the efficiency of the
process by notifying the Department of any modifications under
consideration at the earliest opportunity. Further, States that proceed
with revisions prior to completion of the Department's review and
concurrence process can minimize the disruption that would result from
subsequent Departmental non-concurrence through the inclusion of a
saving clause. Such a clause could, for example, revive the text which
was superseded by a modification to which the Department did not
concur, or place the reader on notice that the revision would take
effect only if or when the Department concurred with the change.
Application for Recognition
Three commenters raised concerns about proposed Sec. 29.13(c),
which establishes requirements for State Apprenticeship Agencies to
apply for recognition from the Department. One commenter suggested that
State Apprenticeship Agencies recognized by the Department under the
current regulations should only be required to renew their status, not
reapply for recognition. Another commenter asserted that requiring
State
[[Page 64421]]
Apprenticeship Agencies to reapply for recognition diverts resources
from program implementation and would interfere with funding and budget
planning. Another stated that DOL currently has the authority to
withdraw its recognition of State Apprenticeship Agencies for failure
to conform to this part, and there is no need to place further
reporting and oversight requirements on State Apprenticeship Agencies
to reapply for recognition within 1 year of the effective date of the
rule.
Response: This rulemaking significantly revises the substantive
provisions of part 29. Although the reapplication process for
recognition will require use of resources to prepare and submit
materials specified in Sec. 29.13(c), we have determined that it is
absolutely essential to ensure that State Apprenticeship Agencies
comprehensively conform to the new requirements of part 29, as a pre-
condition for recognition. However, we acknowledge that an adequate and
reasonable response to these new requirements will likely require more
than the 1 year provided by the NPRM. Therefore, final Sec. 29.13(c)
establishes a 2-year time frame from the effective date of the final
rule for currently recognized States seeking continued recognition to
submit required documentation to the Office of Apprenticeship. This
means that States seeking continued recognition will have 2 years from
the effective date of this final rule to make any changes necessary for
compliance with this part. We also recognize that circumstances may
arise which provide good cause for extension of this 2 year time frame.
Final Sec. 29.13(c) carries forward a proposed provision that allows
States to submit written requests for extension of time within which to
comply with the requirements of this part. Except as noted, final Sec.
29.13(c) is promulgated as proposed.
Renewal and Maintenance of Recognition
Five commenters addressed proposed Sec. 29.13(d), which
establishes a 5 year period for recognition of a State Apprenticeship
Agency by the Department and provides a process for renewal and
maintenance of recognition. Four commenters stated that DOL currently
has the authority to withdraw recognition of a State Apprenticeship
Agency for failure to conform to part 29 so there is no need to place
further requirements on State Apprenticeship Agencies to renew their
recognition every 5 years. One commenter asserted that requiring State
Apprenticeship Agencies to renew their recognition diverts resources
from program implementation and would interfere with funding and budget
planning.
Response: Existing regulations confer open-ended recognition on
State Apprenticeship Agencies for Federal purposes and do not clearly
specify that a State Apprenticeship Agency must continue to meet
regulatory requirements for continued recognition. When the Department
confers recognition on a State Apprenticeship Agency to register
apprenticeship programs for Federal purposes, it is our responsibility
to ensure that the basis for recognition, State apprenticeship law,
regulation, policies, plans, and procedures, continues to conform to
Federal requirements. We anticipate periodic change, as State
Apprenticeship Agencies respond to the changing workforce needs of
business, industry, and labor. Section 29.13(d) establishes
requirements for renewal and maintenance of recognition to ensure that
the Department has the opportunity to review and determine if the State
apprenticeship laws, regulations, policies, plans, and procedures
continue to conform to Federal requirements.
In the Department's view, a 5 year period provides a reasonable
level of continuity for State Apprenticeship Agencies, while providing
an efficient way to ensure that State Apprenticeship Agencies remain in
conformity with Federal requirements. As discussed in the NPRM, the
monitoring and reviews outlined in Sec. 29.13(e) will form the basis
for the Office of Apprenticeship's decision whether to continue
recognition every 5 years. Therefore, the burden on State
Apprenticeship Agencies for this 5 year renewal and maintenance of
recognition will be minimal. We have revised final Sec. 29.13(d) to
clarify that the notification to States regarding conformity with this
part will be based on the Office of Apprenticeship's monitoring of a
State Registration Agency's compliance, as provided by Sec. 29.13(e).
We have revised Sec. 29.13(d) accordingly.
Compliance
No comments were received on proposed Sec. 29.13(e), which is a
new provision that provides for on-site review, self-assessment, and
monitoring of the State's apprenticeship law and procedures, and is
based on the Department's existing procedures for determining if State
Apprenticeship Agencies are complying with part 29. However, upon
further review we noted two non-substantive changes were necessary to
correct grammatical errors, and we have revised final Sec. 29.13(e)
accordingly.
Accountability/Remedies for Non-conformity
One comment was received on proposed Sec. 29.13(f), a new
provision which provides for the steps to be taken if a State
Apprenticeship Agency is found to be out of compliance with part 29.
Those steps, which are based on the Department's current practice of
compliance assistance, include the provision of technical assistance,
and, where problems are found, conferral of ``Conditional Recognition''
for 45 days during which the State Apprenticeship Agency must submit a
corrective action plan to remedy the conforming activity for failure to
maintain compliance. The commenter suggested extending the period of
``Conditional Recognition'' to 90 days, asserting that additional time
might be necessary to change State law that was found to be out of
conformity with 29 CFR part 29.
Response: We disagree with the recommendation to extend the period
of Conditional Recognition to 90 days. The period of Conditional
Recognition established by 29.13(f)(ii) pertains to the time frame
during which the State Apprenticeship Agency must submit its corrective
action plan. Paragraph (f)(ii) does not establish the time frame in
which a State must actually remedy the non-conforming activity. The 45
day period is consistent with current practice, and provides sufficient
time to submit a corrective action plan. However, upon further review
we have noted that the requirements for submission of a corrective
action plan did not specify where the corrective action plan should be
submitted. Therefore, we have revised Sec. 29.13(f) to clarify that a
State Apprenticeship Agency that was placed on Conditional Recognition
must submit a corrective action plan to the Office of Apprenticeship.
Denial of State Apprenticeship Agency Recognition
No comments were received on proposed Sec. 29.13(g), which is
based on existing Sec. 29.12(d) and simplifies and clarifies the
process for determining whether to deny a State Apprenticeship Agency
recognition and provides the procedures for appeal of that decision.
However, upon further review we have determined that further
clarification was needed with regard to informing a State
Apprenticeship Agency about a request for administrative review of a
denial of recognition. We have revised Sec. 29.13(g) to clarify that
the written notice to a State Apprenticeship Agency denying
[[Page 64422]]
recognition must also specify that a request for administrative review
of a denial of recognition may be made within 30 calendar days of
receipt of a notice of denial from the Department. We have also added
provisions to paragraph (4) to clarify that the Administrative Review
Board must decide any case it accepts for review within 180 days of the
close of the record and that, if not so decided, the Administrative Law
Judge's decision constitutes final agency action. This clarification
aligns final Sec. 29.13(g) with provisions for administrative review
in final Sec. 29.10(c).
State Apprenticeship Programs
No comments were received on proposed Sec. 29.13(h), which carried
forward provisions for registration with the Office of Apprenticeship
in the event that a State Apprenticeship Agency is not recognized by
the Office of Apprenticeship for Federal purposes, that such
recognition has been withdrawn, or that no State Apprenticeship Agency
exists. Section 29.14(e) also establishes requirements for registration
with the Office of Apprenticeship for program sponsors affected by
derecognition of a State Apprenticeship Agency. To avoid duplication in
the final rule, we have deleted proposed Sec. 29.13(h)(2) and revised
final Sec. 29.14(e) to incorporate provisions from proposed Sec.
29.13(h)(2) that provide opportunities for a program sponsor to request
registration with the Office of Apprenticeship where a State
Apprenticeship Agency does not exist or a State Apprenticeship Agency
is not recognized by the Office of Apprenticeship for Federal purposes.
No comments were received on proposed Sec. 29.13(i) and Sec.
29.13(j). Therefore, we are promulgating 29.13(i) and 29.13(j) as
proposed.
Derecognition of State Agencies (Sec. 29.14)
The Department received one comment on proposed revisions to the
rules on derecognition of State Apprenticeship Agencies (existing Sec.
29.13, proposed Sec. 29.14). The commenter generally supported the
Department's proposed changes to Sec. 29.14, but suggested new
penalties such as clarification that Federal funds will be withheld
from State Apprenticeship Agencies that unfairly restrict
apprenticeship opportunities in a manner inconsistent with parts 29 and
30 and the National Apprenticeship Act.
Response: The commenter did not provide sufficient justification
for the establishment of an additional penalty beyond derecognition.
Further, since the Department provides no funds to State Apprenticeship
Agencies, the Department does not have the statutory authority to
withhold Federal funds from State Apprenticeship Agencies.
Upon further review, we have also added provisions to Sec.
29.14(c)(3)(i) to clarify that the Administrative Review Board must
decide any case it accepts for review within 180 days of the close of
the record and that, if not so decided, the Administrative Law Judge's
decision constitutes final agency action. This clarification aligns
final Sec. 29.14(c) with provisions for administrative review in final
Sec. 29.10(c).
Also, as discussed above Sec. 29.14(e) has been revised to
incorporate provisions for a program sponsor to request registration
with the Office of Apprenticeship where a State Apprenticeship Agency
does not exist or a State Apprenticeship Agency is not recognized by
the Office of Apprenticeship for Federal purposes.
III. Administrative Requirements for the Rule
Executive Order (E.O.) 12866
This final rule to revise 29 CFR part 29 is a significant
regulatory action under Sec. 3(f) of Executive Order 12866 because it
raises ``novel legal or policy issues arising out of legal mandates,
the President's priorities, or the principles'' set forth in the E.O.
Accordingly, pursuant to the Executive Order, it was reviewed by OMB.
Revisions to 29 CFR part 29 pertain to the terms and conditions for an
apprenticeship program sponsor to register program standards and
apprentices for Federal purposes, and for the Department to grant
authority to a State Registration Agency to act on behalf of the
Department to register apprenticeship programs and standards for
Federal purposes. The benefits of recognition of an apprenticeship
program and apprentices for Federal purposes are to meet requirements
of a Federal contract, grant, agreement or arrangement dealing with
apprenticeship; and requirements for any Federal financial or other
assistance, benefit, privilege, contribution, allowance, exemption,
preference or right pertaining to apprenticeship. Since this final rule
is the first revision to regulations for the National Apprenticeship
System since the Department first promulgated the rule in 1977, it
raises novel policy issues. However, the Department has determined that
the costs to program sponsors and State Registration Agencies
associated with registering apprenticeship programs and apprentices
under these revised terms and conditions are only minimally different
from those pertaining to the current requirements of the current 29 CFR
part 29. These revisions will not have an annual effect on the economy
of $100 million or more nor will they adversely affect the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities in any material way. Therefore, we conclude
that this final rule is not economically significant and it is not
subject to Sec. 6(a)(3)(C) of the Executive Order.
Paperwork Reduction Act
This final rule requires Registered Apprenticeship Program Sponsors
and apprentices to submit Apprenticeship Agreement forms to DOL or to
the appropriate State Registration Agency. These requirements were
previously reviewed and approved for use by OMB under 29 U.S.C. 50 and
29 CFR 29.1, and assigned OMB control number 1205-0223 under the
provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
(PRA). Additionally, OMB previously approved the Department's
information collection request for the Apprenticeship Agreement in
Sec. 29.7, including collection of the apprentice's Social Security
Number (OMB Control Number 1205-0223, expiration date of October 31,
2008. The Department is in the process of obtaining an extension of
this form for three additional years). The Department has determined
that this final rule contains no new information collection
requirements, nor that any of these requirements are substantively or
materially modified by the changes contained herein.
Executive Order 13132: Federalism
The Department has reviewed the final rule in accordance with E.O.
13132 and has determined that it has Federalism implications because it
has substantial direct effects on States and the relationship between
the National government and the States. As noted in the NPRM, the
Department developed the proposed rule based upon advice from the
Advisory Committee on Apprenticeship (ACA), and in consultation with
State Apprenticeship Agencies and the National Association of State and
Territorial Apprenticeship Directors (NASTAD), the organization
representing apprenticeship officials from the District of Columbia, 27
States, and three Territories. The ACA, which contains representatives
of two associations of State labor and apprenticeship officials
(including NASTAD), offered specific suggestions on matters relating to
apprenticeship
[[Page 64423]]
program standards, and registration and deregistration of
apprenticeship programs. The proposed rule incorporated the ACA's
recommendations, and as discussed above in the comments and regulatory
changes, the final rule carries forward these recommendations.
Although NASTAD and State Apprenticeship Agencies did not have
direct input into the development of sections in the proposed and final
rule that directly affect States and the relationship between the
National government and the States, the Department gave thorough
consideration to NASTAD's recommendations on existing regulations
submitted in a letter from the President of NASTAD in December 2006, in
response to a request from the Office of Apprenticeship. NASTAD's
recommendations for the proposed rule pertained to the roles of State
Apprenticeship Councils and State Apprenticeship Agencies, composition
of State Apprenticeship Councils, requirements for reciprocal approval
for programs registered in one State seeking recognition in another
State, the final rule's effect on recognition status for currently
recognized States Registration Agencies, and the name of the DOL entity
responsible for oversight of the National Apprenticeship System.
As stated in the NPRM and discussed further below, we considered
this input and adopted most of NASTAD's recommendations in developing
the proposed and final rule. Additionally, in our review of comments
submitted by NASTAD and States on the proposed rule, we have identified
six areas of concern for States, some of which are consistent with
NASTAD's recommendations for revisions. The areas are: increased
administrative burdens on States; impact on a State's internal
organizational structure; requirements for linkages with the workforce
investment system; expansion of reciprocal approval for programs and
standards in the building and construction industries; Departmental
review of State apprenticeship laws, regulations, policies and
procedures; and recognition status of currently recognized States
Registration Agencies.
Where appropriate and feasible for the effective functioning of the
Federal-State partnership over registered apprenticeship for Federal
purposes, we have revised the final rule to ease the administrative
burdens on States. For other issues pertaining to this Federal-State
partnership, we have determined that proposed requirements in the final
rule are necessary to ensure conformity with Federal law, and
consistency across the National Apprenticeship System.
As noted in the NPRM and in discussions above, the final rule
affects internal State organizational structures with regard to State
Apprenticeship Agencies and State Apprenticeship Councils. Although no
changes have been made to the final rule regarding limiting recognition
to State Apprenticeship Agencies, we have set forth further explanation
for this requirement. We have determined that because a direct
relationship between Federal and State agencies is necessary for the
smooth functioning of the National Apprenticeships System, the
Department will only grant recognition to a State Apprenticeship Agency
to act as a Registration Agency for registered apprenticeship for
Federal purposes. The final rule requires recognized States to
establish and continue to use a State Apprenticeship Council, which may
serve either an advisory or a regulatory role. Accordingly, compliance
with the final rule may require a State seeking recognition as a
Registration Agency to modify its internal organizational structures
pertaining to its State Apprenticeship Agency and its State
Apprenticeship Council.
We recognize that the National Apprenticeship Act and the Workforce
Investment Act do not authorize the Department to mandate that a
State's workforce investment system and economic development strategies
include registered apprenticeship. Although the Department encourages
integration, and a State Apprenticeship Agency may seek such
integration, the authority for internal State organizational issues
remains with the State. Therefore, the final rule simply requires a
State Apprenticeship Agency seeking recognition to demonstrate how it
is pursuing linkages and coordination with the State's publicly funded
workforce investment system and economic development strategies. As
discussed in the NPRM, through increased coordination, State
Apprenticeship Agencies can promote registered apprenticeship to a
broader audience and further expand apprenticeship into high growth,
high demand occupations.
The NPRM also noted that the proposed extension of requirements for
reciprocal approval of programs in building and construction industries
registered in other States may also raise questions regarding which
States' registration requirements would apply. As discussed above, the
final rule clarifies that program sponsors seeking reciprocal approval
from a ``host'' State must meet the host State's wage and hour
provisions and apprenticeship ratio standards. Therefore, State
Registration Agencies retain the authority to enforce wage and hour
provisions and apprenticeship ratio standards in their respective
State's labor law.
Commenters asserted that the requirement for Office of
Apprenticeship review and approval of proposed modifications to State
apprenticeship legislation, regulation, policies and procedures prior
to implementation usurps State authority. The final rule clarifies that
the National Apprenticeship Act's broad mandate for the Department to
safeguard the welfare of apprentices provides the Department with
authority to ensure that a recognized State Apprenticeship Agency
remains accountable for its conformity with Federal law. However, we
recognize that a State has sovereign power and authority to establish
State law and policy. To balance the interests of these two authorities
(State authority to promulgate State law and policy, with the
Department's authority to ensure that a recognized State remains
accountable for conformity with Federal law), the final rule provides
for the Office of Apprenticeship's concurrence on proposed
modifications to State apprenticeship legislation, regulation, policies
and procedures for Federal purposes. Provisions for review and
concurrence are intended to provide a reasonable opportunity for the
Department to inform recognized States of areas of nonconformity; the
provisions are not intended to diminish or restrict a State's authority
to establish State law and policy. A State's decision to establish
State law or policy that does not conform to requirements of Federal
apprenticeship law or regulations has consequences, which may include
the derecognition of the State Apprenticeship Agency as the
Registration Agency authorized to register apprenticeship programs and
standards for Federal purposes. However, such recognition does not
affect the State's authority to register apprenticeship programs and
standards for State purposes.
We have also extended the time frame for States seeking new or
continued recognition as a Registration Agency to submit documentation
specified in Sec. 29.13(a). The NPRM provided 1 year from the
effective date of the final rule; the final rule provides 2 years from
the effective date of the final rule in recognition of the burdens
associated with transition period.
Finally, we reiterate that the final rule pertains to registered
apprenticeship for
[[Page 64424]]
Federal purposes. As with existing regulations, the final rule remains
silent on matters pertaining to a State's registration and oversight of
apprenticeship programs and apprentices for State or local purposes.
The distinction between registered apprenticeship for Federal purposes
and registered apprenticeship for State and local purposes serves to
limit the scope of the Federal government's role in State government
functions.
Unfunded Mandates Reform Act of 1995
This regulatory action has been reviewed in accordance with the
Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, and E.O. 12875.
The Department has determined that this rule does not include any
Federal mandate that may result in increased expenditures by State,
local or tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, adjusted by the rate
of inflation between 1995 and 2008 ($130 million). Accordingly, the
Department has not included a budgetary impact estimate.
Assessment of Federal Regulations and Policies on Families
The Department certifies that this final rule has been assessed
according to Sec. 654 of Public Law 105-277, 112 Stat. 2681, for its
effect on family well-being. The Department concludes that the rule
will not adversely affect the well-being of the Nation's families.
Rather, it should have a positive effect by safeguarding the welfare of
registered apprentices.
Regulatory Flexibility Act (RFA)/ Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA)
The Department has notified the Chief Counsel for Advocacy, Small
Business Administration, and made the certification pursuant to the RFA
at 5 U.S.C. 605(b), that this final rule will not have a significant
economic impact on a substantial number of small entities. Under the
RFA, no regulatory flexibility analysis is required where the rule will
not have a significant economic impact on a substantial number of small
entities. A small entity is defined as a small business, small not-for-
profit organization, or small governmental jurisdiction. 5 U.S.C.
601(3)-(5). The definition of the term ``small entity'' does not
include States or individuals. This rule revises and updates procedures
for labor standards for registered apprenticeship programs administered
by the States and the Department, and not by small governmental
jurisdictions. There are approximately 250,000 separate employers who
participate in roughly 29,000 registered apprenticeship programs. There
are an estimated 468,000 apprentices in the National Apprenticeship
System.
Although there may be a substantial number of small businesses
impacted by this rulemaking (at the most 250,000 employers), the
Department does not believe that there will be a significant economic
impact to these entities. Small businesses will not incur additional
incremental costs from this rulemaking because the aspect of the rule
most likely to impact small entities, program oversight, primarily
applies to the responsibilities of Registration Agencies to monitor
registered apprenticeship programs rather than imposing requirements on
the registered apprenticeship programs. For example, final Sec. 29.5
carries forward current program oversight requirements for program
sponsors to comply with 29 CFR part 30, Equal Employment Opportunity
regulations, which includes compliance reviews conducted by
Registration Agencies. Final Sec. 29.6 imposes on Registration
Agencies a new regulatory requirement to perform quality assurance
assessments on registered apprenticeship programs as part of the
Agencies' performance accountability responsibilities. While this is a
new provision in part 29, the requirement to perform quality assurance
assessments is long-standing. Pursuant to Circular 92-02, the Office of
Apprenticeship guidance on quality assurance assessments issued in
1991, Registration Agencies have assessed apprenticeship program
performance to identify areas of strength and opportunities for
improvement. The final rule's provisions for Equal Employment
Opportunity Compliance Reviews and quality assurance assessments impose
no assessment responsibilities on small programs or other programs.
Compliance costs to program sponsors associated with program oversight
will be the same as under current regulations.
However, through comments on the NPRM, it has come to our attention
that the program performance provisions in Sec. 29.6 may place an
unintended burden on small apprenticeship program sponsors such as
small businesses by potentially increasing the cost of maintaining
conformity with this part or by potentially leading to deregistration
of small apprenticeship programs. In particular, we are aware of
concerns that the requirement in Sec. 29.6(c) that Registration
Agencies evaluate program performance by comparing completion rates of
programs in like industries, occupations, and geographic areas could
possibly unfairly penalize programs operated by small businesses. We
are also aware of concerns that the proposed Sec. 29.6(a) requirement
that every program must have at least one registered apprentice could
unfairly impact small apprenticeship programs that may experience short
periods of time without any apprentices. To avoid such unintended
consequences, the Department has made changes to these provisions in
the final rule discussed below.
As discussed above in the definitions in Sec. 29.2, program
performance standards in Sec. 29.6, and program deregistration in
Sec. 29.8, the Department has clarified the relevant provisions in the
final rule to address concerns about compliance costs and burdens on
small entities potentially associated with a Registration Agency's
evaluation of programs' performance. In Sec. 29.6(a), the NPRM
provided that every program must have at least one registered
apprentice in order to be designated and retain designation as a
registered apprenticeship program for Federal purposes. We are
persuaded that there may be times when a sponsor may have a lag between
training cycles and be without a registered apprentice for a short
period of time and we recognize that small programs with fewer
apprentices may encounter such situations more frequently than larger
programs. Therefore, the final rule establishes a 1 year time frame
during which a program sponsor may be without a registered apprentice
so that normal program cycles will not lead to deregistration of small
apprenticeship programs. By providing a period of up to one year so
that the rule will not affect small programs that are without
apprentices during the periods between training cycles, the revised
Sec. 29.6(a) reduces administrative costs and burdens associated with
small program sponsors potentially having to re-register their
program(s) that could have otherwise been cancelled for nonconformity
with proposed Sec. 29.6(a).
We have revised Sec. 29.6(c) to address potential concerns that
the requirement that Registration Agencies evaluate program performance
by comparing completion rates of programs in like industries,
occupations, and geographic areas could negatively impact small
apprenticeship programs if Registration Agencies used these comparisons
of completion rates to unfairly penalize programs operated by small
businesses. To address these concerns and to minimize any potential
unfair impact from the performance accountability provisions on small
apprenticeship
[[Page 64425]]
programs, final Sec. 29.6(c) removes comparisons of completion rates
across geographic areas, industries, and occupations; drops the
reference that appeared in proposed Sec. 29.6(c) for the Registration
Agency to ``take other appropriate action'' against such programs; and
provides for evaluation of performance of registered apprenticeship
programs based on comparison to the national average for completion
rates. The preamble discussion of these provisions clearly explains
that completion rate information is intended for a Registration
Agency's use in identifying programs that may benefit from technical
assistance and will not automatically lead to program deregistration.
The final rule clarifies that completion rates may potentially factor
into deregistration procedures only when the program demonstrates an
ongoing pattern of very low completion rates over several years. The
function of calculating completion rates and the provision of technical
assistance by discussing ways to improve a program's completion rates
has effectively been a part of a Registration Agency's oversight
operations. These requirements will not create new compliance costs to
program sponsors and the changes made to the final rule minimize
burdens on programs sponsored by small entities by eliminating the risk
of unnecessary program deregistration proceedings that may have been
possible under proposed Sec. 29.6(c).
With the addition of definitions for quality assurance assessment
and completion rate in the definitions in final Sec. 29.2; and
clarifications and revisions to program performance in final Sec. 29.6
and program deregistration in final Sec. 29.8, the final rule
minimizes compliance costs and reduces any potential burdens on small
entities that may have resulted from the NPRM. Therefore, the
Department certifies that this proposed rule will not have a
significant impact on a substantial number of small entities, and as a
result no regulatory flexibility analysis is required.
As discussed above with regard to program performance standards in
final Sec. 29.6, one commenter asserted the impact of the provisions
for evaluation of apprenticeship programs qualifies the rule as a major
rule under E.O. 12866 and SBREFA. The Department disagrees. As noted
above, provisions for evaluation of program performance are necessary
to ensure program quality and accountability in the National
Apprenticeship System, and do not pertain to the establishment bid
requirements for State and local construction projects. Therefore, the
Department certifies that this final rule is not a major rule as
defined by Sec. 804 of the SBREFA. 5 U.S.C. 804.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
The Department has reviewed this final rule in accordance with E.O.
13175 and has determined that it does not have ``tribal implications.''
The proposed rule does not ``have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
Executive Order 12988: Civil Justice
This final rule has been drafted and reviewed in accordance with
E.O. 12988, Civil Justice Reform, and will not unduly burden the
Federal court system. The rule has been written so as to minimize
litigation and provide a clear legal standard for affected conduct, and
has been reviewed carefully to eliminate drafting errors and
ambiguities.
Plain Language
The Department drafted this Final Rule in plain language.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalog of Federal Domestic
Assistance at Number 17.201.
List of Subjects in 29 CFR Part 29
Apprentice agreement and complaints, Apprenticeability criteria,
Program standards, registration and deregistration, Sponsor
eligibility, State Apprenticeship Agency recognition and derecognition.
Signed at Washington, DC, on October 15, 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training Administration.
0
For reasons stated in the preamble, the Department of Labor revises 29
CFR part 29 to read as follows:
PART 29--LABOR STANDARDS FOR THE REGISTRATION OF APPRENTICESHIP
PROGRAMS
Sec.
29.1 Purpose and scope.
29.2 Definitions.
29.3 Eligibility and procedure for registration of an apprenticeship
program.
29.4 Criteria for apprenticeable occupations.
29.5 Standards of apprenticeship.
29.6 Program performance standards.
29.7 Apprenticeship agreement.
29.8 Deregistration of a registered program.
29.9 Reinstatement of program registration.
29.10 Hearings for deregistration.
29.11 Limitations.
29.12 Complaints.
29.13 Recognition of State apprenticeship agencies.
29.14 Derecognition of State apprenticeship agencies.
Authority: Section 1, 50 Stat. 664, as amended (29 U.S.C. 50; 40
U.S.C. 276c; 5 U.S.C. 301) Reorganization Plan No. 14 of 1950, 64
Stat. 1267 (5 U.S.C. App. P. 534).
Sec. 29.1 Purpose and scope.
(a) The National Apprenticeship Act of 1937, section 1 (29 U.S.C.
50), authorizes and directs the Secretary of Labor ``to formulate and
promote the furtherance of labor standards necessary to safeguard the
welfare of apprentices, to extend the application of such standards by
encouraging the inclusion thereof in contracts of apprenticeship, to
bring together employers and labor for the formulation of programs of
apprenticeship, to cooperate with State agencies engaged in the
formulation and promotion of standards of apprenticeship, and to
cooperate with the Office of Education under the Department of Health,
Education, and Welfare * * *.'' Section 2 of the Act authorizes the
Secretary of Labor to ``publish information relating to existing and
proposed labor standards of apprenticeship,'' and to ``appoint national
advisory committees * * *.'' (29 U.S.C. 50a).
(b) The purpose of this part is to set forth labor standards to
safeguard the welfare of apprentices, promote apprenticeship
opportunity, and to extend the application of such standards by
prescribing policies and procedures concerning the registration, for
certain Federal purposes, of acceptable apprenticeship programs with
the U.S. Department of Labor, Employment and Training Administration,
Office of Apprenticeship. These labor standards, policies and
procedures cover the registration, cancellation and deregistration of
apprenticeship programs and of apprenticeship agreements; the
recognition of a State agency as an authorized agency for registering
apprenticeship programs for certain Federal purposes; and matters
relating thereto.
Sec. 29.2 Definitions.
Administrator means the Administrator of the Office of
Apprenticeship, or any person specifically designated by the
Administrator.
[[Page 64426]]
Apprentice means a worker at least 16 years of age, except where a
higher minimum age standard is otherwise fixed by law, who is employed
to learn an apprenticeable occupation as provided in Sec. 29.4 under
standards of apprenticeship fulfilling the requirements of Sec. 29.5.
Apprenticeship Agreement means a written agreement, complying with
Sec. 29.7, between an apprentice and either the apprentice's program
sponsor, or an apprenticeship committee acting as agent for the program
sponsor(s), which contains the terms and conditions of the employment
and training of the apprentice.
Apprenticeship Committee (Committee) means those persons designated
by the sponsor to administer the program. A committee may be either
joint or non-joint, as follows:
(1) A joint committee is composed of an equal number of
representatives of the employer(s) and of the employees represented by
a bona fide collective bargaining agent(s).
(2) A non-joint committee, which may also be known as a unilateral
or group non-joint (which may include employees) committee, has
employer representatives but does not have a bona fide collective
bargaining agent as a participant.
Apprenticeship Program means a plan containing all terms and
conditions for the qualification, recruitment, selection, employment
and training of apprentices, as required under 29 CFR parts 29 and 30,
including such matters as the requirement for a written apprenticeship
agreement.
Cancellation means the termination of the registration or approval
status of a program at the request of the sponsor, or termination of an
Apprenticeship Agreement at the request of the apprentice.
Certification or Certificate means documentary evidence that:
(1) The Office of Apprenticeship has approved a set of National
Guidelines for Apprenticeship Standards developed by a national
committee or organization, joint or unilateral, for policy or guideline
use by local affiliates, as conforming to the standards of
apprenticeship set forth in Sec. 29.5;
(2) A Registration Agency has established that an individual is
eligible for probationary employment as an apprentice under a
registered apprenticeship program;
(3) A Registration Agency has registered an apprenticeship program
as evidenced by a Certificate of Registration or other written indicia;
(4) A Registration Agency has determined that an apprentice has
successfully met the requirements to receive an interim credential; or
(5) A Registration Agency has determined that an individual has
successfully completed apprenticeship.
Competency means the attainment of manual, mechanical or technical
skills and knowledge, as specified by an occupational standard and
demonstrated by an appropriate written and hands-on proficiency
measurement.
Completion rate means the percentage of an apprenticeship cohort
who receive a certificate of apprenticeship completion within 1 year of
the projected completion date. An apprenticeship cohort is the group of
individual apprentices registered to a specific program during a 1 year
time frame, except that a cohort does not include the apprentices whose
apprenticeship agreement has been cancelled during the probationary
period.
Department means the U.S. Department of Labor.
Electronic media means media that utilize electronics or
electromechanical energy for the end user (audience) to access the
content; and includes, but is not limited to, electronic storage media,
transmission media, the Internet, extranet, lease lines, dial-up lines,
private networks, and the physical movement of removable/transportable
electronic media and/or interactive distance learning.
Employer means any person or organization employing an apprentice
whether or not such person or organization is a party to an
Apprenticeship Agreement with the apprentice.
Federal Purposes includes any Federal contract, grant, agreement or
arrangement dealing with apprenticeship; and any Federal financial or
other assistance, benefit, privilege, contribution, allowance,
exemption, preference or right pertaining to apprenticeship.
Interim credential means a credential issued by the Registration
Agency, upon request of the appropriate sponsor, as certification of
competency attainment by an apprentice.
Journeyworker means a worker who has attained a level of skill,
abilities and competencies recognized within an industry as having
mastered the skills and competencies required for the occupation. (Use
of the term may also refer to a mentor, technician, specialist or other
skilled worker who has documented sufficient skills and knowledge of an
occupation, either through formal apprenticeship or through practical
on-the-job experience and formal training.)
Office of Apprenticeship means the office designated by the
Employment and Training Administration to administer the National
Apprenticeship System or its successor organization.
Provisional registration means the 1-year initial provisional
approval of newly registered programs that meet the required standards
for program registration, after which program approval may be made
permanent, continued as provisional, or rescinded following a review by
the Registration Agency, as provided for in the criteria described in
Sec. 29.3(g) and (h).
Quality Assurance Assessment means a comprehensive review conducted
by a Registration Agency regarding all aspects of an apprenticeship
program's performance, including but not limited to, determining if
apprentices are receiving: on-the-job training in all phases of the
apprenticeable occupation; scheduled wage increases consistent with the
registered standards; related instruction through appropriate
curriculum and delivery systems; and that the registration agency is
receiving notification of all new registrations, cancellations, and
completions as required in this part.
Registration Agency means the Office of Apprenticeship or a
recognized State Apprenticeship Agency that has responsibility for
registering apprenticeship programs and apprentices; providing
technical assistance; conducting reviews for compliance with 29 CFR
parts 29 and 30 and quality assurance assessments.
Registration of an apprenticeship agreement means the acceptance
and recording of an apprenticeship agreement by the Office of
Apprenticeship or a recognized State Apprenticeship Agency as evidence
of the apprentice's participation in a particular registered
apprenticeship program.
Registration of an apprenticeship program means the acceptance and
recording of such program by the Office of Apprenticeship, or
registration and/or approval by a recognized State Apprenticeship
Agency, as meeting the basic standards and requirements of the
Department for approval of such program for Federal purposes. Approval
is evidenced by a Certificate of Registration or other written indicia.
Related instruction means an organized and systematic form of
instruction designed to provide the apprentice with the knowledge of
the theoretical and technical subjects related to the apprentice's
occupation. Such instruction may be given in a classroom, through
occupational or industrial courses, or by correspondence
[[Page 64427]]
courses of equivalent value, electronic media, or other forms of self-
study approved by the Registration Agency.
Secretary means the Secretary of Labor or any person designated by
the Secretary.
Sponsor means any person, association, committee, or organization
operating an apprenticeship program and in whose name the program is
(or is to be) registered or approved.
State means any of the 50 States of the United States, District of
Columbia, or any Territory or possession of the United States.
State Apprenticeship Agency means an agency of a State government
that has responsibility and accountability for apprenticeship within
the State. Only a State Apprenticeship Agency may seek recognition by
the Office of Apprenticeship as an agency which has been properly
constituted under an acceptable law or Executive Order, and authorized
by the Office of Apprenticeship to register and oversee apprenticeship
programs and agreements for Federal purposes.
State Apprenticeship Council is an entity established to assist the
State Apprenticeship Agency. A State Apprenticeship Council is
ineligible for recognition as the State's Registration Agency. A
regulatory State Apprenticeship Council may promulgate apprenticeship
law at the direction of the State Apprenticeship Agency. An advisory
State Apprenticeship Council provides advice and guidance to the State
Apprenticeship Agency on the operation of the State's apprenticeship
system.
State office means that individual office or division of State
government designated as the point of contact for the State
Apprenticeship Agency.
Technical assistance means guidance provided by Registration Agency
staff in the development, revision, amendment, or processing of a
potential or current program sponsor's Standards of Apprenticeship,
Apprenticeship Agreements, or advice or consultation with a program
sponsor to further compliance with this part or guidance from the
Office of Apprenticeship to a State Apprenticeship Agency on how to
remedy nonconformity with this part.
Transfer means a shift of apprenticeship registration from one
program to another or from one employer within a program to another
employer within that same program, where there is agreement between the
apprentice and the affected apprenticeship committees or program
sponsors.
Sec. 29.3 Eligibility and procedure for registration of an
apprenticeship program.
(a) Eligibility for registration of an apprenticeship program for
various Federal purposes is conditioned upon a program's conformity
with the apprenticeship program standards published in this part. For a
program to be determined by the Secretary as being in conformity with
these published standards, the program must apply for registration and
be registered with the Office of Apprenticeship or with a State
Apprenticeship Agency recognized by the Office of Apprenticeship. The
determination by the Secretary that the program meets the
apprenticeship program standards is effectuated only through such
registration.
(b) Only an apprenticeship program or agreement that meets the
following criteria is eligible for Office of Apprenticeship or State
Apprenticeship Agency registration:
(1) It is in conformity with the requirements of this part and the
training is in an apprenticeable occupation having the characteristics
set forth in Sec. 29.4 of this part; and
(2) It is in conformity with the requirements of the Department's
regulation on Equal Employment Opportunity in Apprenticeship and
Training in 29 CFR part 30, as amended.
(c) Except as provided under paragraph (d) of this section,
apprentices must be individually registered under a registered program.
Such individual registration may be affected:
(1) By filing copies of each individual apprenticeship agreement
with the Registration Agency; or
(2) Subject to prior Office of Apprenticeship or recognized State
Apprenticeship Agency approval, by filing a master copy of such
agreement followed by a listing of the name, and other required data,
of each individual when apprenticed.
(d) The names of persons in probationary employment as an
apprentice under an apprenticeship program registered by the Office of
Apprenticeship or a recognized State Apprenticeship Agency, if not
individually registered under such program, must be submitted within 45
days of employment to the Office of Apprenticeship or State
Apprenticeship Agency for certification to establish the apprentice as
eligible for such probationary employment.
(e) The appropriate Registration Agency must be notified within 45
days of persons who have successfully completed apprenticeship
programs; and of transfers, suspensions, and cancellations of
apprenticeship agreements and a statement of the reasons therefore.
(f) Operating apprenticeship programs, when approved by the Office
of Apprenticeship, are accorded registration evidenced by a Certificate
of Registration. Programs approved by recognized State Apprenticeship
Agencies must be accorded registration and/or approval evidenced by a
similar certificate or other written indicia. When approved by the
Office of Apprenticeship, National Apprenticeship Guideline Standards
for policy or guidance will be accorded a certificate.
(g) Applications for new programs that the Registration Agency
determines meet the required standards for program registration must be
given provisional approval for a period of 1 year. The Registration
Agency must review all new programs for quality and for conformity with
the requirements of this part at the end of the first year after
registration. At that time:
(1) a program that conforms with the requirements of this part:
(i) may be made permanent; or
(ii) may continue to be provisionally approved through the first
full training cycle.
(2) a program not in operation or not conforming to the regulations
during the provisional approval period must be recommended for
deregistration procedures.
(h) The Registration Agency must review all programs for quality
and for conformity with the requirements of this part at the end of the
first full training cycle. A satisfactory review of a provisionally
approved program will result in conversion of provisional approval to
permanent registration. Subsequent reviews must be conducted no less
frequently than every five years. Programs not in operation or not
conforming to the regulations must be recommended for deregistration
procedures.
(i) Any sponsor proposals or applications for modification(s) or
change(s) to registered programs or certified National Guidelines for
Apprenticeship Standards must be submitted to the Registration Agency.
The Registration Agency must make a determination on whether to approve
such submissions within 90 days from the date of receipt. If approved,
the modification(s) or change(s) will be recorded and acknowledged
within 90 days of approval as an amendment to such program. If not
approved, the sponsor must be notified of the disapproval and the
reasons therefore and provided the appropriate technical assistance.
[[Page 64428]]
(j) Under a program proposed for registration by an employer or
employers' association, where the standards, collective bargaining
agreement or other instrument provides for participation by a union in
any manner in the operation of the substantive matters of the
apprenticeship program, and such participation is exercised, written
acknowledgement of union agreement or no objection to the registration
is required. Where no such participation is evidenced and practiced,
the employer or employers' association must simultaneously furnish to
an existing union, which is the collective bargaining agent of the
employees to be trained, a copy of its application for registration and
of the apprenticeship program. The Registration Agency must provide for
receipt of union comments, if any, within 45 days before final action
on the application for registration and/or approval.
(k) Where the employees to be trained have no collective bargaining
agreement, an apprenticeship program may be proposed for registration
by an employer or group of employers, or an employer association.
Sec. 29.4 Criteria for apprenticeable occupations.
An apprenticeable occupation is one which is specified by industry
and which must:
(a) Involve skills that are customarily learned in a practical way
through a structured, systematic program of on-the-job supervised
learning;
(b) Be clearly identified and commonly recognized throughout an
industry;
(c) Involve the progressive attainment of manual, mechanical or
technical skills and knowledge which, in accordance with the industry
standard for the occupation, would require the completion of at least
2,000 hours of on-the-job learning to attain; and
(d) Require related instruction to supplement the on-the-job
learning.
Sec. 29.5 Standards of apprenticeship.
An apprenticeship program, to be eligible for approval and
registration by a Registration Agency, must conform to the following
standards:
(a) The program must have an organized, written plan (program
standards) embodying the terms and conditions of employment, training,
and supervision of one or more apprentices in an apprenticeable
occupation, as defined in this part, and subscribed to by a sponsor who
has undertaken to carry out the apprentice training program.
(b) The program standards must contain provisions that address:
(1) The employment and training of the apprentice in a skilled
occupation.
(2) The term of apprenticeship, which for an individual apprentice
may be measured either through the completion of the industry standard
for on-the-job learning (at least 2,000 hours) (time-based approach),
the attainment of competency (competency-based approach), or a blend of
the time-based and competency-based approaches (hybrid approach).
(i) The time-based approach measures skill acquisition through the
individual apprentice's completion of at least 2,000 hours of on-the-
job learning as described in a work process schedule.
(ii) The competency-based approach measures skill acquisition
through the individual apprentice's successful demonstration of
acquired skills and knowledge, as verified by the program sponsor.
Programs utilizing this approach must still require apprentices to
complete an on-the-job learning component of Registered Apprenticeship.
The program standards must address how on-the-job learning will be
integrated into the program, describe competencies, and identify an
appropriate means of testing and evaluation for such competencies.
(iii) The hybrid approach measures the individual apprentice's
skill acquisition through a combination of specified minimum number of
hours of on-the-job learning and the successful demonstration of
competency as described in a work process schedule.
(iv) The determination of the appropriate approach for the program
standards is made by the program sponsor, subject to approval by the
Registration Agency of the determination as appropriate to the
apprenticeable occupation for which the program standards are
registered.
(3) An outline of the work processes in which the apprentice will
receive supervised work experience and training on the job, and the
allocation of the approximate amount of time to be spent in each major
process.
(4) Provision for organized, related instruction in technical
subjects related to the occupation. A minimum of 144 hours for each
year of apprenticeship is recommended. This instruction in technical
subjects may be accomplished through media such as classroom,
occupational or industry courses, electronic media, or other
instruction approved by the Registration Agency. Every apprenticeship
instructor must:
(i) Meet the State Department of Education's requirements for a
vocational-technical instructor in the State of registration, or be a
subject matter expert, which is an individual, such as a journeyworker,
who is recognized within an industry as having expertise in a specific
occupation; and
(ii) Have training in teaching techniques and adult learning
styles, which may occur before or after the apprenticeship instructor
has started to provide the related technical instruction.
(5) A progressively increasing schedule of wages to be paid to the
apprentice consistent with the skill acquired. The entry wage must not
be less than the minimum wage prescribed by the Fair Labor Standards
Act, where applicable, unless a higher wage is required by other
applicable Federal law, State law, respective regulations, or by
collective bargaining agreement.
(6) Periodic review and evaluation of the apprentice's performance
on the job and in related instruction; and the maintenance of
appropriate progress records.
(7) A numeric ratio of apprentices to journeyworkers consistent
with proper supervision, training, safety, and continuity of
employment, and applicable provisions in collective bargaining
agreements, except where such ratios are expressly prohibited by the
collective bargaining agreements. The ratio language must be specific
and clearly described as to its application to the job site, workforce,
department or plant.
(8) A probationary period reasonable in relation to the full
apprenticeship term, with full credit given for such period toward
completion of apprenticeship. The probationary period cannot exceed 25
percent of the length of the program, or 1 year, whichever is shorter.
(9) Adequate and safe equipment and facilities for training and
supervision, and safety training for apprentices on the job and in
related instruction.
(10) The minimum qualifications required by a sponsor for persons
entering the apprenticeship program, with an eligible starting age not
less than 16 years.
(11) The placement of an apprentice under a written Apprenticeship
Agreement that meets the requirements of Sec. 29.7 or the State
apprenticeship law of a recognized Registration Agency. The agreement
must directly, or by reference, incorporate the standards of the
program as part of the agreement.
(12) The granting of advanced standing or credit for demonstrated
competency, acquired experience, training, or skills for all applicants
equally, with commensurate wages for any progression step so granted.
[[Page 64429]]
(13) The transfer of an apprentice between apprenticeship programs
and within an apprenticeship program must be based on agreement between
the apprentice and the affected apprenticeship committees or program
sponsors, and must comply with the following requirements:
(i) The transferring apprentice must be provided a transcript of
related instruction and on-the-job learning by the committee or program
sponsor;
(ii) Transfer must be to the same occupation; and
(iii) A new apprenticeship agreement must be executed when the
transfer occurs between program sponsors.
(14) Assurance of qualified training personnel and adequate
supervision on the job.
(15) Recognition for successful completion of apprenticeship
evidenced by an appropriate certificate issued by the Registration
Agency.
(16) Program standards that utilize the competency-based or hybrid
approach for progression through an apprenticeship and that choose to
issue interim credentials must clearly identify the interim
credentials, demonstrate how these credentials link to the components
of the apprenticeable occupation, and establish the process for
assessing an individual apprentice's demonstration of competency
associated with the particular interim credential. Further, interim
credentials must only be issued for recognized components of an
apprenticeable occupation, thereby linking interim credentials
specifically to the knowledge, skills, and abilities associated with
those components of the apprenticeable occupation.
(17) Identification of the Registration Agency.
(18) Provision for the registration, cancellation and
deregistration of the program; and for the prompt submission of any
program standard modification or amendment to the Registration Agency
for approval.
(19) Provision for registration of apprenticeship agreements,
modifications, and amendments; notice to the Registration Agency of
persons who have successfully completed apprenticeship programs; and
notice of transfers, suspensions, and cancellations of apprenticeship
agreements and a statement of the reasons therefore.
(20) Authority for the cancellation of an apprenticeship agreement
during the probationary period by either party without stated cause;
cancellation during the probationary period will not have an adverse
impact on the sponsor's completion rate.
(21) Compliance with 29 CFR part 30, including the equal
opportunity pledge prescribed in 29 CFR 30.3(b); an affirmative action
plan complying with 29 CFR 30.4; and a method for the selection of
apprentices authorized by 29 CFR 30.5, or compliance with parallel
requirements contained in a State plan for equal opportunity in
apprenticeship adopted under 29 CFR part 30 and approved by the
Department. The apprenticeship standards must also include a statement
that the program will be conducted, operated and administered in
conformity with applicable provisions of 29 CFR part 30, as amended,
or, if applicable, an approved State plan for equal opportunity in
apprenticeship.
(22) Contact information (name, address, telephone number, and e-
mail address if appropriate) for the appropriate individual with
authority under the program to receive, process and make disposition of
complaints.
(23) Recording and maintenance of all records concerning
apprenticeship as may be required by the Office of Apprenticeship or
recognized State Apprenticeship Agency and other applicable law.
Sec. 29.6 Program performance standards.
(a) Every registered apprenticeship program must have at least one
registered apprentice, except for the following specified periods of
time, which may not exceed 1 year:
(1) Between the date when a program is registered and the date of
registration for its first apprentice(s); or
(2) Between the date that a program graduates an apprentice and the
date of registration for the next apprentice(s) in the program.
(b) Registration Agencies must evaluate performance of registered
apprenticeship programs.
(1) The tools and factors to be used must include, but are not
limited to:
(i) Quality assurance assessments;
(ii) Equal Employment Opportunity (EEO) Compliance Reviews; and
(iii) Completion rates.
(2) Any additional tools and factors used by the Registration
Agency in evaluating program performance must adhere to the goals and
policies of the Department articulated in this part and in guidance
issued by the Office of Apprenticeship.
(c) In order to evaluate completion rates, the Registration Agency
must review a program's completion rates in comparison to the national
average for completion rates. Based on the review, the Registration
Agency must provide technical assistance to programs with completion
rates lower than the national average.
(d) Cancellation of apprenticeship agreements during the
probationary period will not have an adverse impact on a sponsor's
completion rate.
Sec. 29.7 Apprenticeship agreement.
The apprenticeship agreement must contain, explicitly or by
reference:
(a) Names and signatures of the contracting parties (apprentice,
and the program sponsor or employer), and the signature of a parent or
guardian if the apprentice is a minor.
(b) The date of birth and, on a voluntary basis, Social Security
number of the apprentice.
(c) Contact information of the Program Sponsor and Registration
Agency.
(d) A statement of the occupation in which the apprentice is to be
trained, and the beginning date and term (duration) of apprenticeship.
(e) A statement showing:
(1) The number of hours to be spent by the apprentice in work on
the job in a time-based program; or a description of the skill sets to
be attained by completion of a competency-based program, including the
on-the-job learning component; or the minimum number of hours to be
spent by the apprentice and a description of the skill sets to be
attained by completion of hybrid program; and
(2) The number of hours to be spent in related instruction in
technical subjects related to the occupation, which is recommended to
be not less than 144 hours per year.
(f) A statement setting forth a schedule of the work processes in
the occupation or industry divisions in which the apprentice is to be
trained and the approximate time to be spent at each process.
(g) A statement of the graduated scale of wages to be paid to the
apprentice and whether or not the required related instruction is
compensated.
(h) Statements providing:
(1) For a specific period of probation during which the
apprenticeship agreement may be cancelled by either party to the
agreement upon written notice to the registration agency, without
adverse impact on the sponsor.
(2) That, after the probationary period, the agreement may be:
(i) Cancelled at the request of the apprentice, or
(ii) Suspended or cancelled by the sponsor, for good cause, with
due notice to the apprentice and a reasonable opportunity for
corrective action, and with written notice to the apprentice and to the
Registration Agency of the final action taken.
[[Page 64430]]
(i) A reference incorporating as part of the agreement the
standards of the apprenticeship program as they exist on the date of
the agreement and as they may be amended during the period of the
agreement.
(j) A statement that the apprentice will be accorded equal
opportunity in all phases of apprenticeship employment and training,
without discrimination because of race, color, religion, national
origin, or sex.
(k) Contact information (name, address, phone, and e-mail if
appropriate) of the appropriate authority designated under the program
to receive, process and make disposition of controversies or
differences arising out of the apprenticeship agreement when the
controversies or differences cannot be adjusted locally or resolved in
accordance with the established procedure or applicable collective
bargaining provisions.
Sec. 29.8 Deregistration of a registered program.
Deregistration of a program may be effected upon the voluntary
action of the sponsor by submitting a request for cancellation of the
registration in accordance with paragraph (a) of this section, or upon
reasonable cause, by the Registration Agency instituting formal
deregistration proceedings in accordance with paragraph (b) of this
section.
(a) Deregistration at the request of the sponsor. The Registration
Agency may cancel the registration of an apprenticeship program by
written acknowledgment of such request stating the following:
(1) The registration is cancelled at the sponsor's request, and the
effective date thereof;
(2) That, within 15 days of the date of the acknowledgment, the
sponsor will notify all apprentices of such cancellation and the
effective date; that such cancellation automatically deprives the
apprentice of individual registration; that the deregistration of the
program removes the apprentice from coverage for Federal purposes which
require the Secretary of Labor's approval of an apprenticeship program,
and that all apprentices are referred to the Registration Agency for
information about potential transfer to other registered apprenticeship
programs.
(b) Deregistration by the Registration Agency upon reasonable
cause.
(1)(i) Deregistration proceedings may be undertaken when the
apprenticeship program is not conducted, operated, or administered in
accordance with the program's registered provisions or with the
requirements of this part, including not but limited to: failure to
provide on-the-job learning; failure to provide related instruction;
failure to pay the apprentice a progressively increasing schedule of
wages consistent with the apprentices skills acquired; or persistent
and significant failure to perform successfully. Deregistration
proceedings for violation of equal opportunity requirements must be
processed in accordance with the provisions under 29 CFR part 30.
(ii) For purposes of this section, persistent and significant
failure to perform successfully occurs when a program sponsor
consistently fails to register at least one apprentice, shows a pattern
of poor quality assessment results over a period of several years,
demonstrates an ongoing pattern of very low completion rates over a
period of several years, or shows no indication of improvement in the
areas identified by the Registration Agency during a review process as
requiring corrective action.
(2) Where it appears the program is not being operated in
accordance with the registered standards or with requirements of this
part, the Registration Agency must notify the program sponsor in
writing.
(3) The notice sent to the program sponsor's contact person must:
(i) Be sent by registered or certified mail, with return receipt
requested;
(ii) State the shortcoming(s) and the remedy required; and
(iii) State that a determination of reasonable cause for
deregistration will be made unless corrective action is effected within
30 days.
(4) Upon request by the sponsor for good cause, the 30-day term may
be extended for another 30 days. During the period for corrective
action, the Registration Agency must assist the sponsor in every
reasonable way to achieve conformity.
(5) If the required correction is not effected within the allotted
time, the Registration Agency must send a notice to the sponsor, by
registered or certified mail, return receipt requested, stating the
following:
(i) The notice is sent under this paragraph;
(ii) Certain deficiencies were called to the sponsor's attention
(enumerating them and the remedial measures requested, with the dates
of such occasions and letters), and that the sponsor has failed or
refused to effect correction;
(iii) Based upon the stated deficiencies and failure to remedy
them, a determination has been made that there is reasonable cause to
deregister the program and the program may be deregistered unless,
within 15 days of the receipt of this notice, the sponsor requests a
hearing with the applicable Registration Agency; and
(iv) If the sponsor does not request a hearing, the entire matter
will be submitted to the Administrator, Office of Apprenticeship, for a
decision on the record with respect to deregistration.
(6) If the sponsor does not request a hearing, the Registration
Agency will transmit to the Administrator a report containing all
pertinent facts and circumstances concerning the nonconformity,
including the findings and recommendation for deregistration, and
copies of all relevant documents and records. Statements concerning
interviews, meetings and conferences will include the time, date,
place, and persons present. The Administrator will make a final order
on the basis of the record presented.
(7) If the sponsor requests a hearing, the Registration Agency will
transmit to the Administrator a report containing all the data listed
in paragraph (b)(6) of this section, and the Administrator will refer
the matter to the Office of Administrative Law Judges. An
Administrative Law Judge will convene a hearing in accordance with
Sec. 29.10, and issue a decision as required in Sec. 29.10(c).
(8) Every order of deregistration must contain a provision that the
sponsor must, within 15 days of the effective date of the order, notify
all registered apprentices of the deregistration of the program; the
effective date thereof; that such cancellation automatically deprives
the apprentice of individual registration; that the deregistration
removes the apprentice from coverage for Federal purposes which require
the Secretary of Labor's approval of an apprenticeship program; and
that all apprentices are referred to the Registration Agency for
information about potential transfer to other registered apprenticeship
programs.
Sec. 29.9 Reinstatement of program registration.
Any apprenticeship program deregistered under Sec. 29.8 may be
reinstated upon presentation of adequate evidence that the
apprenticeship program is operating in accordance with this part. Such
evidence must be presented to the Registration Agency.
Sec. 29.10 Hearings for deregistration.
(a) Within 10 days of receipt of a request for a hearing, the
Administrator of the Office of Apprenticeship must contact the
Department's Office of Administrative Law Judges to request the
designation of an Administrative
[[Page 64431]]
Law Judge to preside over the hearing. The Administrative Law Judge
shall give reasonable notice of such hearing by registered mail, return
receipt requested, to the appropriate sponsor. Such notice will
include:
(1) A reasonable time and place of hearing;
(2) A statement of the provisions of this part pursuant to which
the hearing is to be held; and
(3) A concise statement of the matters pursuant to which the action
forming the basis of the hearing is proposed to be taken.
(b) The procedures contained in 29 CFR part 18 will apply to the
disposition of the request for hearing except that:
(1) The Administrative Law Judge will receive, and make part of the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof will be made available by the party submitting
the documentary evidence to any party to the hearing upon request.
(2) Technical rules of evidence will not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to
subject testimony to test by cross-examination will be applied, where
reasonably necessary, by the Administrative Law Judge conducting the
hearing. The Administrative Law Judge may exclude irrelevant,
immaterial, or unduly repetitious evidence.
(c) The Administrative Law Judge should issue a written decision
within 90 days of the close of the hearing record. The Administrative
Law Judge's decision constitutes final agency action unless, within 15
days from receipt of the decision, a party dissatisfied with the
decision files a petition for review with the Administrative Review
Board, specifically identifying the procedure, fact, law or policy to
which exception is taken. Any exception not specifically urged is
deemed to have been waived. A copy of the petition for review must be
sent to the opposing party at the same time. Thereafter, the decision
of the Administrative Law Judge remains final agency action unless the
Administrative Review Board, within 30 days of the filing of the
petition for review, notifies the parties that it has accepted the case
for review. The Administrative Review Board may set a briefing schedule
or decide the matter on the record. The Administrative Review Board
must decide any case it accepts for review within 180 days of the close
of the record. If not so decided, the Administrative Law Judge's
decision constitutes final agency action.
Sec. 29.11 Limitations.
Nothing in this part or in any apprenticeship agreement will
operate to invalidate:
(a) Any apprenticeship provision in any collective bargaining
agreement between employers and employees establishing higher
apprenticeship standards; or
(b) Any special provision for veterans, minority persons, or women
in the standards, apprentice qualifications or operation of the
program, or in the apprenticeship agreement, which is not otherwise
prohibited by law, Executive Order, or authorized regulation.
Sec. 29.12 Complaints.
(a) This section is not applicable to any complaint concerning
discrimination or other equal opportunity matters; all such complaints
must be submitted, processed and resolved in accordance with applicable
provisions in 29 CFR part 30, or applicable provisions of a State Plan
for Equal Employment Opportunity in Apprenticeship adopted pursuant to
29 CFR part 30 and approved by the Department.
(b) Except for matters described in paragraph (a) of this section,
any controversy or difference arising under an apprenticeship agreement
which cannot be adjusted locally and which is not covered by a
collective bargaining agreement, may be submitted by an apprentice, or
the apprentice's authorized representative, to the appropriate
Registration Authority, either Federal or State, which has registered
and/or approved the program in which the apprentice is enrolled, for
review. Matters covered by a collective bargaining agreement are not
subject to such review.
(c) The complaint must be in writing and signed by the complainant,
or authorized representative, and must be submitted within 60 days of
the final local decision. It must set forth the specific matter(s)
complained of, together with relevant facts and circumstances. Copies
of pertinent documents and correspondence must accompany the complaint.
(d) The Office of Apprenticeship or recognized State Apprenticeship
Agency, as appropriate, will render an opinion within 90 days after
receipt of the complaint, based upon such investigation of the matters
submitted as may be found necessary, and the record before it. During
the 90-day period, the Office of Apprenticeship or recognized State
Apprenticeship Agency will make reasonable efforts to effect a
satisfactory resolution between the parties involved. If so resolved,
the parties will be notified that the case is closed. Where an opinion
is rendered, copies will be sent to all interested parties.
(e) Nothing in this section precludes an apprentice from pursuing
any other remedy authorized under another Federal, State, or local law.
(f) A State Apprenticeship Agency may adopt a complaint review
procedure differing in detail from that given in this section provided
it is submitted for review and approval by the Office of
Apprenticeship.
Sec. 29.13 Recognition of State apprenticeship agencies.
(a) Recognition. The Department may exercise its authority to grant
recognition to a State Apprenticeship Agency. Recognition confers non-
exclusive authority to determine whether an apprenticeship program
conforms to the published standards and whether the program is,
therefore, eligible for those Federal purposes which require such a
determination by the Department. Such recognition shall be accorded
upon the State's submission of, the Department's approval of, and the
State's compliance with the following:
(1) The State Apprenticeship Agency must submit a State
apprenticeship law, whether instituted through statute, Executive
Order, regulation, or other means, that conforms to the requirements of
29 CFR parts 29 and 30;
(2) The State Apprenticeship Agency must establish and continue to
use a State Apprenticeship Council, which operates under the direction
of the State Apprenticeship Agency. The State Apprenticeship Council
may be either regulatory or advisory and must meet the following
requirements:
(i) It must be composed of persons familiar with apprenticeable
occupations, and
(ii) It must include an equal number of representatives of employer
and of employee organizations and include public members who shall not
number in excess of the number named to represent either employer or
employee organizations;
(3) The State Apprenticeship Agency must submit a State Plan for
Equal Employment Opportunity in Apprenticeship that conforms to the
requirements published in 29 CFR part 30;
(4) The State Apprenticeship Agency's submission must include a
description of the basic standards, criteria, and requirements for
program registration and/or approval, and
[[Page 64432]]
demonstrate linkages and coordination with the State's economic
development strategies and publicly-funded workforce investment system;
and
(5) The State Apprenticeship Agency's submission must include a
description of policies and operating procedures which depart from or
impose requirements in addition to those prescribed in this part.
(b) Basic requirements. In order to obtain and maintain recognition
as provided under paragraph (a) of this section, the State
Apprenticeship Agency must conform to the requirements of this part. To
accomplish this, the State must:
(1) Establish and maintain an administrative entity (the State
Apprenticeship Agency) that is capable of performing the functions of a
Registration Agency under 29 CFR part 29;
(2) Provide sufficient resources to carry out the functions of a
Registration Agency, including: Outreach and education; registration of
programs and apprentices; provision of technical assistance, and
monitoring as required to fulfill the requirements of this part;
(3) Clearly delineate the respective powers and duties of the State
office, the State Apprenticeship Agency, and the State Apprenticeship
Council;
(4) Establish policies and procedures to promote equality of
opportunity in apprenticeship programs pursuant to a State Plan for
Equal Employment Opportunity in Apprenticeship which adopts and
implements the requirements of 29 CFR part 30, and to require
apprenticeship programs to operate in conformity with such State Plan
and 29 CFR part 30;
(5) Prescribe the contents of apprenticeship agreements, in
conformity with Sec. 29.7;
(6) Ensure that the registration of apprenticeship programs occurs
only in apprenticeable occupations, as provided in Sec. 29.4,
including occupations in high growth and high demand industries;
(7) Accord reciprocal approval for Federal purposes to apprentices,
apprenticeship programs and standards that are registered in other
States by the Office of Apprenticeship or a Registration Agency if such
reciprocity is requested by the apprenticeship program sponsor. Program
sponsors seeking reciprocal approval must meet the wage and hour
provisions and apprentice ratio standards of the reciprocal State;
(8) Provide for the cancellation and/or deregistration of programs,
and for temporary suspension, cancellation, and/or deregistration of
apprenticeship agreements; and
(9) Submit all proposed modifications in legislation, regulations,
policies and/or operational procedures planned or anticipated by a
State Apprenticeship Agency, either at the time of application for
recognition or subsequently, to the Office of Apprenticeship for review
and obtain the Office of Apprenticeship's concurrence prior to
implementation.
(c) Application for recognition. A State Apprenticeship Agency
desiring new or continued recognition as a Registration Agency must
submit to the Administrator of the Office of Apprenticeship the
documentation specified in paragraph (a) of this section. A currently
recognized State desiring continued recognition by the Office of
Apprenticeship must submit to the Administrator of the Office of
Apprenticeship the documentation specified in paragraph (a) of this
section within 2 years of the effective date of the final rule. The
recognition of a currently recognized State shall continue for up to 2
years from the effective date of this regulation and during any
extension period granted by the Administrator. An extension of time
within which to comply with the requirements of this part may be
granted by the Administrator for good cause upon written request by the
State, but the Administrator shall not extend the time for submission
of the documentation required by paragraph (a) of this section. Upon
approval of the State Apprenticeship Agency's application for
recognition and any subsequent modifications to this application as
required under paragraph (b)(9) of this section, the Administrator
shall so notify the State Apprenticeship Agency in writing.
(d) Duration of recognition. The recognition of a State
Apprenticeship Agency shall last for 5 years from the date recognition
is granted under paragraph (c) of this section. The Administrator shall
notify each State Registration Agency at least 180 days prior to the
expiration of the 5-year period whether the Registration Agency is in
conformity with this part, based on reviews conducted by the Office of
Apprenticeship, as required by paragraph (e) of this section. If the
notification states that the State Apprenticeship Agency is in
conformity, recognition will be renewed for an additional 5-year
period. If the notification states that the State Apprenticeship Agency
is not in conformity, the notification shall specify the areas of non-
conformity, require corrective action, and offer technical assistance.
After the Administrator determines that a State Apprenticeship Agency
has corrected the identified non-conformities, recognition will be
renewed for an additional 5-year period.
(e) Compliance. The Office of Apprenticeship will monitor a State
Registration Agency for compliance with the recognition requirements of
this part through:
(1) On-site reviews conducted by Office of Apprenticeship staff.
(2) Self-assessment reports, as required by the Office of
Apprenticeship.
(3) Review of State Apprenticeship Agency legislation, regulations,
policies, and/or operating procedures required to be submitted under
paragraphs (a)(1), (a)(5) and (b)(9) of this section for review and
approval as required under Sec. 29.13(a).
(4) Determination whether, based on the review performed under
paragraphs (e)(1), (2), and (3) of this section, the State Registration
Agency is in compliance with part 29. Notice to the State Registration
Agency of the determination will be given within 45 days of receipt of
proposed modifications to legislation, regulations, policies, and/or
operational procedures required to be submitted under paragraphs
(a)(1), (a)(5) and (b)(9) of this section.
(f) Accountability/Remedies for non-conformity. (1) State
Registration Agencies that fail to maintain compliance with the
requirements of this part, as provided under paragraph (e) of this
section, will:
(i) Receive technical assistance from the Office of Apprenticeship
in an effort to remedy the non-conforming activity; and
(ii) Be placed on ``Conditional Recognition'' for a period of 45
days during which the State Apprenticeship Agency must submit a
corrective action plan to remedy the non-conforming activity to the
Office of Apprenticeship. Upon request from the State Apprenticeship
Agency, for good cause, the 45-day period may be extended.
(2) Failure to comply with these requirements will result in
rescission of recognition, for Federal Purposes as provided under Sec.
29.14.
(g) Denial of State Apprenticeship Agency Recognition. A denial by
the Office of Apprenticeship of a State Apprenticeship Agency's
application for new or continued recognition must be in writing and
must set forth the reasons for denial. The notice must be sent by
certified mail, return receipt requested. In addition to the reasons
stated for the denial, the notice must specify the remedies which must
be undertaken prior to consideration of a resubmitted request, and must
state that a request for
[[Page 64433]]
administrative review of a denial of recognition may be made within 30
calendar days of receipt of the notice of denial from the Department.
Such request must be made by mail and addressed to the Chief
Administrative Law Judge for the Department. The mailing address is
Office of Administrative Law Judges, U.S. Department of Labor, Suite
400 North, 800 K Street, NW., Washington, DC 20001-8002. Within 30
calendar days of the filing of the request for review, the
Administrator must prepare an administrative record for submission to
the Administrative Law Judge designated by the Chief Administrative Law
Judge.
(1) The procedures contained in 29 CFR part 18 will apply to the
disposition of the request for review except that:
(i) The Administrative Law Judge will receive, and make part of the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof will be made available by the party submitting
the documentary evidence to any party to the hearing upon request.
(ii) Technical rules of evidence will not apply to hearings
conducted under this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination will be applied, where
reasonably necessary, by the Administrative Law Judge conducting the
hearing. The Administrative Law Judge may exclude irrelevant,
immaterial, or unduly repetitious evidence.
(2) The Administrative Law Judge should submit proposed findings, a
recommended decision, and a certified record of the proceedings to the
Administrative Review Board within 90 calendar days after the close of
the record.
(3) Within 20 days of the receipt of the recommended decision, any
party may file exceptions. Any party may file a response to the
exceptions filed by another party within 10 days of receipt of the
exceptions. All exceptions and responses must be filed with the
Administrative Review Board with copies served on all parties and amici
curiae.
(4) After the close of the period for filing exceptions and
responses, the Administrative Review Board may issue a briefing
schedule or may decide the matter on the record before it. The
Administrative Review Board must decide any case it accepts for review
within 180 days of the close of the record. If not so decided, the
Administrative Law Judge's decision constitutes final agency action.
The decision of the Administrative Review Board constitutes final
action by the Department.
(h) Withdrawal from recognition. Where a State Apprenticeship
Agency voluntarily relinquishes its recognition for Federal purposes,
the State must:
(1) Send a formal notice of intent to the Administrator of the
Office of Apprenticeship;
(2) Provide all apprenticeship program standards, apprenticeship
agreements, completion records, cancellation and suspension records,
Equal Employment Opportunity Compliance Review files and any other
documents relating to the State's apprenticeship programs, to the
Department; and
(3) Cooperate fully during a transition period.
(i) Retention of authority. Notwithstanding any grant of
recognition to a State Apprenticeship Agency under this section, the
Office of Apprenticeship retains the full authority to register
apprenticeship programs and apprentices in all States and Territories
where the Office of Apprenticeship determines that such action is
necessary to further the interests of the National Apprenticeship
System.
(j) State apprenticeship programs. (1) An apprenticeship program
submitted to a State Registration Agency for registration must, for
Federal purposes, be in conformity with the State apprenticeship law,
regulations, and with the State Plan for Equal Employment Opportunity
in Apprenticeship as submitted to and approved by the Office of
Apprenticeship pursuant to 29 CFR part 30.
(2) In the event that a State Apprenticeship Agency is not
recognized by the Office of Apprenticeship for Federal purposes or that
such recognition has been withdrawn, or if no State Apprenticeship
Agency exists, registration with the Office of Apprenticeship may be
requested. Such registration must be granted if the program is
conducted, administered and operated in accordance with the
requirements of this part and the equal opportunity regulation in 29
CFR part 30, as amended.
Sec. 29.14 Derecognition of State Apprenticeship Agencies.
The recognition for Federal purposes of a State Apprenticeship
Agency may be withdrawn for the failure to fulfill, or operate in
conformity with, the requirements of parts 29 and 30. Derecognition
proceedings for reasonable cause will be instituted in accordance with
the following:
(a) Derecognition proceedings for failure to adopt or properly
enforce a State Plan for Equal Employment Opportunity in Apprenticeship
must be processed in accordance with the procedures prescribed in 29
CFR part 30.
(b) For causes other than those under paragraph (a) of this
section, the Office of Apprenticeship must notify the respondent and
appropriate State sponsors in writing, by certified mail, with return
receipt requested. The notice must set forth the following:
(1) That reasonable cause exists to believe that the respondent has
failed to fulfill or operate in conformity with the requirements of
this part;
(2) The specific areas of nonconformity;
(3) The needed remedial measures; and
(4) That the Office of Apprenticeship proposes to withdraw
recognition for Federal purposes unless corrective action is taken, or
a hearing request mailed, within 30 days of the receipt of the notice.
(c) If, within the 30-day period, the State Apprenticeship Agency:
(1) Acknowledges that the State is out of conformity, specifies its
proposed remedial action and commits itself to remedying the identified
deficiencies, the Office of Apprenticeship will suspend the
derecognition process to allow a reasonable period of time for the
State Apprenticeship Agency to implement its corrective action plan.
(i) If the Office of Apprenticeship determines that the State's
corrective action has addressed the identified concerns, the Office of
Apprenticeship must so notify the State and the derecognition
proceedings shall be terminated.
(ii) If the Office of Apprenticeship determines that the State has
not addressed or failed to remedy the identified concerns, the
Administrator must notify the State, in writing, of its failure,
specifying the reasons therefore, and offer the State an opportunity to
request a hearing within 30 days.
(2) Fails to comply or to request a hearing, the Office of
Apprenticeship shall decide whether recognition should be withdrawn. If
the decision is in the affirmative, the Administrator must begin the
process of transferring registrations in paragraph (d).
(3) Requests a hearing. The Administrator shall refer the matter to
the Office of Administrative Law Judges. An Administrative Law Judge
will convene a hearing in accordance with
[[Page 64434]]
Sec. 29.13(g) and submit proposed findings and a recommended decision
to the Administrative Review Board for final agency action. The
Administrative Review Board must decide any case it accepts for review
within 180 days of the close of the record. If not so decided, the
Administrative Law Judge's decision constitutes final agency action.
(d) If the Administrative Review Board determines to withdraw
recognition for Federal purposes or if the Office of Apprenticeship has
decided that recognition should be withdrawn under paragraph (c)(2) of
this section, the Administrator must:
(1) Notify the registration agency and the State sponsors of such
withdrawal and effect public notice of such withdrawal.
(2) Notify the sponsors that, 30 days after the date of the order
withdrawing recognition of the State's registration agency, the
Department shall cease to recognize, for Federal purposes, each
apprenticeship program registered with the State Apprenticeship Agency,
unless within that time, the sponsor requests registration with the
Office of Apprenticeship.
(e) In the event that a State Apprenticeship Agency is not
recognized by the Office of Apprenticeship for Federal purposes or that
such recognition has been withdrawn, or if no State Apprenticeship
Agency exists, apprenticeship program sponsors may request registration
with the Office of Apprenticeship in accordance with the following:
(1) The Office of Apprenticeship may grant the request for
registration on an interim basis. Continued recognition will be
contingent upon its finding that the State apprenticeship program is
operating in accordance with the requirements of this part and of 29
CFR part 30.
(2) The Office of Apprenticeship must make a finding on this issue
within 30 days of receipt of the request.
(3) If the finding is in the negative, the State sponsor must be
notified in writing that the interim registration with the Office of
Apprenticeship has been revoked and that the program will be
deregistered unless the sponsor requests a hearing within 15 days of
the receipt of the notice. If a hearing is requested, the matter will
be forwarded to the Office of Administrative Law Judges for a hearing
in accordance with Sec. 29.10.
(4) If the finding is in the affirmative, the State sponsor must be
notified in writing that the interim registration with the Office of
Apprenticeship has been made permanent based upon compliance with the
requirements of this part.
(f) If the sponsor fails to request registration with the Office of
Apprenticeship, the written notice to such State sponsor must further
advise the recipient that any actions or benefits applicable to
recognition for Federal purposes are no longer available to the
participants in its apprenticeship program as of the date 30 days after
the date of the order withdrawing recognition.
(g) Such notice must also direct the State sponsor to notify,
within 15 days, all its registered apprentices of the withdrawal of
recognition for Federal purposes; the effective date thereof; and that
such withdrawal removes the apprentice from coverage under any Federal
provision applicable to their individual registration under a program
recognized or registered by the Secretary of Labor for Federal
purposes. Such notice must direct that all apprentices are referred to
the Office of Apprenticeship for information about potential transfer
to other registered apprenticeship programs.
(h) Where a State Apprenticeship Agency's recognition for Federal
purposes has been withdrawn; the State must:
(1) Provide all apprenticeship program standards, apprenticeship
agreements, completion records, cancellation and suspension records,
Equal Employment Opportunity Compliance Review files and any other
documents relating to the State's apprenticeship programs, to the
Department; and
(2) Cooperate fully during a transition period.
(i) A State Apprenticeship Agency whose recognition has been
withdrawn under this part may have its recognition reinstated upon
presentation of adequate evidence that it has fulfilled the
requirements established in Sec. 29.13(i) and Sec. 29.14(g) and (h)
and is operating in conformity with the requirements of this part.
[FR Doc. E8-24917 Filed 10-28-08; 8:45 am]
BILLING CODE 4510-FR-P
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