[Federal Register: February 6, 1997 (Volume 62, Number 25)]
[Rules and Regulations]
[Page 5683-5692]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 5683]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Part 379
Projects With Industry: Final Rule and Fiscal Year 1997 Award
Applications, Notice
[[Page 5684]]
DEPARTMENT OF EDUCATION
34 CFR Part 379
RIN 1820-AB33
Projects With Industry
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the Projects
With Industry (PWI) program to clarify statutory intent, reduce grantee
burden, address certain implementation problems, and enhance project
accountability.
EFFECTIVE DATE: These regulations take effect March 10, 1997.
FOR FURTHER INFORMATION CONTACT: Thomas E. Finch, U.S. Department of
Education, 600 Independence Avenue, SW., Room 3315, Mary E. Switzer
Building, Washington, DC 20202-2575. Telephone: (202) 205-8292.
Individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The PWI program is authorized by section 621
of the Rehabilitation Act of 1973, as amended (the Act). The purpose of
the PWI program is to create and expand job and career opportunities
for individuals with disabilities in the competitive labor market by
establishing partnerships between program grantees and private industry
to provide job training, job placement, and career advancement
activities.
On January 22, 1996, the Secretary published a notice of proposed
rulemaking (NPRM) for this program in the Federal Register (61 FR
1672). The major issues related to this program are discussed in
greater detail in the preamble to the NPRM.
The significant changes made in these final regulations from the
NPRM include revision of the definitions of ``placement,''
``competitive employment,'' and ``integrated setting,'' as well as an
additional application content requirement for a description of career
advancement services. These changes are discussed in detail in the
analysis of comments section of the preamble to the final regulations.
The Secretary invited comments on changes needed to improve the
compliance indicators in the NPRM, but has made no changes to the
indicators in these final regulations. The comments provided in
response to the NPRM, as well as the comments provided by interested
parties in subsequent follow-up meetings held by the Rehabilitation
Services Administration (RSA), will be used by the Department in
determining what changes to make to the compliance indicators. The
Secretary expects to propose specific revisions to the PWI compliance
indicators in the near future.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
These regulations address the National Education Goal that every
adult American will possess the knowledge and skills necessary to
compete in a global economy and exercise the rights and
responsibilities of citizenship.
Executive Order 12866
Assessment of Costs and Benefits
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those determined by the
Secretary as necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, the Secretary has
determined that the benefits of the final regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
The potential costs and benefits of these final regulations were
discussed in the preamble to the NPRM under the following headings:
More Accurate Reflection of Statutory Requirements, Reduction of
Grantee Burden, and Clarification of Program Requirements (61 FR 1677).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 87 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM follows.
The comments have been grouped according to subject, with
appropriate references to sections of the regulations. Technical and
other minor changes--and suggested changes the Secretary is not legally
authorized to make under the applicable statutory authority--are not
addressed.
Section 379.3 Eligibility for Services
Comments: Several commenters recommended alternative procedures for
determining eligibility for PWI services other than those specified in
the NPRM. One commenter wanted eligibility to be determined jointly by
the State vocational rehabilitation (VR) agency, the PWI grantee, and
the individual seeking PWI services. Another commenter stated that only
the VR agency or its designee should make eligibility determinations.
Another commenter wanted PWI grantees to be allowed to determine
eligibility for PWI services without VR agency review. Another
commenter wanted the final regulations to clarify that a PWI grantee is
responsible for making eligibility determinations even if the grant is
sub-contracted to another organization. A final commenter raised
concerns that some VR agencies do not respond to initial or preliminary
determinations of eligibility made by PWI grantees.
Discussion: Section 621(a)(3) of the Act prescribes the manner in
which eligibility for PWI services is to be determined. The VR agency
is initially authorized to make eligibility determinations in this
program, but if the VR agency fails to act, either by not making a
determination or failing to disagree within 60 days with a preliminary
determination of eligibility made by the PWI grantee, then the PWI
grantee can determine eligibility. There is no legal authority to
substitute a different eligibility determination process in the
regulations. Under the Department's grants regulations, grantees are
held responsible for all aspects of their project operations, even if
they subcontract project activities. Finally, the regulations address
concerns that some VR agencies do not respond to preliminary PWI
eligibility determinations by providing, consistent with the statute,
that if the VR agency fails to act within 60 days, then the preliminary
PWI eligibility
[[Page 5685]]
determination becomes a final determination.
Changes: The Secretary has revised the explanatory material in the
note following this section to clarify that if the VR agency has
referred an individual to a PWI project for services, then the VR
agency has already determined that the individual is eligible for
project services. In other instances, the PWI grantee makes an initial
determination of eligibility that becomes final if not countermanded by
the VR agency within 60 days.
Section 379.5 Definitions
Section 379.5(b)(2)(ii) Definition of ``Competitive Employment''--
Prevailing Community Wage Requirement
Comments: Several commenters opposed the requirement in the
proposed regulations that individuals in competitive employment earn at
least the prevailing wage for the same or similar work in the local
community performed by non-disabled individuals. Eight commenters
believed that it would be unduly burdensome for grantees to ascertain
the relevant prevailing wage given the potential differences in wages
provided by employers within the same community. A few commenters
stated that prevailing community wage rates are sometimes inflated and
that many job-seekers are unsuccessful in finding employment at the
prevailing community wage. Several commenters recommended that the
final regulations require only that the minimum wage be paid and that
PWI participants be afforded the same terms and benefits provided to
non-disabled co-workers in similar jobs, consistent with section 621(b)
(1) and (2) of the Act. Other commenters recommended that the wage
standard should be one of parity with the wages paid by the same
employer to non-disabled workers doing the same or similar job.
Discussion: The Secretary agrees that requiring individuals placed
by the PWI program into competitive employment to earn at least the
prevailing wage for the same or similar work in the local community
performed by non-disabled individuals is unduly restrictive and
potentially burdensome. The Secretary also agrees that a more
reasonable wage standard is one that is employer-based rather than
community-based and that requires equity in wage and terms and benefits
(e.g., insurance premiums, retirement contributions) with non-disabled
workers.
Changes: The Secretary has amended Sec. 379.5(b)(2)(ii) to define
``competitive work,'' in part, as work for which an individual earns at
least the minimum wage but not less than the customary or usual wage
and terms and benefits provided by the same employer to non-disabled
workers who perform the same or similar work.
Section 379.5(b)(3) Definition of Integrated Setting, as Part of the
Definition of ``Competitive Employment''
Comments: Several commenters were concerned that the proposed
standard for integration in competitive employment (the opportunity for
interaction with non-disabled individuals at the work site) would
preclude certain kinds of employment outcomes from the scope of
competitive employment. Specifically, the commenters identified self-
employment, home-based employment, and various forms of telecommuting
as examples of employment outcomes that are competitive, but are not
located in integrated settings. These commenters stated that these
employment options should be available to individuals with disabilities
served by the PWI program to the same extent that they are available to
non-disabled persons. Other commenters stated that individuals in
competitive employment should be required to interact with non-disabled
persons only to the extent that non-disabled persons in similar
positions interact with others.
Discussion: The Secretary agrees with those commenters who contend
that the best measure of integration in an employment setting for
individuals with disabilities is to require parity with the integration
experienced by non-disabled workers in similar positions. The Secretary
also believes that interaction between individuals with disabilities
and non-disabled persons need not be face-to-face in order to meet this
standard. Individuals with disabilities under the PWI program who are
self-employed or who telecommute may interact regularly with non-
disabled persons through a variety of mediums (e.g., telephone,
facsimile, or computer). Self-employment, home-based employment, and
other forms of employment in which individuals communicate regularly
from separate locations, therefore, would satisfy the integration
requirement of competitive employment as long as the individual
interacts with non-disabled persons, other than service providers, to
the same extent as a non-disabled person in a comparable job.
Changes: The Secretary has revised Sec. 379.5(b)(3) to establish a
standard of integration for individuals in competitive employment that
is based on ensuring the same level of interaction with non-disabled
persons as that experienced by a non-disabled worker in the same or
similar job.
Section 379.5(b)(5) Definition of ``Job Training''
Comments: One commenter recommended the inclusion of pre-employment
planning under the definition of job training. Another commenter
recommended expanding the definition of job training to include social
preparation for individuals interviewing for jobs. Ten commenters
recommended deleting the phrase ``provided prior to placement'' because
the phrase excludes training by employers or other entities after
placement. Two commenters recommended that attitudinal change training
be provided for employers under the definition of training. Four
commenters recommended that training be provided in an integrated
setting. Other commenters underscored the need for specific input on
the part of the Business Advisory Committee (BAC) in identifying and
prescribing training needs. Still other commenters stated that the
responsibility for defining the parameters of job training should be
the domain of the BAC. Another commenter stated that the emphasis on
skills training is contrary to current trends of ``one-stop career
centers'' and expressed doubts as to whether grantees have adequate
resources and expertise to provide job skills training.
Discussion: The Secretary believes that the final regulations give
projects sufficient flexibility to provide pre-employment planning and
interview preparation if these services are deemed necessary. However,
the Secretary believes that these activities fall under the definition
of job readiness training in Sec. 379.5(b)(4), rather than the
definition of job training under this section. The Secretary also
believes that attitudinal change training for employers is an
authorized activity under the PWI program, but does not believe it
falls within the scope of job training, as it is defined in this
section.
While section 621(a)(2)(B) of the Act requires that training be
provided in ``realistic work settings,'' the Secretary does not believe
that this can be interpreted to require projects to provide training in
an integrated setting. However, the Secretary encourages projects to
ensure that training is provided in an integrated setting to the extent
possible.
The Secretary strongly agrees with the commenters who stated that
the BAC should take an active role in prescribing training programs and
notes that this is consistent with section 621(a)(2)(A)(iv)
[[Page 5686]]
of the Act, which states that the BAC shall ``prescribe training
programs designed to develop appropriate job and career skills.'' The
Secretary does not believe that the definition of job training in this
section in any way weakens this statutory requirement.
The Secretary notes the concern of some commenters that grantees
may have insufficient resources to provide job training. The use of the
BAC, other private industry expertise, and active collaboration with
State VR agencies and other providers can supplement what individual
projects may lack in terms of resources for job training.
Changes: None.
Section 379.5(b)(7) Definition of ``Placement''
Comments: One commenter recommended that the term ``placement'' be
deleted throughout the regulations and replaced with the term ``PWI
employment outcome.'' This commenter believed the use of the term
``placement'' was confusing because the proposed definition includes
two elements: (1) Attaining competitive employment and (2) maintaining
it for a certain period.
Other commenters were concerned about the proposed minimum
retention period for maintaining competitive employment in order to
have the employment outcome considered a placement for purposes of
meeting the program compliance indicators. The NPRM proposed the option
of using the duration of the employer's normal probationary period or,
if the employer does not have an established probationary period, for
at least 90 days. The current regulatory time period for maintaining
employment is 60 days. These commenters stated that the use of a
probationary period was problematical for a variety of reasons, such as
(1) an employer's probationary period could be as short as two weeks,
and that timeframe would be inadequate; (2) many employers no longer
use probationary periods, so the option is not meaningful; and (3) if
some employers have long probationary periods, some projects might be
disinclined to place individuals with those employers. Some commenters
argued for a uniform Federal standard in the regulations that would
avoid variations among employers. Some of these commenters suggested
that there be no change from the current retention period of 60 days.
Other commenters recommended 90 days, 120 days, 180 days, or 12 months.
Some commenters objected to any specific timeframe in the regulations
and believed the retention period should be individually determined by
the individual with a disability, the counselor, and the employer.
Some commenters recommended that the phrase ``who has successfully
completed training'' be deleted from the definition because the
regulations recognize that not all persons served by a PWI project may
need and, therefore, receive job training.
Discussion: The Secretary does not believe the use of the term
``placement,'' as defined in the regulations, is confusing. The PWI
regulations for many years have defined ``placement'' to include a
required period of time in which a competitive employment outcome must
be maintained.
The Secretary agrees with those commenters who believe the use of a
probationary period option is problematical and that a uniform minimum
retention period prescribed in the regulations is desirable. The
Secretary also believes that the retention period should be longer than
the 60 days required in the current regulations in order to ensure that
the individual's employment remains stable. The Secretary has
determined that 90 days is the minimum acceptable standard and that
this lengthened time period will result in more successful placements.
At the same time, however, the Secretary recognizes that in some
instances 90 days may be too short a period to ensure job stability.
Section 621(a)(2)(E) of the Act requires projects to provide any
support services that may be required for an individual to maintain
employment. Therefore, the Secretary encourages projects to make
individualized determinations of whether to extend the 90-day period to
conform with an employer's longer probationary period if, at the end of
the 90 days, it is uncertain whether the individual will be able to
successfully satisfy the probationary period without support services
from the project.
The Secretary also agrees that the phrase ``who has successfully
completed training'' is inaccurate and should be removed from the
definition because some project participants may not need job training.
Changes: The Secretary has amended the definition of ``placement''
in the final regulations to provide for a minimum job retention period
of 90 days and to substitute the phrase ``who has received services''
for the phrase ``who has successfully completed training.''
Section 379.10(a) Project Requirements Regarding Job Training and the
Note to This Section
Comments: One commenter recommended deletion of the last three
sentences of the note, which specify that training provided after
placement (i.e., attaining competitive employment and maintaining it
for at least 90 days) or job-readiness training do not satisfy the
requirement that projects provide job training. Another commenter
suggested revising this requirement to allow projects the option of
providing only job readiness training. Some commenters suggested that
individual projects should have the responsibility of assessing each
participant's training needs and how that training will be provided.
Some commenters suggested that grantees should be allowed the
flexibility to work with employers in order to provide training on the
job. Some commenters questioned whether job training should be provided
for all participants. Two commenters stated that all grantees should
have an identifiable training component for individuals who lack job
skills, but that all program participants should not be required to
avail themselves of training. Other commenters mentioned the added
costs of providing job training and asked whether grant awards should
be increased to cover these costs.
Discussion: The Secretary disagrees with the commenter who suggests
deletion of the clarification in the note that training provided after
placement and job readiness training do not by themselves satisfy the
requirement in Sec. 379.10(a). In accordance with section 621(a)(2)(B)
of the Act, projects are required to provide training in order to
prepare the individuals for employment and career advancement in the
competitive market. The Secretary, therefore, believes that projects
should ensure that training, if deemed appropriate to the participant's
needs, is provided either before the individual begins employment or
within the first 90 days of employment (i.e., before the individual is
considered placed in accordance with the definition of ``placement'' in
Sec. 379.5(b)(7)). On-the-job training would meet the requirements of
this section if the project ensures its provision and it is provided
within the first 90 days of employment. The 90-day requirement, of
course, does not apply to employed individuals who are receiving career
advancement services from a PWI project.
The Secretary also believes that the job training requirement is
not met if a project provides only job readiness
[[Page 5687]]
training. While job readiness training is an authorized activity under
the PWI program, the Secretary believes that job readiness training
alone does not meet the statutory requirement that projects provide
training to prepare individuals for employment in the competitive labor
market. The final regulations, like the NPRM, therefore contain
separate definitions of ``job training'' and ``job readiness
training.'' The Secretary agrees with those commenters who suggested
that job training need not be provided to every participant. The
language in this section requires that job training be provided ``if
appropriate to the needs of each individual served by the project.''
However, the Secretary expects that every project will have a job
training component (whether the training is provided on-site, through
employers and other entities, or both), since a certain population of
individuals will enter the program without the job skills necessary to
be placed and advance in competitive employment.
The Secretary notes the concern of commenters regarding the costs
of providing job training. The Secretary believes the regulations give
projects sufficient flexibility to arrange with employers and other
entities to provide job training should they find that providing job
training themselves is too costly or for other reasons is not feasible.
Changes: The Secretary has added a statement to the note to
emphasize that if a project arranges for the provision of job training
by outside entities (e.g., an employer), the project must conduct
appropriate follow-up measures to ensure that training is provided. The
note is also amended to clarify that job training must be provided
either prior to, or within 90 days of, attaining competitive employment
and that job training provided by the employer after this 90-day
period, therefore, does not meet the requirement of Sec. 379.10(a).
Section 379.21(a)(1) Application Content Requirement Regarding Labor
Market Analysis
Comments: A number of commenters stated that a labor market
analysis obligates applicants to predict for five years the training
needs that will meet the demands of the labor market and that the labor
market changes too rapidly for this to be accomplished. Other
commenters recommended deleting the language regarding labor market
analysis. Other commenters stated that individuals with disabilities
may not fit appropriately into a market trend and may require
individualized job matching. A commenter recommended that each
application describe how existing labor market studies will be used in
securing employment and validating training needs.
Discussion: The Secretary does not intend to require the use of a
particular tool (e.g., a labor market analysis) to identify the needs
of the local labor market. If an applicant determines that a labor
market analysis is inappropriate for the type of project being
proposed, the applicant can choose a different method of identifying
local labor market needs. The requirement in Sec. 379.21(a)(1) is
intended to ensure that applicants have assessed labor market needs in
the geographic area to be served and have designed their projects in
accordance with the identified needs for people trained for specific
occupations. Applicants can determine labor market needs by either
performing their own labor market analyses or needs assessments in
conjunction with private industry or by using existing current labor
market analyses or needs assessments. The Secretary understands that
local labor market needs may change during the five-year duration of
the project and that these changes may, in some cases, necessitate
adjustments in the project. However, the Secretary believes that this
does not diminish the utility of an initial labor market analysis or
needs assessment. The Secretary also believes that the identification
of local labor market needs does not contravene the practice of
individualized job-matching for individuals with disabilities.
Changes: The Secretary has made minor changes to clarify that the
applicant may comply with Sec. 379.21(a)(1) either by using an existing
current labor market analysis or needs assessment or by performing a
labor market analysis or needs assessment in conjunction with private
industry.
Section 379.21(a)(4) Application Content Requirement Concerning
Unserved or Underserved Areas
Comments: One commenter recommended that an applicant for a PWI
grant be required to document geographic need through verification by
the State VR agency. This commenter wanted to avoid duplication of
awards and to ensure that services are provided in areas most in need.
Discussion: The Secretary encourages all applicants to consult with
the relevant State VR agency to ensure that services are to be provided
in areas where individuals are unserved or underserved, but does not
want to require this. It is the responsibility of each applicant to
explain in its grant application how the geographic area it proposes to
serve is unserved or underserved by the PWI program and to provide
whatever justification it considers necessary to support its position.
Changes: None.
Section 379.21(a)(7) Requirement Concerning Career Advancement
Services
Comments: Some commenters suggested that career advancement
services be addressed with an application content requirement rather
than as a compliance indicator.
Discussion: The 1992 Amendments to the Rehabilitation Act of 1973,
as amended, added career advancement services to the range of services
PWI projects are required to provide. In the NPRM, the Secretary
solicited comments on how best to address the career advancement
requirement. The Secretary agrees that an application content
requirement is the best way to implement the career advancement
services provision.
Changes: In response to commenters' suggestions, the Secretary has
added to this section the requirement that a grant application contain
a description of how career advancement services will be provided to
project participants.
Section 379.30 Recommendation of New Selection Criterion
Comments: One commenter recommended that applicants under this
program be required to include a plan for continuing the project after
the Federal grant period has ended.
Discussion: The Secretary finds no statutory basis, as exists for
the recreation programs authorized under section 316 of the Act, for
adding a criterion to require applicants to include a plan for
continuation of the project after the Federal grant period has ended.
Changes: None.
Section 379.30(a)(1) Selection Criterion: Extent of Need for Project--
Labor Market Analysis
Comments: A number of commenters suggested alternative language to
a ``labor market analysis'' and recommended tailoring a needs
assessment to local communities rather than to the national or regional
job market as implied by the term. Some commenters recommended that the
phrase ``labor market analysis'' be deleted.
Discussion: The Secretary intends, and the NPRM stated, that the
applicant's labor market analysis or needs assessment be conducted
``for the geographic area to be served.'' The Secretary does not intend
by using the
[[Page 5688]]
term ``labor market analysis'' to require the applicant to conduct an
analysis that is regional or national in scope. While the Secretary
expects that projects once established should work with local
businesses and the BAC to identify job opportunities for individuals
with disabilities, the Secretary does not believe this action
eliminates the need for an initial survey of local labor market needs.
An initial labor market analysis or needs assessment demonstrates a
need for the project and also enables the project to tailor its job
training and services to the needs of the local labor market.
Changes: The Secretary has made minor changes to clarify that the
applicant may satisfy Sec. 379.30(a)(1) either by using an existing
current labor market analysis or needs assessment or by performing a
labor market analysis or needs assessment in conjunction with private
industry.
Section 379.30(a)(2) Selection Criterion: Extent of Need for Project--
Labor Market Analysis
Comments: None.
Discussion: The Secretary believes the phrase ``occupations and
occupational categories'' is more precise than ``industry or
industries'' because it refers to a type of job or jobs for which
participants are to be trained (e.g., computer programmer) rather than
the industries in which they might be placed (e.g., the computer
industry).
Changes: The Secretary has amended Sec. 379.30(a)(2) in the final
regulations to clarify that the job training to be provided must meet
the identified needs for specific occupations or occupational
categories in the geographic area to be served.
Section 379.41(a)(f) Allowable Costs
Comments: One commenter recommended specifying under this section
on allowable costs that, if appropriate, grantees may modify facilities
and equipment of employers. Another commenter recommended the addition
of job modification and job development as allowable costs.
Discussion: The Secretary agrees with the commenters that the costs
of job development and modification and the costs of modifications of
employer facilities or equipment to be used by PWI program participants
should be specifically identified in the final regulations as
permissible expenditures. This is consistent with language in 34 CFR
379.10(d) (1) and (3), which requires grantees to undertake these
activities, to the extent appropriate.
Changes: The Secretary has amended Sec. 379.41(a) to include as
allowable costs job development and modification and modifications for
facilities and equipment of employers participating in the program.
Section 379.43 and Sec. 379.54(a) Annual Evaluation Report and
Compliance Indicator Data
Comments: One commenter did not agree with the proposed requirement
that projects submit annual evaluation report and compliance indicator
data 60 days after the end of the project year.
Discussion: The Secretary believes that the 60-day timeline is
reasonable for submission of project evaluation and compliance
indicator data in order to ensure timely receipt of project information
and to increase program accountability. In addition, the Secretary has
the option to extend this timeline for reasonable cause.
Changes: None.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collection of information in these final regulations is displayed at
the end of the affected sections of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the notice of proposed rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the proposed regulations and on its own
review, the Department has determined that the regulations in this
document do not require transmission of information that is being
gathered by or is available from any other agency or authority of the
United States.
List of Subjects in 34 CFR Part 379
Education, Grant programs--education, Grant programs--social
programs, Reporting and recordkeeping requirements, vocational
rehabilitation.
Dated: October 25, 1996.
Judith E. Heumann,
Assistant Secretary for Special Education and Rehabilitative Services.
(Catalog of Federal Domestic Assistance Number 84.234 Projects With
Industry)
The Secretary amends Title 34 of the Code of Federal Regulations as
follows:
1. By revising part 379, subparts A through E, by revising the
heading of subpart F, and by adding a new Sec. 379.54 in subpart F to
read as follows:
PART 379--PROJECTS WITH INDUSTRY
Subpart A--General
Sec.
379.1 What is the Projects With Industry (PWI) program?
379.2 Who is eligible for a grant award under this program?
379.3 Who is eligible for services under this program?
379.4 What regulations apply?
379.5 What definitions apply?
Subpart B--What Kinds of Activities Does the Department of Education
Assist Under This Program?
379.10 What types of project activities are required of each
grantee under this program?
379.11 What additional types of project activities may be
authorized under this program?
Subpart C--How Does One Apply for an Award?
379.20 How does an eligible entity apply for an award?
379.21 What is the content of an application for an award?
Subpart D--How Does the Secretary Make a Grant?
379.30 What selection criteria does the Secretary use under this
program?
379.31 What other factors does the Secretary consider in reviewing
an application?
Subpart E--What Conditions Must Be Met by a Grantee?
379.40 What are the matching requirements?
379.41 What are allowable costs?
379.42 What are the requirements for a continuation award?
379.43 What are the additional reporting requirements?
[[Page 5689]]
Subpart F--What Compliance Indicator Requirements Must a Grantee Meet
To Receive Continuation Funding?
* * * * *
379.54 What are the reporting requirements for the compliance
indicators?
* * * * *
Authority: Sects. 12(c) and 621 of the Act; 29 U.S.C. 711(c) and
795g, unless otherwise noted.
Subpart A--General
Sec. 379.1 What is the Projects With Industry (PWI) program?
This program is designed to--
(a) Create and expand job and career opportunities for individuals
with disabilities in the competitive labor market by engaging the
talent and leadership of private industry as partners in the
rehabilitation process;
(b) Identify competitive job and career opportunities and the
skills needed to perform these jobs;
(c) Create practical settings for job readiness and job training
programs; and
(d) Provide job placements and career advancement.
(Authority: Sect. 621(a)(1) of the Act; 29 U.S.C. 795g(a)(1))
Sec. 379.2 Who is eligible for a grant award under this program?
(a) The Secretary may make a grant under this program to any--
(1) Community rehabilitation program provider;
(2) Designated State unit;
(3) Employer;
(4) Indian tribe or tribal organization;
(5) Labor Union;
(6) Nonprofit agency or organization;
(7) Trade association; or
(8) Other agency or organization with the capacity to create and
expand job and career opportunities for individuals with disabilities.
(b) New awards may be made only to those eligible entities
identified in paragraph (a) of this section that propose to serve
individuals with disabilities in States, portions of States, Indian
tribes, or tribal organizations that are currently unserved or
underserved by the PWI program.
(Authority: Section 621(a)(2) and 621(e)(2) of the Act; 29 U.S.C.
795g(a)(2) and 795g(e)(2))
Sec. 379.3 Who is eligible for services under this program?
(a) An individual is eligible for services under this program if
the appropriate State vocational rehabilitation unit determines the
individual to be an individual with a disability or an individual with
a severe disability, as defined in sections 7(8)(A) and 7(15)(A),
respectively, of the Act.
(b) In making the determination under paragraph (a) of this
section, the State vocational rehabilitation unit shall rely on the
determination made by the recipient of the grant under which the
services are provided, to the extent that the determination is
appropriate, available, and consistent with the requirements of the
Act.
(c) If a State vocational rehabilitation unit does not notify a
recipient of a grant within 60 days that the determination of the
recipient is inappropriate, the recipient of the grant may consider the
individual to be eligible for services.
(Authority: Sect. 621(a)(3) of the Act; 29 U.S.C. 795g(a)(3))
Appendix to Sec. 379.3
The following guidance is provided regarding the determination
of eligibility for PWI project services:
(1) If an individual is referred to the PWI project by the State
vocational rehabilitation (VR) unit and the individual has been
determined by the State VR unit to be an ``individual with a
disability'' under section 102(a)(1)(A) of the Act, then the PWI
grantee may initiate services to that individual. In these
instances, the State VR unit should provide documentation of this
determination to the PWI grantee. If the State VR unit has
determined that the individual also meets the definition of an
``individual with a severe disability'' under section 7(15)(A) of
the Act, the PWI grantee should be advised of that determination and
provided appropriate documentation of that determination.
(2) If an individual is not referred to the PWI project by the
State VR unit, then the PWI grantee makes an initial or preliminary
determination that the individual is eligible for services because
the individual meets the definition of an ``individual with a
disability'' or an ``individual with a severe disability.'' The
State VR unit has a maximum of 60 days to assess the appropriateness
of the preliminary determination. If the State VR unit does not
decide that the preliminary eligibility determination is
inappropriate within this time period, the eligibility determination
becomes final.
Sec. 379.4 What regulations apply?
The following regulations apply to the Projects With Industry
program:
(a) The regulations in this part 379; and
(b) The regulations in 34 CFR part 369, except for the regulations
in Secs. 369.30 and 369.31.
Authority: Sect. 621 of the Act; 29 U.S.C. 795g)
Sec. 379.5 What definitions apply?
(a) The definitions in 34 CFR part 369 apply to this program.
(b) The following definitions also apply to this program:
(1) Career advancement services mean services that develop specific
job skills beyond those required by the position currently held by an
individual with a disability to assist the individual to compete for a
promotion or achieve an advanced position.
(2) Competitive employment, as the placement outcome under this
program, means work--
(i) In the competitive labor market that is performed on a full-
time or part-time basis in an integrated setting; and
(ii) For which an individual is compensated at or above the minimum
wage, but not less than the customary or usual wage and terms and
benefits provided by the employer for the same or similar work
performed by individuals who are not disabled.
(3) Integrated setting, as part of the definition of competitive
employment, means a setting typically found in the community in which
individuals with disabilities interact with non-disabled individuals,
other than non-disabled individuals who are providing services to them,
to the same extent that non-disabled individuals in comparable
positions interact with other persons.
(4) Job readiness training, as used in Sec. 379.41(a), means--
(i) Training in job-seeking skills;
(ii) Training in the preparation of resumes or job applications;
(iii) Training in interviewing skills;
(iv) Participating in a job club; or
(v) Other related activities that may assist an individual to
secure competitive employment.
(5) Job training, as used in this part, means one or more of the
following training activities provided prior to placement, as that term
is defined in Sec. 379.5(b)(7):
(i) Occupational skills training.
(ii) On-the-job training.
(iii) Workplace training combined with related instruction.
(iv) Job skill upgrading and retraining.
(v) Training to enhance basic work skills and workplace
competencies.
(vi) On-site job coaching.
(6) Person served means an individual for whom services by a PWI
project have been initiated with the objective that those services will
result in a placement in competitive employment.
(7) Placement means the attainment of competitive employment by a
person who has received services from a PWI project and has maintained
employment for a period of at least 90 days.
(Authority: Sects. 12(c) and 621 of the Act; 29 U.S.C. 711(c) and
795g)
[[Page 5690]]
Subpart B--What Kinds of Activities Does the Department of
Education Assist Under This Program?
Sec. 379.10 What types of project activities are required of each
grantee under this program?
Each grantee under the PWI program shall--
(a) Arrange for the provision of, or provide individuals with
disabilities with, job training in a realistic work setting, if
appropriate to the needs of the individual, in order to prepare
individuals for employment and career advancement in the competitive
labor market;
(b) Provide individuals with disabilities with job placement and
career advancement services;
(c) Provide individuals with disabilities with supportive services
that are necessary to permit them to maintain the employment and career
advancement for which they have received training under this program;
(d) To the extent appropriate, provide for--
(1) The development and modification of jobs and careers to
accommodate the special needs of the individuals with disabilities
being trained and employed under this program;
(2) The purchase and distribution of rehabilitation technology to
meet the needs of individuals with disabilities at job sites; and
(3) The modification of any facilities or equipment of the employer
that are to be used by individuals with disabilities under this
program; and
(e) Provide for the establishment of a Business Advisory Council
(BAC) comprised of representatives of private industry, business
concerns, organized labor, and individuals with disabilities and their
representatives who will identify job and career availability within
the community, the skills necessary to perform those jobs and careers,
and prescribe appropriate training programs.
Appendix to Sec. 379.10
A PWI grantee can meet the requirements of Sec. 379.10(a) (1) by
directly providing job training to project participants, (2) by
arranging for the provision of this training by other entities and
taking appropriate follow-up measures to ensure that the training
is, in fact, provided, or (3) by a combination of both (1) and (2).
The job training provided must meet the definition of job training
in Sec. 379.5(b)(5) and must be provided as appropriate to the needs
of each individual served by the project. Although each individual
served by the project may not need job training, the Secretary
expects that each PWI project will have an identifiable job training
component that is available to those individuals who need it. In
order to meet the requirements of Sec. 379.10(a), the job training
must be provided while the individual is participating in the
project (i.e. prior to, or within 90 days of, attaining competitive
employment). Therefore, training provided by an employer more than
90 days after the individual begins competitive employment would not
meet this requirement. In addition, a project that provides only job
readiness training, as defined in Sec. 379.5(b)(4), would not meet
the requirements of Sec. 379.10(a).
(Authority: Sect. 621(a) of the Act; 29 U.S.C. 795g)
Sec. 379.11 What additional types of project activities may be
authorized under this program?
The Secretary may include, as part of grant agreements with
recipients under this program, authority for recipients to provide the
following types of technical assistance:
(a) Assisting employers in hiring individuals with disabilities.
(b) Improving or developing relationships between grant recipients
or prospective grant recipients and employers or organized labor.
(c) Assisting employers in understanding and meeting the
requirements of the Americans with Disabilities Act of 1990 (42 U.S.C
12101 et seq.) as that Act relates to employment of individuals with
disabilities.
(Authority: Sect. 621(a) of the Act; 29 U.S.C 795g)
Subpart C--How Does One Apply for an Award?
Sec. 379.20 How does an eligible entity apply for an award?
In order to apply for a grant, an eligible entity shall submit an
application to the Secretary in response to an application notice
published in the Federal Register.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Sec. 621(e)(1)(B) of the Act; 29 U.S.C. 795g(e)(1)(B))
Sec. 379.21 What is the content of an application for an award?
(a) The grant application must include a description of--
(1) The proposed job training to prepare project participants for
specific jobs in the competitive labor market for which there is a need
in the geographic area to be served by the project, as identified by an
existing current labor market analysis or other needs assessment or one
conducted by the applicant in collaboration with private industry;
(2) The involvement of private industry in the design of the
proposed project and the manner in which the project will collaborate
with private industry in planning, implementing, and evaluating job
training, job placement, and career advancement activities;
(3) The responsibilities of the BAC and how it will interact with
the project in carrying out grant activities;
(4) The geographic area to be served by the project, including an
explanation of how the area is currently unserved or underserved by the
PWI program;
(5) A plan for evaluating annually the operation of the proposed
project, which, at a minimum, provides for collecting and submitting to
the Secretary the following information and any additional data needed
to determine compliance with the program compliance indicators
established in subpart F of this part:
(i) The numbers and types of individuals with disabilities served.
(ii) The types of services provided.
(iii) The sources of funding.
(iv) The percentage of resources committed to each type of service
provided.
(v) The extent to which the employment status and earning power of
individuals with disabilities changed following services.
(vi) The extent of capacity building activities, including
collaboration with business and industry and other organizations,
institutions, and agencies, including the State vocational
rehabilitation unit.
(vii) A comparison, if appropriate, of activities in prior years
with activities in the most recent year.
(viii) The number of project participants who were terminated from
project placements and the duration of those placements;
(6) A description of the manner in which the project will address
the needs of individuals with disabilities from minority backgrounds,
as required by 34 CFR 369.21; and
(7) A description of how career advancement services will be
provided to project participants.
(b) The grant application must also include assurances from the
applicant that--
(1) The project will carry out all activities required in
Sec. 379.10;
(2) Individuals with disabilities who are placed by the project
will receive compensation at or above the minimum wage, but not less
than the customary or usual wage paid by the employer for the same or
similar work performed by individuals who are not disabled;
(3) Individuals with disabilities who are placed by the project
will be given
[[Page 5691]]
terms and benefits of employment equal to those that are given to
similarly situated co-workers and will not be segregated from their co-
workers; and
(4) The project will maintain any records required by the Secretary
and make those records available for monitoring and audit purposes.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Secs. 621(a)(4), 621(a)(5), 621(b), and 621(e)(1)(B) of
the Act; 29 U.S.C. 795g(a)(4), 795g(a)(5), 795g(b), and
795g(e)(1)(B))
Subpart D--How Does the Secretary Make a Grant?
Sec. 379.30 What selection criteria does the Secretary use under this
program?
The Secretary uses the following criteria to evaluate an
application:
(a) Extent of need for project (20 points). The Secretary reviews
each application to determine the extent to which the project meets
demonstrated needs. The Secretary looks for evidence that--
(1) The applicant has described an existing current labor market
analysis or other needs assessment, or one that it has performed in
collaboration with private industry, that shows, for the geographic
area to be served, a demand in the competitive labor market for the
types of jobs for which project participants will be trained; and
(2) The job training to be provided meets the identified needs for
personnel in specific occupations or occupational categories in the
geographic area to be served.
(b) Partnership with industry (25 points). The Secretary looks for
information that demonstrates--
(1) The extent of the project's proposed collaboration with private
industry in the planning, implementation, and evaluation of job
training, placement, and career advancement activities; and
(2) The extent of proposed participation of the BAC in the
identification of job and career opportunities, the skills necessary to
perform the jobs and careers identified, and the development of
training programs designed to develop these skills.
(c) Project design and plan of operation for achieving competitive
employment outcomes (25 points). The Secretary reviews each application
to determine--
(1) The extent to which the project goals and objectives for
achieving competitive employment outcomes for individuals with
disabilities to be served by the project are clearly stated and meet
the needs identified by the applicant and the purposes of the program;
(2) The extent to which the project provides for all services and
activities required under Sec. 379.10;
(3) The feasibility of proposed strategies and methods for
achieving project goals and objectives for competitive employment
outcomes for project participants;
(4) The extent to which project activities will be coordinated with
the State vocational rehabilitation unit and with other appropriate
community resources in order to ensure an adequate number of referrals
and a maximum use of comparable benefits and services;
(5) The extent to which the applicant's management plan will ensure
proper and efficient administration of the project; and
(6) Whether the applicant has proposed a realistic timeline for the
implementation of project activities to ensure timely accomplishment of
proposed goals and objectives to achieve competitive employment
outcomes for individuals with disabilities to be served by the project.
(d) Adequacy of resources and quality of key personnel (10 points).
The Secretary reviews each application to determine--
(1) The adequacy of the resources (including facilities, equipment,
and supplies) that the applicant plans to devote to the project;
(2) The quality of key personnel who will be involved in the
project, including--
(i) The qualifications of the project director;
(ii) The qualifications of each of the other key personnel to be
used in the project; and
(iii) The experience and training of key personnel in fields
related to the objectives and activities of the project; and
(3) The way the applicant plans to use its resources and personnel
to achieve the project's goals and objectives, including the time that
key personnel will commit to the project.
(e) Budget and cost effectiveness (10 points). The Secretary
reviews each application to determine the extent to which--
(1) The budget is adequate to support the project; and
(2) Costs are reasonable in relation to the objectives of the
project.
(f) Project evaluation (10 points). The Secretary reviews each
application to determine the quality of the proposed evaluation plan
with respect to--
(1) Evaluating project operations and outcomes;
(2) Involving the BAC in evaluating the project's job training,
placement, and career advancement activities;
(3) Meeting the annual evaluation reporting requirements in
Sec. 379.21(a)(5);
(4) Determining compliance with the indicators; and
(5) Addressing any deficiencies identified through project
evaluation.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Secs. 12(c) and 621 of the Act; 29 U.S.C. 711(c) and
795g)
Sec. 379.31 What other factors does the Secretary consider in
reviewing an application?
In addition to the selection criteria in Sec. 379.30, the
Secretary, in making awards under this program, considers--
(a) The equitable distribution of projects among the States; and
(b) The past performance of the applicant in carrying out a similar
PWI project under previously awarded grants, as indicated by factors
such as compliance with grant conditions, soundness of programmatic and
financial management practices, and meeting the requirements of subpart
F of this part.
(Authority: Secs. 621(e)(2) and 621(f)(4) of the Act; 29 U.S.C.
795g(e)(2) and 795g(f)(4))
Subpart E--What Conditions Must Be Met by a Grantee?
Sec. 379.40 What are the matching requirements?
The Federal share may not be more than 80 percent of the total cost
of a project under this program.
(Authority: Sec. 621(c) of the Act; 29 U.S.C. 795g(c))
Appendix to Sec. 379.40
(a) For example, if the total cost of a project is $500,000, the
Federal share would be no more than $400,000 and the grantee's
required minimum share (matching contribution) would be $100,000
(provided in cash or through third party in-kind contributions). The
matching contribution is based upon the total cost of the project,
not on the amount of the Federal grant award.
(b) The matching contribution must comply with the requirements
of 34 CFR 74.23 (for grantees that are institutions of higher
education, hospitals, or other nonprofit organizations) or 34 CFR
80.24 (for grantees that are State, local, or Indian tribal
governments). The term third party in-kind contributions is defined
in either 34 CFR 74.2 or 34 CFR 80.3, as applicable to the type of
grantee.
Sec. 379.41 What are allowable costs?
In addition to those costs that are allowable in accordance with 34
CFR 74.27 and 34 CFR 80.22, the following items are allowable costs
under this program:
[[Page 5692]]
(a) The costs of job readiness training, as defined in
Sec. 379.5(b)(4); job training, as defined in Sec. 379.5(b)(5); job
placement services; job development and modification; and related
vocational rehabilitation services and supportive rehabilitation
services.
(b) Instruction and supervision of trainees.
(c) Training materials and supplies, including consumable
materials.
(d) Instructional aids.
(e) The purchase or modification of rehabilitation technology to
meet the needs of individuals with disabilities.
(f) Alteration and renovation appropriate and necessary to ensure
access to and use of buildings by persons with disabilities served by
the project.
(g) The modification of any facilities or equipment of the employer
to be used by individuals with disabilities under this program.
(Authority: Secs. 12(c) and 621 of the Act; 29 U.S.C. 711(c) and
795g))
Sec. 379.42 What are the requirements for a continuation award?
(a) A grantee that wants to receive a continuation award must--
(1) Comply with the provisions of 34 CFR 75.253(a), including
making substantial progress toward meeting the objectives in its
approved application and submitting all performance and financial
reports required by 34 CFR 75.118; and
(2) Submit data in accordance with Sec. 379.54 showing that it has
met the program compliance indicators established in Subpart F of this
part.
(b) In addition to the requirements in paragraph (a) of this
section, the following other conditions in 34 CFR 75.253(a) must be met
before the Secretary makes a continuation award:
(1) Congress must appropriate sufficient funds under the program.
(2) Continuation of the project must be in the best interest of the
Federal Government.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Secs. 12(c) and 621(f)(4) of the Act; 29 U.S.C. 711(c)
and 795g(f)(4))
Sec. 379.43 What are the additional reporting requirements?
Each grantee shall submit the data from its annual evaluation of
project operations required under Sec. 379.21(a)(5) no later than 60
days after the end of each project year, unless the Secretary
authorizes a later submission date.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Secs. 12(c) and 621 of the Act; 29 U.S.C. 711(c) and
795g)
Subpart F--What Compliance Indicator Requirements Must a Grantee
Meet To Receive Continuation Funding?
Sec. 379.54 What are the reporting requirements for the compliance
indicators?
(a) In order to receive continuation funding for the third or any
subsequent year of a PWI grant, each grantee must submit data for the
most recent complete project year no later than 60 days after the end
of that project year, unless the Secretary authorizes a later
submission date, in order for the Secretary to determine if the grantee
has met the program compliance indicators established in this Subpart
F.
(b) If the data for the most recent complete project year provided
under paragraph (a) of this section shows that a grantee has failed to
achieve the minimum composite score required in Sec. 379.52(f) to meet
the program compliance indicators, the grantee may, at its option,
submit data from the first 6 months of the current project year no
later than 60 days after the end of that 6-month period, unless the
Secretary authorizes a later submission date, to demonstrate that its
project performance has improved sufficiently to meet the minimum
composite score.
(Approved by the Office of Management and Budget under control
number 1820-0612.)
(Authority: Sec. 621(f)(2) of the Act; 29 U.S.C. 795g(f)(2))
Note: A grantee receives its second year of funding (or the
first continuation award) under this program before data from the
first complete project year is available. Data from the first
project year, however, must be submitted and is used (unless the
grantee exercises the option in paragraph (b) of this section) to
determine eligibility for the third year of funding (or the second
continuation award).
* * * * *
Sec. 379.53 [Amended]
2. Section 379.53 is amended by adding ``(Approved by the Office of
Management and Budget under control number 1820-0612.)'' before the
authority citation at the end of the section.
[FR Doc. 97-2834 Filed 2-5-97; 8:45 am]
BILLING CODE 4000-01-P