[Federal Register: August 11, 2000 (Volume 65, Number 156)]
[Rules and Regulations]
[Page 49293-49342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au00-7]
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Part II
Department of Labor
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Employment and Training Administration
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20 CFR Part 652 et al.
Workforce Investment Act; Final Rules
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 652 and Parts 660 through 671
RIN 1205-AB20
Workforce Investment Act
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Final rule.
* * * * *
II. Summary and Explanation
(The following provides a summary and explanation on the comments received on the Interim
Final Rule and the Department's determination as the comments pertain to the Final Rule on the
waiver provisions.)
* * * * *
Subpart D--General Waivers and Work-Flex Waivers
Subpart D indicates the elements of WIA and the Wagner-Peyser Act
that may and may not be waived under either the general waiver
authority of WIA section 189(i) or the work-flex provision at WIA
section 192. In response to comments, we have made a technical
correction in Sec. 661.420, changing paragraph (g) to (f).
We received several comments about the exceptions to the
Secretary's waiver authority, described at Sec. 661.410, and work-flex waiver authority, described at Sec. 661.430. Commenters requested that
the regulation be amended to specify that the Secretary will not
approve waivers of title I of the Rehabilitation Act, nor of the State
merit staffing requirements of the Wagner-Peyser Act, and deleting the
Older Americans Act from work-flex waiver authority.
Response: Regarding the Rehabilitation Act, the regulations make
clear that the Secretary's authority to approve waiver requests is
limited to requests for waiver of certain provisions of WIA and the
Wagner-Peyser Act. We cannot waive provisions of other statutes. While
we are not making the suggested change, we wish to make clear that the
Department does not intend, nor do we have authority to entertain or
grant waivers of title I of the Rehabilitation Act. Similarly, an
exception for the Wagner-Peyser Act State merit staffing requirement is
not necessary. Our authority to waive Wagner-Peyser Act provisions is
limited to requirements under sections 8 through 10 of that Act. The
requirement that Wagner-Peyser Act services be provided by State merit
staff employees derives from sections 3 and 5(b)(1) of the Wagner-
Peyser Act. Accordingly, we do not intend to, nor do we have authority
to entertain or grant waivers of the Wagner-Peyser Act merit staffing requirement. Finally, we have retained the authority for Governors to
approve waivers of certain provisions of the Older Americans Act,
because WIA section 192(a)(3) specifically provides that authority.
Other commenters suggested that we define the existing exception
prohibiting waivers of provisions relating to worker rights, participation and protections to prohibit waivers of provisions
relating to labor nominations and appointments to State and Local
Boards, opportunities for comment on State and local plans, and the
certification process for eligible training providers. The commenters
also requested that States be required to establish a public comment
process, that includes comment from organized labor, on proposed
waivers and a work-flex plan; and asked that we conduct periodic
evaluation of the impact of waivers and work-flex activities.
Response: We have not added the suggested definition of the worker rights, participation and protection exceptions. First, we do not agree
that the suggested provisions fall within the scope of the worker
rights, participation and protection exceptions. Secondly, we do not
think it is appropriate to define the scope of these provisions by
regulation and believe it will be more effective to deal with waiver
requests as they occur. On the other hand, we believe that requests for
waivers of the provisions suggested by the commenters will likely fall
within other exceptions to waiver authority. Section 661.410(a)(9)
excludes waivers of requirements relating to procedures for review and
approval of plans, which would exclude a waiver of the public comment
requirements for State and local plans. Provisions related to the
establishment and function of Local Boards may not be waived. This will
prohibit waivers of the nomination and appointment requirements for
Local Boards. The eligible training provider requirements seem to fall
within the key principles of empowering individuals and increasing
accountability identified at Sec. 661.400(b)(2) and (4). Provisions
relating to the key principles may not be waived under Work-flex
authority, and will only be waived by the Secretary in extremely
unusual circumstances when the provision can be demonstrated to be
impeding reform.
We agree with the commenters' suggestion regarding the public
comment process for waiver plans and work-flex plans. Section
661.430(e) already requires that the State work-flex plan undergo a
public comment process, similar to that of the State five-year plan.
While WIA section 189(i) does not specifically require that a stand-
alone waiver plan go through a similar process (a waiver plan included within the State five-year plan would undergo public review along with
the rest of that plan), the requirement for Local Board comment on the
waiver plan at WIA section 189(i)(4)(B)(v) and the sunshine provisions
for State and Local Board activities at WIA sections 111(g) and 117(e)
indicate clear Congressional intent that major decisions involving the
workforce investment system be made in a public and open manner. In our view, the decision to request a waiver of statutory or regulatory
requirements is such a major decision. Accordingly, we have revised
Sec. 661.420(a)(5), to require a description of the process used to
ensure meaningful public comment, including comment by business and
organized labor, on the State waiver plan. Finally, we agree on the
need for evaluation of the waiver process. Although, we have not yet
made specific plans for such a review, we intend to do so in the future.
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Created: February 28, 2006
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