Requests for waivers of JTPA regulatory provisions

Training and Employment Guidance Letter No. 7-94

Issue date: March 20, 1995
Classification: JTPA
Correspondence symbol: TWRA
Expiration date: Continuing

TO: JTPA State Liaisons; All Wagner-Peyser Administering Agencies; All State Worker Adjustment Liaisons

FROM: Barbara Ann Farmer, Administrator for Regional Management

SUBJECT: Waivers of Job Training Partnership Act (JTPA) Regulatory Provisions

Purpose. To transmit guidance to all States on the new waiver provisions contained in the JTPA final rule, and to assist Governors in submitting waiver requests to the Department, in accordance with the provisions at 20 CFR 627.201.

Reference. Final JTPA Regulations, 20 CFR 627.201, published in the Federal Register on September 2, 1994.

Background. One of the major changes in the above-referenced September 2, 1994, JTPA final regulations is the addition of a new section, 20 CFR 627.201, "Waivers." This section, unlike the rest of the final regulations, became effective 30 days from the date of publication of the JTPA final rule in the Federal Register-- October 3, 1994. This was intended to complement the Department's desire to enable States, service delivery areas (SDA's), and Title III substate grantees (SSG's) to implement beneficial changes in the final rule as quickly as they choose, as provided for in the final rule, and to apply for waivers of regulatory provisions to be effective before the beginning of Program Year (PY) 1995 and thereafter. The purpose of the new waiver provision was to be responsive to suggestions and comments which have stated that some of the administrative burden or unintended effect of many regulatory requirements may be reduced through the granting of waivers. In addition to receiving this type of suggestion through the formal regulations comment process, the Department also heard this belief echoed during its recent "JTPA Dialogue" and dislocated worker "Next Steps" meetings. In addition, this was also recommended in Vice President Gore's Report of the National Performance Review--From Red Tape to Results: Creating a Government that Works Better & Costs Less--which was published in September 1993. The Department believes that in order to be responsive to the needs of the JTPA system, some guidance is appropriate in order to maintain consistency in the way that waivers are handled at the Federal level. Accordingly, the Department is issuing the attached guidance to assist Governors in submitting requests for JTPA regulatory waivers pursuant to 20 CFR 627.201. The Department expects that, as experience is gained regarding specific waiver requests, information will be created which we anticipate will be useful in future policy deliberations, including possible regulatory revisions. Also, as the waiver process evolves, it may be adjusted to respond to concerns and issues that may surface in handling such requests. The States may be contacted periodically for their views on the effectiveness of the waiver process and on the ways the process might be improved and made more responsive.

Action. States are requested to share the attached information with appropriate individuals within the State, as well as with their SDA's and SSG's. States are also encouraged to develop as soon as possible standardized internal procedures/mechanisms for SDA/SSG submission of waiver requests to the State, as well as procedures/processes for State evaluation of local level waiver requests. The procedures established should conform to the provisions of 20 CFR 627.201 and the information contained herein.

Attachment: General Guidelines for the Submission of Waivers in Accordance with 20 CFR 627.201

In accordance with the provisions of 20 CFR 627.201, any Governor may request a waiver of regulatory provisions for up to 4 years if the waiver request is consistent with the JTPA statute and meets one or more of the following regulatory criteria:

• improves targeting of services to the hard-to-serve;

• increases the level of basic and occupational skills training provided by the JTPA program in the State;

• contributes to the provision of academic enrichment services to youth;

• promotes coordination of JTPA programs with other human resource programs; or

• substantially improves job placement outcomes of the JTPA program.

The Secretary has no authority to waive statutory requirements. As stated in the Preamble to the JTPA final regulations, "The Secretary may, however, waive provisions of the regulations which expand upon, interpret or explicate statutory requirements."

Discussion. The Department will be amenable to granting waiver requests provided sufficient documentation is included which justifies the request and which presents a clear and rational basis for the request, with anticipated results/benefits. A simple restatement of the criteria at 20 CFR 627.201 would not by itself constitute justification for the granting of a waiver request. The types of requests which will be considered pertain to administratively imposed regulatory requirements which, as stated in the Preamble, expand upon, interpret or explicate the JTPA statute. There may be instances where a State might seek a "broad" waiver, affecting several or all of the service delivery areas (SDA's)/substate grantees (SSG's) within the State. As with a discrete waiver request, such a request would require justification to support the request, consistent with the regulatory provisions of 20 CFR 627.201. Since the Department believes that States and local areas are in a better position to determine what kinds of regulatory provisions might be waived in the best interests of the JTPA program, explicit guidance on examples of waivers will not be provided at this time.

Who May Request A Waiver. Section 627.201 provides that the Governor may request, and the Secretary may grant, a waiver of a specific provision of the final rule, but only to the extent that such requests are consistent with the provisions of the Act. This means that only waiver requests which are submitted by the Governor, or the Governor's designee (the person with signature authority for the Governor in JTPA matters), will be accepted by the Department for consideration. Waiver requests submitted by the Governor may include requests regarding State-administered programs, as well as waiver requests submitted to the State by SDA's/SSG's for local programs/projects that they wish to have the Governor submit to the Secretary for consideration. Since approved waivers are only granted to the Governor, the Governor must evaluate the local SDA/SSG request and determine whether or not to accept and to forward the request to the Department. The opportunity to request a waiver is discretionary and, as such, there is no direct appeal to the Department for SDA/SSG waiver requests that are not accepted by the State. Issues arising regarding such requests are subject to local decisionmaking and are not matters under the direct purview of the Department. The State, in developing its waiver procedures, should address how such issues will be resolved locally, including appropriate State procedures for dispute resolution. The State is the highest level for resolution of 20 CFR 627.201 waiver disputes. Similarly, the decision to grant a waiver is also discretionary and, as such, there is no direct appeal to the Department for waiver requests submitted by the Governor which are disapproved by the Secretary. However, in the event that a waiver request submitted by the Governor is disapproved, the Governor may address the deficiencies resulting in the request being disapproved and resubmit it for further consideration. Such requests for reconsideration will be treated and responded to as another waiver request from the Governor. The State may wish to adopt a similar process for handling such situations involving SDA/SSG waiver requests submitted to the Governor.

What Waivers May Be Granted: Nature and Scope. The Secretary may approve waiver requests when the Governor demonstrates that a waiver request, either by the State or an SDA/SSG, is consistent with one or more of the criteria set forth at 20 CFR 627.201. The Department will not grant waiver requests that would be applied retroactively. The effective date of a granted waiver shall be the date that it is approved by the Department. A waiver submission may, however, include a request for a later effective date for a program or project, which may be granted by the Secretary.

Items Not Covered by the Waiver Process. The following are areas which will not be handled under the process established for 20 CFR 627.201 waiver requests:

• JTPA statutory requirements cannot be waived. Other Federal statutory provisions impacting on JTPA (e.g., Fair Labor Standards Act [FLSA] provisions) also cannot be waived under this process;

• Waivers of State liability, pursuant to the provisions of 20 CFR 627.704 (in accordance with Section 164 of the Act) are not covered under this process. Such requests remain solely under the purview of the ETA Grant Officer;

• "Contractual" requirements under ETA Grant Officer authority are not covered. (In the case of Title III National Reserve Account and One Stop projects, 20 CFR 627.201 cannot be used to waive the Grant Officer's authority in the administration of a specific Title III or One Stop grant.);

• Regulatory provisions where the Governor already possesses the authority to adjust or waive certain requirements are not subject to 20 CFR 627.201. (For instance, 20 CFR 627.470(c)(1) and (g)(1) require the Governor to prescribe variations in the local-level performance standards for Titles II and III, in accordance with Section 106(d) of the Act. Likewise, the Governor is granted authority under Section 315(a) of the Act (20 CFR 631.14(a)) to grant SSG's waivers of the 50 percent retraining expenditure requirement. Also, the Governor's authority to issue guidelines, interpretations, and definitions pursuant to the provisions at 20 CFR 627.200 is not subject to the 20 CFR 627.201 process.);

• Administrative processes which are outside of the specific purview of the JTPA regulations are not covered by this waiver process. (For example, the 20 CFR 627.201 waiver process would not be used to change requirements pertaining to the Standardized Program Information Report [SPIR], which are principally set forth at section 165 of the Act and are published for comment in the Federal Register.); and

• The waiver provisions set forth at 20 CFR 627.201 are not subject to the waiver provisions of that section.

Waiver Request Procedures. In requesting a waiver, the State must provide sufficient information relevant to the waiver request so that an informed decision can be made. At a minimum, such information would include:

• identifying information on the request (i.e., the Governor's entity requesting the waiver, address, contact, telephone number, and similar identifying information for SDA and SSG waiver requests submitted by the Governor);

• specific regulatory requirement for which a waiver is sought, including complete regulatory cite;

• duration of the requested waiver;

• a proposed alternative to be used in place of the waived regulatory requirement, as appropriate (e.g., requests for waivers of a regulatory time requirement or percentage should include an alternative to the requirement or percentage);

• anticipated benefits to the program and/or participants, including anticipated outcomes (i.e., how the request meets one or more of the regulatory criteria set forth at 20 CFR 627.201(a)(2));

• the process that will be used by the Governor to monitor/evaluate the progress/performance of the State or local SDA/SSG under a granted waiver; and

• evidence of support for the waiver request by the Governor indicating that the request is consistent with the provisions of the Act and the provisions at 20 CFR 627.201, including any comments that may have been submitted on the waiver request.

Waivers may be approved for any period of time not to exceed 4 years. However, the time period requested should correspond to the need for the waiver (e.g., if a waiver is being sought in connection with a 2-year project, then the request should be made for a period of 2 years). At such time as it may be appropriate to consider a renewal request by the Governor of any approved waiver, the Secretary's decisions will be based on an evaluation of the effectiveness and the outcomes under the approved waiver request. It is the Department's desire to keep this process as simple as possible. To that end, waiver requests should be concise and should not involve a lot of paperwork. The Department is concerned with the quality of the waiver request, not with the quantity of paper that can be submitted to support a waiver request. Although the Department declines at this time to include specifications for waiver requests (e.g., prescribed format, length, etc.), we expect that the requests will contain sufficient information for the Department to make an informed decision regarding the merits of each specific waiver request, as indicated above.

Approved waivers will be transmitted to the Governor by the ETA Grant Officer. Such approved waivers become part of the State's JTPA grant and shall be included in the State's grant document. States that wish to submit waiver requests for review in accordance with 20 CFR 627.201, should send their requests to:

Ms. Barbara Carroll
Grant Officer
U.S. Department of Labor
Employment and Training Administration
200 Constitution Avenue, NW., Room S-4203
Washington, D.C. 20210
Attention: JTPA Waiver Requests

A copy of the request must be simultaneously submitted to the appropriate USDOL Regional Office, which will review and make recommendations on the request.

In general, the Department will respond to most waiver requests within 30 - 45 days from the date of receipt. Although each waiver request must be evaluated on its own merits, for requests that are similar to or the same as requests that have already been approved, the response time may be shortened.