Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Investment Act of 1998

DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 37

RIN 1291-AA29

Implementation of the Nondiscrimination and Equal Opportunity

Provisions of the Workforce Investment Act of 1998

AGENCY: Office of the Secretary, Labor.

ACTION: Interim final rule; Request for comments.

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SUMMARY: This Interim Final Rule implements Section 188 of the

Workforce Investment Act of 1998 (WIA), which contains the statute's

equal opportunity and nondiscrimination provisions. The Workforce

Investment Act supersedes the Job Training Partnership Act (JTPA) as

the Department of Labor's primary mechanism for providing financial

assistance for a comprehensive system of job training and placement

services for adults and eligible youth. With limited substantive

changes described in Section III of this preamble, this rule generally

carries over the policies and procedures found in 29 CFR part 34, which

implements the nondiscrimination and equal opportunity provisions of

JTPA. Section 188(e) of WIA mandates that the Department issue

regulations implementing the section within one year of the passage of

WIA.

DATES: Effective Date: This Interim Final Rule will become effective on

November 12, 1999.

Comment Period: Comments must be received on or before December 13,

1999.

ADDRESSES: Comments should be sent to Annabelle T. Lockhart, Director

of the Civil Rights Center (CRC), by regular mail at the US Department

of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC

20210, or by e-mail at [email protected] Brief comments (maximum of five

pages) may be submitted by facsimile machine (FAX) to (202) 219-5658.

Receipt of submissions, whether by U.S. mail, e-mail, or FAX

transmittal, will not be acknowledged; however, the sender may request

confirmation that a submission has been received, by telephoning the

Civil Rights Center at (202) 219-8927 (VOICE) or (202) 219-6118 or

(800) 326-2577 (TTY/TDD).

Comments will be available for public inspection during normal

business hours at the above address. Persons who need assistance to

review the comments will be provided with appropriate aids such as

readers or print magnifiers. Copies of this Interim Final Rule will be

made available in the following formats: large print, electronic file

on computer disk, and audio tape. To schedule an appointment to review

the comments and/or to obtain the Interim Final Rule in an alternate

format, contact CRC at the telephone numbers and addresses listed

above.

FOR FURTHER INFORMATION CONTACT: Bud West, Senior Policy Advisor, Civil

Rights Center, US Department of Labor, 200 Constitution Avenue NW, Room

N-4123, Washington, DC 20210, [email protected], telephone (202) 219-8927

(VOICE), or (202) 219-6118 or (800) 326-2577 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The preamble to these regulations is

organized as follows:

I. Background--provides a brief description of the development of

these proposed regulations.

II. Authority--cites the statutory provisions supporting these

regulations, Departmental redelegation authority, and Interagency

coordination authority.

III. Overview of the Regulations--summarizes pertinent aspects of

the regulatory text and describes its purposes and application.

IV. Regulatory Procedure--sets forth the applicable regulatory

requirements and requests comments on specific issues.

I. Background

On August 7, 1998, President Clinton signed the Workforce

Investment Act of 1998 (WIA), comprehensive reform legislation that

supersedes JTPA. Both WIA and JTPA contain nondiscrimination and equal

opportunity provisions. The JTPA nondiscrimination provisions are

contained in Section 167 of that statute, and in its implementing

regulations codified in 29 CFR part 34. These regulatory provisions

generally are carried over in the nondiscrimination and equal

employment opportunity provisions of WIA's implementing regulations.

The latter regulations are contained in this Interim Final Rule, to be

codified in 29 CFR part 37.

This Interim Final Rule prohibits WIA Title I-financially assisted

grant applicants and recipients, as defined in Section 37.4, from

discriminating on the basis of race, color, religion, sex, national

origin, age, disability, or political affiliation or belief. It also

protects any beneficiary (person intended by Congress to receive WIA

Title I-financially assisted aid, benefits, services, or training) from

discrimination based on either that beneficiary's citizenship, or his

or her participation in any WIA Title I-financially assisted program or

activity. The rule provides procedures for determining and enforcing

compliance.

Although the Department wishes to emphasize that it considers the

reforms embodied in WIA to be significant, and not ``business as

usual,'' the nondiscrimination and equal employment opportunity

principles embodied in this Act are substantially similar to those

contained in JTPA. Accordingly, there are only limited substantive

differences between 29 CFR part 34, implementing the nondiscrimination

and equal opportunity provisions of JTPA, and 29 CFR part 37,

implementing the similar provisions of WIA. Those substantive changes

that have been made are based on the experience of the Civil Rights

Center (CRC), the Departmental agency responsible for administering the

nondiscrimination provisions of JTPA and WIA, and on feedback provided

to CRC by grant applicants and recipients regarding their work with the

nondiscrimination and equal opportunity provisions of JTPA and part 34.

These substantive changes are described in detail in Section III of

this preamble.

Most of the changes the Department has made to the provisions

contained in part 34 have been structural, stylistic, and phrasing

changes. The changes have been made to enhance the readability of the

rule for, and its utility to, recipients who receive financial

assistance under WIA Title I; grant applicants who wish to receive such

assistance; individuals who wish to file discrimination complaints

under WIA Section 188; and other interested parties. The Department

seeks specific comments on the enhancements to the rule, and

suggestions for improving the rule.

The alterations to the rule fall into two categories: (1) Changes

making the rule's obligations consistent with other regulatory

obligations WIA Title I recipients might be under; and (2) Changes

reducing the ``legalese'' of the JTPA regulations. Generally, neither

type of modification is meant to change the substantive content of the

underlying rule.

As an example of the first category, the section of the rule

regarding recipients' obligations to individuals with disabilities has

been amended to follow generally the regulations implementing Title II

of the Americans with Disabilities Act of 1990, as amended (ADA). These

regulations are found at 28 CFR part 35. This change is not intended to

provide a substantive change from the regulations implementing JTPA. It

is intended only to clarify the regulations.

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The second category of changes was prompted by the June 1, 1998,

Presidential Memorandum on Plain Language, which instructed Federal

Departments and Agencies to write new regulations in language

understandable to most people. The Department has met the intent of the

President's memorandum by incorporating stylistic changes into the

language and format of these regulations to facilitate their

readability without changing their substantive content. An example of

such a change is the rewording of subsection topic header statements

into the form of questions.

Other examples:

Some sections have been subdivided, to make the content of

individual sections more homogeneous.

Some sections have been more logically reordered.

Terminology has been adjusted to use plain language terms.

As a result, the term ``shall'' has been replaced in this rule by the

terms ``must,'' ``will,'' ``is/are,'' or similar terms, as appropriate.

The term ``must'' connotes an obligation, while the term ``will''

indicates a future action. Similarly, the term ``prior to'' has been

replaced by the term ``before''; ``pursuant to'' has been replaced, as

appropriate, by ``under,'' ``by,'' or ``authorized by''; and ``is

deemed'' or ``will be deemed'' has been replaced, as appropriate, by

``is/are considered'' or ``become(s).''

Again, these changes are not intended to alter the meaning of the

regulations. Rather, the changes are intended to create a more readable

document.

CRC maintains a close relationship and regular contact with the

regulated community. The agency holds an annual national conference on

equal opportunity, attended by several hundred officials and staff of

the State and local agencies that are responsible for ensuring

nondiscrimination in the programs receiving financial assistance under

JTPA and/or WIA Title I. At this conference, and through other in-

person and telephone contacts with CRC, these officials and staff have

discussed directly with CRC staff members the effect that the JTPA

nondiscrimination regulations have had upon their agencies' operations.

Many of the changes, both substantive and stylistic, that were

incorporated in this Interim Final Rule resulted from this input. For

example, because some of these officials told CRC that the 60-day

period provided in the JTPA regulations for recipients to process

discrimination complaints was insufficient, the rule extends the

relevant time period to 90 days.

The Department is particularly interested in receiving comments

regarding any aspects of the Rule that affect the relationship between

the Federal government and the States.

II. Authority

A. Statutory Authority

The statutory authorities for this Interim Final Rule are: Sections

134(b), 136(d)(2)(F), 136(e), 172(a), 183(c), 185(c)(2), 185(d)(1)(E),

186, 187 and 188 of the Workforce Investment Act of 1998, Pub. L. 105-

220, 12 Stat. 936 (29 U.S.C. 2801 et seq.); Title VI of the Civil

Rights Act of 1964, as amended, Pub. L. 88-352, 78 Stat. 252 (42 U.S.C.

2000d, et seq.); Section 504 of the Rehabilitation Act of 1973, as

amended, Pub. L. 93-112, 87 Stat. 390 (29 U.S.C. 794); the Age

Discrimination Act of 1975, as amended, Pub. L. 94-135, 89 Stat. 728

(42 U.S.C. 6101); and Title IX of the Education Amendments of 1972, as

amended, Pub. L. 92-318, 86 Stat. 373 (20 U.S.C. 1681).

B. Departmental Authorization

Secretary's Order 2-81, Section 5a(2), authorized the Assistant

Secretary for Administration and Management, working through the

Director, Office of Civil Rights, to establish and formulate all

policies, standards, and procedures for, as well as to issue rules and

regulations governing, the enforcement of statutes applying

nondiscrimination and equal opportunity requirements to programs and

activities receiving financial assistance from DOL. On October 12,

1986, the Office of Civil Rights was redesignated the Directorate of

Civil Rights by the Assistant Secretary. Effective December 12, 1995,

the Assistant Secretary redesignated the Directorate of Civil Rights as

the Civil Rights Center (CRC). CRC is authorized to monitor and enforce

all nondiscrimination and equal opportunity regulations regarding

programs receiving financial assistance from DOL, including Section 188

of WIA.

C. Interagency Coordination

The Department of Justice (DOJ), under Section 1-201 of Executive

Order 12250 (45 FR 72995, November 4, 1980), is responsible for

coordinating Federal enforcement of most nondiscrimination laws that

apply to federally-assisted programs and activities. Executive Order

12067 (43 FR 28967, July 5, 1978) requires consultation with the Equal

Employment Opportunity Commission (EEOC) about regulations that involve

equal employment opportunity. The Age Discrimination Act of 1975, as

amended, assigns the Secretary of Health and Human Services the

responsibility for coordinating the Federal enforcement effort of that

Act. This Interim Final Rule has been coordinated with the Department

of Justice and the Equal Employment Opportunity Commission, as well as

the Department of Health and Human Services.

In addition, the Rule has been coordinated with other appropriate

Federal grantmaking agencies, including the Departments of Education

and Housing and Urban Development.

III. Overview of the Rule

Subpart A--(a) outlines the purpose and application of part 37; (b)

provides definitions; (c) outlines prohibited grounds for and forms of

discrimination; and (d) establishes enforcement authority and

obligations.

Subpart B--sets forth the affirmative obligations of recipients of, and

grant applicants for, financial assistance under WIA Title I.

Subpart C--describes a Governor's responsibilities to implement the

nondiscrimination and equal opportunity provisions of WIA and this

part.

Subpart D--describes procedures for compliance reviews and complaint

processing.

Subpart E--describes the procedures for effecting compliance, including

(a) actions the Department will take upon making a finding of

noncompliance for which voluntary compliance cannot be achieved; (b)

the rights of parties upon such a finding; and (c) hearing procedures,

sanctions, and post-termination procedures.

Subpart A--General Provisions

The individual sections in this subpart are largely identical to

their corresponding sections within the same subpart in part 34.

Consistent with plain-language guidelines, one section has been

subdivided into separate sections treating different topics. These

changes are not intended to alter the overall meaning of this subpart,

or the meaning of any of its component sections.

Section 37.1 What is the purpose of this part?

This section is identical to 29 CFR 34.1(a), except that references

to JTPA, and to its Section 167, have been changed to refer to WIA and

its Section 188.

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Section 37.2 To whom does this part apply, and what is the scope of

this part?

This section contains requirements similar to those in 29 CFR

34.1(b) and (d). The references to other regulatory sections within

part 34 have been changed to reflect the numbering of this Interim

Final Rule, and references to JTPA have been changed to refer to WIA.

Also, some of the material has been presented in outline form to

improve its readability. None of these changes is intended to alter the

meaning of the section.

Language has been added to paragraph 37.2(a) to clarify that the

requirements in this part apply to programs and activities that are

part of the One-Stop delivery system and that are operated by One-Stop

partners listed in WIA Section 121(b), including those partners

financially assisted by grantmaking agencies other than the Department

of Labor, to the extent that the programs and activities are being

conducted as part of the One-Stop delivery system. The requirements in

29 CFR part 34 continue to apply to programs and activities that are

implemented under and authorized by JTPA.

In those cases in which States that have opted to implement WIA

before July 1, 2000, are operating WIA Title I programs and activities

simultaneously with programs and activities under JTPA, the WIA Title I

programs and activities must comply with the requirements in this part,

while the JTPA programs and activities must comply with the

requirements in 29 CFR part 34.

Section 37.3 How does this part affect a recipient's other

obligations?

This section generally contains the same requirements as 29 CFR

34.1(c). The language of 29 CFR 34.1(c)(6), which dealt with

retroactivity, is inapplicable to this Interim Final Rule, and has been

omitted; in addition, references to JTPA have been changed to refer to

WIA. Other differences between this section and the corresponding

paragraphs of the JTPA regulations are listed below.

Paragraph 37.3(b): This paragraph has been amended to incorporate

by reference the provisions of Subparts B and C and Appendix A of 29

CFR part 32, which implement the requirements of Section 504 pertaining

to employment practices, employment-related training, program

accessibility, and accommodations. As a result, the language from 29

CFR 34.1(c)(2) that stated that part 34 did not affect recipients'

obligations to comply with those provisions has been omitted.

It is important to understand the distinction between the concept

of ``program accessibility,'' referred to in this paragraph, and the

separate concept of architectural accessibility, both of which a

recipient is required to provide under Subpart C.

The requirement of program accessibility means that when viewed in

its entirety, the program or activity provided by the recipient must be

readily accessible to qualified individuals with disabilities. 29 CFR

32.27. The recipient must ensure that participants with various

physical and mental disabilities will have access to the program or

activity. This obligation to make the program or activity accessible in

advance exists independent of a request for a particular accommodation

by a specific individual. Therefore, even if an individual with a

disability requests an accommodation that would impose an undue

hardship on the recipient, the recipient still has an overall

obligation to make the program or activity accessible.

Architectural accessibility, by contrast, relates to the

construction and design of facilities. 29 CFR 32.28. Architectural

accessibility standards are similar to building codes. A recipient must

comply with the architectural accessibility standards whether or not a

particular individual with a disability has requested a reasonable

accommodation. 29 CFR 32.13(d). A recipient's obligation to comply with

the architectural accessibility standards is also independent of its

program accessibility obligations.

Paragraph 37.3(d): This paragraph has been added to parallel

Paragraph 37.3(c), and to emphasize that recipients that are also

employers, employment agencies, or other entities covered by Title I of

the ADA have additional obligations imposed by that title.

Paragraph 37.3(e)(9): This paragraph, which refers to the anti-

discrimination provision of the Immigration and Nationality Act, has

been added at the request of the Department of Justice. This provision

prohibits: (a) Discrimination on the basis of citizenship status and

national origin with respect to hiring, firing, or recruitment or

referral for employment for a fee; and (b) unfair documentary practices

with respect to verification of employment eligibility.

Section 37.4 What definitions apply to this part?

To the extent possible, the definitions contained in this section

are consistent with similar terms used in regulations implementing

other civil rights legislation that applies to recipients of Federal

financial assistance. Similarly, where feasible, this Interim Final

Rule uses the terms contained in the proposed WIA program regulations

issued by the Department's Employment and Training Administration

(ETA). However, because this regulation must be compatible with civil

rights enforcement on a broad scale as well as with ETA's WIA program,

this rule defines and uses certain terms, such as ``qualified

interpreter,'' ``recipient,'' ``registrant,'' and ``applicant,'' as

terms of art, not necessarily identical to the definitions that are

used elsewhere for the same terms.

The following list explains the definitions that differ in

substantive ways, either from their counterparts in 29 CFR 34.2, from

ETA's program regulations, or from regulations that implement the

nondiscrimination provisions of other legislation providing Federal

financial assistance. It also lists definitions that have been borrowed

from other civil rights regulations, and explains certain definitions

that might appear to differ substantively from their counterparts in 29

CFR 34.2, but that have not been substantively changed. Definitions

that obviously would not be substantively different from those in

Section 34.2, but that simply would substitute references to WIA for

references to JTPA, are not listed.

This list also contains definitions of terms that are not defined

in the regulations implementing other civil rights legislation that

applies to recipients of Federal financial assistance, or in WIA's

program regulations. Generally, these terms either are used solely

within this part, or have greater significance within this part than

they do within other regulatory systems. With regard to these terms,

the list explains the reason each term has been defined, and/or the

source of the definition.

Aid, benefits, services, or training: In 29 CFR 34.5, this phrase

is used to convey to the reader the comprehensive nature of the areas

in which a JTPA-assisted program or activity could not discriminate on

the basis of disability. For consistency, the phrase has been adopted

throughout part 37; generally, it replaces the phrase ``financial aid,

service, or benefit,'' which was used intermittently in part 34, and

which has a similar meaning. No substantive change is intended by the

use of the phrase.

Section (1) of this definition uses the phrase ``core and intensive

services.'' These terms are used in WIA to describe

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two of the three general types of employment and training services that

are provided to participants under the WIA program (the third type is

training services). The terms are defined at length in the WIA statute:

a list of ``core services'' is provided in Section 134(d)(2), and a

similar list of ``intensive services'' is provided in Section

134(d)(3)(C). Briefly, ``core services'' are those services available

at a baseline level to all participants, while ``intensive services''

are those services available to individuals who are assessed as needing

additional assistance in order to find or retain employment. Compare

Section 134(d)(2) with Section 134(d)(3)(A).

Section (4) of this definition refers to ``work opportunities.''

This term is intended to encompass On-the-Job Training, subsidized

work, internships, or work experience that a participant obtains

through a WIA Title I-financially assisted program or activity. See the

discussion of the definition of ``On-the-Job Training'' later in this

section.

Applicant: The passage of WIA has altered the method by which

individuals seeking federally-assisted aid, benefits, services, or

training enter the system. The definition of the term ``applicant'' has

been changed accordingly, to signify that, for purposes of this part,

an individual is considered an ``applicant'' at the point at which s/he

submits personal information in response to a request by the recipient

for such information. Because ETA's program regulations that implement

other provisions of WIA refer to the ``registration'' process, rather

than the application process, this part uses the term ``registrant''

interchangeably with ``applicant.'' CRC is particularly interested in

receiving comments on this definition and its effect, if any, on the

data collection obligations of recipients.

Departmental grantmaking agency: This definition was added in order

to help readers distinguish between the meaning of this term and of the

terms ``grantmaking agency'' and ``Federal grantmaking agency'' as used

in this part. See the discussion of the definitions of the latter terms

elsewhere in this section of the preamble.

Discrimination on the ground of citizenship: This definition is

identical to the definition of the same term in Section 34.2, except

that the term ``asylee'' has been inserted into the list of immigration

statuses that are protected against discrimination. In addition, the

phrase ``other individuals authorized by the Attorney General to work

in the United States'' has been amended to ``other immigrants

authorized * * *.'' These changes have been made for consistency with

the language of Section 188(a)(5) of WIA.

These regulations are concerned with nondiscrimination and equal

opportunity only. They do not limit eligibility or impose preferences

for services on the basis of citizenship.

Employment practices: This definition has been moved to the

definition section from 29 CFR 34.7(a). Consistent with plain-language

guidelines, the definition also has been slightly rewritten, and has

been presented in outline form to improve its readability. None of

these changes is intended to alter the meaning of the definition.

Employment-related training: This definition has been included in

response to questions from a number of recipients who were familiar

with the term as it was defined under the Comprehensive Employment and

Training Act (CETA), the predecessor statute to JTPA. Under WIA, the

term is defined more broadly than it was under CETA.

Entity: This definition is expanded from the definition in 29 CFR

34.2, to encompass current and potential changes in business

structures, and to emphasize that such entities as Indian tribes or

tribal organizations and Native Hawaiian organizations, all of which

are eligible to receive financial assistance under WIA Title I, are

included within the definition. See WIA Section 166, ``Native American

Programs.''

Facility: This definition is expanded from the definition in 29 CFR

34.2, in order to follow generally the definition of the same term set

forth in 28 CFR 35.104, in the regulations implementing Subtitle A of

Title II of the ADA. That subtitle prohibits discrimination on the

basis of disability by public entities.

The reference to ``indoor constructs'' such as office cubicles and

computer kiosks has been added in order to clarify that recipients may

be required to alter such constructs to make them accessible to and

usable by individuals with disabilities. See paragraph (2)(i) of the

definition of ``reasonable accommodation'' in Section 37.4.

Federal grantmaking agency: This definition was added in order to

help readers distinguish between the meaning of this term and of the

terms ``grantmaking agency'' and ``Departmental grantmaking agency'' as

used in this part. See the discussion of the definitions of the latter

terms elsewhere in this section of the preamble.

Financial assistance and Financial assistance under Title I of WIA:

As with the term ``applicant,'' the passage of WIA has altered the type

of financial assistance that will be provided under the WIA program,

and the way in which that assistance will be provided. The definitions

of ``financial assistance'' and ``financial assistance under WIA Title

I'' have been drafted accordingly. The Department is particularly

interested in receiving comments on these new definitions.

The new definitions have been modeled on the definitions of the

term ``financial assistance'' provided in various Federal regulations

that also deal with nondiscrimination in programs and activities

receiving Federal financial assistance. Examples include the Office of

Personnel Management regulations at 5 CFR 900.403(c); the Department of

Justice regulations at 28 CFR 42.613(e); and the Department of Health

and Human Services regulations at 45 CFR 86.2(g) and 1203.3(c).

Paragraph (5) of the definition of ``financial assistance under WIA

Title I'' includes ``[a]ny other agreement, arrangement, contract, or

subcontract * * * or other instrument that has as one of its purposes

the provision of assistance or benefits under WIA Title I.'' Under this

paragraph, ``financial assistance under WIA Title I'' includes such

``agreements or arrangements'' as the Memoranda of Understanding (MOUs)

required by Section 121(c) of WIA, and inclusion on a list of eligible

training providers. See the discussion of the definition of

``recipient'' later in this section.

Fundamental alteration: This definition is derived from the Supreme

Court's interpretation of the term in the ADA Title II case of Olmstead

v. Zimring, 119 S.Ct. 2176, 67 USLW 3683, 67 USLW 4567, 1999 WL 407380

(U.S., June 22, 1999), at 12-13 and n.16.

Grantmaking agency: This term replaces the term ``granting agency''

that was used in 29 CFR part 34. See the discussion of the definitions

of ``Departmental grantmaking agency'' and ``Federal grantmaking

agency'' elsewhere in this section.

Individual with a disability: The definition of this term is

identical to the definition of the same term in Section 34.2, with the

following exceptions:

(1) The reference to homosexuality or bisexuality has been deleted.

This change is not a substantive change, since Section 1(ii) of the

definition of the term ``disability'' retains the explanation that the

term ``impairment'' does not include homosexuality or bisexuality. The

deletion was made merely to eliminate unnecessary redundancy in the

rule.

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(2) The list of the individuals to whom the term ``individual with

a disability'' does not apply has been expanded to clarify that with

regard to employment, there would exist two circumstances under which

the term would not apply to an individual who has a currently

contagious disease or infection. Such an individual would not be an

``individual with a disability'' either if that disease or infection

prevents him or her from performing the duties of the job in question,

or if his or her employment, because of that disease or infection,

would constitute a direct threat to the health and safety of others.

This change has been made for consistency with the definition of

``individual with a disability'' enacted by Congress in Title IV,

Section 403 of WIA, the Rehabilitation Act Amendments of 1998, 29

U.S.C. 701, Pub.L. 105-220, Title IV, Section 401 et seq., Aug. 7,

1998, 112 Stat. 1092.

Labor market area: The definition of this term, which appears in

the definition of ``population eligible to be served,'' is taken

directly from Section 101(18) of WIA.

Local Workforce Investment Area (LWIA) grant recipient: This term

is new under WIA. The term describes the entity that receives WIA Title

I financial assistance from a Governor. It replaces the terms ``SDA

grant recipient'' and ``substate grantee'' that were used under JTPA.

National Programs: This definition has been rewritten to encompass

entities receiving financial assistance under Title I, Subtitle D of

WIA, and to clarify that Job Corps is a National Program under the

definition.

On-the-Job Training: This definition is taken directly from Section

101(31) of WIA. Three words have been added to the definition in order

to clarify that such training is ``provided to a paid participant while

the participant is engaged in productive work.''

Participant and participation: The definitions of these terms

contain the same elements as the definition of the single term

``participant'' in 29 CFR 34.2. The rule defines the term

``participation'' separately in order to help readers better understand

both terms. Also, the new definitions of the terms ``participant'' and

``participation'' clarify that the terms encompass individuals who are

receiving aid, benefits, or training under WIA Title I, as well as the

``services'' included in the definition in 29 CFR 34.2. In addition,

because the term ``aid, benefits, services, or training'' is defined as

including work opportunities obtained through a WIA Title I--

financially assisted program or activity, an individual who obtains

such opportunities is a ``participant'' under this definition. See the

discussion of the definition of ``aid, benefits, services, or

training'' earlier in this section.

The definition of ``participant'' in part 34 excluded individuals

receiving ``post-termination and follow-up services.'' However, Section

134(d)(2)(K) of the WIA statute includes follow-up services among the

list of ``core services'' that participants may receive; as a result,

this language has been deleted from the definition of ``participant''

in Section 37.4. It should be noted that this definition differs from

the definition of the term that is included in ETA's regulations

implementing other provisions of WIA.

The definition in Section 37.4 clarifies that the term

``participant'' includes, but is not limited to, applicants receiving

any services under state Employment Service programs, and claimants

receiving any services under state Unemployment Insurance programs.

Because the definition of the term in the JTPA nondiscrimination

regulations also encompassed such individuals, this clarification is

not a substantive change. Rather, the clarifying language was included

simply to recognize that different recipients may use different

terminology to refer to individuals who receive benefits or services

under their programs.

It is important to recognize that under the One-Stop system

introduced by WIA, various programs and activities that are authorized

by Federal laws other than WIA may be part of a One-Stop center that

also provides WIA Title I--financially assisted programs and

activities. In such cases, any individual who receives aid, benefits,

services, or training from the One-Stop center is a participant for

purposes of the nondiscrimination and equal opportunity provisions of

WIA and this part.

For example, a One-Stop center may include an Employment Services

program authorized and financially assisted under the Wagner-Peyser

Act, 29 U.S.C. 49, as well as core and intensive service programs

authorized under WIA Title I. Under these circumstances, an individual

who receives Wagner-Peyser employment services from the One-Stop center

will fit the definition of ``participant'' in Section 37.4.

Parties to a hearing: This definition has been amended to clarify

that in certain cases, a Governor may be a party to a hearing.

Population eligible to be served: This term is used in the section

of this rule that explains recipients' obligations regarding

individuals with limited English skills. See the discussion of Section

37.35 in this preamble.

Qualified individual with a disability: This definition has been

amended for a number of reasons. First, the definition has been

restructured in order to incorporate the term of art ``aid, benefits,

services, or training,'' which is introduced and defined in this

Interim Final Rule. The term is used in the definition of ``qualified

individual with a disability'' to encompass most, if not all, of the

circumstances (other than employment) in which a recipient might need

to determine the qualifications of an individual with a disability to

receive WIA Title I--financially assisted services, financial or other

aid, or benefits. See the definition of ``aid, benefits, services, or

training'' in Section 37.4, and the discussion in this preamble about

that definition.

Second, the definition as amended is intended to underscore the

distinction between the test for determining whether an individual with

a disability is qualified for such aid, benefits, services, or

training--including employment-related training--and the test for

determining whether such an individual is qualified for employment.

Under paragraph (1) of the definition, such an individual is qualified

for employment if, with or without reasonable accommodation, he or she

is capable of performing ``the essential functions of the job.'' The

definition of the term in 29 CFR 34.2 applied the same test to

employment-related training. However, employment-related training

programs are not ``employment,'' and therefore the focus in determining

whether an individual with a disability is ``qualified'' for such a

program should be upon whether the individual meets the essential

eligibility requirements for the program. Paragraph (2) of the

definition, which relates to aid, benefits, services, or training, has

been amended accordingly.

Third, the amended definition is intended to clarify that an

individual with a disability who is seeking aid, benefits, services, or

training is qualified if he or she meets the essential eligibility

requirements for receiving such aid, benefits, services, or training,

with or without reasonable accommodation or modification. The reference

to ``reasonable accommodation or reasonable modification'' has been

added in order to clarify that the definition is intended to encompass

``situations where an insistence on continuing past requirements and

practices might arbitrarily deprive genuinely qualified (individuals

with disabilities) of an

[[Page 61697]]

opportunity to participate in a covered program.'' Brennan v. Stewart,

834 F.2d 1248, 1261 (5th Cir. 1988) (discussing Section 504).

Qualified interpreter: This definition is based on the definition

of the same term contained in 28 CFR 35.104, the regulations

implementing Title II of the ADA. In this Interim Final Rule, however,

the term is used in a broader context, to implement the prohibition of

discrimination based on national origin as well as the prohibition of

discrimination against qualified individuals with disabilities. In this

Rule, the term encompasses the interpretation of spoken and written

languages, such as Spanish, for individuals with limited English

skills, as well as interpretation of spoken and written languages into

symbolic languages, such as American Sign Language, for individuals

with disabilities.

Reasonable accommodation: This definition is based on the

definition of the same term contained in 29 CFR 1630.2, in the

regulations implementing Title I of the Americans with Disabilities

Act. Although Title I and its implementing regulations apply the

concept of ``reasonable accommodation'' only in the context of

employment, this Interim Final Rule requires recipients to provide

``reasonable accommodation'' in the additional contexts of aid,

benefits, services, and training. See Section 37.8.

Under the requirements of Section 188 of WIA and this part, as well

as under other Federal civil rights laws and their implementing

regulations, a recipient must provide both accessible facilities (that

is, both program accessibility and architectural accessibility) and

reasonable accommodation for individuals with disabilities. It is

important to understand the difference between these two requirements.

Providing accessible facilities requires a recipient to take

advance actions, in order to be ready when persons with disabilities

seek aid, benefits, services, training, or employment from that

recipient at some point in the future. See the discussion of ``program

accessibility'' and ``architectural accessibility'' in the discussion

in this preamble about Paragraph 37.3(b).

By contrast, providing reasonable accommodation for an individual

with a disability requires the recipient to make efforts to meet the

specific needs of the particular individual who is currently seeking

aid, benefits, services, training, or employment from the recipient.

Reasonable accommodation may require making specific structural or

other modifications to meet the needs of a particular individual for

access.

Recipient: This definition has been amended to clarify that where a

Governor operates a program or activity, either directly or through a

State agency, using discretionary funds apportioned to him/her under

WIA Title I (rather than disbursing the funds to another recipient),

the Governor is also a recipient. In addition, JTPA-related terminology

(such as references to SDA and Substate grant recipients) has been

replaced by WIA-related terminology (such as references to LWIA grant

recipients), and the list of examples of recipients has been numbered

and presented vertically, rather than in paragraph form, for greater

ease of reading. Finally, paragraphs (10) and (11) of the definition,

``outreach and admissions agencies'' and ``placement agencies,'' have

been amended to clarify that Job Corps contractors that perform these

functions are also recipients.

For purposes of this part, entities that participate as partners in

a One-Stop delivery system are treated as ``recipients,'' and are

subject to the nondiscrimination and equal opportunity obligations of

this part, to the extent that they participate in the One-Stop system.

Such partners may include, but are not limited to, mandatory and

additional partners listed in WIA section 121(b), such as entities

providing employment and training activities carried out under the

Community Service Block Grant Act (42 U.S.C. 9901 et seq.), or programs

authorized under section 6(d)(4) of the Food Stamp Act of 1977

(7.U.S.C. 2015(d)(4)), if these entities participate as partners in the

One-Stop delivery system.

With regard to issues involving nondiscrimination and equal

opportunity, the One-Stop-related programs and activities operated by

such partners may fall under the jurisdiction of both CRC and the equal

opportunity office of the Federal grantmaking agency. See Section

37.85(c) and the discussion thereof in this preamble. As a result,

local Workforce Investment Boards, when developing and entering into

MOUs with One-Stop partners pursuant to the requirements of WIA Section

121(c), should include attention to equal opportunity issues that may

affect the One-Stop partners or the delivery system. Such issues

include how discrimination complaints will be handled and how the cost

of reasonable accommodations will be shared. For its part, CRC is in

the process of developing MOUs with other Federal grantmaking agencies

that provide financial assistance to programs and activities in the

One-Stop delivery system, to ensure the consistent application of

Federal civil rights law.

The Department is particularly interested in receiving comments

regarding the effect of this part upon One-Stop partners.

Registrant: See the explanation of the term ``applicant'' in this

section.

Sectarian activities: This term appears in Section 37.6(f), which

implements Section 188(e) of WIA. With certain exceptions, that

statutory section bars participants from being employed to carry out

the construction, operation, or maintenance of any part of any facility

that is or will be used for sectarian instruction or religious worship.

Service provider: Language has been inserted into this definition

to clarify that the term encompasses any ``provider of aid, benefits,

services, or training to'' any WIA Title I--financially assisted

program or activity. The definition of the same term in 29 CFR 34.2

referred only to the ``operator'' of a JTPA-funded program or activity.

This change is not a substantive change; it was made only to clarify

the definition.

Additional language has been added to the definition to clarify

that organizations that are selected and/or certified as eligible

providers of training services under WIA are service providers under

this Interim Final Rule, regardless of whether any participants

actually select the organization to provide them with training.

Small recipient: This definition contains the same requirements as

the definition in 29 CFR 34.2. The definition has been rewritten to

explain that such a recipient both (a) serves a total of fewer than 15

beneficiaries during the entire grant year, and (b) employs fewer than

15 employees on any given day during the grant year. Again, this

alteration is not intended as a substantive change; it was made only to

clarify the definition.

State Programs: This definition adds language explaining that the

term includes State Employment Service agencies, and/or State

unemployment compensation agencies, that operate independently of a

SESA. Again, this change has been included solely to clarify the

definition.

Supportive services: This definition is taken directly from WIA

Section 101(46).

Terminee: This definition has been rewritten to explain that the

term refers to a participant whose participation in the program

terminates, voluntarily or involuntarily, during the applicable program

year. Again, this change has

[[Page 61698]]

been included solely to clarify the definition.

Undue hardship: As the definition itself notes, the meaning of this

term differs, depending upon the context in which it is used. The first

part of the definition explains the meaning of the term in the context

of reasonable accommodation for individuals with disabilities. This

part of the definition, like the definition of ``reasonable

accommodation,'' is based on the definition of ``undue hardship''

contained in 29 CFR 1630.2, in the regulations implementing Title I of

the Americans with Disabilities Act. As explained above in the

discussion of the definition of ``reasonable accommodation,'' this

Interim Final Rule requires recipients to provide reasonable

accommodation to qualified individuals with disabilities with regard to

aid, benefits, services, and training, as well as employment, except

where such accommodation would cause undue hardship. See Section 37.7.

The second part of the definition explains the meaning of the term

in the context of religious accommodations. This part of the definition

is based on Supreme Court decisions, most notably the leading case of

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 84 (1977).

WIA Title I--financially assisted program or activity: This

definition contains the same elements as the definition of the term

``JTPA-funded program or activity'' in 29 CFR 34.2. The definition has

been presented in outline form to improve its readability.

The remainder of the definitions in Section 37.4 are either

unchanged from their counterparts in 29 CFR 34.2, or have been changed

merely to refer to WIA rather than JTPA.

Section 37.5 What forms of discrimination are prohibited by this part?

This section is identical to 29 CFR 34.3, except that references to

JTPA have been changed to refer to WIA.

Section 37.6 What specific discriminatory actions, based on prohibited

grounds other than disability, are prohibited by this part?

This section contains the same requirements as 29 CFR 34.4.

Differences between this regulation and the JTPA regulation are

explained below.

Paragraph 37.6(a): This paragraph is identical to the first

sentence of 29 CFR 34.4(a), except that references to JTPA have been

changed to refer to WIA.

Paragraph 37.6(b): This introductory paragraph is identical to the

second sentence of 29 CFR 34.4(a).

Paragraphs 37.6(b)(1)-(7): These paragraphs are identical to 29 CFR

34.4(a)(1)-(7), with the following exceptions:

(1) references to ``service, financial aid, or benefit'' have been

changed to ``aid, benefits, services, or training,'' as explained in

the discussion of the definition of the latter term in Section 37.4

above; and

(2) references to JTPA have been changed to refer to WIA.

Paragraph 37.6(b)(8): This paragraph is identical to 29 CFR

34.4(a)(10), except that a reference to WIA Title I has been inserted.

Paragraphs 37.6(c)(1)-(2): These paragraphs contain requirements

similar to those in 29 CFR 34.4(a)(8) and (9). Paragraph 37.6(c)(1)

signifies that a recipient must not provide significant assistance

under any circumstances to any agency, organization, or person that

discriminates on a prohibited ground. Similarly, Paragraph 37.6(c)(2)

signifies that except where doing so would cause undue hardship, a

recipient may not refuse to accommodate an individual's religious

practices or beliefs, even if the refusal is not based on dislike of or

disagreement with the individual's religion. Again, this alteration is

not intended as a substantive change from the regulations implementing

JTPA; the change was made only to clarify the intent of the

regulations.

As in other paragraphs, references to JTPA have been changed to

refer to WIA.

Paragraph 37.6(d): This paragraph contains the same requirements as

29 CFR 34.4(b). Consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the JTPA

paragraph, and presented in outline form to improve its readability.

Also, the word ``outreach'' has been added to the list of examples of

the types of administrative determinations in which discrimination is

prohibited. Because the list, both in the corresponding JTPA regulation

and in this paragraph, is exemplary rather than restrictive, the

addition of this word makes no substantive change in the paragraph.

For consistency with the language of Section 37.7, the reference to

``standards, procedures or criteria'' has been changed to ``standards,

procedures, criteria, or administrative methods.'' See the discussion

in this preamble about Paragraph 37.7(e). Similarly, the paragraph has

been reworded to prohibit practices that defeat or substantially impair

accomplishment of the objectives of ``the nondiscrimination and equal

opportunity provisions of WIA and this part,'' as well as those of the

program or activity in question.

As in other paragraphs, references to JTPA have been changed to

refer to WIA.

Paragraph 37.6(e): This paragraph contains the same requirements as

29 CFR 34.4(c). Again, consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the JTPA

paragraph, and presented in outline form to improve its readability.

Also, references to JTPA have been changed to refer to WIA.

Paragraph 37.6(f): This paragraph prohibits participants in a WIA

Title I--financially assisted program or activity from being employed

or trained to construct, operate, or maintain any part of a facility

that is or will be used primarily for sectarian instruction or

religious worship. This paragraph is directly based on, and implements,

Section 188(a)(3) of WIA.

Paragraph 37.6(g): This paragraph is identical to 29 CFR 34.4(d).

Section 37.7 What specific discriminatory actions based on disability

are prohibited by this part?

This section contains the same requirements as 29 CFR 34.5, with

additional material modeled on the regulations implementing Title II of

the ADA. Differences between this section and the corresponding

sections of the JTPA nondiscrimination regulations or ADA regulations

are discussed below.

Paragraphs 37.7(a)(1)-(3): These paragraphs are identical to 29 CFR

34.5(a)(1)-(3), except that references to JTPA have been changed to

refer to Title I of WIA.

Paragraph 37.7(a)(4): This paragraph is identical to 29 CFR

34.5(a)(4), with the following exceptions:

(1) The paragraph specifies that, except when necessary to

accommodate a qualified individual with a disability, a recipient may

not provide ``segregated'' aid, benefits, services, or training to

individuals with disabilities. This addition is intended to clarify and

emphasize that a recipient may provide special programs or activities

designed for and limited to individuals with disabilities, but may not

require that individuals with disabilities attend only such programs or

activities. In other words, qualified individuals with disabilities

must be offered the option of participating in the same programs or

activities that are offered to non-disabled individuals. This change is

not intended to provide a substantive change from the JTPA

[[Page 61699]]

nondiscrimination regulations. It was inserted only to clarify the

intent of the regulations.

(2) The beginning of 29 CFR 34.5(a)(4) prohibits recipients from

providing different or separate ``aid, benefits, or services'' to

individuals with disabilities; the end of the same paragraph refers to

``aid, benefits, services or training.'' For consistency, the paragraph

has been modified to refer to ``aid, benefits, services, or training''

in both places. Again, this change is not intended to provide a

substantive change from the meaning of the regulations implementing

JTPA.

Paragraphs 37.7(a)(5)-(6): These paragraphs are identical to 29 CFR

34.5(a)(6)-(7), except that references to JTPA have been changed to

refer to Title I of WIA.

Paragraph 37.7(b): This paragraph tracks the language of 29 CFR

34.5(a)(5). Like Paragraph 37.6(c)(1), it has been placed in a separate

paragraph to clarify that a recipient must not provide significant

assistance to any agency, organization, or person that discriminates on

the basis of disability, even if the recipient has no discriminatory

motivation in providing the assistance.

Paragraphs 37.7(c)-(d): These paragraphs are identical to 29 CFR

34.5(b)-(c), except that references to JTPA have been changed to refer

to Title I of WIA.

Paragraph (d) requires recipients to administer WIA Title I-

financially assisted programs and activities in ``the most integrated

setting appropriate to the needs of qualified individuals with

disabilities.'' This language means that the recipient must provide

programs or activities in a setting that enables individuals with

disabilities to interact with non-disabled persons to the fullest

extent possible.

Paragraph 37.7(e): This paragraph contains the same requirements as

29 CFR 34.5(d). Differences between the paragraph and the corresponding

paragraphs of the JTPA nondiscrimination regulations are explained

below.

(1) Consistent with plain-language guidelines, the word ``utilize''

in Paragraph 34.5(d) has been replaced by ``use.''

(2) For consistency with the language of Section 37.6(d), the

reference to ``criteria or administrative methods'' has been changed to

``standards, procedures, criteria, or administrative methods.'' See the

discussion in this preamble about Paragraph 37.6(d).

(3) Paragraph 34.5(d)(1) prohibited the use of such methods that

have ``the effect of'' discriminating against qualified individuals

with disabilities. This wording has been changed to prohibit methods

that have ``the purpose or effect of'' such discrimination. This

addition was made for two reasons:

(a) because WIA Section 188 makes clear that purposeful

discrimination against qualified individuals with disabilities is also

prohibited; and

(b) to make the language of Paragraph 34.5(d)(1) consistent with

the language of the remaining paragraphs in the section, which prohibit

activities that have ``the purpose or effect of'' discrimination.

(3) References to JTPA have been changed to refer to Title I of

WIA.

None of these changes is intended to alter the meaning of the

paragraphs from the meaning of the corresponding paragraphs in the JTPA

nondiscrimination regulations.

Paragraph 37.7(f): This paragraph contains the same requirements as

29 CFR 34.5(e). Consistent with plain-language guidelines, the

paragraph has been organized slightly differently from the

corresponding paragraph in the JTPA nondiscrimination regulations, and

presented in outline form to improve its readability. Also, references

to JTPA have been changed to refer to WIA.

Paragraphs 37.7(g)-(h): These paragraphs are based on 28 CFR

35.130(b)(5)-(6), from the regulations implementing Title II of the

ADA. Differences between the paragraphs and the corresponding

paragraphs of the ADA Title II regulations are explained below.

(1) Two changes have been made in order to tailor the regulations

to the requirements of the WIA program:

(a) The reference in Paragraph 37.7(g) to ``procurement

contractors'' has been changed to ``contractors'; and

(b) References to ``public entity'' have been changed to

``recipient'; and

(2) References to the ADA have been replaced by references to WIA.

These provisions have been modeled upon the ADA Title II

regulations in order to ensure that requirements under Section 188 of

WIA follow generally the requirements of ADA Title II. Many recipients

of WIA Title I financial assistance are also subject to the

requirements of Title II, which applies to public entities including

State and local governments and their departments, agencies, and

instrumentalities. See 42 U.S.C. 12131. Modeling the WIA regulations on

the ADA Title II regulations ensures that these recipients are subject

to similar obligations and responsibilities under both laws.

Paragraph 37.7(h), which discusses licensing and certification

programs, gives CRC jurisdiction only over recipients of WIA Title I

financial assistance. For example, a state electrician certification

program run by a State agency that does not benefit from WIA Title I

financial assistance would not be required to comply with this

paragraph. Such an agency would, however, be required to comply with

the similar requirements set forth in 28 CFR 35.130(b)(6), in the ADA

Title II regulations.

Paragraphs 37.7(i)-(l): These paragraphs are based on 28 CFR

35.130(b)(8), (c), (f), and (g), from the regulations implementing

Title II of the ADA. Differences between the paragraphs and the

corresponding paragraphs of the ADA Title II regulations are explained

below.

(1) References to ``public entity'' have been changed to

``recipient'; and

(2) References to ``service(s)'' have been changed to ``aid,

benefits, services, or training.''

Both of these changes have been made in order to tailor the

regulations to the requirements of the WIA program. Neither change is

intended to alter the meaning of the paragraphs.

Paragraph 37.7(m): This paragraph is identical to 29 CFR 34.5(g),

except that additional punctuation has been added to improve the

material's clarity.

Paragraph 37.7(n): This paragraph contains the same requirements as

29 CFR 34.5(h). The paragraph has been presented in outline form to

improve its readability.

Paragraph 37.7(o): This paragraph is based on 28 CFR 35.130(e),

from the regulations implementing Title II of the ADA, except that

references to the ADA have been replaced by references to WIA. This

change is not intended to alter the meaning of the paragraph.

Section 37.8 What are a recipient's responsibilities regarding

reasonable accommodation and reasonable modification for individuals

with disabilities?

This section is based on 28 CFR 35.130(b)(7), which requires public

entities to make ``reasonable modifications'' in ``policies, practices

or procedures when the modifications are necessary to avoid

discrimination on the basis of disability.'' To this requirement has

been added the obligation that in providing aid, benefits, services,

training, or employment, a recipient must make ``reasonable

accommodation'' for qualified individuals with disabilities.

The two concepts are similar in that they both require a recipient

to consult

[[Page 61700]]

with each individual with a disability who requests an accommodation(s)

or modification(s); to make an individual determination about the

alterations necessary in each case; and to take appropriate action

based upon that determination. The concepts differ, however, in the

standards used to determine ``reasonableness.'' An accommodation is

``reasonable'' unless providing the requested accommodation would cause

the recipient undue hardship. A modification, by contrast, is

``reasonable'' unless making the modification would require a

fundamental alteration in the nature of the service, program, or

activity that the recipient is providing. See the definitions of

``fundamental alteration,'' ``reasonable accommodation,'' and ``undue

hardship'' in Section 37.4.

The EEOC's Enforcement Guidance on Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act may help

recipients and others understand these concepts, particularly as

applied in the employment context. The Guidance is available from EEOC

or through EEOC's web site at www.eeoc.gov.

The procedures, set forth in paragraphs 37.8(a)(1)-(2) and (b)(1)-

(2), that a recipient must follow in determining whether a requested

accommodation would cause undue hardship, or a requested modification

would result in a fundamental alteration, are derived from the

procedures set forth in 29 CFR 34.6(f)(1)-(3) for making similar

determinations with regard to communications with individuals with

disabilities. See the discussion in this preamble about Paragraphs

37.9(f)(1)-(3).

Section 37.9 What are a recipient's responsibilities to communicate

with individuals with disabilities?

Generally, this section contains the same requirements as 29 CFR

34.6. Differences between the section and the corresponding section of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.9(a): This paragraph requires recipients to ensure

that communication with certain groups of individuals with disabilities

are as effective as communications with others. The paragraph is

identical to Paragraph 34.6(a), except that the term ``registrants''

has been added to the list of such groups. The addition is necessary in

order to tailor the regulations to the requirements of the WIA program.

This change is not intended to alter the meaning of the paragraph.

Paragraph 37.9(b): Two words have been added to this paragraph in

order to clarify its meaning. The first sentence of the paragraph

requires a recipient to ``furnish appropriate auxiliary aids or

services when necessary'' to give individuals with disabilities an

equal opportunity to participate in the program or activity that

receives Federal financial assistance. However, the second sentence of

29 CFR 34.6(b) referred only to a recipient's obligation to determine

what auxiliary aids or services are ``necessary.'' In order to

eliminate confusion, the phrase ``appropriate and'' has been added to

the second sentence, so that it now refers to a recipient's obligation

to determine what auxiliary aids or services are ``appropriate and

necessary.''

Paragraph 37.9(c): The JTPA counterpart to this paragraph is 29 CFR

34.6(c). That paragraph was written in the passive voice. The paragraph

has been shifted to the active voice, to clarify that the recipient has

the responsibility of using telecommunications devices for individuals

with hearing impairments, or other equally effective communications

systems, in order to communicate by telephone with such individuals.

Additionally, the acronym ``TTY,'' which is occasionally used as an

alternative to the acronym ``TDD'' for such communications systems, has

been added.

The phrase ``telephone relay services,'' which has been added as an

example of an ``equally effective communications system,'' refers to

services established under Title IV of the ADA to permit communications

between individuals who communicate by TDD/TTY and individuals who

communicate by the telephone alone. These relay services involve a

relay operator using both a standard telephone and a TDD/TTY to type

the voice messages to the TDD/TTY user and read the TDD/TTY messages to

the standard telephone user. Where such relay services are available, a

recipient may use these services to meet the requirements of this

section. However, where the recipient has extensive telephone contact

with the public, or where the provision of telephone services is a

major function of the recipient, the recipient should use TDDs/TTYs to

ensure more immediate access.

Paragraph 37.9(d): This paragraph is identical to 29 CFR 34.6(d),

except that, consistent with plain language principles, the term

``shall'' has been replaced by ``must.''

Paragraphs 37.9(e)(1) and (2): These paragraph generally contain

the same information as 29 CFR 34.6(e). The information has been

presented in outline form to improve its readability. In addition, two

sentences have been added to Paragraph 37.9(e)(1) to emphasize that

``signage'' is a term of art and to explain the standards that signage

must meet under the regulations.

Paragraphs 37.9(f)(1)-(3): These paragraphs, which deal with

circumstances in which a recipient believes that a particular action

would result in a fundamental alteration to the nature of a service,

program, or activity, contain the same requirements as 29 CFR

34.6(f)(1)-(3). Because the Interim Final Rule (unlike the JTPA

nondiscrimination regulations) includes a definition of ``fundamental

alteration'' that incorporates the concept of ``undue financial and

administrative burdens,'' that phrase is now redundant, and has been

omitted from the paragraphs. See the discussion in this preamble about

the definition of ``fundamental alteration'' in Section 37.4. In

addition, references to JTPA have been changed to refer to WIA. None of

these changes is intended to alter the meaning of these paragraphs.

Section 37.10 To what extent are employment practices covered by this

part?

This section contains information similar to that in 29 CFR

34.7(b)-(g). References to JTPA have been changed to refer to WIA. In

addition, the reference to Equal Employment Opportunity Commission

``guidelines'' has been changed to ``guidance,'' and the material in 29

CFR 34.7(a), which defines the term ``employment practices,'' has been

moved to the definition section (Section 37.4) in this Interim Final

Rule. These changes are not intended to alter the meaning of the

section.

Paragraph 37.10(a)(1) and (2): These paragraphs contain information

similar to that in 29 CFR 34.7(b). Language has been added to this

paragraph to clarify that the section applies to the employment

practices of any program or activity that is part of the One-Stop

delivery system and is operated by a One-Stop partner listed in Section

121(b) of WIA, to the extent that the program or activity is being

conducted as part of the One-Stop delivery system. In addition, the

information has been presented in outline form to improve its

readability.

Paragraph 37.10(d): The corresponding paragraph in the JTPA

nondiscrimination regulations, 29 CFR

[[Page 61701]]

34.7(e), stated that part 34 did not affect recipients' obligations to

comply with the provisions of Subparts B and C and Appendix A of 29 CFR

part 32. As noted in the discussion in this preamble about Paragraph

37.3(b), that paragraph has been amended to incorporate the cited

provisions by reference. This paragraph has been amended accordingly.

Paragraph 37.10(f): This paragraph, which notes that recipients

should be aware of their obligations to comply with the anti-

discrimination provisions of the Immigration and Nationality Act, has

been added at the request of the Department of Justice. See the

discussion in this preamble about Paragraph 37.3(c)(9).

Section 37.11 To what extent are intimidation and retaliation

prohibited by this part?

This section contains the same requirements as 29 CFR 34.8.

Consistent with plain-language guidelines, the section has been

organized slightly differently from the JTPA section, and presented in

outline form to improve its readability. Also, references to JTPA have

been changed to refer to WIA. None of these changes is intended to

alter the meaning of the section.

Section 37.12 What Department of Labor office is responsible for

administering this part?

This section contains the same requirements as 29 CFR 34.9(a). The

section refers to the Civil Rights Center, or CRC, which was known as

the Directorate of Civil Rights, or DCR, at the time the JTPA

nondiscrimination regulations were promulgated. Also, references to

JTPA in the previous section have been changed in this section, where

appropriate, to refer to WIA. Neither of these changes is intended to

alter the meaning of this section.

Some recipients have expressed confusion about which Department of

Labor agency they should contact for answers to questions about the

nondiscrimination and equal opportunity requirements of the JTPA and

WIA programs. This confusion is understandable: the Department's

Employment and Training Administration (ETA) is responsible for, and

has expertise about, most aspects of the JTPA and WIA programs. As a

result, recipient staff members are accustomed to approaching ETA

personnel for answers to JTPA- and WIA-related questions. However, CRC,

rather than ETA, is responsible for, and has expertise about, the

particular aspects of the JTPA and WIA programs relating to

nondiscrimination and equal opportunity. Recipients will therefore be

able to receive more expeditious answers to questions about these

aspects of the programs by contacting CRC directly.

Section 37.13 Who is responsible for providing interpretations of this

part?

This section is identical to 29 CFR 34.9(b), except that the

reference to JTPA has been changed to refer to WIA. This change is not

intended to alter the meaning of this section. See the discussion of

Section 37.12 above.

Section 37.14 Under what circumstances may the Secretary delegate

responsibility under this part?

This section is identical to 29 CFR 34.12(a) and (b), with the

following exceptions:

(1) The references to other regulatory sections within part 34 have

been changed to reflect the numbering of this Interim Final Rule; and

(2) References to JTPA have been changed to refer to WIA.

Neither of these changes is intended to alter the meaning of this

section.

Section 37.15 What are the Director's responsibilities to coordinate

with other civil rights agencies?

This section generally contains the same requirements as 29 CFR

34.12(c). At the request of the Department of Justice, a reference to

the anti-discrimination provision of the Immigration and Nationality

Act has been added to the list of laws with regard to which the

Director must coordinate with other Federal civil rights agencies. See

the discussion in this preamble about Paragraph 37.3(c)(9).

In addition, consistent with plain-language guidelines, this

section has been organized slightly differently from the JTPA section,

and presented in outline form to improve its readability. Also,

references to JTPA have been changed to refer to WIA. Neither of the

latter changes is intended to alter the meaning of this section.

Section 37.16 What is this part's effect on a recipient's obligations

under other laws, and what limitations apply?

Paragraphs (a) and (b) of this section are identical to the

corresponding paragraphs in 29 CFR 34.11, except that references to

JTPA have been changed to refer to WIA. This change is not intended to

alter the meaning of the paragraphs.

Paragraph (a) of this section means that a recipient is not excused

from complying with the nondiscrimination and equal opportunity

provisions of WIA and this part, even if a State or local law requires

the recipient to discriminate on a prohibited ground.

Similarly, paragraph (b) of this section means that no rule or

regulation of a private organization, club, league, or association that

requires a recipient to discriminate on a prohibited ground excuses a

recipient from complying with the nondiscrimination and equal

opportunity provisions of WIA and this part.

Paragraph (c) of this section contains the same requirements as 29

CFR 34.11(c). It has been rewritten to improve its clarity. The

paragraph bars recipients, while recruiting, selecting, or placing

individuals in programs or activities, from considering whether job

opportunities in any particular occupation or profession will be open

to qualified individuals with disabilities, or to persons of a certain

race, color, religion, sex, national origin, age, political affiliation

or belief, or citizenship. For example, a recipient operating a WIA

Title I--financially assisted training program must not steer women

away from training programs for construction work because the recipient

believes that women will have difficulty finding jobs in construction.

This paragraph does not change the recipient's general obligation under

WIA to assure that training is focused on occupations that are in

demand.

Subpart B--Recordkeeping and Other Affirmative Obligations of

Recipients

The requirements in this subpart are generally similar to the

requirements in Subpart B of part 34. Consistent with plain-language

guidelines, some of the sections within the subpart have been

rearranged in a more logical order, and lengthy sections have been

divided into shorter sections treating narrower topics. These changes

are not intended to alter the overall meaning of this subpart, or the

meaning of any of its component sections.

Assurances

Section 37.20 What is a recipient's obligation to provide a written

assurance?

This section contains the same requirements as 29 CFR 34.20(a) and

(b). Differences between this section and the corresponding section of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.20(a)(1): In this paragraph, the introductory

paragraph has been rewritten to eliminate redundancy, and the required

assurance has been rewritten consistent with plain-language guidelines.

These

[[Page 61702]]

changes are not intended to alter the meaning of the assurance or the

paragraph.

The rewritten assurance states that the recipient must not

discriminate on the basis of ``citizenship/status as a lawfully

admitted immigrant authorized to work in the United States.'' This

change has been made to convey more accurately the definition of

``discrimination on the ground of citizenship'' contained in Section

37.4.

Paragraphs 37.20(a)(2): These paragraphs are identical to 29 CFR

34.20(a)(2) and (b), with the following exceptions:

(1) The references to other regulatory sections within part 34 have

been changed to reflect the numbering of this Interim Final Rule; and

(2) References to JTPA have been changed to refer to WIA.

Neither of these changes is intended to alter the meaning of these

paragraphs.

Section 37.21 How long will the recipient's obligation under the

assurance last, and how broad is the obligation?

This section contains the same general requirements as 29 CFR

34.20(c). References to JTPA have been changed to refer to Title I of

WIA, and the material has been presented in outline form to improve its

clarity. In addition, two new clauses have been added. The first clause

extends the obligation for the period during which the property is used

``for another purpose involving the provision of * * * services or

benefits'' that are similar to those provided under WIA Title I. This

clause has been added for consistency with other Federal regulations

involving Federally-assisted programs. See, e.g., 28 CFR 42.105(a)(1)

(implementing Title VI); 34 CFR 100.4(a)(1) (applying Title VI to

programs assisted through the Department of Education).

The second new clause extends the obligation under the assurance to

a transferee for the period until the transferee has compensated the

Departmental grantmaking agency for the fair market value of the

property transferred. This clause has been added in order to ensure

that a transferee may not benefit from a transfer of property under the

WIA Title I program without being subjected to the nondiscrimination

and equal opportunity obligations of WIA and this part.

Section 37.22 How must covenants be used in connection with this part?

Generally, this section contains the same requirements as 29 CFR

34.20(d). References to JTPA have been changed to refer to Title I of

WIA. In addition, paragraph (a) has been amended to require that the

covenant must assure compliance with the nondiscrimination and equal

opportunity provisions for the period described in Section 37.21.

Additionally, the clause, described in the discussion of Section 37.21,

that extends the obligation for the period during which the property is

used ``for another purpose involving the provision of similar services

or benefits'' has been added to this section as well. See the

discussion of Section 37.21 above.

Equal Opportunity Officers

Section 37.23 Who must designate an Equal Opportunity Officer?

This section is based on the first sentence of 29 CFR 34.22(a). The

section is not intended to alter the requirements of the corresponding

JTPA regulation with regard to the entities that are required to

designate Equal Opportunity Officers (``EO Officers'').

Section 37.24 Who is eligible to serve as an Equal Opportunity

Officer?

The material in this section is new. It is intended to clarify and

emphasize the significance and level of authority that recipients must

give to the Equal Opportunity Officer position, and to the individual

who holds that position. Much (though by no means all) of the

responsibility for a recipient's nondiscrimination and equal

opportunity program rests on the shoulders of the EO Officer. CRC's

experience has demonstrated that in order for such programs to function

fairly and effectively, the EO Officer must be a senior-level employee

whose responsibilities in the position present no conflicts of interest

with his or her other responsibilities. In addition, the recipient must

establish clear lines of authority and accountability for the program,

and must provide the EO Officer with appropriate levels of support. See

the discussion of Sections 37.25 and 37.26 below.

As with part 34, this section does not require that recipients

designate a separate or additional EO Officer to implement the

nondiscrimination obligations imposed by WIA and this part. Nor is this

section intended to require that the WIA EO Officer be employed in that

position full-time. Recipients may still use their existing EO Officer

and staff (assuming that the EO Officer meets the requirements of this

section), or assign additional, non-WIA-related duties to a newly-

appointed EO Officer, so long as the EO Officer is able to give top

priority to, and to adequately accomplish all of, his/her

responsibilities under the nondiscrimination and equal opportunity

provisions of WIA and this part.

Section 37.25 What are the responsibilities of an Equal Opportunity

Officer?

This section consolidates and clarifies the responsibilities that

were conferred on EO Officers under 29 CFR part 34. The source of each

proposed paragraph is set forth below.

The list of responsibilities provided in this section is not

intended to be exclusive. The EO Officer must also perform any

additional duties that may arise from his/her administration of the

recipient's nondiscrimination and equal opportunity obligations under

WIA and this part.

Paragraph 37.25(a): This paragraph, which requires the EO Officer

to serve as the recipient's liaison with CRC, contains one of the

recipients' responsibilities listed in 29 CFR 34.22(a). Other

responsibilities listed in that paragraph of the JTPA nondiscrimination

regulations are discussed in appropriate sections below.

This paragraph of the Interim Final Rule signifies that the EO

Officer and his/her staff will serve as the point of contact for all

recipient personnel who have questions about WIA's nondiscrimination

and equal opportunity program. The EO Officer will have both expertise

in the subject and an ongoing relationship with CRC staff. Because of

that expertise, the EO Officer may be able to answer recipient staff

members' questions based on his or her own knowledge of the program.

In addition, CRC has found this requirement to be a significant

component of a program with clear lines of authority and

accountability, as discussed in Section 37.24 above. Having a single

point of contact, at both the recipient and departmental levels, helps

to ensure a consistent interpretation and application of the

requirements of the nondiscrimination and equal opportunity provisions

of WIA and this part. See the discussion above about Section 37.12.

Paragraphs 37.25(b)-(c): These paragraphs require the EO Officer to

monitor the activities of the recipient and its recipients to ensure

that the recipients' nondiscrimination and equal opportunity

obligations are not being violated, and to review their written

policies to ensure that those policies are nondiscriminatory. CRC's

experience has demonstrated that these two responsibilities are an

integral part of the most effective equal opportunity programs of

recipients under JTPA.

[[Page 61703]]

These paragraphs are not intended to impose additional

responsibilities upon recipients or their EO Officers. The paragraphs

are intended merely to clarify the responsibilities that were already

imposed under the JTPA program, and to emphasize that the EO Officer

should take a leadership role in the operation of the recipient's

nondiscrimination and equal opportunity programs.

Paragraph 37.25(d): This paragraph, which requires the EO Officer

to adopt, publish, and oversee the recipient's procedures for

processing discrimination complaints, contains the same requirements as

29 CFR 34.42(b).

Paragraphs 37.25(e)-(g): These paragraphs contain the

responsibilities of EO Officers that are listed in 29 CFR 34.22(a).

Other responsibilities listed in that paragraph of the JTPA

nondiscrimination regulations belong to recipients and are listed

above, in Paragraph 37.25(a), or below, in Section 37.26.

Section 37.26 What are a recipient's obligations relating to the Equal

Opportunity Officer?

This section consolidates and clarifies the obligations that were

conferred on recipients under 29 CFR part 34 regarding their EO

Officers. The source of each paragraph is set forth below.

Paragraph 37.26(a): This paragraph, which requires recipients to

publicize the EO Officer's name and contact information, contains the

same requirements, in a more detailed form, as the last sentence of 29

CFR 34.22(a).

Paragraph 37.26(b): This paragraph clarifies that where a recipient

provides internal and external notice about its nondiscrimination and

equal opportunity programs, it must also provide information about ways

to contact its EO Officer. See 29 CFR 34.23(a) and (b), and the

discussion of Sections 37.29 through 37.31, 37.34, and 37.36 below.

Paragraph 37.26(c): This paragraph is based on 29 CFR 34.22(b). It

has been rewritten to emphasize that, as explained in the discussion of

Section 37.24 above, the success of a recipient's nondiscrimination and

equal opportunity program depends heavily upon the tangible and

intangible support that the recipient provides to its EO Officer, and

that the recipient's top management should provide a significant

percentage of that support.

Paragraph 37.26(d): This paragraph requires a recipient to ensure

that the EO Officer and his/her staff are afforded the opportunity to

receive the training necessary and appropriate to maintain competency.

This requirement is based on the language 29 CFR 34.22(a) which

required the recipient to pay for any training that the Director

required its EO Officer and staff to take. The requirement has been

rewritten to emphasize that the recipient is responsible for ensuring

that its EO Officer and staff maintain the level of knowledge, skills,

and abilities necessary to carry out their responsibilities fully and

effectively, and that the training needed to maintain this level of

competency in a particular case, or for a particular recipient, may be

more extensive than the training that the Director requires.

Section 37.27 What are the obligations of small recipients relating to

Equal Opportunity Officers?

This section contains the same requirements as 29 CFR 34.22(c).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. Also, the reference to other

regulatory sections within part 34 has been changed to reflect the

numbering of this Interim Final Rule. These changes are not intended to

alter the meaning of this section.

Section 37.28 What are the obligations of service providers relating

to Equal Opportunity Officers?

This section contains the same requirements as 29 CFR 34.22(d). As

with Section 37.27, the section has been slightly rewritten, and the

reference to another regulatory section within part 34 has been changed

to reflect the numbering of this Interim Final Rule. Also, JTPA-related

terminology (the references to SDA grant recipients and Substate

grantees) has been replaced by WIA-related terminology (the reference

to LWIA grant recipients). Again, these changes are not intended to

alter the meaning of this section.

Notice and Communications

Section 37.29 What are a recipient's obligations to disseminate its

equal opportunity policy?

This section contains the same requirements as 29 CFR 34.23(a)(1),

with the addition of related material from 34.23(a)(7). Consistent with

plain-language guidelines, the section has been organized slightly

differently from 29 CFR 34.23(a)(1), and has been presented in outline

form to improve its readability. Also, WIA-related terminology (the

reference to ``registrants'') has been added where appropriate, and the

reference to another regulatory section within part 34 has been changed

to reflect the numbering of this Interim Final Rule. None of these

changes is intended to alter the meaning of this section.

Section 37.30 What specific wording must the notice contain?

This section contains the same requirements as 29 CFR 34.23(a)(5).

Both the introductory language and the notice have been rewritten

consistent with plain-language guidelines. Also, references to JTPA

have been replaced by references to WIA Title I, and the time frame

within which a recipient must process a complaint has been extended to

90 days, consistent with the changes included in this Interim Final

Rule. See the discussion of Section 37.76 in this preamble; see also

the notice in Section 37.30 of the Interim Final Rule.

The rewritten notice states that the recipient must not

discriminate on the basis of ``citizenship/status as a lawfully

admitted immigrant authorized to work in the United States.'' This

change has been made to convey more accurately the definition of

``discrimination on the ground of citizenship'' contained in Section

37.4.

The notice contains references to a document entitled a ``Notice of

Final Action.'' As discussed in Section 37.76 of this preamble, the

``Notice of Final Action'' is merely a formal name for a document that

a recipient was required under part 34 to issue when it finished

processing a discrimination complaint. Therefore, the reference to a

``Notice of Final Action'' is not a substantive change to the notice

required by this section.

Section 37.31 Where must the notice required by Sections 37.29 and

37.30 be published?

This section contains the same requirements as 29 CFR 34.23(a)(2)

and (3). Consistent with plain-language guidelines, the section has

been organized slightly differently from the JTPA nondiscrimination

regulations, and has been presented in outline form to improve its

readability. Also, the reference to another regulatory paragraph within

part 34 has been changed to reflect the numbering of this Interim Final

Rule. None of these changes is intended to alter the meaning of the

section.

A reference to ``electronic communications'' has been added to

Section 37.31(a)(2), to reflect the growth in computer technology, and

the related expansion of electronic communications, that have taken

place since the JTPA nondiscrimination regulations were promulgated in

1992.

[[Page 61704]]

Section 37.32 When must the notice required by Sections 37.29 and

37.30 be provided?

This section contains the same requirements as 29 CFR 34.23(a)(4).

Consistent with plain-language guidelines, the section has been

organized slightly differently from the JTPA nondiscrimination

regulations. Also, the reference to another regulatory paragraph within

part 34 has been changed to reflect the numbering of this Interim Final

Rule. Neither of these changes is intended to alter the meaning of the

paragraph.

Section 37.33 Who is responsible for meeting the notice requirement

with respect to service providers?

This section contains the same requirements as 29 CFR 34.23(a)(6).

JTPA-related terminology (the references to SDA grant recipients and

Substate grantees) has been replaced by WIA-related terminology (the

references to the LWIA grant recipient). Also, the reference to another

regulatory paragraph within part 34 has been changed to reflect the

numbering of this Interim Final Rule. Neither of these changes is

intended to alter the meaning of the section.

Section 37.34 What type of notice must a recipient include in

publications, broadcasts, and other communications?

This section contains the same requirements as 29 CFR 34.23(b).

Differences between the section and the corresponding paragraph of the

JTPA nondiscrimination regulations are described below.

Paragraph 37.34(a): Consistent with plain-language guidelines, this

paragraph has been organized slightly differently from 29 CFR

34.23(b)(1), the corresponding paragraph in the JTPA nondiscrimination

regulations. To reflect the growth in computer technology, and the

related expansion of electronic communications, a reference to

``materials that are ordinarily distributed or communicated in written

and/or oral form, electronically and/or on paper,'' has been added.

Also, because materials that ``describe programs funded under [Title I

of WIA] or the requirements for participation by recipients and

participants'' are frequently distributed to staff and clients, as well

as to the public, a reference to those two groups has been added. In

addition, the acronym ``TTY,'' which, as previously noted, is

occasionally used as an alternative to the acronym ``TDD,'' has been

added. Finally, references to JTPA have been replaced by references to

WIA Title I, and the reference to another regulatory paragraph within

part 34 has been changed to reflect the numbering of this Interim Final

Rule.

Paragraph 37.34(b): The reference to recipients ``required by law

or regulation to'' publish or broadcast information in the news media

has been deleted, in order to clarify that all recipients must include

the required notice in written and electronic publications and

broadcasts, regardless of whether those publications or broadcasts are

required. Also, references to JTPA have been replaced by references to

WIA Title I.

Paragraph 37.34(c): The language contained in 29 CFR 34.23(c) that

prohibited a recipient from ``us[ing] or distribut[ing] a publication

of the type described in paragraph (b) of this section'' has been

replaced by language prohibiting a recipient from ``communicating any

information.'' As with other changes described above, this change was

made to reflect the growth of electronic communication. Recipients now

may reach staff, clients, or the general public through e-mail and

Internet Web sites, as well as through the traditional publications on

paper that were contemplated by the JTPA nondiscrimination regulations.

Additionally, references to JTPA have been replaced by references

to WIA Title I, and the reference to another regulatory paragraph

within part 34 has been changed to reflect the numbering of this

Interim Final Rule.

Section 37.35 What are a recipient's responsibilities to provide

services and information in languages other than English?

The requirements in this section are authorized by the provision in

Section 188 of WIA that bars recipients from discriminating on the

basis of national origin. Cf. Lau v. Nichols, 414 U.S. 563 (1974)

(school system required to provide English language instruction to

students of Chinese ancestry who do not speak English under Section 601

of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which bans

discrimination based on national origin in programs or activities

receiving Federal financial assistance).

Paragraph (a) of this section contains the same requirements as 29

CFR 34.23(c). Consistent with plain-language guidelines, this paragraph

has been organized slightly differently from the corresponding

paragraph in the JTPA nondiscrimination regulations, and has been

presented in outline form to improve its readability. Also, references

to JTPA have been replaced by references to WIA Title I, and the

references to other regulatory paragraphs within part 34 have been

changed to reflect the numbering of this Interim Final Rule.

Paragraph (b) has been added in order to clarify the

responsibilities of recipients to provide services and information to

individuals with limited English-speaking skills where the number or

proportion of such persons in the community served by the recipient

does not reach the levels described in paragraph (a). In such

circumstances, a recipient should make reasonable efforts to meet the

particularized needs of any such individuals who seek services or

information from that recipient.

The differences between paragraphs (a) and (b) of this section may

be explained as follows: Paragraph (a) requires a recipient to take

certain actions before individuals with limited English skills seek

assistance from the recipient. Under this paragraph, the recipient must

assess the scope of its program or activity and the size and

concentration of the population it serves, and establish and carry out

a plan to provide services and information in the language (or

languages) used by a significant number or proportion of members of

that population. Depending upon the combination of these factors, that

plan may include printing materials in the language used by the

``significant number or proportion of the population,'' hiring

permanent staff members who are qualified interpreters in that

language, or various other options.

Under paragraph (b), by contrast, a recipient is not required to

take action in advance. However, when an individual with limited

English skills--who does not speak a language spoken by a ``significant

number or proportion of the population''--seeks services or information

from the recipient, the recipient should then make reasonable efforts

to meet the particularized needs of that individual. Such efforts may

include, but are not limited to, locating and temporarily employing a

qualified interpreter who can communicate in the appropriate language.

As technology advances, various options for complying with the

requirements of this section, such as computerized and/or on-line

translation services, are becoming increasingly available to

recipients, and the cost of these options is decreasing.

Section 37.36 What responsibilities does a recipient have to

communicate information during orientations?

This section contains the same requirements as 29 CFR 34.23(d).

[[Page 61705]]

Consistent with plain-language guidelines, the section has been

organized slightly differently from the corresponding paragraph in the

JTPA nondiscrimination regulations. Also, references to JTPA have been

replaced by references to WIA Title I. In addition, because recipients

may provide orientations for the general public as well as for their

new participants and/or employees, a reference to the general public

has been added.

Data and Information Collection and Maintenance

Section 37.37 What are a recipient's responsibilities to collect and

maintain data and other information?

This section contains the same requirements as 29 CFR 34.24(a),

(a)(1), and (a)(2), with additional, related material included from 29

CFR 34.24(a)(3)(iii), (a)(7), and (e). Differences between this section

and the corresponding paragraphs of the JTPA nondiscrimination

regulations are described below.

Paragraph 37.37(a): This paragraph is identical to 29 CFR 34.24(a),

except that references to JTPA have been replaced by references to WIA.

This change is not intended to alter the meaning of the paragraph.

Paragraph 37.37(b)(1): The first sentence of this paragraph

contains the same requirements as 29 CFR 34.24(a)(1); references to

JTPA have been replaced by references to WIA. The second sentence has

been added to explain that the manner in which the records and data are

kept must allow the Governor and CRC to monitor the recipient's

compliance by conducting statistical and other quantifiable data

analyses. This provision is not a new requirement; it merely clarifies

and codifies CRC's current practices. Compare 29 CFR 34.24(a)(1).

Paragraph 37.37(b)(2): Generally, this paragraph contains the same

requirements as 29 CFR 34.24(a)(2). Consistent with plain-language

guidelines, the paragraph has been slightly rewritten to improve its

clarity. Also, references to JTPA have been replaced by references to

WIA, and WIA-related terminology (the references to ``registrants'' and

to ``eligible applicants/registrants'') has been added where

appropriate. None of these changes is intended to alter the meaning of

the paragraph.

In addition, the last line of the paragraph has been amended to

permit the data and information collected under paragraph (b) of this

section to be used for such ``other use authorized by law.'' This

change has been made to clarify that this Interim Final Rule does not

prohibit recipients from cooperating with Federal, State, and local

agencies that, for law enforcement purposes, seek access to the data

and information collected.

This section does not require recipients to obtain, or to maintain

records regarding, the citizenship status of applicants or

participants.

Paragraph 37.37(c): This paragraph contains the same general

requirements as 29 CFR 34.24(a)(3)(iii). In response to questions that

have arisen about whether recipients must provide the required log of

complaints to CRC when requested to do so, the first sentence has been

amended to clarify that recipients must ``submit [the log] to CRC upon

request.'' Because 29 CFR 34.24(a)(4) already required that grant

applicants and recipients provide, ``[a]t the discretion of the

Director, . . . such information and data'' that the Director

considered necessary to determine whether the entity was complying with

the nondiscrimination and equal opportunity requirements, this addition

was made solely to clarify the regulations. Also, the paragraph has

been slightly rewritten to clarify that a complaint may be based upon

more than one prohibited ground, that every prohibited ground upon

which a particular complaint is based must be recorded in the log, and

that information in the log that could lead to the identification of a

particular individual as having filed a complaint must be kept

confidential.

29 CFR 34.24(a)(3)(iii) contained two identical lists of prohibited

grounds upon which complaints recorded in the required log might have

been filed. For conciseness, the second list of prohibited grounds has

been eliminated. Finally, references to JTPA have been replaced by

references to WIA Title I. Neither of these two changes is intended to

alter the meaning of the paragraph.

Section 37.37(d): This paragraph is identical to 29 CFR 34.24(e).

The current guidelines may be found in 62 FR No. 210, Thursday, October

30, 1997, at 58782, 58790. They may also be found at 28 CFR 42.402(e).

In following these guidelines, recipients should use the combined

format for collection and reporting of data.

Section 37.37(e): This paragraph is identical to 29 CFR

34.24(a)(7), except that JTPA-related terminology (the reference to SDA

grant recipients and Substate grantees) has been replaced by WIA-

related terminology (the reference to the LWIA grant recipient). This

change is not intended to alter the meaning of the paragraph.

Section 37.38 What information must grant applicants and recipients

provide to CRC?

This section consolidates 29 CFR 34.24(a)(3)(i) and (ii), (a)(4),

(a)(5), (a)(6), and (e). Requirements regarding information that grant

applicants and recipients must provide to CRC have been grouped

together. Differences, if any, between the section and the

corresponding paragraphs of the JTPA nondiscrimination regulations are

described below.

Paragraph 37.38(a): This paragraph contains the same general

requirements as 29 CFR 34.24(a)(3)(i). References to JTPA in the

paragraph have been replaced by references to WIA Title I. In addition,

the language requiring grant applicants and recipients to promptly

notify the Director ``of any administrative enforcement actions or

lawsuits filed against it'' has been changed to require such

notification ``when any'' such actions or lawsuits ``are filed.'' This

change was made because of CRC's judgment that grant applicants and

recipients needed guidance about the precise meaning of the requirement

that the notification be made ``promptly.'' The new language emphasizes

that the grant applicant or recipient must notify the Director at the

time that enforcement actions or lawsuits are filed; it also makes the

paragraph more readable.

Also, language that specifies the information that the notification

must contain has been added to this paragraph. The added language is

based upon part of 29 CFR 34.24(a)(3)(ii); the requirements are the

same as those in Section 37.38(b)(2)(i)-(iii).

Paragraph 37.38(b): This paragraph requires grant applicants, as

part of their applications for assistance, and recipients, as part of a

compliance review or monitoring activity conducted by the Director, to

provide the Director with information about any of the following

occurrences from the two years before the application, compliance

review, or monitoring activity:

(1) The names of any other Federal agencies that found the grant

applicant or recipient to be in noncompliance with civil rights

requirements; and

(2) Information about any administrative enforcement actions or

lawsuits that:

(a) were filed during those two years; and

(b) alleged discrimination on any protected ground.

This paragraph contains the same requirements as 29 CFR

34.24(a)(3)(ii). Consistent with plain-language guidelines, this

paragraph has been

[[Page 61706]]

organized slightly differently from the corresponding paragraph in the

JTPA nondiscrimination regulations, and has been presented in outline

form to improve its readability. Also, references to other regulatory

sections within part 34 have been changed to reflect the numbering of

this Interim Final Rule. None of these changes is intended to alter the

meaning of the paragraph.

Paragraph 37.38(c): This paragraph is based upon 29 CFR

34.24(a)(4). It requires grant applicants and recipients to provide CRC

with the data and information necessary to investigate complaints and

conduct compliance reviews. References to JTPA have been replaced by

references to WIA; and the phrase ``in a timely manner'' has been

inserted. This phrase was added in order to emphasize the need for

grant applicants and recipients to respond promptly to the Director's

requests for information. Because the corresponding paragraph in part

34 already required grant applicants and recipients to provide

information ``at the discretion of the Director,'' and the scope of

Director's discretion includes the discretion to determine when

information must be submitted, the latter change is intended merely to

clarify the meaning of the paragraph.

The corresponding paragraph in the JTPA nondiscrimination

regulations specified that the requirement applied to complaints and

compliance reviews ``on grounds prohibited under the nondiscrimination

and equal opportunity provisions of JTPA and this part, other than

race/ethnicity, sex, age, and disability.'' Because 29 CFR 34.24(a)(2)

and (3) already required grant applicants and recipients to record and

submit the race/ethnicity, sex, age, and disability of certain

categories of persons, the paragraph was written this way to emphasize

that grant applicants and recipients were required to provide CRC with

records and data about additional prohibited grounds. However, grant

applicants and recipients found the paragraph confusing. The paragraph

therefore has been rewritten to clarify that they may be requested to

submit data and information necessary to investigate complaints and/or

conduct compliance reviews on any ground prohibited by the

nondiscrimination and equal opportunity provisions of WIA and this

part.

Paragraph 37.38(d)-(e): These paragraphs require grant applicants

and recipients to submit certain specified information at the

discretion of the Director. These paragraphs are identical to 29 CFR

34.24(a)(5)-(6), with the following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) In each paragraph, the phrase ``in a timely manner'' has been

inserted. This phrase was added in order to emphasize the need for

grant applicants and recipients to respond promptly to the Director's

requests for information. As with Paragraph 37.38(c), because each

corresponding paragraph in part 34 already required grant applicants

and recipients to provide information ``at the discretion of the

Director,'' and the scope of Director's discretion includes the

discretion to determine when information must be submitted, these

changes clarify the meaning of these paragraphs.

Paragraph 37.38(f): This paragraph provides that where designation

of persons by race or ethnicity is required, the guidelines of the

Office of Management and Budget must be used. The paragraph is

identical to 29 CFR 34.24(e), and appears in Section 37.37 as well. It

was repeated in this section to clarify that its provisions apply to

information provided to and collected by CRC, as well as to data and

information collected by grant applicants and recipients. The current

guidelines may be found in 62 FR. No. 210, Thursday, October 30, 1997,

at 58782, 58790. They may also be found at 28 CFR 42.402(e). In

following these guidelines, recipients should use the combined format

for collection and reporting of data.

Because this paragraph was applicable to 29 CFR 34.24(a)(4)-(6),

its inclusion in this section does not impose additional

responsibilities upon grant applicants or recipients.

Section 37.39 How long must grant applicants and recipients maintain

the records required under this part?

This section contains the same requirements as 29 CFR 34.24(c),

``Record retention requirements.'' Consistent with plain-language

guidelines, this section has been organized slightly differently from

the corresponding paragraph in the JTPA nondiscrimination regulations,

and has been presented in outline form to improve its readability. This

change is not intended to alter the meaning of the section.

Section 37.40 What access to sources of information must grant

applicants and recipients provide the Director?

This section generally contains the same requirements as 29 CFR

34.24(b), ``Access to sources of information.'' References to JTPA have

been replaced by references to WIA. In addition, the sentence

``Information obtained pursuant to the requirements of this part must

be used only in connection with compliance and enforcement activities

pertinent to the nondiscrimination and equal opportunity provisions of

WIA and this part'' has been deleted from paragraph (b). As with the

change discussed in Section 37.37(b)(2) earlier in this preamble, this

change was made to clarify that this Interim Final Rule does not

prohibit recipients from cooperating with Federal, State, and local

agencies that, for law enforcement purposes, seek access to the data

and information collected.

Paragraph (c) contains the same requirements as the last sentence

of 29 CFR 34.24(b)(2). Consistent with plain-language guidelines, it

has been rewritten to clarify those requirements.

Section 37.41 What responsibilities do grant applicants, recipients,

and the Department have to maintain the confidentiality of the

information collected?

This section is identical to 29 CFR 34.24(d), ``Confidentiality,''

with the following exceptions:

(a) language has been inserted to clarify that the identity of

individuals who file discrimination complaints must be kept

confidential; and

(b) the reference to 29 CFR 34.8 has been changed to reflect the

numbering of this Interim Final Rule.

Neither of these changes is intended to alter the meaning of this

section.

Section 37.42 What are a recipient's responsibilities under this part

to provide universal access to WIA Title I-financially assisted

programs and activities?

This section notifies recipients of their obligation to ensure

universal access for all eligible populations to the aid, benefits,

services, and/or training that the recipient offers under its WIA Title

I--financially assisted programs and activities. Recipients should take

specific actions to reach out to all eligible populations. The rule

provides a nonexclusive list of possible actions, such as targeted

advertising, notification of schools or community interest groups, and

consultation with community service groups, that might be used to

enhance community awareness of a recipient's programs and activities.

Subpart C--Governor's Responsibilities to Implement the

Nondiscrimination and Equal Opportunity Requirements of WIA

The individual sections in this subpart are largely identical to

their corresponding sections within the same

[[Page 61707]]

subpart in part 34. Consistent with plain-language guidelines, they

have been rearranged in a more logical order, and one lengthy section

has been divided into shorter sections treating narrower topics. These

changes are not intended to alter the overall meaning of this subpart,

or the meaning of any of its component sections.

Section 37.50 To whom does this subpart apply?

This section is identical to 29 CFR 34.30, ``Application,'' except

that the references to sections in part 34 have been changed to reflect

the numbering of this Interim Final Rule. This change is not intended

to alter the meaning of this section.

Section 37.51 What are a Governor's oversight responsibilities?

This section contains the same requirements as 29 CFR 34.32(a).

References to JTPA have been replaced by references to WIA Title I, and

the references to sections in part 34 have been changed to reflect the

numbering of this Interim Final Rule. Neither of these changes is

intended to alter the meaning of this section. In addition, language

has been added to clarify that the Governor must negotiate with a

noncomplying recipient ``where appropriate.''

Section 37.52 To what extent may a Governor be liable for the actions

of a recipient s/he has financially assisted under WIA Title I?

This section is identical to 29 CFR 34.32(b) and (c), with the

following exceptions:

(1) References to JTPA have been replaced by references to WIA;

(2) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule; and

(3) To comply with the rules of grammar, the word ``which'' in

paragraph (a)(2) has been changed to ``that.''

None of these changes is intended to alter the meaning of this

section.

Section 37.53 What are a Governor's oversight responsibilities

regarding recipients' recordkeeping?

This section is identical to 29 CFR 34.31, except that the

references to sections in part 34 have been changed to reflect the

numbering of this Interim Final Rule. These changes are not intended to

alter the meaning of this section.

Section 37.54 What are a Governor's obligations to develop and

maintain a Methods of Administration?

A ``Methods of Administration'' (MOA) is a document that describes

the actions an individual State will take to ensure that its WIA Title

I-financially assisted programs, activities, and recipients are

complying, and will comply, with all requirements imposed by or under

this part.

This section contains the same general requirements as 29 CFR

34.33(a)-(c). References to JTPA have been replaced by references to

WIA, and the references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule. Also, the list of

sections referred to in paragraph 37.54(c)(1) has been expanded to

include a description of each section. In addition, consistent with

plain-language guidelines, the information in Paragraphs 37.54(c)(1)

and (c)(2)(vii) has been presented in outline form to improve its

readability. None of these changes is intended to alter the meaning of

these paragraphs.

The reasons for additional changes in the section are described

below.

(1) 29 CFR 34.33(b)(2) required that the MOA be ``[u]pdated

periodically as required by the Director.'' The parallel provision in

Section 37.54, paragraph (b)(2), requires that the MOA be ``[r]eviewed

and updated as required in Section 37.55.'' The reasons for this change

are described below, in the discussion in this preamble about Section

37.55.

(2) Paragraph 37.54(c) has been reserved to give the Department the

opportunity to later amend the regulation to insert a reference to

guidance that the Director intends to issue regarding the requirements

for MOAs.

(2) Paragraph (d)(2)(i) has been added to clarify that the MOA must

include a system that will permit the Governor to carry out his/her

responsibility of determining whether a grant applicant seeking WIA

Title I financial assistance from the State, if funded, or a training

provider, if selected and/or certified as eligible, is likely to comply

with its nondiscrimination and equal opportunity obligations under WIA

and this part. See Section 37.51.

(3) Paragraph (d)(2)(ii) and its subparagraphs are based on 29 CFR

34.33(c)(2)(i). Language has been added to clarify that the Governor

must monitor the compliance of the State's recipients by conducting

statistical and other quantifiable data analyses of each recipient's

records and data, and to provide the minimum requirements for such

monitoring reviews.

(4) Paragraphs (d)(2)(iii) and (d)(2)(iv) are based on 29 CFR

34.33(c)(2)(ii). They have been rewritten to reflect the requirements

CRC actually imposes with regard to the types of documents listed in

the two paragraphs.

(5) 29 CFR 34.33(c)(2)(iii) required the MOA to include procedures

for ensuring that recipients ``provide accessibility to individuals

with disabilities.'' The corresponding paragraph, paragraph (d)(2)(v),

has been changed to clarify and emphasize that the MOA must include

procedures for ensuring that recipients comply with all of the

requirements of Section 504 and this part with regard to individuals

with disabilities, not just those requirements regarding accessibility.

The Department is particularly interested in receiving comments

regarding this section of the Interim Final Rule.

Section 37.55 When must the Governor carry out his or her obligations

with regard to the Methods of Administration?

Paragraph (a) of this section is similar to 29 CFR 34.33(d), except

that it requires the Governor to develop, implement, and submit its

first WIA MOA within 180 days of either the date on which this Interim

Final Rule is effective, or the date on which the Department gives

final approval to the State's Five-Year Plan, whichever is later. If

the MOA submitted by the State under JTPA satisfies the requirements

listed in Section 37.54, the Governor is required only to submit any

necessary updates and/or to certify that no changes are required, as

described below.

The remainder of this section is intended to improve the MOA's

usefulness as a method for both States and CRC to monitor the

compliance of States and their recipients; to initially evaluate

discrimination complaints filed against those States and recipients;

and to reduce the burden on States and recipients by eliminating

unnecessary complaint investigations and/or compliance reviews.

CRC regards the MOA as a baseline instrument for monitoring the

compliance of States and their recipients. By reviewing a State's MOA,

CRC is able to conduct an initial evaluation of the overall systems and

procedures the State has put in place, without the necessity of an

extensive compliance review. Similarly, if a complaint filed with CRC

alleges that a State's or recipient's nondiscrimination and/or equal

opportunity procedures are

[[Page 61708]]

unlawful or unfair, the Director may simply compare the complaint with

the MOA, to establish whether the procedures described in the complaint

are the same ones described in the document submitted by the Governor.

If CRC has already reviewed those procedures and determined them to be

adequate, the agency may avoid a burdensome and unnecessary complaint

investigation.

In order for the MOA to provide an effective method of monitoring

compliance, however, it is important that CRC have access to current

information regarding a State's practices. The requirements in

paragraphs (b) and (c) are intended to provide that current

information.

Paragraph (b) requires the Governor to ``promptly update'' the MOA

``whenever necessary.'' This paragraph means that whenever, in the

ordinary course of implementing the MOA, the Governor or the State

decides that an amendment to the MOA is appropriate, the Governor must

notify CRC of the amendment. The paragraph does not require the

Governor or the State to provide CRC with an entirely new MOA under

these circumstances. For example, if a State's MOA lists the members of

a particular recipient's EO staff, the State is not required to redo

its entire MOA when there is turnover on the staff. Rather, the

Governor may notify CRC of the change simply by sending a letter

listing the names of the departing and incoming staff members, and the

contact information for the new staffers.

Paragraph (c) requires that every two years, the Governor must

review the MOA and the way in which the State has implemented the

document, and to make any necessary changes. As in paragraph (b), the

Governor is required to notify CRC about those changes alone; he or she

must submit an entirely new MOA to CRC only if he or she decides to

replace the previous MOA completely. If, based on the review, he or she

determines that no changes are necessary, he or she is required merely

to certify to CRC in writing that the previous MOA remains in effect.

If this certification is not required, then each time that the Director

receives a complaint regarding a particular State, CRC will be forced

to contact that State to ask whether its MOA has been changed. In CRC's

view, such repeated inquiries would be more burdensome for States than

requiring certification every two years.

The Department is particularly interested in receiving comments

regarding this section of the Interim Final Rule.

Subpart D--Compliance Procedures

Generally, this subpart contains the same requirements as the

corresponding subpart in part 34. The few circumstances in which

substantive changes have been made are discussed in the descriptions

below of individual sections.

Consistent with plain-language guidelines, the information in this

subpart has been rearranged in a more logical order, and lengthy

sections have been divided into shorter sections treating narrower

topics. The subpart now begins with sections describing the Director's

general authority, and continues with sections describing Compliance

Reviews, Complaint Investigations, Determinations, and Breaches of

Conciliation Agreements. The above changes are not intended to alter

the overall meaning of this subpart, or the meaning of any of its

component sections.

Section 37.60 How does the Director evaluate compliance with the

nondiscrimination and equal opportunity provisions of WIA and this

part?

In general, this section contains the same requirements as 29 CFR

34.40(a). Consistent with plain-language guidelines, the section has

been slightly rewritten and reorganized. Also, references to JTPA have

been replaced by references to WIA. Neither of these changes is

intended to alter the meaning of this section.

The sentence in 29 CFR 34.40(a) that discusses techniques used in

compliance reviews has been moved to Section 37.63, to clarify that in

CRC's actual practice, the techniques discussed are used only in post-

approval compliance reviews.

A sentence has been added to clarify that pre- or post-approval

compliance reviews may focus on one or more specific programs or

activities, or one or more issues within a program or activity. The

Director has the discretion to determine the scope of a particular

compliance review. This addition is intended only to provide notice to

grant applicants and recipients that compliance reviews may be narrow

as well as broad. It does not alter the Director's authority in any

way, but is intended only to clarify the meaning of this section.

Because this section now serves as an introduction to Subpart D, a

sentence has also been added that notes that the Director may also

investigate and resolve discrimination complaints. Again, this sentence

does not alter the Director's authority in any way, and is not intended

to change the meaning of this section.

Section 37.61 Is there authority to issue subpoenas?

This section contains the same requirements as 29 CFR 34.43(g)(4).

Consistent with plain-language guidelines, the section has been

organized slightly differently from the corresponding paragraph in the

JTPA nondiscrimination regulations, and presented in outline form to

improve its readability. Also, references to JTPA have been replaced by

references to WIA.

The section was moved to the beginning of this subpart in order to

clarify that the authority to issue subpoenas extends to compliance

reviews as well as complaint investigations. Again, this change does

not alter the subpoena authority in any way, and is not intended to

change the meaning of this section.

Compliance Reviews

Section 37.62 What are the authority and procedures for conducting

pre-approval compliance reviews?

This section contains the same requirements as 29 CFR 34.40(b),

``Pre-approval reviews,'' with additional material from 29 CFR 34.47.

Differences between this section and the corresponding paragraphs and

section of the JTPA nondiscrimination regulations are described below.

Paragraph 37.62(a): This paragraph describes the circumstances

under which, and the bases upon which, the Director may conduct a pre-

approval compliance review. The paragraph is identical to 29 CFR

34.40(b)(1), with the following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule.

Neither of these changes is intended to alter the meaning of this

paragraph.

Paragraph 37.62(b): This paragraph outlines the Director's

responsibilities when s/he determines that a grant applicant might not

comply with the nondiscrimination and equal opportunity provisions of

WIA and this part. Generally, this paragraph contains the same

requirements as 29 CFR 34.40(b)(2) and (4); it also incorporates

material from 29 CFR 34.47, which requires the Director to notify the

Assistant Attorney General, as well as the grantmaking agency, where a

complaint investigation or compliance review results in a finding of

noncompliance. The latter requirement

[[Page 61709]]

is also contained within the Department of Justice's Title VI

coordination regulations at 28 CFR 42.407(d).

Consistent with plain-language guidelines, this paragraph has been

organized slightly differently from the corresponding paragraphs in the

JTPA nondiscrimination regulations, and has been presented in outline

form to improve its readability. Because the JTPA nondiscrimination

regulations listed these same responsibilities, their inclusion in this

paragraph does not alter the Director's authority in any way, and is

not intended to change the meaning of this paragraph.

In addition, references to JTPA have been replaced by references to

WIA, and the references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule. Neither of these

changes is intended to alter the meaning of this paragraph.

Paragraph 37.62(c): This paragraph describes the Department's

responsibilities where a grant applicant agrees to take remedial or

corrective actions in order to receive WIA Title I financial

assistance. The paragraph is identical to 29 CFR 34.40(b)(3), with the

following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule.

Neither of these changes is intended to alter the meaning of this

paragraph.

Section 37.63 What are the authority and procedures for conducting

post-approval compliance reviews?

Generally, this section contains the same requirements as 29 CFR

34.40(c), ``Post-approval reviews,'' with one paragraph from 34.40(a).

Differences between this section and the corresponding paragraphs of

the JTPA nondiscrimination regulations are described below.

Paragraph 37.63(a): This paragraph outlines the circumstances under

which, and the bases upon which, the Director may conduct a post-

approval compliance review. The paragraph contains the same

requirements as 29 CFR 34.40(c)(1). Consistent with plain-language

guidelines, the list of examples of possible bases for such reviews has

been slightly rewritten to clarify the examples. In addition,

references to JTPA have been replaced by references to WIA. These

changes are not intended to alter the meaning of the paragraph.

Paragraph 37.63(b): This paragraph outlines the procedures for

initiating a post-approval compliance review. The paragraph contains

the same information as 29 CFR 34.40(c)(2), and it incorporates related

material from 29 CFR 34.40(c)(4).

References to ``data'' that a recipient must submit before a post-

approval compliance review have been changed to ``information, records,

and/or data.'' Like other changes described earlier in this Preamble,

this change was made to reflect the growth in computer technology, and

the related expansion of electronic communications; the change was

intended to incorporate a variety of terms that might be used to refer

to material stored in written, electronic, or other forms. Again, this

change does not impose any additional obligations upon recipients; it

was made merely to clarify the paragraph.

In addition, the references to sections in part 34 have been

changed to reflect the numbering of this Interim Final Rule. These

changes are not intended to alter the meaning of the paragraph.

Paragraph 37.63(c): This paragraph contains material from 29 CFR

34.40(a) about techniques used in compliance reviews. As discussed in

Section 37.60 of this preamble, the sentence was moved to this section

to clarify that in CRC's actual practice, the techniques discussed are

used only in post-approval compliance reviews. The reference to off-

site analyses has been deleted because it refers to internal agency

procedure that is more appropriately treated in internal agency

guidelines.

Section 37.64 What procedures must the Director follow when CRC has

completed a post-approval compliance review?

Generally, this section contains the same requirements as 29 CFR

34.40(c)(3). However, the requirement that the Director inform the

recipient of the results of the review within 210 days of the issuance

of the Notification Letter has been deleted. This change was made

because CRC has decided to establish such internal agency time frames

in internal agency guidelines issued by the Director, rather than

through rulemaking.

In addition, consistent with plain-language guidelines, the section

has been slightly rewritten to clarify it. Also, the references to

sections in part 34 have been changed to reflect the numbering of this

Interim Final Rule. These changes are not intended to alter the meaning

of the paragraph.

Section 37.65 What is the Director's authority to monitor the

activities of a Governor?

This section is identical to 29 CFR 34.34(a) and (b), with the

following exceptions:

(1) References to JTPA have been replaced by references to WIA; and

(2) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule.

Neither of these changes is intended to alter the meaning of this

section.

The corresponding paragraphs in the JTPA nondiscrimination

regulations were located in Subpart C (``Governor's

Responsibilities''). The section was moved to Subpart D and included

with procedures about compliance reviews because it deals with the

Director's authority to review documents prepared by and actions taken

by a Governor under this part. This change was not intended to alter

the meaning of the section.

Paragraph (c) of Section 34.34 provided that ``[t]he procedures

contained in [S]ubpart D'' would apply to the Director's monitoring

activities. Because the section has been moved to Subpart D, this

paragraph has become redundant, and has been deleted.

Section 37.66 What happens if a recipient fails to submit requested

data, records, and/or information, or fails to provide CRC with the

required access?

This section contains the same general requirements as 29 CFR

34.41(a). The reference to the ``Directorate'' (the Directorate of

Civil Rights, the previous title of the Civil Rights Center) has been

updated to ``CRC.'' Also, to help readers find the section of the

Interim Final Rule that requires a recipient to provide CRC with access

to sources of information, a reference to that section has been added.

Neither of these changes is intended to alter the meaning of this

section.

In addition, language has been added that specifies that recipients

must submit or provide CRC with access to data, records, and/or

information ``in a timely manner.'' This addition was made to clarify

that the Director may issue a Notice to Show Cause based upon a

recipient's delay in supplying the records, data, information, and/or

access sought by CRC.

Section 37.67 What information must a Notice to Show Cause contain?

This section is identical to 29 CFR 34.41(b), and includes the

first sentence of 34.41(c). References to JTPA have been replaced by

references to WIA. These changes are not intended to change the meaning

of this section.

[[Page 61710]]

Section 37.68 How may a recipient show cause why enforcement

proceedings should not be instituted?

This section is identical to the remainder of 29 CFR 34.41(c), with

the following exceptions:

(1) The references to sections in part 34 have been changed to

reflect the numbering of this Interim Final Rule; and

(2) References to the ``Directorate'' have been updated to ``CRC.''

Neither of these changes is intended to alter the meaning of this

section.

Section 37.69 What happens if a recipient fails to show cause?

This section is identical to 29 CFR 34.41(d), except that the

reference to a section in part 34 has been changed to reflect the

numbering of this Interim Final Rule. This change is not intended to

alter the meaning of this section.

Complaint Processing Procedures

Section 37.70 Who may file a complaint concerning discrimination

connected with WIA Title I?

This section contains the same requirements as 29 CFR 34.43(a).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its readability. This change is not

intended to alter the meaning of this section.

Section 37.71 Where may a complaint be filed?

This section contains the same requirements as 29 CFR 34.43(b).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.

Section 37.72 When must a complaint be filed?

This section contains the same requirements as 29 CFR 34.43(c).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.

Section 37.73 What information must a complaint contain?

This section contains the same requirements as 29 CFR 34.43(d),

except that, for the ease of the reader, the information in the second

sentence of Section 34.43(d)(4)(iii) has been placed in the next

section. Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. This change is not

intended to alter the meaning of this section.

Section 37.74 Are there any forms that a complainant may use to file a

complaint?

This section contains the same requirements as the second sentence

of Section 34.43(d)(4)(iii). Consistent with plain-language guidelines,

the section has been slightly rewritten to improve its clarity. In

addition, for the convenience of the reader, the section now explains

where complainants or their representatives may obtain the forms.

Section 37.75 Is there a right of representation in the complaint

process?

This section contains the same requirements as 29 CFR 34.43(e).

Consistent with plain-language guidelines, the section has been

slightly rewritten to improve its clarity. This change is not intended

to alter the meaning of this section.

Section 37.76 What are the required elements of a recipient's

discrimination complaint processing procedures?

Much of this section is new. It includes most of the general

information contained in 29 CFR 34.42(a), which requires a recipient to

adopt and publish procedures for processing discrimination complaints,

and 34.42(c), which requires the recipient to provide the complainant

with written notice of the resolution of the complaint. (As discussed

earlier in this preamble, the material in 29 CFR 34.42(b), which

charges a recipient's Equal Opportunity Officer with the responsibility

for adopting and publishing these procedures, has been moved to Section

37.25(d), ``What are the responsibilities of an Equal Opportunity

Officer?'' In addition, the information in the third sentence of

Section 34.42(a) has been moved to the next section.) However, this

section includes the following changes.

(1) The period for recipients to process discrimination complaints

has been extended, from 60 to 90 days. See Paragraphs 37.76(a) and

37.76(b)(5). This change has been made in response to concerns raised

by recipients that 60 days was not enough time in which to give a

complaint appropriate attention.

(2) A list of specific elements that must be included in each

recipient's complaint processing procedures has been added. See

Paragraphs 37.76(b) and (c). This change has been made because a number

of recipients have requested more extensive guidance about the steps

that must be taken in order to process a complaint fairly and

effectively. As this section notes, the list is intended only as a

baseline; recipients may include additional elements in their complaint

processing procedures, as long as the procedures allow for resolution

of the complaint within 90 days.

(3) The section requires recipients to adopt procedures for

alternative dispute resolution (ADR). See Paragraph 37.76(c). This

requirement was added in response to input from complainants and

recipients who wanted a more flexible, less adversarial means of

resolving discrimination complaints. (CRC itself is adopting procedures

that will allow complainants and respondents to mediate complaints

filed with the Director. See the discussion of Section 37.89, later in

this preamble.) The section also includes procedures through which any

party to an agreement reached under ADR may complain to the Director if

the agreement is breached. See Paragraph 37.76(c)(2). CRC believes that

complainants and recipients will be more willing to resolve complaints

through ADR if the parties know that they have a means of enforcing the

agreements reached through that procedure. However, in the event that

the ADR process does not resolve a complaint, the section provides that

a complainant may file a complaint with the Director within 30 days of

the date on which the ADR process terminates. CRC is particularly

interested in receiving comments about this new requirement.

(4) The section has given a formal name, ``Notice of Final

Action,'' to the written notification that a recipient must give a

complainant when the recipient has finished processing a complaint.

Because 29 CFR 34.42(c) already required such a written notification,

this change is not a substantive change in the section.

Section 37.77 Who is responsible for developing and publishing

complaint processing procedures for service providers?

Generally, this section contains the same requirements as the third

sentence of 29 CFR 34.42(a). Consistent with plain-language guidelines,

the section has been slightly rewritten to improve its clarity. Also,

JTPA-related terminology (the references to SDA grant recipients and

Substate grantees) has been replaced by WIA-related terminology (the

reference to the LWIA grant recipient). Neither of these changes is

intended to alter the meaning of this section.

The final sentence has been added to the section to clarify that

service providers are obliged to follow the

[[Page 61711]]

procedures adopted and published on their behalf.

Section 37.78 Does a recipient have any special obligations in cases

in which the recipient determines that it has no jurisdiction over a

complaint?

This section contains the same requirements as 29 CFR 34.43(f)(5).

Consistent with plain-language guidelines, the section has been

slightly rewritten and presented in outline form to improve its

readability. Also, references to JTPA have been replaced by references

to WIA. Neither of these changes is intended to alter the meaning of

this section.

Section 37.79 If, before the 90-day period has expired, a recipient

issues a Notice of Final Action with which the complainant is

dissatisfied, how long does the complainant have to file a complaint

with the Director?

This section contains the same general information as 29 CFR

34.43(f)(1). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, references to the

60-day period allowed for processing complaints under the JTPA

nondiscrimination regulations have been replaced by references to the

newly-extended 90-day period allowed under WIA, and the new term

``Notice of Final Action'' has been used to refer to the written

notification that a recipient must provide a complainant when the

recipient has completed its processing of a complaint.

Section 37.80 What happens if a recipient fails to issue a Notice of

Final Action within 90 days of the date on which a complaint was filed?

This section contains the same general information as 29 CFR

34.43(f)(3). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, references to the

60-day period allowed for processing complaints under the JTPA

nondiscrimination regulations have been replaced by references to the

newly-extended 90-day period allowed under WIA, and the new term

``Notice of Final Action'' has been used to refer to the written

notification that a recipient must provide a complainant when the

recipient has completed its processing of a complaint.

This section deals only with a complainant's rights if a recipient

fails to issue a Notice of Final Action within the required period.

Recipients should be aware that in such circumstances, the Director has

the right to take appropriate action against the recipient.

Section 37.81 Are there any circumstances under which the Director may

extend the time limit for filing a complaint with him or her?

This section contains the same requirements as 29 CFR 34.43(f)(4).

Consistent with plain-language guidelines, the section has been

slightly rewritten and presented in outline form to improve its

readability. Also, the reference to a section in part 34 has been

changed to reflect the numbering of this Interim Final Rule, and a

final sentence has been added to clarify and emphasize that the burden

of showing good cause for extending the time limit rests with the

complainant.

Section 37.82 Does the Director accept every complaint for resolution?

This section consolidates information contained in 29 CFR

34.43(g)(1), (g)(5), and (g)(6). Consistent with plain-language

guidelines, the material has been slightly rewritten and presented in

outline form to improve its readability. Also, the information in

Paragraph 37.82(c), explaining that CRC need not investigate a

complaint about a matter that it has already decided, has been added. A

``complaint about a matter that it has already decided'' is a complaint

about the same set of facts that CRC has already considered and decided

in a previous case. This addition does not change CRC's authority in

any way; it is intended only to notify complainants and respondents

about CRC's practices. None of these changes is intended to alter the

meaning of this section.

Section 37.83 What happens if a complaint does not contain enough

information?

Generally, this section contains the same requirements as 29 CFR

34.43(g)(3). Consistent with plain-language guidelines, the material

has been slightly rewritten and presented in outline form to improve

its readability. Also, the provision requiring that a complainant must

submit the requested additional information within 15 days has been

eliminated. This change has been made in order to provide the Director

with the flexibility to require a longer or shorter response period, if

appropriate in a particular case.

Section 37.84 What happens if CRC does not have jurisdiction over a

complaint?

This section contains the same general information as 29 CFR

34.43(g)(5). Consistent with plain-language guidelines, the section has

been slightly rewritten to improve its clarity. Also, the reference to

the ``Directorate'' has been updated to ``CRC.'' Neither of these

changes is intended to alter the meaning of this section.

Section 37.85 Are there any other circumstances in which the Director

will send a complaint to another authority?

Generally, this section contains the same requirements as 29 CFR

34.43(g)(7) and (8), with additional material necessitated by the

requirements of the WIA program. Differences between this section and

the corresponding paragraphs of the JTPA nondiscrimination regulations

are set forth below.

Paragraph 37.85(a): This paragraph generally contains the same

requirements as 29 CFR 34.43(g)(7), except that the requirement that

the Director advise the complainant and the respondent about the

referral has been moved to paragraph (d). In addition, consistent with

plain-language guidelines, the material has been slightly rewritten.

Neither of these changes is intended to alter the meaning of this

paragraph.

Paragraph 37.85(b): This paragraph generally contains the same

requirements as 29 CFR 34.43(g)(8), except that the requirement that

the Director advise the complainant and the respondent about the

referral has been moved to paragraph (d). In addition, consistent with

plain-language guidelines, the material has been slightly rewritten and

presented in outline form to improve its readability. Also, the

reference to JTPA has been replaced by a reference to WIA. None of

these changes is intended to alter the meaning of this paragraph.

Paragraph 37.85(c): The material in this paragraph is new. Under

the One-Stop system established by WIA, CRC may have dual jurisdiction,

with Federal grantmaking agencies other than the Department of Labor,

over complaints that allege discrimination by One-Stop partners

financially assisted by those other grantmaking agencies. This

paragraph sets forth the general procedures that will be used to

determine whether CRC will retain such complaints for processing or

refer them to the other grantmaking agencies for appropriate action in

accordance with the Federal grantmaking agency's applicable

regulations. CRC will enter into Memoranda of Understanding (MOUs) with

the appropriate Federal grantmaking agencies to ensure that complaints

will be referred in accordance with these guidelines. These MOUs, which

will contain more specific

[[Page 61712]]

referral procedures, will be published in the Federal Register. In

addition, the Department encourages local Workforce Investment Boards,

in developing the MOUs required by Section 121(c) of WIA, to include in

those MOUs provisions regarding the appropriate referral of any such

complaints filed at the local level.

Paragraph 37.85(d): The material in this paragraph comes from both

29 CFR 34.43(g)(7) and (8), as noted above. It has been placed in a

separate paragraph to improve the readability of this section.

Section 37.86 What must the Director do if he or she determines that a

complaint will not be accepted?

Generally, this section contains the same requirements as 29 CFR

34.43(g)(6). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. In addition, the

wording referring to circumstances in which a complaint ``will not be

investigated'' has been changed to ``will not be accepted.'' This

change has been made to reflect the addition of the mediation option to

CRC's complaint processing procedures: where a complainant and

respondent agree to mediate the complaint, CRC will conduct an

investigation only if the mediation fails, or if one of the parties

breaches the agreement reached through the mediation. See Section

37.89.

Section 37.87 What must the Director do if he or she determines that a

complaint will be accepted?

Generally, this section contains the same requirements as 29 CFR

34.43(g)(1)(i) and (ii). Consistent with plain-language guidelines, the

material has been slightly rewritten to improve its clarity. In

addition, the following changes have been made:

(1) The reference to the ``Directorate'' has been changed to the

``Director,'' because it is he or she who has the authority to

determine whether a complaint will be accepted.

(2) The Director is now required to notify the grantmaking agency,

as well as the complainant and the respondent, when a complaint is

accepted. This requirement has been added because CRC's experience has

shown that when grantmaking agencies are aware of discrimination

complaints, those complaints are more likely to be resolved

successfully, and recipients are more likely to comply with their

obligations regarding nondiscrimination and equal opportunity.

(3) The Director is also required to provide notice about any

issues over which he or she has not accepted jurisdiction, and the

reasons why those issues have been rejected. This requirement has been

added in order to provide complainants and respondents with reasonable

notice of the Director's determinations about the entire complaint.

Section 37.88 Who may contact CRC for information about a complaint?

Generally, this section contains the same requirements as 29 CFR

34.43(g)(2). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. Also, a second

sentence has been added in order to clarify that the Director has the

authority to determine what information about a complaint should be

released.

Section 37.89 May the Director offer the parties to a complaint the

option of mediation?

This section is new. Like the provisions allowing recipients to

include provisions for ADR in their complaint processing procedures,

this option was added in response to concerns of complainants and

recipients who wanted a more flexible, less adversarial means of

resolving discrimination complaints. CRC is particularly interested in

receiving comments concerning this section.

Determinations

Section 37.90 If a complaint is investigated, what must the Director

do when the investigation is completed?

This section contains information from 29 CFR 34.43(g)(9), (9)(i),

and (9)(ii). Consistent with plain-language guidelines, the material

has been rewritten and reorganized slightly, and presented in outline

form to improve its readability. Also, the Director is now required to

notify the grantmaking agency about his or her determination whether

the respondent has violated the nondiscrimination and equal opportunity

provisions. This requirement was added for the reasons listed in the

discussion of Section 37.87.

Section 37.91 What notice must the Director issue if he or she finds

reasonable cause to believe that a violation has taken place?

This section contains information from 29 CFR 34.43(g)(9)(i).

Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity. Also,

references to sections in part 34 have been changed to reflect the

numbering of this Interim Final Rule. None of these changes is intended

to alter the meaning of this section.

Section 37.92 What notice must the Director issue if he or she finds

no reasonable cause to believe that a violation has taken place?

This section contains information from 29 CFR 34.43(g)(9)(ii).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.

Section 37.93 What happens if the Director finds that a violation has

taken place, and the recipient fails or refuses to take the corrective

action listed in the Initial Determination?

This section contains information from 29 CFR 34.46(a)(1).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.

Section 37.94 What corrective or remedial actions may be imposed

where, after a compliance review or complaint investigation, the

Director finds a violation of the nondiscrimination and equal

opportunity provisions of WIA or this part?

This section contains the same requirements as 29 CFR 34.44. The

material has been slightly rewritten to improve its clarity. Also, the

references to other regulatory sections within part 34 have been

changed to reflect the numbering of this Interim Final Rule, and

references to JTPA have been changed to refer to WIA. None of these

changes is intended to alter the meaning of the section.

Section 37.95 What procedures apply if the Director finds that a

recipient has violated the nondiscrimination and equal opportunity

provisions of WIA or this part?

This section contains the same requirements as 29 CFR 34.45 (a) and

(b). Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity. Some of the

material has been presented in outline form. Also, the references to

other regulatory sections within part 34 have been changed to reflect

the numbering of this Interim Final Rule, and references to JTPA have

been changed to refer to WIA. None of these changes is intended to

alter the meaning of the section.

The section makes reference to a written Conciliation Agreement.

CRC, not the recipient or the Governor, prepares the initial draft of

this

[[Page 61713]]

document. See also the discussion in this preamble about Section 37.97.

Section 37.96 What are the required elements of a written assurance?

This section contains the same requirements as 29 CFR 34.45(c)(1).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. These changes are not

intended to alter the meaning of the section.

Section 37.97 What are the required elements of a Conciliation

Agreement?

Generally, this section contains the same requirements as 29 CFR

34.45(c)(2). Consistent with plain-language guidelines, the material

has been slightly rewritten to improve its clarity. These changes are

not intended to alter the meaning of the section.

As noted above in the discussion of Section 37.95, CRC, not the

recipient or the Governor, prepares the initial draft of the

Conciliation Agreement.

Section 37.98 When will the Director conclude that compliance cannot

be secured by voluntary means?

This section contains the same requirements as 29 CFR 34.46(a).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, the references to

other regulatory sections within part 34 have been changed to reflect

the numbering of this Interim Final Rule. These changes are not

intended to alter the meaning of the section.

Section 37.99 If the Director concludes that compliance cannot be

secured by voluntary means, what actions must he or she take?

This section includes information from 29 CFR 34.46(b) (1), (2),

and (3). The subparagraphs from Paragraph 34.46(b)(1) that describe the

required elements of a Final Determination have been moved to the next

section. Also, the material in this section has been slightly rewritten

to improve its clarity. Neither of these changes is intended to alter

the meaning of this section.

Section 37.100 What information must a Final Determination contain?

This section contains the same requirements as 29 CFR 34.46(a) and

(b). Consistent with plain-language guidelines, the material has been

rewritten and reorganized slightly to improve its clarity, and the

references to other regulatory sections within part 34 have been

changed to reflect the numbering of this Interim Final Rule. In

addition, in Paragraph 37.100(f)(1), language has been added to clarify

that the Department may withhold a grant applicant's or recipient's WIA

Title I-funded Federal financial assistance in whole or in part. This

change does not expand the Department's authority; it has been added

solely to provide recipients with notice of the Department's actual

practice.

Section 37.101 Whom must the Director notify of a finding of

noncompliance?

Generally, this section contains the same requirements as 29 CFR

34.47. Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, language has

been added to clarify that the Director will notify the grant applicant

or recipient, as well as the grantmaking agency and the Assistant

Attorney General. This change has been made to reflect the Director's

actual practice and the requirements of the preceding sections.

Breaches of Conciliation Agreements

Section 37.102 What happens if a grant applicant or recipient breaches

a Conciliation Agreement?

This section contains the same requirements as 29 CFR 34.48(b). The

phrase ``through the Governor or by other means'' has been eliminated

as redundant. This change is not intended to alter the meaning of this

section.

Section 37.103 Whom must the Director notify about a breach of a

Conciliation Agreement?

This section contains the same requirements as 29 CFR 34.48(c).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, the Director is

now required to notify the grantmaking agency, for the reasons listed

in the discussion of Section 37.87.

Section 37.104 What information must a Notification of Breach of

Conciliation Agreement contain?

This section contains the same requirements as 29 CFR 34.48(d).

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. In addition, the references

to other regulatory sections within part 34 have been changed to

reflect the numbering of this Interim Final Rule. None of these changes

is intended to alter the meaning of the section.

Section 37.105 Whom must the Director notify if enforcement action

under a Notification of Breach of Conciliation Agreement is commenced?

This section contains the same requirements as 29 CFR 34.48(e).

Consistent with plain-language guidelines, the material has been

slightly rewritten and presented in outline form to improve its

readability. These changes are not intended to alter the meaning of the

section.

Subpart E--Federal Procedures For Effecting Compliance

Section 37.110 What enforcement procedures does the Department follow

to effect compliance with the nondiscrimination and equal opportunity

provisions of WIA and this part?

This section contains the same requirements as 29 CFR 34.50.

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to JTPA

have been changed to refer to WIA, and references to other regulatory

sections within part 34 have been changed to reflect the numbering of

this Interim Final Rule. None of these changes is intended to alter the

meaning of the section.

Section 37.111 What hearing procedures does the Department follow?

This section contains the same requirements as 29 CFR 34.51.

Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to another

regulatory section within part 34 have been changed to reflect the

numbering of this Interim Final Rule, and the current address of the

Office of Administrative Law Judges has been provided for the

convenience of the reader. None of these changes is intended to alter

the meaning of the section.

Section 37.112 What procedures for initial and final decisions does

the Department follow?

This section contains the same requirements as 29 CFR 34.52(a) and

(b). Consistent with plain-language guidelines, the material has been

slightly rewritten to improve its clarity. Also, references to JTPA

have been changed to refer to WIA, and references to other regulatory

sections within part 34 have been changed to reflect the numbering of

this Interim Final Rule. None of these changes is intended to alter the

meaning of the section.

[[Page 61714]]

Section 37.113 What procedure does the Department follow to suspend,

terminate, withhold, deny or discontinue WIA Title I financial

assistance?

Generally, this section contains the same requirements as 29 CFR

34.53(a). Consistent with plain-language guidelines, the material has

been slightly re-punctuated to improve its clarity. Also, references to

JTPA have been changed to refer to WIA, and references to other

regulatory sections within part 34 have been changed to reflect the

numbering of this Interim Final Rule. None of these changes is intended

to alter the meaning of the section.

In addition, language has been added to the section to clarify that

the Department may withhold a grant applicant's or recipient's WIA

Title I financial assistance in whole or in part, as explained in the

discussion of Section 37.100.

Section 37.114 What procedure does the Department follow to distribute

WIA Title I financial assistance to an alternate recipient?

This section is identical to 29 CFR 34.53(b), except that the

reference to JTPA has been changed to refer to WIA. This change is not

intended to alter the meaning of the section.

Section 37.115 What procedures does the Department follow for post-

termination proceedings?

This section contains the same general requirements as 29 CFR

34.52(c). Consistent with plain-language guidelines, the material has

been slightly rewritten to improve its clarity. Also, references to

JTPA have been changed to refer to WIA, and references to other

regulatory sections within part 34 have been changed to reflect the

numbering of this Interim Final Rule. None of these changes is intended

to alter the meaning of the section.

In addition, the sentence providing that ``[r]estoration to

eligibility may be conditioned upon the grant applicant or recipient

entering into a consent decree'' has been deleted, in order to clarify

that the grant applicant or recipient must actually bring itself into

compliance with the nondiscrimination and equal opportunity provisions

of Section 188 and this part before being restored to eligibility for

WIA Title I financial assistance.

IV. Regulatory Procedures

Executive Order 12866

The Department of Labor has determined that this Interim Final Rule

is not a ``significant regu

This text is long and has been trimmed here. Open the source document for the complete record.