Home » 2009 Issues » October 14, 2009 » LAB-29-09-00004-A Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability
LAB-29-09-00004-A Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability
10/14/09 N.Y. St. Reg. LAB-29-09-00004-A
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 41
October 14, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF LABOR
NOTICE OF ADOPTION
I.D No. LAB-29-09-00004-A
Filing No. 1153
Filing Date. Sept. 29, 2009
Effective Date. Oct. 14, 2009
Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendments of sections 601.3, 601.4, 601.5, 601.6, 601.7, 601.8, 601.9, 601.11 and 601.12 of Title 12 NYCRR.
Statutory authority:
Labor Law, section 811; and 29 CFR 29
Subject:
Enhanced administration of the State's apprenticeship training program and enhanced program sponsor accountability.
Purpose:
To strengthen the Apprenticeship Training Program in New York, and to ensure a well-trained, skilled workforce for the future.
Text or summary was published
in the July 22, 2009 issue of the Register, I.D. No. LAB-29-09-00004-EP.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Kevin E. Jones, New York State Department of Labor, Room 509, Building 12, State Office Campus, Albany, NY 12240, (518) 457-4380, email: nysdol@labor.state.ny.us
Assessment of Public Comment
The Department received comments from seventeen (17) individuals representing twelve (12) different organizations during the comment period following publication of the Notice of the Emergency/Proposed Rule in the State Register on July 22, 2009. The majority of those offering comments were identified as labor organizations, employers, employer associations or apprenticeship coordinators who sponsor registered apprenticeship programs. One submission came from a Designated Local Education Agency (DLEA) responsible for coordinating related instruction for apprenticeship programs.
While most of the comments expressed general support for the changes, noting the regulations were likely to improve performance standards, consistency in administration and in enforcement of standards for apprenticeship programs, each of the commentators offered differing views on the impact of the regulations by requesting clarification, expressing reservations or, in some cases, disapproval of certain aspects of the Proposed Rule changes. Many expressed the view that more rigorous enforcement of regulations was the most efficient way of improving registered programs, while only one commentator proposed that regulation should be reduced rather than expanded. Changes in the Proposed Rule to apply gender neutrality and consistency in terminology and usage either received no comment or were expressly endorsed by commentators. All comments received were reviewed and assessed in accordance with the provisions of the State Administrative Procedure Act.
§ 601.3 Definitions.
Subsection (g) was added to include a definition for the use of electronic media in providing related instruction to apprentices, and adopts the language used in the amended federal regulations to expand the methods of providing technical instruction. Previously, 29 CFR Part 29.5(b)(4) provided for classroom instruction through traditional means, while no specific method of instruction was authorized by Department regulations. The definition of electronic media was added to keep pace with technological advances and allow more flexibility in meeting the educational needs of apprentices.
Several commentators expressed strong approval for the use of electronic media, while some suggested that it should be limited to no more than 10% of the required instruction and should be closely monitored. Two commentators urged the use of distance learning technology already in use in educational institutions, while one comment opposed its use, believing it would have a negative impact on program quality.
Response:
While the Department recognizes the validity of these concerns, the use of electronic media in providing instruction is necessary to align with technological advances taking place in the delivery of instruction in all aspects of education. Under current law, provisions contained in Article 23 and Part 601 of the Department's regulations require approval and coordination of related instruction with the New York State Department of Education, which provides its experience and expertise in overseeing all new methods of instruction. Since the extent to which sponsors incorporate electronic media into their programs will depend upon the objectives of the particular trade and available resources, no limitation has been placed on its use. The final Rule is adopted without change.
§ 601.4 Eligibility and procedure for registration.
Eligibility requirements have been amended by re-emphasizing the sponsor's responsibility to comply with Department standards for registered programs and the development of an Affirmative Action Plan satisfying the requirements of Part 600 of the Department's regulations. The Rule also requires the Department to post new trades and apprenticeship program applications on its website for a period of thirty (30) days for public comment. Comments received within that time period may be submitted by regular mail or e-mail, and will be considered in evaluating the sponsor's application and eligibility to sponsor a registered apprenticeship program.
A majority of the comments received approved of the Department's emphasis on improving program performance by holding sponsors accountable, and suggested closer monitoring of programs would provide more consistency and better quality. One comment objected to any rejection of a program that fails to meet Affirmative Action standards without providing more definitive criteria. Seven commentators offered strong approval for posting new program applications on the Department's website for public comment, but suggested that a forty-five (45) day period was more appropriate.
Response:
The revised rules recently adopted by the federal government, and made applicable to State agencies administering their own programs, emphasized the need to improve program quality and accountability. The Rule adopted implements these objectives and enhances consistency in enforcement by stricter adherence to Department standards for performance and promoting equal opportunity in the State's apprentice workforce. Part 600 of the Department's Regulations sets forth the standards for submitting Affirmative Action Plans and equal opportunity objectives in accordance with well-established constitutional principles for promoting non-discrimination and equal opportunity.
Posting proposals for new trades and sponsor applications increases public awareness of changes and the availability of new programs in the regulated community. A thirty day time period was deemed sufficient to allow for the submission of public comments. The Rule is adopted as proposed.
§ 601.5 Standards for apprenticeship programs.
The Rule contains new provisions for enhancing program performance by adding subsections (d); (e); (f); (g); (h) and (i) to Section 601.5, re-enforcing the Department's oversight of apprenticeship programs.
Subsection (d) requires sponsors to ensure that apprentices maintain records documenting task rotation and acquired skills by using traditional "Blue Books" or some other authorized form.
Subsection (e) provides a two-year probationary period for newly approved with identifiable criteria used in determining final approval. The Rule also provides that during the probationary period, sponsors will not be permitted to submit applications for new apprenticeship programs.
Subsection (f) requires sponsors who fail probation to wait at least one year before re-applying for a program.
Subsection (g) applies to existing apprenticeship programs, by requiring recertification at or about the time the program completes its first training cycle, and at least every five years thereafter. The Rule also requires group non-joint and group-joint sponsors to identify their member signatories, and provide the Department with certain identifying information.
Subsection (h) affirms the continuing obligation of group non-joint and group-joint sponsors to provide the Department with updated information on their member signatories, while both subsection (g) and (h) require that group non-joint and group-joint sponsors submit the names and identifying information on their member signatories in an electronic format.
Subsection (i) is added to allow sponsors to provide related instruction to apprentices in person or by electronic media.
Most commentators responding agreed that regular and consistent evaluation of an apprentice's progress through documentation of task rotation using "blue books" or some other means would improve program performance. One comment suggested that supervisory approval should be limited to a monthly basis, while another stated that the Department should provide time frames for approval of alternate methods of documentation.
Several comments were received about the imposition of a probationary period for new apprenticeship programs. Three commentators proposed eliminating the probationary period entirely, suggesting it would limit the sponsor's ability to develop a skilled workforce, while one comment stated that a one-year probationary period should be sufficient to evaluate a program's performance. Four comments were received objecting to the limitation on a sponsor's eligibility to submit applications for new programs while on probation, it that it could impair the creation of jobs, especially in rural areas; limit a contractor's ability to bid on municipal projects; or discourage sponsors from developing new programs.
Several comments questioned the need for re-certification of existing programs in view of the Department's regular on-site visits, while some expressed concerns over how the process of re-certification would be implemented. One commentator stated that reviews should be based on specific criteria, which is published and available to the regulated community. One comment proposed that identifying information about a sponsor's signatories should not be required, while another observed that compiling such information could be difficult for some sponsors.
Response:
Task Rotation:
This Rule is not a change in policy, but rather amplifies its importance, since "Blue Books" have always been used to document task rotation. Alternative methods of documenting an apprentice's work progression allow sponsors to use electronic records or some other means of fulfilling this responsibility. Earlier comments to the Proposed Rule change requested more flexibility and innovative approaches in measuring an apprentice's progress. In response, this Rule allows sponsors to be innovative in their approach to document task rotation.
The requirement that signatory employers participate in the documentation of task rotation re-enforces Department policy emphasizing the obligation of sponsors and their signatories to comply with program standards, while the time frame for supervisory approval sets a measurable standard for compliance. The Rule is adopted as proposed.
Two-Year Probationary Period for New Programs:
Various alternatives were considered for the probationary period, including the one-year period adopted by USDOL, as set forth in federal standards contained in 29 CFR 29.5(8). Since apprenticeship programs average 48 months to complete, it was determined that a two-year probationary period would provide the optimal basis for an evaluation of a new sponsor's ability to train and instruct apprentices, and is consistent with the Department's efforts to monitor registered programs more closely to improve their overall performance. While a number of comments suggested the limitation on new registrations during the probationary period would impair job growth and discourage sponsors from implementing new programs, the Department notes that sponsors are not limited in the number of new programs they can submit at one time. The Rule is adopted as proposed.
Recertification of Apprenticeship Training Programs:
The Rule providing for recertification of all apprenticeship programs at least every five years was proposed to align with the federal mandate, contained in 29 CFR 29(3)(h), requiring State agencies administering apprenticeship programs to conduct periodic reviews of their existing programs to ensure their quality and conformity to apprenticeship standards. The requirement that sponsors provide the Department with identifying information concerning member signatories ensures the Department has current and accurate information on programs, providing better oversight of the program's quality and performance, and promotes the Department's objectives in reducing paperwork and costs to sponsors. While some comments criticized the lack of objective criteria for recertification, this Rule does not impose any new requirements on sponsors, but rather, recognizes the sponsor's continuing obligation to conform to program standards. Notice is provided to programs that may be deficient, with a time frame for corrective action if appropriate. The Rule is adopted as proposed.
§ 601.7 Voluntary and formal deregistration of registered programs.
Subsection 601.7(d) is added to reflect department policy that a program that has not had a registered apprentice for a period of twelve consecutive months is deemed to have voluntarily deregistered its program. Subsection (d)(2) allows an program that may be subject to deregistration for not having had a registered apprentice to request the Department to place it on "Inactive" status for a period up to twelve months.
The Department received six comments on this Rule, including two calling for its elimination in that it might allow transient programs to benefit from public work projects without a commitment to long-term development of the State's workforce, or discourage sponsors in rural areas from participation in apprenticeship programs. Other comments suggested the Department should provide thirty days notice to sponsors subject to deregistration under this provision.
Response:
The Department's long-standing policy has been that programs designed for the development of a skilled workforce by training and instructing apprentices must continue to employ apprentices if it is to remain viable. Newly adopted federal regulations set forth in 29 CFR Part 29 have similarly recognized that only those programs employing apprentices meet performance standards. While there may be periods of time when an employer is required to reduce its workforce because of lack of work or other economic factors, the objectives of registering an apprenticeship program cannot be met if it remains inactive for an indeterminate period of time. This Rule meets legislative objectives and maintains program standards, while providing an alternative within a reasonable time frame for those programs suffering from inactivity. The Department has administratively determined that it shall give sponsors who meet the 12 month time limit 60 days notice before they are deemed voluntarily deregistered. The Rule is adopted as proposed.
