LAB-29-09-00004-EP Enhanced Administration of the State's Apprenticeship Training Program and Enhanced Program Sponsor Accountability

7/22/09 N.Y. St. Reg. LAB-29-09-00004-EP

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 29

July 22, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. LAB-29-09-00004-EP

Filing No. 758

Filing Date. Jul. 02, 2009

Effective Date. Jul. 02, 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:

Proposed Action:

Amendment of Part 601 of Title 12 NYCRR.

Statutory authority:

Labor Law, section 811; 29 CFR 29

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The Rule enhances consistency in administration of the State's Apprenticeship Training Program, stakeholder participation in program approval, and program sponsor accountability that will ensure a well-trained workforce for the state's future.

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 ensure a well-trained, skilled workforce for the future.

Substance of emergency/proposed rule (Full text is posted at the following State website:www.labor.state.ny.us):

Section 601.3(d)(4) of the regulations of the Commissioner of Labor is amended as follows:

(4) involves manual, mechanical or technical skills and knowledge which ordinarily requires a minimum of 4,000 hours of work and training, which hours may include the time spent at related instruction, except that at the discretion of the commissioner, a new [program] trade may require a minimum of 2,000 hours if the commissioner finds that the particular trade can be learned within such time;

Section 601.3 of the regulations of the Commissioner of Labor is amended by adding new subdivision (g) as follows:

(g) Electronic media means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and include, but are not limited to, electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic media and/or interactive distance learning.

Section 601.4 of the regulations of the Commissioner of Labor is amended by adding a new subdivision (i) as follows:

(i) A written public comment period is required for all proposed trades and new apprenticeship program applications. A list of all proposed trades and new apprenticeship program applications will be posted on the Department's website for a minimum period of 30 calendar days. The posting shall include the United States postal and e-mail addresses to which comments may be submitted and the last date by which any public comment must be received for each application or proposed trade. All comments must be submitted in writing and must include: the name, title, and organization name, if applicable, of the party submitting the comment(s). Comments may be submitted via mail or e-mail. Comments received will be considered as part of the Department's review of the application or proposed trade in question. Nothing in this section shall be construed as creating an entitlement on the part of the party submitting public comment to further participation in the deliberation or determination regarding the application for apprenticeship program or trade except as deemed appropriate by the Department.

The first un-numbered paragraph of Section 601.5 of the regulations of the Commissioner of Labor is amended as follows:

No apprenticeship training program shall be registered or recertified unless the commissioner determines that the program meets all the following standards prescribed for an apprenticeship program:

Section 601.5(b) of the regulations of the Commissioner of Labor is amended as follows:

(b) The program must contain the equal opportunity pledge prescribed in part 600 of this title and, in programs having [more than] five or more registered apprentices:

Section 601.5(c), paragraphs (2) and (8) of the regulations of the Commissioner of Labor is amended as follows:

(2) the term of apprenticeship [, which] in a trade shall be not less than two years or 4,000 hours, consistent with training requirements [as] established by industry practice as determined by the commissioner, except that, at the discretion of the commissioner, the term of apprenticeship in a [new program] trade [shall] may be established as not less than one year or 2,000 hours if the commissioner finds after review of written substantiation of the sponsor and the recommendation of the Apprenticeship Council that the particular trade [can] may be learned within such time;

(8) the sponsor's statement that [he] the sponsor will comply with applicable Federal, State and local occupational safety and health standards, including [his] the sponsor's willingness to provide adequate and safe equipment and facilities for training and supervision, and safety training for apprentices on the job;

Section 601.5 of the regulations of the Commissioner of Labor is amended by adding subdivisions (d), (e), (f), (g), (h), and (i) as follows:

(d) All sponsors of apprenticeship training programs, and their signatories, if any, are required to ensure that each of their apprentices maintains a records that documents task rotation and the skills acquired through the program. The apprentice must maintain this record in a format and in a manner approved by the New York State Department of Labor. The apprentice's Blue Book is an acceptable method of recording task rotation and acquisition of skills through the program. Any alternative method of recording task rotation and skills acquisition shall be submitted to the New York State Department of Labor by the program sponsor for approval prior to implementing its use by apprentices. The apprentice's immediate supervisor is required to verify that the information contained in the record is accurate and shall do so by signing the record at least weekly.

(e) Newly approved apprenticeship programs must undergo a two year probationary period. Sponsors of newly approved programs will be advised that their programs are being approved contingent upon successful completion of the probationary period. During the probationary period, a sponsor may not submit any new apprenticeship program applications.

(1) Factors considered during the probationary period include the program sponsor's and signatories' compliance to the satisfaction of the Department with the following:

(i) The continuous enrollment of apprentice(s);

(ii) The payment of wages as specified in the apprenticeship agreement;

(iii) Acceptable and verifiable documentation of task rotation and skill development;

(iv) Acceptable and verifiable documentation of participation in related instruction;

(v) The provision of proper supervision;

(vi) The provision of a safe work environment;

(vii) The terms and conditions/provisions as indicated on the Apprentice Training Program Registration Agreement (Form AT10)

(viii) The provisions of Labor Law, Article 23 and 12 NYCRR Parts 600 and 601; and

(ix) Articles 8 and 9 of the Labor Law, the Workers' Compensation Law, and any other Federal or State laws governing the terms and conditions of employment.

(2) Probation Review Options:

(i) After a review of the new program's performance during the probationary period, the sponsor will be notified whether it:

(a) Passed probation; or

(b) Will have its period of probation extended for a period of no more than one year; or

(c) Failed probation.

(ii) A sponsor of a program that has had its probation extended pursuant to subdivision (e)(2)(i)(b) of this section, or that has failed probation will be informed of the reasons why this decision was made. A sponsor whose program has been placed on an extended probation will be required to submit a proposed corrective action plan that addresses the deficiencies identified in the notice and a proposed time frame for its implementation. Both components of the proposed corrective action must receive New York State Department of Labor approval.

(iii) A sponsor whose program fails probation may file a written appeal of the decision by sending a letter to the commissioner setting forth its arguments why the sponsor's program should not have failed probation.

(f) A sponsor who fails probation will not be permitted to reapply for registration of any apprenticeship program for a period of one year. This period additionally applies to applications for registration of any apprenticeship program by any successor or substantially owned-affiliated entity, as those terms are defined in Labor Law section 220.

(g) All Apprentice Training Program sponsors will undergo a recertification process for each program at or about the time that the program completes its first training cycle following program certification, and at least every five years thereafter.

(1) Each sponsor seeking recertification and all applicants for new apprenticeship programs shall complete a new Apprentice Training Program Registration Agreement (Form AT-10), Sponsor Information Sheet (Form AT-9) and such other information as the commissioner shall deem appropriate for each of their programs.

(i) Simultaneously, every applicant for or sponsor of a Group Joint or Group Non-Joint program must submit a current list of program signatories' names, addresses, and Federal Employer Identification Numbers or Unemployment Insurance Employer Numbers in an electronic format as specified by the New York State Department of Labor.

(ii) The program sponsor must provide assurances in writing to the New York State Department of Labor that the sponsor will hold all signatories to the standards of their Apprentice Training Program Registration Agreement with the New York State Department of Labor.

(2) After a review of the sponsor's performance during the period prior to recertification, the sponsor will receive notification that:

(i) The sponsor's Apprenticeship Training Program has been renewed; or

(ii) The sponsor was found to have committed the violations specified, and is required to submit to the New York State Department of Labor a proposed Corrective Action Plan which addresses the deficiencies identified in the notice and a proposed time frame for the Plan's implementation. Both components of such Plan require Department approval. Formal deregistration will be pursued only if corrective action is not approved by the Department; or the sponsor has not taken the approved corrective action to resolve all issues within a reasonable period of time when compared to the approved time frame, as determined by the Department; or

(iii) The sponsor's Apprenticeship Training Program has been recommended for deregistration and deregistration proceedings will be initiated.

(h) Inter-Registration/Recertification Signatory Reporting Requirements.

All sponsors of group-joint and group non-joint programs must provide the Department with notification when an employer associates with, or disassociates itself from, a program, and must do so within ninety (90) days time. Such notification must include the employer's name, address, and either the employer's Federal Employer Identification Number (FEIN) or Unemployment Insurance Employer Number in an electronic format, as specified by the Department. Employers are considered to be associated with a program even if such association is through some intermediary organization. Employer inactivity in a program shall not, in and of itself, constitute disassociation.

(i) Related Instruction may be provided in person or via electronic media. All Related Instruction providers must be identified on an AT-8 Form and approved by the State Department of Education.

Section 601.7 of the regulations of the Commissioner of Labor is amended by adding a sub-section (d), as follows:

(d) Programs With No Apprentices:

(1) Any program, except for programs operated by the State Department of Correctional Services, that has not had an apprentice registered with the New York State Department of Labor for a period of twelve (12) consecutive months shall be deemed to have been voluntarily deregistered by its sponsor. The Department will follow up such deregistration with a letter acknowledging that the program has been voluntarily deregistered. The letter will include the effects that such deregistration may have on an employer. In order for a sponsor to re-register a program which was voluntarily deregistered, the sponsor must reapply and meet all the requirements contained in Article 23 and Parts 600 and 601.

(2) Within sixty (60) days before the conclusion of the twelve month period referred to in subdivision (1), a sponsor, who would otherwise be "deemed to have been voluntarily deregistered," may request that its program be placed in inactive status (Inactive Program).

(i) The commissioner, in his/her discretion may grant such status only to sponsors found to be in compliance with Article 23, Parts 600 and 601, and other State and Federal laws for the protection of workers.

(ii) If granted, inactive status shall run from the end of the twelve month period referred to in subdivision (1).

(iii) An employer who is associated with an Inactive Program shall not be deemed to have a registered New York State apprentice training program for purposes of work performed pursuant to Articles 8, 8A, and 9 of the Labor Law under that program.

(iv) An Inactive Program shall be deemed reactivated upon:

(a) The registration of an apprentice by filing form AT-401;

(b) The filing of newly updated AT-9 and AT-10 forms, and such other form(s) as the commissioner may require, by the sponsor; and

(c) The review and approval of such forms by the Department.

(v) After a period of twelve (12) months of inactive status, inactive programs will be deemed voluntarily deregistered by its sponsor.

Sections 601.4(a)(1), 601.4(b); 601.6(k); 601.7 subsections (b), (b)(2), and (c)(2); 601.8; 601.9; 601.11(e); and 601.12 of the regulations of the Commissioner of Labor are amended for gender neutrality and to make minor, corrective, non-substantive changes.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 29, 2009.

Text of rule and any required statements and analyses may be obtained from:

Maria Colavito, New York State Department of Labor, Room 508, Building 12, State Office Campus, Albany, NY 12240, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Kevin E. Jones, New York State Department of Labor, Room 509, Building 12, State Office Campus, Albany, NY 12240, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Article 23, Section 811.1 (j) of New York State Labor Law authorizes the Commissioner of Labor to adopt rules and regulations for the operation of apprenticeship programs in New York State in accordance with the standards set forth in Section 815. Section 812 recognizes the New York State Department of Education as the entity responsible for t he oversight and approval of related instruction for apprenticeship programs. Consistent with the authority conferred by New York State Education Law Article 5, Section 207, Section 3610, authorizes the allocation of state funds for the development of training and instructional programs for apprentices in registered apprenticeship programs. Regulations adopted by the Department of Education (8 NYCRR Part 160), outline a curriculum for Designated Local Educational Agencies (DLEA) to provide apprentice training and instruction, primarily through the Apprenticeship Related Supplemental Instruction Program (ARSIP), in counties throughout the state. To implement this legislation, Part 601 of the Regulations (12 NYCRR Part 601) was promulgated, and is being amended by this proposal.

I In addition, under authority granted by the National Apprenticeship Act of 1937 [29 U.S.C. 50], the New York State Department of Labor (the Department) is recognized by United States Department of Labor (USDOL) Office of Apprenticeship as New York's Apprenticeship Agency, responsible for approving, registering, and supervising apprenticeship programs. By adopting these regulations the Department ensures that its apprenticeship programs conform to or exceed the federal program standards outlined in 29 CFR Part 29.

2. Legislative objectives:

Labor Law Article 23, Section 810 makes it the public policy of the State of New York to develop sound apprenticeship training standards and to encourage employers and labor to institute apprenticeship programs as a preferred method of training and preparing workers in New York. Through supervised training and education, apprenticeship programs develop skilled workers and help to meet the need for productive workers in the state's labor force. These amendments fulfill these legislative objectives and strengthen the Apprenticeship Training Program by bringing employers and labor together in a program designed to provide high quality on-the-job training and related instruction, increase participation in the state's skilled workforce, and reaffirm and clarify accountability of program sponsors.

3. Needs and benefits:

On August 28, 2007, former Governor Eliot Spitzer placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the State's Apprenticeship Training Program was conducted. This action was taken in an effort to overhaul the Program, which had been "diverted from its initial purpose" (Spitzer, Press Release, August 28, 2007). Apprenticeship programs have a long tradition, and are established in order to assist employers and/or unions in providing workers with the essential skills necessary to practice their trade through hands-on work and classroom lessons. In recent years, many programs have evidenced notable inconsistencies in their instruction, promotion, and supervision of apprentices, yielding low graduation rates.

Two independent reviews were conducted, an internal review - the Process Mapping Report, and an external review conducted by Coffey Consultants. These two documents are available on the Department's website: http://www.labor.state.ny.us/apprenticeship/apprenticereports.shtm. These reviews sought input from various stakeholders and partners as well as Apprenticeship Training Program staff. Both the internal and external reviews echoed common themes and consistent recommendations to ensure the availability of a well-trained, skilled, experienced workforce. Those themes included the need for greater stakeholder involvement in the registration process, increased consistency in program implementation, and increased accountability by program sponsors to ensure the quality and effectiveness of apprenticeship programs. A number of significant recommendations which surfaced from the internal and external reviews are reflected in these regulatory amendments.

This proposal adds a new subsection (i) to Section 601.4 requiring lists of proposed trades and lists of applications for new apprenticeship programs be posted on the Department's website for a minimum of thirty days. This will allow for a public comment period, providing an opportunity for the regulated community to provide comments on all new program applications and proposed trades initiated in New York State.

The proposal also adds new subsections (d); (e); (f); (g); (h) and (i) to Section 601.5, re-enforcing the Department's oversight of apprenticeship programs. Section 601.5(d) of the proposed regulations requires sponsors to ensure that apprentices maintain records that document task rotation and acquired skills. The use of traditional "Blue Books" or other forms of documentation of task rotation will ensure that apprentices are being rotated through all aspects of their work process resulting in a skilled workforce with portable credentials. This is not a change in policy, but rather simply amplifies its importance. The addition of alternative methods of documenting an apprentice's work progression allows sponsors to request approval of electronic records or some other means of fulfilling this responsibility.

The two-year probationary period contained in Section 601.5(e) for newly approved programs will allow for closer oversight of the sponsors' compliance with apprenticeship standards and facilitate the removal of programs that do not measure up. Factors considered prior to final approval of registration are defined, and sponsors are apprised of the options available to the Department at the conclusion of the probationary period, including allowing sponsors of deficient programs to offer a plan of correction. 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 following certification, and at least every five years thereafter. If needed, program sponsors who are deficient may be required to implement corrective action plans. The recertification process also provides sponsors an opportunity to ensure the Department has current and accurate information on their programs by requiring submission of a new registration form (Form AT-10) and a Sponsor Information Sheet (Form AT-9). In addition, consistent with federal and state case law, as well as Department policy, the proposed rule requires group non-joint and group-joint sponsors to identify their member signatories, and provide the Department with their names, addresses, and either their Federal Employer Identification Number or their NYS Unemployment Insurance Employer number in order to verify their compliance with applicable state and federal labor laws and regulations. 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. 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 in order to permit faster, efficient, and economical verification.

Section 601.5(i) is added to allow sponsors to provide related instruction to apprentices in person or by electronic media, provided it is approved by the State Department of Education. The term "Electronic media" is defined in a new subsection 601.3(g) to encompass a broad range of technology consistent with the definition contained in the federal rules which the Department is required to adopt by December 31, 2010.

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 to be deregistered. The new regulations deem such programs to have voluntarily de-registered, saving the Department the time and expense of undergoing the formal process of deregistration. Because the deregistration is voluntary, programs deregistered in such manner may apply for recertification immediately, if they so choose. The regulations exempt State Department of Corrections programs from this requirement. Due to comments from the public concerning the effects the regulation might have on small programs, especially during significant economic downturns, we added the ability to deactivate the program for up to one extra year with Department approval.

Section 601.8 is amended to reflect federal and state case law precedent and to express Department policy that sponsors of an involuntary program deregistration are barred from applying for another program for a period of three years.

Additional amendments to a number of sections clarify the meanings of several terms and add gender neutral revisions to the regulations.

This proposed rule includes additional changes to the Emergency Regulations filed on October 15, 2008 and January 12, 2009. Additional changes were made to align with USDOL's new apprenticeship regulations (29 CFR Part 29, effective December 29, 2008) and to address the public comments received by the Department.

4. Costs:

Costs to Employers and Labor:

Apprenticeship Training Programs cost businesses very little because the participants work while they learn. Because the apprentices are learning while they work, employers are allowed to pay apprentices lower wages then their journeyman workers and these wages are factored into the bids these employers submit to win projects. Further, having an apprentice training program allows construction companies to bid many more public work projects than those that are open to all bidders.

Sponsors incur only the costs associated with classroom learning. In programs jointly sponsored with an organized labor union and governed by a collective bargaining agreement, related instruction costs are frequently covered by the payment of dues, or deferred by the union itself. In addition, although minimal costs are incurred in the administration and operation of an Apprenticeship Program, this proposal will not result in any significant increase in costs to program sponsors. Additional costs related to the amount of time and resources needed to comply with the provisions of the proposal will be contingent upon the size of the program and the complexity of any corrective action issues.

Further, many of these changes were called for by the regulated community itself.

At present, apprenticeship program sponsors are given the option of registering, administering, and monitoring their programs using conventional printed forms, i.e. Blue Books, that have been pre-approved by the Department for documenting the work progression of apprentices. This proposal allows the use of computerized systems for recording and submitting this information by the apprentice, and permits the sponsor to maintain such information much more efficiently.

Prior to these regulations, the only way that an observer would know that a new trade had been proposed and was up for approval, or that a sponsor was seeking to register a program, was to regularly submit requests under the state's Freedom of Information Law for such information. Even then, there was no formal public comment period for providing input on these issues. These new rules provide for such information to be posted on the Department website so that the public can view proposed new program applications and pending trades, and electronically submit comments on these proposals for 30 days from the date of posting.

In addition, it requires group non-joint and group-joint sponsors to provide lists and identifying data for signatories, in an electronic format specified by the Department.

In the event that access to computers is not readily available, sponsors, stakeholders, and program participants may use computer equipment at any One-Stop Career Center located across the state to access the Department's website, submit comments, or maintain records. The electronic method of submitting program signatory data was designed to eliminate any extra costs associated with providing the information to the Department, and should increase the efficiency of administering apprenticeship programs by reducing the time and personnel needed to both fill out conventional printed forms and to process the information once received.

Costs to the Department:

It is not anticipated that adoption of these rules will result in any additional costs for the agency, which will administer any changes using existing Department personnel and resources.

5. Local government mandates:

Municipalities, school districts, fire districts and others who currently, or plan to, serve as program sponsors for apprenticeship training programs will be required to comply with the new requirements. These amendments will benefit such local governments by ensuring consistency and accountability among program sponsors. Apprenticeship Training Program staff will be available to provide technical assistance to program sponsors, including local governments choosing to undertake this role, by assisting them in complying with the rule.

Further, many local governments have enacted local laws requiring public work contractors to participate in state registered apprenticeship training programs in order to bid on public work construction projects. The collection, maintenance, and distribution of the names of program participants (signatories) by the Department will assist these local government entities in enforcing this requirement.

6. Paperwork:

The proposed regulations may have an impact on the following paperwork used in registering and administering apprenticeship programs:

• The Department posting of new program applications and proposed trades on its website allows the public to submit comments in writing, or electronically, within a 30-day period. The comments provided will increase DOL paperwork but assist the Department in making better decisions;

• The recording of task rotation/skills via "Blue Book," which requires the apprentice and the supervisor to document work progression and the completion of the work processes will not increase paperwork, as it is already required. However, allowing the submission of such records electronically would reduce paperwork;

• Documentation of participation and assessment in Related Instruction (during the two year probation), such documentation is already required, hopefully these new rules will garner better compliance;

• Submission of a proposed corrective action plan for extended probation will increase paperwork, but is essential if the program is going to be improved;

• Submission of Form AT-10 (the Sponsor Registration Form) at the time of program application and recertification is a new requirement that goes along with the requirement that programs be recertified every five years. The increase in paperwork will be substantial, but is imperative if the program is to be improved. Five year program recertification is also a new federal requirement;

• Submission of Form AT-9 form (the Sponsor Information Sheet) at the time of program application and recertification is also a new requirement that goes along with the requirement that programs be recertified every five years. The increase in paperwork will be substantial, but is imperative if the program is to be improved. Five year program recertification is also a new federal requirement;

• Submission of additional documents, as appropriate, at time of program application and recertification is also a new requirement that goes along with the requirement that programs be recertified every five years. The increase in paperwork will be substantial, but is imperative if the program is to be improved. Five year program recertification is also a new federal requirement; and

• Upon recertification, group non-joint or group-joint sponsors are required to electronically submit signatory information and to update such information as the program goes forward. This is a new requirement, but one that is essential if the program is to go forward. At present, the Department has no idea which, if any, employers are signatory to a given Group non-Joint or Group-joint program. This means that the Department is giving these employers a benefit without doing any checking on the background of such employers.

Apprenticeship programs traditionally require apprentices, and their supervisors, to track apprentices' progress through various task rotations included in their overall training program. While "Blue Books" have traditionally been used for this purpose, the proposed rule allows for flexibility in this regard by providing for skills attainment to be tracked in some other format approved by the Department.

Additional paperwork that will be required from regulated parties as a result of the fact that these rule changes include corrective action plans for program sponsors who fail to comply with program requirements.

At the same time, the Department will need to develop a number of new documents including form letters to address probationary and recertification determinations, form letters to acknowledge receipt of public written comments, as well as revisions to the Apprenticeship Training Program Registration Agreement.

Since Group-Joint and Group non-Joint program sponsors will be required to provide electronic lists of all program signatories, this proposed change will have the greatest impact on the amount of documentation required for those categories of sponsors. Although this is a new requirement, the Department's current policy requires a Sponsor Information Sheet (AT-9 form) from all signatories. The change to electronic lists will actually reduce the amount of paperwork currently of sponsors (the problem is that many sponsors are not in compliance with this requirement). It is increasingly difficult for the Department to monitor programs and their sponsors without knowing the employers (signatories) who are engaged in the program, and who may employ the apprentices in various phases of their apprenticeship training. Further, since many localities require employers to have an apprentice training program in order to bid on public work projects, and the Department is the only agency in a position to certify an employer as meeting this requirement, this new provision will allow the Department to maintain a database of all such employers (signatories) and thus, increase its ability to monitor task rotation and compliance with statutory and regulatory standards.

7. Duplication:

No duplication of rules was identified. Rather, these regulations are intended to clarify existing regulations found in Title 12 NYCRR Part 601 and to align New York State programs more effectively with the United States Department of Labor's recently revised Apprenticeship Regulations which can be found at 29 CFR Part 29.

8. Alternatives:

In addition to publishing emergency rules regarding certification and monitoring of Apprenticeship Training Programs, on October 15, 2008, and again on January 12, 2009, in the New York State Register and on the Department's website for easy public access, the Department sent copies of the emergency rule to all registered apprenticeship programs (800+) and pending applicants. In response, the Department received written comments regarding the Emergency Regulations from 29 individuals representing 30 organizations.

Public Comment Period:

The Emergency Regulations required the Department to post a list of all new trades and apprenticeship program applications on its website for a minimum period of ten business days to solicit public comments. Comments were received which suggested that new program applications and proposed trades be posted on the Department's website for a minimum of thirty days.

In response to the comments received, the proposal was changed to expand the ten business days to a minimum of 30 calendar days along with the posting of the last date in which any public comment must be received. Further clarifying language was added to indicate that new trades should actually be referred to as pending trades and to advise that the submission of comments does not create an entitlement on the part of the parties submitting comments to further participation in the Department's deliberations or decision-making regarding the pending application.

Task Rotation Requirements and Acceptable Documentation:

"Blue Books" have always been used to document task rotation during an apprentice's enrollment in the program. This requirement has been a long- standing policy which has been incorporated into this proposal. Comments were received which indicated the need to keep records but also asked for more flexibility and innovative approaches to document task rotation. In response, this proposal allows sponsors to be creative in their approach to document task rotation by allowing the Department to approve alternative methods of documenting an apprentice's task rotation, and at the last Apprentice Training Council meeting, the Department provided the attendees with one such alternative.

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 standards contained in 29 CFR 29.5(8). However, due to the length of apprenticeship programs, which average 48 months, it was decided that a two-year probation period would provide the optimal period of time for the Department to determine if the sponsor was capable of running a high-quality program. USDOL agrees that by making the probation period longer (i.e., more restrictive), that it still complies with the federal requirements.

Consideration was also given to which programs would be subject to probation. The Emergency Regulations provided for a probationary period for only newly approved programs whose sponsors were not already sponsors of an approved program, whereas the final proposal requires all newly approved programs to undergo probation to ensure fairness and consistency in implementation. This includes those with sponsors who now operate, or have previously operated, other programs.

In addition, public comments received at the March 18, 2009 State Apprenticeship and Training Council meeting included a suggestion that in order to pass probation the program must maintain at least one active apprentice; this requirement was added as a probationary requirement at 601.5(e)(1)(i).

Recertification of All Apprenticeship Training Programs:

The Emergency Regulations identified a three-year recertification period. Due to the numerous comments received that recertification should occur less frequently, and to align the period for review for quality and conformity of existing programs with the federal mandate contained in 29 CFR 29(3)(h), the recertification period was extended to "…at or about the time that the program completes its first training cycle following certification, and at least every five years thereafter."

One public comment identified an omission in the recertification process, indicating that Sponsor Information Sheets (AT-9 forms) were only being required of signatories, and not of sponsors. Additional language was incorporated to require the sponsor to complete the Sponsor Information Sheet at the time of recertification.

As described below, the AT-9 form will no longer be required of all signatories.

Many comments were received regarding which apprenticeship programs should be recertified first. To allow for greater administrative flexibility, this language was removed from the regulations and the order of recertification will be driven by policy.

Sponsors' Responsibilities for Employer Signatories:

The Emergency Regulations required that each signatory be identified, that each signatory complete AT-9 forms at time of recertification, and that the sponsor provide the Department with an electronic listing of the signatory's: name, address, and their Federal Employer Identification Numbers (FEIN). Most comments expressed the concern that this requirement would be unduly burdensome and costly to the sponsors and the program signatories. This revised proposal eliminates the requirement that all signatories complete an AT-9 form, and instead requires sponsors to provide a electronic listing of their signatories in an electronic format including names, addresses, and either their FEIN or their Unemployment Insurance Employer Number.

Sponsor Requirement to Maintain a Minimum of One Apprentice:

The new federal regulations do not allow a program to go without an apprentice for more than one year. This mirrors long-standing Department policy on this issue. However, at March 2009 Apprentice Training Council meeting, the issue that such programs were not being timely deregistered was raised by several parties in the regulated community. Accordingly, a new subsection 601.7(d) was added that provides that a program which has not had an apprentice registered with the Department for a period of 12 consecutive months will be deemed to have been voluntarily deregistered by its sponsor.

9. Federal standards:

In regulations set forth in 29 CFR Part 29, the United States Department of Labor (USDOL) requires state agencies administering apprenticeship programs to meet or exceed certain federal standards. Recently, USDOL adopted final rule changes to 29 CFR Part 29, effective December 29, 2008, which contain a number of changes to the federal rules. States are allowed two years to implement these new federal regulations. The following topics were added to this proposal to align with the federal changes:

Electronic Media -Previously, 29 CFR Part 29.5(b)(4) allowed for classroom instruction through trade or industrial courses, by correspondence courses of equivalent value, or other forms of self-study. USDOL amended this section to include electronic media for use in providing instruction in technical subjects related to the occupation. The definition of electronic media was incorporated into this proposal to keep pace with technological advances.

Two-Year Probationary Period for New Programs - 29 CFR Part 29.3(g) now requires that new programs be given provisional approval for a period of one year. At the conclusion of that year, they may be made permanent, may continue to be provisionally approved through the first full training cycle, or may be de-registered for failing to meet program standards. This proposal provides a two-year probationary period for all new apprenticeship programs which has been approved by USDOL as conforming to federal program requirements.

Recertification of All Apprenticeship Training Programs - 29 CFR Part 29.3(h) requires that all apprenticeship programs be reviewed for quality and conformity with program standards at the end of the first full training cycle, with subsequent reviews to be conducted at least every five years. This proposal amends the Emergency Regulations to align recertification with this longer review cycle. The regulations that the emergency regulations replace did not provide for a recertification process.

Deregistration of Programs - 29 CFR Part 29.8(b)(1)(ii) provides the grounds for a Registration Agency to deregister an apprenticeship program based on reasonable cause. One such basis for deregistration occurs when a program demonstrates a persistent and significant failure to perform successfully, which includes consistently failing to register at least one apprentice. This proposal deems sponsors which have not had an apprentice for a period of twelve consecutive months to have voluntarily deregistered their programs. Written notice will be provided to the sponsor stating the effects that deregistration may have on employers. The regulations exempt State Department of Corrections programs from this requirement.

10. Compliance schedule:

The moratorium on registration of new apprenticeship programs and sponsors ended on October 15, 2008. The two-year probationary requirement for new program sponsors became effective with the filing of the emergency regulations on October 15, 2008. The two-year probationary requirement for all new program applications became effective with the filing of the emergency regulations on January 12, 2009.

The requirement that a sponsor maintain at least one active apprentice at all times during the probationary period will become effective upon the filing of these regulations.

The recertification requirement became effective with the filing of the emergency regulations on October 15, 2008.

The establishment of a written public comment period for proposed trades and new program applications was also implemented on October 15, 2008.

New sponsor mandates requiring an electronic list of signatories was implemented by emergency regulations on October 15, 2008.

Provisions set forth in the rule clarifying task rotation requirements and acceptable documentation are simply a codification of an existing policy requirement and were implemented by Emergency Regulations on October 15, 2008.

The provision allowing Related Instruction to be provided via electronic media is a federal requirement that is already in effect in New York and as such the regulation simply restates Department policy.

The provision deeming a program to have been voluntarily deregistered if a program has not had an apprentice for twelve months, codifies Department policy, aligns state regulations with the new federal regulations, and is effective commencing on after the effective date of these regulations.

Additional revisions to the regulations clarifying terms and adding gender neutral language is effective upon the filing of this proposal.

Regulatory Flexibility Analysis

1. Effect of rule:

The provisions of this proposed rule which provide for the use of electronic recordkeeping will help to advance the Department's objectives in improving consistency and quality control of apprenticeship programs across the state without imposing any undue burden on small businesses.

While it is possible for a local government to be a program sponsor, the primary effect of these rules on local governments is incidental to the program. Many local governments have local requirements that require contractors performing work on public work projects have an apprentice training program. However, there is no single source of information from which such local governments may determine which contractors meet this requirement. By collecting and posting a list of program signatories to its website, the Department will be able to address this local government need.

Currently, all registered apprenticeship programs are regulated by the Department of Labor under a uniform set of standards, applicable to large and small businesses and local governments alike. Sponsors of Apprenticeship Training Programs may include building and construction trades, manufacturing trades, local governments (such as villages, school districts, and fire districts), as well as other non-traditional trades (such as baker, chef, or dental lab technician).

There are four types of Apprenticeship Training programs in this state, and each category may include small businesses and local government sponsors or signatories as follows:

• Individual Non-Joint: --- Involves a non-union employer and one or more apprentices or an employer with a union that does not wish to participate in the apprenticeship program. (584 Programs)

• Individual Joint: --- Involves a single employer and the union representing the employer's apprentices. (70 Programs)

• Group Joint: --- Involves a group of employers and one union, which represents the workers of the trade. (194 Programs)

• Group Non-Joint: --- Involves a group of non-union employers or an employer trade association whose members agree to apprenticeship standards among themselves or which contracts with a service provider to administer the apprenticeship program and to provide related instruction classes for the apprentices. (27 Programs)

The data listed above reflects the number of programs in each category, not individual sponsors, since one sponsor may operate multiple programs. The Department's records do not provide information to determine which sponsors are identified as small businesses or local governments. However, there are no exclusions in the types of programs a small business or local government may sponsor, which may include: construction, printing, metal-allied, manufacturing, service & repair, plant maintenance, business services, retail and wholesale, health service, justice, public order & safety, administration of human resources, as well as many others. Nor is the size of programs eligible for participation limited, as long as the sponsor maintains at least one apprentice. While a number of comments suggested that the rules should require a greater number of apprentices (as there is now an incentive for contractors to have programs solely in order to submit bids on certain public works projects), the Department considered the impact that requirement might have on local governments and small businesses, and elected to retain the current requirement of one apprentice.

2. Compliance requirements:

Participation in registered apprenticeship training programs is completely voluntary, and the effect of the proposed changes will be applicable to all programs, both large and small alike. In some instances, small businesses and local governments who already participate in registered programs as group or joint sponsors will be required to provide electronic record keeping, by listing and transmitting the names of member signatories and their identifying data to the Department. Other recordkeeping activities remain unchanged by this proposal, except to the extent that it allows for greater flexibility in providing and recording the apprentices' training and task rotation activities.

Small businesses and local governments who choose to establish new apprenticeship programs will need to comply with all the record keeping required by Section 601, including tracking the apprentice's progress through various task rotations through use of a "Blue Book" or some other format approved by the Department. Small businesses and local governments sponsoring apprenticeship training programs will also be responsible for the preparation and implementation of a corrective action plan, if needed, to bring their program into compliance with statutory and regulatory requirements governing apprenticeship programs and the completion of paperwork for recertification every five years.

The amount of time needed for all these activities is contingent upon the size of the program and the degree to which existing programs are already in compliance with requirements of the current regulations. Newly registered programs will undergo a two-year probationary period in which they will by monitored by the Department to ensure they are in compliance with apprenticeship standards. During that time, Apprenticeship Training Representatives will be available to provide any assistance needed to meet program standards.

The Department is not aware of any local government program sponsors at this time.

3. Professional services:

Program sponsors will not be required to retain professional services to comply with the adoption of these regulations. The services and recordkeeping required are performed by the sponsor's apprenticeship coordinator, project manager, or payroll/bookkeeping personnel in the ordinary course of administering an apprenticeship program.

4. Compliance costs:

Other than those small businesses or local governments who do not own or have access to computer services, and who elect to make a capital investment for that purpose, it is not anticipated that sponsors will incur any additional expenses, for personnel or equipment, due to the adoption of these regulations.

The completion of "Blue Books" or an alternative method of documentation of task rotation has been a requirement of the program as part of the Department's apprenticeship standards since its inception. All Apprentice Training Program Registration Agreements provide for a specified ratio of apprentices to journey workers, who act as the apprentice's supervisor. Since a supervisor is responsible for a limited number of apprentices and verifying their progress in "Blue Books," or some other approved method of documenting task rotation, the sponsor will not incur any additional expenses for personnel.

Only group non-joint or group-joint sponsors will be required to submit the names and identifying data of signatories to the Department by electronic means.

Every sponsor will be required to apply for the recertification of each of its programs at least once every five years, including completing the recertification paperwork (this is a new federal requirement). The implementation of these regulations will require those sponsors whose programs fail to meet minimum standards to prepare and implement a corrective action plan.

If a sponsor does not have a computer available to develop and send an electronic list of signatories to its group non-joint or group-joint program, sponsors may obtain access to computer equipment at One-Stop Career Centers located across the state. The amount of time needed to prepare such files is contingent upon the size of the program and the complexity of the issues, but it is not expected to have any significant impact on either small businesses or local governments.

5. Economic and technological feasibility:

The adoption of these regulations is not expected to place an undo burden on small business or local government program sponsors.

Wherever possible, the Department will utilize technology to make the filing of documents with the Department easier. For example, by adoption of this proposal, the Department will require group non-joint or group-joint sponsors to submit lists of apprenticeship program signatories in an electronic format, but does not require the purchase or installation of any new software or unique programming. If not already owned or available to the sponsor, computer equipment may be utilized at One-Stop Career Centers for this purpose.

In addition, public comments on new program applications and proposed trades will be accepted via an electronic format, providing better feedback and faster approval of new apprenticeship programs.

Small businesses and local governments may also utilize electronic recordkeeping to document apprentice task rotation, thereby increasing efficiency and reducing costs for time and personnel that otherwise would be needed to perform this function.

Finally, small businesses and local governments, especially those it rural areas, may utilize electronic media approved by the NYS Department of Education in providing related instruction to apprentices thus reducing costs associated with classroom instruction.

6. Minimizing adverse impact:

Sponsors who administer Group-Joint or Group Non-Joint programs currently maintain a list of program signatories in their normal course of business, but will be required to submit those lists and identifying data to the Department by electronic means under this proposal. It is possible that small businesses or local government might be a member of a group or entity that might constitute a program sponsor. However, it is extremely unlikely that this fact alone would result in such group having to purchase equipment to comply with this requirement.

Documentation of task rotation by alternative means approved by the Department, including the submission of electronic records by apprentices, will allow sponsors to be innovative in their approach as they seek to increase efficiency and reduce costs associated with administering apprentice training programs. Program sponsors are currently tracking task rotation using conventional means, i.e. on paper, such as "Blue Books." This proposal will provide more flexibility and a more consistent application of this requirement.

In addition, the new regulations allow the use of electronic media to provide related instruction to apprentices, after each such provider is approved by the New York State Department of Education. The addition of an alternative to traditional classroom instruction allows small business or local government program sponsors in more remote areas another means of providing apprentices with the courses needed to complete their apprenticeship programs, and does so at a lesser cost.

While the Department believes that the possibility that the proposed rule will have an adverse impact is minimal, the Department will provide technical assistance to program sponsors in order to minimize any such adverse impact from this rule on small business and local government sponsors, especially those located in rural areas.

7. Small business and local government participation:

On August 28, 2007, New York State placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the program was conducted. Two independent reviews were conducted which obtained input from various stakeholders and partners as well as Apprenticeship Training Program staff. Small businesses and local governments were given an opportunity to participate in these reviews by responding to questions asked by parties conducting the reviews. The final Reports, authored by Coffey Consulting LLC and the Department, were posted for public review on the Department's website. Also, seven public forums were held throughout the state in August and September 2008, offering the public, including small business and local government sponsors, an opportunity to provide their comments on the reports. All feedback received as a result of these activities was reviewed and considered and a number of recommendations received from stakeholders, interested parties, and the consultants are reflected in this rulemaking.

In addition, the Apprentice Training Council met three times (once in Albany and twice in New York City) since the Emergency Regulations were filed on October 15, 2008 and while this proposal was being developed. Many sponsors attended these meetings, including sponsors located in rural areas. The changes were explained, questions were asked, and input was taken. At the March 18, 2008 meeting of the Apprentice Training Council, for example, one representative identified himself as a "small upstate sponsor" of an apprenticeship program, and presented his views on the effect of the new regulations, including the difficulty his company might experience if the Department imposed a requirement of hiring more than one apprentice to be eligible for registration. Further, sponsors were asked to submit written comments and 29 individuals representing 30 organizations provided written comments to the Department. These comments were taken into account and changes were made based upon the input received.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

Apprenticeship training programs may be sponsored by a single employer, a group of employers, or a joint apprenticeship committee representing both employers and a union. There are currently over 450 sponsors operating 650 programs with nearly 6,000 apprentices outside of New York City and Long Island. Many of these programs operate in rural areas of the State.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

All Apprenticeship Training Program Sponsors in rural areas who conduct Group-Joint or Group Non-Joint programs must provide a list of all employer signatories to NYSDOL in an electronic format including names, addresses, and either their Federal Employer Identification Number (FEIN) or Unemployment Insurance Employer Number.

All program sponsors in rural areas will be required to ensure their apprentices are regularly keeping "Blue Books," or a comparable record, to ensure documentation of task rotation and the attainment of skills.

All program sponsors in rural areas will be required to apply for recertification of programs at or about the time that the program completes its first training cycle following certification, and at least every five years thereafter. Deficiencies in program administration or operation identified during the review will have to be corrected.

All applications for new apprenticeship training programs by sponsors in rural areas will be subject to publication and public comment. Sponsors may be required to respond to inquiries from Apprenticeship Training Program staff in response to comments received from the public.

3. Costs:

The adoption of these regulations is not expected to place an undue burden on program sponsors located in rural areas.

Related Instruction: These new regulations provide no additional requirements over those in the prior regulations. Sponsors incur only the costs associated with classroom learning. Since the New York State Department of Education authorizes and approves instructional programs for apprentices, they are available on a statewide basis at local community colleges or BOCES Centers. Consequently, rural sponsors will not suffer any disadvantage in meeting program requirements. Although minimal costs are incurred in sponsoring and operating an Apprenticeship Program, this proposal will not result in any significant increase in costs. Further, these rules provide specifically for training to be done electronically, eliminating a significant cost to sponsors when they might have to travel to distant locations in order to secure appropriate related instruction.

Additional costs related to the amount of time and resources needed to comply with the following provisions of the proposal will be contingent upon the size of the program and the complexity of corrective action issues.

Although the proposal will require the use of a computer to submit an electronic list of signatories and their identifying data to NYSDOL for group non-joint and group non-joint sponsors, it is highly unlikely that this will result in capital expenses or annual operating costs. This data is already in the possession of each union's contract benefit program office or each group non-joint sponsor's membership office. Electronic data submission to NYSDOL was designed to provide DOL with crucial information necessary to the Department in administering the apprentice training program by the most cost effective method for the Department and the sponsors. Due to the large number of comments from the regulated community, this provision was significantly changed from what the Department's originally proposed (the original proposal required the sponsor to get AT-9 forms completed by each signatory).

The regulations, for the first time, allow electronic record keeping of task rotation. However, sponsors may continue to utilize conventional pre-printed forms or "Blue Books" for recording on-the-job training hours if they so desire. The electronic method of on-the-job training data collection was designed to eliminate costs and to aid in the administration of apprenticeship programs by reducing the time and personnel needed to complete and file conventional printed forms.

Also, the regulated community and any other interested individuals or groups will, for the first time, be able to view both applications for new programs and the details of proposals to recognize new trades on line. Such access was expressly requested by the regulated community and such information was not previously available except through the FOIL process.

Access to computer equipment in order to take advantage of electronic record-keeping of task rotation, access to applications for new programs and the details of proposals to recognize new trades, and a means to create the newly required electronic list of signatories, if not otherwise available to sponsors, will be available at One-Stop Career Centers located across the state.

4. Minimizing adverse impact:

Sponsors in rural areas who administer Group-Joint or Group Non-Joint programs currently maintain a list of program signatories in their normal course of business, but will be required to submit those lists and identity data to NYSDOL by electronic means under this proposal.

Documentation of task rotation by alternative means approved by the Department, including the submission of electronic records will allow sponsors to be innovative in their approach as they seek to increase efficiency and reduce costs associated with administering apprenticeship programs. Program sponsors are currently tracking task rotation using conventional means, such as "Blue Books and payroll records. This proposal will provide more flexibility and a more consistent application of this requirement.

In addition, the new regulations allow the use of electronic media, if approved by the New York State Department of Education, to provide related instruction to apprentices. The addition of an alternative to traditional classroom instruction allows sponsors in more remote areas a means of providing apprentices with the courses needed to complete their apprenticeship programs at reduced costs.

While the Department believes that the possibility of adverse impact of the proposed rule will be minimal, the Department will provide technical assistance to program sponsors. Such assistance will serve to minimize the adverse impact, if any, from the new rules for sponsors located in rural areas.

5. Rural area participation:

On August 28, 2007, New York State placed a moratorium on the approval of apprenticeship training programs in all trades while a thorough review of the program was conducted. Two independent reviews were conducted which obtained input from various stakeholders and partners as well as Apprenticeship Training Program staff. Sponsors located in rural areas were given an opportunity to participate in these reviews by responding to questions asked by parties conducting the reviews. The final written Reports authored by Coffey Consulting, LLC., and the Department were posted for public review on the Department's website and seven public forums were held throughout the state in August and September 2008, offering the public, including sponsors located in rural areas, an opportunity to provide their comments on the reports. All feedback received as a result of these activities was reviewed and considered and a number of recommendations received from stakeholders, interested parties (some of whom were from rural areas), and the consultants are reflected in this rulemaking. A sampling of the written responses shows that comments received from upstate and rural employers and unions included the Apprenticeship Coordinator for the Bricklayers and Allied Craftsmen Local #3, Ithaca, New York; the Apprenticeship Coordinator for the Bricklayers and Allied Craftsmen Local #2, Albany, New York; the Plumbers and Steamfitters Local #7, Latham, New York; the Eastern New York Laborers' District Council, Glenmont, New York, and the Empire State Carpenters Apprenticeship Committee, Rochester, New York.

In addition, the Apprentice Training Council (ATC) met three times (once in Albany and twice in New York City) since Emergency Regulations were filed on October 15, 2008. Many sponsors attended these meetings, including sponsors located in rural areas. The changes were explained, questions were asked, and input was taken. At the March 18, 2008, meeting of the Apprentice Training Council, for example, one representative identified himself as a "small upstate sponsor" of an apprenticeship program, and presented his views on the effect of the new regulations, including the difficulty his company might experience if the Department imposed a requirement of hiring more than one apprentice to be eligible for registration. Further, sponsors were asked to submit written comments and 29 individuals representing 30 organizations provided written comments to the Department. These comments were taken into account, and changes made based upon the input received, and consideration of the Department's objectives.

Job Impact Statement

The emergency regulations will not result in the decrease of any jobs; in fact, apprentice training is designed as a program to increase employment opportunities by training workers and increasing their prospects for long-term employment in the state's skilled labor force. Further, as a part of the program, workers are not only trained, but their wages are set and monitored and they are provided with a safe working environment and provided with better health and safety training than they might otherwise obtain.