CHAPTER 20 ‑ EMPLOYMENT AND TRAINING

04 NCAC 20 has been transferred and recodified from 15A NCAC 17, effective November 1, 1989.

SUBCHAPTER 20A ‑ GENERAL PROVISIONS

04 NCAC 20A .0101         DEFINITIONS

The following definitions shall apply in Chapter 17 and to activities conducted with funds received, directly or indirectly, from the Division:

(1)           Administrative Entity. The entity selected by a private industry council in accordance with its agreement(s) with appropriate chief elected officials, to conduct the daily administrative functions required to manage and, if applicable, to operate employment and training activities in a service delivery area.

(2)           Administrative Review. Review, which may include investigation, hearing and orders by the Office of Administrative Hearings and the Department, except where appeal is to the Secretary of USDOL under JTPA sections 101(a)(4)(c), 105(b)(2), 106(h)(4) and 164(b)(1), of actions taken by the Governor, the Division, the State Job Training Coordinating Council, or the Rural Service Delivery Area Private Industry Council. Review may be sought of disputes within the definition of "contested case" under G.S. 150B‑2(2).

(3)           Adult. For the purposes of employment and training program participation, an individual who is twenty‑two years of age or older.

(4)           Applicant. An individual who has completed and signed an application for participation in an employment and training program and has provided that application to a current service provider or agent for a service provider.

(5)           Bidder or Prospective Contractor. A person or entity that has formally bid or responded to a request for proposals to operate job training activities or provide administrative or supportive services.

(6)           Cash Welfare Payment. Payments under AFDC (SSA, Title IV), General Assistance (local government), the Refugee Assistance Act of 1980 (P.L. 96‑212) or SSI (SSA, Title XVI); provided that for performance standards purposes, payments under SSI (SSA, Title XVI) shall be excluded.

(7)           CETA. The Comprehensive Employment and Training Act of 1973, the Comprehensive Employment and Training Act Amendments of 1978 and the regulations promulgated thereunder.

(8)           Chief Elected Official. The chief elected official, for the purposes of JTPA, in a service delivery area. In the absence of specific direction to the contrary, the chief elected official shall be construed to mean:

(a)           As to the Rural Service Delivery Area, the Governor;

(b)           As to single units of government that are service delivery areas, the mayor (in the case of cities) or the chairman of the board of county commissioners (in the case of counties); in the event the chairman or mayor is not a position subject to popular election, the governing board of the governmental unit shall designate an elected official as the chief elected official for the purposes of JTPA;

(c)           As to consortia of two or more governmental units that have been designated as a service delivery area, the officials from each unit (as defined in Paragraph (2) of this Rule) shall select among themselves an individual as chief elected official, provided that such a selection shall not preclude the officials from agreeing that more than one official's signature shall be required on documents requiring the signature of the chief elected official;

(d)           An appropriate designee of Subparagraph (8)(a), (b) or (c), to the extent permitted by law and designated in writing, except that a designee of a chief elected official under Subparagraph (8)(c) must have the written approval of all units of government in the consortium.

(9)           Compensation in Lieu of Wages. Monetary payments made by the subrecipient to participants in tryout employment programs, which payments must meet the federal and state minimum hourly wages; the payments will not be construed by the Division as wages, as that term is used in JTPA.

(10)         Consortium. A joint agency of two or more units of local government that have combined and requested designation as a service delivery area. A consortium shall not exist, and funding to the resulting service delivery area may not be made, unless there is a written consortium agreement conforming to state law and including a provision whereby the participating units of government, or some of them, accept liability for misspent funds received from the Division.

(11)         Contractor. An individual or entity that has entered into an agreement with the Division or with a service delivery area administrative entity or private industry council or with the State Job Training Coordinating Council to operate program or project activities or to conduct administrative or supportive functions, including the provision of goods or services.

(12)         Department. The North Carolina Department of Economic and Community Development.

(13)         Dependent. A person for whom the head of household has provided at least 50 percent support during the six month eligibility determination period.

(14)         Director. The Director of the Division of Employment and Training; the Director is the delegate of the Governor in the exercise of responsibilities and functions assigned to the Governor in JTPA and in these Regulations.

(15)         Dislocated Worker. An individual who satisfies the criteria for dislocated workers in Section 302 of JTPA and such further identification of targeted dislocated workers as is made in the applicable application or proposal.

(16)         Displaced Homemaker. An individual who:

(a)           during the previous two years has not worked in the labor force, but has worked in the home providing unpaid services for family members;

(b)           has been dependent either on public assistance or the income of another family member but is no longer supported by that income, or is currently receiving public assistance on account of dependent children in the home; and

(c)           is experiencing difficulty in obtaining employment.

(17)         Division. The Division of Employment and Training.

(18)         Division Review. Review, which may include investigation, hearing and orders, of specific determinations by a subrecipient, agent of a subrecipient or private industry councils; review may be sought by persons or entities that have sustained or have a substantial likelihood of sustaining injury, loss or damage as a result of the determination.

(19)         Economically Disadvantaged. An individual who satisfies the criteria in Section 4(8) of JTPA.

(20)         Education Status. An individual's status with regard to his or her education; the available categories are school dropout, student, high school graduate or equivalent, and post‑high school attendee, each of which are defined in this Section.

(21)         Employed Individual. An individual who, during the seven consecutive days prior to his or her application, did any work as a paid employee, in his or her own business, profession or farm, or who worked 15 or more hours as an unpaid worker in an enterprise owned by a family member, or an individual who has a job or business but has been absent during the seven consecutive days prior to application because of illness, bad weather, vacation, labor management dispute or personal reasons. This status includes members of the Armed Forces on active duty who have not been discharged or separated, participants in registered apprenticeship programs and self‑employed persons.

(22)         Expendable Property. All personal property other than Nonexpendable Property, except that personal property with a unit acquisition cost of one thousand dollars ($1000.00) or more cannot be considered expendable property except with the written approval of the Director.

(23)         "Family" shall be defined under JTPA as follows:

(a)           the head of household (majority earner), spouse, plus all dependents (see definition of Dependents); or

(b)           in the case of a welfare recipient, the total number of persons whose needs are considered when determining the amount of the welfare payment; or

(c)           a person incarcerated in a correctional institution, who shall be considered a family of one; or

(d)           a handicapped individual, who shall be considered a family of one; or

(e)           any individual 14 years of age or older, who received less than 50 percent of his/her support from the family, who shall be considered a family of one for JTPA purposes, without regard to whether the individual is emancipated under state law; or

(f)            an older individual (55 and over) who is a dependent of his/her child(ren), who shall be considered a family of one.

(24)         "Family Income" means all income actually received from all sources by all family members for the six‑month income determination period prior to application. For purposes of this Paragraph, the income determination period shall be the 26 weeks preceding the date of application and shall end with the last full calendar week (Sunday to Saturday) prior to application.

(a)           For the purposes of determining eligibility (and not for allocations), family income includes:

(i)            gross wages and salaries from employment (before deductions), including tips, commissions, seasonal employment, babysitting, domestic employment, Adult Development Activities Program (ADAP), JTPA‑OJT wages;

(ii)           net self‑employment income (Gross receipts minus operating expenses);

(iii)          other money income received from sources such as net rents, pensions (non‑SSA Title II Federal OASI Benefits), alimony, periodic income; periodic income excludes tenant rental fees for work land and seed purchase costs; periodic income should be allocated to the time the money was earned; the portion allocated to the prior 26 weeks shall be included as income within the eligibility determination period;

(iv)          farm income; and

(v)           earned Income Tax Credit (EIC).

(b)           Family Income does not include:

(i)            child support payments;

(ii)           noncash income such as food stamps or compensation received in the form of food or housing;

(iii)          rental value of owner‑occupied property;

(iv)          public assistance payments;

(v)           cash payments received pursuant to a State Plan approved under Titles I, II, IV, X or XVI (SSI) of the Social Security Act;

(vi)          federal, state and local unemployment benefits;

(vii)         payments made from federal funds to participants in employment and training programs, including payments made under JTPA (except for OJT), Title V of the Older Americans Act and WIN incentive payments and training allowances;

(viii)        capital gains and losses;

(ix)          one‑time unearned income; such as, but not limited to:

(A)          payments received for a limited fixed term under income maintenance programs and supplemental (private) unemployment benefit plans;

(B)          one‑time or fixed‑term scholarship and fellowship grants;

(C)          accident, health and casualty insurance proceeds;

(D)          disability and death payments, including fixed term (but not lifetime) life insurance annuities and death benefits;

(E)           workers' compensation awards;

(F)           terminal leave pay;

(G)          soil bank payments; and

(H)          agricultural crop stabilization payments;

(x)           pay or allowances previously received by a veteran while serving active duty in the Armed Forces (U.S.). Also exclude payments received for participation in National Guard or military naval, or air force reserve activities and VISTA stipends;

(xi)          educational assistance and compensation payments to veterans and other eligible persons under Title 38, United States Code, Chapter 11, Compensation for Service‑Connected Disability or Death; Chapter 13, Dependent Indemnity Compensation for Service Connected Death; Chapter 31, Vocational Rehabilitation; Chapter 34, Veterans' Education Assistance; Chapter 35, War Orphans' and Widows' Education Assistance; and Chapter 36, Administration of Education Benefits;

(xii)         payments received under the Trade Act of 1974 as amended;

(xiii)        black lung payments received under the Benefits Reform Act of 1977, Pub. L 95 239.30 USC 901;

(xiv)        income of a child participating in a Job Corps Program; and

(xv)         AFDC‑Foster Care and State Foster Home.

Note: Family size shall be the maximum number of family members during the income determination period. When computing family income, income of a spouse and/or other family members shall be counted for the portion of the income determination period that the person was actually a part of the family unit.

(25)         Family Size. The total number of persons who were members of the applicant's family during the eligibility determination period.

(26)         Farm. A place that produces agricultural products, from which annual sales of one thousand dollars ($1000.00) or more are realized.

(27)         Farm Resident. A person who is a member of a family that lives on and either owns or leases a farm.

(28)         Foster Child. An individual on whose behalf either state or local government AFDC‑Foster Care Payments are made.

(29)         General Purpose Business Organization. Organizations that admit to membership any for‑profit business or representatives of any for‑profit business that operates in the geographic area that the organization serves.

(30)         Governor's Coordination and Special Services Plan. Plan prepared on behalf of the Governor, approved by the State Job Training Coordinating Council and accepted by the Governor, and submitted to the Secretary of USDOL, that contains explanations and criteria for coordinating JTPA programs with related service resources and establishes presumptive service providers consistent with JTPA.

(31)         Grantee. As to JTPA grants from USDOL, the Governor.

(32)         Grievance. A complaint alleging violation(s) of nondiscrimination provisions by a recipient or subrecipient of JTPA funds.

(33)         Handicapped Individual. An individual described in Section 4(10) of JTPA and USDOL regulations, 29 CFR Part 32.3; an individual who has or is believed to have a physical or mental disability that, for the individual, constitutes or results in a substantial barrier to employment. All mental handicaps and any physical handicap that is not readily apparent and identifiable must be verified by a physician or appropriate professional. To the extent that a disability is not a recognized barrier to employment, the existence of a disability that constitutes or results in a substantial barrier to employment must also be verified by an appropriate professional.

(34)         High School Graduate. An individual who has qualified for a high school diploma or GED certificate, or is a certificate recipient (who has completed the required courses but has not passed the state competency test), but who has not attended any post‑secondary vocational, technical or academic school. This education status includes high school graduates who expect to attend a post‑secondary vocational, technical or academic school, but the term in which they will begin attendance has not begun.

(35)         Immediate Family. Mother, father, sister, brother, husband, wife, son, daughter, grandfather, grandmother, grandson, granddaughter, mother‑in‑law, father‑in‑law, son‑in‑law, daughter‑in‑law, stepparents and stepchildren.

(36)         JTPA. The Job Training Partnership Act.

(37)         Job Training Plan. A written plan of program and project activities, that has been approved by the Governor and that describes the method of operation and proposed budget for the employment and training activities in a service delivery area.

(38)         Labor Force Status. The status of a person in relation to the labor force. The available categories are employed, unemployed and not in the labor force, definitions of which are contained in this Section.

(39)         Limited English Language Proficiency. An individual whose native language is not English and who is unable to communicate effectively in English, resulting in a barrier to employment.

(40)         Long‑Term Unemployed Individual. An individual who is unemployed at the time of eligibility determination and who has been unemployed for 15 or more weeks out of the 26 weeks immediately prior to eligibility determination and who has limited opportunities for employment or reemployment in the same or similar occupation in which previously employed in the area in which he or she resides. An older individual who has substantial barriers to employment by reason of age is presumed to have limited opportunities for employment or reemployment as described in this Paragraph:

(a)           Low Achiever/Potential Dropout. Any individual aged 14‑21 who at the time of application to JTPA has not attained either a secondary diploma or equivalent and is:

(i)            Enrolled and attending school at the time of application; and

(ii)           Identified by the local education agency as:

(A)          Having poor attendance patterns;

(B)          Having below average grades; and

(C)          Seriously considering leaving school prior to attaining secondary diploma or equivalent.

(b)           Lower Living Standard Income Level. Refer to Sec. 4(16) of the Act. That income level (adjusted for regional, metropolitan, urban, and rural differences and family size) determined annually by the Secretary based on the most recent "lower living family budget" issued by the Secretary.

(c)           Member of a Public Assistance Family. An individual is considered a member of a public assistance family when the applicant's needs and/or income were taken into account in determining the public assistance payments.

(41)         Migrant or Seasonal Worker. An individual who is a member of a family that had one or more family members who, during the preceding twelve months, worked at least 25 days in farm work and worked fewer than 150 days at any single establishment, which definition includes migratory and non‑migratory workers but does not include individuals or family members of individuals who worked as supervisors or who are full‑time students.

(42)         Minor. An individual who is under eighteen years of age, is not and has not been married (unless marriage was annulled) and has not been otherwise emancipated under state law.

(43)         Monitoring. Review of financial and programmatic records and activities to assure compliance (in the case of subrecipients) or the ability to comply (in the case of bidders or potential subrecipients) with applicable job training plans, contracts, subgrants, state law and federal law.

(44)         Nonexpendable property. Personal property having a useful life of more than one year and a unit acquisition cost of two hundred and fifty dollars ($250.00) or more, provided that the Division, by its contracts or subgrants may elect to treat additional property as nonexpendable.

(45)         Not in the Labor Force. The labor force status of a civilian individual, 14 years of age or older, who is neither employed nor unemployed as described in this Section. This status includes discouraged workers.

(46)         Offender. An individual who is or has been subject to any stage of the criminal justice process relating either to a misdemeanor, if a jail sentence could be imposed, or a felony, and for whom services under JTPA would be beneficial, or an individual who requires assistance in overcoming artificial barriers to employment resulting from a record of arrest or conviction for either a misdemeanor, if a jail sentence could have been imposed, or a felony.

(47)         Older Worker. An individual who is 55 years of age or older.

(48)         Participant. An individual who has been determined eligible for participation in a JTPA funded activity and who is receiving subsidized employment, training or services funded under JTPA, except that the definition does not include individuals who are receiving only post‑termination services or who receive only outreach and assessment services.

(49)         Performance Standards. The performance goals identified by USDOL and adjusted, if applicable, by the Governor, to measure the effectiveness of JTPA activities.

(50)         Post‑High School Attendee. An individual who is attending or has attended a post‑secondary vocational, technical or academic school and who has qualified for a high school diploma or GED certificate.

(51)         Private Industry Council (PIC). A service delivery area private industry council, that has the composition and functions described in Section 102 of the JTPA.

(52)         Private Sector. Private for‑profit employers and major nongovernmental employers, such as health and educational agencies, whose primary functions do not involve job training services.

(53)         Recipient. With regard to JTPA funds received from USDOL, the Governor.

(54)         Residence. An individual's principal dwelling at the time of eligibility determination. Except for individuals residing in rural areas (where state road numbers and R.F.D. numbers are acceptable), a mailing address is not a residence address.

(55)         Rural Service Delivery Area. The service delivery area designated by the Governor to provide job training services in areas of the state not encompassed in other designated service delivery areas.

(56)         SDA Grant Recipient. The entity designated in a written agreement between the private industry council chairperson and the chief elected official of a service delivery area to execute a subgrant agreement with the Division to receive the JTPA funds allocated to the service delivery area and to execute other appropriate agreements and contracts with the Division. An SDA grant recipient must be an entity with a continuing existence upon whom the Division can obtain service and that is capable of responding to process on behalf of the number of unit(s) of government in a service delivery area, until all disallowed costs arising out of JTPA have been resolved and accepted by the Division and USDOL.

(57)         School Dropout. An individual who is not attending school, has not qualified for a high school diploma or GED certificate, is not between terms of school with the intention of returning to school and is not subject to the compulsory attendance law. School dropout includes an individual who is not subject to the compulsory attendance law and who has been expelled from school.

(58)         Secretary. The Secretary of the North Carolina Department of Economic and Community Development.

(59)         Secretary of USDOL. The Secretary of the United States Department of Labor.

(60)         Service Delivery Area (SDA). An area within the state, as described in Section 101 of JTPA, comprised of one or more units of government, that has been designated by the Governor as a service delivery area for the purposes of JTPA.

(61)         Service Provider. An entity that provides job training services directly to participants, except that an OJT employer is not a service provider.

(62)         Single Head of Household. A single individual or a married individual who has been abandoned, separated, divorced or widowed, and who has responsibility for the support of one or more dependent children under the age of eighteen. The presumptions of support in separation agreements or divorce decrees that relate to the income tax implications of support shall not be determinative of support under this Paragraph.

(63)         State Job Training Coordinating Council (SJTCC). The council appointed by the Governor and organized pursuant to Section 122 of JTPA, with the authority to conduct any activity described in Section 122(a) or (b) and any permissible activity delegated to the council by the Governor.

(64)         Student. An individual who is enrolled in an elementary or secondary school or in a program to secure a GED certificate or an individual who is between terms and intends to return to an elementary or secondary school or a program to secure a GED certificate. An individual who is suspended from school is a student, and an individual who is subject to the compulsory attendance law and is expelled from school, is a student.

(65)         Subcontractor. An individual or entity that has entered into an agreement with a contractor to perform or provide all or some of the services, goods, or functions that the contractor had agreed to provide for the Division or for a service delivery area.

(66)         Subgrantee. A service delivery area grant recipient or other entity with whom the Division executes a subgrant agreement.

(67)         Subrecipient. A subgrantee, contractor or subcontractor, an individual or entity that receives federal employment and training funds directly or indirectly from the Division, except that a participant (in his or her capacity as a participant) is not a subrecipient.

(68)         Subsidized Employment. Employment in the public sector or in private for‑profit or nonprofit organizations that is financed in whole or in part by federal employment and training funds. Subsidized employment includes work experience, but for the purposes of reporting, excludes on‑the‑job training (OJT).

(69)         Support. Support shall be defined as by the United States Department of the Treasury, subject to the presumption that the provision of housing and two meals daily constitutes 50 percent of an individual's support.

(70)         Supportive Services. Services, included in Section 4(24) of JTPA, that are necessary to enable an individual eligible for training under JTPA, but who cannot afford to pay for such services, to participate in an employment and training program under JTPA. Supportive services may include, without limitation, transportation, child care, meals, temporary shelter, financial counseling and other reasonable expenses incurred as a result of participation in JTPA activity. Supportive services may be provided in‑kind or through cash assistance.

(71)         Teenage Parent. An individual, under 20 years of age, who has responsibility for the support of one or more dependent children.

(72)         Termination. The separation of a participant, who is no longer receiving employment, training or services (except for post‑termination services), funded under a given title under JTPA, from participation in JTPA under that title. Individuals may be considered participants for a period of 90 days after last receipt of employment or training services (except post‑termination services) funded under a given title.

(73)         Termination/Layoff Notice Recipient. An individual who has been terminated or laid off or who has received a written notice of impending termination of layoff, under Section 302 of JTPA, and is either unlikely to return to his or her previous occupation or industry or has been terminated or laid‑off, or will be terminated or laid‑off as a result of a permanent closure of a plant or facility. The Division may further restrict the definition of termination/layoff notice recipient in individual contracts in order to effectuate the efficient and productive use of Title III allocations.

(74)         UC Claimant. An individual who has filed a claim and has been determined monetarily and nonmonetarily eligible for, or is receiving benefit payments under, one or more state or federal unemployment compensation programs and who has not exhausted benefit rights or whose benefit year has not expired.

(75)         UC Exhaustee. An individual who has exhausted his unemployment compensation benefits (not including extended, state or federal supplemental benefits) for which he or she had been determined monetarily and nonmonetarily eligible.

(76)         USDOL. The United States Department of Labor.

(77)         Unemployed Individual. An individual who did not work during the seven consecutive days prior to application to a JTPA program and who was not on paid or unpaid absence from his or her job or business as described under the definition of "employed", and who made specific efforts to find a job during the four weeks prior to application to a JTPA program and who was available for work during the seven consecutive days prior to application, except that the individual need not have been available for work in the event of illness, bad weather or such other reasons approved by the Division.

(78)         Unsubsidized Employment. Employment not financed from funds provided under JTPA.

(79)         Veteran. An individual, as described in Section 4(27)(a) of JTPA, who served in the active military, naval or air service of the United States, and who are discharged or released under conditions other than dishonorable. Active service means full‑time duty in the armed forces, other than duty for training in the reserves or National Guard (including period of travel) is considered active duty if the individual was disabled from a disease or injury incurred or aggravated in the line of duty during the duty for training.

(80)         Welfare Recipient. An individual who receives or whose family receives cash payments under AFDC (SSA, Title IV), General Assistance (local government), the Refugee Assistance Act of 1980 (P.L. 96‑212), or SSI (SSA, Title XVI). For performance standards purposes, this term excludes individuals who receive SSI (SSA, Title XVI).

(81)         Youth. An individual aged 16 through 21, inclusive. Individuals aged 14 and 15 may participate in a pre‑employment skills training program for youth and when so enrolled, shall be counted as youth.

(82)         Youth Employability Enhancement Termination. An outcome for youth participants, other than entrance to unsubsidized employment, that is recognized as enhancing long‑term employability and contributing to the potential for long‑term increase in earnings and employability. Categories of such outcome are:

(a)           Entered an employment and training program not funded under Title II of JTPA;

(b)           Returned to school full‑time if, at the time of intake, the participant was not attending school and had not qualified for a high school diploma or GED certificate;

(c)           Completed program objectives as defined in approved exemplary youth project plans if, at the time of enrollment, the participant was less than 16 years of age; and

(d)           Completed, during enrollment, a level of educational achievement that had not been achieved at the time of enrollment. Levels of educational achievement are elementary (completion standards governed by state standards or, at the Governor's discretion local standards), secondary (completion standard is a high school diploma, GED certificate or equivalent) and post‑secondary (completion standard is a diploma or other written certification of completion at the post‑secondary level).

(83)         Youth Employment Competency. The ability (including knowledges, skills, and/or attitudes and behaviors) to perform successfully a specific task to a pre‑defined standard of performance/criterion/measurement related to employment entry.

(84)         Youth Employment Competency Terms. The special language which accompanies competency‑based youth employment and training programs, as follows:

(a)           Competency Area ‑ A group of related competencies; e.g., pre‑employment and work maturity, basic education, and/or job specific skills.

(b)           Pre‑Employment and Work Maturity Competencies ‑ Competencies in this area cover basic awareness of the world of work, including awareness of one's own preferences and interests, as well as demonstrated abilities to meet employer expectations of basic entry‑level employee responsibilities, such as regular attendance, ability to carry out instructions, punctuality and so forth.

(c)           Basic Education Skills Competencies ‑ Basic educational competencies are the fundamental skills of reading, computation, and communication that are needed for successful functioning in the workplace; competencies in this area focus on the application of these skills to real work situations.

(d)           Job Specific Skills Competencies ‑ This competency area covers mastery of basic and advanced skills required for a chosen occupation or cluster of occupations.

(e)           Competencies ‑ Specific skills and abilities within each of the three competency areas.

(f)            Indicator ‑ The measurable and/or observable behavior that demonstrates the competency.

(g)           Benchmark ‑ The degree or standard of behavior that demonstrates proficiency for a competency. The extent to which the participant is expected to demonstrate a behavior.

(h)           Assessment ‑ The process of measuring proficiency. Assessment is the process of determining an individual's strengths and weaknesses relative to predefined competencies, selecting an appropriate service strategy and measuring the individual's progress in competency acquisition using predefined criteria (benchmarks).

(i)            Certification ‑ The proof or verification that the standard has been met. Certification documents the achievement according to a uniform set of competencies, indicators, and benchmarks designed to enable the participant to successfully enter and compete in the local labor market.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 626.4; Ex. O. No. 93, June 8, 1983;

Eff. July 1, 1980;

Amended Eff. May 1, 1992; August 1, 1988; July 1, 1988; December 1, 1985;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20A .0102         APPLICABILITY OF RULES

The rules in Chapter 20 govern the funding, selection, designation, administration and operation of grants, subgrants, contracts and subcontracts funded by federal and state employment and training grants administered through the Division. Provisions in these Rules apply to individuals and entities that receive or desire to receive these grant funds, directly or indirectly, except that employment relationships and agency relationships between the Division and its employees, employees of the Department's Administrative Hearing Office, employees of the Department's Office of Legal Affairs, the Private Sector Policy Coordinator and the designated attorney in the Office of the Attorney General for the Division, shall not be considered contracts or subcontracts under Chapter 20.

History Note:        Authority G.S. 143B‑430(b);

Eff. July 1, 1980;

Temporary Amendment Eff. July 25, 1991 for a period of 180 days to expire on January 21, 1992;

Amended Eff. December 1, 1991; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20A .0103         FUNCTIONS AND LOCATION OF THE DIVISION

(a)  The functions of the Division are:

(1)           To administer federal grants awarded to the Governor under federal employment and training legislation, including JTPA;

(2)           To provide staff for the State Job Training Coordinating Council and such other councils as required by federal law;

(3)           To provide administrative and information services to subgrantees and division contractors to conduct employment and training activities;

(4)           To manage programs and resources, through written agreements with subgrantees and contractors to carry out employment and training policies and activities;

(5)           To perform functions, as the delegate of the Governor, reserved for the Governor in the Job Training Partnership Act;

(6)           To promote efficient management and coordination of job training programs in order to maximize the benefits of these programs to the citizens of North Carolina; and

(7)           To promote an active, effective partnership between local and state agencies and private business in providing job training.

(b)  The location and mailing address of the Division's main office is 111 Seaboard Avenue, Raleigh, North Carolina 27604.

(c)  Nothing in this Section shall be considered to limit the reasonable functioning of the Division or to restrict the location of division offices.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 626.1; Ex. O. No. 93, June 8, 1983;

Eff. October 1, 1984;

Amended Eff. May 1, 1992;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20A .0104         REQUESTS FOR INFORMATION BY THE PUBLIC

(a)  Anyone may request information on any rule, procedure, subgrant or contract administered by the Division by writing to the Director at the Division mailing address.

(b)  A fee set by the Director will be charged for reproduction of public documents.

(c)  All requests for information shall be subject to state and federal restrictions on dissemination of non‑public documents.

History Note:        Authority G.S. 132‑1 through 132‑9; 143B‑430(b); Ex. O. 93, June 8, 1983;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

SUBCHAPTER 20B ‑ ADMINISTRATIVE PROVISIONS

SECTION .0100 ‑ DESIGNATION OF SERVICE DELIVERY AREAS

04 NCAC 20B .0101          DESIGNATION OF SERVICE DELIVERY AREAS

(a)  The Governor, after recommendations from the State Job Training Coordinating Council, designates service delivery areas, including the Rural Service Delivery Area, to promote the efficient delivery of job training services throughout the state, consistent with the requirements of Section 101 of JTPA.

(b)  The Rural Service Delivery Area includes units of government that did not individually or in combination with any other units of government seek or qualify for designation as a service delivery area other than as a unit of government within the Rural Service Delivery Area. The Rural Service Delivery Area was designated to facilitate the provision of employment and training services to citizens of those units of government.

(c)  Requests or petitions for designation as a service delivery area must be timely received by the Director, according to schedules published by the Director. Requests or petitions must be approved by the State Job Training Coordinating Council, where necessary, in compliance with Section 101 of JTPA.

(d)  The right to designation as a service delivery area under Section 101 of JTPA may be forfeited in the event that subgrant funds are grossly or abusively misappropriated, or the activities are grossly or abusively maladministered. The Governor reserves the right, after procedures required herein, to determine that the designation of a particular service area would not serve the best interests of the residents of the area and would not protect the integrity of funds that the state may be liable to recoup to USDOL in the event of misexpenditure.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 628.1; Ex. O. No. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0102          REDESIGNATION OF SERVICE DELIVERY AREAS

(a)  Service delivery areas may be redesignated from time to time, as permitted in JTPA and by this Chapter 20. Redesignations may be initiated by a voluntary petition for redesignation, by a notice of failure to agree on a job training plan or by involuntary redesignation.

(b)  Voluntary petitions for redesignation.

(1)           A unit of government or a consortium of units of government may seek redesignation by the filing of a petition for redesignation. The petition will request the realignment of the service delivery area(s) that the unit(s) of government currently fall within and the designation of either a new service delivery area or the inclusion of the petitioning unit(s) of government in an existing service delivery area.

(2)           A redesignation petition must state the basis on which the unit(s) of government qualify as a service delivery area, a statement of reasons for the redesignation request, a copy of the proposed consortium agreement, if any, a summary of the steps to be taken to procure public comment on the redesignation, including a schedule on which the steps should be taken, the effect, if any, on the current service delivery area(s) of the unit(s) of government and the effect of redesignation on the provision of services within the current service delivery area(s).

(3)           The redesignation petition must be filed with the Director, with a copy to the chairperson(s) of the private industry council(s) in the present service delivery area(s), at a time sufficiently in advance of the proposed designation to permit publication, comment and approval of the redesignation at least four months prior to the beginning of the program year with which the redesignation would be effective.

(4)           Voluntary redesignation of a service delivery area may not occur any more often than once every two years, provided that inclusion of additional units in or removal of units from the Rural Service Delivery Area shall not be subject to this restriction.

(5)           Petitions for redesignation may be filed by unit(s) of government in a service delivery area that is subject to a reorganization plan under Section 106(h) of JTPA, at any time, which petition the Governor will endeavor to accommodate.

(c)  Redesignation After Notice of Failure to Agree.

(1)           A unit of government that serves as a service delivery area or any unit or units of government in a consortium that serves as a service delivery area must notify the Director when it is clear to the appropriate chief elected official(s) that the private industry council and the chief elected official will not agree on a service delivery area job training plan. The Director may endeavor to negotiate a mutually agreeable job training plan, but will not be required to do so if he or she reasonably believes that negotiation would be unproductive.

(2)           The notice of failure to agree must be accompanied by a request for redesignation containing the information required in Paragraph (b)(2) of this Rule and attaching a copy of the resolution of the governing board or statement of the chief elected official that agreement on the job training plan will not be reached.

(d)  Involuntary Redesignation.

(1)           If the Governor determines that, because of shifts in population or changes in originally designated service delivery areas, the existing service delivery areas do not satisfy the intent of JTPA, the Governor may request that the State Job Training Coordinating Council propose appropriate service delivery areas as described in Section 101 of JTPA. Units of government and consortia of units of government may request designation as a service delivery area.

(2)           If the Governor determines that an existing service delivery area has grossly or abusively misappropriated funds or grossly or abusively maladministered activities, and if corrective action has not been taken, the Governor may condition the receipt of future subgrant funds on the filing of a petition for redesignation under Paragraph (b) of this Rule, provided that his sanction shall only be used where the existing designation does not serve the best interests of the residents of the service delivery area and would not protect the integrity of funds, for which the state may be liable.

(e)  Redesignations will be accompanied by a reconstitution of the affected private industry councils.

(f)  The redesignation of the service delivery area for any unit(s) of government shall not affect the right of the Division to proceed against the unit(s) of government for disallowed costs incurred by the service delivery area grant recipient during the period in which the unit(s) of government belonged to the service delivery area.

(g)  Determinations under this Section are reviewable pursuant to 4 NCAC 20C .0002 or by the Secretary of USDOL if JTPA Section 101 (A)(4)(c) applies.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 628.1; Ex. O. No. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1988; July 1, 1988; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0103          RESERVED

04 NCAC 20B .0104          LOCATION

04 NCAC 20B .0105          REQUESTS FOR INFORMATION BY THE PUBLIC

04 NCAC 20B .0106          FUNCTIONS

04 NCAC 20B .0107          ADMINISTRATIVE PROCEDURES: COMPLAINTS AND SANCTIONS

04 NCAC 20B .0108          GENERAL HEARING AND APPEAL PROCEDURES

History Note:        Legislative Objection Lodged Eff. March 9, 1983;

Statutory Authority G.S. 132‑1; 132‑6; 143B‑430(b); 150B‑2(2); 150B‑11; 150B‑23;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. March 1, 1983; August 1, 1982;

Repealed Eff. October 1, 1984.

04 NCAC 20B .0109          COMPLAINTS: DEMONSTRATED EFFECTIVENESS: CONTRACT BIDS

History Note:        Legislative Objection Lodged Eff. March 9, 1983;

Statutory Authority G.S. 143B‑430(b); 150B‑2(2); 150B‑11; 150B‑23;

Eff. March 1, 1983;

Repealed Eff. October 1, 1984.

SECTION .0200 ‑ PLANNING AND CONTRACTING

04 NCAC 20B .0201          JOB TRAINING PLANS FOR SERVICE DELIVERY AREAS

(a)  An acceptable and approved job training plan is a prerequisite to the receipt of subgrant funds from the Division. Except for the grant period that expires June 30, 1984, the job training plan shall cover two program years.

(b)  The job training plan must be developed as described in the written agreement between the private industry council and the chief elected official(s) and in a manner consistent with federal law. The proposed plan or a summary thereof must be published and made available for review and comment to groups designated in the JTPA, any specific groups required by the Division and the public, at least 120 days before the beginning of the first of the two program years covered by the job training plan. The final plan must be published not less than 80 days before the beginning of the first of the two program years. The final plan must be submitted in writing not less than 80 days before the beginning of the first of the two program years.

(c)  The job training plan shall be submitted in a format required by the Division. It must have received the approval of the private industry council, and bear the signature of that chairperson, and the chief elected official(s), and bear the signature(s) of the official(s). It shall address all the requirements in Section 104 of the JTPA.

(d)  Modifications shall be treated in the same manner as plans, except that publication 120 days in advance of the first of the two program years is not required. Modifications must be published and submitted at least 80 days before their effective date. Amendments of a minor matter not effecting a material change in the job training plan may be deemed by the Division to constitute clarifications rather than modifications.

(e)  The Governor, upon recommendation of the State Job Training Coordinating Council, will approve job training plans and modifications unless he finds that a condition identified in Section 105(b) of the JTPA is present or that the plan or modification violates state law. Approval or disapproval will occur within 30 days of submission of the plan or modification, except as described in Paragraphs (f) or (g) of this Rule.

(f)  Individuals who represent a substantial client interest and took appropriate steps to present his or her views and seek resolution prior to submission of the plan to the Governor may, upon demonstration of such qualification, petition the Director, as delegate of the Governor, to disapprove a plan or modification, provided that the petition must be in writing received within 15 days of submission of the plan or modification or within 10 days of submission of a resubmitted plan or resubmitted modification and that the petition must specify that the request is based on a violation of statutory requirements in the plan itself. Petitions that fail to comply with the requirements of this Paragraph will not be considered. If the Governor approves the plan, the Director, as delegate of the Governor, will notify the petitioner of the approval and the reasons thereof. If a petition is filed, the time for approval or disapproval of an original plan or modification shall be extended an additional 15 days.

(g)  In the event of disapproval of a job training plan or modification, the Director will notify the chairperson of the private industry council and the chief elected official(s), who shall have 20 days from receipt of that notice to file with the Director a correction of the deficiencies in plan or modification. The Governor shall review and approve or disapprove the resubmitted plan or modification within 15 days, which 15 days may not be extended by a petition under Paragraph (e) of this Rule, although a petition that satisfies the requirements of Paragraph (e) of this Rule will be considered.

(h)  In the event of disapproval of a plan or modification or a resubmitted plan or modification, the chairperson of the private industry council, jointly and in writing, may appeal the disapproval to the Secretary of Labor, as set forth in 20 C.F.R. 628.5(c) provided such appeal is received within 30 days of receipt of the disapproval, that a copy of the appeal is simultaneously provided to the Secretary of Labor, and that federal requirements are met.

(i)  In the event that approval or disapproval is not made within the time required by these Rules, the existing job training plan shall continue to control the operation of activities by the service delivery area administrative entity until approval or disapproval.

(j)  In the event of disapproval of a job training plan and expiration of the prior approved job training plan, the Director may elect to continue operation under the prior approved job training plan until correction of deficiencies, resubmission and approval or until resolution of an appeal by the service delivery area private industry council and chief elected official(s) of the disapproval, or the Director may elect to take appropriate measures to assure the operation of job training activities in the service delivery area consistent with state law and policy and federal law during resolution of the appeal of disapproval, provided that such measures may not be punitive and shall be consistent with the job training plans approval for other service delivery areas.

(k)  In the event of further administrative or civil action by a petitioner under Paragraph (e) of this Rule after the Governor has approved a job training plan or modification, the plan or modification shall not be delayed by the further action unless ordered by a tribunal of competent jurisdiction, by the Secretary of Labor or by the Governor in his discretion, which discretion shall not be exercised unless there is a likelihood of substantial injury to the petitioner's client interest and unless there is insubstantial harm from delay.

(l)  The Rural Service Delivery area is not the state, under Section 105(d) of the JTPA, and shall submit its job training plan and any modification to the Governor.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 628.4; Ex. O. No. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1988; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0202          JOB TRAINING CONTRACTS BY THE DIVISION

(a)  The Division may enter into written contracts for the operation or administration of job training activities, or any part of them, with contractors. Bidders, in the case of requests for proposals, or prospective contractors, when there is no formal request for proposals, must submit an application in a form required by the Division, which must be accurately completed, signed by an authorized signatory and received by the Division in accordance with the schedule established by the Division.

(b)  Only entities that fulfill the following criteria will be eligible to receive a contract:

(1)           As to units of government, including state agencies, the entity must be in compliance with all applicable federal and state statutes dealing with accounting and budgeting, must be cooperating in the resolution and collection of previously disallowed costs, if any, in a previously funded employment and training program (provided that the pursuit of appeals shall not constitute failure to cooperate), and must be willing to accept responsibility for contract funds, including any potential future liability that may arise out of the use of the contract funds.

(2)           As to non‑governmental bidders and prospective contractors, including profit and non‑profit organizations, the entity must have an accounting system including a designated finance officer and internal fiscal controls, that are compatible with the reporting systems required by USDOL and the Division and that satisfy the Division of the fiscal integrity of contract funds. The entity must be capable of providing the Division with assurances, through past performance or otherwise, that it will comply fully with federal and state regulations, and the entity must be willing to accept responsibility for the contract funds, including any potential future liability that may arise out of the use of the contract funds.

(c)  Contracts may be entered into for a period that does not extend beyond one fiscal year. Contracts for a period of one year or less that are part of a proposal to conduct an activity over more than one year may be extended by the Division if the performance under the original contract is satisfactory. In such an event, the extension shall be accomplished by the execution of a new contract document, but, in the event that a request for proposals would otherwise be required, it may not be required for the extension.

(d)  The selection of service providers by the Division shall be guided by the following criteria: the effectiveness of the agency or organization in developing comparable or related services based on demonstrated performance goals, cost, quality of training, and characteristics of participants; the ability of the service provider to provide linkages required by the Governor's Coordination and Special Services Plan; the record of the service provider as a contractor under previous employment and training grants or other federal grants, including the monitoring and audit history of the contractor and the compatibility of the service provider and the program or projects offered with job training services and service providers throughout the area and the state. The Division shall not be required to contract with any service provider about whom the Division has a verifiable reason to doubt its fiscal or programmatic integrity.

(e)  In the event that the Division determines to accept applications for the operation of a program or project where the program or project could not reasonably be operated by more than three specific contractors, such as residential programs for institutionalized individuals, the Division will not advertise generally for proposals or applications. Entities that have specifically requested, by writing to the Director, that they wish to receive and have the opportunity to submit proposals for applications for the specific type of job training activities sought under this Paragraph must be considered viable prospective contractors unless they fail to meet the qualification set out in Paragraph (b) of this Rule. This procedure is limited to instances in which a total of three potential contractors or less are identified, and this procedure does not affect the availability of sole source contracting, when such is appropriate.

History Note:        Authority G.S. 143B‑430(b); 143B‑277; 20 C.F.R. 627.21; 20 C.F.R. 629.34; Ex. O. No. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0203          CONTRACT STANDARDS

(a)  In consideration for receiving JTPA funds from the Division, the subrecipient shall enter into an agreement with the Division. Agreements may be subgrant agreements, contracts for job training services or contracts for services or goods. All agreements are subject to existing purchase and contract regulations, except as specifically exempted.

(b)  Contracts for the purchase of services, other than job training services, and goods are governed solely by the purchase and contract regulations, except to the extent the procurement falls under the federal regulations. Contracts for small purchases, that is contracts for services or goods that do not exceed ten thousand dollars ($10,000) in the aggregate from a single contractor in a single billing period, shall be construed by the Division to be exempt from the federal regulations as to content and provisions for services and goods contracts.

(c)  Contracts for job training services are subagreements for carrying out the substantive parts of the project for the purposes of the federal regulations.

(d)  Subgrants and contracts for job training services must contain the following minimum requirements:

(1)           A plan of work, such as a job training plan or a proposal or application;

(2)           A budget;

(3)           A period of services, with a stipulation that the agreement shall not be considered completed for statute of limitation purposes until final federal action on any disallowed costs incurred under the agreement;

(4)           Agreement to comply with applicable federal and state laws and procedures;

(5)           A recognition of the Division's right to modify the terms to comply with changes in federal law or state statutes, provided that except where such changes are permitted to have retroactive effect, such unilateral modification may only have prospective effect;

(6)           Reasonable constraints on subcontracting and subcontract terms;

(7)           Budgeting, invoicing, payment and closeout provisions, including provisions requiring the subgrantee or contractor to return unexpended funds to the Division, to waive claims to reimbursement for costs not submitted with the closeout period and to acknowledge the Division's right to offset, withholding and other appropriate recoupment procedures, including repayment;

(8)           Recordkeeping, reporting and accounting provisions, consistent with federal law and state policies;

(9)           Provisions relative to property procurement and management;

(10)         Civil rights assurances, including provisions for a grievance procedure as required and identification of an equal employment opportunity officer;

(11)         Provisions permitting monitoring, oversight and investigation by division and federal personnel;

(12)         Prior approval of the governing board or authorized official, if such is required;

(13)         The hearings procedure applicable to the agreement and disputes thereunder;

(14)         Provisions relating the amendment of the agreement, acknowledging the Division's right to amend the agreement unilaterally in those instances in which the Division is permitted by law to amend unilaterally, such as when the Division relieves the subgrantees or contractor of an obligation under the agreement, and in those instances when a change in federal or state law or a clarification in state policy requires an amendment, provided that such amendments, unless otherwise permitted to have retroactive effect, will have prospective effect only; and

(15)         The signatures of the authorized signatories for the Division and for the subgrantee or contractor, although the signatures may occur on identical counterparts of the same agreement.

(d)  The goals and obligations of the subgrantee or contractor must be clearly addressed in the job training plan or application or proposal and must be stated in unambiguous terms. The approval of a subgrant or a contract and its execution by the Division does not constitute agreement by the Division that the requirements of this Paragraph have been satisfied.

(e)  To the extent that any language in the job training plan or contract application or proposal or any term of the contract or subgrant conflicts with federal law, it shall be construed, if possible, in a manner that shall not cause a conflict with federal law, and if such is not possible, it shall be construed as void ab initio but shall not effect the remainder of the subgrant or contract.

History Note:        Authority G.S. 143‑277; 143B‑430(b); 20 C.F.R. 629.34; 41 C.F.R. 29‑70; Ex. O. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0204          DIVISION RESPONSIBILITIES

04 NCAC 20B .0205          TECHNICAL ASSISTANCE AND MONITORING

History Note:        Authority G.S. 143B‑430(b) through 279; 20 C.F.R. 676.51 through 54;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1982;

Repealed Eff. October 1, 1984.

04 NCAC 20B .0206          REQUIRED REPORTING

04 NCAC 20B .0207          REPORT TO THE GOVERNOR ON EQUAL EMPLOYMENT OPPORTUNITY

04 NCAC 20B .0208          DISTRIBUTION OF REPORTS

History Note:        Authority Title VI of the Civil Rights Act of 1964; Title VII of the Civil Rights Act

of 1964, as amended by the Equal Opportunity Act of 1972; Federal Executive Order

11246, as amended by Executive Order 113.75; Comprehensive Employment and

Training Act of 1973, as amended by Public Law 93‑567; 143B‑430(b);

Eff. February 1, 1976;

Transferred From T01: 18 Eff. September 15, 1981;

Repealed Eff. August 1, 1982.

SECTION .0300 ‑ FISCAL STANDARDS

04 NCAC 20B .0301          BUDGETING

(a)  Subgrantees and contractors shall prepare estimated budgets as described in division instructions, consistent with federal regulations and shall submit the budgets as part of their job training plans or contract applications. Amendments to or deviations from the budget shall be governed by the subgrant agreement or the contract document.

(b)  Each subgrantee and contractor shall maintain its budget in accordance with the provisions of the applicable budget and fiscal control acts in the General Statutes, the subgrant or contract and the federal law.

History Note:        Authority G.S. 143B‑430(b); 159‑7; Ex. O. No. 93, June 8, 1983; OMB Circular A‑102, January, 1981;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0302          ACCOUNTING STANDARDS

Accounting systems of subgrantees and contractors must be created and maintained to provide fiscal integrity, cash management as required by the United States Department of the Treasury, access to fiscal information for monitoring and as required for federal and state reporting and the creation of auditable books and records. The Division may develop specific accounting procedures to effectuate those goals, which, when developed and formally issued as required by the contract and subgrant agreements, shall become terms of the contract and subgrant agreements.

History Note:        Authority G.S. 143B‑430(b); 159‑7; OMB Circular A‑102, January, 1981; Ex. O. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0303          COST STANDARDS

(a)  For cost reimbursement contracts and subgrants, the subrecipient may elect to receive its costs by advance or by reimbursement, unless the Division determines to condition funding by requiring reimbursement, which shall usually be limited to interruptions in federal funding or the absence of assurance of the fiscal integrity of the subrecipient.

(b)  Subrecipients shall include in expenditure or reimbursement reports all allowable costs actually incurred during the report period. Allowable costs or expenditures and the frequency and format of financial reporting will be determined by the Division and by federal law and reporting requirements.

(c)  Cost standards may vary according to the type of contract or subgrant agreement executed between the Division and the subrecipient.

(d)  Any subgrantee or division contractor that intends to recover, by advance or reimbursement, must have an approved indirect cost rate negotiated with its cognizant agency or, if it has no federal cognizant agency, with the Division. A subgrantee or division contractor that reimburses or advances payment for indirect costs to its contractors and a contractor that reimburses or advances payments for indirect costs to its subcontractors are responsible for ascertaining the existence of, or negotiating those indirect cost rates.

(e)  Income derived from activities that have been funded by JTPA funds, with the exception of on‑the‑job training and tryout employment, is program income and is subject to division instructions on program income. Any such income shall increase the funds for that program and shall be used for program purposes (without regard, however, to cost categories) unless otherwise specifically prohibited. Program income received by state agencies, local education agencies and quasi‑public non‑profit organizations, such as private non‑profit hospitals, may be exempted from all or some of the program income instructions on a showing to the Division of good cause for the exemption.

(f)  In‑kind contributions of services and donations of property are generally allowable only to offset disallowed costs, except that in‑kind contributions and donations may be used for matching fund purposes. Offset is only permissible with the prior written approval of the Division.

(g)  The matching contribution required for some employment and training activities may, without limitation, consist of:

(1)           Charges incurred by a subrecipient as project costs including charges not requiring cash outlays during the subgrant or contract period;

(2)           Federal funds, only to the extent the authorizing legislation specifically permits their use as matching funds;

(3)           Project costs financed with cash contributed or donated to the subrecipient by non‑federal third parties;

(4)           Employer's on‑the‑job training contributions;

(5)           Full time equivalency accruals in the community college system earned by Title III participants (available for Title III only);

(6)           Unemployment benefits paid from state funds to participants (limited to 50 percent of the matching funds contribution);

(7)           Employers' expenditures on behalf of Title III participants, such as the cost associated with outplacement centers, retraining programs, resume services and the like, during the period of the subgrant or contract and to the extent that the activities conducted are allowable activities within the contract or subgrant;

(8)           Education costs, which may be based on a proportion of actual costs relative to the participation of participants in the education services, plus extraordinary costs of education services, provided to JTPA participants;

(9)           In‑kind services, to the extent approved, that provide services that are reasonable and necessary for the proper and efficient operation and accomplishment of program or project objectives;

(10)         Donated property that is necessary and reasonable for the proper and efficient operation and accomplishment of program or project objectives, which may be considered as part of the matching share on approval of the Division; and

(11)         Such other property, services, expenditures or costs as the Director may determine contributes to program or project objectives.

History Note:        Authority G.S. 143B‑430(b); 20 C.F.R. 629.31; 20 C.F.R. 629.46; 41 C.F.R. 29.70; OMB Circular A‑102, January 1981; Ex. O. 93, June 8, 1983;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0304          PROCUREMENT AND PROPERTY STANDARDS

(a)  In order to insure that the maximum benefit is derived from subgrant and contract funds, subrecipients must adhere to all federal, state, local and internal procurement guidelines. Non‑governmental subrecipients must adopt and adhere to procurement procedures that reflect compliance with the intent of laws and regulations applicable to governmental subrecipients, specifically prohibitions on solicitation or acceptance of anything of monetary value from suppliers or potential conflict of interest for a member of the board of the subrecipient, an officer of the subrecipient, an employee or agency of the subrecipient, or a member of the immediate family of a board member, officer or employee.

(b)  Cost plus a percentage of cost contracts are prohibited.

(c)  Real property may not be procured or received without prior written authorization from the Division. Nonexpendable property may not be affixed to real property without the prior written authorization of the Division. The Division may condition the procurement or receipt of real property or the affixation of nonexpendable property to real property, as the Division considers is necessary to comply with federal law and to effectuate JTPA policies. Except where specific written authorization has been procured, the affixation of nonexpendable property to real property is a conversion of that property.

(d)  Nonexpendable property shall be subject to the following regulations:

(1)           Title to property. Title to all nonexpendable property, except nonexpendable property to which the federal government claims title, that is purchased with federal employment and training funds received directly or indirectly through the Division, shall be in the name of the Department. To the extent possible, nonexpendable property should be procured with funds from a single grant source, to facilitate identification of nonexpendable property. Where nonexpendable property is purchased in part with JTPA funds and in part with other funds, the Department has a proportionate interest in the property and it is covered by this Paragraph.

(2)           Use. Nonexpendable property may be used by the subgrantee or contractor as long as there is a need for such property to accomplish the subgrant or contract objectives, or the objectives of subsequent contracts or subgrants from the Division, supported by JTPA funds.

(3)           Transfer. When the subgrantee or contractor no longer needs the nonexpendable property, it is the responsibility of the subgrantee or contractor to return the property to the physical control of the Division. The Division may provide transportation for the property. This Section shall not apply if the depreciated value of the property is less than one hundred dollars ($100.00), in which case the subgrantee or contractor, after completion of any required forms, may retain the nonexpendable property, unless the federal government has a claim to the title of the property.

(4)           Constructive Transfer. The use of property for non‑JTPA purposes will be deemed a constructive transfer to the subgrantee or contractor, which will be liable for the fair market value of the nonexpendable property at the time of the constructive transfer. The fair market value will be payable to the Division, or in the Division's discretion, to the subgrant or contract funds, where it will be treated in all respects as program income, except that the exemption for on‑the‑job training and tryout employment programs will not apply to program income generated in this manner.

(5)           Non‑expendable property must be subjected to a physical inventory not less than once a year. Subgrantees must identify property officers responsible for the maintenance of an inventory. The Division will conduct the inventory of its contractors' nonexpendable property and will conduct periodic reviews of the inventory of subgrantees' nonexpendable property. Physical inventories made other than at the close of the fiscal year must be updated effective the last day of the fiscal year.

(6)           All nonexpendable property must have property labels, as required by the state and federal regulations, affixed. The property officer for the subgrantee shall be responsible, in concert with the Division, for assuring that all subgrantee nonexpendable property bears the appropriate label(s).

(7)           Property records shall be maintained accurately and shall provide:

(A)          A description of the property;

(B)          Manufacturer's serial number or other identification number;

(C)          Acquisition date and unit acquisition cost;

(D)          Source of the property;

(E)           Percentage of JTPA funds used in the acquisition;

(F)           Location, use and condition of the property;

(G)          State and/or federal government control number from label; and

(H)          Ultimate disposition data.

(8)           Adequate maintenance procedures shall be implemented to insure maximum use of the property.

(9)           Nonexpendable intangible property shall become the property of the Division when developed by or in a funded activity, as a work for hire by the Division. The intangible property shall be available, for the costs of reproduction to any subgrantee or contractor for JTPA purposes, and shall be available as otherwise required by the federal regulations. Income generated from intangible property will be payable to the Division, to the subgrant or contract funds where the intangible property was developed, where it will be treated as program income.

(e)  Nothing in Rule .0304 is meant or should be interpreted to contravene applicable federal law governing the procurement, use or disposition of property acquired by a subrecipient with federal funds.

(f)  Property donated to a subrecipient shall not be construed as donated to the grant or contract itself unless it is specifically so designated. The value of donated property may be used for matching funds purposes without donation to the grant or contract. In the event that property is donated to the grant or contract, it shall be treated as acquired property subject to applicable regulations. The unit acquisition cost upon which the property should be categorized is the fair market value at the time of donation.

(g)  Property purchased by a subrecipient with funds generated by or in a performance‑based contract is not subject to Rule .0304.

History Note:        Authority G.S. 143‑277; 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.41; 41 C.F.R. 29‑70;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. June 1, 1985; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0305          ADMINISTRATION OF THE PLANS

History Note:        Authority G.S. 143B‑430(b) through 279; 20 C.F.R. 676.37:

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1982;

Repealed Eff. October 1, 1984.

04 NCAC 20B .0306          PROGRAM ASSESSMENT

04 NCAC 20B .0307          CORRECTIVE ACTION

History Note:        Authority G.S. 143B‑430(b); 143B‑395; P.L. 93‑203 as amended by P.L. 93‑567;

Eff. February 1, 1976;

Transferred From T01: 18 Eff. September 15, 1981;

Repealed Eff. August 1, 1982.

SECTION .0400 ‑ PERSONNEL STANDARDS FOR SUBRECIPIENTS

04 NCAC 20B .0401          GENERAL PERSONNEL STANDARDS FOR SUBRECIPIENTS

Proper and efficient administration of employment and training programs requires proper and efficient personnel administration within a subrecipient's organization and in cooperation with federal, state and local agencies involved in administering employment and training activities. Subrecipients should engage in activities to enhance efficiency such as clear organization structure, definition of job functions, recruitment and employment of qualified personnel and the development of individual employee efficiency.

History Note:        Authority G.S. 126; 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 628.3; 5 C.F.R. 900, Subpart F;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20b .0402          federal personnel standards

04 NCAC 20B .0403          state personnel standards for subrecipients

History Note:        Authority G.S. 115C, Subchapter V (Rule .0403); 126-1 (Rule .0403); 143-16; 143-16.1; 143-341; 143B-430(b); 5 C.F.R. 900, Subpart F (Rule .0402); 20 C.F.R. 629.1 (Rule .0402);

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Repealed Eff. July 1, 2012.

04 NCAC 20B .0404          CERTAIN POLITICAL ACTIVITIES PROHIBITED

(a)  The federal Political Activities Act, commonly referred to as the Hatch Act, places certain restrictions on the political activity of individuals employed in federally funded activities. The Hatch Act is applicable to subrecipient employees who are covered by the definitions in the act.

(b)  Technical assistance in the interpretation and application of the act is available from the Office of the Special Counsel of the United States Merit Systems Protection Board, 1120 Vermont Avenue, N.W., Washington, D.C., 20419.

History Note:        Authority G.S. 143‑16; 143‑16.2; 143‑341; 143B‑430(b); 5 U.S.C. 1502(a)(3); 5 U.S.C. 1503; 20 C.F.R. 629.3;

Eff. February 1, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0405          FISCAL REPORTING REQUIREMENT: GENERAL

04 NCAC 20B .0406          METHODS OF PAYMENT

04 NCAC 20B .0407          INVOICE PROCEDURES AND PENALTIES

04 NCAC 20B .0408          OTHER REPORTING REQUIREMENTS

04 NCAC 20B .0409          AUDITING REQUIREMENTS

04 NCAC 20B .0410          PROGRAM MONITORING REQUIREMENTS

04 NCAC 20B .0411          CONTRACTS ADMINISTRATION POLICIES AND PROCEDURES BULLETIN

History Note:        Authority G.S. 143B‑430(b); 143B‑395; P.L. 93‑203 as amended by P.L. 93‑567;

Eff. February 1, 1976;

Transferred From T01: 18 Eff. September 15, 1981;

Repealed Eff. August 1, 1982.

04 NCAC 20B .0412          NON‑DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY

(a)  Subrecipients shall not discriminate against any employee, including participants and potential beneficiaries of employment and training programs or projects because of race, color, sex, religion, handicap, political affiliation or national origin. This applies to all programs, projects or activities funded in whole or in part with federal employment and training funds received directly or indirectly through the Division.

(b)  Each subgrantee and division contractor is responsible for designating an equal employment opportunity officer, who shall be responsible for assuring that discrimination does not occur in that subrecipient's programs or projects. The Division may require the equal employment opportunity officer to certify the procedures by which the officer secured that assurance. The equal employment officer for a subrecipient is also responsible for the development of a grievance procedure that provides an opportunity for hearings that USDOL designates are not the primary responsibility of USDOL. The equal employment officer is responsible for disseminating information to employees and participants concerning the subrecipient's nondiscrimination policy and the grievance procedures.

(c)  Division contractors may request that the Division provide equal employment opportunity services for the contractor.

(d)  All subrecipients will be subject to periodic review for compliance with Paragraph (a) of this Rule, which review will be made by division staff. Division staff may recommend corrective measures to assure nondiscrimination, and, in the event of failure to correct deficiencies, the Director may impose such sanctions as are available under the contract or subgrant for failure to comply with a term of the contract or subgrant.

History Note:        Authority G.S. 143‑16; 143‑16.1; 143‑341; 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.3;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0413          NEPOTISM PROHIBITED

(a)  Subrecipients must include provisions in their personnel policies guarding against nepotism. The nepotism prohibition should apply to subrecipient staff.

(b)  At a minimum the nepotism provisions should prohibit the employment of two or more members of an immediate family within the same agency if such employment will result in one member supervising another member of his or her immediate family, or where one member occupies a position that has influence over the other's employment, promotion, salary administration or other related management or personnel considerations, except where such functions are wholly ministerial.

(c)  All subrecipients must ensure that the selection of program participants is protected from undue consideration being granted to immediate family of program or administrative staff members.

History Note:        Authority G.S. 14‑234; 143B‑430(b);

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

SECTION .0500 ‑ REPORTING AND EVALUATION

04 NCAC 20B .0501          REPORTING AND RECORDS

(a)  Each subgrantee and division contractor is required to report data to the Division in a manner prescribed by the Division. The Division shall require the reporting of such data as is necessary for the administration of an effective, efficient and complying program and is necessary for preparation of reports as required by USDOL.

(b)  To the extent that automated or electronic data systems can be utilized to gather, prepare and disseminate such reports, the subgrantee and contractor should endeavor to use such systems. The Division will provide guidance and technical assistance regarding standards for data formats, files and other related aspects of a system.

(c)  Records relating to funded activities must be maintained for at least three years from the close of the fiscal year in which the activities were conducted. In the event that an audit has been conducted that identifies questioned costs, the records must be maintained until final resolution of the questioned costs (through recoupment or allowance) by USDOL or in a court of last resort.

(d)  The Division shall endeavor to utilize available automated or electronic data systems to facilitate reporting, by developing reporting formats compatible with such systems and by permitting reporting and recordkeeping through such systems.

(e)  Every subrecipient shall be obligated to notify the Division by the quickest means appropriate of all violations or reasonable suspicion of violations occurring in any funded activity or in the administration of an entity that manages or operates funded activities. The subrecipients shall inform all staff that they have an independent obligation to make such reports. It shall be a violation of these Regulations and a ground for revocation of funding to take retaliatory action in any way against any person who reports alleged misconduct under this Paragraph.

History Note:        Authority G.S. 143‑16; 143‑16.1; 143‑341; 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 529.35; 41 C.F.R. 29‑70.203;

Eff. November 17, 1976;

Transferred from T01: 18; Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0502          EVALUATION

(a)  Subrecipients shall assist the Division, USDOL, and, if applicable, the private industry council in the service delivery area and/or the State Job Training Coordinating Council, or any agent of them, in conducting evaluations, monitoring and assessment of their funded activities. This requirement includes access to local records (including the records of on‑the‑job training and tryout employment employers), staff and participants and, if requested, the participation of local staff on evaluation task forces and at workshops. The Division will be responsible for ensuring the subrecipients are informed as soon as possible about evaluation and monitoring needs and emphasis will be placed on minimizing disruption of subrecipient operation. Unless the regulations or policy of USDOL prohibit it, or unless the matter is referred to state or local prosecutorial or investigatory officials for review, the Division will provide results of pertinent evaluations and monitoring to the subrecipient.

(b)  The Division will monitor for fiscal and programmatic compliance, for proper management, for civil rights compliance and for such other purposes as are reasonable for administration of the grants by the Division and/or are required by federal law.

(c)  The Division will perform the functions of the Governor with regard to assessment of a subrecipient's compliance with its job training plan and the subrecipient's performance based on the performance standards set forth in Section 106 of the Job Training Act and any federal regulations or directives issued pursuant to that section. The Division, as delegate of the Governor, may vary the performance standards suggested by USDOL, to the extent permitted by Section 106(e), and the Division shall provide technical assistance to subgrantees that fail to meet performance criteria.

(d)  The Division, as delegate of the Governor, shall impose a reorganization plan on a subgrantee that fails to meet performance standards for two consecutive years. The reorganization plan may involve restructure of the private industry council, prohibition of designated service provider contracts, selection of an alternate administrative entity and/or such other changes as are deemed necessary to improve performance. In the event an alternate administrative entity is selected, the Division and the chief elected official of the largest unit, in population, of general local government in the service delivery area shall jointly select the new administrative entity.

(e)  The Division will notify the chief elected official and chairperson of the private industry council in a service delivery area of the determination under Paragraph (d) of this Rule. The subgrantee has a right to a hearing on the issue of whether the determination is contrary to Section 106 of the Job Training Partnership Act. A request to exercise the right to a hearing must be filed in accordance with Subchapter 20C .0002. During the pendency of the appeal at the state level, no reorganization plan will be carried out.

(f)  A subgrantee aggrieved by the determination and decision in Paragraphs (d) and (e) of this Rule may appeal the decision to the Secretary of USDOL, which appeal must be in writing and must be received within thirty days of receipt of the final decision under Paragraph (e) of this Rule. A copy of such an appeal to USDOL must be provided simultaneously to the Division, as delegate of the Governor.

(g)  The existence of sanctions in this Section for failure to meet performance standards does not prevent the Division from imposing contractually permitted sanctions, not specified in this Section, for failure to comply with the terms of subgrant agreement or contract document.

History Note:        Authority G.S. 143‑16; 143‑16.1; 143‑341; 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.46;

Eff. November 17, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1988; July 1, 1988; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0503          MEETINGS

04 NCAC 20B .0504          STAFF SUPPORT

History Note:        Authority G.S. 143B‑430(b); 143B‑341; 20 C.F.R. 676.7(c);

Eff. November 17, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. August 1, 1982;

Repealed Eff. October 1, 1984.

SECTION .0600 ‑ AUDIT STANDARDS

04 NCAC 20B .0601          ANNUAL FINANCIAL AND COMPLIANCE AUDIT

Unless specifically permitted to conduct a financial and compliance audit every two years or unless exempted from this Section, each subrecipient shall have an annual financial and compliance audit by an independent audit organization. Audits shall be conducted in accordance with the applicable auditing standards established by the General Accounting Office, the Comptroller General (in Standards for Audit of Governmental Organizations, Programs, Activities and Functions) and the American Institute of Certified Public Accountants and any compliance supplements issued by the State Of North Carolina. Two copies of the audit and a management letter, which may be separate from the audit, shall be provided to the Division by the auditor.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.42; OMB Circular A‑102, January 1981;

Eff. November 17, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0602          AUDIT CONTRACTS

(a)  The Division policy on JTPA audits is that each subrecipient shall have an annual single audit pursuant to Attachment "P" of the Office of Management and Budget, that is a financial and compliance audit of an entity on an organization‑wide basis rather than an audit of JTPA subgrants or contracts only. Exceptions to this policy will be made only to the extent permitted by USDOL or the Division pursuant to Rule .0603 of this Section or otherwise excepted by the Division and acknowledged in writing by the Director.

(b)  The service delivery grant recipient is responsible for assuring that its contractors and subcontractors have annual financial and compliance audits, and the delegation of that responsibility to the contractors and subcontractors shall not relieve the service delivery area grant recipient of that responsibility.

(c)  The auditor should be selected and report to the governing board or commission of a subrecipient. The selection of an auditor should be made in accordance with procurement requirements. The audit contract should be in writing and shall contain all appropriate terms and conditions, including access of the Division to audit workpapers for use in audit resolution. Specific mention shall be made in the contract of the scope of the audit, completion date, financial statements to be provided, and assurance that the statements will be in a generally accepted format for such funds. Attachment "P" of the Office of Budget and Management Circular A‑102 should be provided to the auditor.

(d)  The costs of such audits shall be borne by the subrecipient and are allowable administrative expenses, provided the costs are reasonable and subject to applicable limitations on administrative expenses. The Division may determine to bear the costs of all or some of such audits, but shall not be required to do so.

History Note:        Authority G.S. Ex. O. 93, June 8, 1983; 20 C.F.R. 629.42; 143B‑430(b); OMB Circular A‑102, January, 1981;

Eff. November 17, 1976;

Transferred from T01: 18; Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0603          EXCEPTIONS TO AUDIT REQUIREMENTS

(a)  Unless otherwise directed by federal or state law or by federal directive, subrecipients who provide services, other than job training services, or who provide goods and provide no other services under the grant activities shall not be subject to audit under Rule .0601 of this Section.

(b)  Subrecipients who have been specifically excluded or who are within a group that has been specifically excluded from the audit requirements by the Secretary of Labor shall not be subject to audit under Rule .0601 of this Section.

History Note:        Authority Ex. O. 93, June 8, 1983; 20 C.F.R. 629.42; 143B‑430(b); OMB Circular 102, January, 1981;

Eff. November 17, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0604          AUDIT RESOLUTION PROCESS

(a)  The auditor that conducts a financial and compliance audit of a subrecipient has the responsibility to identify questioned costs in funded activities. The failure of the auditor to identify questioned costs shall not prevent the Division or USDOL from identifying questioned costs. The Division may identify questioned costs at any time, including prior to audit as during monitoring, except that the Division will not identify questioned costs after acceptance of the audit and audit resolution by USDOL.

(b)  The Division will make the initial determination on the allowability of questioned costs in audits. The Division will be guided in its determination by its audit resolution manual, which is updated as necessary and which is available for inspection by the public. The Division is not bound by its initial determination, as the determination may be overturned by USDOL. The subrecipient is responsible for cooperating in the gathering of information to support allowability. The Division shall not be required to resolve the questioned costs of a subrecipient who fails to cooperate in audit resolution.

(c)  The subrecipient is responsible for preparing documentation in a timely fashion for the Division to submit to USDOL to support an application for a waiver of liability under Section 164 of the JTPA.

(d)  USDOL makes the final decisions on the acceptability of audits and on the allowance, waiver of liability or disallowance of questioned costs in audits.

(e)  A subrecipient may seek administrative review of a determination by the Division to disallow costs that were questioned in an audit or of a division order to recoup disallowed costs that have been disallowed by USDOL. The failure to seek administrative review within thirty days of receipt of such a determination may result in an order of the Secretary authorizing recoupment.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.42; OMB Circular 102, January, 1981;

Eff. November 17, 1976;

Transferred from T01: 18 Eff. September 15, 1981;

Amended Eff. October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

SECTION .0700 ‑ STATE JOB TRAINING COORDINATING COUNCIL

04 NCAC 20B .0701          MEMBERSHIP AND FUNCTIONS OF COUNCIL

The State Job Training Coordinating Council is constituted according to Section 122 of the Job Training Partnership Act. The functions of the council shall include, but not be limited to, the functions identified in Section 122 and elsewhere in federal law. The Division provides the staff services required for the council to provide its functions.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 627.4;

Eff. August 1, 1982;

Amended October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0702          ACTIONS AGAINST THE COUNCIL OR COUNCIL MEMBERS

(a)  All actions against the council or against a council member in his or her capacity as a council member or against a council member in his or her individual capacity alleging misfeasance, malfeasance or nonfeasance in his or her role as a council member shall be brought by filing a complaint in accordance with Subchapter 20C .0002.

(b)  Members of the council shall only be liable in the event that the complainant establishes by a preponderance of the evidence that such member(s) engaged in misconduct that constituted fraud. Complaints that fail to allege facts constituting fraud shall be dismissed.

(c)  Awards or damages shall be limited to actual losses of the complainant. Council members are not individually liable for any award against the council.

(d)  Class action complaints are not permitted, except in extraordinary circumstances.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.51;

Eff. August 1, 1982;

Amended August 1, 1988; October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0703          MEETINGS

04 NCAC 20B .0704          STAFF SUPPORT

History Note:        Authority G.S. 143B‑430(b); 143B‑341; 20 C.F.R. 679.3‑5;

Eff. August 1, 1982;

Repealed Eff. October 1, 1984.

SECTION .0800 ‑ MISCELLANEOUS PROVISIONS

04 NCAC 20B .0801          COOPERATIVE AGREEMENTS

The Division is authorized to execute any cooperative agreement, including interstate agreements, that the governor is permitted to execute under the Job Training Partnership Act or in furtherance of employment and training activities, but only to the extent such agreements are permitted by state law.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 627.5;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0802          STATE LABOR MARKET INFORMATION SYSTEM DESIGNATION

The Governor shall designate a state agency as responsible for oversight and management of a statewide comprehensive labor market and occupational supply and demand information system under Section 125 of the JTPA.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; P.L. 97‑300, Section 125;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0803          WAIVER UNDER SECTION 108(C) OF JTPA

Waiver requests under Section 108(c) of the JTPA must be filed by subrecipients with the Division when a waiver is sought. The request must meet the requirements of the Act and will be reviewed by the Division on a case by case basis. The burden of proof to support the terms "disproportionately high" and "substantial portion" of participants shall be with the subrecipient.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.21;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0804          DIVISION DIRECTIVES

(a)  SDA Issuances include information that represents an official communication of a policy or issue interpretation. The SDA issuances become, under the terms of the subgrant agreement, a part of that agreement. An issuance will be printed on department letterhead, will be numbered sequentially for each calendar year and will be signed by the Director. Issuances may be provided in draft form to subgrantees and contractors for their assistance in finalizing policy or developing interpretations. An issuance will not, however, represent the official position of the Division until such time as the elements in this Rule are present. Subgrantees and contractors should retain the directives.

(b)  Technical Assistance Packages represent advice on technical issues, examples of compliance methodology, sample documents for subrecipient consideration in their activities and other data such as program/project sharing information. These packages are printed on department letterhead, number sequentially and initialled by the Planning and Program Management Coordinator.

(c)  JTPA Bulletins include information of a general or public nature. The bulletins may include items submitted by subgrantees or contractors. Bulletins are printed on a special heading, numbered sequentially by calendar year and signed by the Director.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20B .0805          SECTARIAN ACTIVITIES PROHIBITED

(a)  Participants may not be placed in prohibited sectarian activities.

(b)  Sectarian activities prohibited under JTPA are:

(1)           Any activity involved in the construction, including remodeling, of a facility that is used or is intended to be used as a place of sectarian instruction or as a place of religious worship, except as such activities may be a minimal or incidental activity with relation to the primary use of the facility, such as the construction of a community center that would permit use or rental or rooms by any community group, including sectarian organizations.

(2)           Any activity involved in the operation or maintenance of those portions of a facility that are used as places of sectarian instruction or worship, except where such activities are minimal or incidental with relation to the primary use of those portions of the facility.

(c)  Participants may be employed at religiously affiliated elementary or secondary schools or day care facilities or at elementary or secondary schools or day facilities used for religious worship if:

(1)           Attendance at the school or facility if open to the community at large without regard to religious affiliation; and

(2)           The participant is not leading or instructing in religious or sectarian activities.

(d)  The Division will endeavor to evaluate the functions of the participants rather than the scope of the activities conducted in a facility, to the extent the Division is permitted to do so under federal law.

History Note:        Authority G.S. 143B‑430(b); Ex. O. 93, June 8, 1983; 20 C.F.R. 629.3;

Eff. October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

section .0900 - EMPLOYMENT AND TRAINING GRANT PROGRAM

04 NCAC 20b .0901          purpose

04 NCAC 20B .0902          grant applications

History Note:        Authority G.S. 143B-438.6;

Filed as a Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on January 21, 1992;

Eff. December 1, 1991;

Repealed Eff. July 1, 2012.

04 NCAC 20B .0903          ALLOCATION OF GRANTS

History Note:        Filed as a Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on

January 21, 1992;

Statutory Authority G.S. 143B‑438.6;

ARRC Objection Lodged August 22, 1991;

Repealed Eff. December 1, 1991.

Editor's Note:  Agency repealed rule to satisfy objection to permanent rule.

04 NCAC 20b .0904          coordination with other employment and training funds

History Note:        Authority G.S. 143B-438.6;

Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on January 21, 1992;

Eff. December 1, 1991;

Repealed Eff. July 1, 2012.

04 NCAC 20B .0905          ELIGIBILITY

History Note:        Filed as a Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on

January 21, 1992;

Statutory Authority 143B‑438.6;

ARRC Objection Lodged August 22, 1991;

Repealed Eff. December 1, 1991.

Editor's Note:  Agency repealed rule to satisfy objection to permanent rule.

04 NCAC 20b .0906          use of funds

04 NCAC 20B .0907          cost limitations/categories

History Note:        Authority G.S. 143B-438.6;

Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on January 21, 1992;

ARRC Objection Lodged August 22, 1991 (Rule .0907);

Eff. December 1, 1991;

Repealed Eff. July 1, 2012.

04 NCAC 20B .0908          REPORTING

History Note:        Filed as a Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on

January 21, 1992;

Statutory Authority G.S. 143B‑438.6;

ARRC Objection Lodged August 22, 1991;

Repealed Eff. December 1, 1991.

Editor's Note:  Agency repealed rule to satisfy objection to permanent rule.

04 NCAC 20b .0909          PERFORMANCE STANDARDS

04 NCAC 20B .0910          MONITORING/OVERSIGHT

04 NCAC 20B .0911          FUND AVAILABILITY/REDISTRIBUTION

History Note:        Authority G.S. 143B-438.6;

Temporary Adoption Eff. July 25, 1991 for a period of 180 days to expire on January 21, 1992;

ARRC Objection Lodged August 22, 1991 (Rule .0909, .0911);

Eff. December 1, 1991;

Repealed Eff. July 1, 2012.

SUBCHAPTER 20C ‑ ADJUDICATIVE PROVISIONS/GENERAL PROVISIONS    FOR ADMINISTRATIVE ADJUDICATIONS

04 NCAC 20C .0101         ADMINISTRATIVE PROCEDURES GENERALLY

(a)  The administrative procedures of the Division are governed by G.S. 150B, except to the extent modified in this Chapter in accordance with federal law.

(b)  Procedures for administrative review shall be governed by the provisions of Rule .0002 of this Subchapter.

(c)  Procedures for division review shall be governed by the provisions of Rule .0003 of this Subchapter.

(d)  Procedures for grievances shall be governed by Rule .0004 of this Subchapter.

(e)  Nothing in this Chapter 20 shall be construed to allow an individual to join or sue the Governor with respect to the Governor's responsibilities under JTPA or these Regulations, or the Secretary or Director, with respect to their responsibilities as delegate of the Governor for JTPA purposes, or the State Job Training Coordinating Council or any member thereof, with respect to their responsibilities under JTPA or these Regulations, without first exhausting the administrative remedies described in this Chapter.

(f)  The burden of proof in a hearing rests with the complainant.

(g)  Nothing in this Subchapter shall be construed to preclude the dismissal of complaints that would be subject to dismissal under the Rules of Civil Procedure. Summary disposition of cases, when warranted, shall be permitted.

(h)  The address of the Office of Administrative Hearings is Post Office Drawer 27447, Raleigh, North Carolina, 27611‑7447 and the address of the Division is 111 Seaboard Avenue, Raleigh, North Carolina 27604.

History Note:        Authority G.S. 143B‑430(b); 150B; 20 C.F.R. 629.52;

Eff. July 1, 1980;

Amended Eff. May 1, 1992; August 1, 1988; February 1, 1986; October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20C .0102         PROCEDURES FOR ADMINISTRATIVE REVIEW

Administrative review shall be governed by G.S. 150B, except that:

(1)           Complaints shall be made within one year of the alleged occurrence;

(2)           Hearings on any complaint shall be conducted within 30 days of filing of a complaint and final decisions shall be made not later than 60 days after the filing of a complaint;

(3)           Where the complainant provides the Secretary of USDOL reason to believe that the recipient is failing to comply with the requirements of the JTPA or the terms of the job training plan, the JTPA requires the Secretary of USDOL to investigate the allegation or belief and determine within 120 days after receiving the complaint whether such allegation or complaint is true; and,

(4)           Regarding actions pursuant to Subchapter 20C .0006(d), opportunity for a hearing must be provided within 30 days of such actions.

History Note:        Authority G.S. 143B‑430(b); 150B; JTPA S 144; 20 C.F.R. 629.58;

Eff. July 1, 1980;

Amended Eff. August 1, 1988; October 1, 1986; February 1, 1986; October 1, 1984;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20C .0103         PROCEDURES FOR DIVISION REVIEW

(a)  If, regarding a complaint against a subrecipient, agent of a subrecipient or private industry council, a complainant does not receive the respondent's decision within 60 days of the complainant's filing or receives a decision unsatisfactory to the complainant, the complainant may request division review. Such requests for division review may be made to the Division only upon a showing of exhaustion of administrative remedies provided by the respondent.

(b)  Requests must be filed within ten days of receipt of the unsatisfactory decision or ten days from the date on which the complainant should have received a decision.

(c)  A request for division review must be specific and shall raise all issues of fact and law upon which the appeal is based. Review will not be available as to matters not raised in the proceeding review of which is requested, nor as to matters not raised in the request for review. The request must be in writing signed by the petitioner. If the petitioner is an entity, the request must be signed by the authorized signatory for the petitioner. The Director may require a resolution of the governing board of the petitioner authorizing the request. A copy of the request must be mailed certified, return receipt requested to the respondent.

(d)  Review shall be by the Director, who may provide for oral hearing in his discretion. The Director shall determine if the respondent's procedures provided due process, if the respondent correctly followed its procedures and if the determination is clearly erroneous or is not based on fact. A written decision shall be rendered by the Director within 30 days of receipt of the request for division review. The Director's decision is final and shall so state.

(e)  If the Director fails to render a decision as required in Paragraph (d), the complainant may they request from the Secretary of USDOL a determination whether reasonable cause exists to believe that the Act or its regulations have been violated.

History Note:        Authority G.S. 143B‑430(b); 150B; 20 C.F.R. 629.52; 20 C.F.R. 629.58;

Eff. July 1, 1980;

Amended Eff. August 1, 1988; February 1, 1986; October 1, 1984; August 1, 1982;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20C .0104         PROCEDURES FOR GRIEVANCES

(a)  All grievances other than those alleging discrimination on the basis of handicap pursuant to Section 504 of the Rehabilitation Act, shall be filed directly with the Director of Civil Rights, U.S. Department of Labor, within 180 days of the alleged discrimination.

(b)  All grievances alleging violations of Section 504 of the Rehabilitation Act must be filed within 180 days pursuant to procedures established by the subrecipient complained against.

History Note:        Authority G.S. 143B‑20; 150B; 20 C.F.R. 626.2(b); 29 C.F.R. 31.7; 29 C.F.R. 32.45(b); Section 504, Rehabilitation Act; Ex. O. 93, June 8, 1983;

Eff. July 1, 1980;

Amended Eff. August 1, 1988; February 1, 1986; October 1, 1984; March 1, 1983;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.

04 NCAC 20C .0105         DIRECT APPEALS TO THE SECRETARY

History Note:        Authority G.S. 143B‑430(b); 150B; Ex. O. 93, June 8, 1983; 20 C.F.R. 620.51;

20 C.F.R. 629.58;

Eff. March 1, 1983;

Amended Eff. February 1, 1986; October 1, 1984;

Repealed Eff. August 1, 1988.

04 NCAC 20C .0106         SANCTIONS

(a)  The Division, through the Director, and the Department, through the Secretary, shall be authorized to impose any sanction permitted by the JTPA, applicable federal regulations, the subgrant agreement or the contract document or state law. The Director and the Secretary are the delegates of the Governor and may exercise the sanction authority reserved for the Governor in the JTPA.

(b)  Upon a determination that a subrecipient has violated a specific term of the JTPA, the applicable federal regulations, or state law, or that a violation has occurred in a subrecipient's programs or projects or other funded activity, the Director or the Secretary may condition funding to the extent necessary to assure the violations will not continue. If conditional funding does not effect compliance, the Governor may issue a notice of intent to revoke all or part of a subrecipient's funding from the Division. The revocation shall be effective when the time for appeal has expired or the Secretary of Labor has issued a decision on an appeal. The appeal procedure shall correspond to the procedure set forth in Rule .0201 of Chapter 20B.

(c)  In the event funds are misspent and identified as misspent during the same grant year, the subrecipient may be permitted to conduct (without federal funds) additional eligible employment and training activities during that same grant year to offset the disallowed costs. The Division shall not be required to provide this opportunity, and it may only be available after the grant year with permission of USDOL. This alternative of in‑kind services recoupment of disallowed costs is made available for the purpose of maximizing the activities available to eligible participants in the service delivery areas and to encourage in‑house monitoring during a grant year.

(d)  In the event that USDOL will revoke funds to the state under the emergency provisions of Section 164(f) of the JTPA and in the event that the activities of one or more subrecipients has caused the funding to be jeopardized, the Governor may immediately suspend or terminate funding to those subrecipients in order to preserve funding to the remaining subrecipients; provided that in such an event an opportunity for a hearing must be provided within 30 days.

(e)  All subrecipients shall be responsible for funds received through the Division. The subgrantees and the Division's contractors shall be liable for the disallowed expenditure of any funds received from the Division or for liabilities arising in connection with the operation of the funded activities. The Division may recoup the amount of disallowed expenditures and, if interest is charged by USDOL against the state or if the unauthorized expenditure was willful, may recover appropriate interest from the subgrantee or division contractor. The Division may also go directly against any subrecipient receiving funds, whether or not that subrecipient had received funds directly from the Division, but the Division shall not be required to proceed against those subrecipients.

(f)  Any person or entity, including participants or supplier, who makes or causes to be made a willful misrepresentation shall be liable for the costs incurred on account of or received by such person or entity as a result of having made the misrepresentation. This sanction shall be available to any subrecipient who is injured by the misrepresentation, but this sanction shall not require a subrecipient or the Division to endeavor to enforce this liability. This sanction may be enforced through the administrative process as to all parties who receive JTPA funds, who thereby consent to resolution of disputes through this administrative process.

(g)  The remedies under this Chapter 20 shall not be construed to be exclusive remedies. The Division shall have all common law remedies available to it with regard to its subrecipients and shall have all remedies provided in executed agreements with subrecipients.

History Note:        Authority G.S. 143B‑430(b); 150B; Articles 3 and 4; Ex. O. 93, June 8, 1983; JTPA S 164; 20 C.F.R. 629.44;

Eff. October 1, 1984;

Amended Eff. August 1, 1988;

Pursuant to G.S. 150B-21.3A, rule is necessary without substantive public interest Eff. April 27, 2019.