Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules

23700 Federal Register / Vol. 87, No.
76 / Wednesday, April 20, 2022 / Proposed Rules
DEPARTMENT OF LABOR numbers, and email addresses, included I. Acronyms and Abbreviations
in their comments. It is the 2020 Final Rule Wagner-Peyser Act Staffing
Employment and Training responsibility of the commenter to Flexibility; Final Rule, 85 FR 592 (Jan. 6,
Administration safeguard personal information. 2020)
Comments under the Paperwork AOP Agricultural Outreach Plan
20 CFR Parts 651, 652, 653, and 658 Reduction Act of 1995 (PRA): In ARS Agricultural Recruitment System
[Docket No. ETA–2022–0003] addition to filing comments on any BFOQ bona fide occupational qualification
BLS U.S. Bureau of Labor Statistics
aspect of this proposed rule with the
RIN 1205–AC02 CFR Code of Federal Regulations
Department, interested parties may CNPC Chicago National Processing Center
Wagner-Peyser Act Staffing submit comments that concern the COVID–19 coronavirus disease 2019
information collection (IC) aspects of Complaint System Employment Service and
AGENCY: Employment and Training this proposed rule to the Office of Employment-Related Law Complaint
Administration, Labor. Information and Regulatory Affairs at System
ACTION: Proposed rule; request for https://www.reginfo.gov/public/do/ CRC DOL Civil Rights Center
comment. PRAMain. Find relevant information Department or DOL U.S. Department of
collections by selecting ‘‘Currently Labor
SUMMARY: The U.S. Department of Labor under Review—Open for Public EEOC Equal Employment Opportunity
(Department or DOL) is issuing a notice Commission
Comments’’ or by using the search E.O. Executive Order
of proposed rulemaking (NPRM) that, if function.
finalized, would require States to use EO Equal Opportunity
ES Wagner-Peyser Act Employment Service
State merit staff to provide Wagner- FOR FURTHER INFORMATION CONTACT: ETA Employment and Training
Peyser Act Employment Service (ES) Heidi Casta, Acting Administrator, Administration
services. If finalized, this proposal Office of Policy Development and FR Federal Register
would extend the merit-staffing Research, Employment and Training FTE(s) full-time equivalent(s)
requirement to those States that Administration, U.S. Department of FUTA Federal Unemployment Tax Act
previously had been operating different Labor, 200 Constitution Avenue NW, IC(s) information collection
staffing models. The proposed changes Room N–5641, Washington, DC 20210, ICR(s) information collection request
would create a uniform standard of ES Telephone: (202) 693–3700 (voice) (this IPA Intergovernmental Personnel Act of
services provision for all States and 1970
is not a toll-free number) or 1–800–326–
LEP limited English proficient
align the use of State merit staff for ES 2577 (TDD). MOU(s) memorandum/a of understanding
services with the requirement that MSFW(s) migrant and seasonal
SUPPLEMENTARY INFORMATION:
States administer the Unemployment farmworker(s)
Insurance (UI) programs with State Preamble Table of Contents NAICS North American Industry
merit staff. The Department is Classification System
additionally proposing revisions to the I. Acronyms and Abbreviations NFJP National Farmworker Jobs Program
ES regulations to strengthen the II. Statutory and Legal Background NMA National Monitor Advocate
A. Required Use of State Merit Staff for NPRM or proposed rule notifice of
provision of services to migrant and
Delivery of ES Services proposed rulemaking
seasonal farmworkers (MSFWs) and to
B. Legal Basis O*NET Occupational Information Network
enhance the protections afforded by the OEWS Occupational Employment and
III. Section-by-Section Discussion of
Monitor Advocate System and the Proposed Rule Wage Statistics
Employment Service and Employment- A. Technical Amendments and Global OFLC Office of Foreign Labor Certification
Related Law Complaint System Edits OIRA Office of Information and Regulatory
(Complaint System). B. Part 651—General Provisions Governing Affairs
DATES: To be ensured consideration, the Wagner-Peyser Act Employment OMB Office of Management and Budget
comments must be received on or before Service OPM Office of Personnel Management
OSHA Occupational Safety and Health
June 21, 2022. C. Part 652—Establishment and
Administration
ADDRESSES: You may submit written Functioning of State Employment
PIRL Participant Individual Record Layout
comments electronically via the Federal Service PRA Paperwork Reduction Act of 1995
eRulemaking portal (https:// D. Part 653—Services of the Wagner-Peyser Pub. L. Public Law
www.regulations.gov). Follow the Act Employment Service System PY Program Year
instructions on the website for E. Part 658—Administrative Provisions RA(s) Regional Administrator(s)
submitting comments (under ‘‘FAQ’’ > Governing the Wagner-Peyser Act RFA Regulatory Flexibility Act
Employment Service RIN Regulation Identifier Number
‘‘Commenting’’). Label all submissions
IV. Rulemaking Analyses and Notices RMA(s) Regional Monitor Advocate
with docket number ETA–2022–0003 Secretary Secretary of Labor
A. Executive Orders 12866 (Regulatory
and RIN 1205–AC02. SMA(s) State Monitor Advocate(s)
Planning and Review) and 13563
Please be advised that the Department SOC Standard Occupational Classification
(Improving Regulation and Regulatory
will post all comments received that Review) SSA Social Security Act
relate to this proposed rule on https:// B. Regulatory Flexibility Act, Small Stat. United States Statutes at Large
www.regulations.gov without making Business Regulatory Enforcement SWA(s) State Workforce Agency/ies
khammond on DSKJM1Z7X2PROD with PROPOSALS2
any change to the comments or TEGL Training and Employment Guidance

Fairness Act of 1996, and Executive
redacting any information. The website Letter
Order 13272 (Proper Consideration of
is the Federal eRulemaking portal, and UI Unemployment Insurance
Small Entities in Agency Rulemaking) UMRA Unfunded Mandates Reform Act of
all comments posted there are available C. Paperwork Reduction Act of 1995 1995
and accessible to the public. Therefore, D. Executive Order 13132 (Federalism) U.S.C. United States Code
the Department recommends that E. Unfunded Mandates Reform Act of 1995 WHD Wage and Hour Division
commenters remove personal F. Executive Order 13175 (Indian Tribal WIA Workforce Investment Act
information, such as Social Security Governments) WIOA Workforce Innovation and
numbers, personal addresses, telephone G. Plain Language Opportunity Act
VerDate Sep<11>2014 19:11 Apr 19, 2022 Jkt 256001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\20APP2.SGM 20APP2
Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules 23701
II. Statutory and Legal Background approved staffing flexibility through an proposed rule ensures States are
exemption in their approved State universally equipped to use cross-
A. Required Use of State Merit Staff for
plans.2 Through rulemaking effective trained ES staff to assist in processing
Delivery of ES Services
February 5, 2020, the Department UI claims, assist UI claimants, and
The Wagner-Peyser Act of 1933 removed the requirement that ES promote reemployment in times of high
established the ES program, which is a services be provided only through the demand for such services. For example,
nationwide system of public use of State merit staff. See Wagner- the recent stress placed upon State UI
employment offices that provide public Peyser Act Staffing Flexibility; Final systems in response to the coronavirus
labor-exchange services. The ES Rule, 85 FR 592 (Jan. 6, 2020) (2020 disease 2019 (COVID–19) pandemic
program seeks to improve the Final Rule). In the preamble to this rule, served to highlight the necessity of
functioning of the nation’s labor markets the Department explained that it sought States to be able to rely on eligible State
by bringing together individuals seeking to allow States maximum flexibility in merit staff who are already cross-trained
employment with employers seeking staffing arrangements. Id. Accordingly, or able to be quickly cross-trained to
workers. Section 3(a) of the Wagner- under current regulations, States may assist UI claimants during times of high
Peyser Act directs the Secretary of Labor use a variety of staffing models to demand placed on State UI systems.
(Secretary) to assist States by developing provide ES services. States have experienced the benefits of
and prescribing minimum standards of The Department has reassessed the cross-training staff to assist during
efficiency and promoting uniformity in approach adopted in the 2020 Final recessions, the onset of natural
the operation of the system of public Rule and has determined that alignment disasters, and mass regional layoffs, in
employment-services offices. This of ES and UI staffing, which would which State merit staff are needed to
NPRM would amend regulations in 20 allow ES staff to respond to surges of assist with State-level decisions and
CFR parts 651, 652, 653, and 658, and demand in UI, is more important than functions. Emergencies such as natural
provide States with a uniform standard the efficiencies that flexibility may disasters are occurring across States
of ES services provision. States would promote. Accordingly, as discussed with increased frequency such that this
be required to use State merit staff to below, the Department is proposing to need for surge capacity and cross-
provide ES services. The Department require, with no exceptions, that States trained staff is becoming increasingly
also is proposing targeted revisions to use State merit-staff employees to necessary. States can assist one another
the regulations at parts 651, 653, and provide ES services. This NPRM when one is impacted by a natural
658. These proposed revisions are proposes to require that all States, disaster, where non-impacted State
intended to ensure that State Workforce including the prior ‘‘demonstration merit staff, including cross-trained ES
Agencies (SWAs) provide MSFWs with States,’’ use State merit-staff employees staff, provide claims adjudication
adequate access to ES services and that to deliver ES services. This proposed assistance, such as fact finding/
the role of the State Monitor Advocate staffing requirement would apply to all document analysis and claims
(SMA) is effective. In addition, this ES services, including services provided processing of UI and Disaster
NPRM would amend parts 651, 652, to MSFWs. Unemployment Assistance claims.
653, and 658 to further integrate gender- This proposal would once again align Although the COVID–19 pandemic is an
inclusive language. Finally, the the provision of ES services with the historically unprecedented event, in
Department is proposing technical requirement that States administer the addition to disaster response, the UI
corrections to these CFR parts to UI programs with State merit staff. The system has been a key economic
improve consistency across the parts ES system is designed to ‘‘promote the stabilizer in times of need such as the
and to make them easier to understand. establishment and maintenance of a Great Recession, whereby State UI
Historically, the Department relied on national system of public employment systems benefitted from cross-trained ES
service offices,’’ 3 and the UI and ES staff to provide extra capacity for UI
its authority in secs. 3(a) and 5(b) of the
systems together provide a basic level of administration and adjudication.
Wagner-Peyser Act to require that ES
employment support for more than 4 Historical data from 1971 through 2021
services, including Monitor Advocate
million job seekers per year to enter and indicates regular and periodic increases
System activities for MSFWs and
reenter the workforce. The Department in the number of UI initial claims and
Complaint System intake, be provided
thinks that it is vital that the ES be first payments in which having ES staff
by State merit-staff employees.1 The
administered so that services are who are already cross-trained or able to
Department consistently applied this
delivered effectively and equitably to UI be quickly cross-trained to assist UI
requirement, with minor exceptions,
beneficiaries and other ES customers. claimants would be beneficial. The
until 2020. Specifically, beginning in ES supports the work-test for UI,
the early 1990s, the Department adjudication of UI claims is work that
whereby UI recipients must demonstrate must be performed by State merit staff.6
authorized demonstration projects in as a condition of continued UI receipt
which it allowed Colorado and Therefore, staff to assist with claims
that they are workforce attached.4 This processing and adjudication must be
Massachusetts limited flexibility to set is includes various State-specific
their own staffing requirements. merit staff directly employed by the
requirements including being able to State and available for States to redirect
Thereafter, in 1998, the Department work, available to work, and actively
permitted Michigan to use State and seeking work. Further, State merit ES unless they find that the law of such State,
local merit-staff employees to deliver ES staff are best positioned to and often do approved by the Secretary under FUTA, includes
services, pursuant to a settlement
provide surge capacity for UI provision for ‘‘[s]uch methods of administration

agreement arising out of Michigan v. administration and adjudication.5 The (including after January 1, 1940, methods relating
Herman, 81 F. Supp. 2d 840 (W.D. to the establishment and maintenance of personnel
standards on a merit basis, except that the Secretary
Mich. 1998). All three States continued 2 See WIOA DOL-only Rule, 81 FR at 56267 and
. . . shall exercise no authority with respect to the
to operate as demonstration States with 56341 (2016). selection, tenure of office, and compensation of any
3 29 U.S.C. 49.
individual employed in accordance with such
1 Workforce Innovation and Opportunity Act; 4 Federal Unemployment Tax Act (FUTA) sec. methods) as are found by the Secretary . . . to be
Department of Labor; Final Rule, 81 FR 56072 (Aug. 3304(a)(1); Social Security Act (SSA) sec. 303(a)(2). reasonably calculated to insure full payment of
19, 2016) (WIOA DOL-only Rule) (see 20 CFR 5 SSA sec. 303(a)(1) provides that the Secretary unemployment compensation when due.’’
652.215, 653.108, 653.111, 658.602). shall make no certification for payment to any State 6 See 42 U.S.C. 503(a)(1).
23702 Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules
their work. Requiring that ES staff be staff are employed by and accountable 900.605, the Department has submitted
State merit staff would allow the States to non-State entities, and their this proposed rule to OPM for review
to use ES staff to carry out both ES individual adherence to State-issued and has received prior approval.
services and necessary UI functions. policies and procedures is not directly The Department acknowledges that
In response to the COVID–19 observable. And, as noted previously, it this proposal constitutes a change in its
pandemic, emergency legislation related is important that the States use State
to COVID–19 provided States the ability existing position and would require
merit staff to deliver ES services because
on a limited and temporary emergency certain States to adjust how they deliver
of the critical alignment between the ES
basis to recruit staff on a non-merit basis and UI programs. ES services. The Department notes that
to quickly process UI applications and In proposing this State merit-staffing Federal agencies are permitted to
claims.7 However, relying on such time- requirement, the Department relies on change their existing policies if they
limited legislative action is not a viable, its authority under secs. 3(a) and 5(b)(2) acknowledge the change and provide a
long-term solution, particularly as of the Wagner-Peyser Act, as well as reasoned explanation for the change.
providing adequate training for UI authority under sec. 208 of the IPA, 42 See, e.g., Encino Motorcars, LLC v.
adjudicators takes several months to a U.S.C. 4728, as amended. Each of these Navarro, 579 U.S. 211, 221–22 (2016).
year. Furthermore, emergency provisions, standing alone, provides the As explained previously, the
legislation related to COVID–19 does Department with the discretion to Department is proposing this change to
not provide flexibility in future require States to use State merit staff to ensure that more workers will be
emergencies. Requiring ES labor provide ES services. available in the States if needed to back
exchange services to be provided by Specifically, sec. 3(a) of the Wagner- up the UI system. In the section-by-
State merit staff will help ensure that Peyser Act requires the Secretary to section discussion that follows, the
States have the ability to shift staff assist in coordinating the ES offices by Department further explains why it is
resources during future exigencies ‘‘developing and prescribing minimum proposing to require that States use
affecting State-level functions and UI standards of efficiency.’’ As the court in State merit-staff employees to provide
claims where time-limited legislative Michigan v. Herman, 81 F. Supp. 2d 840 ES services, acknowledges the reliance
solutions are not available and there is (W.D. Mich. 1998), concluded, ‘‘the interests of States that would need time
a pressing need to have cross-trained language in [sec. 3(a)] authorizing the to come into compliance with this
staff who are legally permitted to assist Secretary to develop and prescribe requirement, and addresses those
with UI services. ‘minimum standards of efficiency’ is interests by proposing an 18-month
In addition, in the Intergovernmental broad enough to permit the Secretary transition period.
Personnel Act (IPA), 42 U.S.C. 4701, et . . . to require merit staffing.’’ Id. at
seq., Congress found that the quality of 848. B. Strengthening the Provision of
public service could be improved if In addition, sec. 5(b)(2) of the Wagner- Services to Migrant and Seasonal
government personnel systems are Peyser Act provides that the Secretary Farmworkers
administered consistent with certain shall from time to time certify to the
merit-based principles. 42 U.S.C. 4701. Secretary of the Treasury for payment to In addition to a merit-staffing
Requiring States to employ the each State that, among other things, ‘‘is requirement, the Department is
professionals who deliver ES services in found to have coordinated the public proposing targeted revisions to the
accordance with these principals would employment services with the provision regulations at parts 651, 653, and 658.
help ensure that ES services are of unemployment insurance claimant The proposed revisions are intended to
delivered by qualified, non-partisan services.’’ As explained previously, the ensure that SWAs provide adequate
personnel who are directly accountable proposed merit-staffing requirement outreach services to MSFWs and that
to the State. Among other things, such would align the staffing of ES services SMAs, Regional Monitor Advocates
professionals would be required to meet with the staffing that States are required (RMAs) and the National Monitor
objective professional qualifications, be to use in the administration of UI Advocate (NMA) have the authority,
trained to assure high-quality programs. This would allow cross- tools, and resources that they need to
performance, and maintain certain trained ES staff to assist States in monitor SWA compliance with the ES
standards of performance. Id. They processing and adjudicating UI claims, regulations. As described in detail in the
would also be prohibited from using and assisting claimants with work section-by-section discussion that
their official authority for purposes of search and reemployment services, follows, the proposed revisions would
political interference, and States would particularly in times of high need, such strengthen the Monitor Advocate
be required to assure that they are as during the pandemic. It would, System established in the wake of
treated fairly and protected against therefore, be reasonable for the NAACP, Western Region et al. v.
partisan political coercion. Id. By Department to base the finding required Brennan, 360 F.Supp. 1006 (D.D.C.
contrast, contract staff and subrecipient by sec. 5(b)(2) of the Wagner-Peyser Act, 1973), and ensure that SWAs offer and
in part, on a State’s agreement to use provide ES services to MSFWs in a
7 See sec. 4102(b) of the Families First
State merit staff to administer and manner that is qualitatively equivalent
Coronavirus Response Act (Pub. L. 116–127),
including Division D Emergency Unemployment provide ES services. and quantitatively proportionate to the
Insurance Stabilization and Access Act of 2020 Additionally, sec. 208 of the IPA ES services that they offer and provide
(EUISAA); sec. 2106 of the Coronavirus Aid, Relief, authorizes Federal agencies to require, to other job seekers. Additional
and Economic Security Act of 2020 (CARES Act) as a condition of participation in

(Pub. L. 116–136); sec. 205 of the Continued proposed revisions include technical
Assistance Act (Pub. L. 116–260); and sec. 9015 of Federal assistance programs, systems of edits to improve clarity, such as adding
the American Rescue Plan Act of 2021 (Pub. L. 117– personnel administration consistent commas or cross-references.
2). This flexibility only applied for responding to with personnel standards prescribed by
workload and increased demand resulting from the the Office of Personnel Management
spread of COVID–19 and was limited to engaging that require the establishment of a merit personnel
temporary staff, rehiring retirees or former (OPM).8 In accordance with 5 CFR system as a condition for receiving Federal
employees on a non-competitive basis, and other assistance or otherwise participating in an
temporary actions to quickly process applications 8 42 U.S.C. 4728(b); see also 5 CFR 900.605 intergovernmental program with the prior approval
and claims. (authorizing Federal agencies to adopt regulations of OPM).
III. Section-by-Section Discussion of Second, where ‘‘he/she’’ refers to an The Department proposes to revise
Proposed Rule employer that is not an individual the first sentence of § 651.10 by
person, the Department proposes using providing the full title of the statute for
A. Technical Amendments and Global
the pronoun ‘‘it.’’ Where the possessive the existing WIOA reference and
Edits
pronouns ‘‘his/her’’ were used, the identifying where WIOA is codified.
To conform with the proposed Department proposes using ‘‘its.’’ This These additions will help ensure the
changes to the definition of Wagner- is appropriate because employers are definitions in this section apply to
Peyser Act Employment Service (ES) entities, not individuals, and the proper WIOA, as published at 29 U.S.C. 3101
also known as Employment Service (ES) pronoun is ‘‘it.’’ This edit is made at et seq.
in § 651.10, the Department proposes §§ 658.502 and 658.504. The Department proposes to add a
making technical changes to replace the In all other cases where ‘‘he/she’’ was definition for apparent violation to
phrases ‘‘employment services,’’ used, the Department proposes using clarify that the term means a suspected
‘‘Wagner-Peyser Act services,’’ and the pronoun ‘‘they’’ in its capacity as a violation of employment-related laws or
‘‘services provided under the Wagner- gender-inclusive third-person singular ES regulations, as set forth in § 658.419.
Peyser Act’’ with ‘‘ES services.’’ pronoun but conjugated with third- The Department has observed that
Changes also have been made to replace person plural verbs. Where the SWAs have used inconsistent
the phrase ‘‘employment office’’ with possessive pronouns ‘‘his/her’’ were descriptions of the term in their policies
‘‘ES office,’’ and ‘‘Wagner-Peyser Act used, the Department proposes using and procedures, which are not always
participants’’ with ‘‘ES participants.’’ ‘‘their.’’ These changes are designed to consistent with § 658.419. The proposed
These changes will simplify and remove binary gender language so that definition is derived from existing
standardize the use of terminology. The the full regulatory text is gender regulatory language at § 658.419, which
proposed language is also intended to inclusive. The Department makes these describes that an apparent violation is a
improve usage of plain language within changes in § 651.10 in the definition of suspected violation of employment-
the regulations. Technical changes to seasonal farmworker. Edits are also related laws or ES regulations.
articles, specifically changing ‘‘a’’ to made to §§ 653.107, 653.108, 653.111, The Department proposes to amend
‘‘an’’ where necessary, have been made 653.501, 653.502, 658.400, 658.410, the definition of applicant holding
as well when preceding ‘‘ES office.’’ 658.411, 658.421, 658.422, 658.602, office to replace ‘‘a Wagner-Peyser
These changes have been made in 658.603, 658.702, 658.705, 658.706, and Employment Service Office’’ with ‘‘an
§ 651.10 within the definitions for 658.707. ES office.’’ The definition of Wagner-
applicant holding office, Employment In addition, the Department proposes Peyser Act Employment Service (ES)
Service (ES) office, field visits, outreach to replace the words ‘‘handle’’ and also known as Employment Service (ES)
staff, placement, and reportable ‘‘handled’’ with ‘‘process’’ and explains that ES offices refers to ES
individual, in addition to the changes in ‘‘processed,’’ as appropriate, to clarify offices described under the Wagner-
the definition of Wagner-Peyser Act that actions by ES staff and Federal staff Peyser Act. Additionally, the definition
Employment Service (ES) also known as must follow the processing of ES office explains that ES offices
Employment Service (ES). Conforming requirements listed throughout part 658, provide ES services as a one-stop
changes have also been made to the subparts E and H, which use the word partner program. Therefore, the
subpart heading at part 652, subpart C, ‘‘process.’’ The word ‘‘handle’’ does not reference to ‘‘a Wagner-Peyser
and within the regulatory text at have a specific meaning in the Employment Service office’’ is
§§ 652.205, 652.207, 652.215, 653.107, regulatory text and may be unclear to redundant and unnecessary.
653.108, 658.411, 658.502, 658.602, and SWAs. The Department proposes to amend
658.603. In some instances, the Department the definition of career services to refer
The Department is proposing several also proposes conforming technical to WIOA by its acronym rather than its
technical edits to refine gender- amendments to correct grammar in the full title because the full title is
inclusive language within the regulatory regulations, as needed, because of these previously spelled out at the beginning
text while maintaining plain language changes. In addition to such conforming of this section.
principles. Throughout parts 651, 653, technical amendments, the Department The Department proposes to amend
and 658, the term ‘‘he/she’’ was used to proposes adding and removing commas the definition of clearance order to add
denote an individual of unknown throughout the regulatory text to a citation to the Agricultural
gender. Using terms with a slash may improve clarity and readability. These Recruitment System (ARS) regulations
not be in keeping with plain language global changes and technical at part 653, subpart F. The purpose of
principles and may also exclude people amendments described in this section this addition is to clearly identify the
who are nonbinary. The Department is are not explicitly identified later in the ARS regulations to which the term
proposing three technical edits to section-by-section discussion. refers.
replace ‘‘he/she’’ with more inclusive The Department proposes to amend
language employing plain language B. Part 651—General Provisions
the definition of Complaint System
principles. Governing the Wagner-Peyser Act
Representative to specify that the
Employment Service
First, where ‘‘he/she’’ refers to an Complaint System Representative must
individual in their professional Part 651 (§ 651.10) sets forth be trained. The addition of the word
capacity, the Department proposes using definitions for parts 652, 653, 654, and ‘‘trained’’ makes the definition
their job title instead of a pronoun. 658. The Department proposes to revise consistent with the requirement in
These edits largely affect regulations the following definitions to better align § 658.410(g) and (h) that complaints are
impacting the NMA or the RMA. In them across the regulatory text, as well processed by a trained Complaint
these cases, ‘‘he/she’’ has been replaced as practice in the field, and to make System Representative. The Department
with ‘‘the NMA’’ or ‘‘the RMA’’ as them conform with other revisions the also proposes to remove the words
appropriate and ‘‘his/her’’ with the Department proposes to make in this ‘‘individual at the local or State level’’
possessive pronoun ‘‘their.’’ These edits NPRM, including changes to staffing due to proposed changes to the
are made at §§ 658.602 and 658.603. requirements. definition of ES staff.
The Department proposes to amend conducted on clearance orders as employment-related programs,’’ and
the definition of Employment and defined in § 651.10. Second, the instead only cover information on ES
Training Administration (ETA) to Department proposes to clarify in the services. An explicit reference to
remove the words ‘‘of Labor’’ after definition that field checks may also be discussions on farmworker rights and
‘‘Department’’ because Department is conducted by non-ES State staff, in protections in the definition will help
previously defined in this section as addition to ES or Federal staff, if the ensure that these issues are consistently
‘‘the United States Department of SWA has entered into an arrangement addressed.
Labor.’’ with a State enforcement agency (or The Department proposes to amend
The Department proposes to amend agencies) to conduct field checks. This the definition of Hearing Officer to
the definition of Employment Service proposed revision aligns the definition remove the words ‘‘of Labor’’ because
(ES) office to replace ‘‘Wagner-Peyser with existing practice permitted by the § 651.10 previously defines
Act’’ with ‘‘ES.’’ This change would regulation at § 653.503, which allows ‘‘Department’’ as ‘‘the United States
align the definition with proposed SWA officials to enter into formal or Department of Labor.’’
changes to the definition of Wagner- informal arrangements with appropriate The Department proposes to amend
Peyser Employment Service (ES) also State and Federal enforcement agencies the definitions of interstate clearance
known as the Employment Service (ES) where the enforcement agency staff may order to indicate that it is an agricultural
and make the reference to ES consistent conduct field checks instead of and on ‘‘clearance’’ order for temporary
across all parts of the ES regulations. behalf of ES personnel. employment instead of a ‘‘job’’ order.
The Department proposes to amend Additionally, the Department This change aligns the definitions of job
the definition of Employment Service proposes to remove from the definition order and clearance order in this part.
(ES) Office Manager to replace the that field checks are ‘‘random’’ The Department also proposes to
phrase ‘‘all ES activities in a one-stop appearances. The proposed revision amend the definition of intrastate
center’’ with the phrase ‘‘ES services would clarify that the selection of the clearance order in two ways. First, the
provided in a one-stop center.’’ This clearance orders on which the SWA will Department proposes to amend the
change would align the definition with conduct field checks does not need to be definition to indicate that it is an
other proposed changes to the random, though random field checks agricultural ‘‘clearance’’ order for
regulatory text and definitions, which may still occur. The revision clarifies temporary employment instead of a
refer to ‘‘ES services,’’ instead of ‘‘ES that field checks may be targeted, where ‘‘job’’ order. This change aligns the
activities.’’ The Department also necessary, to respond to known or definition with the definitions of job
proposes to replace ‘‘individual’’ with suspected compliance issues, thereby order and clearance order in this part.
‘‘ES staff person’’ to clarify that the ES improving MSFW worker protection. In Second, the proposed revision clarifies
Office Manager must be ES staff, as addition, if a SWA makes placements on that the term means an agricultural
defined in this section. 9 or fewer clearance orders, the SWA clearance order for temporary
The Department proposes to amend must conduct field checks on 100 employment describing one or more
the definition of Employment Service percent of those clearance orders. See hard-to-fill job openings, which an ES
(ES) staff in two ways. First, the § 653.503(b). Therefore, in those cases, office uses to request recruitment
Department proposes to replace the field checks could not be conducted on assistance from all other ES offices
phrase ‘‘individuals, including but not a random basis. These proposed within the State. The current definition
limited to State employees and staff of revisions would clarify the definition does not include the word ‘‘all.’’
a subrecipient,’’ with ‘‘State government and make it consistent with Therefore, it was not clear that such a
personnel who are employed according § 653.503(b). request must go to all other offices in
to the merit system principles described The Department proposes to amend the State, and some ES offices were not
in 5 CFR part 900, subpart F—Standards the definition of field visits in several distributing the clearance order to all
for a Merit System of Personnel respects. First, the Department proposes offices. This clarification will help
Administration, and’’ to conform with to clarify that field visits are announced SWAs understand that an intrastate
the imposition of the merit-staffing appearances by SMAs, RMAs, the NMA, clearance order must be circulated to all
requirement proposed in § 652.215. or NMA team members. This term is ES offices within the State.
Second, the Department proposes to currently defined to include The Department proposes to amend
delete the phrase ‘‘to carry out activities appearances by Monitor Advocates or the definition of migrant farmworker by
authorized under the Wagner-Peyser outreach staff, and the proposed removing the exclusion of full-time
Act,’’ because this language is revision would clarify which Monitor students who are traveling in organized
unnecessary. The ES regulations in parts Advocates may conduct field visits and groups. The Department proposes
652, 653, and 658 describe the activities that the appearances are announced, considering anyone who meets the
and services that ES staff are authorized and not unannounced, as with field definition of migrant farmworker to be
or required to carry out. The proposed checks. Second, the Department considered as such, including full-time
changes are intended to define a term proposes to replace the reference to students performing farmwork. This
that, when referenced, will clearly ‘‘employment services’’ with ‘‘ES change will make the benefits and
identify services or tasks that must be services’’ to conform with the use of the protections of the Monitor Advocate
performed by State merit staff, and to ‘‘ES’’ abbreviation throughout the System, including safeguards built into
simplify terminology throughout all regulatory text. Third, the Department the Complaint System, ES service
parts. The revised definition also makes proposes to amend the definition to requirements, and equity and minimum
clear that ES staff includes a SWA specify that field visits include service levels, available to full-time
official. discussions on farmworker rights and students traveling in organized groups.
The Department proposes to amend protections. The Department has The exclusion of full-time students from
the definition of field checks in several observed through monitoring that existing regulatory text was premised on
ways. First, the Department proposes to outreach staff and SMAs do not always the fact that full-time students did not
replace the term ‘‘job order’’ with discuss farmworker rights and need to meet minimum farmwork or
‘‘clearance order,’’ which is more protections during field visits as part of income requirements, which no longer
accurate because field checks must be broader discussions about ‘‘other exist in the ES regulations. Therefore,
the reference is no longer relevant to the farmworker consistent with the area in designating significant MSFW
migrant farmworker definition. definition of migrant farmworker. one-stop centers.
The Department proposes to remove The Department proposes to revise The Department proposes to amend
the definition of migrant food the definition for significant MSFW one- the definition of significant MSFW
processing worker because migrant food stop centers in several ways. First, by States. Similar to the proposed changes
processing worker status has not been a removing the requirement that the to the definition of significant MSFW
separately tracked part of the MSFW designation be made annually, the one-stop centers, the Department
definition since the ES regulations were Department can better rely on multiple proposes to remove the annual
updated in 2016. See 81 FR 56071 (Oct. data sources that are published in designation requirement from the
18, 2016). Current ETA reporting does intervals up to every 5 years, including definition of significant MSFW States.
not require States to document migrant the Census of Agriculture and the The Department proposes to rely on
food processing workers as a particular Quarterly Census of Employment and information from the Census of
type of MSFW and this definition is Wages. This will help ensure the Agriculture, which is published every 5
unnecessary because the existing MSFW designation more accurately aligns with years, and the Quarterly Census of
definitions are inclusive of individuals supporting data on the number of Employment and Wages, which
who perform work as migrant food MSFWs in the service area. Based on the publishes a quarterly count of
processors. Department’s analysis of census and employment and wages. These data
The Department proposes to amend sources provide the most reliable
other SWA data, the data do not change
the definition of Occupational farmworker estimates available.
significantly on an annual basis and,
Information Network (O*NET) to Additionally, the Department proposes
therefore, it is often unnecessary to
remove the word ‘‘system’’ from the to add ‘‘estimated’’ before ‘‘number of
change the designations. If annual
definition, as it is not needed to MSFW’’ and remove the word
describe O*NET. adjustments are warranted by the data,
‘‘participants’’ because the Department
The Department proposes to amend the Department will make adjustments
intends to use the estimated number of
the definition of O*NET–SOC to remove in annual designations. This change
MSFWs in each State, instead of
the words ‘‘of Labor’’ after would allow the list of significant
exclusively the number of MSFW
‘‘Department’’ because Department is MSFW one-stop centers to remain the
participants in the State to more
previously defined in this section as same if there is no compelling reason to
accurately determine which States have
‘‘the United States Department of make a change. The Department also the most MSFW activity and should
Labor.’’ proposes to add that significant MSFW therefore be designated as significant
The Department proposes to amend one-stop centers will also include ES MSFW States. Relying on the estimated
the definition of outreach staff to clarify offices where MSFWs account for 10 number of MSFWs in a State means the
that SMAs are not considered outreach percent or more of reportable Department will account for those
staff. The SMA’s role includes individuals in the ES annually, not just MSFWs who may eventually become
monitoring and providing guidance 10 percent or more of participants. This participants instead of only focusing on
related to outreach staff but does not corresponds to the proposed change in States with the highest existing number
include acting as outreach staff. §§ 653.103(a) and 653.109(b)(10), which of participants.
Outreach staff are a separate set of staff would require ES offices to determine The Department proposes to delete
described in § 653.107(b). As noted in and collect data on the number of the definition of significant multilingual
§ 653.108, no State may dedicate less reportable individuals who are MSFWs. MSFW one-stop centers in its entirety
than full-time staffing for the SMA This proposal is intended to more because the Department is proposing
position, unless the Regional closely correlate the designation of changes to § 653.102 to remove specific
Administrator (RA), with input from the significant MSFW one-stop centers to requirements for offices that would meet
RMA, provides written approval. The the total number of MSFWs—and, the definition. The Department proposes
SMA must also be able to review therefore, potential participants—in the to remove these specific requirements
outreach efforts as required in area, as opposed to just the number of for significant multilingual MSFW one-
§ 653.108(o) and have adequate time to existing participants in the area. Relying stop centers because all one-stop centers
complete the extensive duties described solely on the number of existing MSFW must comply with the language access
in § 653.108. While an SMA may join participants in the area fails to account requirements in 29 CFR 38.9, which
ongoing outreach efforts, § 653.107 for all other MSFWs in the area who prohibit discrimination on the basis of
requires SWAs to employ an adequate could potentially become participants national origin, including limited
number of outreach staff. and does not account for situations English proficiency (LEP). The
The Department proposes to revise where the number of participants in the Department created the significant
the definition of respondent by area is low due to failure to perform multilingual MSFW one-stop center
removing the parenthetical language adequate outreach or to make services definition and language access
‘‘including a State agency official’’ available to MSFWs so that MSFWs who requirements at § 653.102 before
because the term ‘‘State agency’’ is are reportable individuals may receive comprehensive language access
assumed to include ‘‘State agency participant level services. In those cases, requirements implementing section 188
officials’’ and it is therefore unnecessary the number of participants is not an of WIOA were codified in 29 CFR part
to distinguish ‘‘State agency officials’’ in accurate indicator of the need for 38. The regulations at 29 CFR 38.9
addition to the State agency. MSFW-specific ES services in the area. establish that language access
The Department is proposing to These proposed changes provide a more requirements apply to services provided
remove the exclusion of non-migrant accurate representation of the number of to all LEP individuals at all one-stop
full-time students from the definition of MSFWs in the area who could benefit centers and are broader than the existing
seasonal farmworker. This change from access to ES services. The requirements for significant multilingual
would allow full-time students who Department also is proposing to retain MSFW one-stop centers. For these
work in seasonal farmwork to be language permitting the Department to reasons, the designation of significant
considered seasonal farmworkers and consider special circumstances beyond multilingual MSFW one-stop centers is
would make the definition of seasonal the estimated number of MSFWs in the no longer necessary. Additionally,
having separate requirements for reference to affirmative action requests requirement to those States using
significant multilingual MSFW one-stop to make the Department’s regulation different staffing arrangements under
centers may inaccurately create the consistent with U.S. Supreme Court the rule as it existed prior to the 2020
appearance that there are two sets of jurisprudence on race-based affirmative Final Rule. As was true when the
language access standards, or that action.9 The proposed revision clarifies regulations were changed in 2020, none
requirements for significant multilingual that the States’ obligation is to comply of the changes proposed at this time will
MSFW one-stop centers are narrower. with 41 CFR 60–300.84. The regulation impact the personnel requirements of
Removing the significant multilingual at 41 CFR 60–300.84 requires ES offices the Vocational Rehabilitation (VR)
MSFW one-stop center definition to refer qualified protected veterans to program, one of the six core programs in
therefore clarifies that the fill employment openings required to be the workforce development system that
comprehensive language access listed with ES offices by certain Federal is authorized under title I of the
requirements at 29 CFR 38.9 apply to all contractors; give priority to qualified Rehabilitation Act of 1973
one-stop centers. protected veterans in making such (Rehabilitation Act), as amended by title
The Department proposes to remove referrals; and, upon request, provide the IV of WIOA. The Rehabilitation Act has
the definition of State Workforce Office of Federal Contract Compliance specific requirements governing the use
Agency (SWA) official, because SWA Programs with information as to of State VR agency personnel for
officials would be considered ES staff whether certain Federal contractors are performing certain critical functions of
based on the Department’s proposed in compliance with the mandatory job the VR program.
revisions to the definition of ES staff in listing requirements of the equal
this rulemaking. Section 652.204 Must funds
opportunity clause (41 CFR 60–300.5). authorized under the Governor’s
The Department is proposing to Consistent with this proposed
amend the definition of Wagner-Peyser Reserve flow through the one-stop
amendment, the Department also delivery system?
Act Employment Service (ES) also proposes to remove the phrase ‘‘and
known as Employment Service (ES) to affirmative action’’ from the paragraph This section explains that the
replace the phrase ‘‘employment heading for § 652.8(j). The Department Governor’s Reserve funds may, but are
services’’ with ‘‘ES services.’’ This reminds SWAs that they have an not required to, flow through the one-
change would simplify the use of affirmative outreach obligation under 29 stop delivery system and provides a list
terminology throughout all parts. The CFR 38.40 that requires them to take of allowable uses for those funds. The
Department also proposes to remove the Department proposes to simplify the
appropriate steps to ensure they are
words ‘‘and are’’ from the definition for section heading to remove reference to
providing equal access to services and
greater clarity. the Wagner-Peyser Act because
activities authorized under the Wagner-
reference to the Governor’s Reserve is
C. Part 652—Establishment and Peyser Act, as well as any other WIOA
adequate. The Department also proposes
Functioning of State Employment title I-financially assisted programs and
to amend this section to reference
Service Subpart C—Employment Service activities. As outlined in that regulation,
professional development and career
Services in a One-Stop Delivery System these steps should involve reasonable
advancement of ES staff instead of SWA
Environment efforts to include members of the
officials. Under the proposed revisions
various groups protected by the WIOA
1. Subpart A—Employment Service to the definitions found in part 651, ES
sec. 188 regulations, including but not
Operations staff would exclusively refer to State
limited to persons of different sexes,
This subpart includes: An explanation merit staff. This NPRM proposes to
various racial and ethnic/national origin
of the scope and purpose of the ES; the remove the term SWA official as a
groups, members of various religions,
rules governing allotments and grant defined term in § 651.10, as the term is
individuals with limited English
agreements; authorized services; made redundant under the proposed
proficiency, individuals with
administrative provisions; and rules changes.
disabilities, and individuals in different
governing labor disputes. The age groups. Section 652.215 Can Wagner-Peyser
Department’s proposed amendments to Act-funded activities be provided
subpart A focus solely on administrative 2. Subpart C—Employment Service
through a variety of staffing models?
provisions governing nondiscrimination Services in a One-Stop Delivery System
requirements. Environment This section currently provides States
the option to provide ES services
Section 652.8 Administrative This subpart discusses State agency through a variety of staffing models. For
Provisions roles and responsibilities; rules the reasons set forth in this NPRM, the
governing ES offices; the relationship Department proposes to amend
Section 652.8 covers administrative between the ES and the one-stop
matters, including: Financial and § 652.215 to require all States, including
delivery system; required and allowable the historically exempted
program management information ES services; universal service access
systems; recordkeeping and retention of ‘‘demonstration States,’’ to provide labor
requirements; provision of services for exchange services described in § 652.3
records; required reports; monitoring UI claimants; and State planning.
and audits; costs; disclosure of of this part through State merit staff.
Among other changes, the NPRM’s The staffing requirement applies to ES
information; sanctions; and
proposed changes to regulations under services provided to MSFWs.
nondiscrimination requirements.
subpart C are tailored to require all
The Department proposes to correct Specifically, the proposed regulatory

the statutory reference in § 652.8(j)(2) States to use State merit staff to provide text states that labor exchange services
regarding the bona fide occupational ES services, reinstating a longstanding must be provided by ES staff. Under
qualification (BFOQ) exception requirement that existed prior to the proposed revisions to the definitions
currently listed in the regulation as 42 2020 Final Rule, and extending the (§ 651.10), ES staff will exclusively refer
U.S.C. 2000(e)–2(e) to 42 U.S.C. 2000e– 9 See, e.g., Ricci v. DeStefano, 557 U.S. 557, 585
to State merit staff.
2(e). (2009); Adarand Constructors, Inc. v. Pena, 515 U.S.
Historically, the Department relied on
The Department proposes to amend 200, 238 (1995); Richmond v. J.A. Croson Co., 488 authority under sec. 3(a) of the Wagner-
§ 652.8(j)(3) to remove an outdated U.S. 469, 507 (1989). Peyser Act, which requires the
Department to assist in coordinating proposing to require, with no provide ES services. Reinstating the
State ES offices and improve their exceptions, that States use State merit- State merit-staffing requirement will
usefulness by setting minimum staff employees to provide ES services. impact these States, but the Department
standards of efficiency and promoting This proposed rule ensures States are thinks that the impact will be minimal,
their uniform administration, as well as universally equipped to use cross- as described in the regulatory impact
authority in sec. 5(b) of the Wagner- trained ES staff to assist in processing analysis section of this proposal (sec.
Peyser Act, to promulgate regulations and adjudicating UI claims, and III.A of the preamble).
prescribing the use of State merit staff. assisting claimants with work search The Department recognizes that this
Prior to 2020, in support of its and reemployment services. As proposed change will have the most
longstanding State merit staff described previously, the Department impact on the three demonstration
requirement for ES services, the relies on authority under secs. 3(a) and States, Colorado, Massachusetts, and
Department explained that the benefits 5(b) of the Wagner-Peyser Act, as well Michigan. Since the 1990s, these three
of merit-staffing in promoting greater as sec. 208 of the IPA, to exercise States have relied on an exemption in
consistency, efficiency, accountability, discretion to require the use of State their approved State plans to use some
and transparency are well established.10 merit staff to deliver ES services. limited form of non-State-merit staffing.
The Department’s discretion to require To improve clarity, the Department Any burden imposed on these three
the use of State merit staff to provide ES proposes revising the section heading States by the proposal to require their
services was affirmed in Michigan v. from ‘‘Can Wagner-Peyser Act funded use of only State merit staff may be
Herman, 81 F. Supp. 2d 840 (W.D. activities be provided through a variety mitigated by the States’ currently
Mich. 1998). As explained earlier in this of staffing models?’’ to ‘‘What staffing approved staffing models. Colorado and
preamble, in the 1990s, the Department model must be used to deliver services Michigan both use only merit-staffing to
approved limited exemptions from the in the Employment Service?’’ In deliver ES services, but they employ
merit-staffing requirement for three addition, the Department proposes merit staff at both the State and local
States (Colorado, Massachusetts, and revising the regulatory text by adding a level to deliver services. For these
Michigan) during the establishment of new paragraph (a), which specifies that States, the proposed regulation would
the one-stop delivery system to test the Secretary requires that the labor require that they discontinue their use
alternative service-delivery models, but exchange services described in § 652.3 of local merit staff and use only State
subsequently noted that no additional be provided by ES staff. This revision is merit staff. Massachusetts uses some
exemptions would be authorized. proposed to reinstate the State merit- non-merit staff, but that use of non-
In the 2020 Final Rule, the staffing requirement and align with the merit staff is only approved in 4 out of
Department changed its longstanding proposed definitions of ES and ES staff 16 local areas in the State. In the
policy and determined that granting in § 651.10. remaining local areas, Massachusetts
States flexibility in staffing potentially The Department further proposes to uses State merit staff to deliver ES
would give States flexibility to meet the add a new paragraph (b), which services. Accordingly, while disruption
unique needs of ES customers, free up provides that the staffing requirement in in service delivery may occur due to
resources to serve employers and job this section would have the same this change, the Department anticipates
seekers, and better integrate ES services effective date as other proposed changes that disruption to these States’ ES
with other WIOA programs. The in this NPRM and would become service delivery will be minimal. As
Department also stated that similar effective 60 days after publication of the noted in the regulatory impact analysis,
programs operated successfully with final rule in the Federal Register. The prior to publication of this NPRM, the
flexible staffing arrangements and, Department also proposes to add a new Department surveyed the demonstration
therefore, staffing flexibility should be paragraph (c), which specifies a States on any transition costs that may
provided under the Wagner-Peyser Act. compliance date for proposed § 652.215 be incurred by the proposed State merit-
However, the recent stress placed upon (i.e., the date on which the requirements staffing requirement. While the
State UI systems in response to the of this section would become Department acknowledges that there
COVID–19 pandemic served to highlight enforceable) of 18 months after the may be some cost to these three States
the necessity of States to be able to rely effective date of the final rule. The due to this change, the Department
on State merit staff who are already Department acknowledges that for believes that the rationale for requiring
cross-trained or able to be quickly cross- States currently using different staffing the use of State merit staff applies
trained and legally permitted to assist models for the provision of ES services, equally to the demonstration States, and
UI claimants during times of high both those that have been using that the long-term benefits of having
demand placed on State UI systems. As different models for many years and cross-trained ES staff outweigh the cost
discussed above, the Department has those that changed or have begun to to these States of transitioning to the use
reassessed the factors it weighed in the change their staffing models due to the of State merit staff. The Department
2020 Final Rule and has determined 2020 Final Rule, the use of State merit seeks comment on the benefits and costs
that the alignment of ES and UI staffing staff may take time to implement. of transitioning to a State merit-staffing
is more important than the efficiencies In the short period of time that requirement in instances where States
that flexibility may promote, and that it staffing flexibility has been available to are using staff other than State merit
is vital that the ES be administered so all States, the Department is aware that staff to deliver services. In addition, the
that quality services are delivered a few States expressed an interest in Department seeks comment on any
effectively and equitably to UI using that flexibility. Some States may positive or negative impact this change
beneficiaries and other ES customers. have taken steps to use the staffing would have in terms of the quality of
Accordingly, the Department is now flexibility without modifying their services provided within the American
approved State plans, under which they Job Centers—including those funded by
10 See 64 FR 18662, 18691 (April 15, 1999) indicate that they are using State merit WIOA.
(Workforce Investment Act (WIA) Interim Final staff to deliver ES services. At least one However, acknowledging that these
Rule); 65 FR 49294, 49385 (Aug. 11, 2000) (WIA
Final Rule); 80 FR 20690, 20805 (April 16, 2015)
State has submitted a State plan three States, and any State that had
(WIOA NPRM); 81 FR 56072, 56267 (Aug. 19, 2016) modification indicating that the State taken action under the 2020 Final Rule,
(WIOA Final Rule). intends to use non-State merit staff to will be unable to immediately comply
with this proposed requirement, the U.S.C. 3248, and the implementing MSFWs by complying with the
Department proposes to provide 18 regulations at 29 CFR part 38. The requirements in parts 653 and 658.
months for States to implement the requirements of section 188 of WIOA The Department also proposes to
State merit-staffing requirement in order apply to ES services because the remove the final sentence of § 653.102,
to provide States with adequate time to Wagner-Peyser Act Employment Service which stated that in designated
consider and implement any necessary is a required one-stop partner, and the significant MSFW multilingual offices,
changes to come into compliance, requirements of section 188 of WIOA assistance with accessing job order
including time to resolve outstanding apply to all one-stop partners. 29 CFR information must be provided to
contractual obligations and align 38.4(zz). MSFWs in their native language
changes with the timed financial whenever requested or necessary. The
Section 653.101 Provision of Services Department proposes to remove this
allotments. The Department is open to
to Migrant and Seasonal Farmworkers sentence to align language access
adjusting this time period and,
accordingly, it seeks comments from The Department proposes to amend requirements in the ES regulations with
States regarding whether 18 months is § 653.101 by revising the first sentence those required by WIOA sec. 188 and its
sufficient time to comply with this to clarify that the SWA is the primary implementing regulations at 29 CFR part
requirement. The Department also seeks recipient of Wagner-Peyser Act funds 38. Language access requirements are
comments from States describing other and, therefore, is the entity responsible not limited to designated multilingual
regulatory changes States believe are for ensuring that ES staff offer MSFWs MSFW one-stop centers, but rather, they
necessary to effectuate compliance with the full range of career and supportive apply to LEP individuals regardless of
the proposed changes. services. This clarification is proposed through which office they seek ES
because it is ultimately incumbent upon services. The existing requirement was
D. Part 653—Services of the Wagner- written into the regulations in the early
Peyser Act Employment Service System the SWA to ensure ES staff at one-stop
centers are carrying out the appropriate 1980s, well before the language access
Part 653 sets forth the principal duties with their Wagner-Peyser Act requirements were codified at 29 CFR
regulations of the ES concerning the funds. The Department also proposes to part 38. Removing the existing
provision of services for MSFWs replace the requirement to consider and requirement, which specifically applies
consistent with the requirement that all be sensitive to the preferences, needs, to designated multilingual MSFW one-
services of the workforce development and skills of individual MSFWs and the stop centers, and adding a reference to
system be available to all job seekers in the broader language access
availability of job and training
an equitable fashion. The regulations in requirements at § 653.103(b) (described
opportunities with a requirement that
this part establish special services to in the following section) is intended to
SWAs ensure the one-stop centers tailor
ensure MSFWs receive the full range of strengthen language access for all LEP
ES services in a way that accounts for
career services, as defined in WIOA sec. individuals. This change also aligns
individual MSFW preferences, needs,
134(c)(2), 29 U.S.C. 3174(c)(2), and with the proposal to remove the
skills, and the availability of job and
contain requirements that SWAs definition for multilingual MSFW one-
training opportunities, so that MSFWs
establish a system to monitor their own stop centers from § 651.10. Accordingly,
are reasonably able to participate in the
compliance with ES regulations the Department proposes to add a
ES. This proposed change strengthens
governing services to MSFWs. As noted broader language access requirement to
the requirement to tailor services to the § 653.103, as described in the following
elsewhere in this preamble, the individualized needs of MSFWs. The
proposed State merit-staffing section.
change also would make the
requirement discussed in part 652 requirement applicable to the SWA to Section 653.103 Process for Migrant
would also apply to delivery of all ES ensure the one-stop centers comply, to and Seasonal Farmworkers To
services to MSFWs, including outreach align with the SWA’s position as the Participate in Workforce Development
services and the Monitor Advocate direct recipient of ES funds. The Department proposes to make
System discussed in the following several revisions to § 653.103. In
section. References to staffing Section 653.102 Job Information
paragraph (a), the Department proposes
throughout this part of the proposed The Department proposes to revise to change ‘‘one-stop center’’ to ‘‘ES
rule, even where the Department has not the second sentence of § 653.102 to office.’’ This change clarifies that the
proposed changes, refer to State merit clarify that the SWA is the entity requirement applies to ES staff because
staff. responsible for assisting MSFWs to part 653 applies to the ES services
1. Subpart B—Services for Migrant and access job order information, for the program, not all one-stop partner
Seasonal Farmworkers (MSFWs) same rationale as described in the same programs. In addition to the existing
proposed change for § 653.101. The requirement to determine whether
Section 653.100 Purpose and Scope of Department’s proposed language also participants, as defined at § 651.10, are
Subpart clarifies that the requirement applies to MSFWs, the Department proposes to
The Department proposes to amend ES staff at one-stop centers because the require that ES offices must determine
§ 653.100(a) to clarify that the provision scope of part 653 relates to the ES whether reportable individuals, also
of services for MSFWs must be available services program, not all one-stop defined at that section, are MSFWs. This
in an equitable and nondiscriminatory partner programs. The Department also proposed change will help ES staff
fashion. The addition of the phrase ‘‘and proposes to remove the word identify all individuals who engage in
nondiscriminatory’’ is intended to ‘‘adequate’’ as a modifier to the phrase ES services who are MSFWs, and not
clarify that SWAs must not discriminate ‘‘assistance to MSFWs.’’ The limit that assessment to participants
against farmworkers either because they Department has observed that States’ only. With this information, SWAs will
are farmworkers or because of any interpretation of what it means to be able to better understand the number
characteristics protected under the provide adequate assistance varies. of MSFWs who engage in the ES and the
nondiscrimination and equal Removing the word ‘‘adequate’’ will degree of their engagement. This
opportunity provisions of WIOA, which remove subjectivity and clarify that a information is important for SWAs and
are contained in sec. 188 of WIOA, 29 SWA meets its obligation to assist SMAs to have so that they may
understand the full scope of who requirement that one-stop centers must the word ‘‘activities’’ helps clarify that
accesses particular services for the provide MSFWs a list of available career SWAs must coordinate their activities
purposes of determining whether and supportive services ‘‘in their native with NFJP grantees (i.e., work together
services are being provided to MSFWs language.’’ This proposed change would to strengthen their respective services)
on an equitable basis. For example, by make the provision consistent with the but that NFJP grantee outreach is not a
having the number of MSFW reportable broader proposed revisions to language substitute for SWA outreach obligations.
individuals, the SWAs and SMA can access requirements throughout all parts To further clarify this point, the
analyze situations where there may be to ensure they align with 29 CFR 38.9. Department proposes to add to
large numbers of MSFW reportable § 653.107(a)(1) a sentence explaining
Section 653.107 Outreach
individuals but very few or no MSFW that WIOA title I sec. 167 grantees’
Responsibilities and Agricultural
participants, in proportions far different activities involving MSFWs does not
Outreach Plan
than other populations. Such scenarios substitute for SWA outreach
may indicate that ES services are not The Department proposes to revise responsibilities. This clarification is
being provided to MSFWs in a way that the section heading in § 653.107 to read important because NFJP staff are not
is tailored to individual MSFW ‘‘Outreach responsibilities and obligated to provide the same
preferences, needs, skills, and the Agricultural Outreach Plan’’ to provide information or services to MSFWs as
availability of job and training greater clarity. SWA outreach staff must provide, nor
opportunities, so that MSFWs are The Department proposes to revise are they monitored by the SMA to
reasonably able to participate in the ES, § 653.107(a)(1) in several ways. First, ensure services are compliant with ES
as required by the proposed § 653.101. the Department proposes to move to regulations.
In § 653.103(b), the Department § 653.107(a)(4) the sentence that At § 653.107(a)(2)(i), the Department
proposes to replace the existing explains each SWA must provide an proposes a technical edit to change the
provision requiring all SWAs to ensure adequate number of outreach staff to period after ‘‘MSFWs’’ to a semicolon
that MSFWs who are English-language conduct MSFW outreach in their service and adding the word ‘‘and’’ to clarify
learners receive, free of charge, the areas. The regulation at paragraph (a)(4) that as part of their outreach, SWAs
language assistance necessary to afford details how many outreach staff a SWA must ensure outreach staff satisfy both
them meaningful access to the must provide and explains what it paragraphs (i) and (ii), which follow.
programs, services, and information means to provide an adequate number In § 653.107(a)(2)(ii), the Department
offered by the one-stop centers with a of outreach staff. Therefore, the proposes to revise the requirement that
new provision requiring all SWAs to previously quoted language from SWAs must ensure outreach staff
comply with the language access and § 653.107(a)(1) more logically fits in conduct thorough outreach efforts with
assistance requirements at 29 CFR 38.9 § 653.107(a)(4), where it provides clarity extensive follow-up activities in supply
with regard to all LEP individuals, regarding what adequate means. The States by replacing ‘‘in supply States’’
including MSFWs who are LEP result of this change is that the first with ‘‘identified at § 653.107(b)(5).’’
individuals, as defined at 29 CFR sentence of this section now requires This change is proposed because SWAs
38.4(hh). This compliance includes that the SWA ensure that outreach staff must ensure outreach staff are
ensuring ES staff comply with these fulfill the outreach responsibilities conducting thorough outreach efforts
language access and assistance described in paragraph (b) of this with extensive follow-up activities in all
requirements. This proposed change section on an ongoing basis. The States—not only in supply States. This
aligns the language access requirements Department proposes to add that proposed revision does not increase the
for MSFWs with those requirements outreach staff must conduct outreach on outreach burden on non-supply States
identified for all LEP individuals an ongoing basis to clarify that outreach because all States must already comply
pursuant to 29 CFR 38.9 and helps activities in all States must occur year- with all applicable outreach provisions
ensure LEP individuals have meaningful round. As described at 20 CFR identified at § 653.107.
access to the ES. 653.107(a)(4), in significant MSFW The Department proposes several
Due to this proposed change, the States, there must be full-time, year- revisions to § 653.107(a)(3). First, the
Department proposes corresponding round outreach staff and in the Department proposes to revise the
edits throughout the ES regulations to remainder of the States there must be language and structure of the paragraph.
ensure that all language access year-round part-time outreach staff. This The Department proposes to replace
requirements align with 29 CFR 38.9. change is proposed to clarify that all ‘‘For purposes of providing and
This is important for several reasons. States must have some degree of assigning outreach staff to conduct
First, 29 CFR 38.9 is part of WIOA sec. outreach at all times. outreach duties, and to facilitate the
188’s prohibition on discrimination on Second, the Department proposes to delivery of employment services
the basis of national origin, including revise the sentence that provides SWA tailored to the special needs of
limited English proficiency. Administrators must ensure SMAs and MSFWs. . .’’ with ‘‘When hiring or
Maintaining separate language access outreach staff coordinate their outreach assigning outreach staff.’’ This change
requirements could create confusion efforts with WIOA title I sec. 167 would operationalize the proposed State
about which standard should apply. grantees by replacing ‘‘their outreach merit-staffing requirement for outreach
Second, the proposed change reduces efforts’’ with the word ‘‘activities.’’ This workers. The existing regulatory text
duplication because the standards at 29 change is proposed to correct frequent permits SWAs the flexibility to provide
CFR 38.9 already cover the language misunderstandings by SWAs, where outreach staff in several ways, including
access requirements provided in the ES SWAs believe coordinating their by subcontracting staff. With this
regulations. Third, aligning the ES outreach efforts means that other proposed change, the Department is
regulations with 29 CFR 38.9 ensures organizations such as National making clear that the SWA is
broader language access protections for Farmworker Jobs Program (NFJP) responsible for directly hiring outreach
LEP farmworkers than those in the grantees may conduct outreach on staff who must be State merit staff
existing ES regulations. behalf of the SWA and that the NFJP because the definition of outreach staff
Lastly, in § 653.103(c), the grantees’ outreach is sufficient to satisfy refers to ES staff, who must be State
Department proposes to remove the the SWA’s outreach obligations. Using merit staff.
The Department has observed that to meet the unique needs of at § 653.107(b). This requirement is
SWAs commonly assign existing staff to farmworkers. The proposed paragraph important because having each outreach
fill outreach staff vacancies, without also makes requirements for hiring staff person engage in outreach on a full-
seeking qualified candidates who speak outreach staff consistent with the time basis gives that person more time
the language of a significant proportion requirements for appointing an SMA to establish a positive working
of the State MSFW population, are from under § 653.108(b). For the SMA relationship with MSFWs and
MSFW backgrounds, or have substantial position, the SWA is required to inform agricultural employers in their service
work experience in farmworker farmworker organizations and other area. This can be helpful for building
activities. The proposed revision is also organizations with expertise concerning trust and engaging in informal
intended to clarify that SWAs must seek MSFWs of the opening and encourage resolution of complaints and apparent
to hire for or assign to outreach staff them to refer qualified applicants to violations. It is also necessary so that
positions, and put a strong emphasis on apply. As discussed in this section, this outreach staff are fully available to
hiring or assigning, individuals who requirement helps SWAs expand the provide the level of ES and follow-up
speak the language of a significant applicant pool for SMAs to help the activities that these regulations describe.
proportion of the State MSFW SWA choose from a larger selection of The Department proposes to keep the
population and who either are from qualified applicants, and the same existing requirements that, in the 20
MSFW backgrounds or have substantial reasoning applies to outreach staff. States with the highest estimated year-
work experience in farmworker The Department proposes to amend round MSFW activity, as identified by
activities. Several revisions impact how § 653.107(a)(4) by adding the sentence the Department and defined as
a State staffs outreach responsibilities. that the Department proposes to remove significant MSFW States at § 651.10,
Changes at 653.107(a) require outreach from § 653.107(a)(1), which provides there must be full-time, year-round
to be ongoing, changes at 653.107(a)(3) that each SWA must provide an outreach staff to conduct outreach
strengthen hiring requirements, and adequate number of outreach staff to duties. In the remainder of the States,
changes at 653.107(a)(4) clarify that full- conduct MSFW outreach in their service there must be year-round part-time
time outreach work means devoting areas. However, the Department outreach staff, and during periods of the
100% of their time to outreach. proposes to replace ‘‘in their service highest MSFW activity, there must be
Together, States will be unlikely to be areas’’ with ‘‘in each area of the State.’’ full-time outreach staff. This means that
able to fulfill these responsibilities This change will clarify that SWAs must States that are not significant MSFW
unless they hire staff specifically for provide outreach in all areas of the State States may allow outreach staff to
outreach. While States can assign where there are farmworkers, not only conduct other activities that promote
outreach responsibilities to existing in certain service areas. This change farmworker safety, including housing
qualified staff, such staff in significant would make the expectation to cover the inspections, when they are not in peak
MSFW States must then devote 100% of full State clear. The Department also harvest season. If outreach staff in States
their time to outreach, not merely add proposes to replace ‘‘provide’’ with that are not significant MSFW States
outreach to other responsibilities. For ‘‘employ’’ and add to the end of the have additional time available after
non-significant MSFW States, outreach sentence language making clear that an fulfilling their required outreach
staff must devote full time in peak adequate number of outreach staff are responsibilities, those States may
season and part time in non-peak season needed to contact a majority of MSFWs leverage outreach staff members,
in all of the SWA’s service areas required to be State merit staff under
to outreach.
annually. These additions are proposed this proposal, to help support other
The Department proposes to maintain to clarify what it means to employ an critical functions, such as UI.
the language in § 653.107(a)(3)(i) that ‘‘adequate number of outreach staff,’’ all Finally, the Department proposes to
SWAs must seek qualified candidates of whom must be State merit staff. further clarify outreach staffing
who speak the language of a significant Making this determination on an annual requirements by adding a new sentence
proportion of the State MSFW basis helps align the assessment of in § 653.107(a)(4) stating that staffing
population. But to strengthen the staffing levels with the reporting levels must align with and be supported
existing requirement, the Department required in the SMA’s Annual by information about the estimated
proposes to add that the SWA must not Summary. number of farmworkers in the State and
only seek but also put a strong emphasis The Department further proposes to the farmworker activity in the State as
on hiring qualified candidates. This revise the sentence requiring that in the demonstrated in the State’s Agricultural
language is proposed to increase the 20 States with the highest estimated Outreach Plan (AOP) pursuant to
likelihood that SWAs will hire year-round MSFW activity, as identified § 653.107(d). This language will help
candidates with the criteria described in in guidance issued by the Secretary, SWAs understand that the number of
§ 653.107(a)(3)(i), instead of simply there must be full-time, year-round full-time or part-time outreach staff
seeking candidates whom they never outreach staff to conduct outreach must be determined by information
hire. To further increase the likelihood duties. Specifically, the Department provided in the State’s AOP. These
that SWAs hire candidates who meet proposes to replace ‘‘in guidance issued revisions will give the State a clear
the required criteria, the Department by the Secretary’’ with ‘‘as identified by method to identify what staffing levels
proposes to add a new paragraph at the Department.’’ This revision is are appropriate.
§ 653.107(a)(3)(ii) requiring the SWA to necessary to conform to guidance issued The Department also proposes to
inform farmworker organizations and by the Department. revise § 653.107(b) by adding that
other organizations with expertise The Department also proposes to outreach staff responsibilities include
concerning MSFWs of outreach staff job amend § 653.107(a)(4) to add a sentence the activities identified in
openings and encourage them to refer clarifying what it means to have full- § 653.107(b)(1) through (11). This
qualified applicants to apply. These time outreach staff. The proposed addition clarifies the specific activities
additions are proposed to expand the sentence explains that full-time means included in outreach staff
applicant pool for outreach staff each individual outreach staff person responsibilities. The proposed
positions to include individuals who must spend 100 percent of their time on regulatory text also replaces a colon
have the knowledge, skills, and abilities the outreach responsibilities described with a period, which helps the
construction of the sentence and its information from organizations the regulation also would require the SWA
relationship to the following Department has partnered with to include the number of full-time and
paragraphs. regarding these issues. The focus part-time outreach staff in the State and
The Department proposes two remains for outreach staff to be able to to demonstrate that there is sufficient
revisions to § 653.107(b)(1). First, the identify and refer cases to the outreach staff to contact a majority of
Department proposes to replace appropriate enforcement agencies. MSFWs in all the State’s service areas
‘‘Explaining’’ with ‘‘Outreach staff must Third, the Department proposes to annually. The Department is proposing
explain’’ to align with the updated replace the requirement for outreach these changes to strengthen the
construction of the sentence whereby staff to be trained in the procedure for description in the AOP of how the SWA
paragraph (b) is proposed to be a informal resolution of complaints with will contact MSFWs adequately,
sentence ending in a period and not a a requirement for them to be trained in consistent with the proposed revision to
colon, making the following paragraphs the Complaint System procedures (at § 653.107(a)(4) for States to employ
full sentences. Second, the Department part 658, subpart E) and be aware of the sufficient outreach staff to contact a
proposes to remove the explicit local, State, regional, and national majority of MSFWs in all the State’s
requirement for the information that enforcement agencies that would be service areas annually. It is also helpful
outreach staff must convey to be in a appropriate to receive referrals. This for RMAs to understand staffing levels
language readily understood by them, change is necessary so that outreach to assess whether the State can meet the
because proposed § 653.103(b) would staff are trained in the full Complaint SWAs outreach requirements.
already require this information to be in System procedures, which include The Department proposes to clarify
languages other than English for LEP informal resolution. that § 653.107(d)(2)(iv) requires the AOP
individuals as provided under 29 CFR The Department proposes to revise to describe activities planned for
38.9. This proposed change conforms § 653.107(b)(8) by changing the record providing the full range of ES services
with other proposed changes to retention requirement from 2 years to 3 to the agricultural community, instead
language access requirements years to align with the Office of of ‘‘employment and training services.’’
throughout parts 651, 652, 653, and 658 Management and Budget (OMB) This change is necessary to explain
where the Department seeks to align Uniform Administrative Requirements, which specific services the AOP must
these requirements with those identified Cost Principles, and Audit describe, which is specific to ES
at 29 CFR 38.9. Requirements for Federal awards to services and do not include all
The Department proposes to revise non-Federal Entities (Uniform workforce development system
§ 653.107(b)(3) to replace ‘‘outreach Guidance) record retention activities.
workers’’ with ‘‘outreach staff’’ to align requirements at 2 CFR 200.334. The
The Department proposes to replace
with the proposed definition of outreach Uniform Guidance applies to all grants
staff at § 651.10. The Department the requirement at § 653.107(d)(2)(v)
funded by ETA. It is important to ensure
proposes the same revision to paragraph that the AOP must provide an assurance
record retention requirements are
(b)(4) and to remove the word ‘‘the’’ that the SWA is complying with the
consistent across all ETA grantee
before ‘‘outreach staff’’ for clarity. These requirements under § 653.111 if the
activities, including for the Monitor
changes are necessary to align with the State has significant MSFW one-stop
Advocate System which is funded by
proposed State merit-staffing centers with a requirement that the AOP
the Wagner-Peyser Act grant.
requirements for ES staff. Because The Department proposes to make a must include a description of how the
§ 651.10 defines outreach staff as ES technical edit to § 653.107(b)(11) by SWA intends to provide ES staff in
staff with responsibilities described at replacing the reference to significant significant MSFW one-stop centers in
§ 653.107(b), the proposed State merit- MSFW ‘‘local offices’’ with ‘‘significant accordance with § 653.111. This
staffing requirement applies to outreach MSFW one-stop centers’’ to align with proposed change is intended to help the
staff. the defined term in § 651.10. The SMAs, RMAs, and the NMA assess
The Department proposes several Department also proposes to add a whether SWAs will have the
revisions to § 653.107(b)(7). First, the requirement that the outreach activities appropriate staffing structure to meet
Department proposes to replace the must align with and be supported by the unique needs of farmworkers.
reference to outreach staff being trained information provided in the State’s AOP The Department proposes to amend
in ‘‘local office’’ procedures with ‘‘one- pursuant to § 653.107(d). § 653.107(d)(4) to clarify that the AOP
stop center’’ procedures to align with The Department proposes to replace must be submitted in accordance with
the ES office definition at proposed the requirement in § 653.107(d)(2)(ii) for § 653.107(d)(1) instead of (d), as
§ 651.10. Second, the Department SWAs in the AOP to provide an currently written. Paragraph (d)(1) is the
proposes to require SWAs to provide assessment of available outreach accurate reference that explains the
outreach staff with training on sexual resources with a requirement that SWAs SWA’s responsibility to develop the
coercion, assault, and human explain the materials, tools, and AOP as a part of the Unified or
trafficking, alongside the existing resources the State will use for outreach. Combined State Plan.
requirement to provide sexual The proposed revision clarifies the The Department proposes two
harassment training. The current requirement to assist SWAs to better revisions at § 653.107(d)(5). First, the
regulation gives SWAs the option of understand what information must be Department proposes a technical edit to
providing training on sexual coercion, reported and that SWAs should provide change the reference from § 653.108(s)
assault, and human trafficking. The more detailed and better explanations of to § 653.108(u) due to restructuring
proposed regulation would require how the SWA intends to use those paragraphs at § 653.108. Second, the
training in these areas due to an resources. Department proposes to replace ‘‘its
increased need to combat these issues in The Department proposes to amend goals’’ with ‘‘the objectives.’’ Referring
the field. These additional topics are of § 653.107(d)(2)(iii) to require SWAs to to ‘‘the objectives’’ is more accurate
importance to the Department, and this describe their activities to contact because the Department does not ask
proposal is driven by the increased MSFWs who are not being reached by SWAs to provide specific goals in the
frequency of complaints and apparent the normal intake activities conducted AOP, rather SWAs identify various
violations SWAs have processed and by the one-stop centers. The proposed objectives.
Section 653.108 State Workforce which the Department proposes to address feedback from E.O. Officers that
Agency and State Monitor Advocate effectuate this proposal is to remove the they lacked sufficient authority to carry
Responsibilities definition of SWA official in § 651.10 out their responsibilities. Similarly, in
Section 653.108 governs what a SWA and to revise the definition of ES staff returning to merit-staffing in this
and SMA must do to monitor a State’s in § 651.10 to mean State government rulemaking, the Department proposes to
provision of ES services to MSFWs. As personnel who are employed according more specifically describe the required
explained subsequently, the Department to the merit-system principles described status of the SMA. Prior to the 2020
proposes several revisions to this in 5 CFR part 900, subpart F (Standards Final Rule, § 653.108(c) required the
section to strengthen the role of the for a Merit System of Personnel SMA to have direct, personal access,
SMA and to enhance the monitoring Administration) and who are funded, in when necessary, to the State
whole or in part, by Wagner-Peyser Act Administrator, and status and
activities that SMAs perform.
The Department proposes to revise funds. As relevant here, the Department compensation comparable to other State
§ 653.108(a) to explicitly prohibit the proposes to remove the requirement in positions assigned similar levels of
State Administrator or ES staff from § 653.108(b) for the SMA to be a SWA tasks, complexity, and responsibility. By
retaliating against an SMA for Official and to revise § 653.108(c) to requiring the SMA to be a senior-level
require that the SMA be a senior level ES staff employee who reports directly
performing the monitoring activities
ES staff employee. While the specifics to the State Administrator or their
that are required by this section.
of this proposal are discussed in detail designee, this proposed rule would
Specifically, the Department proposes to
subsequently, the Department notes provide concrete ways to ensure that the
add at the end of § 653.108(a) a
here that the term ES staff is intended SMA has status equivalent to what
requirement that the State
to clarify that the proposed regulation § 653.108(c) required prior to the 2020
Administrator and ES staff must not
would require the SMA to be not only Final Rule. This specification will also
retaliate against staff, including the
a State employee, but a State merit-staff address feedback from many SMAs,
SMA, for self-monitoring or raising any
employee. This proposal, if finalized, who have reported that they lack
issues or concerns regarding non-
will lead to more consistent delivery of sufficient authority to carry out their
compliance with the ES regulations. The services to ES customers. As a universal duties identified in the ES regulations.
addition of this sentence will emphasize access system, it is vital that the ES be This change would allow SMAs to more
the Department’s intolerance for administered consistently across all efficiently and effectively carry out the
retaliation against SMAs for conducting States and that services are delivered SMA’s obligation to monitor whether
their duties and encourage and protect effectively and equitably. Returning to the SWA is serving farmworkers in a
internal disclosures and discussions the requirement that ES services be way that is qualitatively equivalent and
about noncompliance. provided by State merit staff would help quantitatively proportionate to all other
The Department proposes to revise ensure that ES services are delivered by job seekers.
§ 653.108(b), which prescribes criteria knowledgeable personnel in a manner To achieve these results, the
that States must consider when consistent from State to State and allow Department proposes to strengthen the
appointing an SMA, to require that for accountability that other staffing status of the SMA in several ways. First,
SWAs not only seek but also put a models cannot duplicate. the Department proposes at § 653.108(c)
strong emphasis on hiring qualified The Department additionally to create new paragraphs (c)(1) through
candidates for the SMA position who proposes several revisions to (3). In paragraph (c)(1), the Department
meet one or more of the criteria listed § 653.108(c) to strengthen the status of proposes to require that the SMA be a
in paragraphs (b)(1) through (3). While the SMA, as many SMAs have reported senior-level ES staff employee. As
the current regulations already require difficulty in their ability to fully carry previously explained, enhancing the
SWAs to ‘‘seek’’ qualified candidates out their duties due to insufficient status of the SMA by making the SMA
who meet these criteria, the Department status within the SWA. With these a senior-level official will allow the
proposes to require that SWAs ‘‘put a proposed changes, the Department seeks SMA to have the authority necessary to
strong emphasis on hiring’’ such to align the status of the SMA with that more effectively carry out their duties.
candidates to increase the likelihood of the Equal Opportunity (E.O.) Officer Second, proposed paragraph (c)(2)
that SWAs hire SMAs who meet one or because the SMA’s role is similar to the requires the SMA to report directly to
more of these criteria, and not simply E.O. Officer’s role. Both are charged the State Administrator or their
seek such individuals. In the with ensuring compliance with designee such as a director or other
Department’s view, it is important for regulations put in place to ensure appropriately titled official in the State
SMAs to meet one or more of these individuals have meaningful access to Administrator’s office, who has the
existing criteria, so that SMAs services and equal employment authority to act on behalf of the State
understand and have appropriate skills opportunities. In 2016, the DOL Civil Administrator. While current
to assess whether the SWA is providing Rights Center (CRC) expanded on regulations require the SMA to have
adequate services to MSFWs. previous requirements specifying the direct access to the State Administrator,
The Department also proposes to authority and status that E.O. Officers in practice this requirement has been
remove the requirement in § 653.108(b) must have to ensure they can most insufficient for the SMA to have the
that the SMA be a SWA official because efficiently and effectively carry out the authority necessary to carry out their
the proposed edits to § 651.10 remove recipients’ nondiscrimination duties and to communicate with the
SWA official as a defined term. The obligations. See generally, 29 CFR 38.28 State Administrator, when the SMA
Department proposes to revise through 38.33.11 According to CRC’s finds it necessary. Reporting directly to
§ 653.108(c) to require that the SMA be NPRM,12 the changes were intended to the State Administrator will provide
an ES staff employee. As explained
more direct access to and interaction
previously in this document, the 11 Implementation of the Nondiscrimination and
Equal Opportunity Provisions of the Workforce with State leadership for the SMAs to
Department is proposing to reinstate the
Innovation and Opportunity Act; Final Rule, 81 FR
longstanding State merit-staffing 87130, 87176–87179 (Dec. 2, 2016). Innovation and Opportunity Act; Notice of
requirement that was in effect prior to 12 Implementation of the Nondiscrimination and Proposed Rulemaking, 81 FR 4494, 4516–4517 (Jan.
the 2020 Final Rule. One of the ways in Equal Opportunity Provisions of the Workforce 26, 2016).
carry out their duties. The Department duties set forth in the subpart is not a Department of Justice’s Civil Rights
proposes to make clear that if the State new requirement, the Department seeks Division, CRC, and other organizations
Administrator chooses to have the SMA to clarify that the SMA must also have offering farmworker-related information.
report to a designee with the authority sufficient authority, resources, and These revisions are proposed to clarify
of the State Administrator, that person access to top management to carry out the SMA’s responsibility to attend
cannot be the individual who has direct their duties. The Department also necessary training and keep apprised of
program oversight of the ES. Though the proposes to specify that the number of issues affecting MSFWs to effectively
State Administrator has overall ES staff positions required by this carry out their duties as the SMA.
responsibility for operation and section must be assigned to the SMA Historically, there have been numerous
compliance of the ES, the State The Department proposes to clarify that cases where SMAs did not or could not
Administrator is removed from the daily these positions specifically relate to ES attend trainings offered by the RMAs or
management of program operations. The staff assigned to the SMA to help the NMA. This provision seeks to clarify the
proposed change would help the SMA SMA carry out the duties set forth in SMA’s responsibility to attend the
avoid challenges that may exist if they § 653.108, and that they may not be trainings and increase SMA training
were to report to an individual who has assigned conflicting roles to perform opportunities and attendance.
direct ES program oversight, for any of outreach responsibilities, ARS The Department proposes to
example the ES director, because in that processing, or complaint processing. redesignate § 653.108(f) and (g) due to
case the SMA would be responsible to The Department proposes a new updated sequencing.
monitor compliance with decisions paragraph (e) to specify that no State The Department proposes to revise
their direct supervisor made or was may dedicate less than full-time staffing § 653.108(g)(1) (now proposed to be
otherwise directly responsible for. for the SMA position unless the RA, § 653.108(h)(1)) to specify important
Third, proposed paragraph (c)(3) would with input from the RMA, provides elements of the ongoing review that the
require that the SMA have the written approval. The proposed SMA must conduct under this
knowledge, skills, and abilities paragraph would maintain the paragraph. In particular, new proposed
necessary to fulfill the responsibilities requirement currently in paragraph (d) subordinate paragraphs (h)(1)(i) through
as described in this subpart. This for any State proposing less than full- (iii) would require the SMA to conduct
proposed revision is intended to clarify time staffing to demonstrate that all an ongoing review of the delivery of
the qualifications that SMAs must have SMA functions can be effectively services and protections afforded by the
to effectively perform all required SMA performed with part-time staffing, but ES regulations to MSFWs by the SWA
functions. would require the State to make this and ES offices, including: (i) Monitoring
The Department does not anticipate demonstration to the RMA in addition compliance with § 653.111; (ii)
that these revisions to § 653.108(c) will to the RA. This proposed revision monitoring the ES services that the
cause undue burden on the SWA. The clarifies that the RA must approve the SWA and one-stop center provide to
State Administrator may restructure the exception to the requirement for a full- MSFWs to assess whether they are
current SMA position to meet the time SMA and that the SWA must qualitatively equivalent and
requirements of part 653. Moreover, the demonstrate that part-time staffing will quantitatively proportionate to the
requirement that State Administrators not affect the needs of and service services the SWA and one-stop centers
appoint an SMA is longstanding, and delivery to MSFWs in the State and that provide to non-MSFWs; and (iii)
several States already staff their SMA the SMA will be able to effectively reviewing the appropriateness of
position as described in the proposed fulfill their duties while working on a informal resolution of complaints and
revisions (i.e., where the SMA is a part-time basis. The Department apparent violations as documented in
senior-level ES staff member who anticipates that a SWA would provide the complaint logs. The requirements in
reports directly to the State both qualitative and quantitative data proposed paragraphs (h)(1)(i) and (iii)
Administrator or their designee). The and information in making its request, currently exist at § 653.108(g)(1) and the
proposed revisions will ensure all and it plans to provide States guidance minor proposed revisions to these
SWAs meet these same standards. The on the factors that the RA and RMA will requirements are intended only to
Department recognizes it may take consider when States request part-time clarify the existing requirements.
States with SMA positions that do not staffing for the SMA position. Specifically, in paragraph (h)(1)(i), the
already meet these standards some time The Department proposes to revise Department proposes to add a
to implement the standards. § 653.108(e) (now proposed § 653.108(f)) requirement that ongoing reviews
Accordingly, the Department seeks by removing the requirement for the include monitoring compliance with
comments on whether it should provide SMA to attend, within the first 3 months § 653.111 to highlight the importance of
a transition period to allow States of their tenure, a training session significant MSFW one-stop centers in
additional time to come into compliance conducted by the RMA. Instead, the staffing appropriately to meet the
with the revised standards, and if so, the Department proposes to require all unique needs of farmworkers. The
appropriate duration of such a period. SMAs and their staff to attend training Department proposes to add
The Department additionally session(s) offered by the RMAs, the § 653.108(h)(1)(ii) to clarify that SMAs
proposes to enhance the authority of the NMA, and their team, and those are required to monitor whether the ES
SMA through several revisions to necessary to maintain competency and services provided to MSFWs are
§ 653.108(d) and the addition of enhance SMA’s understanding of the qualitatively equivalent and
paragraph (e). Specifically, the unique needs of farmworkers. The quantitatively proportionate to the
Department proposes to revise Department proposes that such trainings services provided to non-MSFWs.
§ 653.108(d) to require that the SMA must include those identified by the Finally, the Department proposes to
have sufficient authority, staff, applicable RMA and may include those clarify in paragraph (h)(1)(iii) that SMAs
resources, and access to top offered by the Occupational Safety and must review informal resolution of
management to monitor compliance Health Administration (OSHA), WHD, complaints and apparent violations to
with the ES regulations. While requiring the Equal Employment Opportunity ensure that resolution of matters is
that the SMA have sufficient staff Commission (EEOC), the Immigrant and occurring consistent with the
necessary to fulfill effectively all the Employee Rights Section of the requirements in part 658, subpart E.
The Department proposes to At § 653.108(g)(2)(iv), which is out. The Department also proposes that
redesignate § 653.108(g)(1) as proposed § 653.108(h)(3)(iv), the the SMA may delegate the reviews
§ 653.108(h)(2) and revise the regulatory Department proposes a few revisions. whenever the SMA finds such
text by replacing ‘‘local offices’’ with First, the Department proposes to add a delegation necessary, as opposed to
‘‘ES offices’’ to align with the defined comma after ‘‘After each review,’’ for when the State Administrator finds such
term for ES office in § 651.10. The technical clarity and readability. Next, delegation necessary. This proposed
Department further proposes to revise the Department proposes to specify that change aligns with the proposal for the
the paragraph by clarifying that the the SMA’s conclusions include findings SMA to be a senior-level official with
SMA, if warranted, can notify the SWA and areas of concern by adding greater authority within the SWA. The
of the corrective action(s) necessary to ‘‘including findings and areas of SMA, therefore, should be empowered
address the deficiencies described concern,’’ after ‘‘The conclusions.’’ The to make the determination about
earlier in the paragraph, and that the Department proposes this revision to whether such delegation is necessary.
corrective action plan must comply with make the SMA’s monitoring align with The Department also proposes to
the requirements at proposed paragraph the ETA monitoring format, which remove the words ‘‘and when’’ from the
(h)(3)(v). This revision is intended to § 653.108(g)(3)(ii) requires the SMA use phrase ‘‘if and when’’ in this paragraph.
clarify that the corrective action plan is as a guideline. The Department also As such, the proposed paragraph now
the method by which a SWA or ES proposes to add a requirement that the states that the SMA may delegate the
office achieves compliance with the SMA’s report be sent directly to the review described in § 653.108(h)(1) to
SMA’s compliance findings. The State Administrator. the SMA’s staff, if the SMA finds such
existing regulatory text provides that the The Department also proposes to delegation necessary, and in such event,
SMA may request a corrective action revise current § 653.108(g)(2)(v) the SMA is responsible for and must
plan, which does not appear to require (proposed 653.108(h)(3)(v)) in several approve the written report of the review.
the SWA or ES office to take corrective ways. First, the Department proposes to The Department proposes to revise
action. The proposed revision clarifies add that the SMA’s report must include § 653.108(g)(3) (proposed paragraph
that SMAs assure compliance by the corrective action(s) required. (h)(4)) to ensure all significant MSFW
documenting noncompliance, Second, the Department proposes to one-stop centers not reviewed onsite by
describing the corrective actions specify that, to resolve the findings, the Federal staff are reviewed at least once
necessary for the SWA to come into ES Office Manager or other appropriate per year by the SMA or their staff,
compliance, reviewing the corrective ES staff must develop and propose a instead of ‘‘a SWA official.’’ This change
action plan that the SWA or ES office written corrective action plan. These is proposed because it is important for
develops to implement the identified changes conform the SMA’s monitoring these reviews to be conducted by staff
corrective action(s), documenting process with the ETA monitoring who share the SMA’s objectives. As
compliance or lack of compliance with format, which requires the monitor to previously noted, the SMA’s staff are
the corrective action plan, and reporting identify the corrective actions required. responsible to assist the SMA in
to ETA any noncompliance. Once The Department proposes to add ‘‘the’’ carrying out the SMA’s duties described
noncompliance is identified, SWAs before ‘‘actions,’’ as a technical edit. The at § 653.108.
Department also proposes to revise the Paragraph (g)(5), proposed
have a responsibility to address it, as
third sentence to clarify that the § 653.108(h)(6), currently requires SMAs
described in part 653, subpart D.
corrective action plan should be to review outreach workers’ daily logs
The Department proposes to designed to bring the ES office into and other reports including those
redesignate § 653.108(g)(2) to be compliance within 30 days, and to showing or reflecting the workers’
§ 653.108(h)(3) and to clarify that SMAs specify that where a plan is not activities ‘‘on a random basis.’’ The
must conduct onsite reviews of one-stop designed to bring the ES office into Department proposes to replace
centers regardless of whether or not the compliance within 30 days, the length ‘‘random’’ with ‘‘regular.’’ SMAs were
one-stop center is designated as a of and reasons for the expended period confused, at times, about what
significant MSFW one-stop center. This must be specifically stated and the plan ‘‘random’’ means and, therefore, how
is an important clarification because must specify the major interim steps frequently they should be reviewing
SMAs often mistakenly think they only that the ES office will take to correct the outreach staff’s logs. Replacing
need to review significant MSFW one- compliance steps identified by the ‘‘random’’ with ‘‘regular’’ is intended to
stop centers. The Department also SMA. In other words, only if there is a help clarify the SMA’s responsibility
proposes a clarifying edit to this documented justification for compliance that these reviews occur on a regular
paragraph by adding that the reviews to take longer than 30 days can such basis. The frequency of these reviews
must follow procedures set forth in efforts be ‘‘steps’’ rather than full may vary based on how many outreach
paragraphs (h)(3)(i) through (vii) of this compliance. This revision is designed to staff each SWA has; however, there
section. This is proposed to help the help ensure SWAs resolve identified should be some standard of frequency in
structure of paragraph (h)(3) and its compliance issues. each SWA to ensure regular review
subordinate paragraphs. At current § 653.108(g)(2)(vii), which occurs. For example, in SWAs with one
Correspondingly, current paragraph is proposed to be paragraph (h)(3)(vii), or two outreach staff, it may be possible
(g)(2)(ii), which is proposed to be new the Department proposes to allow the for the SMA to review outreach logs
paragraph (h)(3)(ii), contains proposed SMA to delegate reviews to their staff every month, but in SWAs with many
clarifying edits, which state ‘‘The SMA instead of ‘‘a SWA official’’ because outreach staff, it may be more
must ensure. . .’’ instead of the existing SMA staff may conduct such reviews appropriate to review outreach logs
‘‘Ensure. . . .’’ Finally, the Department under the authority of the SMA. This quarterly. The Department also proposes
proposes to specify that the complaint change will clarify that other persons to replace ‘‘outreach workers’’ with
logs that the SMA must review pursuant who conduct reviews on behalf of the ‘‘outreach staff’’ throughout this
to § 653.108(g)(2)(i)(D) (proposed SMA must be the SMA’s staff, who paragraph to use the defined term at
§ 653.108(h)(3)(i)(D)) are the complaint should share the same objectives of the § 651.10.
logs required by the regulations under SMA, helping ensure that the role of the The Department proposes to revise
part 658 of this chapter. monitor advocate is effectively carried § 653.108(g)(6), proposed paragraph
(h)(7), which currently requires the farmworkers. When SMAs work closely SMA field visits are for a different
SMA to write and submit Annual with the State-level E.O. Officer, the purpose than outreach staff field visits.
Summaries to the State Administrator SMA will have a better sense of steps The Department proposes to
with a copy to the RA by adding that a the State is taking to meet its equity redesignate § 653.108(n) through (p) as
copy of the summary must also be sent requirements pursuant to WIOA sec. § 653.108(o) through (q), as a technical
to the NMA. This aligns the requirement 188, and how the SMA can better ensure edit.
with paragraph (s) (proposed paragraph services are provided equitably for The Department proposes to
(u)) whereby the Annual Summary must MSFWs. The SMA can also provide redesignate § 653.108(q) as § 653.108(s),
also be sent to the NMA. The information to the State-level E.O. as a technical edit. The Department also
Department also proposes to remove the Officer on patterns in service provision. proposes a technical edit to remove the
last part of the sentence, ‘‘as described The Department proposes to reference to SWA staff and keep only
in paragraph (s) of this section,’’ as it is redesignate § 653.108(l) as § 653.108(n), ‘‘ES staff’’ to align with the proposed
no longer necessary with the addition of and to make a conforming revision to definition for ES staff at § 651.10.
the NMA to this provision. the cross reference in this paragraph so Because SWA staff are included in the
At § 653.108(h), proposed paragraph that the organizations with which the proposed definition of ES staff, this will
(i), the Department proposes to add ‘‘as SMA must meet are updated to reflect not change the substance of the
requested by the Regional or National the organizations described in proposed paragraph. The Department further
Monitor Advocate,’’ after ‘‘The SMA paragraph (l) and the State-level E.O. proposes to simplify the wording of the
must participate in Federal reviews Officer referred to in proposed paragraph by replacing the phrase
conducted pursuant to part 658, subpart paragraph (m). This will mean that ‘‘Subsequent to’’ with the word ‘‘After.’’
G, of this chapter.’’ This is proposed to § 653.108(n) would refer to the The Department proposes to
be added to ensure the SMA participates paragraphs requiring the SMA to redesignate § 653.108(r) and (s) as
in a way that is helpful and productive establish an ongoing liaison with NFJP § 653.108(t) and (u), respectively, as a
for the RMA or NMA. In the past, there grantees, other organizations serving technical edit.
have been cases where the SMA either farmworkers, employers, and employer The Department proposes to
was not permitted or chose not to organizations in the State, and the State- redesignate § 653.108(s) as § 653.108(u).
participate in reviews with the Federal level E.O. Officer. The Department also Proposed paragraph (u) requires the
staff. This proposed addition helps proposes to add a requirement that SMA to prepare an Annual Summary
ensure the SMA will participate when SMAs must communicate freely with describing how the State provided ES
requested. these individuals and organizations to services to MSFWs within the State
The Department proposes to enable the SMA to communicate based on statistical data, reviews, and
redesignate § 653.108(i) as § 653.108(j). efficiently, so that important other activities. It includes subordinate
The Department proposes to remove the information is not delayed due to the paragraphs (1) through (11), which
provision permitting the State SMA needing to get approval to speak identify the various required
Administrator to assign the SMA the with these individuals and groups. This components of the Annual Summary.
responsibility as the Complaint System proposed change also conforms with the The Department proposes to revise
Representative, and the requirement proposed revisions to the SMA’s § 653.108(s)(2), proposed
that the SMA participate in the position as a senior-level staff member, § 653.108(u)(2), to conform with
Complaint System set forth in part 658, who should have the discretion to proposed edits at § 653.108(c).
subpart E. As explained later in the communicate, as they find appropriate. Specifically, § 653.108(s)(2) currently
section of the preamble addressing part In addition, the Department proposes to requires an assurance that the SMA has
658, subpart E, the Department is remove the requirement that the SMA direct, personal access, whenever they
proposing to prohibit SWAs from receive complaints and assist in find it necessary, to the State
assigning SMAs responsibility for referrals of alleged violations to Administrator. Proposed paragraph
processing complaints. The Department enforcement agencies to conform with (u)(2) would require an assurance that
is proposing to remove SMAs from the proposal to remove the SMA from the SMA is a senior-level official who
Complaint System processing because Complaint System processing, as reports directly to the State
this section tasks SMAs with monitoring explained previously. Administrator or the State
the Complaint System, and the The Department proposes to Administrator’s designee as described at
Department anticipates that SMAs will redesignate § 653.108(m) as 653.108(o), § 653.108(c).
be more objective in monitoring the as a technical edit. The Department also The Department proposes to amend
Complaint System if they are not tasked proposes to revise this paragraph to § 653.108(s)(3)(i) and (ii), proposed 20
with monitoring work that they clarify that when the SMA conducts CFR 653.108(u)(3)(i) and (ii), to revise
themselves perform. This change would field visits, they must discuss the the assurance requested in the SMA’s
result in greater safeguards for MSFWs SWA’s provision of ES services and Annual Summary regarding SMA
within the Complaint System. The obtain input on the adequacy of those staffing levels. Currently, the Annual
Department proposes to make services from MSFWs, crew leaders, and Summary requires an assurance that the
corresponding edits to part 658, subpart employers, rather than explaining and SMA devotes all of their time to Monitor
E. providing direct employment services Advocate functions, or, if the SMA
The Department proposes to and access to other employment-related conducts their functions on a part-time
redesignate § 653.108(j) and (k), as a programs. The purpose of the SMA’s basis, an explanation of how the SMA
technical edit. field visits is distinct from the direct ES functions are effectively performed with
The Department proposes a new services that outreach staff provide to part-time staffing. This paragraph is
provision at proposed § 653.108(m). MSFWs in the field, because the SMA proposed to be revised in several ways.
This provision is proposed to state how is tasked with assessing how the ES is First, proposed paragraph (u)(3) would
the SMA must establish an ongoing functioning and whether the SWA can begin with a requirement to provide an
liaison with the State-level E.O. Officer. make improvements, as opposed to the evaluation of SMA staffing levels, and it
The Department proposes this addition direct provision of ES services. This would be followed by § 653.108(u)(3)(i)
to enhance equity and inclusion for proposed revision helps clarify that and (ii), which would outline the
contents of this evaluation. Specifically, the SMA is working with WIOA sec. 167 change will put greater emphasis on
paragraph (u)(3)(i) would require the NFJP grantees, the SMA must provide a compliance with the requirements of
SMA to assure that they devote all their summary of how they are working with § 653.111.
time to Monitor Advocate functions, or the State-level E.O. Officer. This
Section 653.109 Data Collection and
if the SMA has approval under revision aligns with the proposed
Performance Accountability Measures
§ 653.108(e) to conduct their functions requirement at proposed § 653.108(m)
on a part-time basis, an assessment of for the SMA to establish an ongoing Section 653.109 specifies data
whether they can perform all their liaison with the State-level E.O. Officer. collection and performance
functions effectively on a part-time The inclusion of this information in the accountability measures specific to
basis. Paragraph (u)(3)(ii) would Annual Summary will allow State MSFWs. The Department proposes to
additionally require the SMA to assess Administrators, RMAs, and the NMA to make several revisions to this section.
whether the performance of SMA review what the SMA is doing to fulfill First, the Department proposes to add
functions requires increased time by the the new liaison requirement (e.g., how a new data collection requirement in
SMA (if part time) or an increase in the frequently are they meeting with the paragraph (b) of this section.
number of ES staff assigned to assist the State-level E.O. Officer, the type of Specifically, the Department proposes to
SMA in the performance of SMA information that is shared, any best add § 653.109(b)(10), which would
functions, or both. This information will practices or lessons learned). require SWAs to collect the number of
help the RMA and NMA better The Department proposes to revise reportable individuals and participants
understand whether the SMA’s status as § 653.108(s)(10), proposed who are MSFWs. The Department
full- or part-time is sufficient for them § 653.108(u)(10), which currently anticipates that access to this
to carry out their duties, and whether requires the SMA to provide a summary information will help the SWAs and the
the SMA requires additional staff to of activities related to the AOP and an Department to better understand how
perform all the functions required by explanation of how those activities many MSFWs are engaging with the ES,
this section. The previous requirement helped the State reach the goals and either as reportable individuals or
for an assurance did not provide the objectives described in the AOP. At the participants, and to identify potential
depth, context, or explanation necessary end of the 4-year AOP cycle, the issues surrounding MSFW access to ES
for the State Administrator or the summary must include a synopsis of the services. Specifically, Monitor
Department to assess whether the SMA SWA’s achievements over the previous Advocates will be able to compare the
has adequate staffing. 4 years to accomplish the goals set forth number of MSFW reportable individuals
The Department proposes to revise in the AOP, and a description of the and the number of MSFW participants
§ 653.108(s)(4) (iii), proposed goals which were not achieved and the and use this data to identify potential
§ 653.108(u)(4)(iii), to clarify that the steps the SWA will take to address those areas where MSFWs are not being
summary of any technical assistance the deficiencies. The Department proposes offered participant-level services. The
SMA provided must include any to replace the requirement to explain collection of this data is consistent with
technical assistance provided to ‘‘how’’ the activities helped the State the Monitor Advocate System’s purpose
outreach staff, in addition to technical reach the goals and objectives described to monitor whether MSFWs have
assistance provided to the SWA and ES in the AOP with a requirement to meaningful access to services in a way
offices. While outreach staff are explain ‘‘whether’’ the activities helped that is appropriate to their particular
considered part of the SWA, the the State reach the objectives described needs. SWAs commonly report few or
Department proposes to clarify that the in the AOP. This revision better reflects no MSFW ES participants, which
summary must specifically identify the the information that the Department creates the concern that MSFWs do not
technical assistance that the SMA seeks (i.e., whether these activities have access to ES services. This piece of
provided to outreach staff, so that the helped the State meet its objectives). information will enable Monitor
State Administrator and the Department The Department also proposes to Advocates to identify cases where there
may better assess whether outreach staff remove ‘‘goals’’ from the first sentence may be larger numbers of MSFW
are obtaining the knowledge and and to replace ‘‘goals’’ with ‘‘objectives’’ reportable individuals, but few or no
resources necessary to fulfill their in the second sentence, because the MSFW participants. Without this
duties. Department does not ask States to information, Monitor Advocates and the
The Department proposes to revise identify specific goals in the AOP. Department lack data necessary to
§ 653.108(s)(5), proposed Rather, the SWA provides objectives in identify whether that problem exists,
§ 653.108(u)(5), to specify that when the its AOP, and the SMA’s Annual and cannot work to correct the problem,
SMA summarizes the outreach efforts Summary should explain whether the if it is present.
undertaken by all significant and non- activities that the SWA performed that Second, the Department proposes to
significant MSFW ES offices in the year are meeting the identified redesignate § 653.109(b)(10) as
State, the SMA must include the results objectives. § 653.109(b)(11), as a technical edit to
of those efforts and analyze whether the The Department proposes two account for the insertion of proposed
outreach levels and results were clarifying edits to § 653.108(s)(11), § 653.109(b)(10).
adequate. Through this analysis, the proposed § 653.108(u)(11). First, the Third, the Department proposes
Department would like to understand Department proposes to replace several revisions to § 653.109(h), which
whether the SMA believes the SWA has significant MSFW ‘‘ES offices’’ with sets forth the minimum levels of service
allocated sufficient outreach staff and significant MSFW ‘‘one-stop centers’’ to that significant MSFW States must meet.
resources to complete the outreach align with the defined term at § 651.10. First, the Department proposes to
duties identified at § 653.107, including Second, the Department proposes to replace the requirement that a
whether outreach staff are able to reach revise the requirement for the SMA to significant MSFW State measure the
the majority of MSFWs in the State. summarize the State’s efforts to provide number of outreach contacts per ‘‘week’’
The Department proposes to revise ES staff in accordance with § 653.111, to with the number of outreach contacts
§ 653.108(s)(7), proposed require the SMA to summarize the per ‘‘quarter’’ to align with the SWA’s
§ 653.108(u)(7), by adding that in State’s efforts to comply with § 653.111. quarterly data submissions to the
addition to providing a summary of how The Department anticipates that this Department. SMAs have provided
feedback to the Department that MSFWs’’ with ‘‘unique needs of regulatory requirements, including an
measuring contacts per week is difficult MSFWs,’’ to conform to the terminology employer’s failure to pay or provide the
and not an effective measurement of that the Department uses elsewhere in required wages or working conditions,
outreach, and they believe it would be the ES regulations. an employer’s failure to comply with its
a better measure to report contacts per obligations to recruit U.S. workers, or an
2. Subpart F—Agricultural Recruitment
quarter. Second, the Department employer’s failure to cooperate with
System for U.S. Workers (ARS)
proposes to clarify that it will not required audits or investigations.
update minimum service level Subpart F sets forth the regulations Additionally, an employer’s failure to
indicators on an annual basis, by governing the ARS. pay a necessary certification fee in a
removing ‘‘for each year’’ from the last Section 653.501 Requirements for timely manner may result in debarment.
sentence in § 653.109(h). The Processing Clearance Orders In the Department’s view, whether the
Department’s practice has been that reason an employer is debarred from an
minimum service level indicators have Section 653.501 describes the OFLC program (or programs) is directly
not been updated each year because the requirements that ES staff must follow related to worker safety, failure to
Department has not identified such a when processing clearance orders for provide required wages or working
need. This revision would align the the ARS. As explained subsequently, conditions, failure to comply with
regulation with what is happening in the Department proposes to make recruitment requirements or participate
practice. several substantive and technical in required investigations or audits, or
revisions to this section. failure to pay required fees, the
Section 653.110 Disclosure of Data The Department proposes to make a employer subject to debarment should
The Department proposes to revise minor clarifying edit to § 653.501(a) by be excluded from participation in the
§ 653.110(b) by removing the word replacing the terms ‘‘ES office’’ or ARS. The Department does not want to
‘‘the’’ before ‘‘ETA,’’ as a technical edit. ‘‘SWA official’’ with ‘‘ES staff’’ to facilitate placement of workers with
conform with the proposed revision to employers whose actions have risen to
Section 653.111 State Workforce the definition of ES staff at § 651.10.
Agency Staffing Requirements for a level that warrants debarment.
The Department proposes to add a The Department proposes minor edits
Significant MSFW One-Stop Centers fourth paragraph to § 653.501(b), at to § 653.501(c)(3) to clarify that
The Department proposes several § 653.501(b)(4), which would require ES paragraph (c) sets forth a list of the
revisions to § 653.111, which outlines staff to consult the Department’s Office assurances that an employer must make
SWA staffing requirements for of Foreign Labor Certification (OFLC) before the SWA may place a job order
significant MSFW one-stop centers. and Wage and Hour Division (WHD) into intrastate or interstate clearance.
First, the Department proposes to revise debarment lists before placing a job In addition, the Department proposes
the heading of this section to clarify that order into intrastate or interstate to make several technical and
the staffing requirements in this section clearance and initiate discontinuation of conforming edits in § 653.501(d). First,
apply only to significant MSFW one- ES services if the employer is debarred the Department proposes to revise
stop centers. or disqualified from participating in one § 653.501(d)(1) by clarifying that the
Second, the Department proposes to or all of the Department’s foreign labor provision refers to the ‘‘order-holding
revise paragraph (a)—which currently certification programs. The ES office,’’ instead of ‘‘order-holding
requires SWAs to implement and Department’s mission is to promote the office,’’ as it is currently written. This
maintain a program for staffing welfare of workers. This addition is proposed change aligns with § 651.10 by
significant MSFW one-stop centers by intended to further that mission by using the defined term, ES office.
providing ES staff in a manner ensuring that ES offices do not place Second, the Department proposes to
facilitating the delivery of employment U.S. workers with employers who are revise § 653.501(d)(3) by referring to
services tailored to the special needs of presently barred from employing ‘‘this paragraph’’ instead of ‘‘paragraph
MSFWs, including by seeking ES staff immigrant and nonimmigrant workers (d)(3) of this section’’ for clarity.
that meet the criteria in via the employment-based visa Third, the Department proposes to
§ 653.107(a)(3)—and divide it into two programs. This requirement protects revise § 653.501(d)(6) to remove the
sentences. The first sentence would workers who may be using the ARS by explicit instruction for ES staff to assist
provide that a SWA must staff ensuring that the ARS is not used to all farmworkers ‘‘upon request in their
significant MSFW one-stop centers in a place a worker with an employer that native language.’’ This revision is
manner that facilitates the delivery of has failed to comply with its intended to align with the broader
ES services tailored to the unique needs obligation(s) as an employer of foreign proposed revisions regarding language
of MSFWs, and the second sentence workers. ETA’s regulations at 20 CFR access in this NPRM. Because the
would clarify that such staffing includes 655.73, 655.182, 655.473, 656.31(f), and Department proposes in this NPRM to
recruiting qualified candidates who the Wage and Hour Division’s clarify that SWAs must already comply
meet the criteria for outreach worker regulations at 29 CFR 503.24 describe with the language access and assistance
positions in § 653.107(a)(3). The the violations that may result in an requirements at 29 CFR 38.9, the
Department proposes this change to employer’s debarment from receiving language access requirement here is
specify that SWAs must recruit future labor certifications for a specified redundant, unnecessary, and potentially
qualified candidates who meet the time period. The potential reasons for confusing, because it may appear to set
criteria for outreach workers in debarment include serious violations a different standard.
§ 653.107(a)(3). SWAs have some that could affect worker safety, for Fourth, the Department proposes to
discretion to create a plan to meet the example ‘‘[a] single heinous act showing revise § 653.501(d)(10) to remove the
standard, but the ultimate requirement such flagrant disregard for the law’’ that sentence requiring checklists under this
is for SWAs to recruit qualified future compliance with program paragraph to be in the workers’ native
candidates who meet these criteria. requirements cannot reasonably be language because, as previously
Third, for purposes of consistency, expected (§ 655.182(d)(1)(x)). Such mentioned, language access
the Department proposes a technical reasons also include an employer’s requirements are already provided at 29
edit to replace ‘‘special needs of substantial failure to comply with CFR 38.9 and retaining this language
would be redundant and unnecessary. E. Part 658—Administrative Provisions reporting, which impede the ability of
The Department also proposes to Governing the Wagner-Peyser Act SMAs and the Department to monitor
remove the requirement that SWAs Employment Service MSFW complaints to determine
must use a standard format provided by This part sets forth the regulations whether the Complaint System is
the Department (such as Form WH516 governing the Complaint System for the processing MSFW complaints
or a successor form) to provide workers Wagner-Peyser Act Employment Service consistently with the governing
referred to clearance orders a checklist (ES) at the State and Federal levels. regulations. The Department also has
summarizing wages, working Specifically, the Complaint System received information, through 5148
conditions, and other material processes complaints against an Reports and Monitor Advocate Annual
specifications in the clearance order. employer about the specific job to Summaries, that Complaint System
Removing this requirement would which the applicant was referred activity is low in many States. Through
provide SWAs with greater flexibility to through the ES, and complaints Wage and Hour Division (WHD)
develop and use their own forms that involving the failure to comply with ES investigations, news reports, SMA
meet their needs. Under the proposed regulations under 20 CFR parts 651, Annual Summaries, conversations with
revision, SWAs may still use standard 652, 653, and 654. The Complaint farmworkers and farmworker advocacy
forms, including the WH516, but they System also accepts, refers, and, under organizations, and anecdotal
would not be required to use a standard certain circumstances, tracks complaints information SMAs share with the
form. Regardless, the checklist that the involving employment-related laws as Department, the Department concludes
SWA provides workers must include the defined in § 651.10. While the that violations of employment-related
material terms and conditions of Complaint system is available to laws against MSFWs may be prevalent
employment that are required to be MSFWs and non-MSFWs, the across the country—therefore, it is
included in clearance orders pursuant to Complaint System includes additional concerning that Complaint System
§ 653.501(c)(1)(iv). shorter processing timelines and activity is low. In Program Year 2019
additional follow-up on MSFW-related (July 2019-June 2020), which is the most
Finally, the Department proposes to recent complete set of data available, at
revise § 653.501(d)(11) to replace the complaints, which are designed to
provide increased protection for least eight States did not report any
reference to the Department’s ‘‘ARS MSFW complaints. RMAs and the NMA
Handbook’’ with a reference to MSFWs. The Department proposes to
revise several regulations within this have communicated concerns to the
‘‘Departmental guidance.’’ As proposed, Department that one of the reasons
§ 653.501(d)(11) would require the part to conform with proposed revisions
to definitions listed at § 651.10, remove complaint numbers may be low is
applicant-holding office to give each because MSFWs are unaware of the
referred worker a copy of the list of redundancies and make other non-
substantive technical edits, clarify or Complaint System, or SWAs are not
worker’s rights described in processing or recording complaints
Departmental guidance. This revision is modify certain requirements, and
improve equity and inclusion for correctly.
intended to reflect the fact that this list Through SWA 5148 Reports and RMA
of worker’s rights may be available in MSFWs in the ES system. The
Department also proposes to remove the monitoring, the Department has
different documents and formats in the identified several common requirements
future. requirement that the SMA serve as a
Complaint System Representative and in the regulatory text that SWAs may
Section 653.503 Field Checks eliminate the requirement that SMAs misunderstand. These
must process MSFW complaints. The misunderstandings have a direct impact
The Department proposes to make Department is proposing these revisions on the availability and correct
two conforming and clarifying edits to because § 653.108 requires the SMA to processing of complaints. To address
the regulations governing field checks in monitor the Complaint System, and the these issues, several of the proposed
§ 653.503. First, the Department proposed revisions would remove the revisions are more prescriptive than the
proposes to revise § 653.503(a) to add challenge that exists when the SMA is existing regulatory text and specifically
‘‘transportation’’ to the list of conditions required to monitor their own actions in clarify terms and other requirements.
that SWAs must assess and document processing MSFW complaints. The
when performing a field check. This 1. Subpart E—Employment Service and
Department anticipates that an SMA Employment-Related Law Complaint
change would increase health and safety will be more objective in monitoring the
of MSFWs by adding an additional System (Complaint System)
Complaint System if they are not tasked
safeguard against dangerous with monitoring their own actions. The Section 658.410 Establishment of
transportation tied to their employment. proposed revisions would maintain the Local and State Complaint Systems
Second, the Department also proposes integrity of the Monitor Advocate The Department proposes to amend
to remove that the field checks are System as it provides safeguards to § 658.410(c) to replace the word ‘‘SWA’’
‘‘random.’’ The proposed revision MSFWs who participate in the with ‘‘State’’ so that it clearly points to
would clarify that the selection of the Complaint System, and they would the defined term ‘‘State Administrator.’’
clearance orders on which the SWA will allow SMAs to focus their attention on This change will clarify which specific
conduct field checks does not need to be monitoring the ES services that are individual is responsible to ensure a
random, and may respond to known or provided to MSFWs in their State. central complaint log is maintained.
suspected compliance issues, thereby The Department has observed through The Department proposes to remove
improving MSFW worker protection. In analysis of SWA quarterly Labor language in § 658.410(c)(6) that the
addition, if a SWA makes placements on Exchange Agricultural Reporting System complaint log must include actions
9 or fewer clearance orders, the SWA 5148 Reports, meetings with SMAs and taken on apparent violations and,
must conduct field checks on 100 RMAs, and other communications with instead, add several specific references
percent of those clearance orders. See SWAs, that SWAs misunderstand in § 658.410(c)(1) through (6) that
§ 653.503(b). Therefore, in those cases, several of the requirements currently in explain that each requirement also
field checks could not be conducted on part 658. These misunderstandings have applies to apparent violations. These
a random basis. caused inaccurate recordkeeping and proposed changes are intended to clarify
that the complaint log must document are also tasked with monitoring the Due to the proposed removal of
all the same components for apparent Complaint System, and the Department current regulatory text in § 658.410(n),
violations, except for the complainant’s anticipates that SMAs will be more the Department proposes to redesignate
name because there is no complainant objective in monitoring the Complaint the existing regulatory text at
for an apparent violation. The System if they are not tasked with § 658.410(o) as § 658.410(n).
Department commonly identifies issues monitoring work that they themselves Section 658.411 Action on Complaints
through RMA monitoring of SWAs perform. Removing this responsibility
where complaint logs do not document would also allow SMAs to focus their The Department proposes to amend
apparent violations. These proposed attention on monitoring the ES services § 658.411(a)(2)(ii) to remove the word
revisions would clarify the requirement provided to MSFWs in their State. ‘‘and’’ before ‘‘telephone numbers’’ in
to document apparent violations and For similar reasons, the Department the listed methods to contact a
specify the information that SWAs must proposes to revise § 658.410(m) to complainant, and to add ‘‘and any other
include on the complaint log. replace ‘‘SMA’’ with ‘‘Complaint helpful means by’’ to broaden the scope
The Department also proposes to System Representative.’’ This proposal of contact methods requested from
amend § 658.410(c)(6) to make all uses is consistent with other changes complainants. In addition, the
of the word ‘‘action’’ plural because throughout part 658 that remove the Department proposes to indicate that
there may be several actions taken to SMA’s direct involvement in the there may be multiple physical
appropriately process a complaint or Complaint System, including the addresses and email addresses through
apparent violation. This change is which a complainant could be
proposed removal of the SMA being
necessary to clarify to SWAs that they contacted. The Department has received
designated to process MSFW
must document all actions. The information from SWAs and other
complaints.
Department also proposes to describe grantee organizations, including NFJP
The Department proposes to remove grantees, that MSFWs often do not have
the type of information SWAs must
§ 658.410(n), which currently addresses or respond to traditional methods of
include in their complaint logs by
correspondence to complainants who communication, including mail, email,
noting that it includes any documents
are English-language learners. The and telephone. Specifically, migrant
the SWA sent or received and the date
Department has determined that it is no farmworkers move from one location to
the SWA took such action(s). This
longer necessary to include explicit another for work, so it is not always
change will mean the SWA must
requirements regarding language access reliable or efficient to send
specifically record documents the SWA
sent or received, and the dates of those in various sections of the ES regulations, communications through mail to their
actions, on the complaint log. Through because all one-stop centers and ES staff last known or permanent addresses.
monitoring SWAs, the Department has must comply with the language access Additionally, SWAs and NFJP grantees
observed that SWAs often do not keep and assistance requirements in 29 CFR indicate that MSFW youth often are
records of all actions taken. Instead, 38.9 with regard to all LEP individuals, more responsive to communication sent
SWAs often have minimal information including those LEP individuals who through social media and other
listed on their complaint logs. The file complaints under the Complaint applications. In the process of advising
proposed changes are purposefully System set forth in this subpart. This SWAs regarding complaints, the
prescriptive because it is critical that the proposed revision is consistent with the Department has encountered several
Department has records of all Department’s proposed addition in cases where SWAs closed complaints
documents sent and received related to § 653.103(b), which would require because the complainant failed to
complaints and apparent violations. SWAs to comply with the language respond to the SWA. It is possible that
This allows the Department to have access and assistance requirements at 29 a portion of these failures to respond are
sufficient information to monitor SWA CFR 38.9 with regard to all LEP due to lack of current contact
complaint and apparent violation individuals, including MSFWs who are information, instead of the
processing. These records are also LEP individuals, as defined at 29 CFR complainant’s desire to close the
critical when RAs receive appeals from 38.4(hh). The proposed revision would complaint. The Department’s proposed
SWA determinations and must review specify that this requirement includes revision addresses this issue by
whether a SWA’s actions are compliant. ensuring ES staff in one-stop centers directing SWAs to request from
The Department proposes to amend comply with these language access complainants any other helpful means
§ 658.410(g) to remove the word ‘‘local,’’ requirements. The regulations at 29 CFR by which they might be contacted,
which comes before ‘‘ES office’’ in the 38.9 establish that language access which would broaden the potential
existing regulatory text. This proposed requirements apply to services provided methods by which SWAs may contact
change is appropriate because ES office to all LEP individuals at all one-stop complainants and account for the fact
is a defined term at § 651.10 and, centers and are broader than the existing that complainants may receive
therefore, the word ‘‘local’’ is not requirement at § 658.410(n). For these information through various platforms
necessary. Removal of the word ‘‘local’’ reasons, the reference in § 658.410(n) is other than physical mail, email, or
will also clarify that the regulatory text no longer necessary. Like the reasons telephone, including technological
is not referring to a different type of laid out previously in the preamble applications. This would also increase
office. concerning proposed changes to the likelihood that SWAs will be able to
The Department proposes to remove § 653.103(b), having a specific reference communicate with complainants to
the requirement in § 658.410(h) that the to LEP translations for complaint process complaints to resolution. This
SMA must be the Complaint System correspondence may inaccurately create change should improve MSFW access to
Representative designated to handle the appearance that there are two sets of the Complaint System and increase the
MSFW complaints and replace it with a language access standards or that SWA’s ability to resolve complaints.
provision prohibiting the State requirements for the Complaint System Paragraph (b) of § 658.411 covers
Administrator from assigning the SMA are narrower. Removing the reference complaints regarding an employment-
responsibility for processing MSFW clarifies that the full scope of 29 CFR related law. The Department proposes to
complaints. The Department is 38.9 also applies to LEP individuals amend § 658.411(b)(1) to replace ‘‘a’’
proposing this change because SMAs participating in the Complaint System. with ‘‘an’’ before ‘‘ES office’’ as a
technical grammar edit. The Department enforcement agency for prompt action. employers to enforcement agencies or if
also proposes to clarify the appropriate This change would remove the SMA they should attempt to resolve MSFW-
steps for processing employment-related from Complaint System processing for related complaints involving employers
law complaints involving alleged the same reasons that the Department in other States. The Department believes
violations of nondiscrimination laws or proposes to remove the SMA from other that the most beneficial option is for
reprisal for protected activity by aspects of Complaint System processing. these complaints to be referred to the
revising § 658.411(b)(1), to add a This proposed change is consistent with SWA in the other State, consistent with
reference to § 658.411(c). This revision the SWA’s requirements in processing how SWAs process complaints
would clarify that the procedures in non-MSFW complaints, where staff involving employers in other States.
§ 658.411(c) apply to any employment- other than the SMA refer complaints to Additionally, the entity best situated to
related law complaint alleging unlawful enforcement agencies. Additionally, this process a complaint is the SWA for the
discrimination or reprisal for protected proposed change would decrease the State where the employer is located,
activity in violation of amount of administrative time for because that SWA has greater
nondiscrimination laws, such as those complaints to be referred for prompt knowledge of applicable employment-
enforced by the EEOC or the DOL’s CRC, action by enforcement agencies. It is related laws and may have other records
or in violation of the Immigration and important to note that this regulation for the employer that impact
Nationality Act’s anti-discrimination specifically deals with complaints that appropriate decision making. The
provision found at 8 U.S.C. 1324b. ES offices or SWA staff have determined proposed changes also specifically
The Department proposes three need to be referred to a State or Federal require the ES office or SWA receiving
changes to § 658.411(b)(1)(ii)(B). First, agency. Requiring staff to refer the the complaint to ensure the Complaint/
the Department proposes to remove both complaint first to the SMA, who then Referral Form is adequately completed
references to the SMA making refers to the applicable agency, adds before sending the Complaint/Referral
determinations and taking actions on unnecessary time, which may cause Form and copies of any relevant
employment-related law complaints and avoidable harm to complainants in documents to the SWA in the other
replace the first with a reference to the sensitive or otherwise serious, time- State. This language is designed to
‘‘Complaint System Representative.’’ sensitive situations. correct issues the Department has
This proposal is consistent with other The Department proposes to remove observed, where SWAs have informed
changes throughout part 658 that all references to the ‘‘SMA’’ in 20 CFR SWAs in other States of complaint
remove the SMA’s direct involvement in 658.411(b)(1)(ii)(D) and (E) to conform information but have not completed the
the Complaint System, including the with the Department’s proposal to Complaint/Referral Form or provided
proposed removal of the SMA being remove the SMA from playing a direct copies of any relevant documents. As a
designated to process MSFW role in Complaint System processing. result, the other State SWAs were not
complaints. As explained earlier, the Under the proposed changes, the able to contact the complainant or
Department is proposing to remove the complaint will not be referred to the identify other critical information to act
SMA from Complaint System processing SMA. Instead, the Complaint System on the complaint, including material
because the SMA duties outlined at Representative must notify the facts and allegations and the identity of
§ 653.108 include monitoring the complainant of the enforcement agency the employer respondent. The proposed
Complaint System, and the Department to which the complaint was referred, changes explicitly require the referring
anticipates that SMAs will be more rather than for the SMA to notify the SWA to provide this necessary
objective in performing this monitoring complainant.
documentation so that the SWA
if they are not tasked with monitoring The Department proposes to add
receiving the complaint can address it
their own actions for compliance. § 658.411(b)(1)(ii)(F) to provide steps ES
offices and SWAs must take when they appropriately.
Second, the Department proposes to
replace the word ‘‘employment’’ with receive complaints alleging an employer The Department proposes to revise
‘‘ES’’ before ‘‘services’’ in the last in a different State has violated an the heading and text of § 658.411(c) to
sentence to conform with the defined employment-related law, when such clarify that all complaints under this
term Wagner-Peyser Act Employment complaints are filed by or on behalf of subpart alleging unlawful
Service (ES) also known as Employment MSFWs. The proposed changes would discrimination or reprisal for protected
Service (ES). The Department also require SWAs and ES offices to use the activity should be handled in
proposes to change ‘‘and except’’ to ‘‘or’’ same process for processing accordance with the procedures in this
to clarify that immediate action must be employment-related law complaints as paragraph. In addition, the Department
taken in cases where either the § 658.411(d)(ii) currently requires for ES proposes to modify the procedures in
Complaint System Representative complaints involving an employer in this paragraph to require an ES office or
determines that it is necessary or where another State. This situation comes up SWA in receipt of such a complaint to
informal resolution would be periodically, and the Department has log and immediately refer it to the State-
detrimental to the complainant. advised SWAs to follow the same level E.O. Officer. The process set forth
Consistent with the proposed removal procedures for when an ES complaint is in the existing regulations has proven to
of the SMA from § 658.411(b)(1)(ii)(B), filed in a different State, which includes be confusing, because it identifies
the Department proposes to amend sending the complaint to the SWA in multiple officials to which
§ 658.411(b)(1)(ii)(D) to remove the the other State. This addition is nondiscrimination complaints should
requirement for the ES office or SWA intended to make the employment- be referred and requires ES staff to
Complaint System Representative to related law complaint regulations determine which nondiscrimination
refer the complaint to the SMA who consistent with current SWA practices. laws are at issue. The revisions that the
must immediately refer the complaint. Because the regulations currently do not Department proposes here would
Instead, under the proposed regulatory address this scenario, the regulations simplify the process by requiring ES
text, the ES office or SWA Complaint currently are unclear as to whether ES offices and SWAs to treat all
System Representative would offices and SWAs must immediately nondiscrimination complaints that they
themselves refer the complaint refer employment-related law receive under this subpart in the same
immediately to the appropriate complaints against out-of-State manner. Specifically, under the
proposed revision, when an ES office or Representative’’ taking such actions. The Department also proposes to
SWA receives such a complaint, they This proposed change is necessary to change the second reference to a
will log it and immediately refer it to conform to the proposed change, ‘‘suspected violation’’ in § 658.419(a) to
the State-level E.O. Officer, regardless of discussed previously, to remove the ‘‘apparent violation’’ for clarity. In
the nondiscrimination law(s) at issue, SMA from playing a direct role in addition, the Department proposes to
and notify the complainant of the Complaint System processing. This will add a sentence to § 658.419(a) to clarify
referral in writing. The State-level E.O. strengthen the SMA’s role to monitor that the apparent violation must be
Officer will then either process the the Complaint System. documented in the Complaint System
complaint if it is within their The Department proposes to amend log as described at § 658.410.
jurisdiction or immediately refer the § 658.411(d)(5)(i) to change ‘‘ES or SWA Finally, the Department proposes to
complaint to the appropriate officials’’ to ‘‘the SWA’’ because the add a sentence at the end of § 658.419(a)
enforcement agency if it is not. This proposed changes to § 651.10 remove to clarify that when an apparent
simplified referral process will reduce the definition of SWA official. violation involves alleged violations of
confusion for ES staff and ensure that The Department proposes to amend nondiscrimination laws, it must be
someone with appropriate § 658.411(d)(5)(ii) in three ways. First, processed according to the procedures
nondiscrimination expertise—the State- the Department proposes to change described in § 658.411(c)—that is, it
level E.O. Officer—will determine how ‘‘SWA officials’’ to ‘‘the SWA’’ because must be logged and immediately
the complaint should be handled and by the proposed changes to § 651.10 referred to the State-level E.O. Officer.
whom. remove the definition of SWA official.
The Department proposes to amend Section 658.420 Responsibilities of the
Because of this proposed term change, Employment and Training
§ 658.411(d) throughout to replace ‘‘a’’ it is also necessary to make the word
with ‘‘an’’ as a technical edit when it Administration Regional Office
‘‘determine’’ plural for subject-verb
comes before ‘‘ES office.’’ In addition, agreement. Second, the Department The Department proposes several
the Department proposes to revise revisions to § 658.420. First, the
proposes to insert ‘‘, in writing,’’
§ 658.411(d)(1) to clarify that the Department proposes to revise
between ‘‘request’’ and ‘‘hearing’’ to
procedures in § 658.411(c) apply to all § 658.420(b) to conform with the
clarify that the complainant must
ES complaints alleging violations of simplified process for referring
request a hearing in writing. This
nondiscrimination laws, including nondiscrimination complaints in
change will make the procedures
violations of EEOC regulations, the proposed § 658.411(c). In particular, the
consistent with § 658.411(d)(5)(i)(D).
Immigration and Nationality Act’s anti- Department proposes to revise
Lastly, the Department proposes to
discrimination provision, or laws § 658.420(b)(1) to provide that if an ETA
change ‘‘working days’’ to ‘‘business
enforced by CRC. regional office receives a complaint
The Department proposes to rephrase days.’’ Under § 651.10, working days
and business days have the same alleging violations of nondiscrimination
§ 658.411(d)(2)(ii)(A), which addresses
meaning and can be used laws, then the complaint must be logged
how an ES office should process an ES
interchangeably. However, because this and immediately referred to the
complaint filed against an employer that
reference is located immediately after a appropriate State-level E.O. Officer(s).
is not located within its service area, to
clarify the order of steps such an office use of ‘‘business days’’ in As explained previously under the
must take, without substantively § 658.411(d)(5)(i)(D), it may give the section addressing revisions to
changing the steps. Specifically, the appearance that there are different § 658.411(c), this simplified referral
proposed regulatory text changes the meanings between the terms. To correct process would provide clear instruction
phrasing from ‘‘must send, after this issue, the Department proposes to to ETA regional staff and task State-level
ensuring that the Complaint/Referral use the same term—‘‘business days’’—in E.O. Officers, who have appropriate
Form is adequately completed, a copy both places. nondiscrimination expertise, with
. . .’’ to ‘‘must ensure the Complaint/ The Department proposes to amend determining how nondiscrimination
Referral Form is adequately completed, § 658.411(d)(5)(iii)(G) to change ‘‘SWA complaints should be handled and by
and then immediately send a copy official’’ to ‘‘SWA’’ because the whom.
. . . .’’ This proposed change is proposed changes to § 651.10 remove Second, the Department proposes to
consistent with the proposed change at the definition of SWA official. This remove existing § 658.420(b)(2), which
§ 658.411(b)(3), so that processes for change would make the provision agree addresses complaints alleging
both ES complaints and employment- with the proposed definitions. discrimination on the basis of genetic
related law complaints (other than information, because such complaints
Section 658.419 Apparent Violations would fall under the simplified
alleged violations of rights under the
EEOC regulations or laws enforced by The Department proposes several procedures set forth in proposed
CRC, as described at § 658.411(c)) are clarifying revisions to § 658.419(a). § 658.420(b)(1). Third, the Department
the same when the complaint involves First, the Department proposes to proposes to make several revisions to
an employer in a different State. The update § 658.419(a) to replace the words conform with this deletion—namely, to
changes are, therefore, necessary for ‘‘a SWA, an ES office employee, or move the text in existing § 658.420(c) to
clarity and consistency. outreach staff’’ with ‘‘an ES staff § 658.420(b) and remove all references
At § 658.411(d)(1)(iv), the Department member’’ to conform with proposed to paragraph (b)(2) in this section.
proposes a technical edit to add a revisions to ES staff at § 651.10. It is not Finally, the Department proposes to
comma after ‘‘alleged agency-wide necessary to specifically refer to revise § 658.420(c) to clarify that when
violation.’’ ‘‘outreach staff’’ in this section, because an ETA regional office receives an
The Department proposes to amend the definition of outreach staff means employment-related law complaint
§ 658.411(d)(4)(i) and (5)(i) to replace ES staff with the responsibilities under this subsection, it should process
references to the SMA investigating, described in § 653.107(b). This change the complaint in accordance with
attempting informal resolution, and will make § 658.419 more clear because § 658.422. The existing regulation
making written determinations with the proposed regulatory text will use the incorrectly references § 658.411, which
references to the ‘‘Complaint System term ES staff uniformly. provides complaint processing
procedures for ES offices and SWAs text currently provides that SWA this subpart if the employer requesting
(and not ETA regional offices). officials may discontinue services access to the clearance system is
immediately if, in the judgment of the currently debarred or disqualified from
Section 658.422 Processing of
State Administrator, exhaustion of the participating in one of the Department’s
Employment-Related Law Complaints
administrative procedures set forth in foreign labor certification programs.
by the Regional Administrator § 658.501(a)(1) through (7) would cause
The Department proposes several substantial harm to a significant number 3. Subpart G—Review and Assessment
revisions to § 658.422. First, the of workers. The reference to paragraphs of State Workforce Agency Compliance
Department proposes to revise (a)(1) through (7) of § 685.501 appears to With Employment Service Regulations
paragraph (a) to clarify that this section have been made in error, because Section 658.602 Employment and
applies to all ‘‘employment-related law’’ § 658.501 does not set forth Training Administration National Office
complaints submitted directly to the administrative procedures but rather the Responsibility
ETA Regional Administrator or their bases for discontinuation of services. The Department proposes to amend
representative. Second, the Department Section 658.502, by contrast, sets forth § 658.602(g) to refer to § 653.108(a)
proposes to add a sentence to the end the process by which SWAs must instead of § 653.108(b). This is
of paragraphs (b) and (c) to conform generally follow when discontinuing the necessary to correct the inaccurate
with the proposed revisions to provision of ES services. Accordingly,
citation to § 653.108(b), which does not
§ 658.420(b)(1). In particular, proposed the Department proposes to replace the
contain self-monitoring requirements.
paragraphs (b) and (c) each include an cross reference in 658.501(b) to
This proposed revision will clarify the
additional sentence to specify that when 658.501(a)(1) through (7) with a cross
location of self-monitoring requirements
a complaint described in the paragraph reference to § 658.502, which will
for readers.
alleges a violation of nondiscrimination clarify that the administrative
The Department proposes to amend
laws or reprisal for protected activity, procedures that must otherwise be
the introductory text of § 658.602(n) to
then it must be referred to the exhausted are set forth in § 658.502.
replace the phrase ‘‘in the course of’’
appropriate State-level E.O. Officer in This revision is necessary to clarify
with the word ‘‘during’’ for purposes of
accordance with § 658.420(b)(1). when a SWA official may discontinue
services immediately. clarity.
2. Subpart F—Discontinuation of The Department proposes to amend The Department proposes to amend
Services to Employers by the Wagner- § 658.501(c) to correct an error in the § 658.602(n)(1) to replace the phrase
Peyser Act Employment Service regulatory text like the cross-referencing ‘‘outreach workers’’ with ‘‘outreach
error in § 658.501(b). This section staff’’ because outreach staff is a defined
Section 658.501 Basis for
incorrectly references the bases on term in § 651.10. Using the defined term
Discontinuation of Services
which a SWA may discontinue services will make the regulatory text more clear
The Department proposes to amend to an employer in § 658.501(a)(1) regarding which staff it references.
§ 658.501(a)(4) to add that SWA officials through (8), instead of the procedures to The Department proposes to amend
must initiate procedures for discontinue such services set forth in § 658.602(n)(2) to remove the word
discontinuation of services to employers § 658.502. Accordingly, the Department ‘‘random’’ from the requirement for the
who are currently debarred or proposes to replace the reference to NMA to participate in field check(s) of
disqualified from participating in one of § 658.501(a)(1) through (8) with a cross migrant camps or work site(s) where
the Department’s foreign labor reference to § 658.502. MSFWs have been placed. The
certification programs. This revision The Department proposes to amend proposed revision would clarify that the
corresponds to the proposed addition in § 658.502(a)(4) to add that where a selection of migrant camps or work sites
§ 653.501(a)(4), which would require ES SWA’s decision to discontinue services for which the NMA will participate in
staff to consult the Department’s OFLC is based on the fact that the employer is field checks does not need to be
and Wage and Hour Division debarment currently debarred or disqualified from random, and may be targeted, where
lists prior to placing a job order into participating in one of the Department’s necessary, to respond to known or
intrastate or interstate clearance, and to foreign labor certification programs, the suspected compliance issues, thereby
initiate discontinuation of services SWA must specify the time period for improving MSFW worker protection.
pursuant to this subpart if the employer which the employer is debarred or The Department proposes to amend
requesting access to the clearance disqualified. The proposed revision § 658.602(o) to remove ‘‘(8)’’ from the
system is currently debarred or would further specify that the employer reference to paragraph (f)(8) as a
disqualified from participating in one of must be notified that all ES services will technical edit. Paragraph (f) of § 658.602
the Department’s foreign labor be terminated in 20 working days does not have a subordinate paragraph
certification programs. As explained in unless, within that time, the employer (8).
the section of this preamble addressing provides adequate evidence that the
the proposed addition in § 653.501(a)(4), Section 658.603 Employment and
Department’s disbarment or
the Department is proposing this Training Administration Regional Office
disqualification is no longer in effect or
requirement to protect workers that are Responsibility
will terminate before the employer’s
referred to employers through the ARS anticipated date of need. Similar to the The Department proposes to amend
by ensuring that the ARS is not used to proposed revision to § 658.501(a)(4) § 658.603(d)(7) to replace uses of ‘‘job
place a worker with an employer that discussed previously, the revisions order’’ with ‘‘clearance order.’’ This
has failed to comply with its proposed here correspond to the change will make the provision conform
obligation(s) as an employer of foreign proposed addition in § 653.501(a)(4), with the proposed changes to the
workers. which would require ES staff to consult definition of clearance order in
The Department proposes to amend the Department’s OFLC and Wage and § 651.10. The change will also clarify
§ 658.501(b) to correct an error in the Hour Division debarment lists prior to that field checks should only be
existing regulatory text, which placing a job order into intrastate or conducted on orders that have been
improperly references § 658.501, instead interstate clearance, and to initiate cleared for intrastate and/or interstate
of § 658.502. Specifically, the regulatory discontinuation of services pursuant to recruitment, not including local job
orders. The Department also proposes to 4. Subpart H—Federal Application of action that is likely to result in a rule
remove the word ‘‘random’’ from the Remedial Action to State Workforce that: (1) Has an annual effect on the
requirement for the RA to conduct field Agencies economy of $100 million or more, or
checks. Under the proposed revision, Section 658.702 Assessment and adversely affects in a material way a
the selection of agricultural work sites Evaluation of Program Performance Data sector of the economy, productivity,
does not need to be random, and may competition, jobs, the environment,
The Department proposes to amend public health or safety, or State, local,
be targeted, where necessary, to respond
§ 658.702(f)(2) to add references to the or tribal governments or communities
to known or suspected compliance
‘‘RMA’’ in two places to clarify that the (also referred to as economically
issues, thereby improving MSFW
RA must notify both the RMA and the significant); (2) creates serious
worker protection. Finally, the NMA when findings and
Department proposes to add the word inconsistency or otherwise interferes
noncompliance involve services to with an action taken or planned by
‘‘and’’ before ‘‘working and housing MSFWs or the Complaint System.
conditions’’ to make clear that this is a another agency; (3) materially alters the
Additionally, this proposed change budgetary impacts of entitlement grants,
single term that follows wages and would require the Final Notification to
hours in the list of items that must be user fees, or loan programs, or the rights
be sent to the RMA, as well as the NMA. and obligations of recipients thereof; or
specified on a clearance order. These changes are necessary for the (4) raises novel legal or policy issues
Paragraph (i) of § 658.603 addresses RMA to be aware of all ES issues arising out of legal mandates, the
RMA training. The Department proposes involving MSFWs and the Complaint President’s priorities, or the principles
to amend § 658.603(i) to remove the System, which the RMA is responsible set forth in the E.O. Id. This proposed
requirement that the RMA participate in to monitor. The notification required by rule is a significant regulatory action,
training sessions approved by the these revisions would improve the although not an economically
National Office within the first 3 RMA’s ability to effectively perform all significant regulatory action, under sec.
months of their tenure and replace it required duties. 3(f) of E.O. 12866. Accordingly, OMB
with a requirement that would require Section 658.704 Remedial Actions has reviewed this proposed rule.
the RMA to participate in training E.O. 13563 directs agencies to propose
The Department proposes to amend or adopt a regulation only upon a
sessions offered by the National Office
§ 658.704(f)(2) to require that copies of reasoned determination that its benefits
and additional training sessions the RA’s notification to the SWA of
necessary to maintain competency and justify its costs; the regulation is tailored
decertification proceedings must be sent to impose the least burden on society,
enhance their understanding of issues to the RMA and the NMA. The existing
farmworkers face (including trainings consistent with achieving the regulatory
regulatory text only requires that one objectives; and, in choosing among
offered by OSHA, WHD, EEOC, CRC, copy be sent to the NMA. This revision
and other organizations offering alternative regulatory approaches, the
is necessary because the RMA needs to agency has selected those approaches
farmworker-related information). The be aware of all issues that relate to
proposed regulatory text removes the that maximize net benefits. E.O. 13563
MSFWs in the regional office. recognizes that some benefits are
requirement for training within the first The Department proposes to amend
3 months of an RMA’s tenure because difficult to quantify and provides that,
§ 658.707(a), which addresses the where appropriate and permitted by
RMAs must participate in all trainings circumstances in which a SWA may law, agencies may consider and discuss
necessary to learn and maintain request a hearing, to specify that any qualitatively values that are difficult or
competencies for the role. The proposed SWA that has received a Notice of impossible to quantify, including
regulatory text clarifies that training Remedial Action under § 658.707(a) of equity, human dignity, fairness, and
attendance is required beyond the first this subpart may also request a hearing, distributive impacts.
3 months of an RMA’s tenure. The and that the SWA may do so by filing The Department anticipates that the
proposed regulatory text regarding a written request with the RA within 20 proposed rule would result in costs,
maintaining competencies specifically business days of the SWA’s receipt of transfer payments, and benefits for State
aligns with the Department’s training the notice. This is a clarifying edit, as governments and agricultural
requirements for SMAs as well as E.O. § 658.704(c) already provides a SWA the employers. The costs of the proposed
staff training requirements, which opportunity to request a hearing under rule would include rule familiarization
provide a positive example for RMA these circumstances. The Department and additional information collection
training. additionally proposes to add a reference for State governments, as well as
to the RA in § 658.707(b), because transition costs such as recruitment,
The Department proposes to amend § 658.704(c) directs the SWA to send its
§ 658.603(p)(1) to replace ‘‘workers’’ training, and technology expenses for
written request to the RA. the four States (i.e., Colorado, Delaware,
with ‘‘staff.’’ This change would
implement the defined term of outreach IV. Rulemaking Analyses and Notices Massachusetts, and Michigan) that
staff to clarify the type of staff to which currently have non-State-merit staff
A. Executive Orders 12866 (Regulatory providing some labor exchange services
the provision refers. Planning and Review) and 13563 and would need to transition to State
The Department proposes to amend (Improving Regulation and Regulatory merit staff for the provision of all labor
§ 658.603(p)(2) to remove the word Review) exchange services.13
‘‘random’’ so that the RMA understands Under Executive Order (E.O.) 12866, The transfer payments would include
that clearance orders selected for a field OMB’s Office of Information and the changes in wages and fringe benefits
check do not need to be selected at Regulatory Affairs (OIRA) determines for staff providing Wagner-Peyser Act
random. This change will clarify that whether a regulatory action is
RMAs may conduct targeted field significant and, therefore, subject to the 13 Since the 2020 Final Rule, some States
checks where necessary, allowing the requirements of the E.O. and review by expressed an interest in using non-merit staff.
Delaware began using this flexibility and currently
Department to respond to known or OMB. See 58 FR 51735 (Oct. 4, 1993). uses two contract staff for ES services. Missouri has
suspected compliance issues, in Section 3(f) of E.O. 12866 defines a an approved WIOA State Plan modification to
addition to random field checks. ‘‘significant regulatory action’’ as an utilize non-State-merit staff.
ES labor exchange services in the four Therefore, the one-time rule The Department is not able to
States that currently have non-State- familiarization cost for all 57 quantify the transition costs to the four
merit staff providing ES labor exchange jurisdictions (the 50 States, the District States due to the lack of data. The
services: Colorado, Delaware, of Columbia, Puerto Rico, American Department is seeking additional input
Massachusetts, and Michigan. Samoa, the Commonwealth of the from the four States on their potential
The benefits of the merit-staffing Northern Mariana Islands, Guam, the transition expenses such as recruitment,
provisions in the proposed rule would Republic of Palau, and the U.S. Virgin training, or technology costs, as well as
include the ability for States to shift Islands) is estimated to be $4,439 (= costs related to the State budgeting
staff resources during future surges in $77.88 × 1 hour × 57 jurisdictions). process. The Department is also seeking
UI claims when time-limited legislative input on the potential costs associated
flexibilities in the delivery of UI b. Transition Costs
with service interruptions during the
services are not available. The Four States would potentially incur time period in which the State is
Department also is proposing one-time costs associated with the making staff changes to comply with the
amendments to the regulations that proposal to require all ES labor provisions of this proposed rule.
govern labor exchange services provided exchanges services to be provided by
to MSFWs, the Monitor Advocate State merit staff. Colorado, Delaware, c. Information Collection Costs
System, and the Complaint System. Massachusetts, and Michigan currently IC costs represent direct costs to
These amendments would remove have some non-State-merit staff who States associated with the proposed
redundancies, clarify requirements, and provide labor exchange services, and information collection requests (ICRs)
improve equity and inclusion for these States may incur transition under this proposed rule.
MSFWs in the ES system. expenses, such as recruitment, training, The first ICR pertains to the proposed
or technology costs, as well as costs requirement that SWA Wagner-Peyser
1. Costs related to the State budgeting process. programs document Participant
The Department anticipates that the Moreover, job seekers and employers Individual Record Layout (PIRL) data
proposed rule would result in costs may experience nonquantifiable element 413 for all reportable
related to rule familiarization, staff transition costs associated with service individuals. The Department assumes
transition, and information collection. interruptions during the time period in that this provision would entail three
a. Rule Familiarization Costs which the State is making staff changes costs: (1) Computer programming; (2)
to comply with the provisions of this additional time for ES staff to help
Regulatory familiarization costs proposed rule. individuals register for services, and (3)
represent direct costs to States The Department used a survey to ask additional time for SMAs to check the
associated with reviewing the new the four States to estimate these accuracy of the MSFW coding. SWAs
regulation. The Department’s analysis 14 potential expenses. One State would need to reprogram their ES
assumes that the changes introduced by anticipates that transition expenses registration systems to ask MSFW status
the rule would be reviewed by Human would be minimal unless one of the (PIRL 413) questions earlier in the
Resources Managers (SOC code 11– local one-stop centers goes through an registration process. The Department
3121) employed by SWAs. The ‘‘upheaval’’ due to the proposed change. assumes reprogramming would cost an
Department anticipates that it would The State explained that the SWA average of $4,000 per jurisdiction,18 so
take a Human Resources Manager an provides employee training, and this the total one-time cost for
average of 1 hour to review the rule. would not change under the provisions reprogramming is estimated at $228,000
The U.S. Bureau of Labor Statistics in the proposed rule. Moreover, (= $4,000 × 57 jurisdictions). For the
(BLS) Occupational Employment and technology costs have always been additional annual burden on ES staff,
Wage Statistics (OEWS) data show that shared costs, and recruitment is the Department anticipates that it would
the median hourly wage of State conducted by local management teams take an ES staff member an average of
government Human Resources Managers on an on-going basis. The State noted, 2 minutes per reportable individual to
is $43.75.15 The Department used a 61 however, that there would be significant ask the additional MSFW questions and
percent benefits rate 16 and a 17 percent disruptions in the workforce areas that record the answers. To estimate this
overhead rate,17 so the fully loaded use non-State merit-staffed employees to cost, the Department used the median
hourly wage is $77.88 [= $43.75 + provide ES labor exchange services; hourly wage of $26.85 for educational,
($43.75 × 61%) + ($43.75 × 17%)]. those areas constitute 25 percent of the guidance, and career counselors and
State’s workforce areas. Hiring State advisors (SOC code 21–1012) employed
14 This analysis uses codes from the Standard
merit-staffed employees in those areas by State governments (NAICS
Occupational Classification (SOC) system and the
North American Industry Classification System
would take months; moreover, the State 999200).19 The Department used a 61-
(NAICS). would need to add State supervision percent benefits rate and a 17-percent
15 BLS, ‘‘Occupational Employment and Wage and engage in union negotiations. overhead rate, so the fully loaded hourly
Statistics, National Industry-Specific Occupational A second State estimated that the wage is $47.79 [= $26.85 + ($26.85 ×
Employment and Wage Estimates, NAICS 999200,’’ transition costs related to training and
SOC Code 11–3121, May 2020, https://www.bls.gov/ 61%) + ($26.85 × 17%)]. Assuming ES
oes/current/naics4_999200.htm (last visited Aug. 2,
technology would be minimal. staff assist in registering half of the 10.2
2021). However, obtaining additional FTE million reportable individuals (based on
16 BLS, ‘‘National Compensation Survey, State merit-staffed employees would the average for Program Years 2018,
Employer Costs for Employee Compensation,’’ generate nonquantifiable costs. The 2019, and 2020), the annual cost is
https://www.bls.gov/ncs/data.htm (last visited Aug. State explained that the process would
2, 2021). For State and local government workers,
wages and salaries averaged $32.72 per hour entail requesting and justifying new 18 Anecdotal evidence from States indicates a
worked in 2020, while benefit costs averaged positions, preparing and submitting a range of $2,000 to $6,000 to add one yes/no
$20.09, which is a benefits rate of 61 percent. budget request, posting the positions, question to an existing data collection.
17 Cody Rice, U.S. Environmental Protection 19 BLS, ‘‘Occupational Employment and Wage
interviewing candidates, checking
Agency, ‘‘Wage Rates for Economic Analyses of the Statistics, National Industry-Specific Occupational
Toxics Release Inventory Program,’’ June 10, 2002,
references, and onboarding new hires. Employment and Wage Estimates, NAICS 999200,
https://www.regulations.gov/document/EPA-HQ- The State estimated that the process SOC 21–1012.’’ https://www.bls.gov/oes/current/
OPPT-2014-0650-0005 (last visited Aug. 2, 2021). would take at least 12 to 18 months. naics4_999200.htm.
estimated at $8,129,913 (= 10,207,047 2,400 ES Managers (based on the categorized as transfer payments from
reportable individuals × 50% × 2 approximate number of one-stop States to employees.
minutes × $47.79 per hour). For the centers), the annual cost is estimated at To estimate the transfer payments, the
annual burden on SMAs, the $1,238,976 (= 2,400 ES Managers × 8 Department surveyed the four States
Department anticipates that it would hours per year × $64.53 per hour). For and asked them to provide the total
take an SMA 1 hour per quarter to check the annual burden on SMAs, the number of full-time equivalent (FTE)
the accuracy of the MSFW coding. To Department anticipates that it would hours provided by State merit staff and
estimate this cost, the Department used take an SMA an additional 3 hours per non-State-merit staff dedicated to
the median hourly wage of $36.25 for year to complete the Annual Summary delivering ES services, as well as the
social and community service managers due to content changes. To estimate this occupation (or position title) and annual
(SOC code 11–9151) employed by State cost, the Department used a fully loaded salary for all employees included in the
governments (NAICS 999200).20 The median hourly wage of $64.53 for social FTE calculations. Delaware,
Department used a 61-percent benefits and community service managers (SOC Massachusetts, and Michigan provided
rate and a 17-percent overhead rate, so code 11–9151) employed by State data via email, while Colorado
the fully loaded hourly wage is $64.53 governments (NAICS 999200). responded via telephone.
[= $36.25 + ($36.25 × 61%) + ($36.25 × Therefore, the annual cost is estimated Delaware reported that it currently
17%)]. Therefore, the annual cost is at $11,035 (= 57 SMAs × 3 hours per has two FTE non-State, merit-staffed
estimated at $14,713 (= 57 SMAs × 4 year × $64.53 per hour). employees delivering ES services: one
hours per year × $64.53 per hour). The fourth ICR pertains to the FTE management analyst with an
The second ICR pertains to the proposal to require the delivery of all ES annual salary of $59,000 and one FTE
proposed requirement that SWA labor exchanges services by State merit migrant farm outreach worker with an
applicant-holding offices provide staff. The Department proposes to create annual salary of $48,000. The
workers referred on clearance orders a new ICR that would require Unified or Department assumes that Delaware
with a checklist summarizing wages, would replace the two FTE non-State,
Combined State Plans to describe how
working conditions, and other material merit-staffed employees with one State
the State will staff labor exchange
specifications in the clearance order. merit-staffed management analyst (SOC
services under the Wagner-Peyser Act
The Department anticipates that it code 13–1111) and one State merit-
using State merit staff. The Department
would take an ES staff member an staffed community and social service
does not anticipate additional costs
average of 35 minutes to read the specialist (SOC code 21–1099). To
related to this requirement given that
clearance order, create a checklist, and calculate the change in wage costs for
States must already describe in their
provide the checklist to applicants. To Delaware, the Department used OEWS
Unified or Combined State Plans how
estimate this cost, the Department used data to estimate the median annual
ES labor exchange services will be
a fully loaded hourly wage of $47.79 for wages for management analysts and
delivered. community and social service
educational, guidance, and career
counselors and advisors (SOC code 21– In total, the proposed rule is expected specialists employed by the State of
1012) employed by State governments to have first-year IC costs of $10.0 Delaware. The median annual wage for
(NAICS 999200). Assuming 14,580 million in 2020 dollars. Over the 10- management analysts is $61,840, while
clearance orders per year (based on the year analysis period, the annualized the median annual wage for community
number of clearance orders reported by costs are estimated at $9.8 million at a and social service specialists is
SWAs in Program Year 2019), the discount rate of 7 percent in 2020 $43,910.21
annual cost is estimated at $406,454 (= dollars. The Department adjusted the annual
14,580 clearance orders × 35 minutes × 2. Transfer Payments wages to account for fringe benefits (61
$47.79 per hour). percent) and overhead costs (17
The third ICR pertains to the According to OMB Circular A–4, percent). Then, the Department
proposed changes associated with the transfer payments are monetary calculated the difference between the
Migrant and Seasonal Farmworker payments from one group to another fully loaded wage rates of the two
Monitoring Report and Complaint/ that do not affect total resources current non-State-merit staff and two
Apparent Violation Form. The available to society. The transfer potential State merit staff. The decrease
Department assumes that this provision payments for this proposed rule are the in wage costs for Delaware is estimated
would entail two costs: (1) Time for ES transfer payments associated with at $2,225 per year.22
Managers to update a central complaint employee wages and fringe benefits. Massachusetts reported that currently
log, and (2) additional time for SMAs to The 2020 Final Rule gave all States it has approximately 30 FTE non-State,
complete the Annual Summary due to and territories more staffing options for merit-staffed employees providing ES
content changes. For the annual burden delivering labor exchange services. Four services, but did not provide their job
on ES Managers, the Department States (Colorado, Delaware, titles or annual salaries. Based on the
anticipates that it would take an ES Massachusetts, and Michigan) currently occupational distribution of the State
Manager 8 hours per year to update the have non-State-merit staff providing merit staff reported by Massachusetts,
central complaint log. To estimate this labor exchange services, and others have the Department assumes that 80 percent
cost, the Department used a fully loaded expressed interest in such an (or 24 FTEs) of the 30 FTE non-State-
median hourly wage of $64.53 for social arrangement. This proposed rule would merit staff are educational, guidance,
and community service managers (SOC require all ES labor exchange services to and career counselors and advisors
code 11–9151) employed by State be provided by State merit-staffed (SOC code 21–1012), 10 percent (or 3
governments (NAICS 999200). employees; therefore, these four States FTEs) are social and community service
Assuming that there are approximately would need to restaff (along with other
States that could implement non-State- 21 BLS, OEWS data for government workers by
20 BLS, ‘‘Occupational Employment and Wage merit staffing before this NPRM is State, May 2020, https://www.bls.gov/oes/
Statistics, National Industry-Specific Occupational special.requests/oes_research_2020_sec_99.xlsx
Employment and Wage Estimates, NAICS 999200,
finalized) and may incur additional (last visited Aug. 2, 2021).
SOC 11–9151.’’ https://www.bls.gov/oes/current/ wage costs. For purposes of E.O. 12866, 22 ($61,840¥$59,000) × 1.78 +
naics4_999200.htm. these additional wage costs are ($43,910¥$48,000) × 1.78 = ¥$2,225.
managers (SOC code 11–9151), and 10 administrative support workers. Based Survey data show that 60 percent of
percent (or 3 FTEs) are office and on the occupational distribution of the State government employees in 2020
administrative support workers (SOC State merit staff reported by Michigan, were women compared to 46 percent of
code 43–0000). To calculate the change the Department assumes that 7 percent private sector employees. With respect
in wage costs for Massachusetts, the (or 14.3 FTEs) of the 192 FTE non-State- to race, 75 percent of State government
Department used OEWS data on median merit staff are program managers, 83 employees in 2020 were white
annual wages in Massachusetts for the percent (or 159.3 FTEs) are employment compared to 78 percent of employees in
three occupations identified previously. and job specialists, and 9 percent (or the private sector, 15 percent of State
The median wage rates for private sector 18.1 FTEs) are office and administrative government employees were black
workers are not available by State and support workers. Michigan reported that compared to 12 percent of employees in
occupation; therefore, the Department the median annual salary plus benefits the private sector, and 6 percent of State
used the median wage rates for all and other associated employment costs government employees were Asian
sectors in Massachusetts as a proxy for non-State, merit-staffed program compared to 7 percent of employees in
because private sector jobs constitute 85 managers is $86,494, the median for the private sector. As far as the ethnic
percent of total employment.23 The employment and job specialists (or composition of these two labor forces,
median annual wage for educational, other professional occupations) is 12 percent of State government
guidance, and career counselors and $50,955, and the median for non-State, employees in 2020 were Hispanic
advisors in Massachusetts is $69,722, merit-staffed office support specialists is compared to 18 percent of employees in
the median for social and community $43,602. the private sector.29
service managers is $67,309, and the Michigan also reported that the
median annual salary plus benefits and 3. Nonquantifiable Benefits
median for office and administrative
support workers is $46,342.24 other associated employment costs for The Department is proposing to
Massachusetts reported that the State merit-staffed State administrative reinstate the longstanding requirement
median annual salary for State merit- managers is $189,639, the median for that States use only State merit staff to
staffed ES services representatives and State merit-staffed migrant service deliver ES labor exchange services, with
State merit-staffed job specialists is workers is $100,894, and the median for no exceptions. The COVID–19
$59,689, the median for State merit- State merit-staffed office secretaries is pandemic placed an enormous burden
staffed program managers is $75,880, $102,135.27 on State UI programs due to the
and the median for State merit-staffed The Department did not adjust the significant increase in UI claims from
office support specialists is $47,176.25 annual wages to account for fringe the massive number of unemployed
The Department adjusted the annual benefits or overhead costs because the workers. The number of continued
wages to account for fringe benefits (61 wages reported by Michigan already claims rose from fewer than 2 million
percent) and overhead costs (17 included benefits and other before the pandemic to more than 20
percent). Then, the Department employment costs. The Department million in the week ended May 9, 2020.
calculated the difference between the calculated the difference between the It became evident to the Department
fully loaded wage rates of the 30 current fully loaded wage rates of the 192 that, during a crisis that displaces a
non-State-merit staff and 30 potential current non-State-merit staff and 192 large number of workers in a short time,
State merit staff. The decrease in wage potential State merit staff. The wage cost it could become imperative for States to
costs for Massachusetts is estimated at increase for Michigan is estimated at shift staff resources from ES services to
$378,387 per year.26 $10,489,704 per year.28 support urgent UI services. Being able to
Michigan reported that it currently In total, the proposed rule is expected do so, however, would require that ES
has approximately 192 FTE non-State- to have annual transfer payments of labor exchange services be provided
merit staff. A wide range of $10,109,091 for Delaware, only by State merit staff because UI
occupational titles for non-State-merit Massachusetts, and Michigan services are required to be delivered
staff providing ES services was reported; (=¥$2,225¥$378,387 + $10,489,704). solely by State merit staff pursuant to
however, most of the staff members are The Department continues to seek data sec. 303(a)(1) of the Social Security Act.
program managers, employment and job from Colorado and intends to include in Requiring labor exchange services to be
specialists (or other professional the final rule an analysis of any provided by State merit staff will help
occupations), or office and pertinent data received. ensure that States have the flexibility to
This proposed rule may impact the shift staff resources during future surges
23 In May 2020, total employment was demographic composition of the staff in UI claims where time-limited
139,099,570 (https://www.bls.gov/oes/current/oes_ delivering ES labor exchange services. legislative flexibilities to UI services are
nat.htm), with 117,718,070 jobs (85 percent) in the State government employees are more
private sector (https://www.bls.gov/oes/current/ not available.
000001.htm) and 21,381,500 jobs (15 percent) in the likely than private sector employees to The benefits of requiring States to use
government sector (https://www.bls.gov/oes/ be women or black. Current Population only State merit staff to deliver ES labor
current/999001.htm).
24 BLS, ‘‘OEWS, May 2020 State Occupational
exchange services are not entirely
27 The Department assumes that Michigan will
Employment and Wage Estimates: Massachusetts,’’ quantifiable. Yet, in addition to States
replace non-State merit-staffed program managers
https://www.bls.gov/oes/current/oes_ma.htm (last with State merit-staffed employees paid at a rate benefiting from the availability of State
visited Aug. 2, 2021). similar to State administrative managers; non-State merit staff to assist with a surge in UI
25 The Department assumes that Massachusetts merit-staffed employment and job specialists (and services, benefits also accrue to
would replace non-State, merit-staffed educational, other professional occupations) with State merit-
guidance, and career counselors and advisors with staffed employees paid at a rate similar to migrant
individuals accessing labor exchange
State merit-staffed ES services representatives or job service workers; and non-State merit-staffed office services delivered by State merit
specialists; non-State, merit-staffed social and and office support specialists with State merit- personnel. State merit-staffed employees
community service managers with State merit- staffed employees paid at a rate similar to office are accountable only to their State
staffed program managers; and non-State, merit- secretaries. In categorizing each non-State
staffed office and administrative support workers employee, the Department used the job title and
government, are hired through objective,
with State merit-staffed office support specialists. compensation rate provided by the State. transparent standards, and must deliver
26 ($59,689¥$69,722) × 24 × 1.78 + 28 ($189,639¥$86,494) × 14.3 +
($75,880¥$67,309) × 3 × 1.78 + ($47,176¥$46,342) ($100,894¥$50,955) × 159.3 + ($102,135¥$43,602) 29 BLS, Current Population Survey, unpublished
× 3 × 1.78 = ¥$378,387. × 18.1 = $10,489,704. tables.
services to all customers of the ES The Department is also proposing rule is expected to have first-year rule
system according to established amendments to the regulations familiarization costs of $4,439 in 2020
standards. In exercising its discretion governing ES labor exchange services dollars, first-year IC costs of $10.0
under sec. 3(a) of the Wagner-Peyser Act provided to MSFWs, the Monitor million in 2020 dollars, and first-year
to establish minimum levels of Advocate System, and the Complaint transfer payments of $10.1 million in
efficiency and promote the uniform System. These amendments would 2020 dollars. Over the 10-year analysis
administration of labor exchange remove redundancies, clarify period, the annualized rule
services by requiring the use of State requirements, and enhance equity and familiarization costs are estimated at
merit staff to deliver labor exchange inclusion for farmworkers in the ES $591 at a discount rate of 7 percent in
services, the Department has system. 2020 dollars, the annualized IC costs are
determined that alignment of ES and UI 4. Summary estimated at $9.8 million at a discount
staffing is needed to ensure that quality Exhibit 1 shows the annualized rule rate of 7 percent in 2020 dollars, and
services are delivered effectively and familiarization costs, IC costs, and annualized transfer payments are
equitably to UI beneficiaries and other transfer payments at discount rates of 3 estimated at $10.1 million at a discount
ES customers. percent and 7 percent. The proposed rate of 7 percent in 2020 dollars.
2022 $ $ 10029091
2023 $ - $ 911)1091
2024 $ - $ 9801091 $
4 2025 $ - $ 9 801091 $ 9801 $
s 2026 $ - $ 9 801091 $ 9801091 $ 10109091
6 20Zl $ - $ 9801091 $ 9801091 s 10109091
7 2028 s - $ 9801091 $ 9801091 $ 10109091
8 2029 $ - $ 9 801091 $ 9801091 $ 10109091
9 2030 $ - $ 9801091 $ 9 091 $ 10109
10 2031 $ - $ 9 801091 $ 9. 091 $ 10109
Annualized with 7%4 $ 591 $ 9 831:429 $ 9 020 $ 10109
Annualized with 3%cl $ sos $ 9.827.()41 $ 9821546 s 10109
Due to data limitations, the pursuing this alternative. These States compliance with the proposed rule.
Department is unable to quantify operate ES by devolving it to the local Colorado, Delaware, Massachusetts, and
transition costs such as recruitment, level where it can be managed alongside Michigan would need to rapidly shift
training, and technology expenses that WIOA title I services. While such existing staff or hire new staff and may
would be incurred by the four States alignment with WIOA title I has some find themselves in violation of contracts
(i.e., Colorado, Delaware, value, it is outweighed by the benefits for services negotiated after the 2020
Massachusetts, and Michigan) that of aligning ES staffing with UI Final Rule. The Department recognizes
currently have non-State-merit staff administration and adjudication, which that this alternative would be a
providing some ES labor exchange would allow ES staff to provide surge substantial change for those States that
services. capacity for UI administration and have relied on other staffing
5. Regulatory Alternatives adjudication during times of high need. arrangements and they may need time to
Therefore, the Department is proposing make adjustments to personnel,
OMB Circular A–4 directs agencies to that all States, including those that contractual arrangements, and service
analyze alternatives if such alternatives previously operated as demonstration provision. Accordingly, the Department
best satisfy the philosophy and States, come into compliance with the is proposing to allow those States 18
principles of E.O. 12866. Accordingly, merit-staffing requirement. months from the effective date of the
the Department considered the final rule to come into compliance with
following regulatory alternatives. b. Alternative 2 the merit-staffing requirement rather
a. Alternative 1 Under this alternative, the than stipulating that the States comply
immediately.
Under this alternative, the Department would require States to

Department would return to the pre- come into compliance with the B. Regulatory Flexibility Act, Small
2020 Wagner-Peyser Act regulations, requirement to use State merit staff Business Regulatory Enforcement
reinstituting the State merit-staffing within 30 or 60 days of issuance of the Fairness Act of 1996, and Executive
requirement for all States except for the final rule. The Department is not Order 13272 (Proper Consideration of
three States previously operating as pursuing this alternative because it Small Entities in Agency Rulemaking)
exceptions: Colorado, Massachusetts, could result in significant interruption
and Michigan. After careful to ES labor exchange services in the four The Regulatory Flexibility Act (RFA),
5 U.S.C. chapter 6, requires the
EP20AP22.000</GPH>
consideration, the Department is not States not already operating in
Department to evaluate the economic OMB in concert with the publishing of farmworker and seasonal farmworker
impact of this proposed rule on small this proposed rule. This provides the with proposed revisions at § 651.10.
entities. The RFA defines small entities public the opportunity to submit Affected Public: State Governments.
to include small businesses, small comments on the ICs, either directly to Obligation to Respond: Required to
organizations, including not-for-profit the Department or to OMB. The 60-day Obtain or Retain Benefits.
organizations, and small governmental period for the public to submit Estimated Total Annual Respondents:
jurisdictions. The Department must comments begins with the submission 22,687,331.
determine whether the proposed rule of the ICRs to OMB. Comments may be Estimated Total Annual Responses:
would impose a significant economic submitted electronically through 46,167,618.
impact on a substantial number of such https://www.regulations.gov. See the Estimated Total Annual Burden
small entities. The Department ADDRESSES section of this proposed rule Hours: 10,610,629,971.
concludes that this proposed rule does for more information about submitting Estimated Total Annual Other Burden
not regulate any small entities directly, comments. Costs: $9,719,287.
so any regulatory effect on small entities The ICs in this proposed rule are Regulations Sections: §§ 653.103(a),
will be indirect. Accordingly, the summarized as follows. 653.109(a)(10).
Department has determined this Agency: DOL–ETA. Agency: DOL–ETA.
proposed rule would not have a Title of Collection: DOL–Only Title of Collection: Agricultural
significant economic impact on a Performance Accountability, Recruitment System Forms Affecting
substantial number of small entities Information, and Reporting System for Migrant and Seasonal Farmworkers.
within the meaning of the RFA. Reportable Individuals. Type of Review: New Collection.
C. Paperwork Reduction Act of 1995 Type of Review: New Collection. OMB Control Number: 1205–0NEW.
OMB Control Number: 1205–0NEW. Description: This NPRM proposes to
The purposes of the PRA, 44 U.S.C.
3501 et seq., include minimizing the Description: The Department is add a new IC to address the requirement
paperwork burden on affected entities. requesting a new OMB control number for SWAs to provide certain workers
The PRA requires certain actions before for this collection. The request for a new with checklists summarizing wages,
an agency can adopt or revise a control number is for administrative working conditions, and other material
collection of information, including reasons only. The proposed changes to specifications. Specifically, pursuant to
publishing for public comment a §§ 653.103(a) and 653.109(a)(10) in this proposed 20 CFR 653.501(d)(6), ES staff
summary of the collection of rulemaking described subsequently will would be required to provide
information and a brief description of eventually be included in OMB Control farmworkers with ‘‘checklists showing
the need for and proposed use of the Number 1205–0521. The Department is wage payment schedules, working
information. anticipating that a few different conditions, and other material
As part of its continuing effort to upcoming rulemakings will impact the specifications of the clearance order.’’ In
reduce paperwork and respondent ICs contained in OMB Control Number addition, pursuant to proposed 20 CFR
burden, the Department conducts a 1205–0521. Once all outstanding actions 653.501(d)(10), SWA applicant-holding
preclearance consultation program to are final and complete, the Department offices must provide workers referred on
provide the public and Federal agencies intends to submit a nonmaterial change clearance orders with a checklist
with an opportunity to comment on request to transfer the burden from the summarizing wages, working conditions
proposed and continuing collections of new ICR to the existing OMB control and other material specifications in the
information in accordance with the number for the DOL–Only Performance clearance order. The Department also
PRA. See 44 U.S.C. 3506(c)(2)(A). This Accountability, Information, and proposes that this ICR include a new
activity helps to ensure that the public Reporting System (1205–0521) and Agricultural Clearance Order Form, ETA
understands the Department’s collection proceed to discontinue the use of the Form 790B, which will be attached to
instructions, respondents can provide new control number. the Agricultural Clearance Order Form,
the requested data in the desired format, This NPRM proposes to add a ETA Form 790 (see OMB Control
reporting burden (time and financial requirement that SWA Wagner-Peyser Number 1205–0466). The Department
resources) is minimized, collection programs must document PIRL data previously proposed the ETA Form
instruments are clearly understood, and element 413 for reportable individuals. 790B through OMB Control Number
the Department can properly assess the The DOL-only PIRL ETA 9172 already 1205–0134, which is an expired ICR for
impact of collection requirements on requires Wagner-Peyser programs to which a submission requesting
respondents. document data element 413 for reinstatement is currently pending at
A Federal agency may not conduct or participants. This proposed change will OMB. The Department proposes to
sponsor a collection of information help ES staff identify all individuals withdraw OMB Control Number 1205–
unless approved by OMB under the PRA who engage in ES services who are 0134 and to instead attach ETA Form
and displays a currently valid OMB MSFWs and the degree of their 790B to this ICR because the subjects are
control number. The public is also not engagement, so that SWAs, SMAs, and related. ETA Form 790B is only used for
required to respond to a collection of the Department may better assess employers who submit clearance orders
information unless it displays a whether all Wagner-Peyser services are requesting U.S. workers for temporary
currently valid OMB control number. In provided to MSFWs on an equitable agricultural jobs, which are not attached
addition, notwithstanding any other basis. The NPRM also proposes changes to requests for foreign workers through
provisions of law, no person will be to the definitions of migrant farmworker the H–2A visa program. ETA is
subject to penalty for failing to comply and seasonal farmworker. The including the estimated burden to the
with a collection of information if the Department plans to submit a new ICR public for the completion of ETA Form
collection of information does not that will update ETA 9172 to indicate 790 in addition to the estimated burden
display a currently valid OMB control that Wagner-Peyser programs must for the ETA Form 790B, because
number (44 U.S.C. 3512). document and keep records of PIRL data employers would fill out both forms.
In accordance with the PRA, the element 413 for reportable individuals Affected Public: State Governments,
Department has submitted four ICRs to and align the definitions of migrant Private Sector: Business or other for-
profits, not-for-profit institutions, and describe the minimum contents that staffing, including changes to the
farms. must be included in any complaint logs content of the AOP. The proposed
Obligation to Respond: Required to SWAs create. In addition, the changes will require revision to the AOP
Obtain or Retain Benefits. Department proposes to revise the ETA instructions.
Estimated Total Annual Respondents: Form 5148 to conform with proposed Affected Public: State Governments.
18,180. revisions to the minimum level of Obligation to Respond: Required to
Estimated Total Annual Responses: service indicators to request information Obtain or Retain Benefits.
18,180. regarding outreach contacts per quarter Estimated Total Annual Respondents:
Estimated Total Annual Burden as opposed to per week as currently 57 (every 2 years).
Hours: 11,606. required under § 653.109(h). Estimated Total Annual Responses:
Estimated Total Annual Other Burden Affected Public: State Governments. 38 (every 2 years).
Costs: $0. Obligation to Respond: Required to Estimated Total Annual Burden
Regulations Sections: § 653.501(d)(6) Obtain or Retain Benefits. Hours: 8,136 (every 2 years).
and (10). Estimated Total Annual Respondents: Estimated Total Annual Other Burden
Agency: DOL–ETA. 5,536. Costs: $0 (every 2 years).
Title of Collection: Migrant and Estimated Total Annual Responses: Regulations Sections: §§ 652.215;
Seasonal Farmworker Monitoring 9,050. 653.107(a)(1), (a)(4), (b)(11), and
Report and Complaint/Apparent Estimated Total Annual Burden (d)(2)(ii) through (v).
Violation Form. Hours: 28,240. Interested parties may obtain a copy
Type of Review: Revision. Estimated Total Annual Other Burden free of charge of one or more of the ICRs
OMB Control Number: 1205–0039. Costs: $0. submitted to OMB on the OIRA website
Description: The proposed rule would Regulations Sections: 2 CFR 200.334; at https://www.reginfo.gov/public/do/
require four areas to be changed in this 20 CFR 653.107(b)(8), 653.108, PRAMain. From that page, select
ICR. First, there would be several 653.109(h), and 658.410(c). Department of Labor from the
changes to the required content of the Agency: DOL–ETA. ‘‘Currently under Review’’ dropdown
SMA’s Annual Summary, described at Title of Collection: Wagner-Peyser menu, click the ‘‘Submit’’ button, and
§ 653.108, including a summary of how Employment Service Required Elements find the applicable control number
the SMA is working with the State-level for the Unified or Combined State Plan. among the ICRs displayed.
E.O. Officer, an assurance that the SMA Type of Review: New Collection. As noted in the ADDRESSES section of
is a senior-level official who reports OMB Control Number: 1205–0NEW. this proposed rule, interested parties
directly to the State Administrator or Description: The Department is may send comments about the ICs to the
their designee, an evaluation of SMA requesting a new OMB control number Department, OMB, or both throughout
staffing levels, a summary and analysis for this collection. The request for a new the 60-day comment period. To help
of outreach efforts, and other minor control number is for administrative ensure appropriate consideration, such
edits to language used to describe reasons only. The proposed changes in comments should mention the
content in the summary. To implement this rulemaking described subsequently applicable OMB control number(s).
these proposed changes, the Department will eventually be included in OMB The Department and OMB are
also proposes to revise the ETA Form Control Number 1205–0522 (Expires 01/ particularly interested in comments
5148 to include the proposed content. 31/2023). As a result of the upcoming that:
Second, the Department proposes to expiration date for 1205–0522, the • Evaluate whether the proposed
make two non-substantive corrections to Department will soon begin the process collection of information is necessary
the ETA Form 5148: (1) Adding to request an extension for use of the for the proper performance of the
transportation to the types of apparent ICR as required under the PRA. Once all functions of the agency, including
violations reported in part 1, section E, outstanding actions are final and whether the information will have
item 3; and (2) revising part 3, items 2 complete, the Department intends to practical utility;
and 3 so that the field check submit a nonmaterial change request to • Evaluate the accuracy of the
requirements conform to the existing transfer the burden from the new ICR to agency’s estimate of the burden of the
regulation at § 653.501. The Department the existing OMB control number for the proposed collection of information,
is adding transportation to the types of Required Elements for Submission of including the validity of the
apparent violations because the types of the Unified or Combined State Plan and methodology and assumptions used;
apparent violations listed on the form Plan Modifications under the Workforce • Enhance the quality, utility, and
are intended to exactly mirror the types Innovation and Opportunity Act (1205– clarity of the information to be
of complaints reported in section D, 0522) and proceed to discontinue the collected; and
item 2. Transportation was use of the new control number. • Minimize the burden of the
inadvertently omitted from the prior ICR The proposed rule would require all collection of information on those who
revision. Third, the Department States to provide Wagner-Peyser Act ES are to respond, including through
proposes to add a new IC to conform services through State merit staff. The appropriate automated, electronic,
with the proposed change to Department proposes to create a new mechanical, or other technological
§ 653.107(b)(8), which is proposed to ICR to require Unified or Combined collection techniques or other forms of
require that ES Office Managers State Plans to describe how the State information technology (e.g., permitting
maintain MSFW outreach logs on file will staff labor exchange services under electronic submission of responses).
for at least 3 years, to comply with 2 the Wagner-Peyser Act using State merit
CFR 200.334. Fourth, the Department staff. Similarly, the Department D. Executive Order 13132 (Federalism)
proposes to add an IC to this ICR to proposes to reinstitute the SWA’s E.O. 13132 requires Federal agencies
explain the recordkeeping requirements requirement to provide assurances that to ensure that the principles of
established at § 658.410(c) regarding it will use State merit staff to deliver ES Federalism animating our Constitution
maintaining a central complaint log. services. The NPRM also proposes guide the executive departments and
The Department does not propose to several clarifications regarding outreach agencies in the formulation and
establish a required form, but rather to and significant MSFW one-stop center implementation of policies and to
further the policies of the Unfunded G. Plain Language ■ e. Revising the definitions of
Mandates Reform Act of 1995 (UMRA). E.O. 12866, E.O. 13563, and the ‘‘Occupational Information Network
Further, agencies must strictly adhere to Presidential Memorandum of June 1, (O*NET),’’ ‘‘O*NET–SOC,’’ ‘‘Outreach
constitutional principles. Agencies must 1998 (Plain Language in Government staff,’’ ‘‘Participant,’’ ‘‘Placement,’’
closely examine the constitutional and Writing), direct executive departments ‘‘Reportable individual,’’ ‘‘Respondent,’’
statutory authority supporting any and agencies to use plain language in all ‘‘Seasonal farmworker,’’ ‘‘Significant
action that would limit the rulemaking documents published in the MSFW one-stop centers,’’ and
policymaking discretion of the States Federal Register. The goal is to make ‘‘Significant MSFW States’’;
and they must carefully assess the ■ f. Removing the definitions of
the government more responsive,
necessity for any such action. To the accessible, and understandable in its ‘‘Significant multilingual MSFW one-
extent practicable, State and local communications with the public. stop centers’’ and ‘‘State Workforce
officials must be consulted before any Accordingly, the Department drafted Agency (SWA) official’’; and
such action is implemented. The ■ g. Revising the definition of ‘‘Wagner-
this NPRM in plain language.
Department has reviewed the proposed Peyser Act Employment Service (ES)
rule in light of these requirements and List of Subjects also known as Employment Service
has concluded that it is properly 20 CFR Part 651 (ES).’’
premised on the statutory authority The addition and revisions read as
given to the Secretary to set standards Employment, Grant programs—labor. follows:
under the Wagner-Peyser Act. 20 CFR Part 652 § 651.10 Definitions of terms used in this
Accordingly, the Department has part and parts 652, 653, 654, and 658 of this
reviewed this proposed rule and has Employment, Grant programs—labor,
Reporting and recordkeeping chapter.
concluded that the rulemaking has no In addition to the definitions set forth
substantial direct effects on States, the requirements.
in sec. 3 of the Workforce Innovation
relationship between the National 20 CFR Part 653 and Opportunity Act (WIOA), codified
Government and the States, or the Agriculture, Employment, Equal at 29 U.S.C. 3101 et seq., the following
distribution of power and employment opportunity, Grant definitions apply to the regulations in
responsibilities among the various programs—labor, Migrant labor, parts 652, 653, 654, and 658 of this
levels of government as described by Reporting and recordkeeping chapter:
E.O. 13132. Therefore, the Department requirements.
has concluded that this proposed rule * * * * *
does not have a sufficient Federalism 20 CFR Part 658 Apparent violation means a suspected
implication to require further agency violation of employment-related laws or
Administrative practice and employment service (ES) regulations, as
action or analysis. procedure, Employment, Grant set forth in § 658.419 of this chapter.
E. Unfunded Mandates Reform Act of programs—labor, Reporting and Applicant holding office means an ES
1995 recordkeeping requirements. office that is in receipt of a clearance
For the reasons discussed in the order and has access to U.S. workers
Title II of UMRA, Public Law 104–4,
preamble, the Department of Labor who may be willing and available to
requires each Federal agency to prepare
proposes to amend 20 CFR parts 651, perform farmwork on less than year-
a written statement assessing the effects
652, 653, and 658, as follows: round basis.
of any Federal mandate in a final agency
rule that may result in an expenditure PART 651—GENERAL PROVISIONS * * * * *
of $100 million or more (adjusted GOVERNING THE WAGNER-PEYSER Bona fide occupational qualification
annually for inflation with the base year ACT EMPLOYMENT SERVICE (BFOQ) means that an employment
1995) in any one year by State, local, decision or request based on age, sex,
and tribal governments, in the aggregate, ■ 1. The authority citation for part 651 national origin, or religion is based on
or by the private sector. This proposed continues to read as follows: a finding that such characteristic is
rule, if finalized, does not exceed the Authority: 29 U.S.C. 49a; 38 U.S.C. part III, necessary to the individual’s ability to
$100 million expenditure in any one 4101, 4211; Secs. 503, 3, 189, Pub. L. 113– perform the job in question. Since a
year when adjusted for inflation. 128, 128 Stat. 1425 (Jul. 22, 2014). BFOQ is an exception to the general
Therefore, the requirements of title II of ■ 2. Amend § 651.10 by: prohibition against discrimination on
UMRA do not apply, and the ■ a. Revising the introductory text; the basis of age, sex, national origin, or
Department has not prepared a ■ b. Adding in alphabetical order a religion, it must be interpreted narrowly
statement under UMRA. definition for ‘‘Apparent violation’’; in accordance with the Equal
■ c. Revising the definitions of Employment Opportunity Commission
F. Executive Order 13175 (Indian Tribal ‘‘Applicant holding office,’’ ‘‘Bona fide regulations set forth at 29 CFR parts
Governments) occupational qualification (BFOQ),’’ 1604, 1605, and 1627.
The Department has reviewed this ‘‘Career services,’’ ‘‘Clearance order,’’ Career services means the services
proposed rule under the terms of E.O. ‘‘Complaint System Representative,’’ described in sec. 134(c)(2) of WIOA and
13175 and DOL’s Tribal Consultation ‘‘Decertification,’’ ‘‘Employment and § 678.430 of this chapter.
Policy and has concluded that the Training Administration (ETA),’’ Clearance order means a job order
changes to regulatory text would not ‘‘Employment Service (ES) office,’’ that is processed through the clearance
have tribal implications. These changes ‘‘Employment Service (ES) Office system under the Agricultural
do not have substantial direct effects on Manager,’’ ‘‘Employment Service (ES) Recruitment System (ARS) at part 653,
one or more Indian tribes, the staff,’’ ‘‘Field checks,’’ ‘‘Field visits,’’ subpart F, of this chapter.
relationship between the Federal ‘‘Hearing Officer,’’ ‘‘Interstate clearance * * * * *
government and Indian tribes, nor the order,’’ ‘‘Intrastate clearance order,’’ and Complaint System Representative
distribution of power and ‘‘Migrant farmworker’’; means a trained ES staff individual who
responsibilities between the Federal ■ d. Removing the definition of is responsible for processing
government and Tribal Governments. ‘‘Migrant food processing worker’’; complaints.
Decertification means the rescission preside at Department administrative satisfying all applicable programmatic
by the Secretary of Labor (Secretary) of hearings. requirements for the provision of
the year-end certification made under * * * * * services, such as eligibility
sec. 7 of the Wagner-Peyser Act to the Interstate clearance order means an determination. (See § 677.150(a) of this
Secretary of the Treasury that the State agricultural clearance order for chapter.)
agency may receive funds authorized by temporary employment (employment on (1) The following individuals are not
the Wagner-Peyser Act. a less than year-round basis) describing Participants, subject to
* * * * * one or more hard-to-fill job openings, § 677.150(a)(3)(ii) and (iii) of this
Employment and Training which an ES office uses to request chapter:
Administration (ETA) means the recruitment assistance from other ES (i) Individuals who only use the self-
component of the Department that offices in a different State. service system; and
administers Federal government job Intrastate clearance order means an (ii) Individuals who receive
training and worker dislocation agricultural clearance order for information-only services or activities.
programs, Federal grants to States for temporary employment (employment on (2) ES participants must be included
public ES programs, and unemployment a less than year-round basis) describing in the program’s performance
insurance benefits. These services are one or more hard-to-fill job openings, calculations.
provided primarily through State and which an ES office uses to request Placement means the hiring by a
local workforce development systems. recruitment assistance from all other ES public or private employer of an
* * * * * offices within the State. individual referred by the ES office for
Employment Service (ES) office means * * * * * a job or an interview, provided that the
a site that provides ES services as a one- Migrant farmworker means a seasonal ES office completed all the following
stop partner program. A site must be farmworker (as defined in this section) steps:
colocated in a one-stop center consistent who travels to the job site so that the (1) Prepared a job order form prior to
with the requirements of §§ 678.305 farmworker is not reasonably able to referral, except in the case of a job
through 678.315 of this chapter. return to their permanent residence development contact on behalf of a
Employment Service (ES) Office within the same day. specific participant;
Manager means the ES staff person in * * * * * (2) Made prior arrangements with the
charge of ES services provided in a one- Occupational Information Network employer for the referral of an
stop center. (O*NET) means the online reference individual or individuals;
* * * * * database which contains detailed (3) Referred an individual who had
Employment Service (ES) staff means descriptions of U.S. occupations, not been specifically designated by the
State government personnel who are distinguishing characteristics, employer, except for referrals on
employed according to the merit-system classification codes, and information on agricultural job orders for a specific
principles described in 5 CFR part 900, tasks, knowledge, skills, abilities, and crew leader or worker;
subpart F—Standards for a Merit System work activities as well as information on (4) Verified from a reliable source,
of Personnel Administration, and who interests, work styles, and work values. preferably the employer, that the
are funded, in whole or in part, by * * * * * individual had entered on a job; and
Wagner-Peyser Act funds. ES staff O*NET–SOC means the occupational (5) Appropriately recorded the
includes a State Workforce Agency codes and titles used in the O*NET placement.
(SWA) official. system, based on and grounded in the * * * * *
* * * * * Standard Occupational Classification Reportable individual means an
Field checks means unannounced (SOC), which are the titles and codes individual who has taken action that
appearances by ES staff and/or other utilized by Federal statistical agencies to demonstrates an intent to use ES
State or Federal staff at agricultural classify workers into occupational services and who meets specific
worksites to which ES placements have categories for the purpose of collecting, reporting criteria of the Wagner-Peyser
been made through the intrastate or calculating, and disseminating data. The Act (see § 677.150(b) of this chapter),
interstate clearance system to ensure SOC system is issued by the Office of including:
that conditions are as stated on the Management and Budget and the (1) Individuals who provide
clearance order and that the employer is Department is authorized to develop identifying information;
not violating an employment-related additional detailed O*NET occupations (2) Individuals who only use the self-
law. within existing SOC categories. The service system; or
Field visits means announced Department uses O*NET–SOC titles and (3) Individuals who only receive
appearances by State Monitor codes for the purposes of collecting information-only services or activities.
Advocates, Regional Monitor Advocates, descriptive occupational information Respondent means the individual or
the National Monitor Advocate (or and for State reporting of data on entity alleged to have committed the
National Monitor Advocate team training, credential attainment, and violation described in the complaint,
member(s)), or outreach staff to the placement in employment by such as the employer, service provider,
working and living areas of migrant and occupation. or State agency.
seasonal farmworkers (MSFWs), to * * * * * Seasonal farmworker means an
discuss ES services, farmworker rights Outreach staff means ES staff with the individual who is employed, or was
and protections, and other employment- responsibilities described in employed in the past 12 months, in
related programs with MSFWs, crew § 653.107(b) of this chapter. State farmwork (as defined in this section) of
leaders, and employers. Monitor Monitor Advocates are not considered a seasonal or other temporary nature
Advocates or outreach staff must keep outreach staff. and is not required to be absent
records of each such visit. Participant means a reportable overnight from their permanent place of
* * * * * individual who has received services residence. Labor is performed on a
Hearing Officer means a Department other than the services described in seasonal basis where, ordinarily, the
Administrative Law Judge, designated to § 677.150(a)(3) of this chapter, after employment pertains to or is of the kind
exclusively performed at certain seasons conditions except those pertaining to § 652.215 What staffing models must be
or periods of the year and which, from audits or discrimination must be used to deliver services in the Employment
its nature, may not be continuous or determined and processed in Service?
carried on throughout the year. Workers accordance with part 658, subpart H, of (a) Staffing requirement. The
who move from one seasonal activity to this chapter. Secretary requires that the labor
another, while employed in farmwork, * * * * * exchange services described in § 652.3
are employed on a seasonal basis even (j) Nondiscrimination requirements. be provided by ES staff, as defined in
though they may continue to be States must: part 651 of this chapter.
employed during a major portion of the (1) * * * (b) Effective date. This section
year. Workers are employed on a (2) Assure that discriminatory job becomes effective [60 DAYS AFTER
temporary basis where they are orders will not be accepted, except DATE OF PUBLICATION OF THE
employed for a limited time only or where the stated requirement is a bona FINAL RULE IN THE Federal Register].
their performance is contemplated for a fide occupational qualification (BFOQ). (c) Compliance date. All obligations
particular piece of work, usually of See, generally, 42 U.S.C. 2000e–(2)(e) in this section become enforceable [18
short duration. Generally, employment and 29 CFR parts 1604, 1606, and 1625. MONTHS AFTER EFFECTIVE DATE OF
which is contemplated to continue (3) Assure that ES offices are in THE FINAL RULE].
indefinitely is not temporary. compliance with the veteran referral
and job listing requirements at 41 CFR PART 653—SERVICES OF THE
* * * * * WAGNER-PEYSER ACT EMPLOYMENT
Significant MSFW one-stop centers 60–300.84.
SERVICE SYSTEM
are those designated by the Department * * * * *
and include those ES offices where ■ 5. Revise the heading for Subpart C to ■ 10. The authority citation for part 653
MSFWs account for 10 percent or more read as follows: continues to read as follows:
of annual participants or reportable Authority: Secs. 167, 189, 503, Public Law
individuals in ES and those local ES Subpart C—Employment Service
113–128, 128 Stat. 1425 (Jul. 22, 2014); 29
offices that the administrator determines Services in a One-Stop Delivery U.S.C. chapter 4B; 38 U.S.C. part III, chapters
must be included due to special System Environment 41 and 42.
circumstances such as an estimated ■ 6. Amend § 652.204 by revising the ■ 11. Amend § 653.100 by revising
large number of MSFWs in the service section heading and the first sentence to paragraph (a) to read as follows:
area. In no event may the number of read as follows:
significant MSFW one-stop centers be § 653.100 Purpose and scope of subpart.
less than 100 centers on a nationwide § 652.204 Must funds authorized under the (a) This subpart sets forth the
basis. Governor’s Reserve flow through the one-
principal regulations of the Wagner-
Significant MSFW States are those stop delivery system?
Peyser Act Employment Service (ES)
States designated by the Department No, sec. 7(b) of the Wagner-Peyser Act concerning the provision of services for
and must include the 20 States with the provides that 10 percent of the State’s MSFWs consistent with the requirement
highest estimated number of MSFWs. allotment under the Wagner-Peyser Act that all services of the workforce
* * * * * is reserved for use by the Governor for development system be available to all
Wagner-Peyser Act Employment performance incentives, supporting job seekers in an equitable and
Service (ES) also known as Employment exemplary models of service delivery, nondiscriminatory fashion. This
Service (ES) means the national system professional development and career includes ensuring MSFWs have access
of public ES offices described under the advancement of ES staff as applicable, to these services in a way that meets
Wagner-Peyser Act. ES services are and services for groups with special their unique needs. MSFWs must
delivered through a nationwide system needs. * * * receive services on a basis which is
■ 7. Amend § 652.205 by revising
of one-stop centers, managed by SWAs qualitatively equivalent and
and the various local offices of the paragraph (b)(3) to read as follows: quantitatively proportionate to services
SWAs, and funded by the United States § 652.205 May funds authorized under the provided to non-MSFWs.
Department of Labor. Wagner-Peyser Act be used to supplement * * * * *
* * * * * funding for labor exchange programs ■ 12. Revise § 653.101 to read as
authorized under separate legislation? follows:
PART 652—ESTABLISHMENT AND * * * * *
FUNCTIONING OF STATE (b) * * * § 653.101 Provision of services to migrant
EMPLOYMENT SERVICE (3) The activity provides services that and seasonal farmworkers.
are coordinated with ES services; and SWAs must ensure that ES staff at
■ 3. The authority citation for part 652 one-stop centers offer MSFWs the full
continues to read as follows: * * * * *
■ 8. Amend § 652.207 by revising the range of career and supportive services,
Authority: 29 U.S.C. 491–2; Secs. 189 and section heading and paragraph (a) to benefits and protections, and job and
503, Public Law 113–128, 128 Stat. 1425 (Jul. read as follows: training referral services as are provided
22, 2014). to non-MSFWs. SWAs must ensure ES
■ 4. Amend § 652.8 by revising § 652.207 How does a State meet the staff at the one-stop centers tailor such
requirement for universal access to ES services in a way that accounts for

paragraphs (h), introductory text of
Employment Service services? individual MSFW preferences, needs,
paragraph (j), (j)(2), and (3) to read as
follows: (a) A State has discretion in how it skills, and the availability of job and
meets the requirement for universal training opportunities, so that MSFWs
§ 652.8 Administrative provisions. access to ES services. In exercising this are reasonably able to participate in the
* * * * * discretion, a State must meet the ES.
(h) Other violations. Violations or Wagner-Peyser Act’s requirements. ■ 13. Amend § 653.102 by revising the
alleged violations of the Wagner-Peyser * * * * * third sentence and removing the fourth
Act, regulations, or grant terms and ■ 9. Revise § 652.215 to read as follows: sentence to read as follows:
§ 653.102 Job information. (3) When hiring or assigning outreach (3) After making the presentation,
* * * SWAs must ensure ES staff at staff: outreach staff must urge the MSFWs to
one-stop centers provide assistance to (i) SWAs must seek and put a strong go to the local one-stop center to obtain
MSFWs to access job order information emphasis on hiring and assigning the full range of employment and
easily and efficiently. qualified candidates who speak the training services.
■ 14. Amend § 653.103 by revising language of a significant proportion of (4) If an MSFW cannot or does not
paragraphs (a) through (c) to read as the State MSFW population; and wish to visit the local one-stop center,
follows: (A) Who are from MSFW outreach staff must offer to provide on-
backgrounds; or site the following:
§ 653.103 Process for migrant and (B) Who have substantial work (i) Assistance in the preparation of
seasonal farmworkers to participate in experience in farmworker activities. applications for ES services;
workforce development activities.
(ii) SWAs must inform farmworker * * * * *
(a) Each ES office must determine organizations and other organizations (vi) As needed, assistance in making
whether participants and reportable with expertise concerning MSFWs of job appointments and arranging
individuals are MSFWs as defined at openings and encourage them to refer transportation for individual MSFW(s)
§ 651.10 of this chapter. qualified applicants to apply. or members of their family to and from
(b) SWAs must comply with the (4) Each SWA must employ an local one-stop centers or other
language access and assistance adequate number of outreach staff to appropriate agencies.
requirements at 29 CFR 38.9 with regard conduct MSFW outreach in each area of
to all limited English proficient (LEP) * * * * *
the State to contact a majority of (7) Outreach staff must be trained in
individuals, including MSFWs who are MSFWs in all of the SWA’s service areas
LEP individuals, as defined at 29 CFR one-stop center procedures and in the
annually. In the 20 States with the services, benefits, and protections
38.4(hh). This includes ensuring ES staff highest estimated year-round MSFW
comply with these language access and afforded MSFWs by the ES, including
activity, as identified by the training on protecting farmworkers
assistance requirements. Department, there must be full-time,
(c) One-stop centers must provide against sexual harassment, sexual
year-round outreach staff to conduct coercion, assault, and human
MSFWs a list of available career and outreach duties. Full-time means each
supportive services. trafficking. Such trainings are intended
individual outreach staff person must to help outreach staff identify when
* * * * * spend 100 percent of their time on the such issues may be occurring in the
■ 15. Amend § 653.107 by: outreach responsibilities described in fields and how to document and refer
■ a. Revising the section heading and paragraph (b) of this section. For the the cases to the appropriate enforcement
paragraphs (a)(1), (a)(2)(i) and (ii), and remainder of the States, there must be agencies. Outreach staff also must be
(a)(3)(i); year-round part-time outreach staff, and trained in the Complaint System
■ b. Adding paragraphs (a)(3)(i)(A) and during periods of the highest MSFW procedures at part 658, subpart E, of this
(B); and activity, there must be full-time chapter and be aware of the local, State,
■ c. Revising paragraphs (a)(3)(ii), (a)(4), outreach staff. These staffing levels must regional, and national enforcement
the first sentence of (a)(5), introductory align with and be supported by agencies that would be appropriate to
text of paragraph (b), (b)(1), (b)(3), information about the estimated number receive referrals. The program for such
introductory text of (b)(4), (b)(4)(i) and of farmworkers in the State and the training must be formulated by the State
(vi), (b)(7), the second sentence of (b)(8), farmworker activity in the State as Administrator, pursuant to uniform
and paragraphs (b)(11), (d)(2)(ii) through demonstrated in the State’s Agricultural guidelines developed by ETA. The SMA
(v), and (d)(4) and (5). Outreach Plan (AOP) pursuant to must be given an opportunity to review
The revisions and additions read as paragraph (d) of this section. All and comment on the State’s program.
follows: outreach staff must be multilingual, if (8) * * * These records must include
§ 653.107 Outreach responsibilities and warranted by the characteristics of the a daily log, a copy of which must be
Agricultural Outreach Plan. MSFW population in the State, and sent monthly to the ES Office Manager
(a) * * * must spend a majority of their time in and maintained on file for at least 3
(1) Each SWA must ensure outreach the field. years. * * *
staff conduct outreach as described in (5) The SWA must publicize the
* * * * *
paragraph (b) of this section on an availability of ES services through such (11) Outreach staff in significant
ongoing basis. SWA Administrators means as newspaper and electronic MSFW one-stop centers must conduct
must ensure State Monitor Advocates media publicity. * * * especially vigorous outreach in their
(SMAs) and outreach staff coordinate * * * * * service areas. Outreach activities must
activities with WIOA title I sec. 167 (b) Outreach staff responsibilities. align with and be supported by
grantees as well as with public and Outreach staff must locate and contact information provided in the State’s AOP
private community service agencies and MSFWs who are not being reached by pursuant to paragraph (d) of this
MSFW groups. WIOA title I sec. 167 the normal intake activities conducted section.
grantees’ activities involving MSFWs by the ES offices. Outreach staff * * * * *
does not substitute for SWA outreach responsibilities include the activities (d) * * *
responsibilities. identified in paragraphs (b)(1) through (2) * * *

(2) * * * (11) of this section. (ii) Explain the materials, tools, and
(i) Communicate the full range of (1) Outreach staff must explain to resources the State will use for outreach;
workforce development services to MSFWs at their working, living, or (iii) Describe the SWA’s proposed
MSFWs; and gathering areas (including day-haul outreach activities to contact MSFWs
(ii) Conduct thorough outreach efforts sites), by means of written and oral who are not being reached by the
with extensive follow-up activities presentations either spontaneous or normal intake activities conducted by
identified at paragraph (b)(5) of this recorded, the following: * * * the one-stop centers, including
section. * * * * * identifying the number of full-time and
part-time outreach staff positions in the Administrator, except that if a designee afforded by the ES regulations to
State and demonstrating that there is is selected, they must not be the MSFWs by the SWA and ES offices.
sufficient outreach staff to contact a individual who has direct program This includes:
majority of MSFWs in all the State’s oversight of the ES; and (i) Monitoring compliance with
service areas annually; (3) Has the knowledge, skills, and § 653.111;
(iv) Describe the activities planned for abilities necessary to fulfill the (ii) Monitoring the ES services that
providing the full range of ES services responsibilities as described in this the SWA and one-stop centers provide
to the agricultural community, subpart. to MSFWs to assess whether they are
including both MSFWs and agricultural (d) The SMA must have sufficient qualitatively equivalent and
employers, through the one-stop authority, staff, resources, and access to quantitatively proportionate to the
centers; and top management to monitor compliance services that the SWA and one-stop
(v) Include a description of how the with the ES regulations. Staff assigned centers provide to non-MSFWs; and
SWA intends to provide ES staff in to the SMA are intended to help the (iii) Reviewing the appropriateness of
significant MSFW one-stop centers in SMA carry out the duties set forth in informal resolution of complaints and
accordance with § 653.111. this section and must not perform work apparent violations as documented in
* * * * * that conflicts with any of the SMA’s the complaint logs.
(4) The AOP must be submitted in monitoring duties, such as outreach (2) Without delay, must advise the
accordance with paragraph (d)(1) of this responsibilities required by § 653.107, SWA and ES offices of problems,
section and planning guidance issued ARS processing under subpart F of this deficiencies, or improper practices in
by the Department. part, and complaint processing under the delivery of services and protections
(5) The Annual Summaries required subpart E of part 658. The number of ES afforded by these regulations and, if
at § 653.108(u) must update the staff positions assigned to the SMA warranted, specify the corrective
Department on the SWA’s progress must be determined by reference to the action(s) necessary to address these
toward meeting the objectives set forth number of MSFWs in the State, (as deficiencies. When the SMA finds
in the AOP. measured at the time of the peak MSFW corrective action(s) necessary, the ES
population), and the need for Office Manager or other appropriate ES
* * * * *
monitoring activity in the State. staff must develop a corrective action
■ 16. Revise § 653.108 to read as
(e) The SMA must devote full-time plan in accordance with the
follows:
staffing to SMA functions. No State may requirements identified at paragraph
§ 653.108 State Workforce Agency and dedicate less than full-time staffing for (h)(3)(v) of this section. The SMA also
State Monitor Advocate responsibilities. the SMA position, unless the Regional must advise the SWA on means to
(a) State Administrators must ensure Administrator, with input from the improve the delivery of services.
their SWAs monitor their own Regional Monitor Advocate, provides (3) Participate in on-site reviews of
compliance with ES regulations in written approval. Any State that one-stop centers on a regular basis
serving MSFWs on an ongoing basis. proposes less than full-time dedication (regardless of whether or not they are
The State Administrator has overall must demonstrate to the Regional designated significant MSFW one-stop
responsibility for SWA self-monitoring. Administrator and Regional Monitor centers) using the procedures set forth
The State Administrator and ES staff Advocate that all SMA functions can be in paragraphs (h)(3)(i) through (vii) of
must not retaliate against staff, effectively performed with part-time this section.
including the SMA, for self-monitoring staffing. (i) Before beginning an onsite review,
or raising any issues or concerns (f) All SMAs and their staff must the SMA or review staff must study:
regarding noncompliance with the ES attend training session(s) offered by the (A) Program performance data;
regulations. Regional Monitor Advocate(s) and (B) Reports of previous reviews;
(b) The State Administrator must National Monitor Advocate and their (C) Corrective action plans developed
appoint an SMA. The State team and those necessary to maintain as a result of previous reviews;
Administrator must inform farmworker competency and enhance the SMA’s (D) Complaint logs, as required by the
organizations and other organizations understanding of the unique needs of regulations under part 658 of this
with expertise concerning MSFWs of farmworkers. Such trainings must chapter, including logs documenting the
the opening and encourage them to refer include those identified by the SMA’s informal resolution of complaints and
qualified applicants to apply. Among Regional Monitor Advocate and may apparent violations; and
qualified candidates, the SWAs must include those offered by the (E) Complaints elevated from the
seek and put a strong emphasis on Occupational Safety and Health office or concerning the office.
hiring persons: Administration, the Department’s Wage (ii) The SMA must ensure that the
(1) Who are from MSFW backgrounds; and Hour Division, U.S. Equal onsite review format, developed by
or Employment Opportunity Commission, ETA, is used as a guideline for onsite
(2) Who speak the language of a the Immigrant and Employee Rights reviews.
significant proportion of the State Section of the Department of Justice’s (iii) Upon completion of an onsite
MSFW population; or Civil Rights Division, the Department’s monitoring review, the SMA must hold
(3) Who have substantial work Civil Rights Center, and other one or more wrap-up sessions with the
experience in farmworker activities. organizations offering farmworker- ES Office Manager and staff to discuss
(c) The SMA must be an individual related information. any findings and offer initial
who: (g) The SMA must provide any recommendations and appropriate
(1) Is a senior-level ES staff employee; relevant documentation requested from technical assistance.
(2) Reports directly to the State the SWA by the Regional Monitor (iv) After each review, the SMA must
Administrator or State Administrator’s Advocate or the National Monitor conduct an in-depth analysis of the
designee, such as a director or other Advocate. review data. The conclusions, including
appropriately titled official in the State (h) The SMA must: findings and areas of concern and
Administrator’s office, who has the (1) Conduct an ongoing review of the recommendations of the SMA, must be
authority to act on behalf of the State delivery of services and protections put in writing and must be sent directly
to the State Administrator, to the official complaints relating to MSFWs and must (2) To identify the areas of non-
of the SWA with authority over the ES ensure that the ES Office Manager compliance.
office, and other appropriate SWA transmits copies of the Complaint (s) The SMA must have full access to
officials. System logs pursuant to part 658, all statistical and other MSFW-related
(v) If the review results in any subpart E, of this chapter to the SWA. information gathered by SWAs and ES
findings of noncompliance with the (k) The SMA must serve as an offices and may interview ES staff with
regulations under this chapter, the advocate to improve services for respect to reporting methods. After each
SMA’s report must include the MSFWs. review, the SMA must consult, as
necessary corrective action(s). To (l) The SMA must establish an necessary, with the SWA and ES offices
resolve the findings, the ES Office ongoing liaison with WIOA sec. 167 and provide technical assistance to
Manager or other appropriate ES staff National Farmworker Jobs Program ensure accurate reporting.
must develop and propose a written (NFJP) grantees and other organizations (t) The SMA must review and
corrective action plan. The plan must be serving farmworkers, employers, and comment on proposed State ES
approved or revised by SWA officials employer organizations in the State. directives, manuals, and operating
and the SMA. The plan must include (m) The SMA must establish an instructions relating to MSFWs and
the actions required to correct any ongoing liaison with the State-level must ensure:
compliance issues within 30 business Equal Opportunity (E.O.) Officer. (1) That they accurately reflect the
days or, if the plan allows for more than (n) The SMA must meet (either in requirements of the regulations; and
30 business days for full compliance, person or by alternative means), at (2) That they are clear and workable.
the length of and the reasons for the minimum, quarterly, with The SMA also must explain and make
extended period and the major interim representatives of the organizations available at the requestor’s cost,
steps to correct the compliance issues pursuant to paragraphs (l) and (m) of pertinent directives and procedures to
must be specifically stated. SWAs are this section, to receive input on employers, employer organizations,
responsible for assuring and improving coordination with ES offices farmworkers, farmworker organizations,
documenting that the ES office is in or improving the coordination of and other parties expressing an interest
compliance within the time period services to MSFWs. To foster such in a readily identifiable directive or
designated in the plan. collaboration, the SMAs must procedure issued and receive
(vi) SWAs must submit to the communicate freely with these suggestions on how these documents
appropriate ETA regional office copies organizations. The SMA must also can be improved.
of the onsite review reports and establish Memorandums of (u) The SMA must prepare for the
corrective action plans for ES offices. Understanding (MOUs) with the NFJP State Administrator, the Regional
(vii) The SMA may delegate the grantees and may establish MOUs with Monitor Advocate, and the National
review described in paragraph (h)(3) of other organizations serving farmworkers Monitor Advocate an Annual Summary
this section to the SMA’s staff, if the as appropriate. describing how the State provided ES
SMA finds such delegation necessary. In (o) The SMA must conduct frequent services to MSFWs within the State
such event, the SMA is responsible for field visits to the working, living, and based on statistical data, reviews, and
and must approve the written report of gathering areas of MSFWs, and must other activities as required in this
the review. discuss the SWA’s provision of ES chapter. The summary must include:
(4) Ensure all significant MSFW one- services and other employment-related (1) A description of the activities
stop centers not reviewed onsite by programs with MSFWs, crew leaders, undertaken during the program year by
Federal staff are reviewed at least once and employers. Records must be kept of the SMA pertaining to their
per year by the SMA or their staff, and each such field visit. responsibilities set forth in this section
that, if necessary, those ES offices in (p) The SMA must participate in the and other applicable regulations in this
which significant problems are revealed appropriate regional public meeting(s) chapter.
by required reports, management held by the Department of Labor (2) An assurance that the SMA is a
information, the Complaint System, or Regional Farm Labor Coordinated senior-level official who reports directly
other means are reviewed as soon as Enforcement Committee, other to the State Administrator or the State
possible. Occupational Safety and Health Administrator’s designee as described at
(5) Review and approve the SWA’s Administration and Wage and Hour paragraph (c) of this section.
AOP. Division task forces, and other (3) An evaluation of SMA staffing
(6) On a regular basis, review outreach committees as appropriate. levels, including:
staff’s daily logs and other reports (q) The SMA must ensure that (i) An assurance the SMA devotes all
including those showing or reflecting outreach efforts in all significant MSFW of their time to Monitor Advocate
the outreach staff’s activities. one-stop centers are reviewed at least functions or, if the SMA conducts their
(7) Write and submit annual yearly. This review will include functions on a part-time basis, an
summaries to the State Administrator accompanying at least one outreach staff assessment of whether all SMA
with a copy to the Regional from each significant MSFW one-stop functions are able to be effectively
Administrator and the National Monitor center on field visits to MSFWs’ performed on a part-time basis; and
Advocate. working, living, and/or gathering areas. (ii) An assessment of whether the
(i) The SMA must participate in The SMA must review findings from performance of SMA functions requires
Federal reviews conducted pursuant to these reviews with the ES Office increased time by the SMA (if part-time)
part 658, subpart G, of this chapter, as Managers. or an increase in the number of ES staff
requested by the Regional or National (r) The SMA must review on at least assigned to assist the SMA in the
Monitor Advocate. a quarterly basis all statistical and other performance of SMA functions, or both.
(j) The SMA must monitor the MSFW-related data reported by ES (4) A summary of the monitoring
performance of the Complaint System, offices in order: reviews conducted by the SMA,
as set forth at §§ 658.400 and 658.401 of (1) To determine the extent to which including:
this chapter. The SMA must review the the SWA has complied with the ES (i) A description of any problems,
ES office’s informal resolution of regulations; and deficiencies, or improper practices the
SMA identified in the delivery of The revision, redesignation, and Advocate, as part of their regular
services; additions read as follows: reviews of SWA compliance with these
(ii) A summary of the actions taken by regulations, must monitor the extent to
§ 653.109 Data collection and performance which the SWA has complied with its
the SWA to resolve the problems,
accountability measures.
deficiencies, or improper practices obligations under paragraph (a) of this
described in its service delivery; and * * * * * section.
(iii) A summary of any technical (b) * * *
(9) Agricultural clearance orders * * * * *
assistance the SMA provided for the ■ 20. Amend § 653.501 by:
SWA, ES offices, and outreach staff. (including field checks), MSFW
■ a. Revising the introductory text of
complaints and apparent violations, and
(5) A summary and analysis of the paragraph (a) and paragraph (a)(1);
monitoring activities;
outreach efforts undertaken by all ■ b. Adding paragraph (b)(4);
(10) The number of reportable
significant and non-significant MSFW ■ c. Revising paragraph (c)(3)
individuals and participants who are
ES offices, as well as the results of those introductory text; and
MSFWs; and
efforts, and an analysis of whether the ■ d. Revising the first sentence in the
(11) Any other data required by the
outreach levels and results were introductory text of paragraph (d)(1) and
Department.
adequate. paragraphs (d)(3), (6), (10), and (11).
(6) A summary of the State’s actions * * * * * The revisions and additions read as
taken under the Complaint System (g) Meet equity indicators that address follows:
described in part 658, subpart E, of this ES controllable services and include, at
chapter, identifying any challenges, a minimum, individuals referred to a § 653.501 Requirements for processing
job, receiving job development, and clearance orders.
complaint trends, findings from reviews
of the Complaint System, trainings referred to supportive or career services. (a) Assessment of need. No ES staff
offered throughout the year, and steps (h) Meet minimum levels of service in may place a job order seeking workers
taken to inform MSFWs and employers, significant MSFW States. That is, only to perform farmwork into intrastate or
and farmworker advocacy groups about significant MSFW States will be interstate clearance unless:
the Complaint System. required to meet minimum levels of (1) The ES office and employer have
service to MSFWs. Minimum level of attempted and have not been able to
(7) A summary of how the SMA is
service indicators must include, at a obtain sufficient workers within the
working with WIOA sec. 167 NFJP
minimum, individuals placed in a job, local labor market area; or
grantees, the State-level E.O. Officer,
individuals placed long-term (150 days * * * * *
and other organizations serving
or more) in a non-agricultural job, a (b) * * *
farmworkers, employers, and employer
review of significant MSFW ES offices, (4) Prior to placing a job order into
organizations in the State, and an
field checks conducted, outreach intrastate or interstate clearance, ES staff
assurance that the SMA is meeting at
contacts per quarter, and processing of must consult the Department’s Office of
least quarterly with these individuals
complaints. The determination of the Foreign Labor Certification and Wage
and representatives of these
minimum service levels required of and Hour Division debarment lists. If
organizations.
significant MSFW States must be based the employer requesting access to the
(8) A summary of the statistical and
on the following: clearance system is currently debarred
other MSFW-related data and reports
(1) Past SWA performance in serving or disqualified from participating in one
gathered by SWAs and ES offices for the
MSFWs, as reflected in on-site reviews of the Department’s foreign labor
year, including an overview of the
and data collected under paragraph (b) certification programs, the SWA must
SMA’s involvement in the SWA’s
of this section. initiate discontinuation of services
reporting systems.
(9) A summary of the training * * * * * pursuant to part 658, subpart F of this
■ 18. Amend § 653.110 by revising chapter.
conducted for ES staff on techniques for
accurately reporting data. paragraph (b) to read as follows: (c) * * *
(10) A summary of activities related to (3) SWAs must ensure that the
§ 653.110 Disclosure of data.
the AOP and an explanation of whether employer makes the following
* * * * * assurances in the clearance order: * * *
those activities helped the State reach (b) If a request for data held by a SWA
the objectives described in the AOP. At * * * * *
is made to the ETA national or regional
the end of the 4-year AOP cycle, the (d) * * *
office, ETA must forward the request to
summary must include a synopsis of the (1) The order-holding ES office must
the SWA for response.
SWA’s achievements over the previous transmit an electronic copy of the
4 years to accomplish the objectives set * * * * * approved clearance order to its SWA.
■ 19. Amend § 653.111 by revising the * * *
forth in the AOP, and a description of
section heading and paragraphs (a) and
the objectives which were not achieved * * * * *
(b) to read as follows:
and the steps the SWA will take to (3) The approval process described in
address those deficiencies. § 653.111 State Workforce Agency staffing this paragraph does not apply to
(11) For significant MSFW one-stop requirements for significant MSFW one- clearance orders that are attached to
centers, a summary of the State’s efforts stop centers. applications for foreign temporary
to comply with § 653.111. (a) The SWA must staff significant agricultural workers pursuant to part
■ 17. Amend § 653.109 by: MSFW one-stop centers in a manner 655, subpart B, of this chapter; such
■ a. Revising paragraph (b)(9); facilitating the delivery of ES services clearance orders must be sent to the
■ b. Redesignating paragraph (b)(10) as tailored to the unique needs of MSFWs. processing center as directed by ETA in
paragraph (b)(11); This includes recruiting qualified guidance. For noncriteria clearance
■ c. Adding a new paragraph (b)(10); candidates who meet the criteria in orders (orders that are not attached to
and § 653.107(a)(3). applications under part 655, subpart B,
■ d. Revising paragraphs (g), (h), and (b) The SMA, Regional Monitor of this chapter), the ETA regional office
(h)(1). Advocate, or the National Monitor must review and approve the order
within 10 business days of its receipt of on nine or fewer job orders during the (6) The actions taken (including any
the order, and the Regional quarter (but at least one job order), the documents the SWA sent or received
Administrator or their designee must SWA must conduct field checks on 100 and the date the SWA took such
approve the areas of supply to which percent of all such orders. This action(s)), and whether the complaint or
the order will be extended. Any denial requirement must be met on a quarterly apparent violation has been resolved,
by the Regional Administrator or their basis. including informally.
designee must be in writing and state * * * * * * * * * *
the reasons for the denial. (g) All complaints filed through the
* * * * * PART 658—ADMINISTRATIVE local ES office must be processed by a
(6) ES staff must assist all PROVISIONS GOVERNING THE trained Complaint System
farmworkers to understand the terms WAGNER-PEYSER ACT EMPLOYMENT Representative.
and conditions of employment set forth SERVICE (h) All complaints received by a SWA
in intrastate and interstate clearance ■ 23. Revise the authority citation for must be assigned to a trained Complaint
orders and must provide such workers part 658 to read as follows: System Representative designated by
with checklists showing wage payment the State Administrator. Complaints
Authority: Pub. L. 113–128, 128 Stat. 1425
schedules, working conditions, and (July 22, 2014); 29 U.S.C. chapter 4B.
must not be assigned to the State
other material specifications of the Monitor Advocate (SMA).
clearance order. ■ 24. Amend § 658.400 by revising the
* * * * *
second sentence of paragraph (a) and (k) The appropriate ES staff
* * * * *
paragraph (d) to read as follows:
(10) Applicant-holding offices must processing a complaint must offer to
provide workers referred on clearance § 658.400 Purpose and scope of subpart. assist the complainant through the
orders with a checklist summarizing (a) * * * Specifically, the Complaint provision of appropriate services.
wages, working conditions and other System processes complaints against an * * * * *
material specifications in the clearance employer about the specific job to (m) Follow-up on unresolved
order. The checklist must include which the applicant was referred complaints. When an MSFW submits a
language notifying the worker that a through the ES and complaints complaint, the Complaint System
copy of the original clearance order is involving the failure to comply with the Representative must follow-up monthly
available upon request. ES regulations under parts 651, 652, on the processing of the complaint and
(11) The applicant-holding office 653, and 654 of this chapter and this must inform the complainant of the
must give each referred worker a copy part. * * * status of the complaint. No follow-up
of the list of worker’s rights described in * * * * * with the complainant is required for
Departmental guidance. (d) A complainant may designate an non-MSFW complaints.
* * * * * individual to act as their representative. (n) A complainant may designate an
■ 21. Amend § 653.502 by revising ■ 25. Amend § 658.410 by: individual to act as their representative
paragraph (d) to read as follows: ■ a. Revising paragraphs (c), (g), (h), (k), throughout the filing and processing of
and (m); a complaint.
§ 653.502 Conditional access to the ■ b. Removing paragraph (n); and ■ 26. Amend § 658.411 by:
Agricultural Recruitment System. ■ c. Redesignating and revising ■ a. Revising paragraphs (a)(2)(i) and
* * * * * paragraph (o) as paragraph (n). (ii), (a)(3), the first sentence of
(d) Notice of denial. If the Regional The revisions and redesignation read paragraph (a)(4), and paragraphs (b)(1),
Administrator denies the request for as follows: (b)(1)(i), and (b)(1)(ii)(A), (B), (D), and
conditional access to the intrastate or (E);
§ 658.410 Establishment of local and State
interstate clearance system they must complaint systems. ■ b. Adding paragraph (b)(1)(ii)(F); and
provide written notice to the employer, ■ c. Revising paragraphs (c), (d)(1)(i),
the appropriate SWA, and the ES office, * * * * *
(c) SWAs must ensure centralized (d)(1)(ii)(A) through (D), (d)(1)(iii) and
stating the reasons for the denial. (iv), the introductory text of (d)(3),
control procedures are established for
* * * * * the processing of complaints and (d)(4), the introductory text of (d)(5)(i)
■ 22. Amend § 653.503 by revising apparent violations. The ES Office and (ii), (d)(5)(iii)(G), and (d)(6).
paragraphs (a) and (b) to read as follows: Manager and the State Administrator The revisions and addition read as
must ensure a central complaint log is follows:
§ 653.503 Field checks.
maintained, listing all complaints taken § 658.411 Action on complaints.
(a) If a worker is placed on a clearance by the ES office or the SWA and
order, the SWA must notify the (a) * * *
apparent violations identified by ES (2) * * *
employer in writing that the SWA, staff, and specifying for each complaint
through its ES offices, and/or Federal (i) Make every effort to obtain all the
or apparent violation: information they perceive to be
staff, must conduct unannounced field (1) The name of the complainant (for
checks to determine and document necessary to investigate the complaint;
complaints);
whether wages, hours, transportation, (2) The name of the respondent (ii) Request that the complainant
and working and housing conditions are (employer or State agency); indicate all of the physical addresses,
being provided as specified in the (3) The date the complaint is filed or email addresses, telephone numbers,
clearance order. the apparent violation was identified; and any other helpful means by which
(b) Where the SWA has made (4) Whether the complaint is made by they might be contacted during the
placements on 10 or more agricultural or on behalf of a migrant and seasonal investigation of the complaint; and
clearance orders (pursuant to this farmworker (MSFW) or whether the * * * * *
subpart) during the quarter, the SWA apparent violation affects an MSFW; (3) The staff must ensure the
must conduct field checks on at least 25 (5) Whether the complaint or apparent complainant (or their representative)
percent of the total of such orders. violation concerns an employment- submits the complaint on the
Where the SWA has made placements related law or the ES regulations; and Complaint/Referral Form or another
complaint form prescribed or approved immediate action or in cases where provision found at 8 U.S.C. 1324b, must
by the Department or submits complaint informal resolution at the local level be logged and immediately referred to
information which satisfies paragraph would be detrimental to the the State-level E.O. Officer. The
(a)(4) of this section. The Complaint/ complainant(s). In cases where informal Complaint System Representative must
Referral Form must be used for all resolution at the local level would be notify the complainant of the referral in
complaints, including complaints about detrimental to the complainant(s), the writing.
unlawful discrimination, except as Complaint System Representative must (d) * * *
provided in paragraph (a)(4) of this immediately refer the complaint to the (1) When an ES complaint is filed
section. The staff must offer to assist the appropriate enforcement agency. with an ES office or a SWA, and
complainant in filling out the form and Concurrently, the Complaint System paragraph (c) of this section does not
submitting all necessary information Representative must offer to refer the apply, the following procedures apply:
and must do so if the complainant MSFW to other ES services should the (i) When an ES complaint is filed
desires such assistance. If the MSFW be interested. against an employer, the proper office to
complainant also represents several * * * * * process the complaint is the ES office
other complainants, all such (D) If the ES office or SWA Complaint serving the area in which the employer
complainants must be named. The System Representative determines that is located.
complainant, or their representative, the complaint must be referred to a State (ii) * * *
must sign the completed form in writing or Federal agency, they must refer the (A) The ES office or SWA receiving
or electronically. The identity of the complaint immediately to the the complaint must ensure the
complainant(s) and any persons who appropriate enforcement agency for Complaint/Referral Form is adequately
furnish information relating to, or prompt action. completed, and then immediately send
assisting in, an investigation of a (E) If the complaint was referred a copy of the Complaint/Referral Form
complaint must be kept confidential to under paragraph (b)(1)(ii)(D) of this and copies of any relevant documents to
the maximum extent possible, section, the representative must notify the SWA in the other State. Copies of
consistent with applicable law and a fair the complainant of the enforcement the referral letter must be sent to the
determination of the complaint. A copy agency to which the complaint was complainant, and copies of the
of the completed complaint submission referred. complaint and referral letter must be
must be given to the complainant(s), (F) When a complaint alleges an sent to the ETA Regional Office(s) with
and the complaint form must be given employer in a different State from where jurisdiction over the transferring and
to the appropriate Complaint System the complaint is filed has violated an receiving State agencies. All such copies
Representative described in employment-related law: must be sent via hard copy or electronic
§ 658.410(g). (1) The ES office or SWA receiving mail.
(4) Any complaint in a reasonable the complaint must ensure the (B) The SWA receiving the complaint
form (letter or email) which is signed by Complaint/Referral Form is adequately must process the complaint as if it had
the complainant, or their representative, completed and then immediately send a been initially filed with that SWA.
and includes sufficient information to copy of the Complaint/Referral Form (C) The ETA regional office with
initiate an investigation must be treated and copies of any relevant documents to jurisdiction over the receiving SWA
as if it were a properly completed the SWA in the other State. Copies of must follow-up with it to ensure the
Complaint/Referral Form filed in the referral letter must be sent to the complaint is processed in accordance
person. * * * complainant, and copies of the with these regulations.
(b) * * * (D) If the complaint is against more
(1) When a complaint is filed complaint and referral letter must be
sent to the ETA Regional Office(s) with than one SWA, the complaint must so
regarding an employment-related law clearly state. Additionally, the
with an ES office or a SWA, and jurisdiction over the transferring and
receiving State agencies. All such copies complaints must be processed as
paragraph (c) of this section does not separate complaints and must be
apply, the office must determine if the must be sent via hard copy or electronic
mail. processed according to procedures in
complainant is an MSFW. this paragraph (d).
(i) If the complainant is a non-MSFW, (2) The SWA receiving the complaint
must process the complaint as if it had (iii) When an ES complaint is filed
the office must immediately refer the against an ES office, the proper office to
complainant to the appropriate been initially filed with that SWA.
(3) The ETA Regional Office with process the complaint is the ES office
enforcement agency, another public serving the area in which the alleged
agency, a legal aid organization, and/or jurisdiction over the receiving SWA
must follow up with it to ensure the violation occurred.
a consumer advocate organization, as (iv) When an ES complaint is filed
appropriate, for assistance. Upon complaint is processed in accordance
with these regulations. against more than one ES offices and is
completing the referral, the local or in regard to an alleged agency-wide
State representative is not required to * * * * *
(c) Complaints alleging unlawful violation, the SWA representative or
follow-up with the complainant. their designee must process the
(ii) * * * discrimination or reprisal for protected
activity. All complaints received under complaint.
(A) Take from the MSFW or their
representative, in writing (hard copy or this subpart by an ES office or a SWA * * * * *
electronic), the complaint(s) describing alleging unlawful discrimination or (3) When a non-MSFW or their
the alleged violation(s) of the reprisal for protected activity in representative files a complaint
employment-related law(s); and violation of nondiscrimination laws, regarding the ES regulations with a
(B) Attempt to resolve the issue such as those enforced by the Equal SWA, or when a non-MSFW complaint
informally at the local level, except in Employment Opportunity Commission is referred from an ES office the
cases where the complaint was (EEOC) or the Department of Labor’s following procedures apply:
submitted to the SWA and the Civil Rights Center (CRC), or in * * * * *
Complaint System Representative violation of the Immigration and (4)(i) When a MSFW or their
determines that they must take Nationality Act’s anti-discrimination representative files a complaint
regarding the ES regulations directly information regarding a suspected § 658.421 Processing of Wagner-Peyser
with a SWA, or when a MSFW violation of employment-related laws or Act Employment Service regulation-related
complaint is referred from an ES office, ES regulations by an employer, except complaints.
the Complaint System Representative as provided at § 653.503 of this chapter (a) Except as provided below in
must investigate and attempt to resolve (field checks) or § 658.411 (complaints), paragraph (a)(2) of this section, no
the complaint immediately upon receipt the employee must document the complaint alleging a violation of the ES
and may, if necessary, conduct a further apparent violation and refer this regulations may be processed at the ETA
investigation. information to the ES Office Manager, regional office level until the
(ii) If resolution at the SWA level has who must document the apparent complainant has exhausted the SWA
not been accomplished within 20 violation in the Complaint System log, administrative remedies set forth at
business days after the complaint was as described at § 658.410. Apparent §§ 658.411 through 658.418. * * *
received by the SWA (or after all violations of nondiscrimination laws (2) If a complaint is submitted directly
necessary information has been must be processed according to the to the Regional Administrator and if
submitted to the SWA pursuant to procedures described in § 658.411(c). they determine that the nature and
paragraph (a)(4) of this section), the * * * * * scope of a complaint described in
Complaint System Representative must paragraph (a) of this section is such that
make a written determination regarding ■ 29. Amend § 658.420 by revising
the time required to exhaust the
the complaint and must send electronic paragraphs (b) and (c) to read as follows:
administrative procedures at the SWA
copies to the complainant and the § 658.420 Responsibilities of the level would adversely affect a
respondent. The determination must Employment and Training Administration significant number of individuals, the
follow the procedures set forth in regional office. RA must accept the complaint and take
paragraph (d)(5) of this section. the following action:
(5)(i) All written determinations by * * * * *
(b) The Regional Administrator must (i) If the complaint is filed against an
the SWA on complaints under the ES
designate Department of Labor officials employer, the regional office must
regulations must be sent by certified
to process ES regulation-related process the complaint in a manner
mail (or another legally viable method)
complaints as follows: consistent with the requirements
and a copy of the determination may be
imposed upon State agencies by
sent via electronic mail. The (1) All complaints received at the ETA §§ 658.411 and 658.418. * * *
determination must include all the regional office under this subpart that
following: * * * * *
allege unlawful discrimination or
(ii) If the SWA determines that the reprisal for protected activity in (b) The ETA regional office is
employer has not violated the ES violation of nondiscrimination laws, responsible for processing appeals of
regulations, the SWA must offer to the such as those enforced by the EEOC or determinations made on complaints at
complainant the opportunity to request, CRC, in violation of the Immigration the SWA level. * * *
in writing, a hearing within 20 business and Nationality Act’s anti- (c)(1) Once the Regional
days after the certified date of receipt of discrimination provision found at 8 Administrator receives a timely appeal,
the notification. U.S.C. 1324b, must immediately be they must request the complete SWA
(iii) * * * logged and immediately referred to the file, including the original Complaint/
(G) With the consent of the SWA and Referral Form from the appropriate
appropriate State-level E.O. Officer(s).
of the State hearing official, the party SWA.
who requested the hearing may (2) All complaints other than those
(2) The Regional Administrator must
withdraw the request for the hearing in described in paragraph (b)(1) of this
review the file in the case and must
writing before the hearing. section must be assigned to a regional
determine within 10 business days
* * * * * office official designated by the Regional
whether any further investigation or
(6) A complaint regarding the ES Administrator, provided that the
action is appropriate; however, if the
regulations must be processed to regional office official designated to
Regional Administrator determines that
resolution by these regulations only if it process MSFW complaints must be the
they need to request legal advice from
is made within 2 years of the alleged Regional Monitor Advocate (RMA).
the Office of the Solicitor at the U.S.
occurrence. (c) Except for those complaints under Department of Labor, then the Regional
* * * * * paragraph (b)(1) of this section, the Administrator is allowed 20 business
■ 27. Amend § 658.417 by revising Regional Administrator must designate days to make this determination.
paragraph (b) to read as follows: Department of Labor officials to process (d) If the Regional Administrator
employment-related law complaints in determines that no further action is
§ 658.417 State hearings. accordance with § 658.422, provided warranted, the Regional Administrator
* * * * * that the regional official designated to will send their determination in writing
(b) The State hearing official may process MSFW employment-related law to the appellant within 5 days of the
decide to conduct hearings on more complaints must be the RMA. The RMA determination, with a notification that
than one complaint concurrently if they must follow up monthly on all the appellant may request a hearing
determine that the issues are related or complaints filed by MSFWs including before a Department of Labor
that the complaints will be processed complaints under paragraph (b)(1) of Administrative Law Judge (ALJ) by
more expeditiously if conducted this section. filing a hearing request in writing with
together.
* * * * * the Regional Administrator within 20
* * * * * working days of the appellant’s receipt
■ 28. Amend § 658.419 by revising ■ 30. Amend § 658.421 by revising the
section heading, the first sentence of of the notification.
paragraph (a) to read as follows:
paragraph (a)(1), introductory text of * * * * *
§ 658.419 Apparent violations. (a)(2), the first sentences of paragraphs ■ 31. Amend § 658.422 by revising the
(a) If an ES staff member observes, has (a)(2)(i) and (b), and paragraphs (c) and section heading and paragraphs (a)
reason to believe, or is in receipt of (d) to read as follows: through (c) to read as follows:
§ 658.422 Processing of employment- (b) SWA officials may discontinue terminated in 20 working days unless
related law complaints by the Regional services immediately if, in the judgment the employer within that time: * * *
Administrator. of the State Administrator, exhaustion (4) Where the decision is based on a
(a) This section applies to all of the administrative procedures set final determination by an enforcement
complaints submitted directly to the forth in § 658.502 would cause agency or the employer is currently
Regional Administrator or their substantial harm to a significant number debarred or disqualified from
representative. of workers. In such instances, participating in one of the Department’s
(b) Each complaint filed by an MSFW procedures at §§ 658.503 and 658.504 foreign labor certification programs, the
alleging violation(s) of employment- must be followed. SWA must specify the enforcement
related laws must be taken in writing, (c) If it comes to the attention of an agency’s findings of facts and
logged, and referred to the appropriate ES office or a SWA that an employer conclusions of law and, if applicable,
enforcement agency for prompt action. participating in the ES may not have the time period for which the employer
If such a complaint alleges a violation complied with the terms of its is debarred or disqualified from
of nondiscrimination laws or reprisal for temporary labor certification, under, for participating in one of the Department’s
protected activity, it must be referred to example the H–2A and H–2B visa foreign labor certification programs. The
the appropriate State-level E.O. Officer programs, SWA officials must engage in employer must be notified that all ES
in accordance with § 658.420(b)(1). the procedures for discontinuation of services will be terminated in 20
(c) Each complaint submitted by a services to employers pursuant to working days unless the employer
non-MSFW alleging violation(s) of § 658.502 and simultaneously notify the within that time:
employment-related laws must be Chicago National Processing Center (i) Provides adequate evidence that
logged and referred to the appropriate (CNPC) of the alleged non-compliance the enforcement agency has reversed its
enforcement agency for prompt action. for investigation and consideration of ruling and that the employer did not
If such a complaint alleges a violation ineligibility pursuant to § 655.184 or violate employment-related laws; or
of nondiscrimination laws or reprisal for § 655.73 of this chapter respectively for (ii) Provides adequate evidence that
protected activity, it must be referred to subsequent temporary labor the Department’s disbarment or
the appropriate State-level E.O. Officer certification. disqualification is no longer in effect or
in accordance with § 658.420(b)(1). * * * * * will terminate before the employer’s
■ 35. Amend § 658.502 by revising the anticipated date of need; or
* * * * *
introductory text of paragraphs (a)(1) (iii) Provides adequate evidence that
through (3), (a)(4), introductory text of the appropriate fines have been paid
paragraph (d) to read as follows:
(a)(5) through (7), (a)(7)(i) and (iii), and and/or appropriate restitution has been
§ 658.424 Proceedings before the Office of (b) to read as follows: made; and
Administrative Law Judges. (iv) Provides assurances that any
§ 658.502 Notification to employers.
* * * * * policies, procedures, or conditions
(a) * * *
(d) The ALJ may decide to consolidate responsible for the violation have been
(1) Where the decision is based on
cases and conduct hearings on more corrected and the same or similar
submittal and refusal to alter or to
than one complaint concurrently if they violations are not likely to occur in the
withdraw job orders containing
determine that the issues are related or future.
specifications contrary to employment-
that the complaints will be processed (5) Where the decision is based on a
related laws, the SWA must specify the
more expeditiously. finding of a violation of ES regulations
date the order was submitted, the job
* * * * * under § 658.411, the SWA must specify
order involved, the specifications
the finding. The employer must be
contrary to employment-related laws
paragraph (a)(1) to read as follows: notified that all ES services will be
and the laws involved. The SWA must
terminated in 20 working days unless
notify the employer in writing that all
§ 658.425 Decision of Department of Labor the employer within that time: * * *
Administrative Law Judge. ES services will be terminated in 20
(6) Where the decision is based on an
working days unless the employer
(a) * * * employer’s failure to accept qualified
within that time: * * *
(1) Rule that they lack jurisdiction (2) Where the decision is based on the workers referred through the clearance
over the case: employer’s submittal of an order and system, the SWA must specify the
* * * * * refusal to provide assurances that the workers referred and not accepted. The
■ 34. Amend § 658.501 by revising job is in compliance with employment- employer must be notified that all ES
paragraphs (a)(4), (b), and (c) to read as related laws or to withdraw the order, services will be terminated in 20
follows: the SWA must specify the date the order working days unless the employer
was submitted, the job order involved, within that time: * * *
§ 658.501 Basis for discontinuation of
and the assurances involved. The (7) Where the decision is based on
services.
employer must be notified that all ES lack of cooperation in the conduct of
(a) * * * services will be terminated within 20 field checks, the SWA must specify the
(4) Are found by a final determination working days unless the employer lack of cooperation. The employer must
by an appropriate enforcement agency within that time: * * * be notified that all ES services will be
terminated in 20 working days unless
to have violated any employment- (3) Where the decision is based on a

related laws and notification of this finding that the employer has the employer within that time:
final determination has been provided misrepresented the terms or conditions (i) Provides adequate evidence that it
to the Department or the SWA by that of employment specified on job orders did cooperate; or
enforcement agency or are currently or failed to comply fully with * * * * *
debarred or disqualified from assurances made on job orders, the SWA (iii) Provides assurances that it will
participating in one of the Department’s must specify the basis for that cooperate in future field checks in
foreign labor certification programs; determination. The employer must be further activity; or
* * * * * notified that all ES services will be * * * * *
(b) If the employer chooses to respond the selection of the SMAs, as provided (2) They must participate in field
pursuant to this section by providing in SWA self-monitoring requirements at check(s) of migrant camps or work
documentary evidence or assurances, it § 653.108(a) of this chapter. site(s) where MSFWs have been placed
must at the same time request a hearing * * * * * on inter or intrastate clearance orders.
if such hearing is desired in the event (3) They must contact local WIOA sec.
(j) The NMA must monitor and assess
that the SWA does not accept the 167 National Farmworker Jobs Program
SWA compliance with ES regulations
documentary evidence or assurances as grantees or other farmworker
affecting MSFWs on a continuing basis.
adequate. organizations as part of the on-site
Their assessment must consider: * * *
* * * * * review and discuss with representatives
(8) Their personal observations from of these organizations current trends
visits to SWAs, ES offices, agricultural and any other pertinent information
paragraphs (a)(2)(ii) and (b) to read as work sites, and migrant camps. In the
follow: concerning MSFWs.
Annual Report, the NMA must include (4) They must meet with the SMA and
§ 658.504 Reinstatement of services. both a quantitative and qualitative discuss the full range of the ES services
(a) * * * analysis of their findings and the to MSFWs, including monitoring and
(2) * * * implementation of their the Complaint System.
(ii) The employer provides adequate recommendations by State and Federal (o) In addition to the duties specified
evidence that it has responded officials, and must address the in paragraph (f) of this section, the NMA
adequately to any findings of an information obtained from all of the each year during the harvest season
enforcement agency, SWA, or ETA, foregoing sources. must visit the four States with the
including restitution to the complainant * * * * * highest level of MSFW activity during
and the payment of any fines, that were (l) If the NMA finds the effectiveness the prior fiscal year, if they are not
the basis of the discontinuation of of any RMA has been substantially scheduled for a National Office on-site
services. impeded by the Regional Administrator review during the current fiscal year,
(b) The SWA must notify the or other regional office official, they and must: * * *
employer requesting reinstatement must, if unable to resolve such problems (p) The NMA must perform duties
within 20 working days whether its informally, report and recommend specified in §§ 658.700 through 765.711.
request has been granted. If the State appropriate actions directly to the OWI As part of this function, they must
denies the request for reinstatement, the Administrator. If the NMA receives monitor the performance of regional
basis for the denial must be specified information that the effectiveness of any offices in imposing corrective action.
and the employer must be notified that SMA has been substantially impeded by The NMA must report any deficiencies
it may request a hearing within 20 the State Administrator, a State or in performance to the Administrator.
working days. Federal ES official, or other ES staff, (q) The NMA must establish routine
* * * * * they must, in the absence of a and regular contacts with WIOA sec.
■ 37. Amend § 658.602 by revising satisfactory informal resolution at the 167 National Farmworker Jobs Program
paragraphs (f)(2) through (4), (g), regional level, report and recommend grantees, other farmworker
introductory text paragraph (j), (j)(8), (l) appropriate actions directly to the OWI organizations and agricultural
through (n), introductory text paragraph Administrator. employers and/or employer
(o), (p) through (r), introductory text organizations. The NMA must attend
(m) The NMA must be informed of all
paragraph(s), (s)(2) and (3) to read as conferences or meetings of these groups
proposed changes in policy and practice
follows: wherever possible and must report to
within the ES, including ES regulations,
the Administrator and the National
which may affect the delivery of
§ 658.602 Employment and Training Farm Labor Coordinated Enforcement
Administration National Office services to MSFWs. The NMA must
Committee on these contacts when
responsibility. advise the Administrator concerning all
appropriate. The NMA must include in
* * * * * such proposed changes which may
the Annual Report recommendations
(f) * * * adversely affect MSFWs. The NMA
about how the Department might better
(2) Review the performance of SWAs must propose directly to the OWI
coordinate ES and WIOA sec. 167
in providing the full range of ES Administrator changes in ES policy and
National Farmworker Jobs Program
services to MSFWs; administration which may substantially
services as they pertain to MSFWs.
(3) Take steps to resolve or refer ES- improve the delivery of services to (r) In the event that any SMA or RMA,
related problems of MSFWs which come MSFWs. They also must recommend enforcement agency, or MSFW group
to their attention; changes in the funding of SWAs and/or refers a matter to the NMA which
(4) Take steps to refer non-ES-related adjustment or reallocation of the requires emergency action, the NMA
problems of MSFWs which come to discretionary portions of funding must assist them in obtaining action by
their attention; formulae. appropriate agencies and staff, inform
* * * * * (n) The NMA must participate in the the originating party of the action taken,
(g) The NMA must be appointed by review and assessment activities and, upon request, provide written
the Office of Workforce Investment required in this section and §§ 658.700 confirmation.
Administrator (Administrator) after through 658.711. As part of such (s) Through all the mechanisms
informing farmworker organizations and participation, the NMA, or if they are provided in this subpart, the NMA must
other organizations with expertise unable to participate, an RMA must aggressively seek to ascertain and
concerning MSFWs of the opening and accompany the National Office review remedy, if possible, systemic
encouraging them to refer qualified team on National Office on-site reviews. deficiencies in the provisions of ES
applicants to apply through the Federal The NMA must engage in the following services and protections afforded by
merit system. Among qualified activities during each State on-site these regulations to MSFWs. The NMA
candidates, determined through merit review: must: * * *
systems procedures, individuals must (1) They must accompany selected (2) Provide technical assistance to
be sought who meet the criteria used in outreach staff on their field visits. ETA regional office and ES staff for
administering the Complaint System, candidates, individuals must be sought MSFWs or which may substantially
and any other ES services as who meet the criteria used in the improve the delivery of services to
appropriate. selection of the SMAs, as provided in MSFWs.
(3) Recommend to the Regional § 653.108(b) of this chapter. * * * * *
Administrator specific instructions for * * * * * (p) The RMA must participate in the
action by regional office staff to correct (i) The RMA must participate in review and assessment activities
any ES-related systemic deficiencies. training sessions including those offered required in this section and §§ 658.700
Prior to any ETA review of regional by the National Office and those through 658.711. The RMA, an assistant,
office operations concerning ES services necessary to maintain competency and or another RMA must participate in
to MSFWs, the NMA must provide to enhance their understanding of issues National Office and regional office on-
the Regional Administrator a brief farmworkers face (including trainings site statewide reviews of ES services to
summary of ES-related services to offered by OSHA, WHD, EEOC, CRC, MSFWs in States in the region. The
MSFWs in that region and their and other organizations offering RMA must engage in the following
recommendations for incorporation in farmworker-related information). activities in the course of participating
the regional review materials as the * * * * * in an on-site SWA review:
Regional Administrator and ETA (k) At the ETA regional level, the (1) Accompany selected outreach staff
reviewing organization deem RMA must have primary responsibility on their field visits;
appropriate. for ensuring SWA compliance with ES (2) Participate in a field check of
* * * * * regulations as it pertains to services to migrant camps or work sites where
■ 38. Amend § 658.603 by revising MSFWs is monitored by the regional MSFWs have been placed on intrastate
paragraphs (d)(7), (f)(1) through (3), (g), office. They must independently assess or interstate clearance orders;
(i), introductory text of paragraph (k), on a continuing basis the provision of (3) Contact local WIOA sec. 167
(k)(7) and (8), (m), (n)(2) and (3), (o)(1), ES services to MSFWs, seeking out and National Farmworker Jobs Program
(p), (q), and (s) through (v) to read as using: * * * grantees or other farmworker
follows: (7) Any other pertinent information organizations as part of the on-site
which comes to their attention from any review, and must discuss with
§ 658.603 Employment and Training representatives of these organizations
possible source.
Administration regional office perceived trends, and/or other relevant
responsibility.
(8) In addition, the RMA must
consider their personal observations information concerning MSFWs in the
* * * * * from visits to ES offices, agricultural area; and
(d) * * * work sites, and migrant camps. (4) Meet with the SMA and discuss
(7) Unannounced field checks of a the full range of the ES services to
sample of agricultural work sites to * * * * *
(m) The Regional Administrator’s MSFWs, including monitoring and the
which ES placements have been made Complaint System.
through the clearance system to quarterly report to the National Office
must include the RMA’s summary of (q) During the calendar quarter
determine and document whether preceding the time of peak MSFW
wages, hours, and working and housing their independent assessment as
required in paragraph (f)(5) of this activity in each State, the RMA must
conditions are as specified on the meet with the SMA and must review in
clearance order. If regional office staff section. The fourth quarter summary
must include an Annual Summary from detail the State Workforce Agency’s
find reason to believe that conditions capability for providing the full range of
vary from clearance order specifications, the region. The summary also must
include both a quantitative and a services to MSFWs as required by ES
findings must be documented on the regulations, during the upcoming
Complaint/Apparent Violation Referral qualitative analysis of their reviews and
must address all the matters with harvest season. The RMA must offer
Form and provided to the State technical assistance and recommend to
Workforce Agency to be processed as an respect to which they have
responsibilities under these regulations. the SWA and/or the Regional
apparent violation under § 658.419. Administrator any changes in State
(n) * * *
* * * * * (2) Is being impeded in fulfilling their policy or practice that the RMA finds
(f) * * * duties; or necessary.
(1) Review the effective functioning of (3) Is making recommendations that * * * * *
the SMAs in their region; are being consistently ignored by SWA (s) The RMA must initiate and
(2) Review the performance of SWAs officials. If the RMA believes that the maintain regular and personal contacts,
in providing the full range of ES effectiveness of any SMA has been including informal contacts in addition
services to MSFWs; substantially impeded by the State to those specifically required by these
(3) Take steps to resolve ES-related Administrator, other State agency regulations, with SMAs in the region. In
problems of MSFWs which come to officials, any Federal officials, or other addition, the RMA must have personal
their attention; ES staff, the RMA must report and and regular contact with the NMA. The
* * * * * recommend appropriate actions to the RMA also must establish routine and
(g) The RMA must be appointed by Regional Administrator. Copies of the regular contacts with WIOA sec. 167
the Regional Administrator after recommendations must be provided to National Farmworker Jobs Program
informing farmworker organizations and the NMA electronically or in hard copy. grantees, other farmworker
other organizations in the region with (o)(1) The RMA must be informed of organizations and agricultural
expertise concerning MSFWs of the all proposed changes in policy and employers and/or employer
opening and encouraging them to refer practice within the ES, including ES organizations in the RMA’s region. The
qualified applicants to apply through regulations, which may affect the RMA must attend conferences or
the Federal merit system. The RMA delivery of services to MSFWs. They meetings of these groups wherever
must have direct personal access to the must advise the Regional Administrator possible and must report to the Regional
Regional Administrator wherever they on all such proposed changes which, in Administrator and the Regional Farm
find it necessary. Among qualified their opinion, may adversely affect Labor Coordinated Enforcement
Committee on these contacts when supportive services, and the conduct of Notice must be sent to the RMA and the
appropriate. The RMA also must make field checks. NMA.
recommendations as to how the * * * * * * * * * *
Department might better coordinate ES ■ 40. Amend § 658.702 by revising (h) * * *
and WIOA sec. 167 National paragraphs (a), (d), (e), (f)(2), and (h)(5) (5) If, as a result of this review, the
Farmworker Jobs Program services to to read as follows: Regional Administrator determines the
MSFWs. SWA has taken corrective action but is
(t) The RMA must attend MSFW- § 658.702 Initial action by the Regional
Administrator.
unable to determine if the violation has
related public meeting(s) conducted in been corrected due to seasonality or
the region, as appropriate. Following (a) The ETA Regional Administrator is
other factors, the Regional
such meetings or hearings, the RMA responsible for ensuring that all SWAs
Administrator must notify in writing the
must take such steps or make such in their region are in compliance with
SWA and the Administrator of their
recommendations to the Regional ES regulations.
findings. The Regional Administrator
Administrator, as the RMA deems * * * * * must conduct further follow-up at an
necessary to remedy problem(s) or (d) If the Regional Administrator appropriate time to make a final
condition(s) identified or described determines that there is no probable determination if the violation has been
therein. cause to believe that a SWA has violated corrected. If the Regional
(u) The RMA must attempt to achieve ES regulations, they must retain all Administrator’s follow-up reveals that
regional solutions to any problems, reports and supporting information in violations have not been corrected, the
deficiencies, or improper practices Department files. In all cases where the
Regional Administrator must apply
concerning services to MSFWs which Regional Administrator has insufficient
remedial actions to the SWA pursuant
are regional in scope. Further, the RMA information to make a probable cause
to § 658.704.
must recommend policies, offer determination, they must so notify the
technical assistance, or take any other Administrator in writing and the time * * * * *
for the investigation must be extended ■ 41. Amend § 658.704 by revising the
necessary steps as they deem desirable
or appropriate on a regional, rather than 20 additional business days. fifth sentence of paragraph (d) and the
State-by-State basis, to promote region- (e) If the Regional Administrator fourth sentence of (f)(2) to read as
wide improvement in the delivery of ES determines there is probable cause to follows:
services to MSFWs. The RMA must believe a SWA has violated ES § 658.704 Remedial actions.
facilitate region-wide coordination and regulations, they must issue a Notice of
Initial Findings of Non-compliance by * * * * *
communication regarding provision of (d) * * * The Regional Administrator
ES services to MSFWs among SMAs, registered mail (or other legally viable
means) to the offending SWA. The must notify the SWA of their findings.
State Administrators, and Federal ETA * * *
officials to the greatest extent possible. notice will specify the nature of the
violation, cite the regulations involved, * * * * *
In the event that any SWA or other
and indicate corrective action which (f) * * *
RMA, enforcement agency, or MSFW
may be imposed in accordance with (2) * * * One copy must be retained.
group refers a matter to the RMA which
paragraphs (g) and (h) of this section. If Two must be sent to the ETA National
requires emergency action, the RMA
the non-compliance involves services to Office, one must be sent to the Solicitor
must assist them in obtaining action by
MSFWs or the Complaint System, a of Labor, Attention: Associate Solicitor
appropriate agencies and staff, inform
copy of said notice must be sent to the for Employment and Training, and, if
the originating party of the action taken,
NMA. the case involves violations of
and, upon request, provide written
(f) * * * regulations governing services to
confirmation.
(v) The RMA must initiate and (2) After the period elapses, the MSFWs or the Complaint System,
Regional Administrator must prepare copies must be sent to the RMA and the
maintain such contacts as they deem
within 20 business days, written final NMA. * * *
necessary with RMAs in other regions to
findings which specify whether the * * * * *
seek to resolve problems concerning
SWA has violated ES regulations. If in ■ 42. Amend § 658.705 by revising the
MSFWs who work, live, or travel
the final findings the Regional introductory text of paragraphs (b) and
through the region. The RMA must
Administrator determines the SWA has (b)(3) and paragraphs (c) through (f) to
recommend to the Regional
not violated ES regulations, the Regional read as follows:
Administrator and/or the National
Administrator must notify the State
Office inter-regional cooperation on any § 658.705 Decision to decertify.
Administrator of this finding and retain
particular matter, problem, or policy
supporting documents in their files. If * * * * *
with respect to which inter-regional
the final finding involves services to (b) The Assistant Secretary must grant
action is desirable.
MSFWs or the Complaint System, the the request for decertification unless
* * * * * Regional Administrator also must notify they make a finding that: * * *
the RMA and the NMA. If the Regional (3) The Assistant Secretary has reason
paragraph (c)(3)(i) to read as follows: Administrator determines a SWA has to believe the SWA will achieve
§ 658.604 Assessment and evaluation of violated ES regulations, the Regional compliance within 80 business days
program performance data. Administrator must prepare a Final unless exceptional circumstances
* * * * * Notice of Noncompliance which must necessitate more time, pursuant to the
(c) * * * specify the violation(s) and cite the remedial action already applied or to be
(3) * * * regulations involved. The Final Notice applied. (In the event the Assistant
(i) Generally, for example, a SWA has of Noncompliance must be sent to the Secretary does not have sufficient
direct and substantial control over the SWA by registered mail or other legally information to act upon the request,
delivery of ES services such as referrals viable means. If the noncompliance they may postpone the determination
to jobs, job development contacts, involves services to MSFWs or the for up to an additional 20 business days
counseling, referrals to career and Complaint System, a copy of the Final to obtain any available additional
information.) In making a determination must be published promptly in the § 658.707 Requests for hearings.
whether violations are ‘‘serious’’ or Federal Register, and the report of the (a) Any SWA which received a Notice
‘‘continual,’’ as required by paragraph Secretary must be made available for of Decertification under § 658.706 or a
(b)(1) of this section, the Assistant public inspection and copy. notice of disallowance under
Secretary must consider: * * * (f) Where either the Assistant § 658.702(g) may request a hearing on
(c) If the Assistant Secretary denies a Secretary or the Secretary denies a the issue by filing a written request for
request for decertification, they must request for decertification and orders hearing with the Secretary within 10
write a complete report documenting further remedial action, the Regional business days of receipt of the notice.
their findings and, if appropriate, Administrator must continue to monitor Additionally, any SWA that has
instructing an alternate remedial action the SWA’s compliance. If the SWA received a Notice of Remedial Action
or actions be applied. Electronic copies achieves compliance within the time under § 658.704(c) may request a
of the report must be sent to the established pursuant to paragraph (b) of hearing by filing a written request with
Regional Administrator. Notice of the this section, the Regional Administrator the Regional Administrator within 20
Assistant Secretary’s decision must be must terminate the remedial actions. If business days of the SWA’s receipt of
published promptly in the Federal the SWA fails to achieve full the notice. This request must state the
Register and the report of the Assistant compliance within that time period after reasons the SWA believes the basis of
Secretary must be made available for the Secretary’s decision not to decertify, the decision to be wrong, and it must be
public inspection and copying. the Regional Administrator must submit signed by the State Administrator
(d) If the Assistant Secretary decides a report of their findings to the Assistant (electronic signatures may be accepted).
decertification is appropriate, they must Secretary who must reconsider the (b) When the Secretary or Regional
submit the case to the Secretary request for decertification pursuant to Administrator receives a request for a
providing written explanation for their the requirements of paragraph (b) of this hearing from a SWA, they must send
recommendation of decertification. section. copies of a file containing all materials
(e) Within 30 business days after and correspondence relevant to the case
■ 43. Amend § 658.706 to read as
receiving the Assistant Secretary’s to the Assistant Secretary, the Regional
report, the Secretary must determine follows:
Administrator, the Solicitor of Labor,
whether to decertify the SWA. The § 658.706 Notice of decertification. and the Department of Labor Chief
Secretary must grant the request for Administrative Law Judge. When the
decertification unless they make one of If the Secretary decides to decertify a case involves violations of regulations
the three findings set forth in paragraph SWA, they must send a Notice of governing services to MSFWs or the
(b) of this section. If the Secretary Decertification to the SWA stating the Complaint System, a copy must be sent
decides not to decertify, they must then reasons for this action and providing a to the NMA.
instruct that remedial action be 10 business day period during which
the SWA may request an administrative * * * * *
continued or that alternate actions be
applied. The Secretary must write a hearing in writing to the Secretary. The Angela Hanks,
report explaining their reasons for not document must be published promptly Acting Assistant Secretary for Employment
decertifying the SWA and copies (hard in the Federal Register. and Training, Labor.
copy and electronic) will be sent to the ■ 44. Amend § 658.707 by revising [FR Doc. 2022–07628 Filed 4–19–22; 8:45 am]
SWA. Notice of the Secretary’s decision paragraphs (a) and (b) to read as follows: BILLING CODE 4510–FN–P

Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules

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Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules

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23700 Federal Register / Vol. 87, No.

76 / Wednesday, April 20, 2022 / Proposed Rules

any change to the comments or TEGL Training and Employment Guidance

provide surge capacity for UI provision for ‘‘[s]uch methods of administration

and Economic Security Act of 2020 (CARES Act) as a condition of participation in

The Department proposes to correct Specifically, the proposed regulatory

naics4_999200.htm. these additional wage costs are ($43,910¥$48,000) × 1.78 = ¥$2,225.

× 3 × 1.78 = ¥$378,387. × 18.1 = $10,489,704. tables.

Under this alternative, the Department would require States to

consideration, the Department is not States not already operating in

requirement for universal access to ES services in a way that accounts for

responsibilities. identified in paragraphs (b)(1) through (2) * * *

to have violated any employment- (3) Where the decision is based on a

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