82658 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Parts 651, 652, 653, and 658 

[Docket No. ETA–2022–0003] 

RIN 1205–AC02 

Wagner-Peyser Act Staffing 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of Labor 

(Department or DOL) is issuing a final 

rule that requires States to use State 

merit staff to provide Wagner-Peyser Act 

Employment Service (ES) services. In 

the notice of proposed rulemaking 

(NPRM), the Department proposed that 

this requirement would apply to all 

States. However, the Department 

recognizes three States that have been 

approved by the Department to 

administer ES services using alternative 

staffing models for decades and is 

allowing only these three States to 

continue using the alternative staffing 

models. The requirement to use State 

merit staff to provide all ES services 

applies to all other States, including 

those States that implemented staffing 

flexibility under the 2020 Final Rule. 

The Department additionally is revising 

the ES regulations to strengthen the 

provision of services to migrant or 

seasonal farmworkers (MSFWs) and to 

enhance the protections afforded by the 

Monitor Advocate System and the 

Employment Service and EmploymentRelated Law Complaint System 

(Complaint System). States have 24 

months to comply with this final rule. 

DATES: 

Effective Date: This final rule is 

effective January 23, 2024. 

Compliance Date: All States will have 

24 months from the effective date to 

comply with the requirements of this 

final rule. The compliance date of the 

final rule is January 22, 2026. 

FOR FURTHER INFORMATION CONTACT: Kim 

Vitelli, Administrator, Office of 

Workforce Investment, Employment and 

Training Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue NW, Room C–4526, 

Washington, DC 20210, Telephone: 

(202) 693–3980 (voice) (this is not a tollfree number). For persons with a 

hearing or speech disability who need 

assistance to use the telephone system, 

please dial 711 to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Acronyms and Abbreviations 

II. Executive Summary 

III. Background and Justification 

IV. General Comments on the Proposed Rule 

V. Section-by-Section Discussion of Final 

Rule 

A. Technical Amendments and Global 

Edits 

B. Part 651—General Provisions Governing 

the Wagner-Peyser Act Employment 

Service 

C. Part 652—Establishment and 

Functioning of State Employment 

Service 

D. Part 653—Services of the Wagner-Peyser 

Act Employment Service System 

E. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

VI. Rulemaking Analyses and Notices 

A. Executive Orders 12866 (Regulatory 

Planning and Review), 13563 (Improving 

Regulation and Regulatory Review), and 

14094 (Modernizing Regulatory Review) 

and Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act of 1996, and Executive 

Order 13272 (Proper Consideration of 

Small Entities in Agency Rulemaking) 

C. Paperwork Reduction Act of 1995 

D. Executive Order 13132 (Federalism) 

E. Unfunded Mandates Reform Act of 1995 

F. Executive Order 13175 (Indian Tribal 

Governments) 

G. Plain Language 

I. Acronyms and Abbreviations 

2020 Final Rule Wagner-Peyser Act 

Staffing Flexibility; Final Rule, 85 FR 

592 (Jan. 6, 2020) 

AJC(s) American Job Center(s) (also 

known as one-stop(s) or one-stop 

center(s)) 

AOP(s) Agricultural Outreach Plan(s) 

ARS Agricultural Recruitment System 

BFOQ bona fide occupational 

qualification 

BLS U.S. Bureau of Labor Statistics 

CARES Act Coronavirus Aid, Relief, 

and Economic Security Act 

CFR Code of Federal Regulations 

Complaint System Employment 

Service and Employment-Related Law 

Complaint System 

COVID–19 coronavirus disease 2019 

CRC DOL Civil Rights Center 

CSRA Civil Service Reform Act 

Department or DOL U.S. Department 

of Labor 

EEOC Equal Employment Opportunity 

Commission 

E.O. Executive Order 

EO Officer(s) Equal Opportunity 

Officer(s) 

ES Wagner-Peyser Act Employment 

Service 

ETA Employment and Training 

Administration 

FR Federal Register 

FTE(s) full-time equivalent(s) 

FY(s) Fiscal Year(s) 

IC(s) information collection(s) 

ICR(s) information collection 

request(s) 

IPA Intergovernmental Personnel Act 

of 1970 

IT information technology 

LEP limited English proficiency 

MOU(s) Memorandum/a of 

Understanding 

MSFW(s) migrant or seasonal 

farmworker(s) 

MSPA Migrant and Seasonal 

Agricultural Worker Protection Act 

NAICS North American Industry 

Classification System 

NFJP National Farmworker Jobs 

Program 

NMA National Monitor Advocate 

NPRM or proposed rule notice of 

proposed rulemaking 

O*NET Occupational Information 

Network 

OALJ Office of Administrative Law 

Judges 

OFLC Office of Foreign Labor 

Certification 

OIRA Office of Information and 

Regulatory Affairs 

OMB Office of Management and 

Budget 

OPM Office of Personnel Management 

OSHA Occupational Safety and Health 

Administration 

OWI Office of Workforce Investment 

PIRL Participant Individual Record 

Layout 

PRA Paperwork Reduction Act of 1995 

Pub. L. Public Law 

PY(s) Program Year(s) 

QCEW Quarterly Census of 

Employment and Wages 

RA(s) Regional Administrator(s) 

RESEA Reemployment Services and 

Eligibility Assessment 

RFA Regulatory Flexibility Act 

RIN Regulation Identifier Number 

RMA(s) Regional Monitor Advocate(s) 

Secretary Secretary of Labor 

SMA(s) State Monitor Advocate(s) 

SNAP Supplemental Nutrition 

Assistance Program 

SOC Standard Occupational 

Classification 

SSA Social Security Act 

Stat. United States Statutes at Large 

SWA(s) State Workforce Agency/ies 

TAA Trade Adjustment Assistance 

TANF Temporary Assistance to Needy 

Families 

UI unemployment insurance 

UMRA Unfunded Mandates Reform 

Act of 1995 

U.S.C. United States Code 

WHD Wage and Hour Division 

WIA Workforce Investment Act of 

1998 


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1https://www.dol.gov/agencies/eta/advisories/ 

unemployment-insurance-program-letter-no-12-01- 

change-2. 

WIOA Workforce Innovation and 

Opportunity Act 

II. Executive Summary 

The Department is amending its 

regulations regarding Wagner-Peyser 

Act staffing to require that States use 

State merit staff to provide ES services, 

except three States—Colorado, 

Massachusetts, and Michigan—that 

have longstanding reliance interests in 

using alternative staffing models. The 

final rule requires these three States to 

participate in rigorous multistate 

evaluation activities to be conducted by 

the Department to determine whether 

such models are empirically supported. 

This evaluation will include review of 

services delivered by States that use 

State merit-staffing, as necessary. 

In the NPRM, the Department 

proposed to require that all States use 

State merit staff to deliver ES services. 

The Department determined that it is 

vital for the ES to be administered so 

that States deliver services effectively 

and equitably to unemployment 

insurance (UI) beneficiaries and other 

ES customers, including services 

provided to MSFWs. In the NPRM, the 

Department reasoned that the demands 

placed on State UI systems by the 

economic impact of the coronavirus 

disease 2019 (COVID–19) pandemic 

highlighted the necessity of States to be 

able to rely on eligible ES State merit 

staff to be deployed to assist with UI 

activities that must be performed by 

State merit staff.1 The Department noted 

that States also have experienced the 

benefits of deploying ES State merit staff 

to assist with UI activities in response 

to recessions, the onset of natural 

disasters, and mass regional layoffs. The 

Department also noted that requiring 

States to utilize State merit staff to 

deliver ES services would help to 

ensure that ES services are delivered by 

qualified, nonpartisan personnel. These 

professionals would be required to meet 

objective professional qualifications, 

trained to assure high-quality 

performance, and expected to maintain 

certain transparent standards of 

performance. States would be required 

to assure that employees are treated 

fairly and protected against partisan 

political coercion. This final rule adopts 

the proposal that States are required to 

use State merit staff to deliver ES 

services, with one change explained in 

the following paragraph. 

While the Department maintains its 

position that aligning ES and UI 

promotes efficiency and uniformity in 

the operation of the ES, the Department 

also recognizes that three States— 

Colorado, Massachusetts, and 

Michigan—have been approved by the 

Department for decades to deliver ES 

services using staffing models 

alternative to full State merit-staffing. 

The Department received many 

comments on the NPRM regarding the 

longstanding reliance interests of these 

States and the potential disruptions to 

service delivery in these States 

specifically that could result from 

having to implement a complete State 

merit-staffing requirement. Based on 

these comments, the Department is 

permitting these three States, which 

were authorized to use alternative 

staffing models since the 1990s, to use 

the staffing model consistent with that 

previously authorized for that State. 

These three States may use the meritstaffing flexibility only to the same 

extent the Department previously 

authorized prior to February 5, 2020. 

Also, the final rule requires these three 

States to participate in rigorous 

evaluation activities to be conducted by 

the Department to determine whether 

such models are empirically supported. 

The Department is requiring that State 

Monitor Advocate (SMA) functions be 

performed by State merit staff in all 

States because SMAs monitor the State 

Workforce Agency (SWA), must report 

on SWA compliance to the State 

Administrator, and liaise between the 

SWA and external groups. Because the 

SMA position requires overseeing State 

agency functions and creating 

accountability for those functions, 

including discussing needed process 

improvements with State officials and 

ETA’s Regional and National Monitor 

Advocates, such oversight functions are 

more appropriately performed through 

State merit-staffing. 

The Department is additionally 

revising the ES regulations to strengthen 

the provision of services to MSFWs and 

to enhance the protections afforded by 

the Monitor Advocate System and the 

Complaint System. These changes 

include the following: 

• Better serving MSFWs and 

promoting equity in the workforce 

system, including requiring States to use 

State merit staff to provide ES services 

to MSFWs. 

• Revising several defined terms 

related to the provision of ES services to 

MSFWs to modify the criteria for 

designating significant MSFW one-stop 

centers and significant MSFW States, 

and to ensure that full-time students 

who otherwise meet the criteria set forth 

in the definitions will be afforded the 

same benefits and protections under the 

ES as other MSFWs. 

• Strengthening the role and status of 

SMAs, including requirements to help 

to ensure that States employ highly 

qualified candidates, that SMAs have 

the appropriate authority necessary to 

effectively carry out their duties, and 

that SMAs are not assigned duties that 

are inconsistent with their role to 

provide oversight. 

• Prohibiting the State Administrator 

or ES staff from retaliating against staff, 

including against the SMA, for 

monitoring or raising any issues or 

concerns regarding non-compliance 

with the ES regulations. 

• Requiring SMAs to conduct onsite 

reviews of one-stop centers regardless of 

whether the one-stop center is 

designated as a significant MSFW onestop center. 

• Requiring the SMA to establish an 

ongoing liaison with the State-level 

Equal Opportunity Officer (E.O. Officer) 

to enhance equity and inclusion for 

farmworkers. 

• Further specifying SWA staffing 

requirements for significant MSFW onestop centers. 

• Requiring SWAs to collect and 

report data on the number of reportable 

individuals who are MSFWs to help 

SWAs, SMAs, and ETA monitor equity 

in the provision of ES services to 

MSFWs. 

• Aligning the ES regulations with 

the language access requirements of the 

Workforce Innovation and Opportunity 

Act (WIOA) nondiscrimination 

regulations at 29 CFR 38.9 to reduce 

duplication and to ensure States provide 

the broadest language access protections 

available for MSFWs with limited 

English proficiency (LEP). 

• Strengthening outreach to MSFWs 

by, among other things, requiring SWAs 

to conduct outreach to MSFWs on an 

ongoing basis; specifying that all States 

must have some degree of outreach at all 

times and full-time outreach staff must 

spend 100 percent of their time on the 

outreach responsibilities described at 

§ 653.107(b); requiring SWAs to employ 

enough outreach staff to contact a 

majority of MSFWs in their States 

annually; prohibiting SWAs from 

relying on National Farmworker Jobs 

Program (NFJP) grantee activities as a 

substitute to meet outreach obligations; 

specifying that SWAs must ensure 

hiring officials put a strong emphasis on 

hiring qualified candidates for outreach 

staff positions; and requiring outreach 

staffing levels to align with and be 

supported by information in the 

Agricultural Outreach Plan (AOP) that a 

State must submit pursuant to 

§ 653.107(d). 

• Changing the record retention 

requirement for outreach logs from 2 


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82660 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

2Workforce Innovation and Opportunity Act; 

Department of Labor; Final Rule, 81 FR 56072 (Aug. 

19, 2016) (WIOA DOL-only Rule) (see 20 CFR 

652.215, 653.108, 653.111, 658.602). 

3See WIOA DOL-only Rule, 81 FR at 56267 and 

56341 (2016). 

years to 3 years to align with the Office 

of Management and Budget (OMB) 

Uniform Administrative Requirements, 

Cost Principles, and Audit 

Requirements for Federal awards to 

non-Federal Entities (Uniform 

Guidance) record retention 

requirements at 2 CFR 200.334. 

• Amending the information SWAs 

must include in their AOP to include 

the number of full-time and part-time 

outreach staff that the State will employ 

and a description of how the SWA 

intends to staff significant MSFW onestop centers in accordance with 

§ 653.111. 

• Removing ‘‘random’’ from the 

definition of field check to ensure SWAs 

are able to target the field checks that 

they conduct in response to known or 

suspected compliance issues. 

• Revising several regulations within 

part 658, subpart E, to conform with 

proposed revisions to definitions listed 

at § 651.10, remove redundancies and 

make other non-substantive technical 

edits, clarify or modify certain 

requirements, and improve equity and 

inclusion for MSFWs in the ES system. 

• Revising requirements for how ETA 

regional offices process complaints to 

align with the revised process SWAs 

must follow in referring 

nondiscrimination complaints under 

§ 658.411(c) and to refine other 

requirements applicable to regional 

offices. 

The Department also is making 

technical amendments and global edits 

to modernize the ES regulations, to 

clarify and use plain language, and to 

further promote equity by using genderinclusive language throughout the 

regulations. 

In the NPRM, the Department 

proposed an 18-month transition period 

for States to comply with the 

requirements in this rulemaking. Based 

on comments received on the NPRM 

indicating that States would need more 

time to comply, the Department is 

providing 24 months to comply with the 

provisions of the final rule. 

The final rule adds severability 

provisions in parts 652, 653, and 658. 

This final rule reflects changes made 

in response to public comments 

received on the NPRM that was 

published on April 20, 2022, at 87 FR 

23700. The Department received many 

comments from the public and 

nonprofit sectors, as well as private 

citizens. The Department considered 

these comments in determining this 

final rule, and the changes made to the 

regulatory text are detailed below in the 

Department’s responses to related 

comments. 

III. Background and Justification 

The Wagner-Peyser Act of 1933, 29 

U.S.C. 49 et seq., established the ES 

program, which is a nationwide system 

of public employment offices that 

provide public labor-exchange services. 

The ES program seeks to improve the 

functioning of the nation’s labor markets 

by matching job seekers with employers 

that are seeking workers. Section 3(a) of 

the Wagner-Peyser Act directs the 

Secretary of Labor (Secretary) to assist 

States by developing and prescribing 

minimum standards of efficiency and 

promoting uniformity in the operation 

of the system of public employment 

offices. See 29 U.S.C. 49b(a). This final 

rule amends regulations in 20 CFR parts 

651, 652, 653, and 658. With limited 

exceptions, the final rule requires States 

to use State merit staff to provide ES 

services, including services and 

activities under parts 653 and 658. The 

Department also is targeting revisions to 

the regulations at parts 651, 653, and 

658. These revisions are intended to 

ensure that SWAs provide MSFWs with 

adequate access to ES services and that 

the role of the SMA is effective. In 

addition, this final rule amends parts 

651, 652, 653, and 658 to further 

integrate gender-inclusive language. 

Finally, the Department is making 

technical corrections to these CFR parts 

to improve consistency across the parts 

and to make them easier to understand. 

Historically, the Department relied on 

its authority in secs. 3(a) and 5(b) of the 

Wagner-Peyser Act to require that ES 

services, including Monitor Advocate 

System activities for MSFWs and 

Complaint System intake, be provided 

by State merit-staff employees.2 The 

Department consistently applied this 

requirement, with limited exceptions, 

until 2020. Specifically, beginning in 

the early 1990s, the Department 

authorized demonstration projects in 

which it allowed Colorado and 

Massachusetts limited flexibility to set 

their own staffing requirements for the 

provision of ES services. Colorado was 

authorized to use county and State merit 

staff to deliver ES services. The State 

contracts for these services with county 

and State sub-recipients, but has not 

allowed further sub-contracting by the 

sub-recipients. Massachusetts was 

approved to use non-State-merit staff to 

provide ES services in just four of the 

State’s 16 local areas. In these local 

areas, the State has generally relied on 

local one-stop career center/American 

Job Center (AJC) staff for ES services. In 

1998, the Department permitted 

Michigan to use State and local meritstaff employees to deliver ES services, 

pursuant to a settlement agreement 

arising out of Michigan v. Herman, 81 

F. Supp. 2d 840 (W.D. Mich. 1998). 

Michigan was still required to use State 

merit staff for services to MSFWs, 

veterans, and individuals with 

disabilities. All three States continued 

to operate with staffing flexibility 

through their approved State plans,3

though all three also used State merit 

staff for the SMA position. Through 

rulemaking effective February 5, 2020, 

the Department removed the 

requirement that ES services be 

provided only by State merit staff. See 

Wagner-Peyser Act Staffing Flexibility; 

Final Rule, 85 FR 592 (Jan. 6, 2020) 

(2020 Final Rule). In the preamble to the 

2020 Final Rule, the Department 

explained that it sought to allow States 

maximum flexibility in staffing 

arrangements. Ibid. Accordingly, under 

the regulations in effect under the 2020 

Final Rule, several States were approved 

to use a variety of staffing models to 

provide ES services, as described in 

their approved State plans. 

In light of the events of the last few 

years, the Department has reassessed the 

approach adopted in the 2020 Final 

Rule and determined instead to reinstate 

the requirement that States use State 

merit staff to deliver ES services. State 

merit-staffing is a generally reliable 

method to ensure quality and 

consistency in ES delivery, and the 

demands placed on State UI systems by 

the economic impact of the COVID–19 

pandemic highlighted the necessity of 

States to be able to rely on eligible ES 

State merit staff to be deployed to assist 

with UI activities as needed. 

In adopting this State merit-staffing 

requirement, the Department relies on 

its authority under secs. 3(a) and 5(b)(2) 

of the Wagner-Peyser Act, as well as 

authority under sec. 208 of the 

Intergovernmental Personnel Act (IPA), 

42 U.S.C. 4728, as amended. Each of 

these provisions, standing alone, 

provides the Department with the 

authority to require States to use State 

merit staff to provide ES services. 

Specifically, sec. 3(a) of the WagnerPeyser Act requires the Secretary to 

assist in coordinating the ES offices by 

‘‘developing and prescribing minimum 

standards of efficiency.’’ 29 U.S.C. 

49b(a). As the court in Michigan v. 

Herman concluded, ‘‘the language in 

[sec. 3(a)] authorizing the Secretary to 

develop and prescribe ‘minimum 

standards of efficiency’ is broad enough 


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4 42 U.S.C. 4728(b); see also 5 CFR 900.605 

(authorizing Federal agencies to adopt regulations 

that require the establishment of a merit personnel 

system as a condition for receiving Federal 

assistance or otherwise participating in an 

intergovernmental program with the prior approval 

of OPM). 

to permit the Secretary of Labor to 

require merit staffing.’’ 81 F. Supp. 2d 

at 848. 

In addition, sec. 5(b)(2) of the WagnerPeyser Act provides that the Secretary 

shall from time to time certify to the 

Secretary of the Treasury for payment to 

each State that, among other things, ‘‘is 

found to have coordinated the public 

employment services with the provision 

of [UI] claimant services.’’ 29 U.S.C. 

49d(b). As explained previously, the 

State merit-staffing requirement would 

align the staffing of ES services with the 

staffing that States are required to use in 

the administration of critical UI 

services. Therefore, it is reasonable for 

the Department to base the finding 

required by sec. 5(b)(2) of the WagnerPeyser Act, in part, on a State’s 

agreement to use State merit staff to 

administer and provide ES services. 

Furthermore, sec. 208 of the IPA 

authorizes Federal agencies to require, 

as a condition of participation in 

Federal assistance programs, systems of 

personnel administration consistent 

with personnel standards prescribed by 

the Office of Personnel Management 

(OPM).4 In accordance with 5 CFR 

900.605, the Department submitted the 

proposed rule to OPM for review and 

received approval prior to the 

publication of the NPRM. 

In the IPA, 42 U.S.C. 4701, et seq., 

Congress found that the quality of 

public service could be improved if 

government personnel systems are 

administered consistent with certain 

merit-based principles. Requiring States 

to employ the professionals who deliver 

ES services in accordance with these 

principles would help ensure that ES 

services are delivered by qualified, nonpartisan personnel who are directly 

accountable to the State. Among other 

things, such professionals would be 

required to meet objective professional 

qualifications, be trained to assure highquality performance, and maintain 

certain standards of performance. See 42 

U.S.C. 4701. They would also be 

prohibited from using their official 

authority for purposes of political 

interference, and States would be 

required to assure that they are treated 

fairly and protected against partisan 

political coercion. Ibid. 

The Department acknowledges that 

this constitutes a change in its position 

taken under the 2020 Final Rule and 

requires certain States to adjust how 

they deliver ES services. The 

Department notes that Federal agencies 

are permitted to change their existing 

policies if they acknowledge the change 

and provide a reasoned explanation for 

the change. See, e.g., Encino Motorcars, 

LLC v. Navarro, 579 U.S. 211, 221–22 

(2016). In the NPRM, the Department 

acknowledged the proposed policy 

change and explained the reason for the 

change. The ES system is designed to 

‘‘promote the establishment and 

maintenance of a national system of 

public employment service offices,’’ 29 

U.S.C. 49, and the UI and ES systems 

together provide a basic level of 

employment support for more than 4 

million job seekers per year to enter and 

re-enter the workforce. The Department 

believes that it is vital that the ES be 

administered so that services are 

delivered effectively and equitably to UI 

beneficiaries and other ES customers. 

The COVID–19 pandemic and the 

ensuing demand placed on the UI 

system demonstrated a need for 

centrally trained, high-quality staff to be 

able to step in to assist States as needed. 

Further, the ES is a universal access 

program, and it is critical that it be 

administered by nonpartisan personnel 

held to transparent, objective standards 

designed to assure high-quality 

performance. A State merit-staffing 

requirement is a generally reliable 

method to ensure quality and 

consistency in delivery of ES services 

and supports the well-established 

connection between ES and UI services. 

As explained further in this preamble, 

the Department believes an evaluation 

of the alternative staffing models, 

though not legally required, is prudent 

to determine whether use of such 

alternative staffing models is 

empirically supported. 

The Department is further adjusting 

its position to account for the unique 

history of three States’ administration of 

ES services. Colorado, Massachusetts, 

and Michigan have been allowed by the 

Department to use various forms of nonState-merit staff models to deliver ES 

services since the 1990s. The 

Department acknowledges the 

longstanding reliance interests of these 

three States. The final rule allows these 

States to continue to use those 

alternative staffing models, but the 

States must continue to use merit staff 

to the same extent they were using it 

prior to February 5, 2020, the effective 

date of the 2020 Final Rule. Those are 

the staffing models on which the three 

States have decades-long reliance. 

Adopting a standard that preserves the 

level of merit-staffing each of the three 

States had been implementing since the 

1990s is reasonable and consistent with 

the final rule’s overall State meritstaffing requirement. 

Establishing a different standard for 

these three States is supported by the 

text of section 3(a) of the Wagner-Peyser 

Act, which permits the Department to 

establish ‘‘standards of efficiency.’’ The 

Department’s history of allowing these 

States to use alternative staffing models 

since the 1990s has created the present 

reality that requiring complete State 

merit-staffing in these three States 

would have a harmful effect on the 

States’ ES services and program 

participants. While the final rule 

explains above the benefits of requiring 

all the other States to use State merit 

staff to deliver all ES services, and the 

proposed rule articulated the strong 

preference for uniformity in staffing 

across all States, those interests are 

outweighed by the disruptive and 

negative effects that a complete State 

merit-staffing requirement would have 

on these States’ programs that have such 

long reliance on alternative staffing 

models. 

These three States have provided 

some initial justification and data for 

being able to continue using their 

longstanding alternative staffing models. 

These three States also provided 

information about the service disruption 

that would result from having to upend 

their longstanding service delivery 

models. However, the justifications and 

data presented do not provide clear 

evidence of causation. Therefore, the 

Department will further examine 

various staffing models and methods of 

delivering labor exchange services 

through a rigorous evaluation. Given the 

Department’s clear and supported 

policy preference for State merit-staffing 

in the ES program, it logically follows 

that the Department believes it is 

prudent to evaluate whether alternative 

staffing models are empirically 

supported. The rule requires these 

States’ participation in any evaluation 

activities about merit-staffing, which 

will likely consist of a single evaluation 

but may span more than one study, 

including any data collection associated 

with those evaluation activities. The 

Department will seek required 

approvals under the Paperwork 

Reduction Act for data collection, as 

necessary. This plan for evaluations is 

consistent with the Secretary’s authority 

under section 3(c)(2) of the WagnerPeyser Act, which requires the Secretary 

to ‘‘assist in the development of 

continuous improvement models for 

[the nationwide system of labor 

exchange services] that ensure private 

sector satisfaction with the system and 

meet the demands of jobseekers relating 


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82662 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

to the system, and identify and 

disseminate information on best 

practices for such system.’’ 29 U.S.C. 

49b(c)(2). The Department will conduct 

this evaluation of the three States’ 

provision of ES services, including 

review of services of other States that 

participate, as necessary, to determine 

whether such models are empirically 

supported. 

In the section-by-section discussion, 

the Department further explains why it 

is requiring that States use State merit 

staff to provide ES services. 

Comments Expressing Support for the 

Department’s Legal Authority for the 

State Merit-Staffing Requirement 

Comment: Some commenters, 

including unions, a State employee 

association, an advocacy organization, 

and private citizens, expressed support 

for the Department’s authority to 

institute a nationwide merit-staffing 

requirement in the Wagner-Peyser Act 

regulations for ES services. In particular, 

a State employee association, an 

advocacy organization, and private 

citizens agreed with the Department that 

clear legal authority for reinstituting a 

nationwide ES merit-staffing 

requirement is found under secs. 3(a) 

and 5(b) of the Wagner-Peyser Act, 

which give the Department authority to 

develop and prescribe minimum 

standards of efficiency for ES services 

and to promote uniformity in their 

administrative procedures. A union 

argued that the statutory requirement to 

prescribe minimum standards of 

efficiency and promote uniformity 

requires that States use merit staff to 

administer ES programs, citing studies 

the commenter said show that State 

merit-staffed ES offices deliver services 

more equitably and effectively. 

An advocacy organization and a State 

employee association argued that the 

proposed merit-staffing requirement is 

supported by the historical record and 

reinstates the Department’s 

longstanding requirement that ES 

services be administered by State merit 

staff. Specifically, according to these 

commenters, the Wagner-Peyser Act 

establishes ‘‘a national system of public 

employment service offices’’ and, 

because a principal component of a 

public system is State government 

employees who are hired and promoted 

on a merit basis under a civil service 

system, the Department argued in 

Michigan v. Herman that merit-based 

staffing is required by the WagnerPeyser Act because Congress intended 

merit-staffing to be a key component of 

‘‘public’’ employment service. 

Similarly, a private citizen argued that 

the Wagner-Peyser Act’s use of the word 

‘‘public’’ clearly falls within the word’s 

common dictionary usage as something 

‘‘of or relating to government.’’ Given 

that the Wagner-Peyser Act defines 

‘‘employment service office’’ as ‘‘a local 

office of a State agency,’’ this 

commenter concluded that the WagnerPeyser Act created a network of State 

governmental ES offices. Similarly, the 

commenter argued that the statutory text 

does not envision using local agencies 

to provide ES services. Referencing 1998 

and 2014 amendments to the WagnerPeyser Act, this commenter said that 

Congress has never altered the language 

providing authority for the Secretary to 

require merit-staffing for ES services. In 

conclusion, this commenter argued that 

‘‘claims of flexibility do not give the 

Department sufficient legal authority to 

permit local agencies, community 

colleges, local governments, or other 

entities to [provide] ES [services] in 

substitution of state agency merit-staffed 

employees,’’ although a State is free to 

provide additional resources to job 

seekers beyond ES-staffed services. 

A union commented that the WagnerPeyser Act’s creation of nationwide ES 

offices was intended to displace and 

transform the ineffectual system of 

employment placement services 

available to the jobless that existed prior 

to the Act’s passage. The commenter 

described that system as a patchwork, 

fragmented, and inequitable system that 

consisted primarily of private agencies, 

which the commenter said were usually 

exploitative, predatory, and corrupt, as 

well as a handful of local public 

employment offices, which the 

commenter asserted were tainted by 

underfunding, patronage hiring, and 

political influence. 

Asserting that Congress has reaffirmed 

the Wagner-Peyser Act’s requirement of 

merit-staffing over time, an advocacy 

organization said that the 

Intergovernmental Personnel Act of 

1970 (IPA) specifically named the 

Wagner-Peyser Act as one of two acts 

administered by the Department that 

transferred merit authority to the Civil 

Service Commission (succeeded by 

OMB). Further, according to the 

commenter, the Civil Service Reform 

Act (CSRA) in 1978 amended the IPA to 

make clear the intent that merit system 

guarantees for public employees are to 

remain a condition of Wagner-Peyser 

Act funding to States. In support of this 

assertion, one of the commenters cited 

Pub. L. 95–454 (Oct. 13, 1978), 92 Stat 

1111, which the commenter stated 

added subsection (h) to 42 U.S.C. 4271 

to exempt the Wagner-Peyser Act’s 

merit-staffing requirement, among 

others, from the CSRA provision 

otherwise abolishing all statutory 

personnel requirements established as a 

condition of the receipt of Federal 

grants-in-aid by State and local 

governments. 

Additionally, a State employee 

association asserted that the State meritstaffing requirement is rooted in the 

Wagner-Peyser Act’s provisions giving 

the Department the authority to develop 

and prescribe minimum standards of 

efficiency for public employment 

services and to promote uniformity in 

their administrative procedure. Finally, 

these commenters remarked that, when 

the Department attempted to change its 

legal interpretation of the WagnerPeyser Act in 2006, Congress reaffirmed 

its position by blocking the proposal by 

including language in the Fiscal Year 

(FY) 2007 and subsequent annual 

appropriations to prohibit the 

Department from taking such action. A 

State employee association commented 

that this 90-year history of the ES State 

merit-staffing requirement remaining in 

place through statutory amendments 

and court decisions is highly suggestive 

of a Congressional intent to require the 

delivery of ES services by merit-based 

employees. 

An advocacy organization and a State 

employee association discussed 

additional components of the WagnerPeyser Act historical record that they 

said supported the necessity of delivery 

of ES services by qualified, non-partisan 

personnel who are directly accountable 

to the State. For example, the 

commenters said the first ES director 

concluded that, to avert patronage and 

favoritism in hiring, State ES programs 

were legally required to adopt merit 

personnel systems for appointments and 

promotions. These commenters and a 

union also stated that, as States adopted 

companion laws to conform with the 

Wagner-Peyser Act in the 1930s, the 

Department withheld certification of 

nine States until they provided 

assurances that they would merit staff 

any State-administered public 

employment office. 

A State employee association quoted 

the CSRA implementing regulations as 

describing the Wagner-Peyser Act meritstaffing requirement as ‘‘a statutory 

requirement for the establishment and 

maintenance of personnel standards on 

a merit basis’’ in Wagner-Peyser Actfunded programs (5 CFR part 900, 

subpart F, Appendix A). Further, this 

commenter quoted the final rule 

implementing the Workforce Investment 

Act of 1998 (WIA) in which the 

Department responded to inquiries 

asking if States may seek a waiver of the 

merit-staffing requirement for its ES 

program by stating, ‘‘The requirement 

that Wagner-Peyser Act services be 


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provided by State merit staff employees 

derives from sections 3 and 5(b)(1) of 

the Wagner-Peyser Act. Accordingly, we 

do not intend to, nor do we have 

authority to entertain or grant waivers of 

the Wagner-Peyser Act merit-staffing 

requirement.’’ 65 FR 49294, 49306 (Aug. 

11, 2000). 

Citing the public comment it 

submitted on the 2019 proposal to allow 

ES services to be provided under 

flexible staffing models, an advocacy 

organization said that, for more than 85 

years, Congress acted many times to 

require merit-staffing in the ES program 

to guarantee workers receive unbiased 

and high-quality employment services. 

Response: The Department generally 

agrees with these commenters that the 

Department has authority to require 

State merit-staffing under the WagnerPeyser Act and the IPA. The Department 

also generally agrees that Congressional 

actions over time have affirmed the 

Department’s authority to require State 

merit-staffing. The Department weighed 

this authority and historic precedent 

when it proposed uniform State meritstaffing in the NPRM. As explained 

above, the Department also weighed the 

public comments that described the 

detrimental effects that the uniform 

requirement would have on the three 

States with longstanding reliance on 

using alternative staffing models. 

Congress’ decision not to disturb these 

three States’ alternative staffing models 

when it passed both WIA and WIOA 

suggests Congressional acquiescence 

with these States’ arrangements. The 

Department is therefore returning to the 

longstanding requirement of State meritstaffing for ES, with the limited 

exception that Colorado, Massachusetts, 

and Michigan may continue to use the 

alternative staffing models they had 

been using before the 2020 Final Rule 

became effective. This includes the 

requirement that these three States use 

merit-staffing to deliver ES services to 

the same extent they had been using it. 

Comments Expressing Concerns About 

the Department’s Legal Authority 

Comment: Some commenters, 

including an association of workforce 

boards, a think tank, and a one-stop 

center employee, expressed doubts 

about the Department’s interpretation of 

its legal authority to require nationwide 

merit-staffing for ES services. In 

particular, an association of workforce 

boards and a think tank commented that 

the Wagner-Peyser Act does not 

mandate a one-size-fits-all staffing 

model. Specifically, an association of 

workforce boards asserted that the 

Wagner-Peyser Act does not explicitly 

require that ES staff in States be meritbased, nor do existing statutes speak 

specifically to State merit-staffing 

requirements for ES offices. This 

commenter stated that the Michigan v. 

Herman court suggested that the 

Department may interpret section 3(a) of 

the Wagner-Peyser Act to permit staffing 

flexibility, based on the court’s 

statements that the Wagner-Peyser Act 

‘‘does not explicitly require meritstaffing’’ and that the language of 

section 3(a) is ‘‘broad enough to permit 

[the Department] to require meritstaffing.’’ Further, the commenter 

remarked that, since the Michigan v. 

Herman ruling, the Department has 

twice affirmed that Federal law does not 

require delivery of ES services by State 

merit staff: (1) allowing existing 

exemptions from ES State merit-staffing 

requirements to continue (2016), and (2) 

the 2020 Final Rule. The commenter 

concluded that dictating to States and 

local communities how to appropriately 

staff ES offices is a Departmental 

interpretation that will cause significant 

disruption and harm to the workforce 

system. 

Response: The Department proposed 

in the NPRM to require that all States 

use State merit staff to provide ES 

services. The Department has 

considered the alternative viewpoints 

provided. As these commenters noted, 

the Wagner-Peyser Act does not require 

the use of State merit staff for ES 

services, but the Act does provide the 

Secretary with discretion to require 

State merit-staffing, as explained above. 

State merit-staffing for ES services is 

widely used in many States and its 

requirement will not create disruption 

for the vast majority of States. Upon 

consideration of the public comments 

that described the detrimental effects 

that the State merit-staffing requirement 

would have on the three States with 

longstanding reliance on alternative 

staffing models, the Department will 

allow the three States with such reliance 

to continue use of the models they had 

been using prior to February 5, 2020, the 

effective date of the 2020 Final Rule. 

Further, the Department is committed to 

evaluating ES programs in these States 

to determine whether such models are 

empirically supported. With respect to 

States that may have adopted ES staffing 

flexibilities as a result of the 2020 Final 

Rule, the Department understands there 

may be some additional costs associated 

with the transition from non-merit staff 

to State merit staff. In response to 

comments, the Department is providing 

a 24-month compliance period from the 

effective date of this final rule to 

minimize disruption of services in those 

States. 

IV. General Comments on the Proposed 

Rule 

The NPRM, published on April 20, 

2022, invited written comments from 

the public concerning the proposed 

rulemaking; the comment period closed 

on June 21, 2022. The comments 

received on the NPRM may be viewed 

at https://www.regulations.gov by 

entering docket number ETA–2022– 

0003. 

The Department received timely 

comment submissions from 1,090 

commenters, of which 776 were unique. 

The Department identified 12 form 

letter campaigns, which were read and 

considered with the other comments 

received. The Department also received 

additional comments that were 

duplicates or not related to the subject 

of this rule. The commenters 

represented a range of stakeholders from 

the public and nonprofit sectors. Public 

sector commenters included State and 

local government agencies, local 

workforce development boards, and 

one-stop operators. Nonprofit sector 

commenters included public policy 

organizations, advocacy groups, 

national and local labor unions, and a 

trade association. Of the unique 

comments, nearly one-third came from 

SWAs. The Department also received 

several comments from private citizens. 

These comments are addressed in the 

summary of general comments and the 

section-by-section discussion. About 

half of the unique comments supported 

aspects of the proposal but opposed 

others, while a smaller number 

conditioned their support for the 

proposal on the Department adopting 

certain changes in this final rule. 

Summary of General Comments on the 

Proposed Rule 

Comment: A State government agency 

expressed its support for the rule on the 

grounds that the State already provides 

ES services with State merit staff only 

and thus the rule would require no 

change in its operations. 

Several commenters, mostly private 

citizens, expressed general support for 

the proposed merit-staffing requirement 

without providing detailed rationale or 

supporting data. Some arguments 

provided by commenters supporting the 

rule included: 

• States are better equipped than 

local areas or contractors to administer 

ES services professionally, consistently, 

and with greater transparency and 

accountability. 

• A State merit-staffing requirement 

would ensure the (UI) system remains 

effective in times of need. 

• State merit staff have consistently 

provided job seekers with career 


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enhancement and reemployment 

services to ensure they have productive 

lives. 

A union called the proposed rule a 

policy correction from the 2020 Final 

Rule and agreed the proposed rule is 

appropriate, given the environment in 

which that rule was developed 

(historically low demand for ES services 

and UI) and the subsequent severe labor 

market impacts of the COVID–19 

pandemic that sent demand for ES and 

UI services surging. Similarly 

supporting the return to the pre-2020 

standard for ES staffing, a farmworker 

advocacy organization commented that 

the decision to depart from a meritbased staffing model was unsupported 

by the Department’s own findings on 

the efficiency of merit-based staffing. 

Specifically, this commenter cited a 

2004 ETA study that they said 

compared merit-based ES staffing 

models with non-merit models, and it 

found that the States with non-merit 

models listed significantly fewer jobs 

and fewer referrals and job placement 

than merit-based staffing States. 

Response: The Department is 

adopting the proposed State meritstaffing requirement as a generally 

reliable method to ensure quality and 

consistency in ES delivery and one that 

supports the well-established 

connection between ES and UI services. 

The Department notes that it has 

allowed three States to use alternative 

staffing models for decades, and these 

States have provided some justification 

and data for being able to keep such 

models. The States also provided 

information about the service disruption 

that would result from having to upend 

their longstanding service delivery 

models. However, the justifications and 

data presented do not provide clear 

evidence of causation; that is, no 

compelling data emerged in the public 

comment period or in previous research 

that showed that alternative staffing 

models are the cause of higher or more 

consistent employment outcomes. 

While the Department recognizes the 

decades-long practice on which three 

States rely, such partial and correlationonly data are not sufficient to expand 

these models to other States, especially 

not when, as explained in the NPRM, 

fluctuations in UI demand from a 

pandemic or natural disasters clearly 

show a need for centrally trained, highquality staff to be able to step in to 

bolster State review of UI claims and 

appeals if needed. 

Therefore, the Department is adopting 

the State merit-staffing requirement as 

proposed with a partial adjustment: the 

final rule is requiring all States, except 

Colorado, Massachusetts, and Michigan, 

to use State merit staff to provide ES 

services. The Department will further 

examine various staffing models and 

methods of delivering labor exchange 

services through a rigorous evaluation, 

as discussed above. Given the 

Department’s clear and supported 

policy preference for State merit-staffing 

in the ES program, the Department 

believes it is prudent to evaluate the 

delivery of ES services using the 

experience of States operating 

longstanding alternative staffing models 

to determine whether such models are 

empirically supported. The three States 

with decades-long reliance on using 

alternative staffing models may use the 

same service-delivery models they used 

prior to February 5, 2020, and will be 

required to participate in this 

forthcoming evaluation activities. All 

other States will have 24 months to 

comply with the requirement to use 

State merit staff to provide all ES 

services. 

Comment: Several commenters, 

including one-stop center staff and 

private citizens, opposed the proposed 

merit-staffing requirement. Some 

arguments provided by commenters 

against the proposed merit-staffing 

requirement included: 

• Commenters from States operating 

longstanding alternative staffing models 

stated that they view local resource 

centers and the services they provide as 

essential. 

• Commenters from States operating 

longstanding alternative staffing models 

stated that the change would ruin the 

one-stop service model that provides 

seamless, equitable services that 

facilitate real-time, meaningful referrals. 

• Commenters stated that the Federal 

government has consistently 

demonstrated inadequacy when it 

comes to administration of programs 

that directly affect those at the local 

level. 

• Commenters from States operating 

longstanding alternative staffing models 

stated that there is great value in staffing 

local offices with local staff rather than 

State merit employees. Each individual 

and business has their own unique 

challenges to progress, development, 

and success, which can only be 

understood and addressed at the local 

level. 

• Commenters from States operating 

longstanding alternative staffing models 

stated that the proposed change would 

redirect responsibilities and funds to the 

State, which would be a mistake. The 

commenters said that the current system 

at the local level is working well 

without any issues. 

• Commenters from States operating 

longstanding alternative staffing models 

stated that the proposed change would 

harm job seekers and businesses, 

resulting in lower quality and fewer 

services being provided, including 

services to veterans, immigrant and 

refugee navigator services, Clean Slate 

services for formerly incarcerated 

people, support navigating the UI 

benefits process, job training, career 

events, job fairs, and industry led 

collaboratives. 

• Commenters from States operating 

longstanding alternative staffing models 

stated that the proposed rule would 

have a negative impact on local 

communities, including causing job 

centers to close and the loss of many 

jobs. The loss of centers would also 

impact students who rely on local 

offices to assist with educational 

support and other assistance. 

Many private citizens from States 

operating longstanding alternative 

staffing models provided personal 

experiences asserting the value and 

need for services at one-stop centers, 

which they stated would be impacted if 

a State merit-staffing requirement 

changed the availability of services or 

the number of one-stop centers. Other 

commenters, including one-stop center 

staff, described their experience as local 

merit staff or working with the 

workforce development system and the 

positive impact on the community. 

Response: The Department proposed 

to require that all States use State merit 

staff to provide ES services and has 

considered reasons provided by these 

commenters for opposing the proposed 

rule. The proposal to require State merit 

staff does not preclude the State from 

providing services locally, and the vast 

majority of States provide high quality 

services in one-stop centers with a mix 

of State merit staff delivering ES locally 

and other staff providing other services 

locally. Without evidence that 

alternative staffing models directly 

cause higher employment outcomes, 

balanced against widespread success in 

delivering services while maintaining 

State merit staff for ES, and further 

balanced by the need for ES State merit 

staff to be available for surges in UI 

claims and appeals, the Department is 

generally adopting the proposed 

requirement that States use State merit 

staff to provide ES services. 

However, the Department recognizes 

that three States (Colorado, 

Massachusetts, and Michigan) have 

been allowed to administer ES services 

using alternative staffing models for 

decades. The Department understands 

that these States’ long experience with 

their particular models results in an 

affinity and preference for their model. 

During the comment period, these States 


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provided information that the State 

merit-staffing requirement proposed to 

be applied to all States would have 

extremely detrimental impacts on the 

provision of ES services in these three 

States because of the facts and 

circumstances, particularly the decadeslong reliance interests, in these States. 

Based on this information, the 

Department is adjusting the final rule 

from the original proposal. The final 

rule requires all States, except the three 

States with decades-long reliance on 

using alternative staffing models, to use 

State merit staff to provide ES services. 

The expansion of alternative staffing 

models to additional States occurred 

without study, before the landscapealtering impact of the pandemic on the 

UI and workforce system. The 

Department will require the three States 

to participate in a rigorous evaluation of 

the services provided in the three 

alternative States to determine if using 

alternative models benefit ES service 

delivery. All other States will have 24 

months to comply with the requirement 

to use State merit staff to provide ES 

services. 

Comment: Several commenters, 

including private citizens, presented a 

mixed stance or unclear position on the 

proposed rule. Many commenters, 

including private citizens, employers, 

and one-stop center staff, discussed 

Michigan’s public workforce system, 

known as Michigan Works!, without 

addressing the proposed rule. Other 

commenters, including a trade 

association, career service provider, and 

employer, generally discussed the 

importance of programs or 

‘‘communities.’’ A one-stop center 

employee commented that ES services 

offer job seekers help navigating the UI 

process. 

Response: The Department agrees that 

one-stop centers are valuable assets in a 

community, often provide services to a 

wide range of individuals, and are 

instrumental in shaping a local 

workforce’s skills as part of larger 

economic development. The 

Department also notes that one-stop 

centers play this role across the country, 

including in the vast majority of States 

that maintain State merit staff in 

delivering ES services. Changes in how 

a one-stop center operates can impact a 

local community, and thus the 

Department weighs such impacts very 

carefully in its regulations. The 

Department recognizes the significant 

challenges that a return to State meritstaffing would present for States with 

decades-long reliance on using 

alternative models. Therefore, after 

serious consideration of comments 

received from the public, the 

Department is requiring all States to use 

State merit staff to deliver ES services, 

except the three States that have been 

allowed to use alternative staffing 

models for decades. Due to their 

longstanding reliance, these States are 

permitted to use merit-staffing 

flexibility to the same extent the 

Department allowed them to use it 

before the 2020 Final Rule became 

effective, but the Department is not 

permitting them to expand their staffing 

flexibility any further. 

Comment: An anonymous commenter 

asked whether State merit staff will be 

required to colocate in one-stop centers. 

Response: WIOA requires ES offices 

to be colocated in AJCs, also known as 

one-stop centers, regardless of the 

staffing model used. This is unchanged 

under this final rule. 

Comment: An anonymous commenter 

asked whether Federal appropriations 

will provide adequate resources to 

support the recruitment, hiring, and 

training of ES State merit staff or if the 

costs will be assumed by the States. 

Response: Recruiting, hiring, and 

training ES staff is an allowable cost for 

ES grants to States. In considering this 

comment, the Department determined 

that a greater amount of Federal funding 

is available now compared to other 

years. The FY 2022 and FY 2023 

appropriations each provided an 

increase for Wagner-Peyser Employment 

Service grants to States over the years 

prior. In FY 2023, Congress 

appropriated $5 million more than in 

FY 2022 for the ES formula grants to 

States, which are the grants allotted to 

States to operate the ES. With the 

increased funding, the Department 

expects the ES to serve approximately 

20,000 more individuals nationwide in 

2023 (2,913,438). The estimates are not 

dependent on the type of staffing model 

a State uses to deliver ES services. The 

States’ latest financial reports show that 

many States, including those States that 

must make changes to come into 

compliance with the final rule’s State 

merit-staffing requirement, still have 

previous years’ ES grant funds not yet 

expended. One of these States has 

expended under half of its Program Year 

(PY) 2022 allotment, and all of these 

States had lower expenditure rates in 

PY 2022 than in previous years. The 

Department notes that many States have 

used general funds made available 

under the American Rescue Plan Act 

and other resources to bolster overall 

workforce development services. 

Therefore, compared to other years, this 

is an appropriate time for a transition 

back to the use of State merit staff 

because of the above average resources 

available. 

Comment: An anonymous commenter 

asked what impact implementation of 

the proposed rule will have on the 

monitor advocate requirements. 

Response: Because the Monitor 

Advocate System is a part of the 

Wagner-Peyser ES, the requirement for 

States to use State merit staff for ES 

services also applies to Monitor 

Advocate services described at parts 653 

and 658. Aside from Colorado, 

Massachusetts, and Michigan, the 

Department is requiring States to use 

State merit staff to conduct outreach to 

MSFWs, as described at § 653.107. 

Colorado, Massachusetts, and Michigan 

must use merit-staffing for MSFW 

outreach to the same extent authorized 

in their approved longstanding 

alternative staffing model. This means 

that if the State was required to use 

State merit staff for MSFW outreach (as 

in the case of Michigan) prior to 

February 5, 2020, then the State must 

continue to use State merit staff for 

MSFW outreach. If the State was 

permitted to use a combination of local 

merit staff and State merit staff for 

MSFW outreach prior to February 5, 

2020, then the State must continue 

using merit staff for MSFW outreach. 

The Department is also requiring all 

States to use State merit staff to fulfill 

their SMA responsibilities, as described 

at § 653.108. Colorado, Massachusetts, 

and Michigan all use State merit staff for 

the SMA position as part of their 

longstanding staffing model and are 

required to continue doing so. All States 

will have 24 months to comply with this 

final rule. 

Comment: The Department received 

several comments that were beyond the 

scope of the proposed rule and included 

issues with the processing of UI claims, 

the politics of social justice campaigns, 

the status of pandemic unemployment 

assistance, and the actions of President 

Biden’s administration generally. 

Response: These are issues that 

cannot be resolved or implemented 

through this regulatory process or are 

not within the Department’s purview. 

V. Section-by-Section Discussion of 

Final Rule 

The discussion below details the 

decisions the Department made in 

adopting the final rule text. It responds 

to section-specific comments and 

explains any changes made in response 

to those comments. If the Department 

did not receive comments regarding a 

particular section, that section is not 

discussed in detail below, and the final 

rule adopts that section as proposed for 

the reasons set forth in the NPRM. The 

Department also has made 

nonsubstantive changes to the 


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regulatory text to correct grammatical 

and typographical errors, in order to 

improve the readability and conform the 

document stylistically, that are not 

discussed in detail below. 

A. Technical Amendments and Global 

Edits 

In the NPRM, the Department 

proposed several technical amendments 

and global changes, as discussed in 

detail below. The Department did not 

receive substantive comments on these 

proposed changes, and it adopts them as 

proposed in the final rule. 

To conform with the proposed 

changes to the definition of WagnerPeyser Act Employment Service (ES) 

also known as Employment Service (ES) 

in § 651.10, the Department is making 

technical changes to replace the phrases 

‘‘employment services,’’ ‘‘WagnerPeyser Act services,’’ and ‘‘services 

provided under the Wagner-Peyser Act’’ 

with ‘‘ES services.’’ Changes also have 

been made to replace the phrase 

‘‘employment office’’ with ‘‘ES office,’’ 

and ‘‘Wagner-Peyser Act participants’’ 

with ‘‘ES participants.’’ These changes 

will simplify and standardize the use of 

terminology. The language is also 

intended to improve usage of plain 

language within the regulations. 

Technical changes to articles, 

specifically changing ‘‘a’’ to ‘‘an’’ where 

necessary, have been made as well 

when preceding ‘‘ES office.’’ These 

changes have been made in § 651.10 

within the definitions of applicant 

holding office, Employment Service (ES) 

office, field visits, outreach staff, 

placement, and reportable individual, in 

addition to the changes in the definition 

of Wagner-Peyser Act Employment 

Service (ES) also known as Employment 

Service (ES). Conforming changes have 

also been made to the subpart heading 

at part 652, subpart C, and within the 

regulatory text at §§ 652.205, 652.207, 

652.215, 653.107, 653.108, 658.411, 

658.502, 658.602, and 658.603. 

The Department is adopting several 

technical edits to refine genderinclusive language within the regulatory 

text while maintaining plain language 

principles. Throughout parts 651, 653, 

and 658, the term ‘‘he/she’’ was used to 

denote an individual of unknown 

gender. Using terms with a slash may 

not be in keeping with plain language 

principles and may also exclude people 

who are nonbinary. The Department has 

made three technical edits to replace 

‘‘he/she’’ with more inclusive language 

employing plain language principles. 

First, where ‘‘he/she’’ refers to an 

individual in their professional 

capacity, the Department uses their job 

title instead of a pronoun. These edits 

largely affect regulations impacting the 

National Monitor Advocate (NMA) or 

the Regional Monitor Advocate (RMA). 

In these cases, ‘‘he/she’’ has been 

replaced with ‘‘the NMA’’ or ‘‘the RMA’’ 

as appropriate and ‘‘his/her’’ with the 

possessive pronoun ‘‘their.’’ These edits 

are made as proposed at §§ 658.602 and 

658.603. 

Second, where ‘‘he/she’’ refers to an 

employer that is not an individual 

person, the Department uses the 

pronoun ‘‘it.’’ Where the possessive 

pronouns ‘‘his/her’’ were used, the 

Department proposed using ‘‘its.’’ This 

is appropriate because employers are 

entities, not individuals, and the proper 

pronoun is ‘‘it.’’ This edit is made as 

proposed at §§ 658.502 and 658.504. 

In all other cases where ‘‘he/she’’ was 

used, the Department uses the pronoun 

‘‘they’’ in its capacity as a genderinclusive third-person singular pronoun 

but conjugated with third-person plural 

verbs. Where the possessive pronouns 

‘‘his/her’’ were used, the Department 

proposed using ‘‘their.’’ These changes 

are designed to remove binary gender 

language so that the regulatory text is 

gender inclusive. The Department 

makes these changes as proposed in 

§ 651.10 in the definition of seasonal 

farmworker. Edits are also made as 

proposed to §§ 653.107, 653.108, 

653.111, 653.501, 653.502, 658.400, 

658.410, 658.411, 658.421, 658.422, 

658.602, 658.603, 658.702, 658.705, 

658.706, and 658.707. 

In addition, the Department replaces 

the words ‘‘handle’’ and ‘‘handled’’ with 

‘‘process’’ and ‘‘processed,’’ as 

appropriate, to clarify that actions by ES 

staff and Federal staff must follow the 

processing requirements listed 

throughout part 658, subparts E and H, 

which use the word ‘‘process.’’ The 

word ‘‘handle’’ does not have a specific 

meaning in the regulatory text and may 

be unclear to SWAs. 

In some instances, the Department 

also made conforming technical 

amendments to correct grammar in the 

regulations, as needed, because of these 

changes. In addition to such conforming 

technical amendments, the Department 

added and removed commas throughout 

the regulatory text to improve clarity 

and readability. These global changes 

and technical amendments described in 

this section are not explicitly identified 

later in the section-by-section 

discussion. 

Finally, the Department is correcting 

the citation for its rulemaking authority 

for parts 651 and 652. 

B. Part 651—General Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

Part 651 (§ 651.10) sets forth 

definitions for parts 652, 653, 654, and 

658. In the NPRM, the Department 

proposed to define several new terms in 

this section and to make revisions to a 

number of other terms that were already 

defined in this section. The Department 

received comments on some of the 

proposed additions and revisions. After 

carefully considering these comments, 

the Department has decided to adopt 

most of the additions and revisions as 

proposed, with exceptions, as discussed 

in detail below. 

Apparent Violation 

The Department proposed to add a 

definition for apparent violation to 

clarify that the term means a suspected 

violation of employment-related laws or 

ES regulations, as set forth in § 658.419. 

Comment: A State government agency 

appreciated the Department’s efforts to 

define apparent violation but felt that 

additional clarification was required to 

aid implementation. This commenter 

suggested that the Department clarify 

the proposed definition of apparent 

violation by adding the following 

language at the end: ‘‘for which ES staff 

observes, has reason to believe, or is in 

receipt of information that a violation 

has occurred.’’ 

Response: The Department agrees that 

the proposed definition for this term 

should be clarified by specifying that ES 

staff process apparent violations. In 

reviewing the commenter’s suggestion, 

the Department further identified that it 

would be beneficial to include in the 

definition that apparent violations relate 

to information received about suspected 

employer noncompliance, as § 658.419 

has historically described. Additionally, 

upon further review of the NPRM, the 

Department is further clarifying the 

definition of apparent violation to state 

explicitly that the definition does not 

include complaints as defined in 

§ 651.10. This change is meant to make 

the distinction between complaints and 

apparent violations clearer. The 

Department is also removing the 

parenthetical ‘‘as set forth in § 658.419 

of this chapter’’ because it is 

unnecessary with the changes the 

Department is making in § 658.419 to be 

more clearly consistent with this 

definition. Accordingly, the Department 

has decided to amend the definition of 

apparent violation adopted in this final 

rule to mean ‘‘a suspected violation of 

employment-related laws or 

employment service (ES) regulations by 

an employer, which an ES staff member 


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observes, has reason to believe, or 

regarding which an ES staff member 

receives information (other than a 

complaint as defined in this part).’’ 

Applicant Holding Office 

The Department proposed to amend 

the definition of applicant holding 

office to replace ‘‘a Wagner-Peyser 

Employment Service Office’’ with ‘‘an 

ES office,’’ and did not receive any 

comments on this proposed change. 

This change is consistent with the 

changes proposed to the definition of 

Wagner-Peyser Employment Service (ES) 

also known as Employment Service (ES). 

The Department adopts the revision to 

‘‘applicant holding office’’ as proposed. 

Bona Fide Occupational Qualification 

(BFOQ) 

As noted in the preceding section on 

technical amendments and global edits, 

the Department added commas 

throughout the regulatory text to 

improve clarity and readability, 

including in the first sentence of the 

definition of bona fide occupational 

qualification (BFOQ). The Department 

did not receive any comments on this 

proposed change. In this final rule, the 

Department adds a necessary crossreference to the EEOC’s regulation 

regarding national origin found at 29 

CFR part 1606 and corrects the crossreference to the EEOC’s BFOQ 

regulation found at 29 CFR part 1627. 

Career Services 

The Department proposed to amend 

the definition of career services to refer 

to WIOA by its acronym rather than its 

full title because the full title is 

previously spelled out at the beginning 

of this section. The Department did not 

receive any comments on this proposed 

change and adopts it as proposed. 

Clearance Order 

The Department proposed to amend 

the definition of clearance order to add 

a citation to the Agricultural 

Recruitment System (ARS) regulations 

at part 653, subpart F. The purpose of 

this addition is to clearly identify the 

ARS regulations to which the term 

refers. The Department did not receive 

any comments on this proposed change 

and adopts it as proposed. 

Complaint System Representative 

The Department proposed to amend 

the definition of Complaint System 

Representative to specify that the 

Complaint System Representative must 

be trained. The addition of the word 

‘‘trained’’ makes the definition 

consistent with the requirement in 

§ 658.410(g) and (h) that complaints are 

processed by a trained Complaint 

System Representative. The Department 

also proposed to remove the words 

‘‘individual at the local or State level’’ 

due to proposed changes to the 

definition of ES staff. The Department 

did not receive any comments on the 

changes proposed to the definition of 

complaint system representative. While 

the Department is not adopting the 

changes that it proposed to the 

definition of ES staff, the reference to an 

‘‘individual at the local and State level’’ 

in the definition of complaint system 

representative is not necessary 

regardless of whether the Department 

revises the definition of ES staff. 

Accordingly, the Department adopts the 

proposed revisions to the definition of 

complaint system representative, 

including the removal of these words, 

without change. 

Decertification 

The Department proposed to amend 

the definition of Decertification to 

specify that the Secretary to which this 

definition refers is the Secretary of 

Labor. The Department did not receive 

any comments on this proposed change 

and adopts it as proposed. 

Employment and Training 

Administration 

The Department proposed to amend 

the definition of Employment and 

Training Administration (ETA) to 

remove the words ‘‘of Labor’’ after 

‘‘Department’’ because Department is 

previously defined in this section as 

‘‘the United States Department of 

Labor.’’ The Department did not receive 

any comments on this proposed change 

and adopts it as proposed. 

Employment Service (ES) Office and 

Employment Service (ES) Office 

Manager 

The Department proposed to amend 

the definition of Employment Service 

(ES) office to replace ‘‘Wagner-Peyser 

Act’’ with ‘‘ES,’’ to align with other 

proposed changes to the regulatory text. 

The Department further proposed to 

amend the definition of Employment 

Service (ES) Office Manager to replace 

the phrase ‘‘all ES activities in a onestop center’’ with the phrase ‘‘ES 

services provided in a one-stop center,’’ 

to align with other proposed changes to 

the regulatory text. In the same 

definition, the Department also 

proposed to replace ‘‘individual’’ with 

‘‘ES staff person’’ to clarify that the ES 

Office Manager must be ES staff, as 

defined in this section. 

Comment: Several commenters, 

including a one-stop center employee, 

supported the requirement in the 

definition of Employment Service (ES) 

office that it be colocated in a one-stop 

center, saying this is part of Michigan’s 

current practice. However, the 

commenters expressed concern about 

the term Employment Service (ES) 

Office Manager, arguing that it is 

misleading and implies greater authority 

than may be appropriate for onsite onestop center ES staff. 

Response: The Department 

acknowledges the comment but notes 

that there is no requirement for the ES 

Office Manager to be located onsite. ES 

Office Managers are responsible for all 

ES services provided in a one-stop 

center. It is possible for one ES Office 

Manager to manage more than one ES 

Office; however, each ES Office must 

have an assigned ES Office Manager. 

The Department adopts the change as 

proposed. 

Employment Service (ES) Staff 

The Department proposed to amend 

the definition of Employment Service 

(ES) staff in two ways: first, by replacing 

the phrase ‘‘individuals, including but 

not limited to State employees and staff 

of a subrecipient,’’ with ‘‘State 

government personnel who are 

employed according to the merit system 

principles described in 5 CFR part 900, 

subpart F—Standards for a Merit System 

of Personnel Administration, and’’ to 

conform with the imposition of the 

merit-staffing requirement proposed in 

§ 652.215; and, second, by deleting the 

phrase ‘‘to carry out activities 

authorized under the Wagner-Peyser 

Act,’’ because this language is 

unnecessary as parts 652, 653, and 658 

describe the activities and services that 

ES staff may or must carry out. The 

proposal also added that ES staff 

includes a SWA official. 

Comment: Multiple commenters, 

including a trade association, a one-stop 

center employee, and an advocacy 

organization, recommended the 

Department expand the definition of 

Employment Service (ES) staff to 

include local merit staff in addition to 

State merit staff. The trade association 

reasoned that a more expansive 

definition is needed in light of the 

nationwide employment crisis and to 

enable the hiring of qualified local 

personnel. A group of Colorado local 

government employees also in favor of 

expanding the definition described the 

braided services they provided to a job 

seeker who needed extra support, 

arguing that the individual likely would 

not have received the same 

opportunities from State merit staff. 

Some commenters and a one-stop center 

employee asked the Department to 

explicitly state in the final rule that ES 


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staff should be a part of the local AJC, 

arguing that standalone ES offices 

undermine the WIOA one-stop concept 

and hinder access to comprehensive 

services for job seekers and employers. 

A State government agency requested 

guidance on which classifications of ES 

staff would need to be cross-trained, 

noting that the NPRM only defines ES 

staff as those who are funded, in whole 

or in part, by Wagner-Peyser Act funds. 

The commenter stated that in their 

State, some workers may meet this 

definition of ES staff but only perform 

administrative functions. 

Response: The Department has 

considered the comments 

recommending expanding the definition 

of ES staff to include local merit staff 

and requesting clarification regarding 

which staff are included in the 

definition. Because the Department is 

adopting the proposed State meritstaffing requirement with the limited 

exception that Colorado, Massachusetts, 

and Michigan may continue to use 

alternative staffing models, the 

Department is removing the reference to 

merit system principles from the 

definition of ES staff. The final rule 

defines ES staff to mean ‘‘Individuals 

who are funded, in whole or in part, by 

Wagner-Peyser Act funds to carry out 

activities authorized under the WagnerPeyser Act.’’ The Department is not 

adopting the proposal that would have 

added that ES staff includes a SWA 

official because SWA officials may 

include individuals funded by programs 

other than Wagner-Peyser. In response 

to the comment stating the final rule 

should require that ES staff be a part of 

the local AJC because stand-alone ES 

offices undermine the WIOA one-stop 

concept, the Department notes that the 

existing regulations at 20 CFR 652.202 

and 678.315 state that stand-alone ES 

offices are not permitted, and States 

must colocate ES offices with one-stop 

centers. In response to the comment 

inquiring about cross-training, the 

Department notes that, while there are 

benefits to cross-training, the NPRM did 

not propose requiring States to crosstrain employees nor does this final rule 

require cross-training. 

Field Checks 

The Department proposed several 

amendments to the definition of field 

checks. First, the Department proposed 

to replace the term ‘‘job order’’ with 

‘‘clearance order,’’ which is more 

accurate because field checks must be 

conducted on clearance orders as 

defined in § 651.10. Second, the 

Department proposed to clarify that 

field checks may be conducted by nonES State staff, in addition to ES or 

Federal staff, where the SWA has 

entered into an arrangement with a State 

or Federal enforcement agency (or 

agencies) for their enforcement agency 

staff to conduct field checks. Third, the 

Department proposed to remove the 

word ‘‘random’’ from the existing 

definition to clarify that the selection of 

the clearance orders on which the SWA 

will conduct field checks need not be 

random, though random field checks 

may still occur, and to clarify that field 

checks may be targeted, where 

necessary, to respond to known or 

suspected compliance issues. 

Comment: A State government agency 

supported the revised definition of field 

checks but requested that the 

Department clarify in the rule or 

guidance either the circumstances that 

warrant targeted field checks or the 

responsibility of States to define the 

circumstances in policy. Another State 

government agency stated that the 

proposal to amend the definition of field 

checks to allow non-ES State staff to 

conduct field checks would necessitate 

coordination, training, and reporting to 

ensure that non-ES staff perform field 

checks properly and timely. The agency 

recommended that the Department 

remove the language allowing non-ES 

staff to perform field checks. A 

farmworker advocacy organization also 

supported the proposal to remove the 

word ‘‘random’’ from the definition of 

field checks, which it said would help 

improve protections for farmworkers. 

The organization stated that it believed 

the Department should go further to 

expand the definition of field checks to 

include locations beyond where ES 

placements have been made, stating that 

the ES placement limitation 

significantly reduces the number of 

worksites eligible for these essential 

compliance checks and incentivizes 

employers to hire H–2A workers— 

whose employment does not currently 

create the possibility of a field check— 

instead of hiring U.S. workers through 

the ES. 

Response: Regarding the request for 

clarification on the circumstances that 

warrant targeted field checks, the 

Department clarifies that the 

circumstances must relate to the terms 

and conditions on the clearance order. 

Thus, where it is known or suspected 

that wages, hours, and working and 

housing conditions are not being 

provided as specified in the clearance 

order, a targeted field check may be 

warranted. The Department will issue 

guidance on this change. 

Regarding the recommendation that 

the Department remove the language 

allowing non-ES staff to perform field 

checks, the Department notes that this 

proposed revision to the definition of 

field checks is not a new requirement. 

Rather, it is intended to align the 

definition with the existing regulation at 

§ 653.503(e), which allows SWA 

officials to enter into formal or informal 

arrangements with appropriate State 

and Federal enforcement agencies 

where the enforcement agency staff may 

conduct field checks instead of and on 

behalf of the SWA, as described in 

§ 653.503(e). The Department, therefore, 

declines to adopt this recommendation, 

and maintains that non-ES staff may 

conduct field checks under certain 

circumstances. 

Regarding the recommendation that 

the Department expand field checks to 

locations beyond where ES placements 

have been made, the Department 

acknowledges the concerns raised by 

the farmworker advocacy organization 

regarding the limited instances in which 

a SWA may conduct field checks to 

evaluate employer compliance but 

disagrees that existing field check 

requirements incentivize employers to 

hire H–2A workers over U.S. workers. 

The Department agrees that compliance 

monitoring is essential, but notes that 

field checks are not the sole means by 

which such monitoring occurs, and 

employers are prohibited from rejecting 

able, willing, and qualified U.S. workers 

(referred to them through the ES or 

otherwise) in favor of H–2A workers. 

The Department further notes that field 

checks only pertain to placement of U.S. 

workers via the ARS. The Department’s 

Wage and Hour Division (WHD) 

conducts investigations and evaluates 

agricultural employers’ compliance with 

the terms and conditions of the H–2A 

program (including H–2A employers’ 

compliance with the terms and 

conditions that they offer in clearance 

orders) (see 29 CFR part 501). To the 

extent the advocacy organization is 

recommending field checks for H–2A 

employment, the operative regulations 

are outside the scope of this rulemaking 

and the Department declines to adopt 

this recommendation. The Department 

adopts the changes to this definition as 

proposed in the NPRM. 

Field Visits 

The Department proposed several 

amendments to the definition of field 

visits. First, the Department proposed to 

clarify that field visits are announced 

appearances by SMAs, RMAs, the NMA, 

or NMA team members, in addition to 

outreach staff, to clarify which Monitor 

Advocates may conduct field visits and 

that the appearances are announced 

(and not unannounced, as with the 

proposed definition of field checks). 

Second, the Department proposed to 


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replace the reference to ‘‘employment 

services’’ with ‘‘ES services’’ to conform 

with the use of the ‘‘ES’’ abbreviation 

throughout the regulatory text. Third, 

the Department proposed an 

amendment to specify that field visits 

include discussions on farmworker 

rights and protections, to help ensure 

that these issues are consistently 

addressed. 

Comment: A farmworker advocacy 

organization supported the proposal to 

amend the definition of field visits to 

include discussions on farmworker 

rights and protections. The organization 

agreed with the Department’s 

observation that outreach staff and 

SMAs do not always discuss 

farmworker rights and protections 

during field visits as part of broader 

discussions on ES services. A State 

government agency requested that the 

Department clarify the role of monitor 

advocates with respect to field visits. 

The agency stated that the Department’s 

intent to refocus monitor advocate 

responsibilities on monitoring appears 

to be contradicted by its expectation 

that monitor advocates conduct more 

field visits, which is not a monitoring 

activity. The commenter asked the 

Department to clarify that the monitor 

advocate’s role in field visits is to 

monitor that ES staff conduct field visits 

in accordance with part 653. 

Response: The Department 

appreciates the advocacy organization’s 

support for the inclusion of discussions 

of farmworker rights and protections in 

the definition of field visits. Regarding 

the State agency’s request for 

clarification on monitor advocate roles 

in field visits, the Department notes that 

the proposed revisions do not require 

additional field visits, but instead 

clarify that the monitor advocates who 

may conduct field visits include SMAs, 

RMAs, and the NMA and NMA staff. 

The existing regulations provide that 

SMAs conduct field visits in accordance 

with § 653.108(o) and (q), the NMA (and 

NMA staff) in accordance with 

§ 658.602(n), and RMAs in accordance 

with § 658.603(p). As part of their 

monitoring duties, the NMA (and NMA 

staff) and RMAs accompany selected 

outreach workers on field visits as part 

of their review and assessment 

responsibilities in §§ 658.602 and 

658.603. For SMAs, the Department 

proposed in § 653.108 to clarify that the 

purpose of a SMA field visit is to 

discuss the SWA’s provision of ES 

services and obtain input on the 

adequacy of those services from 

MSFWs, crew leaders, and employers. 

The SMA is not responsible to provide 

direct employment services during field 

visits or other activities. Instead, the 

SMA’s field visits are designed to gather 

information the SMA needs to evaluate 

how the SWA is currently serving 

MSFWs, which the SMA uses to assess 

SWA compliance and to advocate for 

improvements. 

After carefully reviewing the 

comments, the Department has decided 

to update the definition of field visits to 

cross reference the citations that 

describe activities Monitor Advocates 

and outreach staff perform during field 

visits. To further clarify the role of 

monitor advocates with respect to field 

visits, the Department has decided to 

remove the proposed reference to NMA 

team members and instead refer to NMA 

staff, as identified in § 658.602(h). 

During consideration of the 

comments, the Department noticed that 

the proposed definition did not specify 

that field visits may occur at the 

gathering places of MSFWs, which is 

necessary to align the definition with 

the requirement in § 653.107(b)(1) that 

outreach staff must explain certain 

information and services to MSFWs at 

their working, living, or gathering areas. 

To align the definition with 

§ 653.107(b)(1), the Department is 

further revising the definition of field 

visits to include that field visits may 

occur at places where MSFWs gather, in 

addition to working and living 

locations. 

Hearing Officer 

The Department proposed to amend 

the definition of Hearing Officer to 

remove the words ‘‘of Labor’’ because 

§ 651.10 previously defines 

‘‘Department’’ as ‘‘the United States 

Department of Labor.’’ The Department 

did not receive any comments on this 

proposed change and adopts it as 

proposed. 

Interstate Clearance Order 

The Department proposed to amend 

the definition of interstate clearance 

order to indicate that it is an agricultural 

‘‘clearance’’ order for temporary 

employment instead of a ‘‘job’’ order. 

This change aligns the definitions of job 

order and clearance order. The 

Department did not receive any 

comments on this proposed change and 

adopts it as proposed. 

Intrastate Clearance Order 

The Department proposed to amend 

the definition of intrastate clearance 

order in two ways: first, by indicating 

that it is an agricultural ‘‘clearance’’ 

order for temporary employment instead 

of a ‘‘job’’ order, to align the definition 

with the definitions of job order and 

clearance order in this part; and, 

second, by clarifying that the term 

means an agricultural clearance order 

for temporary employment describing 

one or more hard-to-fill job openings 

that an ES office uses to request 

recruitment assistance from all other ES 

offices within the State, to help SWAs 

understand that an intrastate clearance 

order must be circulated to all ES offices 

within the State. 

Comment: A State government agency 

said that amending the definition of 

interstate clearance order to require an 

ES office to request recruitment 

assistance from all ES offices (not just 

significant MSFW one-stop centers) will 

necessitate changes to the review tool its 

monitor advocate office uses to conduct 

annual reviews (i.e., to reflect that all 

offices must conduct recruitment). 

Another State government agency asked 

the Department to clarify what 

recruitment assistance means in the 

definition of intrastate clearance order. 

Response: The Department 

acknowledges that the changes may 

require some SWAs to update their 

review tools and notes that intrastate 

recruitment, not interstate recruitment, 

involves recruitment assistance from all 

other ES offices within the State. 

However, the Department believes that 

the majority of SWAs will not need to 

update review tools or other processes 

because the revised definition is 

consistent with their current practices. 

The Department has found through 

monitoring that the majority of SWAs 

place intrastate clearance orders into 

their web-based labor exchange systems 

and make them available for recruitment 

throughout the entire State. Most SWAs 

do not direct recruitment efforts to 

specific ES offices because their labor 

exchange systems are not programmed 

to do so. Therefore, this change will not 

increase burden for most SWAs. 

The Department has considered the 

impact of updating the definition to 

specify that intrastate clearance orders 

request recruitment assistance from all 

other ES offices in the State and finds 

it to be beneficial. Specifically, 

requesting recruitment assistance from 

all other ES offices increases the 

likelihood that the employer will find 

the workers it needs. Because the 

definition applies to criteria and noncriteria clearance orders, the description 

also allows the employer and SWA to 

recruit as broadly as possible and assists 

ETA in assessing the need for interstate 

clearance requests, including requests 

connected to the H–2A visa program. 

The intended result is that intrastate 

clearance will be more likely to result in 

employment of U.S. workers. 

The Department adopts the definition 

as proposed and will provide guidance 

and technical assistance, as needed, 


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including how other ES offices provide 

recruitment assistance. 

Migrant Farmworker and Seasonal 

Farmworker 

The Department proposed to amend 

the definition of migrant farmworker by 

removing the exclusion of full-time 

students who are traveling in organized 

groups, to make available to these 

individuals the benefits and protections 

of the Monitor Advocate System, 

including ES service requirements and 

safeguards built into the Complaint 

System. Relatedly, the Department 

proposed to remove the exclusion of 

non-migrant full-time students from the 

definition of seasonal farmworker, to 

allow full-time students who work in 

seasonal farmwork to be considered 

seasonal farmworkers and to make the 

definition of seasonal farmworker 

consistent with the definition of migrant 

farmworker. The Department adopts 

these definitions as proposed. 

Comment: Referencing the 

Department’s proposal to remove the 

exclusion of non-migrant full-time 

students from the definition of seasonal 

farmworker, thus making the definition 

of seasonal farmworker consistent with 

the definition of migrant farmworker, an 

anonymous commenter remarked that 

seasonal farmworkers (such as nonmigrant full-time students) are not the 

same as migrant farmworkers (who they 

said are usually noncitizens admitted to 

the United States for specific timeframes 

with green card status). The commenter 

also mentioned an ES office in Traverse 

City, Michigan, with a specific division 

for assisting migrant farmworkers and 

stated that hiring extra migrant 

farmworkers may not suffice for fresh 

produce processing of their State’s 

agriculturally diverse crops. 

Response: The proposed changes 

maintain two separate definitions for 

seasonal farmworkers and migrant 

farmworkers and remove the exclusion 

of full-time students from both 

definitions to ensure MSFW students 

have access to the benefits and 

protections of the Monitor Advocate 

System. 

Removal of Migrant Food Processing 

Worker 

The Department proposed to remove 

the definition of migrant food 

processing worker because migrant food 

processing worker status has not been a 

separately tracked part of the MSFW 

definition since the ES regulations were 

updated in the WIOA final rule 

promulgated in 2016. See 81 FR 56071 

(Oct. 18, 2016). Current ETA reporting 

does not require States to document 

migrant food processing workers as a 

particular type of MSFW and this 

definition is unnecessary because the 

existing MSFW definitions are inclusive 

of individuals who perform work as 

migrant food processors. The 

Department did not receive any 

comments on its proposal to remove this 

defined term and adopts its removal as 

proposed. 

Occupational Information Network 

(O*NET) 

The Department proposed to amend 

the definition of Occupational 

Information Network (O*NET) to 

remove the word ‘‘system’’ from the 

definition, as it is not needed to 

describe O*NET. The Department did 

not receive any comments on this 

proposed change. The Department 

adopts the change as proposed. 

O*NET–SOC 

The Department proposed to amend 

the definition of O*NET–SOC to remove 

the words ‘‘of Labor’’ after 

‘‘Department’’ because Department is 

previously defined in this section as 

‘‘the United States Department of 

Labor.’’ The Department did not receive 

any comments. The Department adopts 

the change as proposed. 

Outreach Staff 

The Department proposed to amend 

the definition of outreach staff to clarify 

that an SMA is not ‘‘outreach staff’’ for 

purposes of § 653.107. While an SMA 

may join outreach staff on field visits, 

an SMA cannot fulfill a SWA’s 

responsibility under § 653.107(a) to 

provide outreach staff. This aligns with 

a revision in § 653.108(d) to specify that 

the SMA and their staff cannot assist 

with outreach responsibilities, which is 

further discussed in the section-bysection analysis for § 653.108. The 

Department did not receive any 

comments on the clarification proposed 

to the definition, and it adopts the 

revision to this definition as proposed. 

Participant and Reportable Individual 

To align with the proposed changes to 

replace references to ‘‘employment 

services,’’ ‘‘Wagner-Peyser Act 

services,’’ and ‘‘services provided under 

the Wagner-Peyser Act’’ with ‘‘ES 

services’’ and ‘‘ES,’’ the Department 

proposed to amend the definition of 

participant by replacing the phrase 

‘‘Wagner-Peyser Act participants’’ with 

‘‘ES participants’’ and to amend the 

definition of reportable individual by 

replacing the phrase ‘‘Wagner-Peyser 

Act services’’ with ‘‘ES services.’’ The 

Department did not propose any other 

changes to these definitions. The 

Department received one comment 

related to the definitions for each of 

these terms, which is summarized and 

responded to below. After consideration 

of this comment, the Department adopts 

the revisions to both of these definitions 

as proposed. 

Comment: A State government agency 

suggested the Department should define 

reportable individual versus participant 

for States to accurately collect and 

report information on these groups. 

Response: The Department 

appreciates the comment requesting that 

the Department clarify who is 

considered reportable individuals or 

participants. The Department’s existing 

regulations in part 651 provide 

definitions for reportable individual and 

participant at § 651.10. This final rule 

adopts only minor revisions to each 

term to replace existing references to the 

‘‘Wagner-Peyser Act’’ with ‘‘ES.’’ As 

noted in § 651.10, participant means a 

reportable individual who has received 

services other than the services 

described in § 677.150(a)(3) of this 

chapter, after satisfying all applicable 

programmatic requirements for the 

provision of services, such as eligibility 

determination (see 20 CFR 677.150(a)). 

This definition notes that individuals 

who use only self-services or 

information-only services or activities 

are not considered participants. As 

outlined in § 677.150(a)(4) of this 

chapter, programs must include 

participants in their performance 

calculations. 

Placement 

The Department proposed to amend 

the definition of placement (along with 

other terms) to replace the phrase 

‘‘employment office’’ with ‘‘ES office.’’ 

The Department did not propose any 

other changes to this definition. The 

Department did not receive any 

comments on this proposed definition 

and adopts it as proposed. 

Respondent 

The Department proposed to revise 

the definition of respondent by 

removing the parenthetical language 

‘‘including a State agency official’’ 

because the term ‘‘State agency’’ is 

assumed to include ‘‘State agency 

officials’’ and is therefore unnecessary 

to clarify. The Department did not 

receive any comments on this proposed 

change and adopts it as proposed. 

Significant MSFW One-Stop Centers 

and Significant MSFW States 

The Department proposed to revise 

the definition of significant MSFW onestop centers in two ways: first, by 

removing the text stating these 

designations are made annually; and, 


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second, by adding to the criteria by 

which the Department designates 

significant MSFW one-stop centers, so 

that they will include ES offices where 

MSFWs account for 10 percent or more 

of reportable individuals in the ES 

annually. First, as explained in the 

NPRM, the Department proposed to 

remove the text stating that significant 

MSFW one-stop centers are designated 

annually, because in making the 

designation, the Department relies on 

multiple data sources that are published 

in intervals up to every 5 years. Based 

on the Department’s analysis, the data 

do not change significantly on an 

annual basis, and therefore it is often 

unnecessary to change the designations. 

This change in the definition would 

allow the list of significant MSFW onestop centers to remain the same if there 

is no compelling reason to make a 

change. Also as proposed, the 

designation of significant one-stop 

centers would include ES offices where 

MSFWs account for 10 percent or more 

of participants or reportable individuals 

who are served by that ES office 

annually, and any other ES offices that 

the Office of Workforce Investment 

(OWI) Administrator includes due to 

special circumstances such as an 

estimated large number of MSFWs in 

the service area. The Department 

proposed to add reportable individuals 

to the criteria it considers in making this 

designation so that the one-stop centers 

designated as significant MSFW onestop centers also account for the number 

of MSFWs in the area who are likely to 

benefit from access to ES services. 

The Department similarly proposed to 

revise the definition of significant 

MSFW States in two ways: first, by 

removing the text stating that these 

designations will be made annually; and 

second, to change the basis on which 

this designation is made from the 20 

States with the highest number of 

MSFW participants to the 20 States with 

the highest estimated total number of 

MSFWs. The Department proposed to 

change the basis on which it makes this 

designation so that it will reflect States 

with the highest total estimated MSFW 

activity—rather than the highest 

numbers of MSFW ES participants—so 

that the designation will better reflect 

the 20 States with the highest numbers 

of MSFWs who may ultimately seek 

assistance from the ES, rather than just 

those States with the highest numbers of 

MSFWs who have already sought such 

assistance. 

The Department received a few 

comments that address the revisions 

proposed to these definitions. A 

summary of these comments and the 

Department’s response is below. After 

thoroughly considering the issues and 

questions that these commenters 

presented, the Department has decided 

to adopt the revisions as proposed, with 

a clarification to the definition of 

significant MSFW one-stop centers as 

described below. 

Comment: A couple of State 

government agencies expressed concern 

that the Department planned to 

designate significant MSFW one-stop 

centers and significant MSFW States 

based on a blend of data from the 

Quarterly Census of Employment and 

Wages (QCEW) and Census of 

Agriculture, because, as they explained, 

the QCEW and the Census of 

Agriculture use disparate definitions 

and methodologies. Both commenters 

recommended that the Department use 

only QCEW data, from which they assert 

the Department could derive annual 

variable employment using a time series 

decomposition model that disaggregates 

covered employment by industry in 

States, agriculture reporting areas, and 

counties. 

One of these State agencies noted that 

it did not object to the proposal to 

remove annual designations of 

significant MSFW one-stop centers and 

significant MSFW States, but sought 

confirmation that States would still be 

able to submit annual amendments to 

add or remove a designated office as 

warranted by data or due to ES-staffing 

challenges in specific offices, site 

closures, and/or challenges posted by 

the Americans with Disabilities Act. 

This State agency also asked whether 

the proposed change would affect the 

use of Special Circumstance MSFW onestop centers, and expressed concern that 

the proposed revisions could increase 

the number of one-stop centers 

designated as significant MSFW onestop centers, which would create a need 

for additional resources and State merit 

staff in offices so designated. 

A farmworker advocacy organization 

supported the Department’s proposal to 

designate significant MSFW one-stop 

centers based on the percentage of 

reportable individuals (not just 

participants) who are MSFWs, reasoning 

that many farmworkers who do not 

participate in the ES rely on other SWA 

services and are affected by the SWA’s 

outreach and monitoring activities. 

Response: The Department 

appreciates the commenters’ 

recommendation to use QCEW data. The 

changes will not limit the Department’s 

consideration to the Census of 

Agriculture; therefore, the Department 

may also consider QCEW data. The 

Department disagrees with the 

commenters that using QCEW and the 

Census of Agriculture data is 

problematic even though they use 

disparate definitions and 

methodologies. The Department often 

consults multiple data sources to 

develop planning estimates and will 

take differences in source 

methodologies while making 

determinations for significant MSFW 

one-stop centers. 

In response to the commenter’s 

question regarding whether States may 

submit annual updates regarding 

significant MSFW one-stop center 

activity levels, the Department confirms 

that States may submit such information 

and the Department will consider the 

information to determine if an update is 

appropriate. As mentioned in the 

NPRM, if annual adjustments are 

warranted by the data, the Department 

will make adjustments. This change 

would allow the list of significant 

MSFW one-stop centers to remain the 

same if there is no compelling reason to 

make a change. 

The Department notes that the revised 

methodology will apply to all 

significant MSFW one-stop center 

designations, including those significant 

MSFW one-stop centers that are 

designated due to special circumstances 

and may increase the number of 

significant MSFW one-stop centers in 

some States. An increase in the number 

of significant MSFW one-stop centers 

will not create a need for additional 

State merit staff in offices so designated. 

It would, however, require the SMA to 

monitor additional offices onsite. 

After further consideration, the 

Department identified a need to clarify 

that the administrator who determines 

which ES offices must be included as 

significant MSFW one-stop centers 

based on special circumstances is the 

OWI Administrator. Accordingly, the 

Department adopts the changes as 

proposed, except to add that the OWI 

Administrator makes the 

determinations. 

Removed Definition of Significant 

Multilingual MSFW One-Stop Centers 

The Department proposed to delete 

the definition of significant multilingual 

MSFW one-stop centers because 

proposed changes to § 653.102 would 

remove specific requirements for offices 

that meet this definition. The 

Department proposed to remove specific 

requirements for significant 

multilingual MSFW one-stop centers in 

part 653, because all one-stop centers 

must comply with the comprehensive 

language access requirements in 29 CFR 

38.9, which prohibit discrimination on 

the basis of national origin, including 

LEP, and establish that language access 

requirements apply to services that ES 


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5See, e.g., Ricci v. DeStefano, 557 U.S. 557, 585 

(2009); Adarand Constructors, Inc. v. Pena, 515 U.S. 

200, 238 (1995); Richmond v. J.A. Croson Co., 488 

U.S. 469, 507 (1989). 

recipients provide to all individuals 

with LEP at all one-stop centers and are 

broader than the existing requirements 

for significant multilingual MSFW onestop centers. 

The Department received two 

comments that address its proposed 

removal of the definition of significant 

multilingual MSFW one-stop centers. 

Both comments and the Department’s 

response are discussed below. After 

thoroughly considering these comments, 

the Department has decided to remove 

this definition as proposed. 

Comment: Agreeing with the 

Department’s proposal to remove 

specific requirements for significant 

multilingual MSFW one-stop centers 

(e.g., removing the definition of 

significant multilingual MSFW one-stop 

centers) because all one-stop centers 

must comply with language access 

requirements, commenters including a 

one-stop center employee remarked that 

Michigan’s one-stop centers have 

multilingual staff to provide their 

customers access to a broader set of 

services. In contrast, a State government 

agency expressed concern that the 

proposal would result in ES offices with 

no bilingual staff at present needing to 

hire additional staff who can assist 

participants with LEP. 

Response: The Department notes that 

all ES offices must meet the language 

access requirements in 29 CFR 38.9, 

regardless of how many significant 

multilingual MSFW one-stop centers 

exist in a State. Pursuant to 29 CFR 38.9, 

SWAs must make services available in 

all needed languages. SWAs may use 

bilingual staff to meet this requirement, 

but other alternatives are available, such 

as in-person interpretation or telephone 

interpretation services. 

State Workforce Agency (SWA) Official 

The Department proposed to remove 

the definition of State Workforce 

Agency (SWA) official, because SWA 

officials would be considered ES staff 

based on the Department’s proposed 

revisions to the definition of ES staff in 

this rulemaking. 

Comment: Two State government 

agencies and an anonymous commenter 

warned that confusion and 

inconsistency could result from the 

Department’s proposal to remove the 

definition of State Workforce Agency 

(SWA) official but continue using the 

SWA naming convention elsewhere in 

the regulatory text. The commenters 

recommended the Department keep 

State Workforce Agency (SWA) official 

as a defined term, similar to how title 

I of WIOA defines chief elected official, 

while clarifying that a SWA official is 

also considered ES staff. 

Response: The Department 

appreciates the comments regarding the 

potential for confusion or inconsistency 

related to the use of SWA official. The 

Department agrees with these 

comments. Although the Department 

proposed to remove the definition of 

SWA official, the final rule maintains 

the definition of SWA official in 

existing § 651.10, which means an 

individual employed by the SWA or any 

of its subdivisions. 

Wagner-Peyser Act Employment Service 

(ES) Also Known as Employment 

Service (ES) 

The Department proposed to amend 

this definition to replace the phrase 

‘‘employment services’’ with ‘‘ES 

services.’’ The Department also 

proposed to remove the words ‘‘and 

are’’ from the definition for greater 

clarity. The Department did not receive 

any comments on this proposed 

definition and adopts it as proposed. 

C. Part 652—Establishment and 

Functioning of State Employment 

Service 

1. Subpart A—Employment Service 

Operations 

Subpart A of part 652 includes an 

explanation of the scope and purpose of 

the ES; the rules governing allotments 

and grant agreements; authorized 

services; administrative provisions; and 

rules governing labor disputes. The 

changes to this subpart focus on 

administrative provisions governing 

nondiscrimination requirements. This 

final rule also includes a severability 

provision for part 652 in subpart A. 

Section 652.8 Administrative 

Provisions 

The Department proposed to amend 

§ 652.8(j)(2) to correct the statutory 

reference regarding the BFOQ exception 

currently listed in the regulation as 42 

U.S.C. 2000(e)–2(e) to 42 U.S.C. 2000e– 

2(e). However, there was a 

typographical error in the proposed 

regulatory text. The final rule reflects 

the correct statutory reference, 42 U.S.C. 

2000e–2(e). The final rule also adds a 

necessary cross-reference to the EEOC’s 

regulation regarding religion found at 29 

CFR part 1605. 

The Department proposed to amend 

§ 652.8(j)(3) to remove an outdated 

reference to affirmative action requests 

to make the Department’s regulation 

consistent with U.S. Supreme Court 

jurisprudence on race-based affirmative 

action.5 The proposed revision clarifies 

that the States’ obligation is to comply 

with 41 CFR 60–300.84. The regulation 

at 41 CFR 60–300.84 requires ES offices 

to refer qualified protected veterans to 

fill employment openings required to be 

listed with ES offices by certain Federal 

contractors; give priority to qualified 

protected veterans in making such 

referrals; and, upon request, provide the 

Office of Federal Contract Compliance 

Programs with information as to 

whether certain Federal contractors are 

in compliance with the mandatory job 

listing requirements of the equal 

opportunity clause (41 CFR 60–300.5). 

Comment: A one-stop operator and an 

advocacy organization expressed 

concern that, in appearing to prioritize 

UI recipients over job seekers as a 

whole, the proposed rule may not 

strengthen nondiscrimination 

requirements but rather could be 

discriminatory toward certain classes of 

individuals, such as people on public 

assistance, immigrants and refugees, 

people experiencing homelessness, 

second-chance customers, people with 

disabilities, and other groups with 

historically lower labor market 

participation rates. Similarly, a private 

citizen stated that staffing flexibility has 

allowed Colorado to promote and 

deliver equitable access to the ES for 

marginalized and underserved 

populations (i.e., priority populations 

under WIOA) but the proposed rule 

emphasizes UI above other services. 

Several other commenters also stated 

that staffing flexibility led to more 

localized services that better met the 

needs of marginalized communities. 

A one-stop center employee and other 

commenters stated that Michigan 

satisfies the requirement to give priority 

to qualified protected veterans through 

a 24-hour hold on all job orders. The 

comments also discussed how Michigan 

meets its affirmative outreach obligation 

to ensure equal access to services and 

activities by coordinating with WIOA 

partners on outreach and 

accommodating individuals with LEP. 

The comments argued that the proposed 

changes would result in staffing cuts, 

reduced hours, and office closures that 

could threaten Michigan’s proven 

record of adhering to nondiscrimination 

requirements and providing universal 

access to ES services. The commenters 

added that these impacts would be felt 

most by people in rural areas and 

individuals with LEP. 

Response: The changes to this section 

were made to correct a statutory 

reference and to remove an outdated 

reference to affirmative action requests 


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to ensure that the Department’s 

regulations are consistent with U.S. 

Supreme Court jurisprudence on racebased affirmative action. The changes 

do not constitute a change in the 

Department’s policies or treatment of 

individuals. Just as the previous 

longstanding State merit-staffing 

requirement, which was based in part 

on the close relationship between the ES 

and UI programs, did not violate the 

nondiscrimination obligations of the 

Department and States in administering 

the ES program, the reinstatement of the 

State merit-staffing requirement in this 

final rule for similar reasons does not 

run afoul of the nondiscrimination 

obligations of the Department and States 

administering the ES program. In realigning ES and UI, the Department is 

not prioritizing individuals eligible for 

UI benefits over individuals in 

historically underserved or 

marginalized populations. The ES is a 

universal access program. In the 

Department’s view, reinstating a State 

merit-staffing requirement not only 

supports the historical alignment 

between ES and UI, but it also helps to 

maintain universal access and helps to 

protect the integrity of the ES program. 

As articulated further in discussion of 

§ 652.215 of this preamble, a State 

merit-staffing requirement helps to 

ensure that ES services are delivered by 

nonpartisan personnel held to 

transparent, objective standards 

designed to assure high quality 

performance. In response to the NPRM, 

three States—Colorado, Massachusetts, 

and Michigan—provided initial 

justification and data to support use of 

their longstanding staffing model and 

provided information about significant 

service disruption that would result 

from having to upend their longstanding 

ES staffing model. However, the initial 

justifications and data presented do not 

provide clear evidence of causation. 

Without evidence that alternative 

staffing models directly cause higher 

employment outcomes, balanced against 

widespread success in delivering 

services while maintaining State merit 

staff for ES, and further balanced by the 

need for ES State merit staff to be 

available for surges in UI claims and 

appeals, the Department is generally 

adopting the proposed requirement that 

States use State merit staff to provide ES 

services. The three States with 

longstanding reliance interests are 

permitted to continue using the staffing 

model consistent with the model the 

Department previously authorized for 

that State. The Department will conduct 

an evaluation of the three States’ 

provision of ES services, including 

review of services of other States that 

participate, as necessary, to determine 

whether such models are empirically 

supported and must participate in an 

evaluation to determine whether 

alternative staffing models are 

empirically supported. The commenters 

who indicated that Wagner-Peyser 

staffing flexibility allowed States to 

provide better services to marginalized 

communities did not include any data 

that demonstrates causal evidence to 

support this claim. Likewise, the 

Department has not identified such 

evidence to support it. 

The Department reminds SWAs that 

they have an affirmative outreach 

obligation under 29 CFR 38.40 that 

requires them to take appropriate steps 

to ensure they are providing equal 

access to services and activities 

authorized under the Wagner-Peyser 

Act, as well as any other WIOA title Ifinancially assisted programs and 

activities. As outlined in that regulation, 

these steps should involve reasonable 

efforts to include members of the 

various groups protected by the WIOA 

sec. 188 regulations, including but not 

limited to persons of different sexes, 

various racial and ethnic/national origin 

groups, members of various religions, 

individuals with LEP, individuals with 

disabilities, and individuals in different 

age groups. 

Section 652.10 Severability 

Given the numerous and varied 

changes the Department proposed and is 

adopting, the Department intends the 

provisions of this rule to be severable 

and is including a severability provision 

in parts 652, 653, and 658 in this final 

rule. That intent was reflected in the 

structure of and descriptions in the 

proposed rule. The inclusion of 

severability provisions in this final rule 

confirms the Department’s belief that 

the severance of any affected provision 

will not impair the function of the 

regulation as a whole and that the 

Department would have proposed and 

implemented the remaining regulatory 

provisions even without any others. To 

the extent that a court holds any 

provision, or any portion of any 

provision, of part 652 invalid, the 

provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision will be severable from this 

part and will not affect the remainder 

thereof. 

2. Subpart C—Employment Service 

Services in a One-Stop Delivery System 

Environment 

Subpart C of part 652 discusses State 

agency roles and responsibilities; rules 

governing ES offices; the relationship 

between the ES and the one-stop 

delivery system; required and allowable 

ES services; provision of services for UI 

claimants; and State planning. Among 

other changes, the changes to the 

regulations under subpart C are tailored 

to require all States to use State merit 

staff to provide ES services, except the 

three States using longstanding 

alternative staffing models previously 

authorized by the Department. As was 

true when the regulations were changed 

in 2020, none of the changes in this 

section will impact the personnel 

requirements of the Vocational 

Rehabilitation (VR) program, one of the 

six core programs in the workforce 

development system. Title I of the 

Rehabilitation Act of 1973 

(Rehabilitation Act), as amended by title 

IV of WIOA, which authorizes the VR 

program, has specific requirements 

governing the use of State VR agency 

personnel for performing certain critical 

functions of the VR program. 

Section 652.204 Must funds 

authorized under the Wagner-Peyser Act 

Governor’s Reserve flow through the 

one-stop delivery system? 

The Department proposed to simplify 

the section heading to remove reference 

to the Wagner-Peyser Act because 

reference to the Governor’s Reserve is 

adequate. The Department also 

proposed amending this section to 

reference professional development and 

career advancement of ES staff instead 

of SWA officials. After further 

consideration, the Department is not 

finalizing the proposed change to the 

section heading in order to differentiate 

the Wagner Peyser Act Governor’s 

Reserve from the WIOA Governor’s 

Reserve. Instead, the Department is 

making a slight revision to the current 

section heading. The new section 

heading reads, ‘‘Must funds authorized 

through the Wagner-Peyser Act 

Governor’s Reserve flow through the 

one-stop delivery system?’’ In addition, 

because of the Department’s change to 

the NPRM’s proposed definition of ‘‘ES 

staff’’ in this final rule, the Department 

retains the text of the existing regulation 

for this section. 

Section 652.215 Can Wagner-Peyser 

Act-funded activities be provided 

through a variety of staffing models? 

The Department proposed to amend 

§ 652.215 to require all States to use 


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State merit staff to provide ES services 

and proposed giving States 18 months to 

comply with this requirement. After 

further consideration, the Department 

adopts a rule requiring all States to use 

State merit staff to deliver ES services, 

except the three States using 

longstanding alternative staffing models 

previously authorized by the 

Department. States authorized to use 

alternative staffing models will be 

required to participate in evaluation(s) 

of their delivery of ES services to be 

conducted by the Department. While the 

Department plans on conducting a 

single evaluation, the rule requires these 

States’ participation if evaluation 

activities span more than one study, 

including any data collection associated 

with those evaluation activities. The 

Department will conduct this evaluation 

of the three States’ provision of ES 

services, including review of services of 

other States that participate, as 

necessary, to determine whether such 

models are empirically supported. All 

States have 24 months to comply with 

the staffing requirements in this section. 

The Department believes that a State 

merit-staffing requirement is a generally 

reliable method to ensure quality and 

consistency in ES services and supports 

the well-established connection 

between ES and UI services. Paragraph 

(a) of § 652.215 provides that except as 

provided in paragraph (b) of § 652.215, 

all States must deliver labor exchange 

services described in § 652.3 using State 

merit-staff employees employed 

according to the merit-system principles 

described in 5 CFR part 900, subpart F— 

Standards for a Merit System of 

Personnel Administration. This staffing 

requirement also applies to the 

provision of services and activities 

under parts 653 and 658. 

The Department also recognizes the 

longstanding reliance interests of three 

States that had been authorized to use 

alternative staffing models in the 1990s. 

These States provided initial 

justification and data to support use of 

their longstanding staffing model and 

provided information about significant 

service disruption that would result 

from having to upend their longstanding 

ES staffing model. These three States 

have built systems, developed 

partnerships, and established a service 

delivery model that could be reversed 

only at significant cost to the State and 

with significant harm to job seekers and 

employers. Accordingly, in paragraph 

(b) the Department permits only these 

three States authorized to use 

alternative staffing models prior to 

February 5, 2020, the effective date of 

the 2020 Final Rule, to continue using 

the staffing model consistent with the 

model the Department previously 

authorized for that State. It is the use of 

a particular staffing model in each State 

that engendered each State’s strong 

reliance interest. Therefore, paragraph 

(b) also provides that these States may 

use merit-staffing flexibility only to the 

same extent that the Department 

authorized it prior to February 5, 2020. 

This means that if any of the States 

covered by paragraph (b) sought to use 

the 2020 Final Rule to expand flexibility 

beyond what was previously authorized 

in that State, that State must return to 

the staffing model in use as authorized 

by the Department prior to February 5, 

2020. 

Paragraph (c) requires that the States 

permitted to use an alternative staffing 

model must participate in evaluations of 

their delivery of ES services to be 

conducted by the Department. The 

Department’s goal will be to assess ES 

service delivery in several States. 

Requiring the three States authorized to 

use their longstanding alternative 

staffing models to participate in 

evaluation activities will enable the 

Department to determine whether 

alternative staffing models are 

empirically supported. 

In response to comments, paragraph 

(d) lengthens the proposed transition 

period, requiring all States to comply 

with the staffing requirements in 

§ 652.215 no later than 24 months after 

the effective date of this final rule. The 

Department recognizes that States will 

need time to address issues, such as 

obtaining any necessary State 

authorization, procurement, collective 

bargaining, hiring, and training. 

The following discussion further 

details the Department’s decision. 

Potential Impacts of the Rule on the 

Provision of ES 

Benefits of Using State Merit Staff To 

Deliver ES Services 

Comment: Two State government 

agencies expressed support for the 

proposed merit-staffing requirement 

because it would promote Statewide 

uniformity and consistency of 

employment security services. In 

particular, one of these commenters 

stated the ability to have consistent 

hiring practices, standardization of staff 

onboarding and training, and 

continuous professional development 

training throughout the State merit 

staff’s employment life cycle ensure the 

most consistent and best customer 

service possible across the State. 

Similarly, two anonymous commenters 

expressed concern about the lack of 

consistent ES services throughout 

Michigan, which one of these 

commenters said is a byproduct of local 

control. These commenters argued that 

a consistent service delivery model of 

providing ES services through State 

merit staff would benefit Michigan job 

seekers and provide greater 

transparency and accountability to 

Michigan residents. 

A State employee association 

commented that, in passing the WagnerPeyser Act, Congress envisioned a 

federally supported but Stateadministered merit system, subject to 

consistent rules and oversight, to 

prevent favoritism and promote equality 

in the delivery of employment services. 

Response: The Department agrees that 

using State merit staff to deliver ES 

services helps to promote statewide 

stability and consistency in service 

delivery. The Department further agrees 

that using State merit staff helps ensure 

that employment services are delivered 

in an equitable manner and on a 

nonpartisan basis. As noted earlier in 

this preamble, in the IPA Congress 

found that the quality of public service 

could be improved by administering 

programs according to merit-based 

principles. Because the ES is a universal 

access program, it is critical that it be 

administered by nonpartisan personnel 

held to transparent, objective standards 

designed to assure high quality 

performance. 

The Department acknowledges the 

comments regarding ES service delivery 

in Michigan. As noted elsewhere in this 

preamble, Michigan is one of three 

States that the Department authorized to 

use an alternative staffing model 

beginning in the 1990s. Due to the 

State’s strong reliance interest 

developed from longstanding use of a 

particular service delivery model and 

the potential service disruption that 

would ensue if the State is required to 

adopt a full State merit-staffing model, 

the Department is permitting Michigan 

to continue using its longstanding 

alternative staffing model. The 

Department is requiring the State to 

participate in an evaluation of service 

delivery in the State to be conducted by 

the Department. 

Potential Cost Increases of State Merit 

Staff That May Reduce the Availability 

of ES Staff 

Comment: Numerous commenters, 

including an association of State elected 

officials, Michigan, Colorado, and 

Delaware State government agencies, 

and Michigan and Colorado local 

governments, expressed concern that 

the proposed rule could make the 

provision of employment services less 

efficient in States that use flexible 

staffing models and may reduce access 


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to critical workforce resources for job 

seekers and employers because the 

proposal would reduce the number of 

available ES staff. In contrast, a private 

citizen argued that there is little 

evidence that the proposed rule would 

reduce access to workforce resources, 

reasoning that in Michigan, if there is a 

threat of service reduction it is because 

the State has used ES funding as a 

substitute for WIOA funding, for local 

staff, or for overhead costs for staff not 

fully dedicated to providing ES services. 

Many commenters, including 

Michigan and Colorado State elected 

officials, Michigan, Colorado, and 

Delaware State government agencies, 

and Michigan and Colorado local 

governments, argued that the rule would 

cause a significant reduction in ES staff 

in States that use flexible staffing 

models, as well as the closure of many 

one-stop employment centers, with the 

greatest losses occurring in rural areas. 

Response: The Department 

acknowledged in the NPRM that there 

would be costs to some States to 

transition to using State merit staff to 

deliver ES services, requested feedback 

on the transition costs, and requested 

feedback on the proposed 18-month 

transition period. The Department notes 

that information that is supported with 

evidence and data sources is more 

strongly considered than information 

that is unsubstantiated. The States of 

Delaware, Michigan, and Colorado 

provided new information in their 

comments on the NPRM that are 

relevant to the NPRM’s regulatory 

impact analysis. These States detailed 

impacts on existing contracts and 

procurement, recruitment, training, 

staffing, collective bargaining, 

technology costs, infrastructure changes, 

funding, and the extent of service 

disruptions that would result from 

imposition of a State merit-staffing 

requirement because these States have 

utilized approved alternative staffing 

models for many years. Some 

commenters provided information based 

on a survey stating that there will be job 

losses and center closures as a result of 

the State merit-staffing requirement. A 

few additional States responded to 

indicate that they may be utilizing 

staffing flexibility, although the 

Department was previously not aware 

they intended to utilize the staffing 

flexibility provided by the 2020 Final 

Rule. Those States did not estimate 

transition impacts as requested by the 

Department in the NPRM. 

The Department has considered the 

comments opposing the reinstatement of 

the State merit-staffing requirement and 

found the comments from Colorado, 

Massachusetts, and Michigan the most 

compelling due to their longstanding 

reliance interests on using alternative 

staffing models. Based on these 

comments the Department has 

determined that States are required to 

use State merit staff to provide ES 

services, except Colorado, 

Massachusetts, and Michigan. The final 

rule is allowing these three States to use 

merit-staffing flexibility to the same 

extent previously allowed by the 

Department prior to February 5, 2020, 

the effective date of the 2020 Final Rule. 

As discussed above, the Department is 

requiring these States to participate in 

an evaluation of ES service delivery 

staffing models. All States will have 24 

months to comply with the 

requirements in this final rule. 

ES Service Delivery and Customer 

Impacts 

Comment: Many commenters 

described the services made available 

through Wagner-Peyser Act funding and 

expressed concern about a disruption or 

outright elimination of such services 

due to the proposed merit-staffing 

requirement, as described below. 

Many Michigan commenters, 

including private citizens and one-stop 

center staff, discussed the value of the 

supportive services they have received 

or provided through Michigan Works! 

offices, including assistance with 

important tasks for job seekers such as 

developing a resume, strengthening 

interviewing skills, and performing job 

searches; some of these commenters, 

including one-stop center employees, 

stated that local center staff help alert 

customers to the availability of such 

services. A one-stop center employee 

stated that local ES workers have the 

best understanding of community needs 

and are often the first point of contact 

to help customers navigate available 

programs. 

Many commenters, including 

Michigan and Massachusetts State 

government agencies, Michigan and 

Colorado local governments, and 

advocacy organizations, went on to 

more specifically describe one-stop 

employment centers’ role in preparing 

job seekers for employment and 

connecting them with employers who 

want to hire them, including services 

such as facilitating training programs, 

hosting job fairs and career awareness 

events, organizing industry 

collaboratives, helping craft resumes, 

and providing job searching and 

interviewing tips. According to some of 

these commenters, including Michigan 

local governments, a key benefit of 

staffing flexibility is strong local 

strategic relationships with businesses, 

higher education, nonprofits, childcare, 

elementary and secondary education, 

adult education providers and other 

partners, which allows for more 

efficient customer service to connect job 

seekers to in-demand jobs and training 

opportunities. 

Furthermore, many commenters, 

including Michigan and Colorado State 

elected officials, Michigan and Colorado 

local governments, and advocacy 

organizations, claimed that the status 

quo staffing flexibility has helped States 

and localities achieve specific, positive 

outcomes in terms of newly employed 

individuals, employment rates, average 

worker earnings, numbers of employers 

served, total economic impact, 

increased tax revenue, and returns on 

investment. 

Response: The Department 

appreciates the concerns raised by 

commenters and agrees that the quality 

of ES services is important. The 

commenters highlighted the benefits of 

the services provided to participants but 

did not provide evidence that the 

staffing model is a causal factor in the 

quality of those services. Though the 

Department agrees that local 

relationships are important in business 

services, local areas in States across the 

country using State merit staff for ES 

manage to develop such relationships. 

Commenters did not provide any 

evidence that strong local relationships 

are only possible with alternative 

staffing models, or that using a nonState-merit staffing model is a causal 

factor in developing strong business 

relationships. Without such evidence, 

balanced against the benefits of State 

merit-staffing described above, the 

Department will not extend the ability 

to use alternative staffing models to 

other States besides Colorado, 

Massachusetts, and Michigan. 

Therefore, the Department has 

determined that States are required to 

use State merit staff to provide ES 

services, except the three States that 

have long been allowed to use 

alternative staffing models. 

Comment: A State workforce 

development board said that data shows 

that former demonstration States using 

local merit and non-merit staff to deliver 

ES services have been successful and 

argued that all States should examine 

strategies to further service integration. 

Another State workforce development 

board and a professional association 

stated that it appreciated the approach 

‘‘created by Congress’’ wherein the 

Federal government partners with State 

and local workforce program, providing 

performance goals and broad working 

parameters, but leaves States to manage 

their operations based on the diverse 

needs of businesses and workers in their 


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communities. These commenters urged 

the Department to permanently codify 

staffing flexibility. 

Response: As explained earlier in the 

preamble, the Act gives the Secretary 

discretion to require that States use a 

staffing model that will promote the 

goals of the ES program. For reasons 

articulated in the NPRM and this final 

rule, the Department has determined 

that that model is State merit-staffing. 

Three States using longstanding 

alternative staffing models presented 

arguments in support of retaining those 

models, but the information provided 

did not show a causal impact of the 

staffing model in these States and 

performance. Accordingly, the 

Department declines to extend staffing 

flexibility to all States. The Department 

reinstates a State merit-staffing 

requirement for ES services with the 

exception of the three States with 

longstanding reliance interests. These 

States are required to participate in 

evaluation of their delivery of ES 

services conducted by the Department, 

including review of services of other 

States that participate, as necessary, to 

determine whether such models are 

empirically supported. 

Comment: Some commenters, 

including one-stop operators, private 

citizens, and others, listed several 

potential impacts on customer service as 

reported by stakeholders concerned 

about the proposal, including closure of 

ES offices (particularly in rural areas), 

reduced hours of operation for offices, 

disruption of referrals, curtailed services 

to immigrants, veterans, and other 

vulnerable populations, fewer 

opportunities for career awareness 

events or job fairs, and reduced access 

to technology. Many commenters, 

including Michigan local governments, 

a Michigan State elected official, and 

Michigan one-stop operators, also 

warned that the rule would cause onestop centers to reduce or eliminate their 

job seeker and employer workshops, 

career fairs, and career awareness 

events, as well as their efforts to 

facilitate job seekers’ enrollment in and 

funding for schools and training 

programs. Some commenters, including 

Michigan one-stop operators, Michigan 

one-stop center staff, and an employer, 

warned that with the reduced staffing 

flexibility under the rule, customer 

service in employment services would 

decline, with reductions in virtual 

services, less personal services, and 

with services only provided by 

appointment to customers who meet 

specific criteria. Several commenters, 

including a one-stop center employee, 

private citizens, and a Michigan State 

government agency, asserted that 

Michigan Works! staff anticipate 

disruptions to the ‘‘more than 3,600 

services’’ provided to industry-led 

collaboratives, 7,500 job fairs, and other 

services that have been successfully 

delivered over a 25-year period. 

Several commenters referred to the 

minimum services required by § 652.3 

noted in the NPRM (including 

facilitating the connection between job 

seekers and employers) and questioned 

how their State would continue to 

provide these essential services with 

just an estimated 25 percent of their 

current staffing level. The commenter 

asked whether a certain service or 

customer sector would take priority in 

cases where staffing shortages impact 

service availability, and further 

questioned how robust services would 

be provided if ES staff are reassigned to 

UI. A few one-stop center employees 

and a local government remarked that 

the proposal would disrupt convenience 

or would lengthen ‘‘turnaround time’’ 

for service delivery to job seekers, an 

outcome that the commenters warned 

would adversely impact job seekers, 

employers, and the local community. 

A local workforce development board 

described how ES staff work with job 

seekers to determine their unique needs, 

increase their marketability in the labor 

market, or otherwise provide ‘‘intensive 

job search assistance.’’ The commenter 

said these comprehensive services 

would be disrupted, causing a gap in 

service provision, and adversely 

affecting job seekers. The commenter 

provided figures to demonstrate the 

economic value of participation in the 

WIOA’s adult and youth programs and 

expressed concern that these economic 

impacts would be reduced or lost if 

existing ES staff are unable to support 

the comprehensive set of services they 

currently provide. A private citizen said 

ES customers need career services to 

build a sustainable work history. 

Several commenters asserted that onestop organizations in its area take pride 

in providing quality customer service 

and argued that local control over 

Wagner-Peyser Act ES programs is 

critical to positive impacts associated 

with its workforce development 

programs, citing statistics about the 

numbers of individuals and businesses 

served, numbers of workshops and 

hiring events hosted, and economic 

figures demonstrating economic impact 

and an overall return on investment. 

A State government agency 

recommended that the Department 

maintain staffing flexibility to avoid 

service disruption during emergencies. 

An anonymous commenter expressed 

concern that changing a system that 

works well will place ‘‘stress’’ on their 

State government, which is dealing with 

challenges related to the pandemic and 

unemployment. 

Some commenters, including a 

Michigan State government agency and 

an employer, asserted that the proposal 

would result in the loss of many fulltime employees and expressed concern 

about the ability of fewer State merit 

staff to handle the leftover caseload. The 

Michigan State agency asserted that this 

staffing shortfall would cause one-stop 

customers to experience increased 

delays, inefficiencies due to remote 

service delivery or multiple case 

managers, and challenges in scheduling 

appointments (potentially resulting in 

increased transportation or childcare 

costs). 

Response: The Department 

appreciates the concerns raised by the 

commenters. Commenters’ concerns 

appear to generally stem from an 

assumption that the use of State merit 

staff for ES services would be more 

expensive and thus result in the closure 

of one-stop centers, reduction of onestop hours, and programming cuts. 

While the commenters provided no 

evidence that the rule change would 

result in these reductions or closures, 

the Department understands that there 

may be costs and disruption associated 

with a transition to State merit staff, 

particularly for the three States that 

have longstanding reliance on being 

able to use alternative staffing models, 

as described above. Therefore, the 

Department will permit alternative 

staffing models in the three States with 

long-time reliance on such models. 

Service to Specific Populations or 

Vulnerable Populations 

Comment: Many commenters, 

including a Colorado State government 

agency, Colorado local government 

agencies, and advocacy organizations, 

warned that the rule would cause 

reductions in ES services in States that 

use flexible staffing models. These 

commenters expressed concern that 

such reductions would be associated 

with services that are designed 

specifically to aid vulnerable 

populations, or those who otherwise 

have significant difficulty in finding 

employment, thus doing them particular 

harm. In this category of vulnerable 

populations, commenters included 

groups such as veterans, immigrants, 

refugees, youth, people living in rural 

areas, people with disabilities, formerly 

incarcerated people, and other 

vulnerable job seekers. 

Several commenters, including 

private citizens, advocacy organizations, 

a local government, and others, stated 

that local Michigan Works! offices serve 


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the most vulnerable populations in a 

given community, including veterans, 

low-income adults, dislocated workers, 

individuals with intellectual 

disabilities, older workers, youth, and 

immigrants and refugees, and expressed 

concern that the proposal would disrupt 

or eliminate services to the detriment of 

these vulnerable populations. A onestop center employee similarly referred 

to these population groups and 

expressed concern that the proposal 

would delay service delivery for these 

groups and would adversely impact 

‘‘follow through’’ and information 

sharing between States and agencies. 

Some commenters, including a 

Michigan State government agency, a 

Colorado local government agency, and 

many Michigan one-stop center staff, 

also described the specific needs of the 

people generally served by one-stop 

centers; in general, these are vulnerable 

and low-income populations, in need of 

significant support in the job seeking 

process, including transportation, 

clothing, food, childcare, technology 

assistance, substance abuse counselling, 

and medical care. 

An academic commenter described 

their organization’s strong relationship 

with a local Michigan Works! office and 

expressed concern that the proposal 

would disrupt services to the most 

vulnerable communities in their area. 

The commenter said their organization 

benefits from employment and training 

services for immigrants and students 

and expressed particular concern about 

the potential elimination of the Teach 

Talent Thrive program that promotes 

lifelong learning and career readiness. 

An adult education provider stated 

that their organization partners with the 

local Michigan Works! office to provide 

career training and education services to 

adults and students, including coaching 

for career readiness, job searching, and 

aligning skills with a desired career 

pathway. The commenter also said the 

proposal would ‘‘compromise’’ 

Governor Whitmer’s Sixty by 30 plan 

that seeks to close socioeconomic gaps 

for vulnerable populations, including 

the economically vulnerable adults 

served by the commenter’s organization. 

Some commenters, including an 

employer, an advocacy organization, 

and a private citizen, expressed concern 

that the proposal would disrupt services 

for veterans, including programs that 

support employment for veterans with 

employment barriers, services for activeduty military members, and military 

spousal services. 

An advocacy organization expressed 

concern that ‘‘impactful’’ programs such 

as the Clean Slate program (which 

provides supportive services for 

formerly incarcerated individuals or 

individuals with criminal records) and 

the Going Pro Talent Fund (which 

provides skills-based certificate 

training) would be adversely affected by 

the proposal. A local workforce 

development board stated that local ES 

staff partner with programs like the 

Disability Program Navigator to enhance 

local capacity to provide services for 

people with disabilities, including 

helping such individuals navigate 

available services. A private citizen 

described how receiving supportive 

services from their local Michigan 

Works! service center has benefited 

their family member with intellectual 

disabilities and remarked that such 

services are difficult to find. 

A private citizen concerned about a 

disruption of critical services to 

vulnerable populations remarked that 

Michigan Works! has proven it is ‘‘best 

in class’’ as an ES provider, citing 

figures from 2018 and 2019 that showed 

Michigan was among the 10 States with 

the lowest costs of career services per 

participant served. 

Response: The Department 

appreciates the concerns raised by 

commenters and agrees that the quality 

of ES services is important, particularly 

for vulnerable populations. The ES is a 

universal access program. The 

Department prioritizes the needs of 

vulnerable populations in this 

rulemaking and believes that changes in 

this rulemaking further the goal of 

universal access. Requiring States to use 

State merit staff to provide ES services 

will better protect vulnerable 

individuals because State merit staff are 

employees of the State who are subject 

to merit system principles and are thus 

directly accountable to the State and 

administer the ES with greater 

transparency and accountability than 

other staffing models. 

The staffing requirements in part 652 

apply to the delivery of services and 

activities under parts 653 and 658. 

Using State merit staff for these services 

is appropriate because these staff 

positions perform worker protection 

functions for MSFWs, who are 

particularly vulnerable to employmentrelated abuses. These staff require 

centralized training and management 

from the State to ensure they are 

equipped to assess and respond to 

farmworker needs, including 

responding to complaints and apparent 

violations in the field, which may 

include highly sensitive subject matter 

like human trafficking. 

As stated above, the Department also 

recognizes the longstanding reliance 

interests of three States—Colorado, 

Massachusetts, and Michigan—and 

based on comments received about the 

negative impacts that requiring these 

States to change their ES service 

delivery models would have on service 

delivery, the final rule is allowing these 

three States to use the staffing models 

they have been allowed to use since the 

1990s. Adjusting to avoid negative 

impacts to these three States’ service 

delivery caused by the transition costs 

involved in changing decades-long 

practice is aligned with the 

Department’s prioritization of the 

service delivery needs of vulnerable 

populations. 

Business Services and Partnerships 

Comment: In addition to comments 

focused on the rule’s detrimental effects 

on job seekers, many commenters, 

including Michigan local governments, 

a Michigan State elected official, and 

Michigan one-stop operators, also 

expressed concern that the rule would 

have a significant negative effect on 

businesses and employers, primarily by 

reducing recruiting services to 

businesses seeking help in filling 

vacancies, as well as reduced job 

retention efforts. Numerous 

commenters, including an association of 

State elected officials, Michigan, 

Colorado, Massachusetts, and Delaware 

State government agencies, and 

Michigan and Colorado local 

governments, argued that the one-stop 

employment centers, operated by local 

merit staff, deliver high-quality, costeffective services to job seekers, and that 

existing staffing flexibility enables local 

centers to create strategic partnerships 

with businesses, schools, and 

nonprofits, all of which help better 

serve job seekers and businesses. Some 

commenters, including Michigan local 

governments, a Michigan State elected 

official, Michigan one-stop operators, 

and others, also warned that the rule 

would force one-stop centers to cut their 

industry-led collaboratives. Some 

commenters from Massachusetts, 

including a State government agency, 

local workforce development boards, 

and a local government employee, 

argued that implementing the rule 

would undermine business 

commitments and partnerships with ES 

services in States that use flexible 

staffing models because of the 

appearance of political instability and 

unnecessary bureaucratic change. 

Several commenters, including 

employers, one-stop center employees, 

and a local workforce development 

board, described how ES services 

benefit businesses, such as through job 

fairs, retention services, online job 

postings, and other programs that 

connect job seekers and employers. The 


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commenters expressed concern that the 

proposal would disrupt such services. 

Some commenters, including a private 

citizen and an employer, remarked that 

many businesses are struggling to find 

employees and credited local services 

that use Wagner-Peyser Act funding 

with providing critical assistance 

connecting employers and employees. 

Several commenters stated that 

Michigan Works! has provided ‘‘more 

than 141,000 services to businesses’’ 

and cited responses from program 

stakeholders who believed these 

services would be reduced or eliminated 

if reinstating merit-staffing impacted 

uses of Wagner-Peyser Act funding. A 

private citizen remarked that Michigan 

Works! services in their area assist 

employers with upskilling and retention 

of employees. A Colorado State 

government official asserted that the use 

of local merit staff for Wagner-Peyser 

Act programs has allowed Colorado to 

fully implement the ‘‘primary vision’’ of 

WIOA, effectively emphasize employer 

engagement, encourage work-based 

learning, and maximize support for 

local businesses based on local 

community and competitive needs. 

Some commenters, including a 

Colorado local workforce development 

board, an employer, and a one-stop 

center employee, specifically claimed 

that one-stop centers have been 

particularly helpful in connecting 

employers with skilled employees in the 

manufacturing sector, as well as 

facilitating training; thus, the 

implementation of this rule would do 

particular harm to the struggling 

manufacturing sector in the States that 

use flexible staffing models. 

Several commenters, including a 

Colorado State government, local 

governments, employers, and private 

citizens, asserted that the proposal 

would fracture relationships forged at 

the local level, harming both job seekers 

and employers. A Colorado local 

government and a local workforce 

development board said strong 

relationships between ES staff and local 

employers has resulted in a Subsidized 

Employment program that connects 

employers and entry level workers and 

expressed concern that this program and 

other comprehensive wrap around 

services would be lost due to the State 

merit-staffing requirement. An 

anonymous commenter remarked that 

local residents consider the local onestop center to be a ‘‘neutral third party’’ 

for businesses and job seekers, and 

expressed concern that this would be 

disrupted due to the merit-staffing 

requirement. 

A local workforce development board 

stated that their State’s current one-stop 

delivery model works well for 

businesses by connecting them with job 

seekers as well as training resources. 

Some commenters asserted that as a 

result of the proposal, employers will 

lose access to support for posting job 

orders and connecting with job seekers. 

A one-stop center employee argued 

that serving business requires staff ‘‘out 

in the field’’ and remarked that one-stop 

workers must seek out businesses, not 

the other way around. A trade 

association similarly remarked that the 

proposal would make it harder for 

businesses to engage with the workforce 

system and could result in the 

cancellation of contracts or other 

transition costs. 

A private citizen remarked that their 

local Michigan Works! office has 

effectively helped businesses attract and 

develop their workforces, including 

assisting businesses in securing grants 

to train and invest in current employees 

and add new staff. Similarly praising 

Michigan Works! employees’ support 

for local businesses, another private 

citizen expressed concern that the 

proposed merit-staffing requirement 

would negatively impact local 

communities at a time when labor 

concerns hinder businesses across the 

State. 

Some commenters, including State 

and local workforce development 

boards from Colorado, a trade 

association, a commenter from 

academia, and an employer, discussed 

the value of working with local ES staff 

due to their expertise in the local 

economy and knowledge of competitive 

factors in a given area, arguing that the 

ability to provide ES services using local 

merit staff maximizes the level of 

support provided to local businesses. A 

local government expressed concern 

that the proposal would disrupt 

established relationships between local 

staff and employers and economic 

development organizations at the 

community level. 

Some commenters, including an 

advocacy organization, a trade 

association, a Colorado local 

government, and private citizens, 

discussed the value of local knowledge 

in serving the needs of local businesses 

and job seekers, with some discussing 

the varied needs of businesses and job 

seekers in urban and rural areas. A 

Colorado local government and a 

Colorado one-stop operator similarly 

argued that employers benefit from 

working with staff who have a regional 

perspective on what businesses need. A 

Colorado local workforce development 

board similarly discussed the value of 

local control of ES services and the 

knowledge of local and regional 

economic conditions, including whether 

the economy is prosperous, whether 

employers are facing labor shortages or 

scarcity, and whether unemployment 

rates are high or low. The commenter 

said removing local control would result 

in slower services and a less nuanced 

and dynamic response to citizen and 

business needs. 

An advocacy organization described 

the value of local industry-led 

initiatives in serving employers’ unique 

regional needs and expressed concern 

about such initiatives’ continued 

success if ES staff are reduced or 

reassigned. A Colorado local workforce 

development board described sectoral 

partnerships developed by local staff 

working in the communities they serve, 

including partnerships in the 

healthcare, information technology (IT), 

construction, and transportation sectors. 

A different Colorado local workforce 

development board expressed concern 

that the proposal would ‘‘dismantle’’ 

successful regional industry sector work 

that has developed over the past decade. 

A private citizen and an anonymous 

commenter described services provided 

to businesses made possible by local 

staff’s relationships with those 

businesses and expressed concern that 

the proposal would result in the loss of 

‘‘local control.’’ 

A Colorado employer and a few 

private citizens argued that county merit 

staff have developed expertise on the 

local economy and community needs, 

asserting that State or Federal 

employees are less capable of 

developing successful local connections 

with local businesses. 

Several commenters, including trade 

associations, private citizens, a one-stop 

center employee, an advocacy 

organization, and Colorado local 

workforce development boards, argued 

that local workforce staff have the 

necessary local and regional 

understanding to establish effective 

partnerships with local partners and 

organizations. Several commenters, 

including a Michigan State elected 

official, a Michigan local elected 

official, Michigan local workforce 

development boards, one-stop operators, 

and Michigan local governments, 

similarly remarked that the ability to 

develop strategic partnerships with 

local nonprofits, businesses, educational 

institutions, and other organizations is a 

key benefit of ES staffing flexibility 

because these relationships facilitate 

connections between students, job 

seekers, training providers, and local 

employers. 

A private citizen remarked that staff 

in their local Michigan Works! office 

had a knowledge of local business needs 


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and hiring trends that was critical in 

accessing the right services for the 

commenter to remain competitive in the 

local job market. 

Response: The commenters 

highlighted the benefits of the services 

provided to businesses, and the 

Department agrees that business 

services and partnerships with 

businesses are important. However, the 

commenters did not explain why the ES 

staffing model is a causal factor in the 

quality of those business services and 

partnerships. Many other States use 

State merit staff to successfully provide 

services to businesses and job seekers. 

The Department recognizes the 

longstanding reliance interests of 

Colorado, Massachusetts, and Michigan, 

and will therefore allow these States to 

utilize the longstanding alternative 

staffing models the Department 

previously allowed them to use. These 

States may exercise merit-staffing 

flexibility to the same extent previously 

authorized by the Department for that 

State prior to February 5, 2020, the 

effective date of the 2020 Final Rule. 

The Department also is requiring these 

three States to participate in evaluations 

of their ES service delivery model to be 

conducted by the Department. 

Access—Transportation and Virtual 

Services 

Comment: Some commenters, 

including an anonymous commenter, a 

one-stop center employee, a local 

workforce development board, and a 

private citizen, stated that their local 

service office has offered assistance in 

using technologies or online services 

that are vital to employment and 

expressed concern about losing access 

to such support. 

Some commenters, concerned about 

the disruption or closure of Michigan 

Works! offices in their area, including a 

local workforce development board and 

a one-stop center employee, worried 

that customers would need to travel 

longer distances to access needed 

services, with many stating that rising 

gas prices and other complications 

(such as the sparse availability of public 

transportation in certain areas) will 

make transportation particularly 

challenging for many one-stop center 

customers. 

Response: The COVID–19 pandemic 

highlighted the need for States to have 

staff to serve as surge capacity for times 

of high demand for UI claims. The 

Department agrees that in-person 

services are valuable, even as 

technology makes virtual services easier 

to develop and deliver. States across the 

country, the vast majority of which use 

State merit staff, have successfully used 

a combination of comprehensive and 

affiliate AJCs, access points, mobile 

AJCs, and online and virtual services to 

a reach geographically distant job 

seekers and those without reliable 

transportation. Data do not show a 

relationship between staffing models 

and the number of AJCs or access points 

per capita in the State. The Department 

also recognizes the longstanding 

reliance interest that Colorado, 

Massachusetts, and Michigan have in 

using alternative staffing models 

authorized by the Department. The 

Department is permitting these States to 

continue using the longstanding staffing 

models the Department allowed them to 

use in the 1990s. These States may use 

merit-staffing flexibility to the extent 

permitted by the Department in that 

State prior to February 5, 2020, the 

effective date of the 2020 Final Rule. All 

other States, including those that began 

using the staffing flexibility provided by 

the 2020 Final Rule, are required to use 

State merit staff to provide ES services. 

The Department will further examine 

various staffing models and methods of 

delivering labor exchange services, 

including evaluation activities for 

which the Department will require the 

participation of the three alternative 

staffing model States. All other States 

will have 24 months to comply with the 

requirement to use State merit staff to 

provide ES services. No additional 

States are permitted to pursue adoption 

of an alternative staffing model during 

the transition period; the final rule is 

effective 60 days after publication in the 

Federal Register. The 24-month 

transition period for complying with the 

State merit-staffing requirement is 

intended only for those few States that 

began using staffing flexibility in 

response to the 2020 Final Rule and 

now must transition back to using State 

merit staff. 

Training and Other Considerations for 

Employees Delivering Services 

Comment: A think tank remarked that 

many State agencies face multiple 

challenges, including staffing shortages, 

funding shortfalls, and backlogs, and 

warned that the proposal could 

exacerbate these issues because contract 

staffing or other staffing flexibilities 

offer workable solutions. A local 

government expressed concern about 

forcing programs to re-structure existing 

staffing models, stating that the 

proposed rule could result in laid off 

staff, damage to staff morale, and a 

reduction of ‘‘vital employment 

services’’ like labor exchange services, 

career workshops, and services related 

to community engagement and service 

navigation. 

Some commenters, including a onestop center employee and a private 

citizen, warned that hiring or training 

new staff could lead to discrimination 

or bias against existing staff or entrylevel staff. A private citizen remarked 

that local agencies may have different 

retirement or healthcare benefits for 

staff based on agreements with local or 

country governments, and expressed 

concern that changing staffing 

arrangements could disrupt pension or 

healthcare benefits for some workers. A 

one-stop operator acknowledged that 

ensuring employees receive fair wages 

and benefits was a motivation for the 

NPRM and remarked that the retirement 

and medical benefits available for 

public employees in its county are 

among the top plans nationwide. 

An anonymous commenter argued 

that it would not make sense to train 

new individuals to replace the current 

staff in Workforce Centers, who have 

already developed relationships with 

customers. 

A private citizen remarked that 

Colorado’s current staffing model 

creates a greater level of oversight 

because county merit-staff employees 

are accountable to both the State and 

county government. A State government 

referred to the Department’s rationale 

about State merit staff’s accountability 

and asserted that county merit 

employees are already sufficiently 

accountable to their local county 

government. An advocacy organization 

stated that currently employee 

performance is assessed and measured 

using customer service metrics and they 

expressed concern that the proposal 

would alter and complicate performance 

assessments. 

Response: The Department recognizes 

that there will be transition costs to 

some States, which was included in the 

NPRM’s regulatory impact analysis. 

New information regarding transition 

costs and impacts was provided in 

comments to the NPRM from States 

utilizing alternative staffing models. The 

Department considered these comments 

in developing the final rule but, for the 

reasons discussed throughout, the 

Department has decided to require that 

States use State merit staff to provide ES 

services, with limited exception. The 

Department is allowing the three States 

with longstanding reliance interests— 

Colorado, Massachusetts, and 

Michigan—to continue to utilize their 

longstanding alternative staffing models 

for ES services and is requiring their 

participation in an evaluation to be 

conducted by the Department. 


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82680 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

Transition Period 

Comment: In addition to reduced 

future employment services, some 

commenters, including an association of 

State elected officials, a Colorado State 

government agency, Colorado local 

government agencies, and others, 

claimed that there will be significant 

transition costs and logistical challenges 

for States to transition to a model by 

which employment services are only 

provided by State merit staff. 

During this transition period and for 

some time after, a Colorado State elected 

official and State government agency 

warned that compliance and 

performance standard failures will 

likely become more common. 

While most commenters wrote about 

the effects the rule would have if 

implemented, some commenters, 

including a Colorado State elected 

official, a Colorado local government 

agency, and a one-stop center employee, 

argued that the proposed merit-staffing 

requirement has already had a chilling 

effect, with former demonstration State 

one-stop centers and localities unable to 

approve budgets, not knowing what 

future grant levels will be, and with 

one-stop center staff already seeking 

employment elsewhere in anticipation 

that their positions will be terminated 

soon anyway. 

A State government agency discussed 

the challenging logistics of 

implementing a State merit-staffing 

model within 18 months, anticipating 

additional staffing needs as well as a 

challenging timeline for State legislature 

approval of additional funding for 

additional staff. The commenter 

requested a 3-year implementation 

timeframe to make requests for 

additional staff and funding during the 

State legislature’s budget cycle. 

Conversely, several unions who 

supported the proposal agreed with the 

proposed 18-month transition timeline 

and recommended that the Department 

provide assistance and support to any 

States using alternative or flexible 

staffing models, reasoning that such 

assistance would help prevent 

disruptions to Wagner-Peyser Act 

services. One union suggested that the 

Department ‘‘require sufficient staffing 

to monitor and support’’ the transition 

in States using flexible staffing models. 

State and local workforce 

development boards, a Colorado State 

government agency, and a Colorado 

local government requested a 36- to 40- 

month transition timeline (depending 

on if and when the rule is finalized) 

allowing for full compliance by 

December 31, 2025. The commenters 

cited the State legislative process and 

funding needs to both maintain quality 

services and hire and cross-train new 

staff as factors that necessitate a longer 

transition period. 

A Colorado State government agency 

and State and local workforce 

development boards said State 

legislation would be needed to allow 

Colorado to come into compliance with 

the Federal rule and anticipated that 

current staff may leave their posts as 

soon as the rule is finalized (which, the 

commenters asserted, would require 

time and funding to find and train their 

State merit-staff replacements). The 

commenters also stated that the funding 

and effort required to hire and train new 

State merit staff would require funding 

from the PY 2024 Wagner-Peyser Act 

allocation as the PY 2023 amount likely 

would not be sufficient. 

A Colorado one-stop operator argued 

that the transition timeline is 

‘‘irrelevant’’ because the proposal will 

cause impacts immediately. The 

commenter argued that the proposal has 

already created concerns among local 

employees about their job security and, 

thus, announcement of a finalized 

nationwide merit-staffing requirement 

would result in immediate departure of 

ES staff, concluding that Wagner-Peyser 

Act services will ‘‘cease immediately’’ if 

the proposal becomes final. 

A Michigan State government agency 

requested an extension of the 

implementation period from 18 months 

to 3 years, arguing that modifications to 

State departments’ structure, State 

budget processes, and public sector 

recruitment, hiring, and training 

functions will take time. The 

commenter anticipated that 90 new staff 

members would need to be hired and 

trained and remarked that this would 

require the State legislature to approve 

a staffing structure modification (adding 

that their State legislature is ‘‘extremely 

resistant’’ to adding new full-time 

employees to State departmental 

budgets). The commenter said the 

longer implementation period would be 

necessary to ensure there are no 

disruptions to service delivery and 

reorient the local workforce 

development structure. If the 

Department finalizes the merit-staffing 

requirement as proposed, this 

commenter also requested a 3-year 

reprieve from Wagner-Peyser Act and 

WIOA title I performance reporting and 

suggested that a new performance 

baseline would need to be negotiated 

and established. 

Opposing the proposed merit-staffing 

requirement, several commenters, 

including a one-stop center employee, 

argued that 18 months was insufficient 

to ‘‘revamp’’ an ES delivery system that 

has been constructed over the past 25 

years and requested that, if the proposal 

is finalized, more than 18 months be 

provided for transition and transition 

should align with a new program year. 

These commenters described the 

‘‘painful’’ impacts of Michigan’s 1998 

transition from State merit staff to local 

merit staff, including lack of 

coordination in program delivery and 

diminished customer service. 

A Massachusetts State government 

agency opposed to the proposal 

requested a ‘‘significantly longer 

timeline’’ to assess, plan for, and 

implement the merit-staffing 

requirement, asserting this would 

require the conversion of more than 40 

local Wagner-Peyser Act staff into State 

merit staff. The State government listed 

difficulties associated with an 

anticipated ‘‘major infrastructure 

change,’’ including facilitating staff 

turnover and hiring new staff, 

negotiating with unions, approval of 

‘‘spending controls,’’ and considerations 

of lease or other contractual agreements. 

The commenter also mentioned that the 

forthcoming WIOA reauthorization 

potentially complicates the overall 

timeline. Ultimately, the commenter 

requested that the implementation 

period should last until at least January 

2025. 

Describing the proposal as a major 

disruption to Colorado’s workforce 

system, the commenter discussed how 

the staffing transition would impact 

program offices in Colorado, including 

‘‘mass layoffs’’ of 145 county staff (and 

associated negative impacts on morale), 

fewer full time Wagner-Peyser Act staff 

resulting in scaled back services for 

vulnerable populations, lost 

productivity, customer service 

disruptions, increased errors by 

‘‘unseasoned staff,’’ and potential 

lawsuits or other complications due to 

union representation of State staff. 

Several commenters remarked that, 

based on average turnover rates, 

Michigan’s local offices may have 18 

open ES positions at any given time. A 

Colorado State government agency 

asserted that the proposal would make 

it difficult to hire new outreach staff. 

Additionally, a Delaware State 

government agency further warned that 

the process to replace Wagner-Peyser 

Act contractors and local staff with State 

merit staff will be procedurally 

challenging and time consuming, with 

no guarantee that the staff requests will 

be approved by the relevant State 

government bodies. A local workforce 

development board remarked that its 

local service center could not move 

forward with planning programming 

and strategies for the forthcoming 


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program year (which begins on July 1st 

of this year) because they are unclear as 

to the financial implications of the 

proposal. Similarly, a Colorado State 

government agency expressed concern 

about changing regulations during ‘‘the 

current 2020–2023 demonstration 

period’’ because neither former 

demonstration States nor the 

Department would have enough time to 

provide evaluative data on the benefits 

and challenges with the flexible staffing 

model approach. 

Response: The Department proposed 

an 18-month transition period for States 

to comply with the requirement to use 

State merit staff to provide ES services 

and estimated transition costs in its 

regulatory impact analysis. In the 

proposed rule the Department 

specifically requested information 

regarding States’ transition costs and the 

proposed 18-month transition period 

should this requirement be 

implemented for all States. The 

Department received comments 

regarding the length of the transition 

period, with some commenters 

suggesting a 2-year transition period, 

while others suggested a longer or 

unspecified period of time. The three 

States with longstanding reliance 

interests requested a 3- to 4-year 

transition period. As noted throughout 

this preamble, based on information 

provided by these three States in 

response to the NPRM, the Department 

is allowing these States to continue to 

use the alternative staffing models 

consistent with the models previously 

approved by the Department in these 

States. The Department is requiring 

these three States to participate in 

evaluations of their ES service delivery 

models. The Department recognizes that 

there are certain transition costs 

associated with shifting back to the use 

of State merit-staffing, which may 

include State legislation, budget 

restructuring, and hiring, and these 

processes, particularly those that require 

State legislative action, may take longer 

than 18 months. Therefore, the 

Department is requiring all other States, 

including States that began using 

alternative staffing models following the 

2020 Final Rule, to comply with the 

requirement to use State merit staff for 

ES services within 24 months of the 

effective date of this final rule. This 

includes the requirement to use State 

merit staff to conduct outreach and 

provide other services to MSFWs under 

parts 653 and 658. 

Relationship Between Employment 

Services and Unemployment Insurance 

Consequences of Having the Same Staff 

Manage ES and UI in States That Are 

Currently Operating Flexible Staffing 

Models 

Comment: Many commenters, 

including a Michigan State elected 

official, a Massachusetts State 

government agency, and Colorado local 

governments, articulated that local merit 

staff at one-stop centers in former 

demonstration States already provide 

significant resources, guidance, and 

other support to UI claimants, many of 

whom face technological and 

transportation barriers in making 

successful unemployment claims, and 

claimed this role was particularly 

important during the UI demand surge 

caused by the COVID–19 pandemic. 

Some commenters, including one-stop 

center staff and a private citizen, 

warned that assigning ES staff to UI 

adjudications during UI surges would 

unnecessarily burden ES staff and cause 

the quality of employment services in 

the States that use flexible staffing 

models to degrade even further during 

UI surges. 

An advocacy organization argued that 

the relatively small number of new State 

merit staff this rule would create in 

States that use flexible staffing models 

would not make the States significantly 

more prepared to handle UI surges. 

Similarly, a Colorado State elected 

official and a Colorado local workforce 

development board argued that States 

that already require Wagner-Peyser Act 

ES services to be provided by State 

merit staff did not perform any better in 

processing UI claims during the UI 

surge caused by the COVID–19 

pandemic than the former 

demonstration States. 

A one-stop center employee similarly 

argued that the rule could actually 

decrease the number of staff available to 

assist with UI claims during a UI surge 

in States that use flexible staffing 

models; this commenter argued that 

because one-stop center staff in former 

demonstration States are already 

assisting with the UI claims process, by 

causing an overall reduction in ES staff, 

such States would lose this surge 

capacity. 

Some commenters, including one-stop 

center employees, trade associations, 

and a private citizen, expressed concern 

about skill misalignment and warned 

that the proposal would require 

retraining workers who provide 

employment services to perform tasks 

related to adjudicating UI claims, 

functions the commenters argued 

require different skill sets and 

workstyles. A one-stop center employee 

expressed concern about ES staff taking 

on the duties of UI staff and argued that 

ES staff will not be familiar with 

practices critical to the management of 

UI benefits (such as timely 

administration of the ‘‘work test.’’) A 

private citizen remarked that Michigan’s 

local ES offices have been successful in 

providing a wide range of services to 

both job seekers and businesses seeking 

employees while, in their view, the 

merit-staffed State UI program has been 

‘‘a debacle.’’ 

A Colorado State government agency 

expressed concern about the effort and 

funding required to onboard or crosstrain staff and remarked that new hires 

may not be available to provide services 

throughout their first year due to the 

time needed to complete required 

trainings for both UI and Wagner-Peyser 

Act programs. 

Response: The Department proposed 

to require that States use State merit 

staff to provide ES services, which 

aligns the provision of ES services with 

the requirement that States administer 

certain UI activities with State merit 

staff. The Department notes that the 

NPRM did not propose requirements on 

States to train or use their ES staff for 

UI activities. Neither is the Department 

requiring that States cross-train ES staff 

for UI activities in this final rule. 

However, the ability for States to crosstrain would generally better equip States 

to be able to use ES staff for certain UI 

activities that require State merit staff in 

times of high need. While the 

Department encourages States to plan 

for increases in UI demand including 

through cross-training, a State can 

develop cross-training that it wishes to 

implement at its own pace. The 

Department recognizes the role that 

other staff in an AJC may play in 

connecting job seekers with UI services, 

but also notes that the ES has specific 

duties to assist UI claimants to become 

reemployed. Providing information and 

meaningful assistance in filing a claim 

for unemployment compensation is an 

allowable cost under the Wagner-Peyser 

Act. The Department also recognizes the 

longstanding reliance interests of 

Colorado, Massachusetts, and Michigan, 

in utilizing alternative staffing models 

and that a requirement to use State 

merit staff may impact these States 

differently than other States. Therefore, 

the Department is allowing these three 

States to continue to use the 

longstanding alternative staffing models 

previously approved by the Department 

in these States. The Department is 

requiring these three States to 

participate in evaluations of ES service 

delivery and alternative staffing models. 


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82682 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

Support Ability of State Merit Staff To 

Provide Surge UI Claims Processing 

Capacity 

Comment: Many commenters, 

including unions, advocacy 

organizations, think tanks, and a State 

government agency, expressed support 

for the proposed ES merit-staffing 

requirement because of State merit 

staff’s ability to play roles in 

administering UI programs and 

connecting jobless workers to UI 

benefits. Specifically, some of these 

commenters remarked that, because 

only State merit staff can legally 

adjudicate UI claims, requiring ES staff 

to be hired on a merit basis would 

permit States to rely on them to process 

and adjudicate UI claims. Some unions, 

advocacy organizations, think tanks, 

and a State employee association 

commented that reinstating the meritstaffing requirement in all States and 

realigning ES services with the UI 

program will ensure that workers can 

continue to receive unbiased, highquality employment services and 

effective, qualified help in claiming UI 

benefits during economic crises 

‘‘without the threat of partisan political 

coercion hanging over them.’’ 

Several unions, a State government 

agency, and a think tank agreed with the 

Department’s assessment that any value 

gained by allowing the ES to be staffed 

at the local level is outweighed by the 

benefits of aligning ES staffing with UI 

administration and adjudication, which 

would allow ES staff to provide surge 

capacity for UI during times of high 

need. As framed by one union, crosstraining State merit ES staff enhances 

the resiliency of UI service delivery. 

Citing the pandemic and natural 

disaster emergencies (e.g., Hurricane 

Sandy) as the best examples of the need 

for cross-training State merit ES staff to 

assist UI claimants in periods of high 

demand, many commenters, including 

unions, advocacy organizations, and 

think tanks, argued that, because the 

frequency of such extreme events is 

likely to increase, alignment of ES and 

UI staff is even more important. Several 

of these commenters reported that 

during the pandemic, Great Recession, 

and recent natural disasters, States have 

relied on State merit ES staff to support 

UI work, which helped to address 

historic UI claims surges. 

According to unions, advocacy 

organizations, think tanks, and a State 

employee association, the U.S. 

experience with temporary privatization 

of UI administration permitted by 

Congress during the pandemic 

reinforces the importance of reinstating 

ES merit-staffing. These commenters 

asserted that the temporary exemption 

from the requirement that UI 

adjudicators be merit-staffed resulted in 

many States contracting with private 

companies that hired low paid, poorly 

trained non-State-merit staff to 

administer traditional and new 

temporary UI programs. Citing a May 

2022 working paper, these commenters 

said that this use of non-State-merit staff 

led to high turnover among contracted 

staff; corruption in the hiring of staff 

and in job and training referrals and 

placements; and poor service and long 

payment delays for claimants. A State 

employee association and a union 

added that incomplete and deficient 

work by outsourced staff increased the 

workload for State merit-staff UI 

adjudicators, who were forced to correct 

vendor staff errors. 

Further, unions, an advocacy 

organization, a think tank, and a State 

employee association discussed a State 

audit of Michigan’s UI experience 

during the pandemic, which they 

asserted found that insufficient worker 

onboarding and offboarding practices 

(e.g., only one-fifth of workers 

completed required training before 

starting their duties) resulted in a total 

of $3.8 million in UI fraud committed 

by vendor staff; purchase order delays; 

conflicts and ethics violations; and 

unsafe computer sanitization practices. 

A State employee association and an 

advocacy organization added that the 

Michigan audit also found that nearly 

half of the sampled vendor staff still had 

access to the State’s automated UI 

system long after they no longer worked 

for the contractor, which the commenter 

said created unnecessary risk to the data 

and systems. Citing the Michigan audit 

report, an advocacy organization said 

that contractors also failed to comply 

with criminal history background 

checks for their workers. 

Also asserting that Michigan UI 

claimants in particular suffered during 

the pandemic, an advocacy organization 

commented that hundreds of claimants 

reported to legal advocates that they 

received little to no help from the 

frontline staff who were hired to handle 

the surge of claims during the 

pandemic. Asserting that non-merit UI 

workers hired during the pandemic did 

not receive adequate training, unions 

and a State employee association agreed 

with the Department’s statement in the 

NPRM that providing adequate training 

for UI adjudicators takes several months 

to a year. A think tank commented that 

State UI offices increasingly are using 

contractors for identity verification, 

which is delaying benefits and creating 

backlogs for unemployed workers, 

which is impacting individuals of color 

and their communities. 

An advocacy organization and a 

private citizen commented that crosstraining ES merit staff would alleviate a 

lot of the pressure on UI merit staff 

during crises. Citing a lag of increased 

UI administrative funding at the start of 

economic downturns, another advocacy 

organization argued that cross-training 

State merit ES staff allows ES staff to fill 

this gap before the Department is able to 

distribute additional funds to respond to 

increased administrative needs. 

A think tank commented that it has 

heard from a wide range of legal aid and 

UI advocates that State UI systems are 

overwhelmed and fighting cyber fraud 

due to staffing shortages. Citing a 2020 

news article about a Michigan UI agency 

employee committing fraud, an 

advocacy organization argued that crosstraining ES State merit staff to provide 

UI services during surges—rather than 

relying on contractors or new hires— 

could limit the risk of fraud and ensure 

the program is run with high integrity 

and efficiency. 

Some commenters, including unions, 

advocacy organizations, and think 

tanks, remarked that merit-based State 

ES employees provide professional, 

unbiased ES services to job seekers and 

employers and help UI claimants 

navigate the job market and comply 

with work search requirements to 

initiate and remain eligible for UI 

benefits. Specifically, an advocacy 

organization commented that ES staff 

are already familiar with the local 

worker populations and understand the 

conditions on the ground. Because ES 

staff administer the work test to ensure 

that UI claimants are able to work and 

are available for and actively seeking 

work, which is a federally required 

condition of State UI eligibility, a State 

employee association asserted that this 

gatekeeper function makes the role of ES 

staff ‘‘inherently governmental.’’ Citing 

increased mandatory UI work test duties 

imposed over time, a private citizen 

argued that additional State merit ES 

staff should be physically available in 

one-stop centers to assist the UI 

component in a variety of expanded 

work test functions. 

An advocacy organization argued that, 

to support a unified delivery model in 

which job seekers can apply for UI 

benefits through the same agency 

providing reemployment services, ES 

and UI programs should work together 

to ensure that services are provided by 

conflict-free, public service 

professionals, so that workers receiving 

UI benefits can find suitable 

replacement jobs efficiently. Similarly, a 

private citizen commented that required 


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merit-staffing for ES services may 

promote better coordination between UI 

staff and ES staff, which is much 

needed. Commenting that the ES 

program performs important labor 

exchange functions that connect 

employers with qualified workers and 

help employees gain reemployment 

more rapidly, a private citizen argued 

that the ES must be closely involved 

with UI. A think tank argued that, as 

new technology will be deployed over 

the next few years to address UI 

modernization, it is critical that State 

level staff are career employees with 

decent pay and benefits, which ‘‘will 

also help ensure a more equitable UI 

system for all workers and address the 

racial inequities.’’ 

Asserting that allowing non-State 

employees in some States to operate ES 

and UI services was not a wise policy 

practice, a private citizen reasoned that 

deficient or hard-to-manipulate 

computer-based registration, job finding 

and placement services, and claims 

processing often result in frustration, 

leaving some jobless to abandon 

government assistance, which erodes 

overall trust in government services. 

This commenter concluded that the best 

way to reestablish the trust of job 

seekers and UI claimants in the delivery 

of public services is to improve the 

national standards of quality and 

professionalism in staffing of State 

workforce agencies by hiring superior 

individuals under merit standards. 

Also expressing concern about nonState-merit ES staff causing frustration 

for UI claimants, an advocacy 

organization argued that cross-training 

ES State merit staff, and allowing them 

limited access to UI claims information, 

could go a long way towards rebuilding 

these relationships, and would provide 

claimants with the in-person access to 

information that they want. Specifically, 

this commenter said that most of its 

clients have limited access to 

technology and struggle to navigate the 

UI technology system on their phones, 

and one-stop center staff cannot help 

claimants with filing claims or 

navigating the online portal. Therefore, 

the commenter remarked that crosstraining ES staff and allowing them to 

provide minimal UI support could help 

alleviate claimant frustrations, provide 

better access to UI, and prevent many 

mistakes that claimants make when 

filing that later lead to improper 

payments. Finally, this commenter 

argued that, because the majority of its 

clients who seek help at State one-stop 

centers are from underserved 

populations, allowing ES State merit 

staff to provide basic information about 

UI claim status and assist with 

navigating the online systems would 

ensure greater equity in access to 

benefits. 

A union, a State employee 

association, an advocacy organization, 

and a private citizen argued that the 

history of the ES and UI programs 

supports the NPRM’s reliance on the 

ES–UI relationship and the 

appropriateness of aligning these 

programs via the State merit-staffing 

requirement. Specifically, a union and a 

State employee association commented 

that these programs originated as 

intertwined prongs of the New Deal 

response to mass unemployment and 

Congress subsequently integrated the 

funding structure of ES and UI, tasked 

ES with administering the UI work test, 

and encouraged the colocation of ES 

and UI staff to support unified service 

delivery, all of which also bind these 

programs together and support 

alignment. 

In particular, because the UI program 

was created in the Social Security Act 

(SSA) less than 2 years after passage of 

the Wagner-Peyser Act, a private citizen 

stated that Congress developed the UI 

program with full knowledge of the 

existing ES public labor exchanges. The 

commenter described the origins of the 

UI statutory merit-staffing requirement 

and asserted that this legislative history 

provides support for the Department’s 

linkage of UI and ES. In summary, 

according to this commenter, the UI 

merit-staffing requirement was not in 

the original SSA of 1935, even though 

the President’s Committee that designed 

the programs recommended that the 

selection of administrative personnel for 

the program be on a merit basis. In 1938, 

the commenter said, based on an initial 

UI program review by the Social 

Security Board, a recommendation was 

made to require merit-staffing in the UI 

program for all States, which was 

implemented by Congress in 1939, 

while leaving early Federal 

administrative interpretations requiring 

merit-staffing for the ES program in 

place. Therefore, this commenter 

concluded that the linked historical 

background of ES and UI demonstrates 

that the absence of an explicit meritstaffing requirement in the WagnerPeyser Act does not demonstrate that 

merit-staffing is beyond the Secretary’s 

authority, and the record of consistent 

use of merit-staffing in both ES and UI 

programs supports the adoption of the 

proposed merit-staffing requirement. 

Asserting that the founders of the 

unemployment security system felt 

strongly that ES and UI services should 

be administered by State merit-staffed 

employees, a private citizen commented 

that, without State merit-staff ES 

employees, the public character of the 

one-stop center is ceded to private 

control, contrary to the intent of the 

Wagner-Peyser Act. This commenter 

urged the Department to strengthen its 

argument for uniform required State 

merit-staffing for ES services by 

indicating that it is based on 

longstanding Department policy, 

research findings, and relevant recent 

experience. 

A union argued that aligning the 

staffing requirements of the ES and UI 

programs would further facilitate their 

integration and promote their joint aim 

of alleviating the deleterious effects of 

unemployment and foster 

reemployment. 

Response: The Department proposed 

to require that all States use State merit 

staff to provide ES services due in part 

to the critical need for alignment 

between the ES and UI programs. The 

Department appreciates the comments 

supporting this alignment. It is vital that 

the ES be administered so that services 

are delivered effectively and equitably 

to UI beneficiaries and other ES 

customers. The Department’s proposal 

and justification was supported by these 

commenters, including that States 

would be better equipped to handle 

surges in UI claims with cross-trained 

ES staff. As the Department noted in the 

NPRM, emergencies such as natural 

disasters are occurring with increased 

frequency such that a need for surge 

capacity and cross-trained staff is 

becoming increasingly necessary. The 

Department further noted that historical 

data from 1971 through 2021 indicate 

regular and periodic increases in the 

number of UI initial claims and first 

payments, for which having ES staff 

who are already cross-trained or able to 

be quickly cross-trained to assist UI 

claimants would be beneficial. 

Requiring States to use State merit staff 

also helps to support universal access to 

ES services and helps to ensure that 

services are delivered by qualified, nonpartisan personnel who are directly 

accountable to the State. Such 

professionals would be required to meet 

objective professional qualifications, be 

trained to assure high-quality 

performance, and maintain certain 

standards of performance. They would 

also be prohibited from using their 

official authority for purposes of 

political interference, and States would 

be required to assure that they are 

treated fairly and protected against 

partisan political coercion. 

The Department further agrees that UI 

and ES are two mutually reinforcing 

elements of the Federal government’s 

commitment to workers and that the 

legislative history of the two programs 


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strengthens the Department’s authority 

to require State merit ES staff. The 

alignment of these two programs 

remains a core goal of the Department, 

with the RESEA program’s emphasis on 

connecting UI claimants to WagnerPeyser and WIOA services being the 

latest step toward further integration. 

Undue Prioritization of UI Services 

Comment: Some commenters, 

including a Colorado State government 

agency, a one-stop operator, private 

citizens, and an anonymous commenter, 

critiqued the proposal over what they 

perceived as an undue prioritization of 

UI services over ES and argued that in 

doing so, the Department would be 

restricting vulnerable populations’ 

access to needed employment assistance 

programs because many individuals 

who would benefit from ES are not 

eligible for UI. Several commenters, 

including a Colorado local government 

employee and an anonymous 

commenter, argued that the proposal 

presented ‘‘discrimination and civil 

rights issues’’ in shifting focus from ES 

to UI services because the latter does not 

provide a comprehensive set of services 

to enable job seekers to find and secure 

a job. Several commenters, including a 

Colorado State government agency and 

a trade association, similarly discussed 

inequity and civil rights concerns 

associated with the proposal 

‘‘prioritizing the delivery of UI services’’ 

over ES, arguing that this places 

increased importance on customers 

eligible for UI and diminishes the 

availability of services for vulnerable 

populations (such as communities of 

color, people with disabilities, people 

experiencing homelessness, and selfemployed or gig workers) who need 

employment assistance but may be 

ineligible for UI. 

A trade association remarked that 

shifting ES staff to UI services would 

promote benefit payments over assisting 

customers with employment and would 

cause the community to perceive AJCs 

as ‘‘the unemployment office’’ rather 

than a site to receive employment 

services. 

A one-stop center argued that 

prioritizing UI services over ES would 

be harmful to employers. A private 

citizen stated that the staffing status quo 

in Colorado enables an equitable 

delivery of UI and ES services and cited 

data from 2021 about the numbers of 

people who accessed such services in 

their area in asserting that 9,000 people 

would receive ‘‘subpar’’ ES due to the 

proposal’s undue prioritization of UI. 

A State government discussed 

challenges associated with a rapidly 

changing labor market and encouraged 

the Department to keep flexible staffing 

models in place, arguing that States 

need flexibility to effectively deliver UI 

and reemployment services, in part due 

to the decrease in Federal WagnerPeyser Act funding ‘‘over the past 

decades.’’ The commenter said 

reemployment services require a wide 

range of ‘‘tools, sites, and strategies’’ 

and argued that staffing flexibility helps 

some States deliver such services 

effectively. A group of local government 

employees remarked that many of the 

individuals served in their local area are 

not eligible for UI benefits but need 

access to ES services. The commenter 

said such individuals feel comfortable 

coming into a local office and expressed 

concern about a disruption of the 

equitable and ‘‘seamless’’ delivery of 

services to marginalized populations, 

citing an anecdotal example. 

Many commenters asserted that it 

would be counterproductive to require 

States to use State merit staff to provide 

ES services and cross-train these 

employees to process UI claims. 

Several commenters, including a 

Colorado State agency, a trade 

association, and an advocacy 

organization, argued that shifting ES 

staff to perform UI services would 

repurpose staff to perform duties 

outside their scope of work, therefore 

hampering staff ability to perform their 

main function. These commenters 

reasoned that ES staff are hired for job 

coaching, customer support, and 

relationship building while UI staff 

focus on short-term problem solving, 

further stating that the misalignment of 

these skill sets will create more 

accessibility problems for all. 

Many commenters, including State 

agencies and an advocacy organization, 

expressed concern that the proposed 

rule does not consider the need for 

surging ES services during UI surges, 

further questioning who will provide ES 

services when ES staff are re-assigned to 

UI adjudication and claim processing. 

Some commenters, including an 

association of State elected officials, a 

one-stop operator, and others, agreed 

that the lack of staff performing ES 

services during UI surges will lead to 

slower service overall. Relatedly, a few 

commenters, including a one-stop 

center employee, a think tank, and an 

anonymous commenter, argued that it is 

unrealistic to have ES staff turn away 

from their job duties to handle UI claims 

as they already have full workloads that 

can be difficult to keep up with. Several 

commenters questioned whether ES 

staff would be relocated to UI offices for 

training and for the provision of UI 

services during surges. 

Some commenters, including a 

Colorado State government agency and 

a trade association, argued that the 

pandemic created a rare economic 

crisis, and that requiring nationwide 

State merit-staffing for ES services is not 

the most efficient way to fix the UI surge 

issues brought about by these 

extraordinary circumstances. Many 

other commenters, including a Colorado 

State workforce development board and 

a Colorado employer, expressed similar 

sentiments, agreeing that the pandemic 

is a temporary outlier event, and that 

implementing these changes will be less 

effective in supporting job seekers and 

UI claimants at all other times. A local 

workforce development board stated 

there was no compelling need nor 

sufficient rationale to require State merit 

staff and asserted the proposal would 

‘‘void’’ the ability to innovate in its 

State. 

A Colorado State agency, a Colorado 

workforce development board, and a 

private citizen stated that the proposed 

rule would negatively impact the 

quality of services to businesses. These 

commenters reasoned that current local 

ES staff have experience serving 

businesses and knowledge of the local 

economy, while any State merit staff 

that replace them will not have these 

advantages or incentive to support 

employers across multiple programs. 

The commenters further stated that 

businesses will suffer during economic 

hardships because ES staff will be 

diverted to focus on UI claims. 

Two State government agencies 

recommended that the Department 

provide more guidance to States about 

cross-training ES staff with UI services 

to prepare for the next UI surge. These 

commenters expressed concern that this 

responsibility will fall on the States 

without direction from the agency on 

how to meet the Department’s objective. 

A State workforce development board 

and others expressed concern that the 

proposed rule would have a 

disproportionate impact on rural areas, 

as many States report centralized ES 

staff in urban areas. The commenters 

anticipated the required change in 

staffing would bring about an overall 

reduction in services, especially during 

UI surges. 

Framing the proposed merit-staffing 

requirement as prioritizing UI benefits 

recipients over all other populations, a 

one-stop operator commented that, 

because data shows UI recipients do not 

represent underserved populations, 

requiring nationwide merit-staffing for 

ES services would supersede 

community and business needs to 

provide backup for UI programs in times 

of need. 


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A few associations of workforce 

boards, a State workforce development 

board, and a professional association 

stated that by mandating the use of State 

merit staff for ES services, the proposed 

rule would significantly limit the types 

of technology and tools available to 

States in times of surging UI demand. 

Also arguing that a uniform meritstaffing requirement would harm, rather 

than assist, Colorado’s workforce, a 

private citizen suggested that the 

Department instead change the 

requirement that UI claims must be 

processed by State merit staff. A think 

tank similarly argued that the 

Department should support legislative 

efforts to create permanent staffing 

flexibilities in both the ES and UI 

programs. 

Many commenters from Michigan, 

Colorado, and Massachusetts discussed 

how the local resource centers in their 

State were able to pivot to UI surge 

support amid the pandemic to 

demonstrate the high efficiency of their 

current systems. For example, several 

commenters from Colorado, including a 

local government, a local workforce 

development board, a trade association, 

and others, described how their local 

staff successfully responded to the spike 

in phone calls related to UI issues by 

creating a virtual call center that 

exclusively answered UI questions, 

proving that they are able to handle 

these services at a local level, 

particularly when unemployment 

agencies are overwhelmed. Several 

commenters from Michigan, including 

one-stop operators, one-stop center staff, 

and private citizens, stated that local 

workforce development offices across 

the State were able to leverage hundreds 

of staff to assist the unemployment 

agency in responding to the UI claims 

they could not keep up with during the 

pandemic, further requesting that 

Michigan be allowed to continue 

utilizing non-State-merit staff to provide 

ES services. A few commenters from 

Massachusetts, including a State 

government agency, a local workforce 

development board, and a local elected 

official, stated that the one-stop center 

staff in their State are trained on the 

fundamental knowledge of 

unemployment, along with more indepth training for designated staff, all of 

which allows them to assist customers 

with questions about their UI claims. 

These commenters further discussed 

how their ES staff seamlessly 

transitioned to assisting UI claimants 

during the pandemic without any 

disruption of services. 

Expressing concern that the proposed 

rule would result in reduced services at 

local offices, some private citizens and 

an employer expressed appreciation for 

ES staff helping them with job search 

and UI claims process issues during 

periods of unemployment. Similarly, an 

employer commented that they do not 

know what they would do without 

Michigan Works! because they assist 

them and their employees with UI 

benefits in their off season. Michigan 

one-stop center staff also said that they 

help unemployed customers to navigate 

the UI system, with some asserting that 

many UI claimants have challenges 

using a computer and eliminating local 

services could escalate customer 

frustrations. 

Response: The Department 

appreciates the concerns raised by 

commenters, and agrees with the 

comments describing the importance of 

assistance with UI, the ability to access 

that support, and the close relationship 

between ES and UI. Similarly, in most 

of the States across the country, ES State 

merit staff operate in AJCs and provide 

assistance with job search, applying for 

UI benefits, and pivot during surges. 

The Department proposed to require 

that States use State merit staff to 

provide ES services due to the need for 

critical alignment between the ES and 

UI programs and to help ensure that 

services are delivered by qualified, nonpartisan professionals accountable to 

the State. While the Department 

believes it is vital for ES and UI to be 

aligned, this final rule does not impose 

requirements on States to cross-train or 

utilize ES staff for UI services. Many 

States already cross-train and utilize ES 

staff for UI activities, and States with 

prior issues within their UI program 

may benefit from having cross-trained 

ES staff available when there are surges 

in demand for UI claims. Aligning these 

programs should not negatively impact 

or prioritize one program over the other. 

Rather, aligning the two programs serves 

to increase consistency of service, as 

well as capacity, for each. Further, a 

State merit-staffing requirement helps to 

promote consistent training and 

accountability throughout the State from 

one locality to another. The Department 

will provide technical assistance to 

States that are interested in more closely 

aligning the respective programs. 

The Department additionally 

recognizes the reliance interests of 

Colorado, Massachusetts, and Michigan, 

all of which were permitted by the 

Department to use alternative staffing 

models beginning in the 1990s. 

Accordingly, this rule requires all States 

to use State merit staff to deliver ES 

services, except for these three States 

using longstanding alternative staffing 

models previously authorized by the 

Department. These three States are 

permitted to continue using their 

longstanding staffing models and must 

participate in any evaluation of their 

delivery of ES services conducted by the 

Department. 

The Department recognizes that there 

will be certain transition costs to some 

States, which was included in the 

NPRM’s regulatory impact analysis. All 

States have 24 months to comply with 

the staffing requirements. 

Alignment With Other Programs 

Comment: Several commenters, 

including a one-stop center employee 

and an advocacy organization, 

expressed concern that the proposal 

would disrupt the ‘‘integrated service 

delivery model’’ in their area and would 

result in a siloed service delivery model 

to the detriment of program 

beneficiaries. 

Several commenters, including 

Michigan local governments, a Michigan 

local elected official, State and local 

workforce development boards, and a 

private citizen, encouraged alignment 

and integration among programs 

including the Wagner-Peyser Act ES 

program, WIOA, the Supplemental 

Nutrition Assistance Program (SNAP), 

Temporary Assistance for Needy 

Families (TANF), and Trade Adjustment 

Assistance (TAA) and expressed 

concern that the proposal would disrupt 

a ‘‘streamlined’’ service delivery model. 

A trade association remarked that 

Wagner-Peyser Act funding allows 

Michigan Works! to leverage funds from 

other State, Federal, and nongovernmental programs to improve 

services for individuals and businesses. 

Many commenters, including 

Michigan and Colorado State elected 

officials, Michigan and Delaware State 

government agencies, and Michigan and 

Colorado local governments, argued that 

the rule would eliminate States’ ability 

to integrate the provision of WagnerPeyser Act-funded services with other 

workforce development and social 

support services, such as WIOA and 

TANF, which would reduce efficiencies 

and increase administrative costs in 

States that use flexible staffing models. 

A one-stop operator requested that the 

Department reconsider the proposal, 

arguing that the current flexibility 

afforded to States has resulted in a more 

‘‘responsive’’ workforce development 

system. 

Some commenters, including a 

training provider, a commenter from 

academia, and a one-stop center 

employee, warned that the rule would 

jeopardize former demonstration States’ 

other grant funding agreements with the 

Department. Several commenters 

asserted that the proposal would ‘‘deVerDate Sep<11>2014 22:11 Nov 22, 2023 Jkt 262001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\24NOR2.SGM 24NOR2

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couple’’ services, funding, and practices 

that have been integrated as a result of 

their State’s demonstration status. The 

commenters described the rule as 

‘‘outdated, inefficient, unnecessary, and 

overly burdensome.’’ 

Many commenters, including 

Michigan and Massachusetts State 

government agencies, advocacy 

organizations, and trade associations, 

argued that one significant benefit of the 

status quo flexibility in staffing and use 

of funds in States operating flexible 

staffing models is the ability of local ES 

staff to braid funds and integrate the 

provision of Wagner-Peyser Act-funded 

services with other local workforce 

development programs and social 

services, including WIOA and TANF, 

which makes the services more efficient 

and reduces administrative costs. An 

employer commented that flexible ES 

staffing models like the Michigan 

Works! system are able to provide the 

most cost-efficient results because they 

can leverage Federal, State, and local 

resources; costs to operate job centers 

are shared with all partners and 

programs; and because, at the local 

level, many organizations provide ‘‘in 

kind’’ contributions of administrative 

support, which reduces overall program 

costs. 

Several commenters provided 

performance data from the Department’s 

website that demonstrates the success of 

Michigan’s performance against the 

national average and argued that the 

integrated workforce development 

system in their State is 

‘‘transformational’’ for both employers 

and job seekers. Other commenters, 

including a trade association, one-stop 

center staff, and private citizens, made 

similar arguments that Michigan and 

Colorado are outpacing the national 

median on performance metrics and has 

a low cost per participant. Also 

asserting that Michigan has been a top 

performer in nearly every ES-relevant 

metric, a private citizen questioned the 

need for the rule and the proposal’s 

‘‘streamlining or improving services’’ 

assertion, commenting that replacing 

220 local workforce staff with 80 to 90 

State merit staff will hurt rural 

communities. 

Several commenters stated that, in 

Michigan, alignment with local 

workforce systems is critical in 

connecting job seekers with a range of 

programs that support their ability to 

remain employed and minimize the 

need for UI benefits. 

An anonymous commenter said the 

integrated model in their area allows 

offices to leverage resources, which in 

turn promotes higher quality of services. 

A private citizen remarked that current 

staffing model in Colorado has 

encouraged innovation and has led to 

the creation of an integrated model of 

program administration, oversight, and 

delivery. Several commenters, including 

a one-stop center employee, faulted the 

proposal for favoring ‘‘alignment of ES 

and UI staffing’’ over the efficiencies 

associated with flexible staffing 

arrangements and expressed concern 

that the proposal would result in the 

closure of AJCs (ES offices) and reduced 

services for employers. 

Some commenters, including a onestop center employee, described their 

experiences working for or with local 

service centers and expressed concern 

about offering Wagner-Peyser Act and 

WIOA services in different offices or 

sites and the disruption of access to a 

more all-encompassing set of services. 

Some commenters, including a State 

Workforce Development Board, a trade 

association, and private citizens, 

remarked that the proposal could 

disrupt the WIOA one-stop service 

delivery model because Employment 

Service (ES) and WIOA staff would not 

be housed together. These commenters 

and others, including an employer and 

a one-stop center employee, said this 

divided or siloed environment was 

contrary to the ‘‘vision and intent’’ of 

WIOA. 

A State employee association that 

supported the proposal argued that 

‘‘restoring’’ State merit-staffing 

requirements would be beneficial for 

other programs unrelated to the UI 

system, such as the employment 

infrastructure for veterans and the 

delivery of TAA services for workers 

impacted by trade. The commenter 

referred to removal of the merit-staffing 

requirement for delivering TAA services 

in the ‘‘Trade Adjustment Assistance for 

Workers’’ final rule, 85 FR 51896 (Aug. 

21, 2020), and urged the Department to 

also repeal that rule to ensure State 

merit-staffing is the ‘‘standard’’ in States 

that may have used staffing flexibility 

for TAA. A Colorado State government 

agency similarly remarked that TAA 

services, which are staffed by county 

merit staff in Colorado, would be 

adversely impacted by the proposal, 

remarking that in 2021, TAA ‘‘provided 

approximately $956,761 to local areas’’ 

to assist with staffing 15 full-time 

employees. 

Conversely, a State workforce 

development board argued that WIOA’s 

title programs, and other programs 

under TANF and SNAP, are aligned to 

work together in meeting diverse 

customers’ needs and encouraged the 

Department to maintain staffing 

flexibility for the Wagner-Peyser Act ES 

program, RESEA, TAA, and other 

programs that benefit from alignment 

with local workforce systems. A local 

workforce development board stated 

that Colorado’s ability to employ a 

flexible staffing model has improved 

integration between WIOA and WagnerPeyser Act ES services and led to 

several positive outcomes, including 

successful employment of customers, 

services rendered to many unique 

employers, significant numbers of 

workshops and hiring events, and a 

strong overall return on investment. A 

State government and other commenters 

similarly remarked that the local meritstaffing model used in Colorado allows 

for ‘‘seamless’’ service integration and 

braiding of funding across federally 

funded programs. 

A State Workforce Development 

Board argued that the Department’s 

approach in the proposal undermines 

the ‘‘key principle’’ of State and local 

flexibility for WIOA services and the 

Federal workforce system more broadly. 

The commenter said the proposal would 

disrupt efficiencies, discourage 

innovation, and undermine ‘‘balance’’ 

among the Federal, State, and local 

partnerships that deliver WIOA and ES 

services. 

Response: The Department proposed 

to require that all States use State merit 

staff to provide ES services due to the 

critical need for alignment between the 

ES and UI programs. Aligning these 

programs should not negatively impact 

or prioritize one program over the other. 

It simply allows the State, in times of 

high need to be able to use ES staff for 

certain UI activities should the State 

choose to do so. The Department is not 

imposing additional requirements on 

the State for how it uses the ES staff, but 

having cross-trained staff would better 

equip the States to be able to shift 

resources in certain situations. The ES 

and UI are already closely linked as they 

are both required partners under WIOA, 

the UI program makes referrals to the ES 

for reemployment services, and the ES 

program administers the work test for 

UI. WIOA also requires the colocation of 

the ES with WIOA programs (20 CFR 

652.202, 678.315) so the concerns 

regarding certain individuals no longer 

having access to services is not 

supported by the information provided. 

WIOA emphasizes integrated and 

streamlined service delivery. The nature 

of ES services is such that ES staff 

provide basic and individualized career 

services and make referrals to other 

programs, no matter the staffing model 

used. The Department further believes 

the keys to program success are the 

intensity of the integration of WIOA and 

Wagner-Peyser services. Other States 

that use State merit staff have been able 


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to innovate and implement the vision of 

WIOA. Several States have made 

progress cross-training ES staff and UI 

staff. Additionally, States have trained 

all AJC partners including ES staff to 

perform common intake and make 

seamless referrals using a ‘‘no wrong 

door’’ approach to case management 

irrespective of the Wagner-Peyser ES 

staffing model. Three States using 

longstanding alternative staffing models 

presented arguments in support of 

retaining those models, but the 

information provided did not show a 

causal impact of the staffing model in 

these States and performance. 

Accordingly, the Department declines to 

extend staffing flexibility to all States. 

The Department reinstates a State meritstaffing requirement for ES services with 

the exception of the three States with 

longstanding reliance interests. These 

States are required to participate in 

evaluation of their delivery of ES 

services conducted by the Department, 

including review of services of other 

States that participate, as necessary, to 

determine whether such models are 

empirically supported. 

Other Objections From States With 

Longstanding Reliance Interests 

Comment: Many commenters, 

including a Michigan State elected 

official, Colorado local governments, 

and an advocacy organization, 

expressed opposition to the rule on the 

grounds that it would reduce both State 

and local control over the provision of 

ES services in the States that use 

flexible staffing models, and that in 

many cases this will make the services 

less personal and less responsive to 

local needs. 

One anonymous commenter argued 

that as contractors and local government 

employees, ES staff in States that use 

flexible staffing models are currently 

insulated from State partisan politics; 

this commenter reasoned that by 

transitioning ES staff to being entirely 

State employees, they will be more 

subject to fluctuating partisan demands. 

Some commenters, including a 

Colorado State elected official, a 

commenter from academia, and a 

Colorado local workforce development 

board, warned that implementation of 

the proposed rule could trigger lawsuits 

from affected counties and unions in 

States that use flexible staffing models. 

Response: The Department received 

new information in comments on the 

NPRM from States with longstanding 

reliance interests and determined that 

these States may continue to utilize 

their longstanding alternative staffing 

models. 

Reliance Interests of Other States 

Comment: An association of State 

elected officials and a State government 

agency stated that Missouri had been 

approved by the Department as recently 

as summer 2021 to begin using nonState-merit staff to provide WagnerPeyser Act ES services, and that the 

State had submitted its WIOA State Plan 

and that the State’s local workforce 

development boards have already 

budgeted and planned for WagnerPeyser Act funding based on this recent 

approval. As such, the commenters 

asserted that rescinding the State’s 

staffing flexibility would create an 

unnecessary burden. 

A State government agency 

commented that existing ES rules and 

the Coronavirus Aid, Relief, and 

Economic Security Act (CARES Act) 

allowed for a degree of staffing 

flexibility during the COVID–19 

pandemic, which enabled quicker and 

more cost-effective services for client 

needs during the extraordinary 

economic circumstances of the 

pandemic. 

A State government agency similarly 

stated that the current staffing flexibility 

under the status quo allows for the more 

efficient provision of ES services; the 

commenter asserted that rescinding this 

flexibility will cause services to become 

less efficient. 

Response: While the Department 

recognizes that any shift in staffing 

requires transition, the transition for the 

three States with decades of reliance 

would experience higher transition 

costs in contracts, supervision 

adjustments, bargaining agreements, and 

IT systems than those that have used 

alternative staffing for 2 years. As 

demonstrated in the comments received, 

these three States have built systems, 

developed partnerships, and established 

a service delivery model that could be 

reversed only at significant cost to the 

State and with significant harm to job 

seekers and employers. The expansion 

of alternative staffing models to 

additional States occurred without 

study, before the landscape-altering 

impact of the pandemic on the UI and 

workforce system. The Department will 

evaluate ES services and their staffing 

models before taking additional actions 

regarding the use of alternative staffing 

for other States. Recognizing that some 

States adopted a different staffing model 

under the 2020 Final Rule, as discussed 

above, the Department is further 

providing 24 months of transition time 

for any State that needs to adjust its 

staffing model to adhere to the 

regulations. 

Recommendations To Continue 

Demonstration State Status 

Comment: Based on their objections 

to the proposal, including an 

anticipated reduction in the quality and 

availability of ES in States that would 

have to make major staffing changes to 

comply with the State merit-staffing 

requirement, numerous commenters, 

including Colorado and Michigan State 

elected officials, a Michigan State 

government agency, and Colorado and 

Michigan local governments, urged the 

Department to allow the former 

demonstration States to retain their 

current status and the flexibility to 

provide ES services with local merit 

staff or to otherwise entirely abandon 

the proposed rule change. 

Another State government agency 

echoed this recommendation, suggesting 

that the Department grant continuing 

exemptions to the proposed rule to the 

former demonstration States, but not to 

any other States. 

Alternatively, a think tank suggested 

that, at a minimum, the former 

demonstration States should be allowed 

to maintain their current status until the 

end of the established performance 

period, and that results from these 

States should be evaluated when 

considering if their staffing flexibility 

model should be extended. 

Several commenters, including onestop operators, State and local 

workforce development boards, a trade 

association, a Colorado local 

government, and a Colorado State 

elected official, requested that the 

Department permit their State to 

continue utilizing flexible staffing 

models to deliver for Wagner-Peyser 

Act-funded ES services. A Michigan 

one-stop operator and one-stop center 

employee argued that staffing flexibility 

allows programs to provide ES services 

to customers, including businesses and 

vulnerable populations such as youth, 

refugees, and veterans, in the most 

efficient and effective manner possible. 

A Colorado State elected official 

asserted the loss of its ability to provide 

ES services using a flexible staffing 

model would cause costly disruptions to 

businesses and citizens. The commenter 

remarked that its workforce 

development staffing model had 

bipartisan support in the State Congress 

and that statewide stakeholders remain 

committed to this ‘‘nimble and agile’’ 

workforce service delivery model. The 

commenter further asserted that 

national organizations like the National 

Association of State Workforce 

Agencies, the National Association of 

Workforce Boards, and the National 

Association of Counties support the 


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State’s request to continue operating 

this model. 

A Massachusetts local workforce 

development board did not challenge 

the Department’s ability to roll back the 

2020 Final Rule providing widespread 

staffing flexibility but opposed using the 

proposal to void ‘‘waivers’’ previously 

granted to the former demonstration 

States. 

A Michigan training provider asserted 

the proposal would jeopardize 

successful programs in States providing 

ES services using a flexible staffing 

model, such as Michigan, if they are not 

‘‘exempted’’ from the State meritstaffing requirement. The commenter 

provided attachments that, in their 

view, provide evidence that the 

workforce development structure 

employed in the former demonstration 

States should instead be the national 

standard. 

A think tank suggested that the 

Department ‘‘grandfather’’ the flexible 

staffing models for the former 

demonstration States because they have 

been operating successfully for more 

than two decades, and further suggested 

that the Department extend waivers for 

similar staffing flexibility to other 

States. 

Response: For reasons explained 

throughout this section, the Department 

is allowing Colorado, Massachusetts, 

and Michigan to use the same 

longstanding alternative staffing models 

that the Department has allowed them 

to use since the 1990s. The Department 

is requiring these three States to 

participate in in an evaluation to be 

conducted by the Department. All other 

States are required to use State merit 

staff to provide ES services. 

Other Arguments Against Requiring 

State Merit Staff 

Comment: A think tank argued that 

flexibility was more beneficial for States 

than ‘‘rigid rules’’ and described how 

certain restrictions hamper State 

workforce programs. The commenter 

cited the National Association of 

Medicaid Directors’ 2022 request for 

flexibility to hire non-merit staff for 

processing Medicaid and SNAP 

renewals to ‘‘handle increased 

workloads from the fallout of COVID– 

19’’ as an example of the personnel 

challenges facing workforce and welfare 

agencies. Citing WIOA provisions 

concerning the one-stop delivery 

system, the commenter said that the 

issue of flexibility in workforce 

programs ‘‘extends beyond staffing 

models.’’ The commenter stated that 

current law places ‘‘handcuffs’’ on 

SWAs, hampering how they can spend 

WIOA funds. For example, the 

commenter stated that under WIOA, 

‘‘states’ ability to design pay-forperformance contracts based on job 

placement is limited to non-federal 

funds and youth workforce services’’ 

and that WIOA restricts States’ ability to 

use Federal funds related to work 

requirements in welfare to solely 

Employment and Training programs 

(arguing that WIOA funds should be 

able to be used to administer more 

meaningful work requirements like the 

able-bodied adult-without-dependent 

work requirements for SNAP). The 

commenter concluded that the ES 

should be designed to move as many 

individuals as possible into selfsufficiency by increasing their 

marketability in the labor market and 

argued that staffing flexibility allows 

States to design ES programs that 

accomplish these goals. 

A one-stop operator in Texas 

remarked that while State merit-staff 

employees are performing well, 

‘‘funding limitations have hampered the 

ability to provide salary increases for 

many years.’’ The commenter stated that 

‘‘[w]hile employees are able to receive 

one-time, merit-based pay, being in a 

merit-based system has, in fact, 

negatively impacted retention and 

attraction of employees, which are key 

elements in maintaining a quality staff.’’ 

A one-stop center employee stated that 

the proposal would cause Michigan to 

be non-compliant with a State ‘‘OneStop Operator statute.’’ A Michigan onestop center employee asked how the 

proposed merit-staffing requirement 

will save the State money, time, or 

resources. 

A local government stated that the 

proposal would create an unnecessary 

layer of bureaucracy and would disrupt 

an integrated service model that meets 

the local community’s needs. A onestop operator argued that the proposal 

would result in too few employees to 

service job seekers and employers 

through Wagner-Peyser Act programs in 

their State and expressed confusion as 

to how ‘‘a few organizations’’ in its State 

could express support for the proposal. 

The commenter suspected that the 

proposal is meant to favor employers 

that provide for union representation of 

employees and faulted a local union for 

ceasing representation for a group of 

employees last year. 

Some commenters, including a 

private citizen, a one-stop center 

employee, a trade association, and an 

advocacy organization, remarked that 

the former demonstration States 

successfully developed locally based 

staffing models that work across 

budgetary and programmatic silos to 

create a more integrated system 

providing higher quality services. A 

professional association said Colorado’s 

use of a flexible staffing model to 

provide ES services has proven effective 

because staffing flexibility allows local 

areas to react more quickly to local 

market conditions. An employer 

remarked that delivering ES at the local 

level produces optimally cost-efficient 

and effective results, and a Colorado 

local government similarly argued that 

the proposal would lead to 

inefficiencies and would disrupt a 

streamlined service delivery model. An 

anonymous commenter similarly argued 

that separating local merit WIOA staff 

and ES State merit staff would 

jeopardize the effectiveness of the onestop delivery model. 

A Colorado local government asserted 

that increasing State control over local 

ES offices would lose county workers’ 

regional understanding of local needs 

around ES, arguing that county input is 

essential to avoid the ‘‘disconnect’’ that 

occurs in larger bureaucracies because 

counties have unique needs and 

characteristics. A Michigan private 

citizen remarked that State agencies, 

including the State UI agency, come 

across as ‘‘bureaucratic and impersonal’’ 

and argued that State agency leaders 

may not listen to local concerns due to 

their limited local knowledge. Another 

Michigan private citizen preferred to 

continue dealing with local ES staff and 

expressed concern about ‘‘centralizing’’ 

ES in their State’s capitol. A State 

government agency argued that ES 

staffing flexibility allows local 

workforce development boards to staff 

offices appropriately based on the needs 

of individual communities. The 

commenter said some communities 

would not need a ‘‘full accompaniment’’ 

of local and State merit staff and also 

expressed concern about clients needing 

to engage with either local or State staff 

based on the type of service they need, 

reasoning that such an approach could 

make clients feel as though they are 

being ‘‘ferried around’’ rather than 

establishing a relationship with a single 

point of contact. 

A Colorado one-stop operator 

remarked that providing ES services at 

the local level allows for better 

integration of Federal, State, and local 

programs and rejected the Department’s 

assertion that local government 

employees are treated less fairly or are 

more susceptible to political influence, 

arguing that this argument was ‘‘naı ̈ve’’ 

and unsupported by evidence. A 

Colorado State government agency 

similarly remarked that the 

Department’s argument that ES services 

provided by State merit staff would be 

‘‘quantitatively or qualitatively better’’ 


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than services delivered by county merit 

staff was not supported by evidence and 

asserted that county merit staff are hired 

using objective and transparent 

standards. The commenter stated that 

local merit staff are accountable to their 

local county government to best 

position such staff to provide services in 

their communities. A think tank agreed 

and disputed the Department’s 

argument that the adherence of nonState entities to State policies is 

unobservable, reasoning that contracts 

contain performance goals and metrics, 

and sometimes include financial 

penalties for underperformance. The 

commenter also asserted that these 

standards do not exist for ‘‘merit’’ staff. 

Some commenters, including 

anonymous commenters and a Colorado 

local government, remarked that the 

proposal would transfer duties from 

local workers to a smaller group of State 

staff; the commenters asserted this 

would result in considerable and 

challenging workloads and diminished 

services for participants. A private 

citizen who preferred local staffing for 

ES suggested that a possible 

compromise could be to increase 

funding and add a State merit-staff 

employee to each local office who 

would serve as a liaison for State 

programs and services. 

Several commenters stated that 

Colorado’s current staffing model allows 

for effective partnerships with 

community-based organizations because 

local staff have developed strong 

relationships with such organizations. 

The commenters expressed concern that 

the proposal would disrupt or reduce 

services for community-based 

organizations. A private citizen 

remarked that State merit staff would 

find it more difficult to establish 

partnerships and navigate local resource 

networks, arguing that local staff 

successfully participate in such 

networks through community 

engagement. 

Expressing opposition to the proposed 

merit-staffing requirement, a private 

citizen and a few one-stop center staff 

quoted the proposed § 652.215(a) 

language (‘‘The Secretary requires that 

the labor exchange services described in 

§ 652.3 be provided by ES staff, as 

defined in part 651 of this chapter.’’), 

arguing that this change would have a 

detrimental impact on the provision of 

ES services. 

A Michigan one-stop center employee 

listed the minimum services required by 

§ 652.3, including connecting job 

seekers with employment opportunities 

and assisting employers with filling 

jobs, and questioned how States would 

provide these ‘‘robust’’ services if they 

face a major staffing reduction. 

Response: The Department maintains 

that using State merit staff helps to 

provide for high-quality, consistent, and 

politically neutral ES services. State 

merit staff are held accountable for their 

work through State-managed 

performance management plans and 

must meet certain service benchmarks 

and milestones. 

With respect to comments about local 

partnerships, the Department notes that 

the vast majority of ES services 

nationwide are provided by State merit 

staff who are able to establish working 

relationships with community-based 

organizations. Additionally, the 

Department notes that State WIOA 

funds can be used for an extremely 

broad set of activities, including career 

and training services for individuals 

receiving public benefits like SNAP. In 

multiple States with ES State merit staff, 

local service delivery in AJCs provides 

services to a range of job seekers, 

including those receiving public 

benefits. 

Three States using longstanding 

alternative staffing models, including 

local merit staff, presented arguments in 

support of retaining those models, but 

the information provided did not show 

a causal impact of the staffing model in 

these States and performance. The 

Department acknowledges the strong 

reliance interests of these three States— 

Colorado, Massachusetts, and 

Michigan—that the Department has 

allowed to use alternative staffing 

models to administer ES services since 

the 1990s. The Department recognizes 

the adverse impacts a complete State 

merit-staffing requirement would have 

on these three States relative to other 

States that began using alternative 

staffing models following the 2020 Final 

Rule. Therefore, the Department is 

allowing Colorado, Massachusetts, and 

Michigan to continue using their 

longstanding alternative staffing models 

while requiring their participation in an 

evaluation to be conducted by the 

Department to determine whether 

alternative staffing models are 

empirically supported. 

The Department acknowledges 

comments regarding funding limitations 

in the context of merit-staffing models. 

The Department has detailed the cost 

burden associated with this final rule in 

Section VI. Wagner-Peyser ES grant 

funding is provided annually to deliver 

employment services. For reasons stated 

throughout this preamble, the 

Department has determined that 

reinstating the requirement to provide 

ES services using State merit staff will 

help to allow the States to provide 

quality and consistent ES services in an 

accountable and transparent manner as 

the Department undertakes an 

evaluation to determine whether 

alternative staffing models are 

empirically supported. 

The comments regarding WIOA payfor-performance and work requirements 

are out of scope and not addressed by 

this final rule. 

D. Part 653—Services of the WagnerPeyser Act Employment Service System 

Part 653 sets forth services of the 

Wagner-Peyser Act ES system related to 

MSFWs. Subpart B provides the 

principal regulations of the ES 

concerning the provision of services to 

MSFWs consistent with the requirement 

that all services of the workforce 

development system be available to all 

job seekers in an equitable fashion. This 

includes ensuring MSFWs have access 

to these services in a way that meets 

their unique needs. MSFWs must 

receive services on a basis that is 

qualitatively equivalent and 

quantitatively proportionate to services 

provided to non-MSFWs. The 

regulations in this subpart establish 

special services to ensure MSFWs 

receive the full range of career services, 

as defined in WIOA sec. 134(c)(2), 29 

U.S.C. 3174(c)(2), and contain 

requirements that SWAs establish a 

system to monitor their own compliance 

with ES regulations governing services 

to MSFWs. Subpart F sets forth 

regulations governing the ARS. It 

provides requirements for SWA 

acceptance of intrastate and interstate 

job clearance orders that seek U.S. 

workers to perform farmwork on a 

temporary, less than year-round basis. 

The Department proposed to revise 

various sections of the regulatory text in 

both subparts and received comments 

about some of its proposed revisions. In 

the discussion that follows, the 

Department responds to these 

comments, grouping them by the 

provision that they address and the 

order in which that provision appears 

within this part. 

1. Subpart B—Services for Migrant and 

Seasonal Farmworkers (MSFWs) 

Subpart B provides the principal 

regulations of the ES concerning the 

provision of services to MSFWs. The 

Department proposed a number of 

revisions to the regulatory text in this 

subpart to clarify and enhance the 

outreach that SWAs provide to MSFWs 

and to strengthen the monitoring that 

SMAs conduct pursuant to this part. 

The Department received a number of 

comments that generally supported the 

proposed revisions and its efforts to 


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strengthen the services that SWAs 

provide to MSFWs. Although the 

feedback was primarily positive, several 

State and local agencies felt the revised 

provisions were too prescriptive and 

urged the Department to adopt a more 

flexible approach. The Department 

values and appreciates the participation 

and input from these commenters and 

the perspectives they have to offer. In 

the section-by-section discussion below, 

the Department summarizes and 

responds to comments that address the 

revisions it proposed to a particular 

section in this subpart. After careful 

consideration of these comments, the 

Department generally adopts the 

revisions it proposed to the regulatory 

text without change, with exceptions as 

discussed below. 

Section 653.100 Purpose and Scope of 

Subpart 

The Department proposed to amend 

§ 653.100(a) to clarify that the provision 

of services for MSFWs must be 

consistent with the requirement that all 

services of the workforce development 

system be available to all job seekers in 

an equitable and nondiscriminatory 

fashion. The existing regulation states 

only that such services must be made 

available in an equitable fashion. The 

Department proposed, and this final 

rule adopts, an amendment to § 653.100 

to state such services must be made 

available in both an equitable and 

nondiscriminatory fashion. The 

addition of the phrase ‘‘and 

nondiscriminatory’’ is intended to 

clarify that SWAs must not discriminate 

against farmworkers either because they 

are farmworkers or because of any 

characteristics protected under the 

nondiscrimination and equal 

opportunity provisions of WIOA, which 

are contained in section 188 of WIOA, 

29 U.S.C. 3248, and the implementing 

regulations at 29 CFR part 38. The 

requirements of section 188 of WIOA 

apply to ES services because the ES is 

a required one-stop partner, and the 

requirements of section 188 of WIOA 

apply to one-stop partners pursuant to 

29 CFR 38.2. The Department did not 

receive any comments on the proposed 

addition of this language and adopts the 

revision as proposed. 

Section 653.101 Provision of Services 

to Migrant and Seasonal Farmworkers 

The Department proposed to amend 

§ 653.101 by revising the first sentence 

to clarify that the SWA is the primary 

recipient of Wagner-Peyser Act funds 

and, therefore, is the entity responsible 

for ensuring that ES staff offer MSFWs 

the full range of career and supportive 

services. As the Department explained 

in the NPRM, it is ultimately incumbent 

upon the SWA, as the Wagner-Peyser 

Act grantee, to ensure ES staff at onestop centers are offering and providing 

ES services to MSFWs in an appropriate 

manner. The Department also proposed 

to replace the requirement for one-stop 

centers to consider and be sensitive to 

the preferences, needs, and skills of 

individual MSFWs and the availability 

of job and training opportunities with a 

requirement that SWAs ensure ES staff 

at one-stop centers tailor the provision 

of ES services to MSFWs in a way that 

accounts for their preferences, needs, 

skills, and the availability of job and 

training opportunities. The Department 

proposed this revision to ensure MSFWs 

are able to participate in the ES and, 

similar to the revision in the first 

sentence, to clarify that the SWA is 

responsible for ensuring compliance 

with this requirement. The Department 

received a few comments on the 

proposed revisions in this section. As 

discussed below, the Department has 

not made any changes to the regulatory 

text in response to these comments and 

adopts the revisions as proposed. 

Comment: The Department received 

numerous comments from individuals 

and entities in Michigan explaining that 

under Michigan’s current service 

delivery model, local ES staff provide 

MSFWs the full range of career and 

supportive services, benefits and 

protections, and job and training referral 

services that they provide to nonMSFWs. Some of these commenters 

noted that under Michigan’s current 

model, the SWA ensures Wagner-Peyser 

funded staff provide the full range of 

career services to MSFWs by providing 

staff training and conducting one-stop 

center reviews to ensure compliance. 

These commenters asserted that while 

Michigan has historically made ES 

services available to all job seekers 

(including MSFWs) in an equitable and 

nondiscriminatory fashion, the 

proposed rule would have a chilling 

effect on their access to services by 

making fewer offices and staff available 

to help them. Similarly, a local 

government agency in Colorado, which 

opposed the proposed State meritstaffing requirement, discussed its use 

of local staff to provide MSFWs with 

equitable ES services that it stated are 

innovative, personal, and available in 

multiple languages, and to offer their 

State’s highest level of outreach to 

MSFWs. 

Response: As discussed in section III 

above, the Department has decided not 

to apply the proposed State meritstaffing requirement to several States, 

including Michigan and Colorado, that 

have developed strong reliance interests 

in providing ES services through 

longstanding alternative staffing models. 

Because this final rule will permit 

Michigan and Colorado to continue to 

provide ES services in accordance with 

each State’s longstanding alternative 

staffing model, it should not result in 

the ‘‘chilling effect’’ that commenters 

from Michigan feared or impact the 

services that local staff in Colorado are 

currently providing to MSFWs. 

Moreover, the Department notes that 

SWAs, as required one-stop partners, 

must ensure individual customers are 

served based on individual needs, 

including MSFWs. See 20 CFR 

678.425(b). The final rule would, 

consistent with this requirement, clarify 

that SWAs are responsible for ensuring 

that ES staff at one-stop centers tailor 

services to meet the particular needs of 

MSFWs. While some States may already 

meet this requirement, as asserted in the 

comments described above, others may 

not. The revision makes it clear that 

Wagner-Peyser Act funded staff must 

serve MSFWs based on their individual 

needs. In addition, this revision will 

complement the MSFW-specific staffing 

requirements in §§ 653.107(a)(3) and 

653.111. 

It is particularly important to consider 

the particular needs of MSFWs, because 

MSFW job seekers may face multiple 

barriers to employment for which 

individualized career services are 

warranted. In implementing this 

requirement, SWAs must take care to 

ensure MSFWs are offered appropriate 

services based on their particular 

workforce interests (e.g., referral to jobs 

they may want or need to meet their 

employment-related goals and not only 

positions involving farmwork). 

Section 653.102 Job Information 

The Department proposed several 

revisions to the text of existing 

§ 653.102. First, the Department 

proposed to revise the third sentence of 

§ 653.102 to clarify that the SWA is the 

entity responsible for ensuring that ES 

staff assist MSFWs to access job order 

information, for the same rationale as 

similar changes the Department is 

making to § 653.101, as described above. 

Second, the Department proposed to 

remove the word ‘‘adequate’’ as a 

modifier to the phrase ‘‘assistance to 

MSFWs,’’ in order to remove any 

perceived subjectivity and clarify that a 

SWA meets its obligation to assist 

MSFWs by complying with the 

requirements in parts 653 and 658. 

Finally, the Department proposed to 

remove the final sentence of § 653.102, 

which stated that in designated 

significant MSFW multilingual offices, 

assistance with accessing job order 


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information must be provided to 

MSFWs in their native language 

whenever requested or necessary. As the 

Department explained in the NPRM, 

this would align language access 

requirements in the ES regulations with 

those required by WIOA sec. 188 and its 

implementing regulations at 29 CFR part 

38, because language access 

requirements apply to individuals with 

LEP regardless of through which office 

they seek ES services. The Department 

received one comment on this 

provision. For the reasons discussed 

below, the Department has not made 

any changes to the proposed regulatory 

text and adopts it as proposed. 

Comment: The Department received a 

comment from a farmworker advocacy 

organization that generally supported 

the Department’s proposal to clarify 

language access requirements 

throughout part 653, but with some 

reservations. As relevant here, this 

commenter opposed the Department’s 

proposal to remove the requirement for 

MSFW multilingual offices to provide 

MSFWs access to job order information 

in their native language whenever 

requested or necessary. The commenter 

suggested that the Department take 

additional steps to ensure individuals 

with LEP are able to access and engage 

with ES services and asserted that 

SWAs should ensure clearance orders 

are translated to Spanish and other 

major languages in the area so that all 

workers are aware of their rights and 

able to access and review clearance 

orders in their native language. 

According to these organizations, such a 

requirement would align with the 

practices of certain SWAs that already 

translate or require submission of 

translated clearance orders and help to 

fulfill the Department’s language access 

obligations under Executive Order (E.O.) 

13166, in addition to bolstering 

compliance with the existing regulatory 

requirement at 20 CFR 655.122(q) that 

all H–2A workers and workers in 

corresponding employment receive a 

copy of the work contract ‘‘in a language 

understood by the worker.’’ Finally, 

they noted that English-only clearance 

orders have presented particular barriers 

for U.S. farmworkers in Puerto Rico, 

where some local SWA officials have 

limited English ability and, without 

translations, are unable to refer workers 

to available positions elsewhere in the 

United States. 

Response: The Department 

acknowledges the comment that 

suggested the regulation should specify 

that clearance orders should be 

translated into Spanish and other major 

languages in the area. However, the 

Department reiterates that 29 CFR 38.9 

spells out the applicable language 

access requirements more 

comprehensively, including the 

obligations to translate vital information 

(as defined at 29 CFR 28.4(ttt)) that 

appears in written materials into 

languages spoken by a significant 

number or portion of the population 

eligible to be served, or likely to be 

encountered, and to make the 

translations readily available in hard 

copy or electronically. The regulation at 

29 CFR 38.9 also imposes an obligation 

to take reasonable steps to ensure 

meaningful access to each individual 

with LEP served or encountered, 

including providing oral interpretation 

or written translation of materials, in the 

appropriate non-English languages, so 

that individuals with LEP are effectively 

informed about and able to participate 

in the program or activity. Furthermore, 

once ES staff becomes aware of the nonEnglish preferred language of an 

individual with LEP, the ES staff must 

convey vital information to that 

individual in their preferred language. 

The Department adopts the language 

as proposed in the NPRM and will 

provide guidance and technical 

assistance as needed. 

Section 653.103 Process for Migrant 

and Seasonal Farmworkers To 

Participate in Workforce Development 

The Department proposed to make 

several revisions to § 653.103. First, the 

Department proposed to revise the 

requirement in paragraph (a) for onestop centers to determine whether 

participants, as defined at § 651.10, are 

MSFWs. As revised, this section would 

replace ‘‘one-stop center’’ with ‘‘ES 

office,’’ and it would require ES offices 

to also determine whether reportable 

individuals, as defined at § 651.10, are 

MSFWs. 

Second, in § 653.103(b), the 

Department proposed to replace the 

existing provision requiring all SWAs to 

ensure that MSFWs who are Englishlanguage learners receive, free of charge, 

the language assistance necessary to 

afford them meaningful access to the 

programs, services, and information 

offered by the one-stop centers with a 

new provision clarifying that all SWAs 

are required to comply with the 

language access and assistance 

requirements at 29 CFR 38.9 with regard 

to all individuals with LEP, including 

MSFWs who are LEP individuals, as 

defined at 29 CFR 38.4(hh). This 

compliance includes ensuring ES staff 

comply with these language access and 

assistance requirements. In the NPRM, 

the Department explained that this 

would align the language access 

requirements for MSFWs with language 

access requirements for all individuals 

with LEP pursuant to 29 CFR 38.9, and 

it would help to ensure all individuals 

with LEP, including MSFWs, are 

provided meaningful access to ES 

services. 

Lastly, the Department proposed to 

remove the specific requirement in 

§ 653.103(c) for one-stop centers to 

provide MSFWs a list of available career 

and supportive services ‘‘in their native 

language.’’ This, too, would align with 

the proposed revisions to replace the 

various specific language access 

requirements in this part with reference 

to the comprehensive requirements 

applicable to all individuals with LEP in 

29 CFR 38.9. 

The Department received comments 

concerning each of these proposed 

revisions. For the reasons discussed 

below, the Department has not made 

any changes to the proposed regulatory 

text and adopts it as proposed. 

Comment: The Department received 

several comments from individuals and 

entities in Michigan that reported 

Michigan’s ES offices are prepared to 

implement the new requirement to 

determine whether reportable 

individuals are MSFWs. Another State 

agency opposed the proposed 

requirement for States to determine 

whether reportable individuals are 

MSFWs, as defined at § 651.10. The 

State agency disputed the value of 

collecting this information, asserting it 

had previously collected information 

from reportable individuals to 

determine whether they were MSFWs 

and found it was inaccurate, because it 

was based on self-service registrations 

that were not reviewed by staff for 

accuracy unless the self-registrant 

sought participant-level services. This 

State agency estimated that, if the 

proposed requirement is adopted, it 

would cost $30,000 to $50,000 to update 

its IT systems to track the MSFW-status 

of reportable individuals, and it asked 

the Department to provide additional 

funding to cover these costs. 

Response: The Department 

appreciates the commenter’s concern 

regarding the accuracy of self-reported 

data. While the Department 

acknowledges that there may be errors 

in classification determinations based 

on self-reported information that are 

made without assistance from staff in 

the one-stop center, it believes this risk 

could largely be addressed if SWAs 

carefully tailor the questions that they 

pose to self-registrants so that the 

answers self-registrants provide are 

more likely to elicit accurate 

classification determinations. The 

Department expects that some States 

may need to revise their current 


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information collection (IC) practices 

and/or make changes to existing IT 

systems to collect this information from 

reportable individuals. These costs are 

allowable under a State’s Wagner-Peyser 

ES grant, and the Department has 

accounted for them in the regulatory 

impact and IC analyses provided in 

sections VI.A and VI.C, respectively, 

below. The Department does not take 

lightly the changes that States must 

make to processes and systems to collect 

information about participants or 

reportable individuals, but believes that 

the value of collecting this data 

outweighs the estimated burden that 

SWAs may incur to collect it. Collecting 

data about participant and reportable 

individual characteristics, particularly 

related to populations that have been 

historically underserved, is an 

important tool for measuring progress in 

providing equal opportunity. In this 

case, collecting MSFW status will help 

the ES to identify all MSFWs who 

engage in the ES and the degree of their 

engagement. To ensure data on the 

MSFW status of reportable individuals 

is accurate and used appropriately, 

§ 653.109(e) will require SWAs to 

periodically verify data collected under 

this section, take necessary steps to 

ensure its validity, and submit the data 

for verification to the Department, as 

directed by the Department. 

Comment: The Department received 

comments from numerous entities and 

individuals in Michigan that asserted 

the costs their State incurs to comply 

with language access and assistance 

requirements would increase if the final 

rule requires Michigan to change its 

longstanding staffing model to comply 

with a State merit-staffing requirement, 

because if the Department were to adopt 

this requirement, one-stop centers in 

Michigan could no longer rely on 

multilingual local staff across an array 

of workforce programs to provide ES 

services. 

Response: As discussed in section 

V.C.2 above, this final rule will allow 

several States, including Michigan, to 

continue to provide ES services in 

accordance with their longstanding 

alternative staffing arrangements. 

Because this change resolves the 

circumstances about which the 

commenters were concerned, this final 

rule should not impact Michigan’s cost 

of compliance with language access 

requirements for the reasons that these 

commenters feared. 

Comment: A farmworker advocacy 

organization largely supported the 

Department’s proposed revisions to 

align the language access requirements 

in part 653 with the requirements in 29 

CFR 38.9 that apply to all individuals 

with LEP, but with some reservations. 

This commenter expressed concern that 

removing the phrase ‘‘in their native 

language’’ from § 653.103(c) could 

create confusion about a SWA’s 

language access obligations and 

recommended retaining this language in 

the regulation for clarity, rather than 

simply relying on the new provision in 

§ 653.103(b), which clarifies that SWAs 

must comply with the language access 

requirements in 29 CFR 38.9. 

Response: The Department recognizes 

that language access is crucial for 

individuals with LEP and is revising 

§ 653.103 to clarify that SWAs must 

comply with the language access 

requirements in 29 CFR 38.9 when 

providing Wagner-Peyser ES services to 

MSFWs. The Department disagrees with 

the commenter’s assertion that it is 

necessary to retain a specific 

requirement in this section for one-stop 

centers to provide MSFWs a list of 

available career and supportive services 

‘‘in their native language.’’ As explained 

above, 29 CFR 38.9 spells out the 

language access requirements that apply 

comprehensively, including the 

obligations to translate vital information 

in written materials and to convey vital 

information to individuals with LEP in 

their preferred languages once the onestop center becomes aware of the 

individuals’ non-English preferred 

languages. 

The Department therefore adopts the 

changes to this section as proposed and 

will provide guidance and technical 

assistance as needed. 

Section 653.107 Outreach 

Responsibilities and Agricultural 

Outreach Plan 

Section 653.107 governs the outreach 

that SWAs must conduct to ensure that 

MSFWs receive ES services that are 

qualitatively equivalent and 

quantitatively proportionate to the 

services that the SWA offers and 

provides to other job seekers. The 

migrant and seasonal nature of the 

farmwork that MSFWs perform presents 

numerous challenges to the effective 

provision of services to this 

subpopulation. Accordingly, the 

Department has historically required 

SWAs to conduct outreach to MSFWs to 

ensure that the services they receive are 

qualitatively equivalent and 

quantitatively proportionate to the 

services offered to other job seekers. The 

Department proposed revisions to the 

regulatory text throughout § 653.107 to 

further prescribe the outreach that 

SWAs must conduct under this section. 

These revisions and the comments the 

Department received about them, as 

well as the Department’s responses, are 

discussed below in accordance with the 

paragraph in which they appear in the 

regulatory text. 

Section 653.107(a) 

The Department proposed to 

strengthen SWA outreach by making a 

number of revisions to the regulatory 

text in § 653.107(a). Among other things, 

the proposed revisions emphasize the 

year-round nature of outreach work; 

specify that full-time outreach staff may 

not be assigned to duties other than the 

outreach responsibilities described in 

§ 653.107(b); provide a standard by 

which to determine whether a SWA 

employs an adequate number of 

outreach staff; and place additional 

emphasis on the background and 

training that outreach staff must have in 

order to successfully perform their 

duties. A detailed description of the 

revisions proposed in each subordinate 

paragraph follows. 

First, the Department proposed to 

amend § 653.107(a)(1) in several ways to 

emphasize that outreach work must be 

performed only by outreach staff and 

that outreach staff in all States must 

conduct outreach year-round. 

Specifically, the Department proposed 

to replace the first sentence of paragraph 

(a)(1) in the existing regulation—which 

required each SWA to provide an 

adequate number of outreach staff to 

conduct MSFW outreach in their service 

areas—with a requirement for each 

SWA to ensure that outreach staff 

conduct the outreach responsibilities 

described in paragraph (b) of this 

section on an ongoing basis. The 

Department proposed this change to 

clarify that outreach staff in all States 

must be employed year-round and 

perform the outreach activities 

described in § 653.107(b) on an ongoing 

basis. The Department did not propose 

to remove the requirement for a SWA to 

provide an adequate number of outreach 

staff, but rather, proposed to relocate 

this requirement to paragraph (a)(4), and 

to revise this requirement so that it 

specifies a means to measure whether a 

SWA employs an adequate number of 

outreach staff (discussed further below 

with the proposed changes to paragraph 

(a)(4)). The Department further 

proposed to prohibit a SWA from 

relying on the outreach activities 

conducted by NFJP grant recipients (i.e., 

recipients of grants awarded under 

WIOA title I sec. 167) to substitute for 

the outreach responsibilities that 

outreach staff must conduct under this 

section. In particular, the Department 

proposed to revise the second sentence 

of paragraph (a)(1)—which required 

SMAs and outreach staff to coordinate 

their outreach efforts with WIOA title I 


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sec. 167 grantees—to instead require 

that SMAs and outreach staff coordinate 

their activities with WIOA title I sec. 

167 grantees. The Department 

additionally proposed to include a new 

sentence at the end of this paragraph to 

make clear that a SWA cannot rely on 

the activities of NFJP grantees as a 

substitute for SWA outreach 

responsibilities. Taken together, these 

revisions would require a SWA to 

coordinate their outreach activities with 

the activities of NFJP grantees in their 

State (i.e., SWAs and NFJP grantees 

would have to work together to 

strengthen their respective services) but 

prohibit the SWA from relying on 

activities of NFJP grantees as a 

substitute for the outreach 

responsibilities that outreach staff must 

conduct under this section. 

Second, the Department proposed to 

revise § 653.107(a)(2)(ii) so that SWAs 

in all States will be required to conduct 

thorough outreach efforts with extensive 

follow-up activities. In particular, the 

Department proposed to amend the 

existing regulation—which required 

SWAs in supply States to conduct 

thorough outreach efforts with extensive 

follow-up—to instead require that 

SWAs in all States conduct thorough 

outreach efforts with extensive followup, and to add language specifying that 

extensive follow-up consists of the 

activities identified in paragraph (b)(5) 

of this section. 

Third, the Department proposed 

revisions to § 653.107(a)(3) to 

operationalize the proposed merit State 

merit-staffing requirement for outreach 

staff and strengthen the process by 

which SWAs hire and assign outreach 

staff. In particular, the Department 

proposed to amend the language and 

structure of this paragraph to make clear 

that the SWA is responsible for directly 

hiring outreach staff and to specify the 

actions that a SWA must take when 

hiring or assigning outreach staff. The 

proposed revisions would require a 

SWA to not only ‘‘seek’’ qualified 

candidates with certain characteristics 

when hiring or assigning outreach staff, 

but to also ‘‘place a strong emphasis on 

hiring and assigning’’ such candidates. 

To increase the likelihood that SWAs 

will employ candidates who meet the 

required criteria, the Department further 

proposed to add a new paragraph at 

§ 653.107(a)(3)(ii) that would require a 

SWA to inform farmworker 

organizations and other organizations 

with expertise concerning MSFWs of 

outreach staff job openings and 

encourage such organizations to refer 

qualified applicants to apply for the 

opening. 

Fourth and finally, the Department 

proposed to make several changes in 

§ 653.107(a)(4) that would bolster 

outreach staffing requirements. In 

particular, the Department proposed to 

move the first sentence in paragraph 

(a)(1) of the existing regulation—which 

required each SWA to provide an 

adequate number of outreach staff—to 

the beginning of paragraph (a)(4) and to 

amend this sentence so that it would 

require each SWA to employ (as 

opposed to provide) an adequate 

number of outreach staff to conduct 

MSFW outreach in each area of the State 

to contact a majority of MSFWs in all of 

the SWA’s service areas annually. The 

revisions to this sentence would make 

clear each SWA must employ outreach 

staff to perform the outreach required by 

this section and provide a measurable 

means of determining whether the 

number of outreach staff a SWA 

employs is adequate. They would also 

ensure that each SWA conducts 

outreach in all areas of the State, and 

not only certain service areas (e.g., only 

those service areas with significant 

MSFW one-stop centers). In addition, 

the Department proposed to add a 

sentence in paragraph (a)(4) that 

specifies full-time outreach staff must 

devote 100 percent of their time to the 

outreach responsibilities described in 

§ 653.107(b). Finally, the Department 

proposed adding another sentence to 

require that SWA outreach staffing 

levels align with and be supported by 

the estimated number of MSFWs in the 

State and the MSFW activity in the 

State, as demonstrated in the State’s 

Agricultural Outreach Plan (AOP). 

The Department received numerous 

comments about the changes it 

proposed, as discussed in detail below. 

After careful consideration of these 

comments, the Department largely 

adopts the proposed regulatory text with 

minor revisions. 

First, this final rule modifies the 

proposed revisions to § 653.107(a)(1) to 

replace the phrase ‘‘SWA 

Administrators’’ with the phrase ‘‘State 

Administrators’’ in the second sentence 

of that paragraph. The Department is 

making this change because § 651.10 

defines the term State Administrator for 

purposes of the Wagner-Peyser 

regulations and does not define the term 

SWA Administrator. 

Second, this final rule modifies the 

proposed revisions to § 653.107(a)(3) 

and (4) to account for changes to the 

proposed State merit-staffing 

requirement adopted in this final rule. 

Specifically, as adopted in this final 

rule, § 652.215 will generally require 

States to deliver the services and 

activities under this part using State 

merit-staff employees, but § 652.215(b) 

will allow the three States authorized to 

use alternative staffing models prior to 

February 5, 2020, to use an alternative 

staffing model to the extent the 

Department authorized that State to use 

an alternative staffing model prior to 

February 5, 2020. To account for the fact 

that in these three States, the SWA may 

not be the entity directly hiring outreach 

staff, the Department modified the 

proposed regulatory text for 

§ 653.107(a)(3). The Department is 

adopting text in this paragraph that 

clearly requires a SWA to ensure that 

outreach staff are sought and hired or 

assigned in the manner that this 

regulation requires. The Department 

made similar revisions to the proposed 

regulatory text for § 653.107(a)(4). 

Instead of stating that the SWA must 

employ an adequate number of outreach 

staff, as proposed, this final rule 

requires a SWA to ensure an adequate 

number of outreach staff are employed 

in accordance with the requirements in 

this paragraph. 

Notably, these revisions are intended 

to accommodate only those rare 

instances in which a State may use an 

alternative staffing model under 

§ 652.215(b). Because the State meritstaffing requirement adopted in 

§ 652.215(a) applies to the services and 

activities performed by outreach staff 

under § 653.107, this final rule requires 

SWAs to directly hire or assign State 

merit staff to outreach staff positions in 

all but a very limited number of 

situations. 

Third, as explained in further detail 

below, the Department is modifying the 

proposed regulatory text for 

§ 653.107(a)(4) to clarify the manner in 

which SWAs must determine whether 

the number of outreach staff employed 

in their State is adequate. As adopted in 

this final rule, § 653.107(a)(4) requires 

each SWA to ensure that there are an 

adequate number of outreach staff 

employed in the State to conduct MSFW 

outreach in each service area of the 

State and to contact a majority of 

MSFWs in the State annually. 

General Comments 

Many commenters expressed general 

support for the Department’s proposal. 

For example, a farmworker advocacy 

organization stated the proposed 

changes would ensure that SWAs once 

again provide adequate outreach 

services to MSFWs. Another farmworker 

advocacy organization noted MSFW 

outreach would be improved by 

underscoring that outreach is a full-time 

job that deserves priority and which 

should not be combined with other 

functions. A number of other 


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commenters, including several unions, 

likewise supported the proposed rule’s 

focus on improving outreach to MSFWs. 

The Department also received 

comments from several State 

government agencies that expressed 

about the impact of the proposed 

revisions and urged the Department to 

adopt a more flexible approach. The 

Department values the input and 

perspectives that commenters shared 

and has thoroughly considered their 

concerns and recommendations. A 

summary of the specific issues and 

concerns raised, and the Department’s 

response, follows. 

NFJP Activities 

Comment: A farmworker advocacy 

organization supported the 

Department’s approach to improve 

outreach by strengthening staffing 

requirements, including the proposal to 

amend § 653.107(a)(1) to specify that 

NFJP grantee activities do not fulfill the 

SWA’s outreach obligations under 

§ 653.107. This commenter asserted that 

the proposed revisions represented an 

important improvement, and noted its 

staff had witnessed failed outreach and 

ineffective services provided by parttime and contract staff in many of the 

States where the organization serves 

farmworkers. Another commenter, a 

State government agency, reported that 

it has procedures in place to collaborate 

with its NFJP partner to conduct joint 

outreach. However, it was not clear 

whether the joint outreach this 

commenter referenced would be 

conducted alongside outreach staff 

employed by the SWA, as required by 

this final rule, or in lieu of outreach 

conducted by ES staff. In addition to 

joint outreach with the NFJP, the 

commenter said its staff make other 

contacts. 

Response: The Department 

appreciates the views that commenters 

shared about this proposal. The 

Department agrees that MSFW outreach 

will be more effective if it is performed 

by outreach staff who are not expected 

to perform other functions. This is 

partly achieved by ensuring there is 

dedicated outreach staff to perform the 

outreach activities required by § 653.107 

and informing SWAs that they may not 

rely on outreach activities of NFJP 

grantees to substitute for the outreach 

that these regulations require. It was not 

clear whether the State government 

agency that reported it has procedures 

in place to conduct joint outreach with 

its NFJP partner has been conducting 

this joint outreach in a manner that 

would comply with this final rule. 

Under this final rule, § 653.107(a)(1) 

will require a SWA to coordinate 

outreach with the activities of NFJP 

grantees, and it will permit a SWA to 

conduct joint outreach with NFJP 

grantees. But it will not permit a SWA 

to rely on the activities of an NFJP 

grantee to satisfy the MSFW outreach 

requirements set forth in § 653.107. The 

Department has decided to adopt this 

rule because a SWA’s responsibility to 

conduct outreach to MSFWs under 

§ 653.107 differs in purpose and scope 

from the recruitment activities of NFJP 

grantees. The activities of NFJP grantees 

differ from the responsibilities of 

outreach staff under this section, 

because § 653.107(b) requires outreach 

staff to perform a number of specific 

tasks, such as provide MSFWs certain 

information (e.g., a basic summary of 

farmworker rights, information about 

services available at the local one-stop 

center, the ES and Employment-Related 

Law Complaint System, and 

organizations that serve MSFWs in the 

area) and offer to directly provide access 

to certain ES services onsite. 

Accordingly, the final rule adopts the 

revisions to § 653.501(a)(1) as proposed. 

Hiring and Assignment of Outreach 

Staff 

Comment: A Delaware State 

government agency discussed its use of 

a contractor to provide outreach to 

MSFWs, arguing that this approach 

enabled it to significantly increase its 

outreach to MSFWs. Stating that 

privatizing the role allowed it to offer 

competitive pay, attract qualified 

candidates, and fill the job quickly, the 

commenter asked the Department for an 

exemption from the merit-staffing 

requirement for this outreach position 

so that a contractor can continue to hold 

it. 

Response: The Department 

appreciates this commenter’s feedback 

regarding outreach staffing. However, 

the Department addressed the benefits 

of State merit staff, including using 

State merit staff for MSFW outreach, in 

earlier sections of this preamble, 

specifically stating that the Department 

is adopting the proposed State meritstaffing requirement as a generally 

reliable method to ensure quality and 

consistency in ES delivery. Aside from 

allowing the three States to use their 

alternative staffing models in place as of 

February 5, 2020, the Department is not 

permitting further exceptions to the 

merit-staffing requirement discussed 

above. 

Comment: The Department received 

several comments related to its proposal 

to revise the requirements governing the 

hiring or assignment of outreach staff in 

§ 653.107(a)(3). A farmworker advocacy 

organization supported the 

Department’s proposal to strengthen the 

hiring process for outreach staff, 

particularly the proposed requirement 

for SWAs to inform farmworker 

organizations in their States about job 

openings, noting such a requirement 

would help SWAs identify candidates 

who possess cultural competence and 

develop broad networks within 

farmworker communities. 

Several commenters from Colorado, 

including a Colorado State government 

agency, a State workforce development 

board, and a trade association, 

expressed concern that if the 

Department adopted the proposed rule, 

it would require Colorado to employ 

new outreach staff and cross-train them 

to perform UI services. These 

commenters argued that it would be 

more difficult to backfill outreach 

positions currently held by county merit 

staff, as the proposed rule would 

require, if the Department also adopted 

revisions that raised the qualifications 

for hiring or assigning ES staff to 

outreach staff positions. As discussed 

below, this concern appeared to be 

based on these commenters’ mistaken 

understanding that the proposed 

revisions would raise the qualifications 

for outreach staff positions. 

Another State government agency 

opposed the proposed changes to the 

outreach staffing requirements in 

§ 653.107(a)(3) based on a similar 

misunderstanding that the proposed 

revisions would increase the 

qualifications required of MSFW 

outreach staff. This State agency 

maintained that there was no need to 

expand current requirements, which it 

asserted allow the State to meet the 

needs of the program while maintaining 

flexibility in a tight labor market. 

According to this State agency, it is 

increasingly difficult to find applicants 

who are from MSFW backgrounds or 

who have substantial work experience 

in farmworker activities in a tight labor 

market, and many individuals already 

employed in outreach, compliance, and 

monitoring positions outside of MSFW 

or farmwork possess the necessary 

skillset and transferable skills. 

A different State government agency 

agreed with the Department that SWAs 

should employ outreach staff who meet 

relevant criteria, but it noted the 

difficulty that its program managers at 

significant MSFW one-stop centers have 

faced when trying to hire qualified 

outreach staff who meet all 

requirements, which it said has resulted 

in program managers hiring outreach 

staff who are bilingual but do not 

necessarily have experience working 

with farmworkers. 


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Response: The Department 

appreciates the feedback it received 

from these commenters. As discussed in 

section V.C.2 above, this final rule will 

permit three States, including Colorado, 

to provide ES services in accordance 

with their longstanding alternative 

staffing arrangements. This revision to 

the proposed State merit-staffing 

requirement should resolve any 

concerns raised by commenters from 

Colorado regarding the impact that such 

a requirement would have on their 

State’s ability to serve MSFWs. As 

relevant here, this final rule will not 

require Colorado to replace its county 

merit staff with State merit staff. 

Moreover, neither the proposed rule nor 

this rule require any State to cross-train 

ES staff to provide UI services. 

Several commenters mistakenly 

believed that the proposed revisions 

would increase the qualifications of the 

individuals who SWAs must seek when 

hiring or assigning outreach staff. The 

Department did not propose to change 

the type of characteristics that SWAs 

must seek among qualified candidates 

when hiring or assigning outreach staff. 

The existing regulation at 

§ 653.107(a)(3) already requires SWAs to 

seek qualified candidates who speak the 

language of a significant proportion of 

the MSFW population in the State and 

who are from MSFW backgrounds or 

who have substantial work experience 

in farmworker activities. Rather, the 

Department proposed to require SWAs 

not only seek individuals with these 

characteristics, but also place a strong 

emphasis on hiring and assigning such 

individuals. The Department has long 

required SWAs to seek out individuals 

who possess similar characteristics 

when hiring or assigning ES staff to 

outreach duties. Nevertheless, the 

Department has observed that SWAs 

commonly assign existing staff to fill 

outreach staff vacancies, without 

seeking qualified candidates who speak 

the language of a significant proportion 

of the State MSFW population and who 

are from MSFW backgrounds or have 

substantial work experience in 

farmworker activities. The Department 

is concerned that assigning individuals 

who do not possess these characteristics 

to outreach staff positions may 

contribute to low MSFW engagement in 

the ES program. Individuals who do not 

meet these characteristics may not have 

the language skills or experience 

necessary to effectively explain services 

to MSFWs or to successfully tailor those 

services to meet the particular needs of 

MSFWs. It is important for outreach 

staff to be able to effectively 

communicate with the MSFWs whom 

they serve, particularly because 

outreach staff often interact with 

MSFWs with LEP in remote places, such 

as rural working and living locations, 

where interpretation services and aids 

may not be as widely available. If 

outreach staff speak the same language 

as the majority of MSFWs in the State 

and come from an MSFW background or 

have substantial work experience in 

farmworker activities, then they are 

more likely to be able to effectively 

communicate with the MSFWs whom 

they encounter. In sum, the Department 

has determined SWAs must make a 

greater effort to employ outreach 

workers with the characteristics 

required by § 653.107(a)(3), because 

such individuals are more likely to have 

the knowledge and skills to help them 

effectively communicate and engage 

with MSFWs. In the Department’s view, 

the benefit of identifying qualified 

candidates with these characteristics 

outweighs the burden it places on SWAs 

to comply with the requirement. 

In order to receive applicants from 

farmworker organizations and other 

organizations with expertise concerning 

MSFWs, SWAs must make the job 

opening available to external 

candidates. SWAs may recruit internally 

for outreach staff job openings but they 

must also recruit externally. SWAs may 

hire or assign qualified candidates from 

their internal or external recruitment 

efforts, provided that they put a strong 

emphasis on hiring or assigning 

candidates who meet the characteristics 

described at § 653.107(a)(3)(i). If a SWA 

ensures hiring officials properly inform 

appropriate organizations and recruit 

externally for outreach staff positions, 

but these recruitment efforts do not 

produce qualified candidates who meet 

the required criteria, then hiring 

officials may assign existing staff to 

perform outreach staff responsibilities. 

In such cases, hiring officials must still 

put a strong emphasis on assigning 

candidates who meet at least some of 

the characteristics described at 

§ 653.107(a)(3)(i). To demonstrate a 

strong emphasis on hiring or assigning 

candidates who meet these 

characteristics, job postings should 

describe the desired characteristics. 

This proposed change will also allow 

the Department to assess whether a 

SWA has policies and procedures in 

place to ensure hiring officials place an 

appropriate emphasis on seeking and 

hiring or assigning qualified candidates 

who meet the characteristics described 

at § 653.107(a)(3)(i). In cases where a 

SWA has more than one qualified 

applicant, the Department would expect 

hiring officials to select the applicant 

who meets the required criteria over the 

one who does not. 

The Department appreciates that some 

SWAs may face difficulties in 

identifying qualified candidates who 

meet these characteristics and 

understands it may not always be 

possible to identify such candidates 

when hiring or assigning ES staff to 

outreach staff positions. Accordingly, 

this final rule will require SWAs to 

ensure hiring officials seek and put a 

strong emphasis on identifying qualified 

candidates with these characteristics. If 

hiring officials are not able to find 

qualified candidates who possess these 

characteristics, the SWA may proceed to 

hire or assign the most qualified 

candidate. 

Appropriate Outreach Staffing Levels 

and Duties 

Comment: The Department received 

comments both in support and 

opposition to its proposal to revise 

§ 653.107(a)(1) and (4) to clarify and 

strengthen requirements governing the 

outreach staff whom SWAs employ to 

fulfill the requirements set forth in 

§ 653.107. For example, a union 

organization supported the 

Department’s proposed changes to 

ensure SWAs employ an adequate 

number of outreach staff sufficient to 

reach a majority of MSFWs in all States. 

A farmworker advocacy organization 

similarly remarked that the proposed 

changes would improve MSFW 

outreach by underscoring that outreach 

is a full-time job that deserves priority 

and should not be combined with other 

functions. This commenter thought the 

proposed changes would help ensure 

that outreach staff are available and 

qualified to provide the outreach and 

follow-up services required by the 

regulations. A State employee 

association supported the proposed 

rule’s focus on outreach services to 

MSFWs. Similarly, a State government 

agency agreed with the proposed 

requirement for outreach staff in 

significant MSFW States to devote all of 

their time to outreach rather than 

merely including outreach among other 

responsibilities, noting it would further 

clarify the role and expectations of 

outreach staff. However, this State 

agency sought further clarification about 

how it should determine whether it 

employs an ‘‘adequate’’ number of 

outreach staff and inquired whether this 

determination would involve using a 

DOL-provided formula to accurately 

assess the need and determine what is 

considered a majority of the population. 

Several other State government 

agencies opposed the proposed 

revisions and urged the Department to 


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consider alternative approaches that 

allow for more flexibility. For example, 

one State government agency expressed 

concern that the proposed requirement 

for a SWA to employ a sufficient 

number of outreach staff to conduct 

MSFW outreach ‘‘in each area of the 

State’’ would increase the Department’s 

expectations for MSFW outreach 

staffing. Because this State agency did 

not think the effect of this proposed 

revision was clear, it asked the 

Department to clarify what the addition 

of ‘‘in each area of the State’’ would 

require and how it would impact the 

State’s current practice for employing 

outreach staff. In particular, the State 

agency was concerned that the proposed 

requirement to employ an adequate 

number of outreach staff to conduct 

MSFW outreach ‘‘in each area of the 

State’’ might require each workforce 

development area or one-stop 

(depending how ‘‘each area’’ is defined) 

to devote more resources to MSFW 

outreach based on unknown parameters 

set by the Department. The State agency 

noted that it currently employed fulltime, year-round outreach staff who 

serve three of its 12 workforce 

development areas, and that those 

workforce development areas covered 

around 90 percent of the State’s 

agricultural employment population. 

The State agency expressed concern that 

the proposed revisions might require it 

to employ additional dedicated MSFW 

outreach staff to serve the nine other 

workforce development areas (or the 

other 30 non-significant MSFW onestops), even though those areas and onestop centers collectively served only 

around 10 percent of the State’s MSFW 

population. The State agency noted that 

if the Department were to adopt such a 

requirement, it would decrease the 

State’s capacity to conduct outreach to 

other key populations (e.g., different 

groups statutorily identified as having 

barriers to employment) and to 

otherwise serve customers that directly 

access ES services via one-stops or 

virtually. The commenter requested that 

the Department allow States to meet 

regulatory goals through operational 

flexibility rather than rigid staffing 

requirements. Citing annual reports 

from the SMA to the Department 

showing frequent turnover among 

outreach staff, the commenter said a 

flexible approach was important to 

avoid gaps in outreach services when 

attrition occurs. 

Another State agency explained that it 

employed several part-time outreach 

specialists throughout the State, and 

asserted that, as a non-significant 

MSFW State, there would not be enough 

outreach work for this staff to perform 

during peak season if their duties are 

limited to performing only those 

activities identified in § 653.107(b). 

According to this State agency, limiting 

the job duties that outreach staff can 

undertake during peak season is neither 

practical nor cost-effective given the 

number of MSFWs in the State. The 

State agency explained this limitation 

would pose several problems for the 

State’s ES staff and the services they are 

able to provide. Specifically, the State 

agency noted that § 653.107(b) does not 

include duties like providing services in 

one-stop centers, attending meetings, 

and contributing to the one-stop ES 

services team. This was problematic, 

according to the State agency, because 

outreach staff are tasked with 

encouraging MSFWs to obtain services 

at one-stop centers, and in order to 

effectively serve MSFWs in the field or 

at one-stop centers, outreach staff must 

be able to devote some time to serving 

non-MSFWs, so that they stay up to date 

on the latest services, best practices, 

employers, and hiring events in their 

area. 

A different State government agency 

asserted that the proposed requirement 

for year-round, part-time outreach staff 

in non-significant MSFW States is 

untenable because Wagner-Peyser Act 

funding is not designated for this 

function and its current staffing level 

has proven sufficient. Specifically, the 

commenter reported that its MSFW 

outreach staff collaborate with the 

State’s NFJP partner on joint outreach, 

distribute pamphlets and speak to 

workers during housing inspections, 

and reach MSFWs at outreach clinic 

events hosted by a State public 

university. 

Another State government agency 

objected to the proposed revision that 

would require outreach staff in 

significant MSFW States to spend 100 

percent of their time on the outreach 

responsibilities listed in § 653.107(b), 

arguing that it would restrict staffing 

flexibility by prohibiting the assignment 

of additional duties and limit its staff’s 

ability to assist MSFWs and their 

families who are seeking assistance in a 

one-stop center. 

Response: The Department 

appreciates the feedback it received 

from State government agencies 

regarding the revisions it proposed to 

the outreach staffing requirements in 

§ 653.107(a). The Department proposed 

these revisions to strengthen the 

requirements governing outreach 

staffing levels to ensure that outreach 

staff are dedicating sufficient time to 

performing the duties set forth at 

§ 653.107(b) for outreach staff. As noted 

above, the Department has carefully 

considered the concerns these 

commenters raised and will adopt the 

proposed revisions to § 653.107(a) with 

minor revisions. 

Some of the requirements about 

which commenters expressed concern 

are not new proposals. For example, the 

existing regulation at § 653.107(a)(4) 

already required significant MSFW 

States (i.e., the 20 States with the 

highest estimated year-round MSFW 

activity) to provide full-time, year-round 

outreach staff to conduct outreach 

duties. It also required the remainder of 

States to provide at least part-time 

outreach staff on a year-round basis and 

full-time outreach staff during periods 

of the highest MSFW activity. 

At the same time, the Department 

recognizes that some of the revisions to 

this section introduce new 

requirements, and that compliance with 

these requirements will require some 

SWAs to change the manner in which 

they have been conducting MSFW 

outreach or employing outreach staff. 

For example, if a SWA currently 

employs outreach staff only in those 

areas where significant MSFW one-stop 

centers are located, it will need to 

ensure that those outreach staff are also 

able to conduct outreach in all areas of 

the State (not just those service areas in 

which the significant MSFW one-stop 

centers are located) and make enough 

contacts to reach the majority of MSFWs 

in the State annually. If a SWA’s 

existing outreach staff cannot 

adequately meet these requirements, 

then the SWA will need to ensure 

additional outreach staff are hired or 

assigned to meet these requirements. 

While compliance with these 

requirements will require some SWAs to 

change the manner in which they 

currently conduct MSFW outreach, the 

Department does not anticipate that 

implementing these changes will 

impose a heavy burden. States will 

continue to retain some flexibility in 

determining how to structure their 

MSFW outreach in a manner that meets 

regulatory requirements. For example, a 

SWA may assign outreach staff to cover 

more than one service area, provided 

that the number of outreach staff in the 

State is adequate to conduct outreach in 

every service area in the State and to 

contact at least a majority of MSFWs in 

the State overall on an annual basis. 

It is important that SWAs conduct 

MSFW outreach in all service areas in 

the State to ensure MSFWs throughout 

the State are able to access ES and 

receive information on farmworker 

rights from outreach staff. While there 

may be fewer MSFWs in certain areas, 

it is important to ensure MSFWs in all 


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6See NMA Concern 1 in the PY 2020 NMA 

Annual Report on Service to MSFWs, available on 

the Department’s website at https://www.dol.gov/ 

agencies/eta/agriculture/monitor-advocate-system/ 

performance. 

7NMA Annual Report for PY 2020, available at: 

https://www.dol.gov/agencies/eta/agriculture/ 

monitor-advocate-system/performance. 

8See NMA Concern 1 in the PY 2020 NMA 

Annual Report on Service to MSFWs, available on 

the Department’s website at https://www.dol.gov/ 

agencies/eta/agriculture/monitor-advocate-system/ 

performance. 

areas have access to ES on an equitable 

basis. Additionally, when SWAs do not 

conduct outreach in particular areas of 

the State, MSFWs in those areas may 

not be aware of their employmentrelated rights and the availability of the 

ES and Employment-Related Law 

Complaint System. These conditions 

could make MSFWs in those areas more 

susceptible to employment-related 

abuses, including wage theft, 

exploitation, and trafficking. 

As noted above, the Department 

acknowledges that the changes adopted 

in this final rule will require some 

States to change the manner in which 

they have been employing or assigning 

outreach staff. The Department has 

determined any burden this will impose 

is outweighed by the benefits likely to 

result from adopting these changes, 

because compliance with the updated 

requirements will better ensure that 

SWAs serve MSFWs in a manner that is 

qualitatively equivalent and 

quantitatively proportionate to other job 

seekers. The Department is concerned 

that the number of outreach staff in 

some States is not adequate to provide 

ES services in accordance with this 

standard, and that outreach staff are too 

often assigned other duties that detract 

from their ability to focus full time on 

the outreach responsibilities set forth in 

§ 653.107(b). 

SWAs contacted only approximately 

21 percent of MSFWs in PY 2018 and 

approximately 19 percent of MSFWs in 

PY 2020.6 The Department believes this 

level of outreach is not adequate. As 

described in the NMA Annual Report 

for PY 2020, the NMA has received 

information from farmworker 

organizations that most farmworkers 

have never experienced outreach 

contacts from SWAs.7 This information 

aligns with the data described above, 

which shows SWAs are not contacting 

the majority of MSFWs. Farmworkers 

and advocates report that farmworkers 

are often not aware of their 

employment-related rights, that they 

fear retaliation for reporting violations, 

and that they experience violations of 

employment-related law and ES 

regulations. Farmworker advocates also 

report that farmworkers and advocates 

do not trust that SWAs will provide 

help. Section 653.107 requires ES staff 

to educate farmworkers about their 

rights, to be alert to observe working 

conditions, and to document and 

process apparent violations and 

complaints observed during outreach. 

Through the changes adopted in this 

final rule, the Department is seeking to 

increase the outreach provided by 

SWAs to reach a larger percentage of 

MSFWs, improve the presence and 

credibility of SWAs in the farmworker 

community, and increase the number 

and percentage of MSFWs who are 

aware of the ES services, rights, and 

protections available to them. 

In the Department’s view, the benefit 

of having an adequate number of 

outreach staff to contact a majority of 

MSFWs in the State annually outweighs 

the burden it places on SWAs to comply 

with the requirement. Compliance with 

this requirement will help to ensure 

outreach staff in significant MSFW 

States are able to focus their full 

attention on performing the outreach 

activities specified in § 653.107(b) on a 

year-round basis, and that outreach staff 

in the remaining States are able to focus 

on these outreach activities full time 

during peak seasons. This is important 

because outreach is an essential service 

delivery component to effectively serve 

vulnerable populations and individuals 

who live in rural communities like 

MSFWs. MSFWs often experience 

transportation challenges, work long 

hours, and are afraid to seek services for 

numerous factors and they may not be 

able to go into an AJC in person. It is 

therefore imperative that SWAs have an 

adequate number of outreach staff to 

bridge this service gap and improve 

accessibility for MSFWs. Outreach staff 

who devote full time to their outreach 

responsibilities are better positioned to 

provide direct services to MSFWs and 

help connect them to other services. The 

Department measures the provision of 

services to MSFWs through its equity 

ratio indicators and minimum service 

level indicators. Data suggests that 

increased outreach staffing would help 

to improve the provision of ES services 

in many States. Specifically, while 

national-level data for PY 2020 and 

prior years reflects that SWAs are 

cumulatively meeting equity ratio 

indicators, State-level data shows that 

many SWAs are not meeting several 

measures.8

Accordingly, the revisions adopted in 

this final rule make clear that full-time 

outreach staff must focus 100 percent of 

their time on the outreach 

responsibilities set forth in § 653.107(b). 

Under this final rule, full-time outreach 

staff may not provide services to 

MSFWs who enter or otherwise contact 

the one-stop for ES services, or provide 

any other services, including services 

related to the ARS in subpart F of this 

part, such as field checks or housing 

inspections. MSFWs who make contact 

with the one-stop outside of the 

outreach process must instead be 

assisted by other available ES staff. The 

role of outreach staff is to locate and 

contact MSFWs who are not being 

reached by the normal intake activities 

conducted by the ES offices. Consistent 

with § 653.107(b)(5), if an MSFW enters 

the ES office as a result of a prior 

outreach contact, the MSFW may be 

assisted by the outreach staff, provided 

that the services fall under the 

description of follow-up contacts 

necessary and appropriate to provide 

the assistance specified in 

§ 653.107(b)(1) through (4). If outreach 

staff are not available, other ES staff 

must assist the MSFW. 

The Department acknowledges there 

is less need for outreach in States with 

lower populations of MSFWs. 

Accordingly, § 653.107(a)(4) requires 

only those States with the highest 

estimated year-round MSFW activity to 

employ full-time, year-round outreach 

staff. The remainder of States need only 

employ full-time outreach during 

periods of the highest MSFW activity 

and may employ part-time outreach staff 

the remainder of the year. Under this 

final rule, SWAs will continue to 

provide an assessment of need that is 

particular to their State’s service area(s) 

in the AOP, including information about 

when peak season in their State occurs 

and an estimate of the number of 

MSFWs in the State during peak season. 

The final rule will require all SWAs to 

use this data to determine the number 

of outreach staff that are adequate to 

conduct MSFW outreach in each service 

area of the State and to contact a 

majority of the MSFWs in the State 

annually. 

The Department disagrees with the 

commenters that allege it is untenable 

for States with lower populations of 

MSFWs to employ outreach staff who 

may perform only those duties 

described at § 653.107(b) during peak 

season. The outreach responsibilities 

described in paragraph (b) include timeconsuming services like preparation of 

applications for ES services, making 

referrals to employment, providing 

assistance with filing complaints, 

referrals to supportive services, 

assistance in making appointments and 

arranging transportation to and from 

local one-stop centers or other 

appropriate agencies, and follow-up 

activities necessary to provide the 


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9See NMA Concern 1 in the PY 2020 NMA 

Annual Report on Service to MSFWs, available on 

the Department’s website at https://www.dol.gov/ 

agencies/eta/agriculture/monitor-advocate-system/ 

performance. 

assistance described in § 653.107(b)(1) 

through (4). Outreach staff may, 

therefore, devote time to providing the 

direct services identified in 

§ 653.107(b)(4) to the MSFWs they 

contact through outreach and may work 

to ensure the MSFWs they enroll as 

participants receive services the 

Department measures through its equity 

ratio indicators and minimum service 

level indicators. This work is 

particularly important because, while 

national-level data for PY 2020 and 

prior years reflects that SWAs are 

cumulatively meeting equity ratio 

indicators, State-level data shows that 

many SWAs are not meeting several 

measures.9 The condition appears to 

exist because data from a few larger 

States that are compliant with these 

measures compensates for many other 

States that are not meeting the 

measures, including States that are not 

significant MSFW States. These lowperforming States often do not have fulltime or any outreach staff in peak 

season, and the Department is 

concerned that the lack of staffing 

negatively impacts the ability of MSFWs 

in these States to receive equitable 

access to the ES. Accordingly, the 

Department continues to believe it is 

necessary for SWAs in all States to 

employ outreach staff on a year-round 

basis, and that outreach staff in nonsignificant MSFW States must devote 

full-time to outreach work during the 

periods of highest MSFW activity in the 

State. 

The Department disagrees with the 

commenter that asserted outreach staff 

must serve non-MSFWs and perform 

other duties within a one-stop center in 

order to learn how to effectively serve 

MSFWs. In the Department’s view, the 

training that outreach staff receive 

pursuant to § 653.107(b)(7), which 

includes training on one-stop center 

procedures and on the services, benefits, 

and protections afforded MSFWs by the 

ES, should sufficiently prepare them to 

successfully serve MSFWs. Outreach 

staff may also attend staff meetings and 

trainings that relate to improving the 

quality of their outreach and which do 

not detract from their ability to meet 

outreach requirements described in this 

section. Such trainings might include 

information on one-stop partners, 

supportive services, and other 

information or resources available to 

MSFWs, which may also be available to 

non-MSFWs. Serving other job seekers 

is not necessary to obtain the skills or 

knowledge necessary to effectively 

conduct outreach to MSFWs. 

In response to the commenter that 

sought clarification about how a SWA 

should determine if it employs an 

‘‘adequate’’ number of outreach staff, 

the Department notes that, per the 

revision to § 653.107(a)(4) adopted in 

this final rule, the number of outreach 

staff in a State is ‘‘adequate’’ if the 

outreach staff in the State are able to (1) 

conduct MSFW outreach in each service 

area of the State and (2) contact a 

majority of MSFWs in the State 

annually. Section 653.107(a)(4) 

additionally specifies that outreach 

staffing levels must align with and be 

supported by the estimated number of 

farmworkers in the State and the 

farmworker activity in the State, as 

demonstrated by the SWA in the State’s 

AOP. 

In response to the commenter seeking 

clarification about the areas where 

States must conduct outreach, the 

Department is modifying the revision it 

proposed to make in § 653.107(a)(4) so 

that it explicitly specifies that each 

SWA must ensure there is an adequate 

number of outreach staff in the State to 

conduct MSFW outreach in each service 

area of the State and to contact a 

majority of MSFWs in all of the State 

annually. The final rule will require 

SWAs to conduct outreach in all of the 

State’s service areas so that MSFWs in 

all service areas are able to access the 

full range of ES. The SWA’s service 

areas consist of each local area where 

the SWA provides labor exchange 

services under the Wagner-Peyser Act, 

as described in the Memorandum of 

Understanding (MOU) that is explained 

in 20 CFR 678.500. This requirement 

does not mean that outreach staff must 

be placed in each local area, only that 

the State must ensure that there is an 

adequate number of outreach staff in the 

State to meet the requirements of this 

section. 

The Department acknowledges the 

concern raised by some commenters 

that the revisions to § 653.107(a)(3) will 

make it more difficult to hire and retain 

outreach staff, which could impede a 

SWA’s ability to hire an adequate 

number of outreach staff. However, the 

Department does not anticipate that 

compliance with § 653.107(a)(3) will 

pose the obstacle that these commenters 

fear. While the revised regulation will 

require a SWA to ensure hiring officials 

seek and put a strong emphasis on 

hiring and assigning qualified 

candidates who meet the characteristics 

described in § 653.107(a)(3) (i.e., 

qualified candidates who speak the 

language of a significant proportion of 

the State MSFW population and who 

are from MSFW backgrounds or who 

have substantial work experience in 

farmworker activities), if a State seeks 

but does not find qualified candidates 

who meet the characteristics described 

in § 653.107(a)(3), the State must still 

employ an adequate number of outreach 

staff by hiring or assigning the most 

qualified among available candidates. 

For these reasons, the Department 

adopts the proposed changes, with the 

revisions to § 653.107(a)(3) and (4) 

described above, and will provide 

technical assistance and guidance to 

help SWAs meet the requirements, as 

appropriate. 

Section 653.107(b) 

Paragraph (b) of § 653.107 describes 

outreach staff responsibilities. The 

Department proposed to make several 

revisions to this section. 

In particular, the Department 

proposed to amend the introductory 

sentence of paragraph (b) to specify that 

outreach staff responsibilities include 

the activities identified in paragraphs 

(b)(1) through (11) of this section. This 

revision would reinforce the 

Department’s proposal to add a sentence 

in § 653.107(a)(4) to specify that fulltime outreach means each individual 

outreach staff person must spend 100 

percent of their time performing the 

outreach responsibilities described in 

§ 653.107(b). Because this revision 

would remove the colon in the existing 

regulatory text, the Department 

proposed to make a conforming 

amendment to the beginning of the 

sentence in paragraph (b)(1) so that it 

begins by stating ‘‘outreach staff must’’ 

instead of ‘‘explaining.’’ 

The Department additionally 

proposed to make several revisions to 

§ 653.107(b)(7) to update the topics 

about which outreach staff must receive 

training. In particular, the Department 

proposed to replace the reference to 

outreach staff being trained in ‘‘local 

office’’ procedures with a requirement 

to train outreach staff in ‘‘one-stop 

center’’ procedures, which would align 

with the revised definition of ES office 

that the Department proposed at 

§ 651.10. The Department additionally 

proposed to require training on sexual 

coercion, assault, and human 

trafficking, in addition to the existing 

requirement to provide outreach staff 

training on sexual harassment (training 

on the former topics is suggested but not 

mandatory in the existing regulations). 

The Department also proposed to 

replace the existing requirement for 

SWAs to train outreach staff in the 

procedure for informal resolution of 

complaints with a requirement for 


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SWAs to train outreach staff on the 

Complaint System procedures at part 

658, subpart E, and to require that 

outreach staff be aware of the local, 

State, regional, and national 

enforcement agencies that would be 

appropriate to receive referrals. 

Finally, the Department proposed 

several non-substantive revisions in 

paragraph (b) to replace ‘‘outreach 

workers’’ with ‘‘outreach staff’’ and 

‘‘employment services’’ with ‘‘ES 

services.’’ 

The Department received several 

comments concerning the revisions it 

proposed to paragraph (b), which it 

describes and responds to below. 

Comments regarding the proposal to 

limit full-time outreach workers to the 

outreach responsibilities set forth in this 

paragraph are discussed above in 

connection with the proposed revision 

to § 653.107(a)(4). 

For the reasons discussed below, the 

Department has not made any changes 

to the revisions it proposed to this 

paragraph and adopts the revisions to 

§ 653.107(b) as proposed. In addition, 

although the Department did not 

propose to revise § 653.107(b)(6) in the 

NPRM, as discussed in the comment 

responses for § 658.419, the Department 

received comments requesting 

additional clarification to the proposed 

definition of apparent violation, which 

resulted in further revisions to that 

definition. As a result, the Department 

has identified that it is necessary to 

revise § 653.107(b)(6) to remove the 

reference to suspected violations and to 

clarify the procedure outreach staff must 

follow to document and refer apparent 

violations. Therefore, through this final 

rule, the Department revises 

§ 653.107(b)(6) to state that outreach 

staff must be alert to observe the 

working and living conditions of 

MSFWs and if an outreach staff member 

observes or receives information about 

apparent violations, the outreach staff 

member must document and refer the 

information to the appropriate ES Office 

Manager (as described in § 658.419 of 

this chapter). 

Comment: A farmworker advocacy 

organization commended the 

Department’s proposals that emphasize 

outreach work is a full-time job that 

deserves priority and should not be 

combined with other functions. This 

commenter went on to suggest that the 

Department add an additional role to 

outreach responsibilities: collect data to 

be used for prevailing wage surveys. In 

particular, this commenter 

recommended that the Department 

allow SWAs to leverage outreach staff to 

collect wage data while conducting 

outreach work. The commenter asserted 

that doing so would help the 

Department fulfill its duty to determine 

the prevailing wages for agricultural 

work and better protect farmworker 

wages by increasing the frequency of 

surveys, including worker input in the 

determination, and addressing instances 

of insufficient employer data. 

Response: The Department declines to 

adopt the commenter’s suggestion to 

add an additional role to outreach 

responsibilities for outreach staff to 

collect data to be used for prevailing 

wage surveys. The Department believes 

that outreach staff must focus their 

efforts on providing services to MSFWs. 

Prevailing wage surveys would cause 

outreach staff to devote time away from 

providing services to MSFWs. 

Comment: The Department received 

several comments concerning its 

proposal to revise the training 

requirements in § 653.107(b)(7). A 

farmworker advocacy organization 

endorsed the proposal to amend this 

paragraph to require that outreach staff 

receive training on additional topics 

(i.e., protecting MSFWs against sexual 

coercion, assault, and human 

trafficking, as well Complaint System 

procedures). To support the 

requirement, this commenter cited news 

coverage and research findings about 

human trafficking and asserted that, in 

order for the ES Complaint System to be 

effective, outreach workers will first 

need to make farmworkers aware of its 

existence. 

A State government agency similarly 

agreed that outreach staff should receive 

training on protecting MSFWs against 

sexual coercion, assault, and human 

trafficking, but it urged the Department 

to provide appropriate training rather 

than requiring States to find or develop 

appropriate trainings locally. This 

commenter felt the Department (not 

SWAs) should bear responsibility for 

providing this training, because the 

Department identified these topics as 

issues that are particularly relevant to 

H–2A workers, and the Department is 

tasked with administering the H–2A 

visa program. The commenter further 

reasoned that if the Department 

provides training on these topics, it 

could target the unique challenges 

facing outreach staff and provide States 

an opportunity to share lessons learned 

and best practices. 

Other commenters raised more 

general questions about when and by 

whom the training required by 

§ 653.107(b)(7) is to be provided. These 

commenters questioned what training 

MSFW outreach staff housed at one-stop 

centers would need regarding one-stop 

center procedures and how the training 

requirement could be met when the 

proposed rule emphasizes that MSFW 

outreach staff should be in the field 

during peak growing season to ensure 

MSFWs are protected while they work. 

In contrast, a State government agency 

asserted that outreach staff must be able 

to dedicate time to providing services to 

non-MSFWs so they can remain up to 

date on the latest services, best 

practices, employers, hiring events, etc. 

in their area. 

Response: The Department continues 

to believe that it is critical for outreach 

staff to receive training on protecting 

MSFWs against sexual coercion, assault, 

and human trafficking, as well as 

training in Complaint System 

procedures. In response to comments 

asking who will provide this training (as 

well as training on the other topics set 

forth in § 653.107(b)(7)), the Department 

notes that the existing regulation tasks 

the State Administrator with the 

responsibility to develop the training 

required by this regulation, pursuant to 

uniform guidelines developed by ETA. 

The Department did not propose any 

revisions to this requirement in 

§ 653.107(b)(7). The Department 

continues to believe the State 

Administrator is in the best position to 

develop these trainings, because 

conditions, resources, and relevant 

service providers are State-specific. 

While the Department often provides 

guidance on protecting MSFWs from 

employment-related abuses and the 

Department’s overall regulations for the 

Complaint System, each State is best 

positioned to train their outreach staff 

on the specific resources and 

procedures in their State. Specifically, 

the State Administrator can ensure staff 

receive training on the specific 

conditions affecting MSFWs in the State 

and the SWA’s own procedures, 

including Complaint System 

procedures. For example, each State has 

different State-level enforcement 

agencies about which staff should be 

informed to make appropriate referrals. 

Additionally, many States have antitrafficking taskforces that are specific to 

the State or to local areas. RMAs are 

available to provide technical assistance 

regarding these resources, including 

sharing contact information for potential 

training partners. 

In response to questions from 

commenters asking why outreach staff 

need to be trained on one-stop center 

procedures and when outreach staff 

would be available to receive such 

training if they are working in the field, 

the Department notes that § 653.107(b) 

requires outreach staff to spend a 

majority— but not all— of their time in 

the field. Outreach staff may use the 

time when they are not in the field to 


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attend training, provide follow-up 

services, or engage in any of the other 

activities described in § 653.107(b). 

Because outreach staff are tasked with 

providing ES services to the MSFWs 

they contact through their outreach 

work—either directly in the field or 

subsequently in a one-stop center—they 

must be trained on how to provide those 

services in both the field and at the onestop center. The Department disagrees 

that outreach staff must also serve nonMSFWs at the local one-stop in order to 

effectively serve MSFWs and receive 

this training. Outreach staff do not need 

to provide other services in the one-stop 

to receive this training and provide 

competent services to MSFWs. 

Section 653.107(d) 

Paragraph (d) of § 653.107 requires a 

SWA to develop an Agricultural 

Outreach Plan (AOP) to include in the 

Unified or Combined State Plan that its 

State submits pursuant to sec. 102 or 

103 of WIOA. The Department proposed 

to amend this paragraph to make several 

changes to the content that SWAs must 

include in their AOP. 

First, the Department proposed to 

revise § 653.107(d)(2)(ii) to require the 

AOP to explain the materials, tools, and 

resources that the SWA will use for 

outreach. 

Second, the Department proposed to 

revise § 653.107(d)(2)(iii) so that it 

would require a SWA to describe their 

proposed activities to contact MSFWs 

who are not being reached by the 

normal intake activities conducted by 

the one-stop centers and to include 

within this description: (1) the number 

of full-time and part-time outreach staff 

in the State; and (2) an explanation 

demonstrating that there is a sufficient 

number of outreach staff to contact a 

majority of MSFWs in all the State’s 

service areas annually. The Department 

proposed this change to align the 

information that SWAs provide in the 

AOP with the proposed requirement in 

§ 653.107(a)(4) for a SWA to employ an 

adequate number of outreach staff to 

conduct MSFW outreach in each area of 

the State to contact a majority of the 

MSFWs in all of the SWA’s service areas 

annually. As noted below, the 

Department has modified the proposed 

regulatory text for this provision to 

conform with the revisions that it made 

to the regulatory text in § 653.107(a)(4). 

Third, the Department proposed to 

revise § 653.107(d)(2)(v) to replace the 

requirement for a SWA in a State with 

significant MSFW one-stop centers to 

provide an assurance that it is 

complying with the requirements in 

§ 653.111 to instead require that SWAs 

in such States provide a description of 

how they how they intend to comply 

with the staffing requirements for 

MSFW one-stop centers in accordance 

with § 653.111. 

Fourth, the Department proposed to 

amend § 653.107(d)(4) to clarify that the 

AOP must be submitted in accordance 

with paragraph (d)(1) of this section 

instead of paragraph (d), as currently 

written. Paragraph (d)(1) is the accurate 

reference that explains the SWA’s 

responsibility to develop the AOP as a 

part of the Unified or Combined State 

Plan. 

Finally, the Department proposed two 

revisions at § 653.107(d)(5). First, the 

Department proposed a technical edit to 

change the reference from § 653.108(s) 

to § 653.108(u) due to restructuring 

paragraphs at § 653.108. Second, the 

Department proposed to replace ‘‘its 

goals’’ with ‘‘the objectives.’’ Referring 

to ‘‘the objectives’’ is more accurate 

because the Department does not ask 

SWAs to provide specific goals in the 

AOP, rather SWAs identify various 

objectives. 

The Department largely adopts the 

proposed changes with only minor 

revisions. Specifically, the Department 

modified the regulatory text it proposed 

for § 653.107(d)(2)(iii) to clarify the 

information that this provision requires 

States to include in the AOP and to 

align with the revisions that this final 

rule adopts at § 653.107(a)(4). The 

Department adopts all other proposed 

revisions to § 653.107(d) without 

change. 

Comment: A farmworker advocacy 

group supported the Department’s 

proposed changes to the content that 

SWAs must include in an Agricultural 

Outreach Plan, noting the revisions 

would require considerably greater 

detail about how the SWA intended to 

reach farmworkers who do not normally 

visit the SWA’s one-stop centers. 

Response: The Department 

appreciates the views that this 

commenter shared. As this commenter 

noted, the revisions adopted in this rule 

will require SWAs to provide more 

detail in their AOPs about the outreach 

they plan to conduct. They will also 

require SWAs to provide more detail 

about how they plan to comply with the 

staffing requirements for significant onestop centers in § 653.111. This level of 

detail is essential to aid SMAs, RMAs, 

and the NMA in assessing whether 

SWAs have the appropriate staffing 

structure to meet the unique needs of 

farmworkers. 

Section 653.108 State Workforce 

Agency and State Monitor Advocate 

Responsibilities 

Section 653.108 governs the 

monitoring obligations of the SWA and 

the SMA. The NPRM proposed 

numerous revisions to this section 

intended to strengthen the role of the 

SMA and enhance the monitoring 

activities that SMAs perform. The 

Department received a number of 

comments addressing these proposals. 

After careful consideration of the 

comments received, the Department has 

decided to adopt the revisions as 

originally proposed, except as noted in 

the discussions below. Paragraphs (k), 

(p), (r), (s), and (t) in this section are 

redesignated paragraphs because of 

revisions made elsewhere in this 

section. The Department did not 

propose any other changes to these 

paragraphs, and they are not discussed 

below. 

Section 653.108(a) State Workforce 

Agency Responsibilities for Service 

Delivery to Migrant and Seasonal 

Farmworkers 

Paragraph (a) of § 653.108 establishes 

the SWA’s responsibility to monitor the 

SWA’s own compliance with ES 

regulations in serving MSFWs. The 

Department proposed to revise this 

paragraph to explicitly prohibit the 

State Administrator or ES staff from 

retaliating against an SMA for 

performing the monitoring activities 

required by this section. 

Comment: A State government agency 

and a farmworker advocacy organization 

commended the Department for 

proposing to explicitly prohibit the 

SWA from retaliating against SMAs and 

their staff for monitoring activities or for 

raising concerns about noncompliance 

with ES regulations. 

Response: The Department 

appreciates the commenters’ feedback 

supporting the proposed change 

prohibiting retaliation. The Department 

adopts this change as proposed for the 

reasons set forth in the NPRM. 

Section 653.108(b) State Monitor 

Advocate Requirement and 

Qualifications 

Paragraph (b) of § 653.108 requires 

SWAs to appoint an SMA who must be 

a SWA official to monitor SWA 

compliance with ES regulations in 

serving MSFWs and sets forth 

qualifications for the SMA position. The 

Department proposed to revise this 

paragraph to remove the requirement 

that the SMA be a SWA official because 

the Department proposed to remove the 

definition of SWA official in § 651.10. 


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However, as described in the comment 

responses for § 651.10, the final rule 

will maintain the current definition of 

SWA official in existing § 651.10, and 

therefore, the Department will also 

maintain the requirement that the SMA 

be a SWA official in this paragraph. 

The Department also proposed to 

revise § 658.108 to require that SWAs 

not only seek but also put a strong 

emphasis on hiring qualified candidates 

for the SMA position who meet one or 

more of the criteria listed in paragraphs 

(b)(1) through (3). The Department 

adopts the change as proposed. 

Comment: A farmworker advocacy 

organization supported proposed 

changes to ensure that States prioritize 

hiring SMAs with experience in the 

farmworker community, inform 

farmworker organizations about 

vacancies in the SMA position, and 

encourage these organizations to refer 

qualified applicants. However, the 

commenter warned that States do not 

always honor their obligation to work 

with farmworker organizations when 

hiring for the SMA position. The 

commenter expressed hope that the 

proposed rule’s renewed emphasis on 

the importance of hiring SMAs with 

relevant experience and connections 

would alleviate this problem going 

forward. 

A State government agency disagreed 

with the proposal to establish additional 

hiring requirements for the SMA role, 

arguing that putting ‘‘a strong emphasis 

on hiring’’ qualified candidates who 

meet the criteria is not needed because 

SWAs already must ‘‘seek’’ such 

candidates. The commenter added that 

it uses detailed job descriptions, 

screening evaluations, and interviewing 

benchmarks to hire strong candidates. 

Response: The Department 

acknowledges that some SWAs already 

have practices in place to hire strong 

candidates for the SMA position, but 

some do not. The changes in this 

paragraph are intended to better ensure 

that SWAs not only seek qualified 

candidates by complying with the 

requirements to contact certain 

organizations about job openings, but 

also hire qualified candidates. The 

Department acknowledges that SWAs 

may not always be able to attract 

candidates who meet 100 percent of the 

criteria outlined in the regulations and 

therefore mandating that SWAs hire 

candidates meeting all of the criteria is 

not practicable. Instead, the Department 

determined that requiring that SWAs 

seek and place a strong emphasis on 

hiring SMAs meeting the criteria in the 

regulations gives SWAs the flexibility 

needed to fill SMA positions and also 

better ensures that SWAs hire qualified 

individuals to perform the critical 

duties of the SMA position. 

The proposed change to put a strong 

emphasis on hiring qualified candidates 

is important to increase the likelihood 

that all SWAs will hire SMAs who meet 

one or more of the criteria, and not 

simply seek such individuals. This 

proposed change will allow the 

Department to assess whether a SWA 

has policies and procedures in place to 

ensure it hires qualified candidates. In 

cases where a SWA has more than one 

applicant, the Department would expect 

SWAs to hire the applicant with the 

listed qualifications, over those that did 

not meet the qualifications. The 

Department adopts the change as 

proposed to better ensure SWAs hire 

qualified candidates for the SMA 

position. 

Section 653.108(c) State Monitor 

Advocate Status 

Paragraph (c) of § 653.108(c) 

establishes the status of the SMA within 

the SWA. The Department proposed 

several revisions to this paragraph to 

strengthen the status of the SMA, as 

many SMAs have reported difficulty in 

their ability to fully carry out their 

duties due to insufficient status within 

the SWA. Specifically, the Department 

proposed at § 653.108(c) to create new 

paragraphs (c)(1) through (3). First, 

proposed paragraph (c)(1) required that 

the SMA be a senior-level ES staff 

employee. Second, proposed paragraph 

(c)(2) required the SMA to report 

directly to the State Administrator or 

their designee such as a director or other 

appropriately titled official in the State 

Administrator’s office who has the 

authority to act on behalf of the State 

Administrator. Third, proposed 

paragraph (c)(3) required that the SMA 

have the knowledge, skills, and abilities 

necessary to fulfill the responsibilities 

as described in this subpart. The 

Department adopts the changes as 

proposed. 

Comment: Several State government 

agencies, both those in support of and 

opposed to the requirements in this 

paragraph, noted that the requirements 

will require restructuring or 

reclassifying the SMA position. 

A farmworker advocacy organization 

agreed with the proposed requirement 

that SMAs must be senior-level officials 

within the SWA. A private citizen also 

supported requiring the SMA to be a 

senior-level ES staff employee who 

reports to the State Administrator, 

remarking that the SMA currently does 

not have sufficient status within the 

SWA and reports to a lower level 

supervisor without decision-making 

authority, which they said causes delays 

or denials of requests by the SMA and 

even the disregarding of corrective 

actions. Similarly, some State 

government agencies and anonymous 

commenters agreed with proposed 

changes that would enable SMAs to 

conduct their role more effectively, such 

as strengthening their status and giving 

them more autonomy, but asked the 

Department to provide SWAs with more 

guidance on the revised role (e.g., better 

define ‘‘senior-level’’ and ‘‘their 

designee’’). One of the anonymous 

commenters recommended the 

Department communicate the changes 

in the SMA’s status directly to SWAs, 

such as through a webinar, rather than 

having them learn it from their SMAs. 

The other anonymous commenter also 

urged the Department to ensure that 

when the State Administrator uses a 

designee, the SMA still has direct, 

personal access to the State 

Administrator and the designee is 

knowledgeable and experienced in the 

ES and Monitor Advocate System to 

better assist the SMA and make 

decisions on behalf of the SWA. 

A State government agency remarked 

that not allowing the State 

Administrator’s designee to be the 

individual who has direct program 

oversight of the ES is practical because 

it ensures compliance standards are met 

without biases. However, the 

commenter asked the Department to 

clarify how it defines ‘‘direct program 

oversight,’’ to ensure that the SMA is 

reporting to the correct administrator. 

A State government agency opposed 

the proposed requirement that the SMA 

be a senior-level position reporting 

directly to the State Administrator, 

arguing that its approved part-time SMA 

ensures SWA adherence to all 

requirements, has access to the State 

Administrator through the chain of 

command, and would not have any 

greater efficacy in oversight at a 

different level. Another State 

government agency similarly opposed a 

requirement for the SMA to be 

positioned at the senior staff level and 

expressed its preference to retain 

flexibility on where the SMA is placed 

within the agency, arguing it has 

demonstrated that its SMA can 

effectively perform their role from their 

current placement within the agency. 

This State agency additionally asserted 

that changing the SMA’s current 

placement within the agency would 

likely require reclassification of the 

position and necessitate a strategic 

recruitment process to identify a 

candidate with the requisite skills and 

experience at a senior level. Noting 

these processes require time, this State 

agency asked the Department to enlarge 


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the proposed deadline to comply with 

this requirement if the Department 

decided to adopt it, and provide States 

2 years from the effective date of any 

final rule to come into compliance with 

the requirement. Another State 

government agency commented that the 

proposed change would require 

reorganization of the State’s MSFW 

program office in order to elevate the 

SMA position to report directly to the 

State Administrator and to comply with 

other changes proposed in paragraph 

(d). This agency stated the proposed 

changes could adversely impact the 

level of funding that the agency 

provides to local ES offices to support 

MSFW activities. 

Some commenters remarked that the 

proposed changes appear to be a 

duplicative effort by aligning the status 

of the SMA and the E.O. Officer. In 

contrast, a State government agency said 

there are direct correlations between the 

SMA and the E.O. Officer and reasoned 

that improved alignment and 

partnership of the two positions would 

better address the statewide need. 

Referencing the Department’s 

statement that the proposed change 

would require the SMA to be ‘‘not only 

a State employee, but a State merit-staff 

employee,’’ a State government agency 

asked the Department to clarify or 

define the terms ‘‘State employee’’ and 

‘‘State merit-system employee.’’ 

Response: While many commenters, 

including some SWAs, SMAs, and 

advocacy organizations, supported a 

requirement to enhance the status of the 

SMA, the Department recognizes that 

some SWAs did not. The Department 

believes these changes are critical to 

ensure that SMAs can more effectively 

carry out their duties; having ‘‘direct 

access’’ to the State Administrator ‘‘as 

needed’’ as previously required was not 

enough. The Department recognizes that 

SWAs will need a reasonable amount of 

time to implement these changes. The 

Department requested comment on the 

appropriate length of time to come into 

compliance. States requested a range of 

2 years to 3 years. The Department is 

providing 24 months from the effective 

date of this final rule for SWAs to 

implement these changes. This is the 

same amount of time SWAs will have to 

comply with the State merit-staffing 

requirements in this final rule. Having 

one transition period enables SWAs to 

take the necessary steps to implement 

all of the changes required under this 

final rule at one time. These steps 

include, among others, obtaining any 

required State authorization, addressing 

collective bargaining issues and 

contracts, and conducting recruiting and 

training. During the transition period, 

the Department will provide technical 

assistance and guidance to help SWAs 

comply with the new requirements. The 

Department has detailed the cost burden 

associated with this final rule in section 

VI. Wagner-Peyser Employment Service 

grant funding is provided annually to 

deliver employment services, and such 

grant funding is available to cover the 

cost of implementing this final rule. 

The Department noted in the NPRM 

that many SMAs have reported 

difficulty in their ability to carry out 

their duties due to insufficient status 

within the SWA. The proposed changes 

strengthen the status of SMA. SMAs are 

charged with ensuring compliance with 

ES regulations put in place to ensure 

that MSFWs have meaningful access to 

services and equal opportunities. To 

enhance the SMA’s ability to effectively 

carry out their role, SMAs need to hold 

a senior-level position that will grant 

them more direct access to top 

management. A senior-level position is 

one having a title and resources 

commensurate with the level of 

responsibility for a senior official who 

reports directly to the State 

Administrator or the State 

Administrator’s designee having the 

authority to make decisions on behalf of 

the State Administrator. 

Allowing the State Administrator to 

select a designee to whom the SMA 

reports gives States flexibility in how to 

implement this requirement. If a State 

Administrator chooses to have the SMA 

report directly to a designee, the 

designee must be a position within the 

State Administrator’s office with 

authority to act on behalf of the State 

Administrator. However, the designee 

may not be the individual with direct 

oversight of the ES, such as the ES 

director. This restriction is necessary to 

avoid challenges that may result from 

having the SMA monitor compliance 

with decisions made by their direct 

supervisor or for which their direct 

supervisor may be responsible. 

The Department notes that 

§ 653.108(e) provides States with the 

ability to have part-time SMAs with 

prior approval from the Regional 

Administrator (RA). The Department 

believes the requirements under 

paragraph (c) are compatible with the 

part-time SMA staffing provision in 

paragraph (e). 

The NPRM referenced the E.O. Officer 

simply as a comparable position to an 

SMA, having a similar level of 

responsibility and complexity, that is 

required to be a senior-level position 

within a State. The Department did not 

propose, nor do these final regulations 

require, any changes to the SMA 

position that either duplicate the work 

of the E.O. Officer or require the SMA 

to have the exact same position or level 

as the E.O. Officer. SMAs are 

responsible for monitoring SWA and ES 

office compliance with ES regulations in 

serving MSFWs. The change in this final 

rule requires the SMA to report to the 

State Administrator (or designee). E.O. 

Officers perform a different function in 

the State. 

The Department notes that ‘‘State 

employee’’ means an individual 

employed by the State. ‘‘State merit 

staff’’ means State government 

personnel who are employed according 

to the merit system principles described 

in 5 CFR part 900, subpart F (Standards 

for a Merit System of Personnel 

Administration). Requiring the SMA to 

be State merit staff, not just a State 

employee, conforms with the meritstaffing requirement in § 652.215. 

The Department adopts the changes as 

proposed to ensure SMAs have the 

status and authority to monitor SWA 

compliance with ES regulations. 

Section 653.108(d) State Monitor 

Advocate Staff Responsibilities 

Paragraph (d) of § 653.108 describes 

requirements for staff and other 

resources to support the SMA in 

carrying out monitoring functions. The 

Department proposed to revise 

§ 653.108(d) to require that the SMA 

have sufficient authority, staff, 

resources, and access to top 

management to monitor compliance 

with the ES regulations. In addition, the 

Department proposed to prohibit SMA 

staff from performing outreach 

responsibilities, ARS processing, and 

complaint processing to conform with 

proposed changes to the SMA’s role in 

these activities. 

Comment: A farmworker advocacy 

organization remarked that the proposed 

revisions ensure SMAs have the 

authority, tools, and resources they need 

to monitor SWA compliance with ES 

regulations. A few State government 

agencies noted the proposed 

requirements in paragraphs (c) and (d) 

together could require restructuring 

their SMA office (e.g., creating a seniorlevel staff position and hiring additional 

analyst staff) and relocating it for direct 

access to the State Administrator or 

their designee. One of those State 

government agencies requested a 

transition period of 3 years to comply 

with the requirements. A different State 

government agency supported the 

proposed requirement, saying it would 

amplify the SMA’s monitoring 

capabilities and allow the SMA to 

maintain program standards. However, 

referencing the Department’s statement 

that ES staff assigned to help the SMA 


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carry out its duties may not be assigned 

conflicting roles, the commenter asked 

the Department to clarify the functions 

and responsibilities that ES staff would 

be assigned under the SMA, which it 

said would provide it guidance to 

determine if any conflict exists. 

A State government agency requested 

that the Department require 

coordination between the SMA and 

SWA officials responsible for 

monitoring to help ensure efficient and 

non-duplicative efforts given the 

requirement that the SWA also conduct 

monitoring. 

A farmworker advocacy organization 

agreed with the proposed requirement 

that SMAs must not serve jointly as 

outreach staff, reasoning that 

prohibiting the SMA from serving parttime in an outreach role would 

eliminate conflict of interest concerns 

that arise from the SMA’s responsibility 

for monitoring outreach efforts. Citing 

an article about an investigation of 

human trafficking by an SMA’s relative, 

the commenter urged the Department to 

go further to address other significant 

conflicts of interest that can arise with 

SMAs, such as by adopting conflict of 

interest standards for SMAs to ensure 

that they are not involved in approving 

clearance orders or handling complaints 

related to family members or close 

associates. 

Response: The Department recognizes 

that SWAs will need a reasonable 

amount of time to implement these 

changes. The Department will provide 

24 months from the effective date of this 

final rule for SWAs to implement these 

changes. This is the same amount of 

time SWAs will have to comply with 

the State merit-staffing requirements in 

this final rule. Having one transition 

period enables SWAs to take the 

necessary steps to implement all of the 

changes required under this final rule at 

one time. These steps include, among 

others, obtaining any required State 

authorization, addressing collective 

bargaining issues and contracts, and 

conducting recruiting and training. 

During the transition period, the 

Department will provide technical 

assistance and guidance to help SWAs 

comply with the new requirements. 

In the NPRM, the Department 

proposed changes to prohibit the SMA’s 

staff from being assigned conflicting 

roles to perform any outreach 

responsibilities, ARS processing, or 

complaint processing. The Department 

proposed regulatory text to prohibit 

SMA staff from performing work that 

conflicts with the ‘‘monitoring’’ duties 

of the SMA. The final regulatory text 

does not include the word ‘‘monitoring’’ 

before duties to make clear that SMA 

staff must not perform any work that 

conflicts with any of the SMA’s duties, 

not just the SMA’s monitoring duties. 

The Department notes the 

recommendation to go further to address 

other significant conflicts of interest that 

can arise with SMAs, such as by 

adopting conflict of interest standards 

for SMAs in this final rule. The 

Department is adding in paragraph (e) 

regulatory text to explicitly prohibit the 

SMA from performing any work that 

conflicts with any of the SMA’s duties 

in § 653.108. The Department will 

further address conflicts of interest and 

internal controls in technical assistance 

and guidance. 

Section 653.108(e) State Monitor 

Advocate Full-Time Staffing 

Requirement and Prohibited Duties 

Paragraph (e) of § 653.108 is a new 

paragraph that was proposed, specifying 

that no State may dedicate less than 

full-time staffing for the SMA position 

unless the RA, with input from the 

RMA, provides written approval. The 

Department is also making one change 

in this section that was not proposed in 

the NPRM to explicitly state that the 

SMA must not perform work that 

conflicts with any of the SMA’s duties, 

such as outreach, ARS processing, and 

complaint processing. 

Comment: Citing reports of issues 

such as discrimination arising when 

SMAs split their time between 

monitoring activities and other duties, a 

farmworker advocacy organization 

agreed with the proposed requirement 

that SMAs must serve in the role fulltime. 

Response: The Department 

acknowledges the commenter’s support 

for a full-time SMA staffing 

requirement. The Department sought to 

strengthen the regulation permitting 

part-time SMA staffing (previously 

described in § 653.108(d)) by (1) 

including the RMA in the RA’s process 

for determining whether a State has 

demonstrated that the SMA function 

can be effectively performed with parttime staffing; and (2) requiring express 

written approval by the RA. After 

consideration of comments regarding 

SMA conflicts, the Department is also 

revising this paragraph to explicitly 

state that the SMA must not perform 

any work that conflicts with any of the 

SMA’s duties described in § 653.108. 

This change was not proposed in the 

NPRM, but the Department did propose 

and has adopted in the definition of 

‘‘outreach staff’’ in § 651.10, regulatory 

text explaining that SMAs are not 

considered outreach staff. In part 658, 

the Department proposed and adopted 

regulatory text prohibiting the SMA 

from participating in the complaint 

process. And in paragraph (d) of this 

section, the Department proposed an 

explicit prohibition on the SMA’s staff 

from performing any work that conflicts 

with the SMA’s duties, such as 

outreach, ARS processing, and 

complaint processing. It follows that the 

SMA must not perform work that 

conflicts with the SMA’s duties either. 

Therefore, the Department is expressly 

prohibiting the SMA from performing 

any work that conflicts with the SMA’s 

duties described in this section. 

Section 653.108(f) State Monitor 

Advocate Training 

Redesignated paragraph (f) of 

§ 653.108 sets forth required trainings 

for SMAs and SMA staff to maintain 

competency. The Department proposed 

to remove the requirement that SMAs 

attend a training by the RMA within the 

first 3 months of the SMA’s tenure. 

Instead, the Department proposed to 

require all SMAs and their staff to 

attend trainings offered by the RMA, the 

NMA, and their team, as well as those 

trainings necessary to maintain 

competency and enhance the SMA’s 

understanding of the unique needs of 

farmworkers. This includes trainings 

offered by an enumerated list of Federal 

agencies as well as trainings offering 

farmworker-related information. 

Comment: Numerous commenters, 

including several labor unions, a couple 

of think tanks, and an advocacy 

organization, commended the 

Department for its commitment to 

improving the effectiveness of SMAs 

and ensuring that their staff receive the 

training necessary to provide MSFWs 

adequate services. A farmworker 

advocacy organization agreed it is 

important that SWA staff receive proper 

training on key tasks like assessing 

agricultural jobs and connecting 

workers with necessary services. 

Response: The Department 

appreciates the comments provided in 

these areas supporting the proposed 

changes. After further consideration, the 

Department identified a need to clarify 

which staff may require SMAs to attend 

training. The Department has decided to 

remove the proposed reference to NMA 

team members and instead refer to NMA 

staff, as identified in § 658.602(h). The 

Department adopts the proposed 

revisions, with the exception of 

updating the reference to NMA staff, for 

the reasons outlined in the NPRM. 


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10NMA Annual Report for PY 2020, available at: 

https://www.dol.gov/agencies/eta/agriculture/ 

monitor-advocate-system/performance. 

11NMA Annual Report for PY 2019, available at: 

https://www.dol.gov/agencies/eta/agriculture/ 

monitor-advocate-system/performance. 

12See performance data available at https:// 

www.dol.gov/agencies/eta/agriculture/monitoradvocate-system/performance. 

Section 653.108(h) State Monitor 

Advocate Review of State Workforce 

Agencies and Employment Service 

Offices 

Paragraph (h) of § 653.108 outlines 

elements of the SMA’s review of SWA 

and ES office service delivery to 

MSFWs. These requirements were 

previously described in § 653.108(g). 

The Department proposed in 

§ 653.108(h)(1)) to specify important 

elements of the ongoing review that the 

SMA must conduct under this 

paragraph. In particular, new proposed 

paragraphs (h)(1)(i) through (iii) would 

require the SMA to conduct an ongoing 

review of the delivery of services and 

protections afforded by the ES 

regulations to MSFWs by the SWA and 

ES offices, including: (i) monitoring 

compliance with § 653.111; (ii) 

monitoring the ES services that the 

SWA and one-stop centers provide to 

MSFWs to assess whether they are 

qualitatively equivalent and 

quantitatively proportionate to the 

services the SWA and one-stop centers 

provide to non-MSFWs; and (iii) 

reviewing the appropriateness of 

informal resolution of complaints and 

apparent violations as documented in 

the complaint logs. The Department 

proposed in § 653.108(h)(3) and to 

clarify that SMAs must conduct onsite 

reviews of one-stop centers regardless of 

whether the one-stop center is 

designated as a significant MSFW onestop center. Proposed § 653.108(h)(6) 

maintained an existing requirement for 

SMAs to review outreach workers’ daily 

logs and other reports, including those 

showing or reflecting the workers’ 

activities, but proposed that this review 

be done on a ‘‘regular’’ rather than a 

‘‘random’’ basis. The Department adopts 

the changes as proposed. 

Comment: Some commenters 

disagreed with the proposed 

requirement that SMAs must conduct 

onsite reviews of one-stop centers 

regardless of whether the one-stop 

center is designated as a significant 

MSFW one-stop center, arguing that this 

is an overreach, that it is duplicative of 

existing monitoring reviews, and that 

monitoring of one-stop centers can be 

accomplished without dismantling the 

current Michigan model. Quoting the 

Secretary describing the IndustryRecognized Apprenticeship Program as 

‘‘a disconnected, duplicative program 

that does nothing but create confusion,’’ 

the commenters asserted the same could 

be said of the proposed requirement, 

which they warned would slow 

customer service response time, 

increase all workforce system costs, and 

reduce flexibility in meeting the needs 

of local communities. In contrast, a 

farmworker advocacy organization 

supported the proposed requirement but 

cautioned that SMAs will need adequate 

resources to effectively implement this 

change. A few State government 

agencies also stated that the proposed 

revision will require an increase in 

staffing resources. 

A State government agency opposed 

the proposed requirement that SMAs 

must monitor whether the ES services 

provided to MSFWs are qualitatively 

equivalent and quantitatively 

proportionate to the services provided 

to non-MSFWs. The commenter argued 

that State performance indicators 

already serve this purpose and are 

gathered to determine whether services 

are quantitatively proportionate. The 

commenter stated that States would 

need additional guidance from the 

Department on how the SMA should 

determine whether services are 

qualitatively equivalent to ensure all 

States follow the same standards for 

such monitoring. 

Referencing the Department’s 

proposed clarification that SMAs must 

review outreach workers’ daily logs and 

other reports, including those showing 

or reflecting the workers’ activities, on 

a ‘‘regular’’ rather than ‘‘random’’ basis, 

a State government agency agreed with 

the proposal, which they said could 

help identify potential errors or 

irregular reporting in daily outreach logs 

and monthly manager reports as well as 

prevent significant MSFW one-stop 

offices from receiving a finding during 

annual reviews. 

Response: The Department adopts the 

changes as proposed. 

The monitoring requirements in 

redesignated paragraphs (h)(1)(i) and 

(iii) are derived from requirements that 

previously existed at § 653.108(g)(1). 

The minor revisions to these 

requirements are intended only to 

clarify existing requirements. 

Specifically, paragraph (h)(1)(i) requires 

an SMA’s ongoing review to include 

monitoring compliance with § 653.111 

to highlight the importance of staffing 

significant MSFW one-stop centers 

appropriately to meet the unique needs 

of farmworkers. This change is 

necessary to help ensure significant 

MSFW States meet the minimum 

service level indicators, some of which 

measure qualitative outcomes like 

median earnings in unsubsidized 

employment and individuals placed in 

long-term non-agricultural jobs. 

All States are required to meet equity 

indicators that address provision of ES 

services, including individuals referred 

to a job, receiving job development, and 

referred to supportive or career 

development. To meet the equity 

performance standards, the percentage 

of services provided to MSFWs must be 

equal to or greater than the percentage 

of services offered to non-MSFWs. 

Significant MSFW States must also meet 

minimum levels of service, which must 

include, at a minimum, individuals 

placed in a job, individuals placed longterm (150 days or more) in a nonagricultural job, a review of significant 

MSFW ES offices, field checks 

conducted, outreach contacts per 

quarter, and processing of complaints. 

As mentioned in the PY 2020 NMA 

Annual Report, data SWAs submit 

through Form ETA–5148 show that the 

majority of SWAs are not meeting 

several equity ratio indicators.10 The 

data shows that most SWAs are 

providing MSFWs with equitable access 

to basic career services but are not 

providing MSFWs equitable access to 

higher-level staff assisted services. This 

condition is particularly concerning 

because it may impact the ability of 

MSFWs to access training and 

employment opportunities necessary to 

attain and maintain gainful and secure 

employment. Additionally, between PY 

2015 and PY 2019, equity levels trended 

down in four equity ratio indicators 

(referred to jobs, received staff assisted 

services, referred to support service, and 

job development contact).11 Most 

notably, there was a 7-percentage-point 

decrease in States that referred MSFWs 

to jobs on a quantitatively proportionate 

basis in PY 2019 compared to PY 2015. 

The COVID–19 pandemic likely had 

some impact on the outcomes in PY 

2019 but because equity trended down 

for the last 5 years preceding the 

pandemic, the pandemic cannot be the 

only cause. 

SWA performance reports also show 

that significant MSFW States performed 

considerably below required levels for 

five of the seven Minimum Service 

Level Indicators in PY 2019 and PY 

2020.12 Between PY 2015 and PY 2019, 

performance decreased in six of the 

seven indicators. While minimum 

service level indicators improved in PY 

2020, all Significant MSFW States still 

did not meet each indicator. The most 

significant decrease in PY 2019 was in 

reviews of Significant MSFW ES 

Offices. The Department is particularly 

concerned that the majority of 


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13United States Department of Labor, 

Employment and Training Administration Core 

Monitoring Guide (Aug. 2018), available at: https:// 

www.dol.gov/sites/dolgov/files/ETA/grants/pdfs/

2%20CMG%20CoreMonitoringGuide_FINAL_

20180816(R).pdf. 

Significant MSFW States and all States 

have not been meeting the indicator for 

reviews of Significant MSFW Offices. If 

properly completed, SMA onsite 

reviews should identify the same 

downward trends that the Department 

identified and should result in 

corrective action plans to resolve 

findings of noncompliance. The low 

rates of Significant MSFW Office 

reviews completed, therefore, may 

directly relate to the low rates of 

compliance with equity ratio indicators 

and minimum service levels. In 

§ 653.108(h)(1)(ii), the Department 

clarifies that SMAs are required to 

monitor whether the ES services 

provided to MSFWs are qualitatively 

equivalent and quantitatively 

proportionate to the services provided 

to non-MSFWs. 

Additionally, as described at 

§ 653.108(h)(3)(ii), the SMA must ensure 

that the onsite review format, developed 

by ETA, is used as a guideline for onsite 

reviews. The Department’s Core 

Monitoring Guide provides the 

Department’s onsite review format and 

includes guidance on how the SMA may 

monitor the quality of the program and 

services.13 The existing regulations 

explain that in addition to ensuring all 

significant MSFW one-stop centers are 

reviewed at least once per year by a 

SWA official, the SMA must ensure ES 

offices in which significant problems 

are revealed by required reports, 

management information, the Complaint 

System, or other means are reviewed as 

soon as possible. The existing 

regulations therefore prescribe that 

SMAs must review one-stop centers that 

are not designated as significant MSFW 

one-stop centers, as appropriate. 

Revised § 653.108(h)(3) is important to 

strengthen the SMA’s monitoring 

requirements because it will clearly 

state that the SMA must participate in 

onsite reviews of one-stop centers on a 

regular basis (regardless of whether or 

not they are designated significant 

MSFW one-stop centers). 

To specifically address the comment 

that opposed the proposed requirement 

that SMAs must monitor whether the ES 

services provided to MSFWs are 

qualitatively equivalent and 

quantitatively proportionate to the 

services provided to non-MSFWs and 

that State performance indicators 

already serve the purpose of monitoring 

ES services, the Department believes the 

SMA’s monitoring is necessary in 

addition to the monitoring that the 

Department conducts. The SMA’s 

ongoing and onsite reviews are 

necessary to ensure compliance issues 

are resolved in a more timely manner 

than the quarterly basis on which States 

report Equity Ratio Indicators and 

Minimum Service Level Indicators to 

ETA. This more timely review helps 

ensure MSFWs receive equitable 

services when the MSFWs are still 

available to benefit from the services 

before they may become unavailable 

due to the transient nature of their work. 

The Department agrees with the 

comment that requiring the SMA to 

review outreach logs on a regular basis 

could help identify potential errors or 

irregular reporting in daily outreach logs 

and monthly manager reports as well as 

prevent significant MSFW one-stop 

offices from receiving a finding during 

annual reviews. 

The Department adopts the changes as 

proposed and will provide technical 

assistance and guidance to help SWAs 

comply with the requirements. 

Section 653.108(i) SMA Participation 

in Federal Reviews 

In redesignated paragraph (i), the 

Department proposed to add ‘‘as 

requested by the Regional or National 

Monitor Advocate,’’ after ‘‘The SMA 

must participate in Federal reviews 

conducted pursuant to part 658, subpart 

G, of this chapter.’’ The Department did 

not receive any comments on this 

change and adopts the change as 

proposed for the reasons set forth in the 

NPRM. 

Section 653.108(j) State Monitor 

Advocate Role in Complaint System 

Paragraph (j) of § 653.108 outlines the 

role of the SMA in the Complaint 

System. The SMA’s role in the 

Complaint System was previously 

described in § 653.108(i). In paragraph 

(j), the Department proposed to require 

that the SMA perform solely a 

monitoring role in the Complaint 

System, consistent with changes made 

in part 658 of this final rule. The 

changes removed the ability of the State 

Administrator to assign the SMA 

responsibility as the Complaint Service 

Representative and the requirement that 

the SMA participate in the Complaint 

System as described under part 658. The 

Department made parallel revisions in 

§ 658.410(h). Some commenters, 

including a farmworker advocacy 

organization and a State government 

agency, opposed the change. In part, 

these commenters stated that the SMA 

should still have a participant role in 

the Complaint System due to the SMA’s 

expertise with MSFWs. Some State 

government agencies supported the 

change, stating the change will help 

ensure that the SMA is objective and not 

biased. For full discussion of the 

prohibition on the SMA’s acting as the 

Complaint System Representative and 

participation in the Complaint System, 

see the discussion for § 658.410(h). The 

Department adopts the change in 

paragraph (j) as proposed to more 

clearly delineate the SMA’s role in 

monitoring the Complaint System and 

to avoid conflicts of interest in the SMA 

role by ensuring separation of duties 

between SMAs and other ES staff roles. 

Sections 653.108(l), 653.108(m), and 

653.108(n) State Monitor Advocate 

Liaison Requirements 

Paragraphs (l), (m), and (n) of 

§ 653.108 establish SMA liaison 

requirements. Proposed paragraph (l) 

sets forth requirements that previously 

existed at § 653.108(k) requiring the 

SMA to liaise with WIOA section 167 

NFJP grantees and other organizations 

serving farmworkers, employers, and 

employer organizations in the State. In 

§ 653.108(m), the Department proposed 

to require that the SMA establish an 

ongoing liaison with the State-level E.O. 

Officer. In § 653.108(n), the Department 

proposed a conforming revision to the 

cross-references so that the 

representatives with whom the SMA 

must meet reflect the organizations 

described in paragraph (l) and the Statelevel E.O. Officer referenced in 

paragraph (m). 

Comment: A farmworker advocacy 

organization supported the proposed 

requirements that SMAs regularly 

engage with representatives of NFJP 

grantees, the State Equal Employment 

Officer, and other organizations serving 

farmworkers, employers, and employer 

organizations in the State. The 

commenter recommended that this 

engagement should include working 

with unions, worker organizations, legal 

service providers, and farmworker 

attorneys in the State because these are 

often some of the first groups to hear 

complaints from workers. A State 

government agency agreed with the new 

requirement that the SMA must 

establish an ongoing liaison with the 

State-level E.O. Officer, reasoning that it 

would present States with the 

opportunity to enhance collaboration 

between SMAs and E.O. Officers. 

Response: The Department 

appreciates the comments in support of 

the proposed revisions. The Department 

will continue to address in guidance or 

technical assistance which 

organizations are important for SMA 

liaison for purposes of paragraph (l). 

The Department adopts the changes as 


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proposed, for the reasons set forth in the 

NPRM. 

Section 653.108(o) State Monitor 

Advocate Field Visits 

Paragraph (o) of § 653.108 describes 

requirements for field visits conducted 

by the SMA. These requirements were 

previously described in § 653.108(m). 

The Department proposed that during 

field visits, the SMA must discuss the 

SWA’s provision of ES services and 

obtain input on the adequacy of those 

services from MSFWs, crew leaders, and 

employers, rather than providing direct 

employment services and access to 

other employment-related programs. 

The Department adopts the proposed 

change. 

Comment: A State government agency 

requested the Department clarify that 

SMAs do not conduct field visits, which 

it said have a specific purpose in 

regulation, but rather monitor the 

adequacy of information and services 

provided to MSFWs by ES staff during 

field visits. The commenter argued that 

this clarity is important because treating 

SMA activity as a field visit is imprecise 

and detracts from its monitoring 

purpose. 

Another State government agency 

opposed the proposal that during field 

visits SMA must discuss the SWA’s 

provision of ES services and obtain 

input on the adequacy of those services 

from MSFWs, crew leaders, and 

employers, asserting that this would not 

be a useful way to gauge how well the 

State is providing ES services to MSFWs 

because few MSFWs reach out for 

services and even fewer receive them. 

The commenter suggested that this 

purpose would be better served by 

asking MSFWs, crew leaders, and 

employers if they learned about ES 

services, worker rights, employment 

rights, and employer/contractor 

responsibilities and if they were able to 

reach out and felt comfortable reaching 

out to outreach workers or visiting an 

ES office to seek assistance. 

Response: Consistent with the 

definition of field visits, SMAs do 

conduct field visits, but they differ from 

field visits conducted by outreach staff. 

During SMA field visits, SMAs do not 

conduct the outreach activities outlined 

in § 653.107. Instead, as this paragraph 

requires and consistent with the SMA’s 

monitoring role, SMAs must discuss the 

SWA’s provision of ES services and 

employment-related activities with 

MSFWs, crew leaders, and employers. 

SMAs are still expected to discuss 

farmworker protection and rights when 

conducting field visits. 

The Department agrees that it is 

relevant and permissible for SMAs to 

ask MSFWs, crew leaders, and 

employers if they learned about ES 

services, worker rights, employment 

rights, and employer/contractor 

responsibilities and if they were able to 

reach out and felt comfortable reaching 

out to outreach workers or visiting an 

ES office to seek assistance during the 

SMA’s field visits. Asking these 

questions is one way the SMA may 

discuss the SWA’s provision of ES 

services and obtain input on the 

adequacy of those services from 

MSFWs, crew leaders, and employers. 

The commenter’s statement that few 

MSFWs reach out for services and even 

fewer receive them demonstrates that 

SWAs may not be conducting adequate 

outreach or making services available to 

MSFWs, taking into consideration their 

particular needs. For this reason, it is 

particularly important that SMAs 

conduct field visits to identify adequacy 

of services and to receive input on how 

to improve services, which informs the 

SMA’s monitoring, reporting, and 

technical assistance. The Department 

adopts these changes as proposed, to 

clarify the role of the SMA and the 

purpose of field visits. 

Section 653.108(u) State Monitor 

Advocate Annual Summary 

Paragraph (u) of § 653.108 outlines 

requirements for the SMA to prepare an 

Annual Summary describing how the 

State provided ES services to MSFWs 

within the State based on statistical 

data, reviews, and other activities. 

These requirements were previously 

described in § 653.108(s). Subordinate 

paragraphs (u)(1) through (11) identify 

the various required components of the 

Annual Summary. In § 653.108(u)(5), 

the Department proposed to specify that 

when the SMA summarizes the outreach 

efforts undertaken by all significant and 

non-significant MSFW ES offices in the 

State, the SMA must include the results 

of those efforts and analyze whether the 

outreach levels and results were 

adequate. Aside from a technical edit, 

the Department adopts the proposed 

change for the reasons discussed below. 

The Department did not receive 

substantive comments on other 

revisions proposed in paragraph (u) and 

adopts those changes for the reasons set 

forth in the NPRM. 

Comment: A Colorado State 

government agency and other 

commenters expressed concern about 

the proposed rule’s inclusion of nonsignificant MSFW offices in the 

requirement that an SMA submit an 

Annual Summary report to the 

Department describing its provision of 

services to MSFWs. Explaining that 

Colorado’s few significant MSFW offices 

are so designated based on the presence 

of hand labor crops in their geographic 

area rather than having a high 

proportion of MSFWs served, the 

commenters asserted that the proposed 

requirement implies the need to divert 

ES staff from assisting job seekers, UI 

claimants, and businesses to focusing on 

MSFW outreach in offices with very 

small numbers of MSFWs. 

A State government agency disagreed 

with the proposed requirement that 

when the SMA summarizes the outreach 

efforts undertaken by all significant and 

nonsignificant MSFW ES offices in the 

State, the SMA must include the results 

of those efforts and analyze whether the 

outreach levels and results were 

adequate. The commenter’s objections 

were that outreach activities already 

have required reporting and—unless the 

Department clearly defines in the 

regulations what States must do to meet 

adequate outreach levels and results 

outside of the performance measure— 

SMAs would have to make their own 

subjective determinations about what is 

adequate. 

Response: Regarding the concerns 

about the proposed rule’s inclusion of 

non-significant MSFW offices in the 

SMA’s Annual Summary report 

requirement, the Department 

acknowledges that there may be less 

MSFW activity in service areas for ES 

offices that are not designated as 

significant MSFW one-stop centers. The 

Department notes that the SMA was 

already required to include information 

about outreach levels in both significant 

and non-significant MSFW ES offices. It 

is not the Department’s intent to 

encourage nor does the Department 

require that non-significant MSFW 

offices unnecessarily divert local office 

resources to MSFW outreach where 

there is no need to do so. However, the 

SMA is required to review the SWA’s 

overall provision of services to MSFWs 

throughout the entire State. Doing so 

allows the SMA to evaluate if the SWA 

is in compliance with regulatory 

requirements. Further, existing 

regulations explain that in addition to 

ensuring that all significant MSFW onestop centers are reviewed at least once 

per year by a SWA official, the SMA 

must ensure ES offices in which 

significant problems are revealed by 

required reports, management 

information, the Complaint System, or 

other means are reviewed as soon as 

possible. Therefore, it is relevant for the 

SMA to include information about all 

offices in their Annual Summary. 

Additionally, regarding the concern 

that the SMA must include in their 

Annual Summary the results of outreach 

efforts in the State and analyze whether 


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the outreach levels and results were 

adequate, the Department believes this 

is relevant and necessary. As explained 

in the NPRM, the Department believes 

this analysis will help the Department 

understand whether the SMA believes 

that the SWA has allocated sufficient 

outreach staff and resources to complete 

the outreach duties identified at 

§ 653.107, including whether outreach 

staff are able to reach the majority of 

MSFWs in the State. The SMA’s 

analysis and opinion on outreach 

throughout the entire State is central to 

the SMA’s monitoring and reporting 

functions. Specifically, the Annual 

Summary described in § 653.108(u) 

must be prepared by the SMA and is 

intended to include the SMA’s 

independent assessment of the quantity 

and quality of ES services provided to 

MSFWs. The SMA’s assessments must 

be based on quantitative standards, 

including minimum service level 

indicators and equity ratio indicators, as 

well as information the SMA gathers 

through their monitoring, field visits, 

and liaison with employers, MSFWs, 

and farmworker organizations, which 

inform the SMA’s opinions regarding 

the quality of services. 

The SMA’s analysis of the SWA’s 

outreach is distinct from the required 

reporting of the minimum service level 

indicators that significant MSFW States 

must meet. The minimum service level 

indicator regarding number of outreach 

contacts per quarter measures the 

quantity of MSFW outreach contacts 

significant MSFW States make per 

quarter. This indicator is relevant to 

significant MSFW States to ensure 

significant MSFW States conduct 

minimum levels of outreach year-round 

because those States must have full-time 

outreach staff year-round. This indicator 

does not apply to the remainder of the 

States because States that are not 

designated as significant MSFW States 

may have part-time outreach staff in 

non-peak season. In all States, outreach 

staff must contact the majority of 

MSFWs in the State on an annual basis. 

Under this final rule, SWAs will 

continue to provide an assessment of 

need that is particular to their State’s 

service area(s) in the AOP, including 

information about when peak season in 

their State occurs and an estimate of the 

number of MSFWs in the State during 

peak season. The final rule will require 

all SWAs to use this data to determine 

the number of outreach staff that are 

adequate to conduct MSFW outreach in 

each area of the State and to contact a 

majority of the MSFWs in the State 

annually. 

MSFWs constitute a critical 

population of workers with unique 

needs and challenges who are 

vulnerable to exploitation, abuse, and 

mistreatment. Therefore, the 

Department wants all States to allocate 

the necessary resources to reach the 

majority of MSFWs in the State. The 

SMA’s analysis of the SWA’s outreach 

levels and results in the State will better 

enable the Department to analyze 

whether additional State (or Federal) 

resources may be necessary. 

After further review, the Department 

identified a need to update 

§ 653.108(u)(5) to use the term 

significant MSFW one-stop center, 

instead of significant MSFW ES office. 

This change is necessary to align the 

requirement with the defined term in 

§ 651.10. Aside from this technical edit, 

the Department adopts the changes to 

§ 653.108(u) as proposed and will 

provide technical assistance and 

guidance to help SWAs comply with the 

requirements. 

Section 653.109 Data Collection and 

Performance Accountability Measures 

Section 653.109 sets forth MSFWspecific data collection requirements 

and performance accountability 

measures. The Department proposed to 

amend this section to make two notable 

changes. First, the Department proposed 

to add a new data collection 

requirement at § 653.109(b)(10), which 

would require SWAs to collect the 

number of reportable individuals and 

participants who are MSFWs. This 

would align the data collection 

requirements in this section with the 

new requirement in § 653.103(a) for ES 

offices to determine whether reportable 

individuals are MSFWs, as defined at 

§ 651.10 of this chapter. The Department 

received one comment from a State 

government agency on this proposal, 

which is summarized and addressed in 

the discussion of § 653.103 above. For 

the reasons explained there, the 

Department has determined the benefits 

of collecting this information outweigh 

the costs, and it adopts the proposed 

data collection requirement in 

§ 653.109(b)(10) as proposed. 

Second, the Department proposed to 

amend § 653.109(h), which sets forth the 

minimum levels of service that 

significant MSFW States must meet, by 

replacing the requirement for a 

significant MSFW State to measure the 

number of outreach contacts per ‘‘week’’ 

with a requirement that such States 

measure the number of outreach 

contacts per ‘‘quarter.’’ The Department 

proposed this change to align with the 

other quarterly data submissions that 

SWAs provide to the Department. 

A State government agency submitted 

a comment opposing the Department’s 

proposal to change the frequency with 

which outreach contacts are measured. 

As discussed below, the Department 

considered these concerns and 

determined that they do not necessitate 

any changes to the proposed regulatory 

text. Accordingly, the Department 

adopts this revision as proposed. 

Comment: Commenters from a State 

government agency opposed changing 

the requirement for significant MSFW 

States to measure the number of 

outreach contacts from per week to per 

quarter, reasoning that the change could 

lead outreach staff to limit outreach 

contacts to the end of the quarter 

instead of making outreach contacts 

throughout the quarter. As an 

alternative, the commenter 

recommended the requirement could be 

changed to once per month to allow 

some flexibility for outreach staff to 

meet the requirement even during nonpeak seasons. 

Response: The Department 

acknowledges the State agency’s 

concern that the reduction in reporting 

frequency could lead outreach staff to 

limit outreach contacts to short periods 

at the end of the quarter, instead of 

conducting outreach consistently 

throughout the quarter. However, the 

Department does not anticipate that 

such an outcome is likely to occur, 

because this final rule retains the 

requirement for outreach staff to spend 

a majority of their time in the field, and 

it will additionally require a State to 

employ an adequate number of outreach 

staff to contact a majority of MSFWs in 

the State annually. It would therefore be 

difficult for a significant MSFW State to 

effectively comply with other regulatory 

requirements governing outreach if the 

outreach staff in the State limit the 

outreach they conduct to only a short 

period at the end of the quarter. 

Moreover, this change will impact only 

the frequency with which significant 

MSFW States must report outreach 

contacts to the Department. If a SWA or 

ES office is concerned that outreach 

staff are not making outreach contacts 

consistently throughout a quarter, then 

that SWA or ES office may 

independently require its outreach staff 

to report the number of outreach 

contacts they make on a more frequent 

basis or to comply with other interim 

goals that would allow it to monitor the 

performance of its outreach staff 

throughout the quarter. Ineffective or 

noncompliant outreach may be 

addressed through monitoring and 

corrective actions by the SWA, ES 

offices, and SMA. 

The Department notes that there will 

not be a change in the frequency of 

reporting outreach contacts to the 


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Department. SWAs report performance 

data to ETA on a quarterly basis through 

Form ETA–5148. The revision will align 

the measure with the existing quarterly 

reporting timelines for SWA grantees. 

Additionally, as mentioned in the 

NPRM, SMAs have provided feedback 

to the Department that measuring 

contacts per week is difficult and not an 

effective measurement of outreach, and 

they believe it would be a better 

measure to report contacts per quarter. 

After further review, the Department 

identified a need to update § 653.109(h) 

to use the term significant MSFW onestop centers, instead of significant 

MSFW ES office. This change is 

necessary to align the requirement with 

the defined term in § 651.10. The 

Department adopts the changes to 

§ 653.109 as proposed, with the 

additional reference to significant 

MSFW one-stop centers, for the reasons 

described above. 

Section 653.110 Disclosure of Data 

The Department proposed to revise 

§ 653.110(b) by removing the word 

‘‘the’’ before ‘‘ETA.’’ No comments were 

received on this proposed revision, and 

the Department finalizes this technical 

edit as proposed. 

Section 653.111 State Workforce 

Agency Staffing Requirements for 

Significant MSFW One-Stop Centers 

Section 653.111 sets forth staffing 

requirements for significant MSFW onestop centers. The Department proposed 

to revise paragraph (a)—which currently 

requires SWAs to implement and 

maintain a program for staffing 

significant MSFW one-stop centers by 

providing ES staff in a manner 

facilitating the delivery of employment 

services tailored to the special needs of 

MSFWs, including by seeking ES staff 

that meet the criteria in 

§ 653.107(a)(3)—and divide it into two 

sentences. The first sentence would 

provide that a SWA must staff 

significant MSFW one-stop centers in a 

manner that facilitates the delivery of 

ES services tailored to the unique needs 

of MSFWs. The second sentence would 

clarify that such staffing includes 

recruiting qualified candidates who 

meet the criteria for outreach worker 

positions in § 653.107(a)(3). 

The Department received a comment 

concerning the proposed revisions to 

this section. Revisions to the meritstaffing requirement adopted in this 

final rule necessitate revisions to the 

hiring requirements in this section, as 

described below. 

Comment: A State government agency 

expressed its opposition to the proposed 

revisions to this section and the 

accompanying revision to 

§ 653.107(a)(3), noting it did not support 

any increase in requirements for hiring 

ES staff. 

Response: The Department anticipates 

that the revisions to this section, much 

like the revisions proposed and adopted 

in § 653.107(a)(3), will help SWAs 

recruit staff who are better equipped to 

assist MSFWs in significant MSFW onestop centers. The Department is revising 

the text proposed in this section to 

conform with changes made to the 

merit-staffing requirement in § 652.215 

of this chapter. Under this final rule, a 

SWA must ensure hiring officials seek 

and put a strong emphasis on hiring ES 

staff for significant one-stop centers who 

meet the enumerated criteria. As 

explained above in the section-bysection discussion for § 653.107(a), a 

SWA will retain some discretion in 

developing their State’s plan to meet 

this requirement, and if hiring officials 

are unable to identify qualified 

candidates who meet the required 

characteristics, then the SWA may 

proceed to hire or assign the most 

qualified candidate(s). It is particularly 

important for ES staff in significant 

MSFW one-stop centers to possess these 

characteristics, because such staff are 

more likely to have the skills and 

experience necessary to facilitate the 

delivery of ES services tailored to the 

special needs of MSFWs, and significant 

MSFW one-stop centers, by definition, 

serve greater numbers of MSFWs than 

other one-stop centers. The need for 

SWAs to ensure hiring officials recruit 

ES staff who are qualified to serve this 

unique population is therefore greater in 

significant MSFW one-stop centers than 

it is in one-stop centers who serve fewer 

MSFWs. The Department recognizes 

that compliance with the recruitment 

requirements adopted in this rule may 

require some SWAs to change their 

current practices. In adopting these 

requirements, the Department has taken 

this into consideration and determined 

that these requirements strike the right 

balance, because they increase the 

likelihood that SWAs will hire staff 

with appropriate skills to adequately 

serve MSFWs, while providing 

flexibility if SWAs are not able to find 

qualified candidates who meet the 

enumerated criteria. 

2. Subpart F—Agricultural Recruitment 

System for U.S. Workers (ARS) 

Subpart F sets forth the regulations 

governing the ARS, including the 

requirements that employers must 

follow when submitting clearance 

orders for temporary or seasonal 

farmwork, and the requirements that 

SWAs must follow in processing the 

orders. In subpart F, the Department 

proposed new requirements for 

processing clearance orders, initiating 

discontinuation of services, and 

conducting field checks. Additionally, 

the Department proposed several 

technical, clarifying, and minor edits 

throughout § 653.501. As described 

more fully below, with the exception of 

proposed § 653.501(b) and (c), and the 

addition of a new severability provision 

at § 653.504, the Department finalizes 

subpart F as proposed. 

Section 653.501 Requirements for 

Processing Clearance Orders 

Section 653.501 describes the 

requirements that SWAs and ES staff 

must follow when processing clearance 

orders for the ARS. In this section, the 

Department proposed a new 

requirement that SWAs consult the 

Department’s Office of Foreign Labor 

Certification (OFLC) and WHD 

debarment lists before placing job orders 

into clearance, and initiate 

discontinuation of ES services if an 

employer is so debarred. The 

Department also proposed several 

technical, clarifying, and conforming 

amendments. The Department’s 

responses to public comments received 

on § 653.501 are set forth below. If a 

proposed amendment is not addressed 

in the discussion below, the public 

comments did not address that specific 

amendment and no changes have been 

made to the proposed regulatory text. 

The Department declines to adopt 

§ 653.501(b) and (c), and adopts the 

remaining provisions in § 653.501 as 

proposed. 

Regarding proposed § 653.501(b) and 

(c), the Department proposed to add a 

fourth paragraph to § 653.501(b), at 

§ 653.501(b)(4), which would require ES 

staff to consult the Department’s OFLC 

and WHD debarment lists before placing 

a job order into intrastate or interstate 

clearance and initiate discontinuation of 

ES services if the employer is debarred 

or disqualified from participating in one 

or all of the Department’s foreign labor 

certification programs. Additionally, the 

Department proposed minor edits to 

§ 653.501(c)(3) to clarify that paragraph 

(c) sets forth a list of the assurances that 

an employer must make before the SWA 

may place a job order into intrastate or 

interstate clearance. 

The Department appreciates the views 

and recommendations of commenters 

that supported and opposed the 

proposed changes to § 653.501(b). The 

Department notes that on September 15, 

2023, the Department published the 

‘‘Improving Protections for Workers in 

Temporary Agricultural Employment in 

the United States’’ NPRM (the 


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‘‘Farmworker NPRM’’) in the Federal 

Register. (88 FR 63750). In the 

Farmworker NPRM, the Department 

proposed changes to paragraphs 

653.501(b) and (c), which intersect with 

changes that were proposed in the 

NPRM for this rule (87 FR 23700). As 

discussed in the Farmworker NPRM, 

where the proposed changes in the 

Farmworker NPRM intersect or conflict 

with the proposed changes in this rule, 

the Department will utilize the 

Farmworker NPRM as the operative 

rulemaking proceeding to provide 

notice and opportunity to comment. The 

Department sees this as the most 

transparent approach to address this 

overlap, and the best way to minimize 

confusion within the regulated 

community while ensuring the public 

has a full opportunity to receive notice 

and provide comments on the proposed 

changes. Accordingly, as any changes to 

§ 653.501(b) and (c) will be made 

through the Farmworker NPRM, the 

Department declines to finalize 

§ 653.501(b) and (c) as proposed. 

Comment: The Department notes that 

a State government agency 

recommended that, in § 653.501(b)(2), 

the Department remove the requirement 

to suppress employer information in 

clearance orders. The commenter stated 

that doing so would provide the same 

transparency to interested workers as 

that presently afforded when viewing 

the same clearance orders on the 

Department’s SeasonalJobs.gov site and 

would remove a barrier for MSFWs that 

is not faced by non-agricultural job 

seekers viewing job order information. 

The commenter said this change would 

not only align its agricultural 

recruitment process with that of DOL 

but also benefit domestic agricultural 

workers through ready, unfettered 

access to the same H–2A employer 

information in the State Agricultural 

Reporting System as is available through 

SeasonalJobs.gov. 

Response: As the Department did not 

propose changes to § 653.501(b)(2), the 

State government agency’s 

recommendation is outside the scope of 

this rulemaking and the Department 

declines to adopt it. 

Section 653.503 Field Checks 

Section 653.503 describes the 

requirements that SWAs and ES staff 

must follow when conducting field 

checks. In this section, the Department 

proposed to revise § 653.503(a) to add 

‘‘transportation’’ to the list of conditions 

that SWAs must assess and document 

when performing a field check. The 

Department also proposed to remove the 

word ‘‘random’’ from the existing 

requirement in § 653.503(a) that SWAs 

‘‘must conduct random, unannounced 

field checks’’ on clearance orders, to 

clarify that the selection of the clearance 

orders on which the SWA will conduct 

field checks does not need to be 

random, and may respond to known or 

suspected compliance issues. The 

Department adopts § 653.503 as 

proposed. 

Comment: Regarding transportation, a 

State government agency opposed the 

proposal to add transportation to the list 

of conditions that SWAs must assess 

and document when performing a field 

check. The agency stated that ES staff 

are not experts on vehicle-related 

technical matters and should not be 

expected to have this level of 

responsibility. The agency asked the 

Department to clarify whether ES staff 

would be expected to check on the type 

of transportation provided by the 

employer or to assess the safety and 

maintenance of the transportation used. 

If the latter, the agency recommended 

that WHD provide appropriate training 

to assess transportation during field 

checks. 

Response: The Department 

appreciates the concern and 

recommendation raised. In the NPRM, 

the Department proposed to add 

‘‘transportation’’ to the list of conditions 

that SWAs must assess and document 

when performing a field check to 

‘‘increase health and safety of MSFWs 

by adding an additional safeguard 

against dangerous transportation tied to 

their employment.’’ The Department 

clarifies that by adding the term 

‘‘transportation,’’ it means the specific 

transportation terms described at 

§ 653.501. The Department is not 

requiring ES staff to assess the safety or 

maintenance of transportation used. 

However, as with any employmentrelated law, if while conducting a field 

check, ES staff observe or receive 

information, or otherwise have reason to 

believe that an employer is violating an 

employment-related law—such as the 

transportation safety standards enforced 

by WHD—ES staff must document and 

process this information in accordance 

with § 653.503(d). 

Comment: Regarding the proposal to 

remove the word ‘‘random’’ from the 

existing requirement that SWAs ‘‘must 

conduct random, unannounced field 

checks,’’ many commenters, including 

State government agencies, advocacy 

organizations, think tanks, and several 

labor unions supported the revision, 

uniformly stating that it ensures that 

MSFW working and housing conditions 

meet basic standards. A State 

government agency supported the 

proposed change but requested that the 

Department clarify in the rule or 

guidance either the circumstances that 

warrant targeted field checks or the 

responsibility of States to define the 

circumstances in policy. 

Response: The Department 

appreciates the commenters’ support for 

this proposed change. As noted in the 

NPRM, the Department believes that 

removal of the word ‘‘random’’ will 

improve MSFW protections by allowing 

SWAs and ES staff to conduct field 

checks where there are known or 

suspected compliance issues. Regarding 

the request for clarification on the 

circumstances that warrant targeted 

field checks, the Department clarifies 

that the circumstances must relate to the 

terms and conditions on the clearance 

order. Thus, where it is known or 

suspected that wages, hours, and 

working and housing conditions are not 

being provided as specified in the 

clearance order, a targeted field check 

may be warranted. The Department will 

issue guidance on this proposed change. 

Section 653.504 Severability 

Given the numerous and varied 

changes the Department proposed and is 

adopting, the Department intends this 

rule to be severable and is including a 

severability provision in parts 652, 653, 

and 658 in this final rule. That intent 

was reflected in the structure of and 

descriptions in the proposed rule. The 

inclusion of severability provisions in 

this final rule confirms the Department’s 

belief that the severance of any affected 

provision will not impair the function of 

the regulation as a whole and that the 

Department would have proposed and 

implemented the remaining regulatory 

provisions even without any others. To 

the extent that a court holds any 

provision, or any portion of any 

provision, of part 653 invalid, the 

provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision will be severable from this 

part and will not affect the remainder 

thereof. 

E. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

Part 658 sets forth systems and 

procedures for complaints, monitoring 

for compliance assessment, 

enforcement, and sanctions for 

violations of the ES regulations and 

employment-related laws, including 

discontinuation of services to employers 

and decertification of SWAs. The 

Department proposed several revisions 

to part 658, including removing the 

requirement that SMAs serve as 


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82710 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

Complaint System Representatives or 

have any direct role in the Complaint 

System process, and clarifying the 

procedures for processing complaints 

alleging discrimination or reprisal for 

protected activity. Additionally, the 

Department proposed revisions 

throughout part 658 to conform with 

existing and proposed language in parts 

651 and 653, make non-substantive 

technical edits, remove redundancies, 

and clarify terms and requirements. The 

Department’s responses to public 

comments received on part 658 are set 

forth below. The Department did not 

receive comments on §§ 658.419, 

658.420, and 658.422 in subparts E, G, 

and H. The Department is finalizing 

subparts E, G, and H as proposed. 

Of note, the Department proposed 

several revisions to the discontinuation 

of services provisions in subpart F 

(§§ 658.500 through 658.504). The 

Department proposed to amend the 

bases for discontinuation to include an 

employer’s debarment or 

disqualification from participating in 

one of the Department’s foreign labor 

certification programs; to amend the 

notification procedures to require, 

where applicable, that SWAs specify the 

time-period of an employer’s debarment 

or disqualification; and to correct crossreferencing errors in the regulatory text. 

The Department received comments 

supporting the proposed changes, but 

on September 15, 2023, the Department 

issued an NPRM regarding improved 

protections for workers in temporary 

agricultural employment (the 

‘‘Farmworker NPRM’’). 88 FR 63750. In 

the Farmworker NPRM, the Department 

proposed further changes to the 

discontinuation of services provisions, 

which intersect and, in some instances, 

conflict with changes that were 

proposed in the NPRM for this rule (87 

FR 23700). As discussed in the 

Farmworker NPRM, where the proposed 

changes in the Farmworker NPRM 

intersect or conflict with the proposed 

changes in this rule, the Department 

will utilize the Farmworker NPRM as 

the operative rulemaking proceeding to 

provide notice and opportunity to 

comment. The Department sees this as 

the most transparent approach to 

address this overlap, and the best way 

to minimize confusion within the 

regulated community while ensuring 

the public has a full opportunity to 

receive notice and provide comments on 

the proposed changes. Accordingly, as 

any changes to the discontinuation of 

services provisions will be made 

through the Farmworker NPRM, the 

Department declines to finalize subpart 

F as proposed. 

1. Subpart E—Employment Service and 

Employment-Related Law Complaint 

System (Complaint System) 

Subpart E covers the purpose and 

scope of the Complaint System, and the 

requirements for processing complaints 

at the local, State, and Federal levels. 

The Department’s responses to public 

comments received on subpart E are set 

forth below. If a proposed amendment 

to subpart E is not addressed in the 

discussion below, the public comments 

did not address that specific 

amendment and no changes have been 

made to the proposed regulatory text. 

With the exception of a new severability 

clause, the Department adopts subpart E 

as proposed. 

Comment: Several one-stop center 

representatives stated they support 

utilization of a complaint system but 

questioned who will take incoming 

complaints when ES staff have been 

reassigned to UI claims. 

A farmworker advocacy organization 

discussed the need for major procedural 

reforms to the Complaint System, 

beyond the modifications set forth in 

the proposed rule, if it is to be an 

effective tool for farmworkers to 

vindicate their rights. The organization 

asserted that the proposed subpart E 

ignores fundamental flaws at the heart 

of the Complaint System. Regarding 

complaints filed against employers, the 

organization stated that the Complaint 

System is often just a slower, more 

cumbersome means to reach another 

agency, like WHD or EEOC, and that 

farmworkers generally are better served 

by filing their complaints directly with 

those agencies. Regarding complaints 

filed against SWAs, the organization 

stated that the ES complaint process is 

a ‘‘byzantine maze’’ that can take years 

to navigate and may involve multiple 

levels of adjudication. Citing 

§ 658.421(g) and examples of recent 

cases, the organization stated that the 

current process eventually reaches the 

Office of Administrative Law Judges 

(OALJ), but only after typically at least 

2 years of litigation in which a 

complainant often does not understand 

the process or their rights, before Statelevel officials without expertise in the 

ES system or farmworker issues, and 

with little chance of systemic relief. The 

organization recommended that the 

Department allow workers direct appeal 

from the SWA to the OALJ, which it 

said would be analogous to how 

employers appeal foreign labor 

certification decisions at § 655.171. The 

organization stated that the Department 

should treat employers and workers the 

same, and that just as growers are 

allowed to appeal decisions under the 

labor certification regulations directly 

from the OFLC to the OALJ, the 

Department should allow workers to 

appeal ES complaints directly from the 

SWA to the OALJ. 

Response: The Department clarifies 

that while it proposed to require States 

to use merit staff, in part so that States 

may leverage ES staff for UI, SWAs must 

still ensure there are adequate 

Complaint System Representatives to 

process complaints at all times. The 

Department further clarifies that 

complainants are not required to bring 

employment-related law complaints 

through the Complaint System; they 

may file employment-related law 

complaints directly with the appropriate 

enforcement agencies. Nevertheless, 

SWAs and the Department have an 

interest in tracking employment-related 

law complaints as SWAs are required to 

accept, informally resolve (where 

appropriate), and refer incoming 

employment-related law complaints to 

appropriate enforcement agencies. 

Additionally, SWAs and the Department 

have an interest in quickly and 

efficiently resolving ES-related 

complaints. The proposed revisions are 

designed to strengthen training, 

monitoring, and internal controls so that 

the Complaint System can more 

effectively and quickly resolve ESrelated complaints at the local level, and 

quickly resolve violations to the benefit 

of complainants. 

The Department agrees with ensuring 

an efficient Complaint System but 

disagrees with the recommendation to 

allow workers to appeal ES complaints 

directly from SWAs to the OALJ. The 

Department notes that the OALJ only 

resolves Federal administrative disputes 

before Departmental agencies (e.g., ETA, 

OFLC), and does not resolve disputes 

before State agencies (e.g., SWAs). 

Consequently, the Complaint System 

only allows for appeal to the OALJ 

following a formal determination from 

an RA and does not contemplate direct 

appeal of a SWA decision to the OALJ. 

The Department, therefore, declines to 

adopt this recommendation. 

Section 658.410 Establishment of 

Local and State Complaint Systems 

Section 658.410 describes procedures 

that SWAs and ES Offices must follow 

in establishing and maintaining local 

and State complaint systems. In this 

section, the Department proposed to 

remove the requirement in § 658.410(h) 

that the SMA be the Complaint System 

Representative designated to handle 

MSFW complaints and replace it with a 

provision prohibiting the State 

Administrator from assigning the SMA 

responsibility for doing so. Relatedly, 


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the Department proposed to revise 

§ 658.410(m) to replace ‘‘SMA’’ with 

‘‘Complaint System Representative,’’ 

thereby removing the SMA from 

responsibility for conducting monthly 

follow-up on MSFW complaints. 

The Department also proposed several 

technical, clarifying, and conforming 

amendments. For example, in 

§ 658.410(g), the Department proposed 

to remove the word ‘‘local,’’ which 

comes before ‘‘ES office’’ in the existing 

regulatory text, because ‘‘ES Office’’ is a 

defined term and removal of the word 

‘‘local’’ clarifies that the regulatory text 

is not referring to a different type of ES 

Office. For that change, the NPRM 

preamble clearly explained that the 

Department was proposing to remove 

‘‘local,’’ but the proposed regulatory text 

inadvertently retained the word. The 

Department adopts the text of 

§ 658.410(g) as described in the NPRM 

preamble. Aside from that change, the 

Department adopts the regulatory text of 

§ 658.410 as proposed. 

Comment: Regarding the proposed 

amendments to § 658.410(h), to prohibit 

the SMA from being assigned to be the 

Complaint System Representative, a 

State government agency supported the 

changes, stating that they would allow 

the SMA to maintain a neutral stance 

and create balance within the ES 

program and could enhance the 

Complaint System and improve program 

monitoring and compliance. Similarly, 

an anonymous commenter described the 

removal of the SMA from the Complaint 

Specialist role as a ‘‘smart call’’ that 

leaves less opportunities for ‘‘unwanted 

liabilities.’’ In contrast, another State 

government agency said that removing 

the SMA from involvement in direct 

complaint system activities removes the 

staff member with the greatest expertise 

in understanding the complexities of the 

MSFW population and available 

resources from the complaint-taking 

process. Regarding the proposed 

amendment to § 658.410(m), the same 

agency stated that requiring the 

Complaint System Representative, and 

not the SMA, to follow up monthly on 

the processing of MSFW complaints 

would decentralize the ES Complaint 

System follow-up process; require 

additional time, effort, and coordination 

with enforcement agencies; and could 

entail challenges in enforcement 

agencies responding to ES staff requests. 

Regarding the proposed amendment 

to § 658.410(g), two one-stop center 

employees opposed the proposed 

revision but did not state any specific 

concern with the proposed removal of 

the word ‘‘local’’ from the regulatory 

text. The employees stated generally 

that their local Complaint System 

representatives receive annual training 

from the SMA regarding the Complaint 

System. A farmworker advocacy 

organization supported the proposed 

amendments to § 658.410, in part. The 

organization stated that while it 

generally supports having the SMA 

oversee the Complaint System (rather 

than serve as the initial complaint 

recipient), ES complaints (versus 

complaints involving employment- or 

discrimination-related laws) still should 

go to the SMA first. The organization 

stated that ES complaints allege the type 

of ‘‘within-agency’’ problems that SMAs 

are charged with correcting, and are the 

only avenue for worker communications 

with SMAs that guarantee a written 

response. The organization further 

stated that Complaint System 

Representatives may lack the authority, 

information access, or confidence in 

their position to sufficiently address 

complaints alleging legal violations by 

their supervisors. The organization 

acknowledged that leaving SMAs in 

charge of responses to ES complaints 

limits their ability to meaningfully 

oversee the Complaint System, but 

stated that the benefits of doing so 

overshadow this concern; and that such 

concern is mitigated by the fact that ES 

complaints are relatively rare. 

Response: Regarding the concern that 

removing SMAs from direct 

involvement in the Complaint System 

removes the staff member with the 

greatest MSFW expertise and resources 

from the complaint-taking process, the 

Department notes that the existing 

regulations require that all Complaint 

System representatives—SMAs or 

otherwise—be trained on handling 

MSFW complaints. Accordingly, the 

Department believes that the existing 

regulations provide for sufficient 

expertise among non-SMA 

representatives to process MSFW 

complaints. Additionally, the 

Department notes that a SMA’s 

expertise is not lost by removing the 

SMA from direct involvement in the 

Complaint System. Monitoring activities 

allow for SMAs to share and apply their 

expertise throughout the entire 

Complaint System, rather than on a 

complaint-by-complaint basis. One such 

example is mentioned in the comments: 

two one-stop center employees stated 

that their Complaint Service 

Representatives receive annual training 

by the SMA on the Complaint System. 

Removing the SMA from direct 

involvement in the System will, the 

Department believes, allow SMAs to 

focus their expertise on monitoring 

activities that impact the Complaint 

System and MSFWs much more 

broadly. 

Regarding the concern that removing 

the SMA from conducting monthly 

follow-up on MSFW complaints would 

decentralize the Complaint System 

follow-up process, the Department notes 

that existing regulations already require 

SWAs to have trained Complaint 

System Representatives at each ES office 

and that, in practice, many SWAs 

already have trained, non-SMA 

Complaint System Representatives. 

Regarding the concern that removing the 

SMA would require additional time, 

effort, coordination, and communication 

challenges with enforcement agencies, 

the Department respectfully disagrees. 

The Department believes that the 

Complaint System Representatives are 

best positioned to follow up on the 

complaints they process—both with the 

enforcement agencies to which they 

have made referrals and with the 

complainant with whom they have 

already communicated directly. 

Additionally, the Department believes 

there are distinct benefits in having staff 

other than the SMA trained in 

processing MSFW-related complaints, 

most notably the increased staff capacity 

to process MSFW-related complaints 

quickly and efficiently. 

Regarding the recommendation that 

incoming ES complaints should still go 

to the SMA first, the Department notes 

that the SMA’s primary role in the 

Complaint System is to monitor and 

report on its compliance, advocate for 

improvements to the system, and liaise 

among partners to support effective 

functioning of the system. The proposed 

amendments are meant to ensure 

separation of duties between SMAs and 

other ES staff roles. The Department 

believes that it cannot ensure full 

separation of duties by requiring SMAs 

to maintain direct responsibility for 

handling ES complaints. The 

Department understands the concern 

that non-SMA Complaint System 

Representatives may lack confidence to 

sufficiently address complaints alleging 

‘‘within-agency’’ violations of the ES 

regulations, such as violations by their 

supervisors, but notes that such issues 

may be addressed through training, 

including training by the SMA. SMAs 

will remain available to advise 

Complaint System Representatives and 

to report any patterns of unaddressed 

complaints directly to SWA leadership. 

Therefore, the Department believes that 

the benefits of ensuring full separation 

of duties for SMAs outweigh the 

concerns raised. The Department 

declines to adopt this recommendation. 


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82712 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

Section 658.411 Action on Complaints 

Section 658.411 describes the actions 

that SWAs and ES Offices must take in 

receiving and processing complaints 

filed in the Complaint System. The 

Department proposed several changes to 

this section, including broadening the 

scope of contact methods complainants 

may provide when filing complaints to 

include ‘‘any other helpful means’’; 

removing language requiring SMAs to 

taking direct actions—such as making 

determinations and referrals—on 

complaints; broadening § 658.411(c) to 

apply to all complaints alleging 

discrimination and reprisal; and 

requiring SWAs and ES offices to refer 

discrimination and reprisal complaints 

to their State-level E.O. Officer. The 

Department also proposed several 

technical, clarifying, and conforming 

amendments. For the reasons discussed 

in the NPRM and below, the Department 

adopts § 658.411 as proposed. 

Comment: A State government agency 

commended the Department for 

broadening the scope of contact 

methods complainants may provide 

when filing complaints to include social 

media and other applications. Another 

State government agency agreed with 

removing the SMA from taking direct 

actions on complaints, stating that 

SMAs need not play a prominent role in 

the Complaint System given the many 

entities already involved in capturing 

and responding to complaints, and 

noting that SMAs provide great value— 

as part of their monitoring duties—in 

reviewing complaints to ensure they are 

logged and addressed appropriately. A 

farmworker advocacy organization 

recommended that the Department 

further amend § 658.411 to require that, 

upon receipt of complaints, SWAs and 

ES offices immediately advise 

complainants of their option to work 

with an attorney to resolve their claims 

and provide complainants contact 

information for legal services. 

The Department received several 

comments specific to § 658.411(c). A 

State government agency stated that it 

agreed with the intent to simplify the 

process for handling discriminationand reprisal-related complaints under 

§ 658.411(c) but that the revisions, as 

proposed, do not clarify the complaint 

process. A farmworker advocacy 

organization supported the increased 

role of State-level E.O. Officers in 

addressing complaints related to 

discrimination and retaliation, but 

expressed concern that State-level E.O. 

Officers may lack knowledge of certain 

farmworker-related laws, such as the 

Migrant and Seasonal Agricultural 

Worker Protection Act (MSPA) and the 

H–2A regulations. The organization 

recommended that the regulations 

require State-level E.O. Officers to 

receive training in all of these relevant 

areas. 

Three commenters opposed the 

proposed changes to § 658.411(c). Two 

one-stop center employees stated that 

the section needs more clarification on 

the actions for complaints received from 

different sectors, such as MSFW 

complaints, Wagner-Peyser funded 

service complaints, and universal public 

complaints regarding work situations 

that are not serviced by the public 

workforce system. Additionally, a State 

government agency stated that referring 

all discrimination- and reprisal-related 

complaints to the State-level E.O. 

Officer adds another level of delay to 

the complaint referral process, which 

may bottleneck the complaint process 

and slow down an investigation and is 

contrary to the Department’s efforts to 

eliminate delay elsewhere in the 

complaint process (i.e., by removing the 

SMA from the process). Rather than 

refer the complaints only to State-level 

E.O. Officers, the agency recommended 

that ES staff include the State-level E.O. 

Officer when referring complaints to the 

EEOC and other relevant agencies. 

Additionally, the agency recommended 

removing the language that requires ES 

staff to know the types of 

nondiscrimination law complaints. The 

agency also described confusion within 

the one-stop system regarding tracking 

and handling MSFW, Title I, and Title 

III one-stop operation complaints, and 

requested that the Department provide 

technical assistance on this topic. 

Response: Regarding the 

recommendation that SWAs and ES 

offices advise complainants of their 

option to work with an attorney to 

resolve to resolve their claims, the 

Department notes that existing 

regulations at § 658.400 already provide 

that a complainant may designate an 

individual to act as their representative 

before the Complaint System, and ETA 

Form 8429 (‘‘Complaint/Apparent 

Violation Form’’) notifies complainants 

of this option. Additionally, for 

complaints alleging violations of 

employment-related laws, existing 

regulations at § 658.411 already provide 

that complaint representatives must 

refer non-MSFW complaints involving 

employment-related laws, as well as 

MSFW complaints involving 

employment-related laws that are not 

informally resolved, to appropriate 

organizations, including legal aid or 

other consumer advocate organizations, 

as appropriate, for assistance. Regarding 

the related recommendation that SWAs 

and ES offices provide complainants 

contact information for legal services, 

the Department declines to adopt this 

recommendation as a requirement. The 

Department notes that SWAs must 

already provide information on 

organizations servicing MSFWs as part 

of their outreach responsibilities at 

§ 653.107. Such organizations may 

include, for example, grantees of the 

Legal Services Corporation, a non-profit 

corporation established by Congress that 

provides grants to local organizations to 

provide legal services for agricultural 

workers and others who would be 

otherwise unable to afford adequate 

legal counsel. As to the Complaint 

System specifically, the Department 

does not wish to create the appearance 

of SWAs endorsing any legal services 

organization over others by requiring 

that SWAs affirmatively provide contact 

information for certain legal services 

organizations in the complaint process, 

but it does not prohibit SWAs from 

providing such contact information at 

their discretion. 

The Department believes that the 

existing regulations sufficiently notify 

complainants of their options regarding 

legal representation. The Department is 

concerned that adding further 

requirements for SWAs could mislead 

complainants to think that legal 

representation is required to file a 

complaint with the SWA and would not 

comport with the SWA’s role as neutral 

processor in the Complaint System. 

Accordingly, the Department declines to 

adopt these recommendations. 

Regarding the concern that State-level 

E.O. Officers may lack the training 

needed to recognize retaliation under 

farmworker-related laws, such as MSPA 

and the H–2A regulations, and the 

related recommendation that State-level 

E.O. Officers receive training in this 

regard, the Department notes that the 

Wagner-Peyser regulations do not 

govern requirements for State-level E.O. 

Officers; these requirements, including 

the requirement that E.O. Officers and 

their staff be afforded the opportunity to 

receive necessary and appropriate 

training, are found at 29 CFR 38.28 

through 38.33. As the operative 

regulations for the recommended 

training are outside the scope of this 

rulemaking, the Department declines to 

adopt this recommendation. 

Regarding the concern that referring 

all discrimination- and reprisal-related 

complaints to the State-level E.O. 

Officer adds another level of delay to 

the complaint referral process, and the 

related recommendation that the 

Department instead require ES staff 

include the State-level E.O. Officer 

when referring complaints to the EEOC 

and other relevant agencies, the 


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Department declines to adopt this 

recommendation. The Department 

believes that its proposed changes 

simplify, streamline, and prevent delays 

by the Complaint System in the referral 

process by allowing complaint 

representatives to promptly refer 

discrimination and reprisal-related 

complaints to the State-Level E.O. 

Officer, who is best equipped and 

positioned to direct such complaints to 

appropriate enforcement agencies. 

Because the State-level E.O. Officer is 

responsible for State Program-wide 

coordination of compliance with the 

equal opportunity and 

nondiscrimination requirements in 

WIOA, it is appropriate for the Statelevel E.O. Officer to receive all 

discrimination-related complaints. 

Additionally, the proposed changes 

simplify the referral process so that 

referrals may occur more quickly and 

reliably to one identified State-level 

E.O. Officer, instead of requiring 

complaint representatives to identify 

one of several referral options. The 

State-level E.O. Officer is best suited to 

determine which nondiscrimination 

laws are at issue. The proposed changes 

therefore improve the effectiveness and 

accuracy of discrimination complaint 

processing to the benefit of 

complainants. 

Regarding several commenters’ 

general concern that the proposed 

changes to § 658.411(c) do not clarify 

the complaint process as it relates to 

discrimination and reprisal-related 

complaints, and that additional 

clarification is needed on processing 

complaints received from different 

sectors (e.g., MSFW complaints, 

Wagner-Peyser funded service 

complaints, and complaints not serviced 

by the public workforce system), the 

Department notes that the proposed 

changes purposefully simplify the 

process so that complaint 

representatives must immediately refer 

all discrimination-related complaints to 

the State-level E.O. Officer. As 

previously mentioned, the State-level 

E.O. Officer is best suited to make 

determinations on applicable 

nondiscrimination laws. The SWA 

complaint representative will not need 

to make determinations regarding the 

type of alleged discrimination and 

applicable laws. 

Regarding the comment that reported 

confusion within the one-stop system 

regarding tracking and handling MSFW, 

Title I, and Title III one-stop operation 

complaints, and requested the 

Department provide technical assistance 

on this topic, the Department plans to 

provide further technical assistance. 

The Department notes that the existing 

regulations at § 658.400(b) state that 

complaints alleging violations under 

WIOA title I programs are not covered 

by this subpart and must be referred to 

the appropriate administering agency 

which would follow the procedures set 

forth in the respective regulations. 

Section 683.600 describes local area, 

State, and direct recipient grievance 

procedures under WIOA title I. 

Regarding the recommendation to 

remove language requiring ES staff to 

know the types of nondiscrimination 

laws at issue, the Department believes 

that the proposed changes are in line 

with this recommendation, as sending 

all discrimination complaints to the 

State-level E.O. Officer recognizes that 

State-Level E.O. Officers—and not 

complaint representatives—are best 

positioned to determine the applicable 

nondiscrimination laws and the agency 

to which complaints should be referred. 

Additionally, the proposed changes 

provide examples of the types of 

discrimination complaints that SWA 

staff may receive (e.g., EEOC and DOL 

Civil Rights Center (CRC) complaints, 

and complaints under the Immigration 

and Nationality Act), but do not require 

SWA staff to know all 

nondiscrimination laws that may be at 

issue. 

The Department appreciates 

commenters’ concerns and 

recommendations. The Department 

believes that the proposed changes 

provide a straightforward, streamlined 

process for handling discrimination and 

reprisal-related complaints and—by 

utilizing the State-level E.O. Officer— 

ensure that such complaints are 

promptly and properly referred to the 

appropriate enforcement agency. 

Section 658.419 Apparent Violations 

The Department proposed several 

clarifying revisions to § 658.419(a). 

First, the Department proposed to 

update § 658.419(a) to replace the words 

‘‘a SWA, an ES office employee, or 

outreach staff’’ with ‘‘an ES staff 

member’’ to conform with proposed 

revisions to ES staff at § 651.10. It is not 

necessary to specifically refer to 

‘‘outreach staff’’ in this section, because 

the definition of outreach staff means 

ES staff with the responsibilities 

described in § 653.107(b). This change 

will make § 658.419 more clear because 

the regulatory text will use the term ES 

staff uniformly. 

The Department also proposed 

changing the second reference to a 

‘‘suspected violation’’ in § 658.419(a) to 

‘‘apparent violation’’ for clarity. In 

addition, the Department proposed 

adding a sentence to § 658.419(a) to 

clarify that the apparent violation must 

be documented in the Complaint 

System log as described at § 658.410. 

Finally, the Department proposed to 

add a sentence at the end of § 658.419(a) 

to clarify that when an apparent 

violation involves alleged violations of 

nondiscrimination laws, it must be 

processed according to the procedures 

described in § 658.411(c)—that is, it 

must be logged and immediately 

referred to the State-level E.O. Officer. 

The Department did not receive any 

comments on this section. However, the 

Department is making additional 

changes to § 658.419 to be consistent 

with the definition of apparent violation 

that this final rule adopts in § 651.10, 

which refers to suspected violations that 

an ES staff member observes, has reason 

to believe, or which the staff member is 

in receipt of information regarding. The 

final rule also revises the existing 

regulatory text ‘‘except as provided at 

§ 653.503 of this chapter (field checks) 

or § 658.411 (complaints)’’ to state more 

clearly ‘‘except as part of a field check 

under provided at § 653.503 of this 

chapter.’’ This phrasing is meant to 

more clearly state that the apparent 

violations processed as directed by 

§ 658.419 are those that an ES staff 

observes, has reason to believe, or about 

which they receive information other 

than through field checks. The 

definition of apparent violations 

adopted by this final rule makes clear 

that the term does not include 

complaints. 

Furthermore, the final rule retains the 

language proposed in the NPRM at 

§ 658.419 that clarifies the ES Office 

Manager must document apparent 

violations in the Complaint System log 

as described at § 658.410, with the slight 

revision that the ES Office Manager 

must ensure that they are documented 

in the log. Finally, the final rule adopts 

the proposed text that apparent 

violations of nondiscrimination laws 

must be processed according to the 

procedures described in § 658.411(c), 

but for clarity moves this text into a 

separate paragraph (d) added at the end 

of § 658.419. 

Section 658.420 Responsibilities of the 

Employment and Training 

Administration Regional Office 

The Department proposed several 

revisions to § 658.420. First, the 

Department proposed to revise 

§ 658.420(b)(1) to provide that if an ETA 

regional office receives a complaint 

alleging violations of nondiscrimination 

laws, then the complaint must be logged 

and immediately referred to the 

appropriate State-level E.O. Officer(s). 

This revision simplifies the process for 

referring nondiscrimination complaints 


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and provides clear instruction to ETA 

regional staff and task State-level E.O. 

Officers, who have appropriate expertise 

in determining how nondiscrimination 

complaints should be handled and by 

whom. 

Second, the Department proposed 

removing existing § 658.420(b)(2), 

which addresses complaints alleging 

discrimination on the basis of genetic 

information, because such complaints 

would fall under the simplified 

procedures set forth in proposed 

§ 658.420(b)(1). Third, the Department 

proposed making several revisions to 

conform with this deletion—namely, to 

move the text in existing § 658.420(c) to 

§ 658.420(b) and remove all references 

to paragraph (b)(2) in this section. 

Finally, the Department proposed 

revising § 658.420(c) to clarify that 

when an ETA regional office receives an 

employment-related law complaint 

under this subsection, it should process 

the complaint in accordance with 

§ 658.422. The existing regulation 

incorrectly references § 658.411, which 

provides complaint processing 

procedures for ES offices and SWAs 

(and not ETA regional offices). 

The Department did not receive 

comments on this section and finalizes 

these revisions as proposed. 

Section 658.422 Processing of 

Employment-Related Law Complaints 

by the Regional Administrator 

The Department proposed several 

revisions to § 658.422. First, the 

Department proposed to revise 

paragraph (a) to clarify that this section 

applies to all ‘‘employment-related law’’ 

complaints submitted directly to the RA 

or their representative. Second, the 

Department proposed adding a sentence 

to the end of paragraphs (b) and (c) to 

conform with the proposed revisions to 

§ 658.420(b)(1). In particular, proposed 

paragraphs (b) and (c) each include an 

additional sentence to specify that when 

a complaint described in the paragraph 

alleges a violation of nondiscrimination 

laws or reprisal for protected activity, 

then it must be referred to the 

appropriate State-level E.O. Officer in 

accordance with § 658.420(b)(1). The 

Department did not receive comments 

on this section and finalizes these 

revisions as proposed. 

Section 658.427 Severability 

Given the numerous and varied 

changes the Department proposed and is 

adopting, the Department intends this 

rule to be severable and is including a 

severability provision in parts 652, 653, 

and 658 in this final rule. That intent 

was reflected in the structure of and 

descriptions in the proposed rule. The 

inclusion of severability provisions in 

this final rule confirms the Department’s 

belief that the severance of any affected 

provision will not impair the function of 

the regulation as a whole and that the 

Department would have proposed and 

implemented the remaining regulatory 

provisions even without any others. To 

the extent that a court holds any 

provision, or any portion of any 

provision, of part 658 invalid, the 

provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision or subprovision will be 

severable from this part and will not 

affect the remainder thereof. 

2. Subpart G—Review and Assessment 

of State Workforce Agency Compliance 

With Employment Service Regulations 

Section 658.602 Employment and 

Training Administration National Office 

Responsibility 

The Department proposed amending 

§ 658.602(g) to refer to § 653.108(a) 

instead of § 653.108(b). This is 

necessary to correct the inaccurate 

citation to § 653.108(b). The Department 

proposed amending the introductory 

text of § 658.602(n) to replace the phrase 

‘‘in the course of’’ with the word 

‘‘during’’. Additionally, the Department 

proposed amending § 658.602(n)(1) to 

replace the phrase ‘‘outreach workers’’ 

with ‘‘outreach staff’’ because outreach 

staff is a defined term in § 651.10. The 

Department also proposed amending 

§ 658.602(n)(2) to remove the word 

‘‘random’’ from the requirement for the 

NMA to participate in field check(s) of 

migrant camps or work site(s) where 

MSFWs have been placed. The 

proposed revision would clarify that the 

selection of migrant camps or work sites 

for which the NMA will participate in 

field checks does not need to be 

random, and may be targeted, where 

necessary, to respond to known or 

suspected compliance issues, thereby 

improving MSFW worker protection. 

Finally, the Department proposed 

amending § 658.602(o) to remove ‘‘(8)’’ 

from the reference to paragraph (f)(8) as 

a technical edit. Paragraph (f) of 

§ 658.602 does not have a subordinate 

paragraph (f)(8). The Department did 

not receive any comments on this 

section and is finalizing these revisions 

as proposed. 

Section 658.603 Employment and 

Training Administration Regional Office 

Responsibility 

The Department proposed amending 

§ 658.603(d)(7) to replace uses of ‘‘job 

order’’ with ‘‘clearance order.’’ The 

Department also proposed removing the 

word ‘‘random’’ from the requirement 

for the RA to conduct field checks. 

Finally, the Department proposed 

adding the word ‘‘and’’ before ‘‘working 

and housing conditions’’ to make clear 

that this is a single term that follows 

wages and hours in the list of items that 

must be specified on a clearance order. 

Paragraph (i) of § 658.603 addresses 

RMA training. The Department 

proposed amending § 658.603(i) to 

remove the requirement that the RMA 

participate in training sessions 

approved by the National Office within 

the first 3 months of their tenure and 

replacing it with a requirement that 

would require the RMA to participate in 

training sessions offered by the National 

Office and additional training sessions 

necessary to maintain competency and 

enhance their understanding of issues 

farmworkers face (including trainings 

offered by Occupational Safety and 

Health Administration (OSHA), WHD, 

EEOC, CRC, and other organizations 

offering farmworker-related 

information). The Department also 

proposed amending § 658.603(p)(1) to 

replace ‘‘workers’’ with ‘‘staff.’’ 

Additionally, the Department proposed 

amending § 658.603(p)(2) to remove the 

word ‘‘random’’ so that the RMA 

understands that clearance orders 

selected for a field check do not need to 

be selected at random. The Department 

did not receive any comments on this 

section and is finalizing these revisions 

as proposed. 

3. Subpart H—Federal Application of 

Remedial Action to State Workforce 

Agencies 

Section 658.702 Assessment and 

Evaluation of Program Performance Data 

The Department proposed amending 

§ 658.702(f)(2) to add references to the 

‘‘RMA’’ in two places to clarify that the 

RA must notify both the RMA and the 

NMA when findings and 

noncompliance involve services to 

MSFWs or the Complaint System. 

Additionally, this proposed change 

would require the Final Notification to 

be sent to the RMA, as well as the NMA. 

These changes are necessary for the 

RMA to be aware of all ES issues 

involving MSFWs and the Complaint 

System, which the RMA is responsible 

to monitor in their assigned region. The 

Department did not receive comments 

on this section and finalizes these 

revisions as proposed. 

Section 658.704 Remedial Actions 

The Department proposed amending 

§ 658.704(f)(2) to require that copies of 


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14 In the NPRM, this fully loaded hourly wage 

estimate was $77.88 in 2020 dollars. 

the RA’s notification to the SWA of 

decertification proceedings must be sent 

to the RMA and the NMA. The 

Department also proposed amending 

§ 658.707(a), which addresses the 

circumstances in which a SWA may 

request a hearing, to specify that any 

SWA that has received a Notice of 

Remedial Action under § 658.707(a) of 

this subpart may also request a hearing, 

and that the SWA may do so by filing 

a written request with the RA within 20 

business days of the SWA’s receipt of 

the notice. Finally, the Department 

proposed adding a reference to the RA 

in § 658.707(b), because § 658.704(c) 

directs the SWA to send its written 

request to the RA. The Department did 

not receive any comments on this 

section and adopts these revisions as 

proposed. 

VI. Rulemaking Analyses and Notices 

A. Executive Orders 12866 (Regulatory 

Planning and Review), 13563 

(Improving Regulation and Regulatory 

Review), and 14094 (Modernizing 

Regulatory Review) and Subtitle E of the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

Under E.O. 12866, OMB’s Office of 

Information and Regulatory Affairs 

(OIRA) determines whether a regulatory 

action is significant and, therefore, 

subject to the requirements of the E.O. 

and review by OMB. See 58 FR 51735 

(Oct. 4, 1993). Section 1(b) of E.O. 14094 

amends sec. 3(f) of E.O. 12866 to define 

a ‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that may: (1) have an annual effect on 

the economy of $200 million or more 

(adjusted every 3 years by the 

Administrator of OIRA for changes in 

gross domestic product) or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

territorial, or tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs, or 

the rights and obligations of recipients 

thereof; or (4) raise legal or policy issues 

for which centralized review would 

meaningfully further the President’s 

priorities or the principles set forth in 

the E.O. See 88 FR 21879 (Apr. 11, 

2023). OIRA has determined that this 

final rule is a significant regulatory 

action, although not a significant 

regulatory action under sec. 3(f)(1) of 

E.O. 12866. Accordingly, OMB has 

reviewed this final rule. 

E.O. 13563 directs agencies to propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; the regulation is tailored 

to impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and, in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. E.O. 13563 

recognizes that some benefits are 

difficult to quantify and provides that, 

where appropriate and permitted by 

law, agencies may consider and discuss 

qualitatively values that are difficult or 

impossible to quantify, including 

equity, human dignity, fairness, and 

distributive impacts. 

The Department anticipates that the 

final rule will result in costs, transfer 

payments, and benefits for State 

governments and agricultural 

employers. The costs of the final rule 

will include rule familiarization and 

additional information collection for 

State governments, as well as transition 

costs such as recruitment, training, and 

technology expenses for the three States 

(i.e., Delaware, Indiana, and Missouri) 

that currently use the staffing flexibility 

provided in the 2020 Final Rule and 

will need to transition to State merit 

staff for the provision of all WagnerPeyser Act labor exchange services. 

The transfer payments will include 

the changes in wages, fringe benefits, 

and overhead costs for the staff 

providing ES services in the three States 

that currently use the staffing flexibility 

provided in the 2020 Final Rule: 

Delaware, Indiana, and Missouri. 

The benefits of the merit-staffing 

provisions in the final rule will include 

the ability for States to shift staff 

resources during future surges in UI 

claims when time-limited legislative 

flexibilities in the delivery of UI 

services are not available. The 

Department is also amending the 

regulations that govern labor exchange 

services provided to MSFWs, the 

Monitor Advocate System, and the 

Complaint System. These amendments 

will remove redundancies, clarify 

requirements, and improve equity and 

inclusion for MSFWs in the ES system. 

Pursuant to Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, also known as the 

Congressional Review Act (5 U.S.C. 801 

et seq.), OIRA has designated this rule 

as not a ‘‘major rule,’’ as defined by 5 

U.S.C. 804(2). 

1. Public Comments 

a. Public Comments on Rule 

Familiarization Costs 

In the NPRM, the Department 

anticipated that it would take a Human 

Resources Manager an average of 1 hour 

to review the rule and that the total onetime rule familiarization cost for all 57 

jurisdictions (the 50 States, the District 

of Columbia, Puerto Rico, American 

Samoa, the Commonwealth of the 

Northern Mariana Islands, Guam, the 

Republic of Palau, and the U.S. Virgin 

Islands) would be $4,439 (2020$). 

Comment: A State government agency 

commented that rule familiarization 

estimate in the NPRM is too low 

because, in addition to a Human 

Resources Manager, other staff members 

would need to review the changes as 

well. 

Response: The Department agrees that 

additional State staff may review the 

rule and that their fully loaded wage 

rates may be higher or lower than 

$82.13 per hour (2022$).14 The 1-hour 

time estimate and the $82.13 hourly 

wage estimate are intended to be 

averages across all 57 jurisdictions. In 

some States, the combined time for all 

reviewers to read the rule may be more 

than 1 hour, while in other States, the 

combined time may be less than 1 hour. 

Similarly, the average fully loaded wage 

rate of the employees who familiarize 

themselves with the rule may be higher 

than $82.13 per hour in some States and 

lower than $82.13 per hour in other 

States. In the absence of supporting data 

from the commenter, the Department 

maintained its 1-hour time estimate and 

the $82.13 fully loaded wage rate in the 

final rule. 

b. Public Comments on Transition Costs 

The Department had insufficient data 

to provide estimates in the NPRM of the 

potential one-time transition costs (e.g., 

recruitment, training, technology 

expenses) States might incur, so the 

Department sought additional input 

regarding potential transition costs. 

Comment: Several commenters argued 

that the NPRM does not fully anticipate 

costs for State governments. A number 

of commenters, including multiple form 

letter campaigns, a Colorado State 

elected official, a Colorado State 

government agency, and a local 

government, wrote that the proposed 

merit-staffing requirement would cost 

millions of dollars for States. A 

Colorado State government agency 

estimated that the proposed rule would 

result in over $7 million in transition 


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costs for Colorado and provided a 

specific breakdown of these costs. A 

couple of State government agencies 

wrote that the proposed rule does not 

take into account the costs related to 

cross-training ES staff for the UI 

program. A Colorado local government 

wrote that under the proposed rule, half 

of PY 2023 funds would need to be 

utilized to transition and hire new State 

level staff. A Michigan advocacy 

organization wrote that local ES 

program support allows for efficient 

‘‘braided’’ funding and, in contrast, the 

proposed rule would create siloed 

services that would increase overall 

labor costs for States. 

Some commenters also argued that 

the proposed rule would result in a 

number of job losses for local staff in ES 

programs. In particular, several 

commenters, including a Colorado local 

government, a one-stop operator, and a 

trade association, stated that the 

proposed rule would result in job losses 

for local staff and provided data on 

expected employment reductions to 

support their claim. Similarly, 

Massachusetts and Colorado State 

government agencies commented that 

the proposed rule would result in job 

losses, given that State merit staff are 

more costly than local staff. A trade 

association wrote that their local 

workforce development board would 

not be able to move forward with 

programming for the upcoming year due 

to anticipated job losses as a result of 

the proposed rule. A Colorado State 

government agency and other 

commenters wrote that, in their region, 

TAA case managers are provided by 

local staff, and under the proposed rule 

these staff members would need to be 

rehired and trained. 

An association of workforce boards 

wrote that the proposed rule would 

result in job centers closing and 

programs ending in States that operate 

their ES program using flexible staffing 

models, which would 

disproportionately impact rural areas as 

well as those facing barriers to 

employment. Some commenters stated 

that the proposed rule would result in 

service disruptions that would result in 

States incurring costs due to negative 

customer experiences, which would 

erode trust in the public workforce 

system. A State government agency 

wrote that the proposed rule would 

impose resource costs on States, while 

the national PY 2022 ES grant funding 

saw a non-adjusted increase of just 0.6 

percent and the State saw a nonadjusted decline of 1.6 percent in its PY 

2022 ES grants. 

Response: The Department 

appreciates commenters’ feedback on 

potential transition costs. After careful 

consideration of the comments received 

during the public comment period and 

reassessment of the NPRM, the 

Department is permitting the three 

States with longstanding reliance 

interests on using alternative staffing 

models, Colorado, Massachusetts, and 

Michigan, to continue using their 

alternative staffing models. The 

Department acknowledges that three 

other States (i.e., Delaware, Indiana, and 

Missouri) currently using the staffing 

flexibility granted under the 2020 Final 

Rule will incur transition costs. Without 

pertinent data, the Department is unable 

to estimate the potential transition costs 

in this final rule. Recognizing that these 

States will need time to adjust their 

staffing models, the Department is 

providing 24 months of transition time 

for all States to comply with this final 

rule. 

c. Public Comments on Transfer 

Payments 

In the NPRM, the Department 

anticipated that four States (i.e., 

Colorado, Delaware, Massachusetts, and 

Michigan) would need to transition to 

State merit staff for the provision of all 

labor exchange services. The 

Department estimated that Delaware, 

Massachusetts, and Michigan would 

have a combined total of $10.1 million 

(2020$) in annualized transfer payments 

over the 10-year analysis period. 

Comment: Some commenters from 

Michigan wrote that they believe 

transfer payments estimated in the 

NPRM are too low. Specifically, they 

stated that the estimate of 192 full-time 

equivalents (FTEs) non-State-merit staff 

providing ES services is too low because 

Michigan’s Wagner-Peyser Act-funded 

staffing is 400, equating to 220 FTEs. 

These commenters also asked where the 

funding for transfer payments would 

come from and, if there is not additional 

funding available, how the Department 

would close the gap. 

Response: Because the Department is 

allowing Colorado, Massachusetts, and 

Michigan to administer ES services 

using their longstanding alternative 

staffing model, the Department has not 

sought updated data from Michigan to 

estimate the transfer payments 

associated with this final rule. 

d. Public Comments on Regulatory 

Alternatives 

In the NPRM, the Department 

analyzed two regulatory alternatives. 

Under the first alternative, the 

Department would return to the pre2020 Wagner-Peyser Act regulations, 

reinstituting the State merit-staffing 

requirement for all States except for 

three States: Colorado, Massachusetts, 

and Michigan. Under the second 

alternative, the Department would 

require all States to come into 

compliance with the merit-staffing 

requirement within 30 or 60 days of 

issuance of the final rule rather than 

within 18 months from the effective 

date of the final rule. 

Comment: Several Michigan, 

Colorado, and Massachusetts 

commenters, including State and local 

workforce development boards, onestop center staff, private citizens, State 

and local governments, and a Colorado 

State elected official, urged the 

Department to adopt Alternative 1 as 

discussed in the NPRM, which would 

allow Colorado, Michigan, and 

Massachusetts to continue operating 

Wagner-Peyser Act programs with 

flexible staffing models. The 

commenters reasoned that this would 

allow their State to continue to operate 

what they described as innovative, 

streamlined, responsive, and effective 

ES programs. A Massachusetts local 

workforce development board and a 

Massachusetts local elected official 

argued that Alternative 1 was the best 

way to avoid service interruptions for 

job seekers and businesses. 

To support their request for the 

Department to select Alternative 1, a 

Colorado private citizen provided 

figures from their local one-stop center 

to demonstrate the ‘‘local return on 

investment’’ and economic impact of 

Wagner-Peyser Act funding, including 

the estimation that every $1 of WagnerPeyser Act funds received translates to 

$44.80 in value for the community. 

Some commenters, including one-stop 

center employees, a Colorado local 

workforce development board, and a 

Colorado State government agency, 

critiqued the Department’s mention of 

alignment with WIOA, and preference 

for alignment between ES and UI, when 

presenting Alternative 1 in the NPRM. 

A one-stop center employee asserted 

that Alternative 1 prioritizes UI 

administration over ES services despite 

WIOA identifying priority populations 

for ES service delivery. A Colorado local 

workforce development board argued 

that there was no justification for the 

Department’s claim and provided 

evidence from its local programs, which 

it said demonstrates the benefits of 

alignment between Wagner-Peyser Act 

ES and WIOA title I services. The 

commenter said the proposal would 

result in decreased functionality of ES 

and argued that this adverse outcome 

outweighs the benefits of staffing UI 

during relatively shorter periods of 

surge claims. 


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15This analysis uses codes from the Standard 

Occupational Classification (SOC) system and the 

North American Industry Classification System 

(NAICS). 

A Colorado State workforce 

development board stated that 

prioritizing alignment of ES and UI so 

that States can provide surge capacity 

was not sufficient justification for the 

Department to discard Alternative 1 

because States using flexible staffing 

models can provide surge capacity for 

UI administration. The commenter said 

Colorado’s handling of the UI surge 

during the pandemic affirms county 

merit staff’s ability to assist during UI 

surges. A Massachusetts local workforce 

development board reacted similarly to 

the NPRM’s discussion of Alternative 1 

and program alignment priorities, 

arguing that one-stop center staff in 

Massachusetts performed ably to 

support the UI surge during the 

pandemic. The commenter said the 

flexible staffing arrangements in 

Massachusetts proved useful during the 

pandemic, as well as during other 

unemployment surges throughout 

history, and expressed concern about 

losing the ability to ‘‘manage the next 

crisis locally.’’ 

A Colorado State government agency 

said the Department’s discussion of 

Alternative 1 presented a false choice 

and argued that no studies exist over the 

past 14 years that prove the State meritstaffing model works better than ES 

staffed by county merit staff. A Colorado 

local workforce development board 

similarly stated that the Department 

‘‘dismissed’’ Alternative 1 with very 

little justification and asserted that the 

Department has not provided recent 

studies or data to support the notion 

that flexible ES staffing model States 

perform worse than States that use only 

State merit staff to provide ES services. 

A Colorado one-stop center employee 

requested the Department adopt 

Alternative 1 and further investigate 

how ES staff can support UI services. 

Also urging the Department to adopt 

Alternative 1, a Massachusetts local 

workforce development board discussed 

equity concerns with the proposal’s 

prioritization of UI services for the 

recently unemployed over the needs of 

the longer-term unemployed and lowincome workers who may need ES 

services. The commenter discussed 

historical inequities and current 

demographic makeups of these two 

groups and argued that the UI 

population is ‘‘significantly less 

diverse’’ than the rest of the job seeking 

population around Boston. 

A Colorado State workforce 

development board, a Colorado State 

government agency, and other 

commenters urged the Department to 

adopt Alternative 1 because it would 

allow for the collection of evaluative 

evidence, prevent transfer payments and 

system disruptions, and maintain the 

ability of States with existing State merit 

ES staff to cross-train such workers to 

assist with UI surges. An anonymous 

commenter expressed concern about 

‘‘eliminating Alternative 1’’ because 

ending staffing flexibility will result in 

‘‘bifurcated’’ supervision for WagnerPeyser Act workers and inconsistent 

service delivery. Also urging the 

Department to adopt Alternative 1, a 

Colorado one-stop operator commented 

that, if the Department decides against 

adopting Alternative 1, Congress should 

enshrine ES staffing flexibility into 

Federal law. 

A Michigan State government agency 

suggested that, in the absence of 

additional analysis, the Department 

should implement the final rule without 

making a distinction between State and 

local merit staff, a less disruptive 

alternative that would allow Michigan 

to continue to offer ES services at 

current levels with qualified merit staff. 

The commenter argued that the 

Intergovernmental Personnel Act does 

not make a distinction between State 

and local merit staff, asserting that 

Michigan local merit staff are recruited, 

selected, advanced, and compensated in 

a manner consistent with State merit 

staff. This commenter opposed the 

proposal, alleging that it would result in 

fewer staff, less responsive customer 

service, and fewer ES locations across 

Michigan. The commenter requested 

that the Department conduct a specific, 

comprehensive, and independent 

analysis using up-to-date employment 

program, performance, and economic 

indicators to justify any changes to 

longstanding, successful delivery 

models like the one used in Michigan. 

The commenter said it had identified 

several of the proposal’s anticipated 

adverse impacts during the current 

comment period and stated that the 

Department would ‘‘confirm and 

expand’’ upon these findings if it 

conducted an analysis. 

A State government agency and a 

Massachusetts local workforce 

development board supported an 

ongoing exemption from the State meritstaffing requirement for the original 

demonstration States (Colorado, 

Massachusetts, and Michigan) but 

suggested that no additional States 

should receive such an exemption. 

Response: After careful consideration 

of the comments received during the 

public comment period and 

reassessment of the NPRM, the 

Department has decided to permit three 

States with strong reliance interests— 

Colorado, Massachusetts, and 

Michigan—to continue using their 

approved longstanding staffing model to 

deliver ES services. In the 1990s, as part 

of a demonstration, the Department 

permitted Colorado and Michigan to use 

a combination of local and State meritstaffing and permitted Massachusetts to 

use non-merit staff in four of sixteen 

local areas for ES service delivery. 

During the comment period, these three 

States provided information about the 

service disruption that would result 

from having to upend their longstanding 

service delivery models. However, the 

initial justifications and data presented 

do not provide clear evidence of 

causation. Without evidence that 

alternative staffing models directly 

cause higher employment outcomes, 

balanced against widespread success in 

delivering services while maintaining 

State merit staff for ES, and further 

balanced by the need for ES State merit 

staff to be available for surges in UI 

claims and appeals, the Department is 

generally adopting the proposed 

requirement that States use State merit 

staff to provide ES services. The 

Department has determined that 

reinstating the requirement to provide 

ES services using State merit staff will 

help to allow the States to provide 

quality and consistent ES services in an 

accountable and transparent manner as 

we undertake an evaluation to 

determine whether alternative staffing 

models are empirically supported. All 

other States will have 24 months to 

comply with the rule’s requirement to 

use State merit staff to provide ES 

services. 

2. Costs 

The Department anticipates that the 

rule will result in costs related to rule 

familiarization, staff transition, and 

information collection. 

a. Rule Familiarization Costs 

Regulatory familiarization costs 

represent direct costs to States 

associated with reviewing the new 

regulation. The Department’s analysis 15

anticipates that the changes introduced 

by the rule will be reviewed by Human 

Resources Managers (SOC code 11– 

3121) employed by SWAs. The 

Department anticipates that it will take 

a Human Resources Manager an average 

of 1 hour to review the rule. 

The U.S. Bureau of Labor Statistics 

(BLS) Occupational Employment and 

Wage Statistics data show that the 

median hourly wage of State 

government Human Resources Managers 


ddrumheller on DSK120RN23PROD with RULES2
82718 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

16BLS, ‘‘Occupational Employment and Wage 

Statistics, National Industry-Specific Occupational 

Employment and Wage Estimates, NAICS 999200,’’ 

SOC Code 11–3121, May 2022, https://www.bls.gov/ 

oes/current/naics4_999200.htm (last visited May 

16, 2023). 

17BLS, ‘‘National Compensation Survey, 

Employer Costs for Employee Compensation,’’ 

https://www.bls.gov/ncs/data.htm (last visited May 

16, 2023). For State and local government workers, 

wages and salaries averaged $34.88 per hour 

worked in 2022, while benefit costs averaged 

$21.51, which is a benefits rate of 62 percent. 

18Cody Rice, U.S. Environmental Protection 

Agency, ‘‘Wage Rates for Economic Analyses of the 

Toxics Release Inventory Program,’’ June 10, 2002, 

https://www.regulations.gov/document/EPA-HQOPPT-2014-0650-0005 (last visited May 16, 2023). 

19Anecdotal evidence from States indicates a 

range of $2,000 to $6,000 to add one yes/no 

question to an existing data collection. 20BLS, ‘‘Occupational Employment and Wage 

Statistics, National Industry-Specific Occupational 

is $45.88.16 The Department used a 62- 

percent benefits rate 17 and a 17-percent 

overhead rate,18 so the fully loaded 

hourly wage is $82.13 [= $45.88 + 

($45.88 × 62%) + ($45.88 × 17%)]. 

Therefore, the one-time rule 

familiarization cost for all 57 

jurisdictions (the 50 States, the District 

of Columbia, Puerto Rico, American 

Samoa, the Commonwealth of the 

Northern Mariana Islands, Guam, the 

Republic of Palau, and the U.S. Virgin 

Islands) is estimated to be $4,681 (= 

$82.13 × 1 hour × 57 jurisdictions). 

b. Transition Costs 

Three States would potentially incur 

one-time costs associated with this 

rule’s merit-staffing requirement. 

Delaware currently has some non-Statemerit staff who provide labor exchange 

services, as explained in the NPRM. 

Additionally, based on comments 

received and their State plans, Indiana 

and Missouri also have non-State-merit 

staff providing ES services. These three 

States may incur transition expenses, 

such as recruitment, training, or 

technology costs, as well as costs related 

to the State budgeting process. 

Moreover, job seekers and employers in 

these States may experience 

nonquantifiable transition costs 

associated with service interruptions 

during the time period in which the 

States are making staff changes to 

comply with the provisions of this rule. 

In its comments on the NPRM, 

Delaware stated that ‘‘the proposed rule 

change will take away funding for 13 

total contractual staff.’’ The Delaware 

Department of Labor explained that its 

Division of Employment and Training 

has 8 FTE Wagner-Peyser contractual 

staff funded at 100 percent, and 5 

contractual FTEs partially charged to 

Wagner-Peyser who are assigned to 

provide ES services. The State 

anticipates that the decrease in staffing 

would have a negative impact on the 

quality and delivery of ES services, and 

that it would cause an added workload 

on merit staff, potentially adversely 

affecting staff morale. Delaware 

explained the steps it would need to 

take to obtain additional State FTEs, 

estimating that the process would take 

at least 24 months and that there is no 

certainty that the positions would be 

approved by Delaware’s Joint Finance 

Committee, its Governor, and OMB. 

In its PY 2022 State plan, Indiana 

indicated that it would evaluate 

potential changes to its staffing models 

over the next several years in light of the 

flexibility provided in the 2020 Final 

Rule. In its comments on the NPRM, the 

Indiana Department of Workforce 

Development stated that one of the 

primary ways Indiana was able to 

respond to changing conditions during 

the COVID–19 pandemic was with the 

staffing flexibility provided in the 2020 

Final Rule and the temporarily staffing 

flexibility provided by the CARES Act. 

Indiana explained that the staffing 

flexibility allowed it ‘‘to retain 

temporary, intermittent, and contractor 

staff to augment existing State and local 

staff to better and more quickly scale up 

services to respond to client needs.’’ 

Indiana expressed opposition to the 

proposed State merit-staffing 

requirement, asserting that it would 

result in significant inefficiencies 

because Indiana’s AJCs would need to 

be staffed with a full accompaniment of 

both local workforce development board 

staff and State ES staff, a level that 

would be unnecessary in some AJCs ‘‘as 

the populations simply do not require 

this many staff members for the possible 

client base.’’ 

In its PY 2022 State plan, Missouri 

stated that Wagner-Peyser Act labor 

exchange services are ‘‘provided solely 

by non-merit State employees.’’ 

Missouri explained that, in 2018, the 

State legislature amended the State 

personnel law to remove merit status for 

all employees except those who are 

required to be merit by ‘‘federal law or 

regulations for grant-in-aid programs.’’ 

All employees in Missouri are at-will 

except when required by Federal law. 

Following the Department’s publication 

of the 2020 Final Rule, Missouri’s Office 

of Workforce Development removed the 

merit status of employees funded under 

the Wagner-Peyser Act to comply with 

State law. According to Missouri’s State 

plan, the change from merit status to atwill status became effective on July 1, 

2021. In its comments on the NPRM, 

Missouri’s Office of Workforce 

Development expressed opposition to 

the merit-staffing requirement and urged 

the Department to preserve the 

longstanding staffing flexibility afforded 

to Colorado, Michigan, and 

Massachusetts and to grandfather in 

Missouri. Missouri asserted that ‘‘the 

back-and-forth decision to allow and 

then disallow Wagner-Peyser Act 

flexibility would cause unnecessary 

disruptions for service delivery.’’ 

Missouri also claimed that the merit 

status requirement would place an 

unnecessary burden on local workforce 

development boards that ‘‘have planned 

for, budgeted for, and implemented’’ ES 

services. 

In the NPRM, the Department sought 

additional input about transition costs, 

but did not receive pertinent data for 

use in the final rule. The comments 

from Delaware, Indiana, and Missouri 

did not include estimates of their 

potential transition costs. Therefore, the 

Department is unable to quantify the 

transition costs that those three States 

will incur but does not anticipate that 

the transition costs will be large enough 

for this rule to be deemed a significant 

regulatory action under sec. 3(f)(1) of 

E.O. 12866. 

c. Information Collection Costs 

Information collection costs represent 

direct costs to States associated with the 

information collection requests (ICRs) 

under this rule. Five ICRs are herein 

discussed. 

The first ICR pertains to the 

requirement that SWA Wagner-Peyser 

programs document Participant 

Individual Record Layout (PIRL) data 

element 413 for all reportable 

individuals. The Department anticipates 

that this provision will entail three 

costs: (1) computer programming, (2) 

additional time for ES staff to help 

individuals register for services, and (3) 

additional time for SMAs to check the 

accuracy of the MSFW coding. SWAs 

will need to reprogram their ES 

registration systems to ask MSFW status 

(PIRL 413) questions earlier in the 

registration process. The Department 

anticipates that reprogramming will cost 

an average of $4,000 per jurisdiction,19

so the total one-time cost for 

reprogramming is estimated at $228,000 

(= $4,000 × 57 jurisdictions). For the 

additional annual burden on ES staff, 

the Department anticipates that it will 

take an ES staff member an average of 

2 minutes per reportable individual to 

ask the additional MSFW questions and 

record the answers. To estimate this 

cost, the Department used the median 

hourly wage of $27.05 for educational, 

guidance, and career counselors and 

advisors (SOC code 21–1012) employed 

by State governments (NAICS 

999200).20 The Department used a 62- 


ddrumheller on DSK120RN23PROD with RULES2
Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 82719 

Employment and Wage Estimates, NAICS 999200, 

SOC 21–1012.’’ https://www.bls.gov/oes/current/ 

naics4_999200.htm. 

21 BLS, ‘‘Occupational Employment and Wage 

Statistics, National Industry-Specific Occupational 

Employment and Wage Estimates, NAICS 999200, 

SOC 11–9151.’’ https://www.bls.gov/oes/current/ 

naics4_999200.htm. 

percent benefits rate and a 17-percent 

overhead rate, so the fully loaded hourly 

wage is $48.42 [= $27.05 + ($27.05 × 

62%) + ($27.05 × 17%)]. Assuming ES 

staff assist in registering half of the 9.4 

million reportable individuals (based on 

the average for Program Years 2018– 

2021), the annual cost is estimated at 

$7,609,895 (= 9,429,858 reportable 

individuals × 50% × 2 minutes × $48.42 

per hour). For the annual burden on 

SMAs, the Department anticipates that 

it will take an SMA 1 hour per quarter 

to check the accuracy of the MSFW 

coding. To estimate this cost, the 

Department used the median hourly 

wage of $38.48 for social and 

community service managers (SOC code 

11–9151) employed by State 

governments (NAICS 999200).21 The 

Department used a 62-percent benefits 

rate and a 17-percent overhead rate, so 

the fully loaded hourly wage is $68.88 

[= $38.48 + ($38.48 × 62%) + ($38.48 × 

17%)]. Therefore, the annual cost is 

estimated at $15,705 (= 57 SMAs × 4 

hours per year × $68.88 per hour). 

The second ICR pertains to the 

requirement that SWA applicantholding offices provide workers referred 

on clearance orders with a checklist 

summarizing wages, working 

conditions, and other material 

specifications in the clearance order. 

The Department anticipates that it will 

take an ES staff member an average of 

35 minutes to read the clearance order, 

create a checklist, and provide the 

checklist to applicants. To estimate this 

cost, the Department used a fully loaded 

hourly wage of $48.42 for educational, 

guidance, and career counselors and 

advisors (SOC code 21–1012) employed 

by State governments (NAICS 999200). 

Assuming 14,580 clearance orders per 

year (based on the number of clearance 

orders reported by SWAs in Program 

Year 2019), the annual cost is estimated 

at $411,812 (= 14,580 clearance orders 

× 35 minutes × $48.42 per hour). 

The third ICR pertains to the changes 

associated with the Migrant and 

Seasonal Farmworker Monitoring 

Report and Complaint/Apparent 

Violation Form. The Department 

anticipates that this provision will 

entail two costs: (1) time for ES 

Managers to update a central complaint 

log, and (2) additional time for SMAs to 

complete the Annual Summary due to 

content changes. For the annual burden 

on ES Managers, the Department 

anticipates that it will take an ES 

Manager 8 hours per year to update the 

central complaint log. To estimate this 

cost, the Department used a fully loaded 

median hourly wage of $68.88 for social 

and community service managers (SOC 

code 11–9151) employed by State 

governments (NAICS 999200). 

Assuming that there are approximately 

2,400 ES Managers (based on the 

approximate number of one-stop 

centers), the annual cost is estimated at 

$1,322,496 (= 2,400 ES Managers × 8 

hours per year × $68.88 per hour). For 

the annual burden on SMAs, the 

Department anticipates that it will take 

an SMA an additional 3 hours per year 

to complete the Annual Summary due 

to content changes. To estimate this 

cost, the Department used a fully loaded 

median hourly wage of $68.88 for social 

and community service managers (SOC 

code 11–9151) employed by State 

governments (NAICS 999200). 

Therefore, the annual cost is estimated 

at $11,778 (= 57 SMAs × 3 hours per 

year × $68.88 per hour). 

The fourth ICR pertains to this rule’s 

merit-staffing requirement. The 

Department will require States to 

describe in their Unified or Combined 

State Plans how the State will staff labor 

exchange services under the WagnerPeyser Act using State merit staff. The 

Department does not anticipate 

additional costs related to this 

requirement given that States must 

already describe in their Unified or 

Combined State Plans how ES labor 

exchange services will be delivered. 

The fifth ICR pertains to the 

forthcoming evaluation of three States: 

Colorado, Massachusetts, and Michigan. 

The Department will develop an 

evaluation to examine various staffing 

models and methods of delivering labor 

exchange services, to determine whether 

such models are empirically supported. 

The pertinent estimates will be included 

in a future ICR. 

In total for the first three ICRs 

described above, the rule is expected to 

have first-year IC costs of $9.6 million 

(2022$). Over the 10-year analysis 

period, the annualized costs are 

estimated at $9.4 million at a discount 

rate of 7 percent (2022$). 

3. Transfer Payments 

According to OMB Circular A–4, 

transfer payments are monetary 

payments from one group to another 

that do not affect the total resources 

available to society. The transfer 

payments for this rule are the transfer 

payments associated with employee 

wages, fringe benefits, and overhead 

costs. 

This final rule permits three States— 

Colorado, Massachusetts, and 

Michigan—to use their longstanding 

alternative staffing model to deliver ES 

services. The requirement to use State 

merit staff applies to the other 54 States 

and jurisdictions; therefore, the three 

States (i.e., Delaware, Indiana, and 

Missouri) that implemented the staffing 

flexibility provided by the 2020 Final 

Rule will need to adjust their staffing 

arrangements and may incur additional 

wage costs. For purposes of E.O. 12866, 

these additional wage costs are 

categorized as transfer payments from 

States to employees. 

The Delaware Department of Labor 

stated in its comments on the NPRM 

that ‘‘the proposed rule change will take 

away funding for 13 total contractual 

staff.’’ Delaware did not provide 

position titles or salary information in 

its comments. Therefore, the 

Department is unable to estimate the 

transfer payments for Delaware due to a 

lack of data. 

In their comments on the NPRM, the 

Indiana Department of Workforce 

Development and the Missouri Office of 

Workforce Development expressed 

opposition to the proposal but did not 

provide information about the number, 

position titles, or annual salaries of the 

non-State-merit staff dedicated to 

delivering ES services. Therefore, the 

Department is unable to estimate the 

transfer payments for Indiana and 

Missouri due to a lack of data. 

The Department does not anticipate 

that the transfer payments for Delaware, 

Indiana, and Missouri will be large 

enough for this rule to be deemed a 

significant regulatory action under sec. 

3(f)(1) of E.O. 12866. 

4. Nonquantifiable Benefits 

The Department is requiring that 

States use only State merit staff to 

deliver ES labor exchange services, with 

exceptions for three States. The COVID– 

19 pandemic placed an enormous 

burden on State UI programs due to the 

significant increase in UI claims from 

the massive number of unemployed 

workers. The number of continued 

claims rose from fewer than 2 million 

before the pandemic to more than 20 

million in the week ended May 9, 2020. 

It became evident to the Department 

that, during a crisis that displaces a 

large number of workers in a short time, 

it could become imperative for States to 

shift staff resources from ES services to 

support urgent UI services. Being able to 

do so, however, requires that ES labor 

exchange services be provided only by 

State merit staff because certain UI 

services are required to be delivered 

solely by State merit staff pursuant to 


ddrumheller on DSK120RN23PROD with RULES2
82720 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

sec. 303(a)(1) of the SSA. Requiring 

labor exchange services to be provided 

by State merit staff will help ensure that 

States have the flexibility to shift staff 

resources during future surges in UI 

claims where time-limited legislative 

flexibilities to UI services are not 

available. Further, this ensures that UI 

services will be performed by qualified 

staff who are familiar with the 

requirements of the program during 

such future occurrences, ensuring the 

program’s integrity. 

The benefits of requiring States to use 

only State merit staff to deliver ES labor 

exchange services are not entirely 

quantifiable. Yet, in addition to States 

benefiting from the availability of State 

merit staff to assist with a surge in UI 

claims, benefits also accrue to 

individuals accessing labor exchange 

services delivered by State merit 

personnel. State merit-staffed employees 

are accountable only to their State 

government, are hired through objective, 

transparent standards, and must deliver 

services to all customers of the ES 

system according to established 

standards. In exercising its discretion 

under sec. 3(a) of the Wagner-Peyser Act 

to establish minimum levels of 

efficiency and promote the uniform 

administration of labor exchange 

services by requiring the use of State 

merit staff to deliver labor exchange 

services, the Department has 

determined that alignment of ES and UI 

staffing is needed to ensure that quality 

services are delivered by States 

effectively and equitably to UI 

beneficiaries and other ES customers. 

The Department is also amending the 

regulations governing ES labor exchange 

services provided to MSFWs, the 

Monitor Advocate System, and the 

Complaint System. These amendments 

remove redundancies, clarify 

requirements, and enhance equity and 

inclusion for farmworkers in the ES 

system. The requirement that States use 

State merit staff to provide services to 

MSFWs benefits MSFWs, who are 

particularly vulnerable to employmentrelated abuses. Outreach and SMA staff 

receive centralized training and 

management from the State to ensure 

they are equipped to assess and respond 

to farmworker needs, including 

responding to complaints and apparent 

violations in the field, which may 

include highly sensitive subject matter 

like human trafficking. 

5. Summary 

Exhibit 1 shows the annualized rule 

familiarization and IC costs at discount 

rates of 3 percent and 7 percent. The 

rule is expected to have first-year rule 

familiarization costs of $4,681 and firstyear IC costs of $9.6 million (2022$). 

Over the 10-year analysis period, the 

annualized rule familiarization costs are 

estimated at $623 at a discount rate of 

7 percent and the annualized IC costs 

are estimated at $9.4 million at a 

discount rate of 7 percent (2022$). 

Due to data limitations, the 

Department is unable to quantify the 

transition costs or transfer payments 

that are likely to be incurred by 

Delaware, Indiana, and Missouri as they 

transition the delivery of all ES services 

to State merit staff. The Department 

does not anticipate that the transition 

costs or transfer payments will be large 

enough for this rule to be deemed a 

significant regulatory action under sec. 

3(f)(1) of E.O. 12866. 

6. Regulatory Alternatives 

OMB Circular A–4 directs agencies to 

analyze alternatives if such alternatives 

best satisfy the philosophy and 

principles of E.O. 12866. Accordingly, 

the Department considered the 

following regulatory alternatives. 

a. Alternative 1 

Under this alternative, the 

Department would require all States and 

jurisdictions to use State merit staff to 

provide ES services, including 

Colorado, Massachusetts, and Michigan. 

In other words, under this alternative, 

the Department would adopt the 

proposal described in the NPRM. After 

careful consideration, the Department is 

not pursuing this alternative. The 

Department recognizes the strong 

reliance interests of Colorado, 

Massachusetts, and Michigan and is 

therefore permitting these three States to 

continue using their approved 

longstanding staffing model to deliver 

ES services. These three States must 

participate in evaluations of ES service 

delivery to be conducted by the 

Department. 

b. Alternative 2 

Under this alternative, the 

Department would require States to 

come into compliance with the 

requirement to use State merit staff 

within 30 or 60 days of issuance of the 

final rule. The Department is not 

pursuing this alternative because it 

could result in interruption to ES labor 

exchange services in the three States not 

already operating in compliance with 


ddrumheller on DSK120RN23PROD with RULES2ER24NO23.037</GPH>

1 $ 4,681 $ 9,599,686 $ 9,604,367 

2 $ - $ 9,371,686 $ 9,371,686 

3 $ - $ 9,371,686 $ 9,371,686 

4 $ - $ 9,371,686 $ 9,371,686 

5 $ - $ 9,371,686 $ 9,371,686 

6 $ - $ 9,371,686 $ 9,371,686 

7 $ - $ 9,371,686 $ 9,371,686 

8 $ - $ 9,371,686 $ 9,371,686 

9 $ - $ 9,371,686 $ 9,371,686 

10 $ - $ 9,371,686 $ 9,371,686 

Annualized with 7% discounting $ 623 $ 9,402,025 $ 9,402,647 

Annualized with 3% discountin $ 533 $ 9,397,636 $ 9,398,169 
Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 82721 

the rule: Delaware, Indiana, and 

Missouri. The Department recognizes 

that this rule may be a substantial 

change for those three States, and they 

may need time to make adjustments to 

personnel, contractual arrangements, 

and service provision. Under this 

alternative, with only 30 or 60 days to 

rapidly shift existing staff or hire new 

staff, Delaware, Indiana, and Missouri 

may find themselves in violation of 

contracts for services negotiated after 

the 2020 Final Rule. Accordingly, the 

Department is providing 24 months 

from the effective date of the final rule 

for States to comply with the State 

merit-staffing requirement rather than 

stipulating that the States comply 

immediately. 

B. Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act of 1996, and Executive 

Order 13272 (Proper Consideration of 

Small Entities in Agency Rulemaking) 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. chapter 6, requires the 

Department to evaluate the economic 

impact of this rule on small entities. The 

RFA defines small entities to include 

small businesses, small organizations, 

including not-for-profit organizations, 

and small governmental jurisdictions. 

The Department must determine 

whether the rule will impose a 

significant economic impact on a 

substantial number of such small 

entities. The Department concludes that 

this rule does not regulate any small 

entities directly, so any regulatory effect 

on small entities will be indirect. 

Accordingly, the Department has 

determined this rule will not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the RFA. 

C. Paperwork Reduction Act of 1995 

The purposes of the Paperwork 

Reduction Act of 1995 (PRA), 44 U.S.C. 

3501 et seq., include minimizing the 

paperwork burden on affected entities. 

The PRA requires certain actions before 

an agency can adopt or revise a 

collection of information, including 

publishing for public comment a 

summary of the collection of 

information and a brief description of 

the need for and proposed use of the 

information. 

As part of its continuing effort to 

reduce paperwork and respondent 

burden, the Department conducts a 

preclearance consultation program to 

provide the public and Federal agencies 

with an opportunity to comment on 

proposed and continuing collections of 

information in accordance with the 

PRA. See 44 U.S.C. 3506(c)(2)(A). This 

activity helps to ensure that the public 

understands the Department’s collection 

instructions, respondents can provide 

the requested data in the desired format, 

reporting burden (time and financial 

resources) is minimized, collection 

instruments are clearly understood, and 

the Department can properly assess the 

impact of collection requirements on 

respondents. 

A Federal agency may not conduct or 

sponsor a collection of information 

unless it is approved by OMB under the 

PRA and it displays a currently valid 

OMB control number. The public is also 

not required to respond to a collection 

of information unless it displays a 

currently valid OMB control number. In 

addition, notwithstanding any other 

provisions of law, no person will be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number (44 U.S.C. 3512). 

In accordance with the PRA, the 

Department has submitted four ICRs to 

OMB in concert with the publishing of 

this final rule. 

The ICRs in this final rule are 

summarized as follows. 

Agency: DOL–ETA. 

Title of Collection: DOL-Only 

Performance Accountability, 

Information, and Reporting System for 

Reportable Individuals. 

Type of Review: New Collection. 

OMB Control Number: 1205–0NEW. 

Description: The Department is 

requesting a new OMB control number 

for this collection. The request for a new 

control number is for administrative 

reasons only. The changes to 

§§ 653.103(a) and 653.109(a)(10) in this 

rulemaking described subsequently will 

eventually be included in OMB Control 

Number 1205–0521. The Department is 

anticipating that a few different 

upcoming rulemakings will impact the 

ICs contained in OMB Control Number 

1205–0521. Once all outstanding actions 

are final and complete, the Department 

intends to submit a nonmaterial change 

request to transfer the burden from the 

new ICR to the existing OMB control 

number for the DOL-Only Performance 

Accountability, Information, and 

Reporting System (1205–0521) and 

proceed to discontinue the use of the 

new control number. 

This final rule adds a requirement 

that SWA Wagner-Peyser programs must 

document PIRL data element 413 for 

reportable individuals. The DOL-only 

PIRL ETA 9172 already requires 

Wagner-Peyser programs to document 

data element 413 for participants. This 

change will help ES staff identify all 

individuals who engage in ES services 

who are MSFWs and the degree of their 

engagement, so that SWAs, SMAs, and 

the Department may better assess 

whether all Wagner-Peyser services are 

provided to MSFWs on an equitable 

basis. Collecting data about participant 

and reportable individual 

characteristics, particularly related to 

populations that have been historically 

underserved, is an important tool for 

measuring progress in providing equal 

opportunity. The final rule also makes 

changes to the definitions of migrant 

farmworker and seasonal farmworker. 

The Department plans to submit a new 

ICR that will update ETA 9172 to 

indicate that Wagner-Peyser programs 

must document and keep records of 

PIRL data element 413 for reportable 

individuals and align the definitions of 

migrant farmworker and seasonal 

farmworker with revisions at § 651.10. 

Affected Public: State Governments. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

22,687,331. 

Estimated Total Annual Responses: 

46,167,618. 

Estimated Total Annual Burden 

Hours: 10,629,971. 

Estimated Costs to Respondents or 

Recordkeepers: $9,719,287. 

Regulations Sections: §§ 653.103(a), 

653.109(a)(10). 

The preceding IC was the subject of a 

public comment, which the Department 

summarizes and responds to as follows. 

Comment: A private citizen sought to 

call attention to what they described as 

‘‘an apparent typographical error’’ in the 

NPRM’s PRA section on the DOL-Only 

Performance Accountability, 

Information, and Reporting System for 

Reportable Individuals IC. The 

commenter stated that the estimated 

total annual burden hours of 

10,610,629,971 stood out as an 

erroneous figure because it is beyond 

the current government-wide 

cumulative paperwork burden (citing 

OMB’s figure of 10,521,540,269.2 

hours), and because the supporting 

statement for the IC in question listed 

the total annual burden hours at 

10,629,971 hours (citing Table 8). The 

commenter said it appears that the 

Department mistakenly added an extra 

‘‘610’’ to that figure. 

A State agency commented that, if the 

proposed requirement is adopted, it 

would cost $30,000 to $50,000 to update 

its IT systems to track the MSFW-status 

of reportable individuals, and it asked 

the Department to provide additional 

funding to cover these costs. 

Response: The Department 

acknowledges that estimated total 

annual burden hours for this collection 


ddrumheller on DSK120RN23PROD with RULES2
82722 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

is 10,629,971, not 10,610,629,971. The 

Department notes that it only received 

one comment indicating that the cost to 

update IT systems could be higher than 

the Department’s estimate of $4,000 per 

jurisdiction. The Department’s estimate 

is based on anecdotal evidence from 

other States, which indicated the change 

could cost a one-time expense of $2,000 

to $6,000. The Department notes that 

some States may have higher costs, 

while other States may have lower costs. 

The change to this collection does not 

establish a new data element. Instead, it 

only requires States to make the existing 

data element 413, which is already 

required for participants, applicable to 

reportable individuals. The Department 

expects the burden to be minimal and 

will finalize the collection as proposed. 

Agency: DOL–ETA. 

Title of Collection: Clearance Order 

Checklists. 

Type of Review: New Collection. 

OMB Control Number: 1205–0NEW. 

Description: In the NPRM, the 

Department proposed to add a new IC 

to address the requirements at 20 CFR 

653.501(d)(6), which requires SWAs to 

provide farmworkers with ‘‘checklists 

showing wage payment schedules, 

working conditions, and other material 

specifications of the clearance order,’’ 

and 20 CFR 653.501(d)(10), which 

requires SWA applicant-holding offices 

to provide workers referred on clearance 

orders with a checklist summarizing 

wages, working conditions, and other 

material specifications in the clearance 

order. The Department proposed to 

include a new Agricultural Clearance 

Order Form, ETA Form 790B, and to 

withdraw OMB Control Number 1205– 

0134, which at the time of the NPRM 

was an expired ICR for which a 

submission requesting reinstatement 

was pending at OMB. Since the 

publication of the NPRM, OMB 

approved OMB Control Number 1205– 

0134, and therefore there is no need to 

withdraw OMB Control Number 1205– 

0134 or to create a new OMB Control 

Number for Form ETA–790B. For this 

reason, the Department declines to 

finalize the new collection for Form 

ETA–790B; however, the Department 

will finalize the collection for the 

checklist requirements and will revise 

the title of the new collection to be 

Clearance Order Checklists. The 

Department has also revised the burden 

estimates to only include information 

for the checklist requirements. 

Affected Public: State Governments, 

Private Sector: Business or other forprofits, not-for-profit institutions, and 

farms. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

24,030. 

Estimated Total Annual Responses: 

24,030. 

Estimated Total Annual Burden 

Hours: 13,937. 

Estimated Total Annual Other Burden 

Costs: $0. 

Regulations Sections: § 653.501(d)(6) 

and (10). 

Agency: DOL–ETA. 

Title of Collection: Migrant and 

Seasonal Farmworker Monitoring 

Report and Complaint/Apparent 

Violation Form. 

Type of Review: Revision. 

OMB Control Number: 1205–0039. 

Description: The final rule requires 

four areas to be changed in this ICR. 

First, there are several changes to the 

required content of the SMA’s Annual 

Summary, described at § 653.108, 

including a summary of how the SMA 

is working with the State-level E.O. 

Officer, an assurance that the SMA is a 

senior-level official who reports directly 

to the State Administrator or their 

designee, an evaluation of SMA staffing 

levels, a summary and analysis of 

outreach efforts, and other minor edits 

to language used to describe content in 

the summary. To implement these 

changes, the Department also is revising 

the ETA Form 5148 to include the 

content. Second, the Department is 

making two non-substantive corrections 

to the ETA Form 5148: (1) adding 

transportation to the types of apparent 

violations reported in part 1, section E, 

item 3; and (2) revising part 3, items 2 

and 3 so that the field check 

requirements conform to the existing 

regulation at § 653.501. The Department 

is adding transportation to the types of 

apparent violations because the types of 

apparent violations listed on the form 

are intended to exactly mirror the types 

of complaints reported in section D, 

item 2. Transportation was 

inadvertently omitted from the prior ICR 

revision. Third, the Department is 

adding a new IC to conform with the 

change to § 653.107(b)(8), which 

requires that ES Office Managers 

maintain MSFW outreach logs on file 

for at least 3 years, to comply with 2 

CFR 200.334. Fourth, the Department is 

adding an IC to this ICR to explain the 

recordkeeping requirements established 

at § 658.410(c) regarding maintaining a 

central complaint log. The Department 

is not establishing a required form, but 

rather describing the minimum contents 

that must be included in any complaint 

logs SWAs create. In addition, the 

Department is revising the ETA Form 

5148 to conform with revisions to the 

minimum level of service indicators to 

request information regarding outreach 

contacts per quarter as opposed to per 

week as currently required under 

§ 653.109(h). 

Affected Public: State Governments. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

5,536. 

Estimated Total Annual Responses: 

11,450. 

Estimated Total Annual Burden 

Hours: 29,440. 

Estimated Total Annual Other Burden 

Costs: $0. 

Regulations Sections: 2 CFR 200.334; 

20 CFR 653.107(b)(8), 653.108, 

653.109(h), and 658.410(c). 

Agency: DOL–ETA. 

Title of Collection: Wagner-Peyser 

Employment Service Required Elements 

for the Unified or Combined State Plan. 

Type of Review: New Collection. 

OMB Control Number: 1205–0NEW. 

Description: The Department is 

requesting a new OMB control number 

for this collection. The request for a new 

control number is for administrative 

reasons only. The changes in this 

rulemaking described subsequently will 

eventually be included in OMB Control 

Number 1205–0522 (expires Mar. 31, 

2026). After this rule is published and 

before the expiration of OMB Control 

Number 1205–0522, the Department 

intends to submit a nonmaterial change 

request to transfer the burden from the 

new ICR to the existing OMB control 

number for the Required Elements for 

Submission of the Unified or Combined 

State Plan and Plan Modifications under 

the Workforce Innovation and 

Opportunity Act (1205–0522) and 

proceed to discontinue the use of the 

new control number. 

The final rule requires all States to 

provide Wagner-Peyser Act ES services 

through State merit staff, except for 

three States that the Department is 

permitting to use their approved 

longstanding alternative staffing models. 

The Department is creating a new ICR 

to require Unified or Combined State 

Plans to describe how the State will staff 

labor exchange services under the 

Wagner-Peyser Act using State merit 

staff. Similarly, the Department is 

reinstituting the SWA’s requirement to 

provide assurances that it will use State 

merit staff to deliver ES services. The 

final rule also provides several 

clarifications regarding outreach and 

significant MSFW one-stop center 

staffing, including changes to the 

content of the AOP. The changes will 

require revision to the AOP instructions. 

The AOP instructions in the final 

submission to OMB reflect one change 

from the NPRM related to outreach 

staffing levels that the Department is 


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making in § 653.107(a)(4) and (d)(2) in 

this final rule. 

Affected Public: State Governments. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

57 (every 2 years). 

Estimated Total Annual Responses: 

38 (every 2 years). 

Estimated Total Annual Burden 

Hours: 8,136 (every 2 years). 

Estimated Total Annual Other Burden 

Costs: $0 (every 2 years). 

Regulations Sections: §§ 652.215; 

653.107(a)(1), (a)(4), (b)(11), and 

(d)(2)(ii) through (v). 

Interested parties may obtain a copy 

free of charge of one or more of the ICRs 

submitted to OMB on the OIRA website 

at https://www.reginfo.gov/public/do/ 

PRAMain. From that page, select 

Department of Labor from the 

‘‘Currently under Review’’ dropdown 

menu, click the ‘‘Submit’’ button, and 

find the applicable control number 

among the ICRs displayed. 

D. Executive Order 13132 (Federalism) 

E.O. 13132 requires Federal agencies 

to ensure that the principles of 

Federalism animating our Constitution 

guide the executive departments and 

agencies in the formulation and 

implementation of policies, and to 

further the policies of the Unfunded 

Mandates Reform Act of 1995 (UMRA). 

Further, agencies must strictly adhere to 

constitutional principles. Agencies must 

closely examine the constitutional and 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States 

and they must carefully assess the 

necessity for any such action. To the 

extent practicable, State and local 

officials must be consulted before any 

such action is implemented. Section 

3(b) of the E.O. further provides that 

Federal agencies must implement 

regulations that have a substantial direct 

effect only if statutory authority permits 

the regulation and it is of national 

significance. The Department has 

reviewed the final rule in light of these 

requirements and has concluded that it 

is properly premised on the statutory 

authority given to the Secretary to set 

standards under the Wagner-Peyser Act. 

Accordingly, the Department has 

reviewed this final rule and has 

concluded that the rulemaking has no 

substantial direct effects on States, the 

relationship between the National 

Government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government as described by 

E.O. 13132. Therefore, the Department 

has concluded that this final rule does 

not have a sufficient Federalism 

implication to require further agency 

action or analysis. 

E. Unfunded Mandates Reform Act of 

1995 

Title II of UMRA, Public Law 104–4, 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a final agency 

rule that may result in an expenditure 

of $100 million or more (adjusted 

annually for inflation with the base year 

1995) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector. This final rule 

does not exceed the $100 million 

expenditure in any one year when 

adjusted for inflation. Therefore, the 

requirements of title II of UMRA do not 

apply, and the Department has not 

prepared a statement under UMRA. 

Comment: Some commenters, 

including a State workforce 

development board, a professional 

association, and an association of State 

elected officials, argued that the 

proposal would create an unfunded 

Federal mandate because States’ costs 

would increase due to the loss of 

flexibility and the need to recruit State 

merit staff and cross-train workers to 

support UI adjudication. A professional 

association, an association of workforce 

boards, and a State workforce 

development board similarly argued 

that the proposal would create an 

unfunded Federal mandate because it 

would force States to make additional 

long-term investments to employ State 

merit staff. 

Response: The regulation contains no 

unfunded mandates as defined in 2 

U.S.C. 658. The Department has detailed 

the cost burden associated with this 

final rule in section VI. Wagner-Peyser 

Employment Service grant funding is 

provided annually to deliver 

employment services, and that funding 

will be used to cover the cost of 

implementing this rule. Under UMRA, a 

Federal mandate is any provision in a 

regulation that imposes an enforceable 

duty upon State, local, or tribal 

governments, or imposes a duty upon 

the private sector that is not voluntary. 

The Wagner-Peyser act, as amended by 

WIOA, authorizes ES activities. These 

program requirements are supported by 

Federal formula grant funds, and, 

accordingly, are not considered 

unfunded mandates. 

F. Executive Order 13175 (Indian Tribal 

Governments) 

The Department has reviewed this 

final rule under the terms of E.O. 13175 

and DOL’s Tribal Consultation Policy 

and has concluded that the changes to 

regulatory text would not have tribal 

implications. These changes do not have 

substantial direct effects on one or more 

Indian tribes, the relationship between 

the Federal government and Indian 

tribes, nor the distribution of power and 

responsibilities between the Federal 

government and Tribal Governments. 

G. Plain Language 

E.O. 12866, E.O. 13563, and the 

Presidential Memorandum of June 1, 

1998 (Plain Language in Government 

Writing), direct executive departments 

and agencies to use plain language in all 

rulemaking documents published in the 

Federal Register. The goal is to make 

the government more responsive, 

accessible, and understandable in its 

communications with the public. 

Accordingly, the Department drafted 

this final rule in plain language. 

List of Subjects 

20 CFR Part 651 

Employment, Grant programs—labor. 

20 CFR Part 652 

Employment, Grant programs—labor, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 653 

Agriculture, Employment, Equal 

employment opportunity, Grant 

programs—labor, Migrant labor, 

Reporting and recordkeeping 

requirements. 

20 CFR Part 658 

Administrative practice and 

procedure, Employment, Grant 

programs—labor, Reporting and 

recordkeeping requirements. 

For the reasons discussed in the 

preamble, the Department of Labor 

amends 20 CFR parts 651, 652, 653, and 

658 as follows: 

PART 651—GENERAL PROVISIONS 

GOVERNING THE WAGNER-PEYSER 

ACT EMPLOYMENT SERVICE 

■ 1. The authority citation for part 651 

is revised to read as follows: 

Authority: 29 U.S.C. 49a and 49k; 38 

U.S.C. 101, chapters 41 and 42; Secs. 3, 189 

and 503, Pub. L. 113–128, 128 Stat. 1425 (Jul. 

22, 2014). 

■ 2. Amend § 651.10 by: 

■ a. Revising the introductory text; 

■ b. Adding in alphabetical order a 

definition for ‘‘Apparent violation’’; 

■ c. Revising the definitions of 

‘‘Applicant holding office,’’ ‘‘Bona fide 

occupational qualification (BFOQ),’’ 

‘‘Career services,’’ ‘‘Clearance order,’’ 

‘‘Complaint System Representative,’’ 


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‘‘Decertification,’’ ‘‘Employment and 

Training Administration (ETA),’’ 

‘‘Employment Service (ES) office,’’ 

‘‘Employment Service (ES) Office 

Manager,’’ ‘‘Employment Service (ES) 

staff,’’ ‘‘Field checks,’’ ‘‘Field visits,’’ 

‘‘Hearing Officer,’’ ‘‘Interstate clearance 

order,’’ ‘‘Intrastate clearance order,’’ and 

‘‘Migrant farmworker’’; 

■ d. Removing the definition of 

‘‘Migrant food processing worker’’; 

■ e. Revising the definitions of 

‘‘Occupational Information Network 

(O*NET),’’ ‘‘O*NET–SOC,’’ ‘‘Outreach 

staff,’’ ‘‘Participant,’’ ‘‘Placement,’’ 

‘‘Reportable individual,’’ ‘‘Respondent,’’ 

‘‘Seasonal farmworker,’’ ‘‘Significant 

MSFW one-stop centers,’’ and 

‘‘Significant MSFW States’’; 

■ f. Removing the definitions of 

‘‘Significant multilingual MSFW onestop centers’’ and ‘‘State Workforce 

Agency (SWA) official’’; and 

■ g. Revising the definition of ‘‘WagnerPeyser Act Employment Service (ES) 

also known as Employment Service 

(ES).’’ 

The addition and revisions read as 

follows: 

§ 651.10 Definitions of terms used in this 

part and parts 652, 653, 654, and 658 of this 

chapter. 

In addition to the definitions set forth 

in sec. 3 of the Workforce Innovation 

and Opportunity Act (WIOA), codified 

at 29 U.S.C. 3101 et seq., the following 

definitions apply to the regulations in 

parts 652, 653, 654, and 658 of this 

chapter: 

* * * * * 

Apparent violation means a suspected 

violation of employment-related laws or 

employment service (ES) regulations by 

an employer, which an ES staff member 

observes, has reason to believe, or 

regarding which an ES staff member 

receives information (other than a 

complaint as defined in this part). 

Applicant holding office means an ES 

office that is in receipt of a clearance 

order and has access to U.S. workers 

who may be willing and available to 

perform farmwork on less than yearround basis. 

* * * * * 

Bona fide occupational qualification 

(BFOQ) means that an employment 

decision or request based on age, sex, 

national origin, or religion is based on 

a finding that such characteristic is 

necessary to the individual’s ability to 

perform the job in question. Since a 

BFOQ is an exception to the general 

prohibition against discrimination on 

the basis of age, sex, national origin, or 

religion, it must be interpreted narrowly 

in accordance with the Equal 

Employment Opportunity Commission 

regulations set forth at 29 CFR parts 

1604, 1605, 1606, and 1625. 

Career services means the services 

described in sec. 134(c)(2) of WIOA and 

§ 678.430 of this chapter. 

Clearance order means a job order 

that is processed through the clearance 

system under the Agricultural 

Recruitment System (ARS) at part 653, 

subpart F, of this chapter. 

* * * * * 

Complaint System Representative 

means a trained ES staff individual who 

is responsible for processing 

complaints. 

Decertification means the rescission 

by the Secretary of Labor (Secretary) of 

the year-end certification made under 

sec. 7 of the Wagner-Peyser Act to the 

Secretary of the Treasury that the State 

agency may receive funds authorized by 

the Wagner-Peyser Act. 

* * * * * 

Employment and Training 

Administration (ETA) means the 

component of the Department that 

administers Federal government job 

training and worker dislocation 

programs, Federal grants to States for 

public ES programs, and unemployment 

insurance benefits. These services are 

provided primarily through State and 

local workforce development systems. 

* * * * * 

Employment Service (ES) office means 

a site that provides ES services as a onestop partner program. A site must be 

colocated in a one-stop center consistent 

with the requirements of §§ 678.305 

through 678.315 of this chapter. 

Employment Service (ES) Office 

Manager means the ES staff person in 

charge of ES services provided in a onestop center. 

* * * * * 

Employment Service (ES) staff means 

individuals who are funded, in whole or 

in part, by Wagner-Peyser Act funds to 

carry out activities authorized under the 

Wagner-Peyser Act. 

* * * * * 

Field checks means unannounced 

appearances by ES staff and/or other 

State or Federal staff at agricultural 

worksites to which ES placements have 

been made through the intrastate or 

interstate clearance system to ensure 

that conditions are as stated on the 

clearance order and that the employer is 

not violating an employment-related 

law. 

Field visits means announced 

appearances by State Monitor 

Advocates, Regional Monitor Advocates, 

the National Monitor Advocate (or 

National Monitor Advocate staff), or 

outreach staff to the working, living, and 

gathering areas of migrant and seasonal 

farmworkers (MSFWs), to perform the 

duties described at §§ 653.107(b) 

(outreach staff), 653.108(o) and (q) (State 

Monitor Advocates), 658.602(n) 

(National Monitor Advocates and 

National Monitor Advocate staff), and 

658.603(p) (Regional Monitor 

Advocates). Monitor Advocates or 

outreach staff must keep records of each 

such visit. 

* * * * * 

Hearing Officer means a Department 

Administrative Law Judge, designated to 

preside at Department administrative 

hearings. 

* * * * * 

Interstate clearance order means an 

agricultural clearance order for 

temporary employment (employment on 

a less than year-round basis) describing 

one or more hard-to-fill job openings, 

which an ES office uses to request 

recruitment assistance from other ES 

offices in a different State. 

Intrastate clearance order means an 

agricultural clearance order for 

temporary employment (employment on 

a less than year-round basis) describing 

one or more hard-to-fill job openings, 

which an ES office uses to request 

recruitment assistance from all other ES 

offices within the State. 

* * * * * 

Migrant farmworker means a seasonal 

farmworker (as defined in this section) 

who travels to the job site so that the 

farmworker is not reasonably able to 

return to their permanent residence 

within the same day. 

* * * * * 

Occupational Information Network 

(O*NET) means the online reference 

database which contains detailed 

descriptions of U.S. occupations, 

distinguishing characteristics, 

classification codes, and information on 

tasks, knowledge, skills, abilities, and 

work activities as well as information on 

interests, work styles, and work values. 

* * * * * 

O*NET–SOC means the occupational 

codes and titles used in the O*NET 

system, based on and grounded in the 

Standard Occupational Classification 

(SOC), which are the titles and codes 

utilized by Federal statistical agencies to 

classify workers into occupational 

categories for the purpose of collecting, 

calculating, and disseminating data. The 

SOC system is issued by the Office of 

Management and Budget and the 

Department is authorized to develop 

additional detailed O*NET occupations 

within existing SOC categories. The 

Department uses O*NET–SOC titles and 

codes for the purposes of collecting 

descriptive occupational information 

and for State reporting of data on 


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training, credential attainment, and 

placement in employment by 

occupation. 

* * * * * 

Outreach staff means ES staff with the 

responsibilities described in 

§ 653.107(b) of this chapter. State 

Monitor Advocates are not considered 

outreach staff. 

Participant means a reportable 

individual who has received services 

other than the services described in 

§ 677.150(a)(3) of this chapter, after 

satisfying all applicable programmatic 

requirements for the provision of 

services, such as eligibility 

determination. (See § 677.150(a) of this 

chapter.) 

(1) The following individuals are not 

participants, subject to 

§ 677.150(a)(3)(ii) and (iii) of this 

chapter: 

(i) Individuals who only use the selfservice system; and 

(ii) Individuals who receive 

information-only services or activities. 

(2) ES participants must be included 

in the program’s performance 

calculations. 

Placement means the hiring by a 

public or private employer of an 

individual referred by the ES office for 

a job or an interview, provided that the 

ES office completed all the following 

steps: 

(1) Prepared a job order form prior to 

referral, except in the case of a job 

development contact on behalf of a 

specific participant; 

(2) Made prior arrangements with the 

employer for the referral of an 

individual or individuals; 

(3) Referred an individual who had 

not been specifically designated by the 

employer, except for referrals on 

agricultural job orders for a specific 

crew leader or worker; 

(4) Verified from a reliable source, 

preferably the employer, that the 

individual had entered on a job; and 

(5) Appropriately recorded the 

placement. 

* * * * * 

Reportable individual means an 

individual who has taken action that 

demonstrates an intent to use ES 

services and who meets specific 

reporting criteria of the Wagner-Peyser 

Act (see § 677.150(b) of this chapter), 

including: 

(1) Individuals who provide 

identifying information; 

(2) Individuals who only use the selfservice system; or 

(3) Individuals who only receive 

information-only services or activities. 

Respondent means the individual or 

entity alleged to have committed the 

violation described in the complaint, 

such as the employer, service provider, 

or State agency. 

Seasonal farmworker means an 

individual who is employed, or was 

employed in the past 12 months, in 

farmwork (as defined in this section) of 

a seasonal or other temporary nature 

and is not required to be absent 

overnight from their permanent place of 

residence. Labor is performed on a 

seasonal basis where, ordinarily, the 

employment pertains to or is of the kind 

exclusively performed at certain seasons 

or periods of the year and which, from 

its nature, may not be continuous or 

carried on throughout the year. Workers 

who move from one seasonal activity to 

another, while employed in farmwork, 

are employed on a seasonal basis even 

though they may continue to be 

employed during a major portion of the 

year. Workers are employed on a 

temporary basis where they are 

employed for a limited time only or 

their performance is contemplated for a 

particular piece of work, usually of 

short duration. Generally, employment 

which is contemplated to continue 

indefinitely is not temporary. 

* * * * * 

Significant MSFW one-stop centers 

are those designated by the Department 

and include those ES offices where 

MSFWs account for 10 percent or more 

of annual participants or reportable 

individuals in ES and those local ES 

offices that the OWI Administrator 

determines must be included due to 

special circumstances such as an 

estimated large number of MSFWs in 

the service area. In no event may the 

number of significant MSFW one-stop 

centers be less than 100 centers on a 

nationwide basis. 

Significant MSFW States are those 

States designated by the Department 

and must include the 20 States with the 

highest estimated number of MSFWs. 

* * * * * 

State Workforce Agency (SWA) 

official means an individual employed 

by the State Workforce Agency or any of 

its subdivisions. 

* * * * * 

Wagner-Peyser Act Employment 

Service (ES) also known as Employment 

Service (ES) means the national system 

of public ES offices described under the 

Wagner-Peyser Act. ES services are 

delivered through a nationwide system 

of one-stop centers, managed by SWAs 

and the various local offices of the 

SWAs, and funded by the United States 

Department of Labor. 

* * * * * 

PART 652—ESTABLISHMENT AND 

FUNCTIONING OF STATE 

EMPLOYMENT SERVICE 

■ 3. The authority citation for part 652 

is revised to read as follows: 

Authority: 29 U.S.C. chapter 4B; 38 U.S.C. 

chapters 41 and 42; Secs. 189 and 503, Public 

Law 113–128, 128 Stat. 1425 (Jul. 22, 2014). 

■ 4. Amend § 652.8 by revising 

paragraphs (h), introductory text of 

paragraph (j), and (j)(2) and (3) to read 

as follows: 

§ 652.8 Administrative provisions. 

* * * * * 

(h) Other violations. Violations or 

alleged violations of the Wagner-Peyser 

Act, regulations, or grant terms and 

conditions except those pertaining to 

audits or discrimination must be 

determined and processed in 

accordance with part 658, subpart H, of 

this chapter. 

* * * * * 

(j) Nondiscrimination requirements. 

States must: 

* * * * * 

(2) Assure that discriminatory job 

orders will not be accepted, except 

where the stated requirement is a bona 

fide occupational qualification (BFOQ). 

See generally 42 U.S.C. 2000e–2(e) and 

29 CFR parts 1604, 1605, 1606, and 

1625. 

(3) Assure that ES offices are in 

compliance with the veteran referral 

and job listing requirements at 41 CFR 

60–300.84. 

* * * * * 

■ 5. Add § 652.10 to read as follows: 

§ 652.10 Severability. 

Should a court hold any portion of 

any provision of this part to be invalid, 

the provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision or subprovision will be 

severable from this part and will not 

affect the remainder thereof. 

■ 6. Revise the heading to subpart C to 

read as follows: 

Subpart C—Employment Service 

Services in a One-Stop Delivery 

System Environment 

■ 7. Amend § 652.204 by revising the 

section heading to read as follows: 

§ 652.204 Must funds authorized under the 

Wagner-Peyser Act Governor’s Reserve 

flow through the one-stop delivery system? 

* * * * * 

■ 8. Amend § 652.205 by revising 

paragraph (b)(3) to read as follows: 


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§ 652.205 May funds authorized under the 

Wagner-Peyser Act be used to supplement 

funding for labor exchange programs 

authorized under separate legislation? 

* * * * * 

(b) * * * 

(3) The activity provides services that 

are coordinated with ES services; and 

* * * * * 

■ 9. Amend § 652.207 by revising the 

section heading and paragraph (a) to 

read as follows: 

§ 652.207 How does a State meet the 

requirement for universal access to 

Employment Service services? 

(a) A State has discretion in how it 

meets the requirement for universal 

access to ES services. In exercising this 

discretion, a State must meet the 

Wagner-Peyser Act’s requirements. 

* * * * * 

■ 10. Revise § 652.215 to read as 

follows: 

§ 652.215 What staffing models must be 

used to deliver services in the Employment 

Service? 

(a) Except as provided in paragraph 

(b) of this section, the Secretary requires 

that States deliver the labor exchange 

services described in § 652.3 using State 

merit-staff employees employed 

according to the merit-system principles 

described in 5 CFR part 900, subpart F— 

Standards for a Merit System of 

Personnel Administration. This 

requirement also applies to the 

provision of services and activities 

under parts 653 and 658 of this chapter. 

(b) States authorized prior to February 

5, 2020, to use a staffing model other 

than that described in paragraph (a) of 

this section to deliver ES services may 

use the staffing model consistent with 

the model previously authorized for the 

State. These States may use meritstaffing flexibility only to the same 

extent that the Department had 

authorized it prior to February 5, 2020. 

(c) States using staffing models under 

paragraph (b) of this section are required 

to participate in evaluations of their 

delivery of ES services conducted by the 

Department. 

(d) All States must comply with the 

requirements in this section no later 

than January 22, 2026. 

PART 653—SERVICES OF THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE SYSTEM 

■ 11. The authority citation for part 653 

continues to read as follows: 

Authority: Secs. 167, 189, 503, Public Law 

113–128, 128 Stat. 1425 (Jul. 22, 2014); 29 

U.S.C. chapter 4B; 38 U.S.C. part III, chapters 

41 and 42. 

■ 12. Amend § 653.100 by revising 

paragraph (a) to read as follows: 

§ 653.100 Purpose and scope of subpart. 

(a) This subpart sets forth the 

principal regulations of the WagnerPeyser Act Employment Service (ES) 

concerning the provision of services for 

MSFWs consistent with the requirement 

that all services of the workforce 

development system be available to all 

job seekers in an equitable and 

nondiscriminatory fashion. This 

includes ensuring MSFWs have access 

to these services in a way that meets 

their unique needs. MSFWs must 

receive services on a basis which is 

qualitatively equivalent and 

quantitatively proportionate to services 

provided to non-MSFWs. 

* * * * * 

■ 13. Revise § 653.101 to read as 

follows: 

§ 653.101 Provision of services to migrant 

and seasonal farmworkers. 

SWAs must ensure that ES staff at 

one-stop centers offer MSFWs the full 

range of career and supportive services, 

benefits and protections, and job and 

training referral services as are provided 

to non-MSFWs. SWAs must ensure ES 

staff at the one-stop centers tailor such 

ES services in a way that accounts for 

individual MSFW preferences, needs, 

skills, and the availability of job and 

training opportunities, so that MSFWs 

are reasonably able to participate in the 

ES. 

■ 14. Amend § 653.102 by revising the 

third sentence and removing the fourth 

sentence to read as follows: 

§ 653.102 Job information. 

* * * SWAs must ensure ES staff at 

one-stop centers provide assistance to 

MSFWs to access job order information 

easily and efficiently. 

■ 15. Amend § 653.103 by revising 

paragraphs (a) through (c) to read as 

follows: 

§ 653.103 Process for migrant and 

seasonal farmworkers to participate in 

workforce development activities. 

(a) Each ES office must determine 

whether participants and reportable 

individuals are MSFWs as defined at 

§ 651.10 of this chapter. 

(b) SWAs must comply with the 

language access and assistance 

requirements at 29 CFR 38.9 with regard 

to all individuals with limited English 

proficiency (LEP), including MSFWs 

who are limited English proficient 

individuals, as defined at 29 CFR 

38.4(hh). This includes ensuring ES staff 

comply with these language access and 

assistance requirements. 

(c) One-stop centers must provide 

MSFWs a list of available career and 

supportive services. 

* * * * * 

■ 16. Amend § 653.107 by: 

■ a. Revising the section heading and 

paragraphs (a)(1), (a)(2)(i) and (ii), and 

(3); 

■ b. Revising paragraphs (a)(4), the first 

sentence of (a)(5), introductory text of 

paragraph (b), (b)(1), (b)(3), introductory 

text of (b)(4), (b)(4)(i) and (vi), (b)(6), 

(b)(7), the second sentence of (b)(8), and 

paragraphs (b)(11), (d)(2)(ii) through (v), 

and (d)(4) and (5). 

The revisions and additions read as 

follows: 

§ 653.107 Outreach responsibilities and 

Agricultural Outreach Plan. 

(a) * * * 

(1) Each SWA must ensure outreach 

staff conduct outreach as described in 

paragraph (b) of this section on an 

ongoing basis. State Administrators 

must ensure State Monitor Advocates 

(SMAs) and outreach staff coordinate 

activities with WIOA title I sec. 167 

grantees as well as with public and 

private community service agencies and 

MSFW groups. WIOA title I sec. 167 

grantees’ activities involving MSFWs 

does not substitute for SWA outreach 

responsibilities. 

(2) * * * 

(i) Communicate the full range of 

workforce development services to 

MSFWs; and 

(ii) Conduct thorough outreach efforts 

with extensive follow-up activities 

identified at paragraph (b)(5) of this 

section. 

(3) When hiring or assigning outreach 

staff, SWAs must ensure hiring officials: 

(i) Seek and put a strong emphasis on 

hiring and assigning qualified 

candidates who speak the language of a 

significant proportion of the State 

MSFW population; and 

(A) Who are from MSFW 

backgrounds; or 

(B) Who have substantial work 

experience in farmworker activities. 

(ii) Inform farmworker organizations 

and other organizations with expertise 

concerning MSFWs of job openings and 

encourage them to refer qualified 

applicants to apply. 

(4) Each SWA must ensure that there 

are an adequate number of outreach staff 

employed in the State to conduct MSFW 

outreach in each service area of the 

State and to contact a majority of 

MSFWs in the State annually. In the 20 

States with the highest estimated yearround MSFW activity, as identified by 

the Department, there must be full-time, 

year-round outreach staff to conduct 

outreach duties. Full-time means each 


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individual outreach staff person must 

spend 100 percent of their time on the 

outreach responsibilities described in 

paragraph (b) of this section. For the 

remainder of the States, there must be 

year-round part-time outreach staff, and 

during periods of the highest MSFW 

activity, there must be full-time 

outreach staff. These staffing levels must 

align with and be supported by 

information about the estimated number 

of farmworkers in the State and the 

farmworker activity in the State as 

demonstrated in the State’s Agricultural 

Outreach Plan (AOP) pursuant to 

paragraph (d) of this section. All 

outreach staff must be multilingual, if 

warranted by the characteristics of the 

MSFW population in the State, and 

must spend a majority of their time in 

the field. 

(5) The SWA must publicize the 

availability of ES services through such 

means as newspaper and electronic 

media publicity. * * * 

* * * * * 

(b) Outreach staff responsibilities. 

Outreach staff must locate and contact 

MSFWs who are not being reached by 

the normal intake activities conducted 

by the ES offices. Outreach staff 

responsibilities include the activities 

identified in paragraphs (b)(1) through 

(11) of this section. 

(1) Outreach staff must explain to 

MSFWs at their working, living, or 

gathering areas (including day-haul 

sites), by means of written and oral 

presentations either spontaneous or 

recorded, the following: 

* * * * * 

(3) After making the presentation, 

outreach staff must urge the MSFWs to 

go to the local one-stop center to obtain 

the full range of employment and 

training services. 

(4) If an MSFW cannot or does not 

wish to visit the local one-stop center, 

outreach staff must offer to provide onsite the following: 

(i) Assistance in the preparation of 

applications for ES services; 

* * * * * 

(vi) As needed, assistance in making 

appointments and arranging 

transportation for individual MSFW(s) 

or members of their family to and from 

local one-stop centers or other 

appropriate agencies. 

* * * * * 

(6) Outreach staff must be alert to 

observe the working and living 

conditions of MSFWs and if an outreach 

staff member observes or receives 

information about apparent violations, 

the outreach staff member must 

document and refer the information to 

the appropriate ES Office Manager (as 

described in § 658.419 of this chapter). 

(7) Outreach staff must be trained in 

one-stop center procedures and in the 

services, benefits, and protections 

afforded MSFWs by the ES, including 

training on protecting farmworkers 

against sexual harassment, sexual 

coercion, assault, and human 

trafficking. Such trainings are intended 

to help outreach staff identify when 

such issues may be occurring in the 

fields and how to document and refer 

the cases to the appropriate enforcement 

agencies. Outreach staff also must be 

trained in the Complaint System 

procedures at part 658, subpart E, of this 

chapter and be aware of the local, State, 

regional, and national enforcement 

agencies that would be appropriate to 

receive referrals. The program for such 

training must be formulated by the State 

Administrator, pursuant to uniform 

guidelines developed by ETA. The SMA 

must be given an opportunity to review 

and comment on the State’s program. 

(8) * * * These records must include 

a daily log, a copy of which must be 

sent monthly to the ES Office Manager 

and maintained on file for at least 3 

years. * * * 

* * * * * 

(11) Outreach staff in significant 

MSFW one-stop centers must conduct 

especially vigorous outreach in their 

service areas. Outreach activities must 

align with and be supported by 

information provided in the State’s AOP 

pursuant to paragraph (d) of this 

section. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) Explain the materials, tools, and 

resources the State will use for outreach; 

(iii) Describe the SWA’s proposed 

outreach activities to contact MSFWs 

who are not being reached by the 

normal intake activities conducted by 

the one-stop centers. The description 

must identify the number of full-time 

and part-time outreach staff positions in 

the State and must demonstrate that 

there are sufficient outreach staff to 

conduct MSFW outreach in each service 

area of the State to contact a majority of 

MSFWs in the State annually; 

(iv) Describe the activities planned for 

providing the full range of ES services 

to the agricultural community, 

including both MSFWs and agricultural 

employers, through the one-stop 

centers; and 

(v) Include a description of how the 

SWA intends to provide ES staff in 

significant MSFW one-stop centers in 

accordance with § 653.111. 

* * * * * 

(4) The AOP must be submitted in 

accordance with paragraph (d)(1) of this 

section and planning guidance issued 

by the Department. 

(5) The Annual Summaries required 

at § 653.108(u) must update the 

Department on the SWA’s progress 

toward meeting the objectives set forth 

in the AOP. 

■ 17. Revise § 653.108 to read as 

follows: 

§ 653.108 State Workforce Agency and 

State Monitor Advocate responsibilities. 

(a) State Administrators must ensure 

their SWAs monitor their own 

compliance with ES regulations in 

serving MSFWs on an ongoing basis. 

The State Administrator has overall 

responsibility for SWA self-monitoring. 

The State Administrator and ES staff 

must not retaliate against staff, 

including the SMA, for self-monitoring 

or raising any issues or concerns 

regarding noncompliance with the ES 

regulations. 

(b) The State Administrator must 

appoint an SMA who must be a SWA 

official. The State Administrator must 

inform farmworker organizations and 

other organizations with expertise 

concerning MSFWs of the opening and 

encourage them to refer qualified 

applicants to apply. Among qualified 

candidates, the SWAs must seek and 

put a strong emphasis on hiring persons: 

(1) Who are from MSFW backgrounds; 

or 

(2) Who speak the language of a 

significant proportion of the State 

MSFW population; or 

(3) Who have substantial work 

experience in farmworker activities. 

(c) The SMA must be an individual 

who: 

(1) Is a senior-level ES staff employee; 

(2) Reports directly to the State 

Administrator or State Administrator’s 

designee, such as a director or other 

appropriately titled official in the State 

Administrator’s office, who has the 

authority to act on behalf of the State 

Administrator, except that if a designee 

is selected, they must not be the 

individual who has direct program 

oversight of the ES; and 

(3) Has the knowledge, skills, and 

abilities necessary to fulfill the 

responsibilities as described in this 

subpart. 

(d) The SMA must have sufficient 

authority, staff, resources, and access to 

top management to monitor compliance 

with the ES regulations. Staff assigned 

to the SMA are intended to help the 

SMA carry out the duties set forth in 

this section and must not perform work 

that conflicts with any of the SMA’s 

duties, such as outreach responsibilities 


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required by § 653.107, ARS processing 

under subpart F of this part, and 

complaint processing under subpart E of 

part 658. The number of ES staff 

positions assigned to the SMA must be 

determined by reference to the number 

of MSFWs in the State, (as measured at 

the time of the peak MSFW population), 

and the need for monitoring activity in 

the State. 

(e) The SMA must devote full-time 

staffing to the SMA functions described 

in this section. No State may dedicate 

less than full-time staffing for the SMA 

position, unless the Regional 

Administrator, with input from the 

Regional Monitor Advocate, provides 

written approval. Any State that 

proposes less than full-time dedication 

must demonstrate to the Regional 

Administrator and Regional Monitor 

Advocate that all SMA functions can be 

effectively performed with part-time 

staffing. The SMA must not perform 

work that conflicts with any of the 

SMA’s duties, such as outreach 

responsibilities required by § 653.107, 

ARS processing under subpart F of this 

part, and complaint processing under 

subpart E of part 658. 

(f) All SMAs and their staff must 

attend training session(s) offered by the 

Regional Monitor Advocate(s) and 

National Monitor Advocate and their 

staff and those necessary to maintain 

competency and enhance the SMA’s 

understanding of the unique needs of 

farmworkers. Such trainings must 

include those identified by the SMA’s 

Regional Monitor Advocate and may 

include those offered by the 

Occupational Safety and Health 

Administration, the Department’s Wage 

and Hour Division, U.S. Equal 

Employment Opportunity Commission, 

the Immigrant and Employee Rights 

Section of the Department of Justice’s 

Civil Rights Division, the Department’s 

Civil Rights Center, and other 

organizations offering farmworkerrelated information. 

(g) The SMA must provide any 

relevant documentation requested from 

the SWA by the Regional Monitor 

Advocate or the National Monitor 

Advocate. 

(h) The SMA must: 

(1) Conduct an ongoing review of the 

delivery of services and protections 

afforded by the ES regulations to 

MSFWs by the SWA and ES offices. 

This includes: 

(i) Monitoring compliance with 

§ 653.111; 

(ii) Monitoring the ES services that 

the SWA and one-stop centers provide 

to MSFWs to assess whether they are 

qualitatively equivalent and 

quantitatively proportionate to the 

services that the SWA and one-stop 

centers provide to non-MSFWs; and 

(iii) Reviewing the appropriateness of 

informal resolution of complaints and 

apparent violations as documented in 

the complaint logs. 

(2) Without delay, must advise the 

SWA and ES offices of problems, 

deficiencies, or improper practices in 

the delivery of services and protections 

afforded by these regulations and, if 

warranted, specify the corrective 

action(s) necessary to address these 

deficiencies. When the SMA finds 

corrective action(s) necessary, the ES 

Office Manager or other appropriate ES 

staff must develop a corrective action 

plan in accordance with the 

requirements identified at paragraph 

(h)(3)(v) of this section. The SMA also 

must advise the SWA on means to 

improve the delivery of services. 

(3) Participate in on-site reviews of 

one-stop centers on a regular basis 

(regardless of whether or not they are 

designated significant MSFW one-stop 

centers) using the procedures set forth 

in paragraphs (h)(3)(i) through (vii) of 

this section. 

(i) Before beginning an onsite review, 

the SMA or review staff must study: 

(A) Program performance data; 

(B) Reports of previous reviews; 

(C) Corrective action plans developed 

as a result of previous reviews; 

(D) Complaint logs, as required by the 

regulations under part 658 of this 

chapter, including logs documenting the 

informal resolution of complaints and 

apparent violations; and 

(E) Complaints elevated from the 

office or concerning the office. 

(ii) The SMA must ensure that the 

onsite review format, developed by 

ETA, is used as a guideline for onsite 

reviews. 

(iii) Upon completion of an onsite 

monitoring review, the SMA must hold 

one or more wrap-up sessions with the 

ES Office Manager and staff to discuss 

any findings and offer initial 

recommendations and appropriate 

technical assistance. 

(iv) After each review, the SMA must 

conduct an in-depth analysis of the 

review data. The conclusions, including 

findings and areas of concern and 

recommendations of the SMA, must be 

put in writing and must be sent directly 

to the State Administrator, to the official 

of the SWA with authority over the ES 

office, and other appropriate SWA 

officials. 

(v) If the review results in any 

findings of noncompliance with the 

regulations under this chapter, the 

SMA’s report must include the 

necessary corrective action(s). To 

resolve the findings, the ES Office 

Manager or other appropriate ES staff 

must develop and propose a written 

corrective action plan. The plan must be 

approved or revised by SWA officials 

and the SMA. The plan must include 

the actions required to correct any 

compliance issues within 30 business 

days or, if the plan allows for more than 

30 business days for full compliance, 

the length of and the reasons for the 

extended period and the major interim 

steps to correct the compliance issues 

must be specifically stated. SWAs are 

responsible for assuring and 

documenting that the ES office is in 

compliance within the time period 

designated in the plan. 

(vi) SWAs must submit to the 

appropriate ETA regional office copies 

of the onsite review reports and 

corrective action plans for ES offices. 

(vii) The SMA may delegate the 

review described in paragraph (h)(3) of 

this section to the SMA’s staff, if the 

SMA finds such delegation necessary. In 

such event, the SMA is responsible for 

and must approve the written report of 

the review. 

(4) Ensure all significant MSFW onestop centers not reviewed onsite by 

Federal staff are reviewed at least once 

per year by the SMA or their staff, and 

that, if necessary, those ES offices in 

which significant problems are revealed 

by required reports, management 

information, the Complaint System, or 

other means are reviewed as soon as 

possible. 

(5) Review and approve the SWA’s 

AOP. 

(6) On a regular basis, review outreach 

staff’s daily logs and other reports 

including those showing or reflecting 

the outreach staff’s activities. 

(7) Write and submit annual 

summaries to the State Administrator 

with a copy to the Regional 

Administrator and the National Monitor 

Advocate. 

(i) The SMA must participate in 

Federal reviews conducted pursuant to 

part 658, subpart G, of this chapter, as 

requested by the Regional or National 

Monitor Advocate. 

(j) The SMA must monitor the 

performance of the Complaint System, 

as set forth at §§ 658.400 and 658.401 of 

this chapter. The SMA must review the 

ES office’s informal resolution of 

complaints relating to MSFWs and must 

ensure that the ES Office Manager 

transmits copies of the Complaint 

System logs pursuant to part 658, 

subpart E, of this chapter to the SWA. 

(k) The SMA must serve as an 

advocate to improve services for 

MSFWs. 

(l) The SMA must establish an 

ongoing liaison with WIOA sec. 167 


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National Farmworker Jobs Program 

(NFJP) grantees and other organizations 

serving farmworkers, employers, and 

employer organizations in the State. 

(m) The SMA must establish an 

ongoing liaison with the State-level 

Equal Opportunity (E.O.) Officer. 

(n) The SMA must meet (either in 

person or by alternative means), at 

minimum, quarterly, with 

representatives of the organizations 

pursuant to paragraphs (l) and (m) of 

this section, to receive input on 

improving coordination with ES offices 

or improving the coordination of 

services to MSFWs. To foster such 

collaboration, the SMAs must 

communicate freely with these 

organizations. The SMA must also 

establish Memorandums of 

Understanding (MOUs) with the NFJP 

grantees and may establish MOUs with 

other organizations serving farmworkers 

as appropriate. 

(o) The SMA must conduct frequent 

field visits to the working, living, and 

gathering areas of MSFWs, and must 

discuss the SWA’s provision of ES 

services and other employment-related 

programs with MSFWs, crew leaders, 

and employers. Records must be kept of 

each such field visit. 

(p) The SMA must participate in the 

appropriate regional public meeting(s) 

held by the Department of Labor 

Regional Farm Labor Coordinated 

Enforcement Committee, other 

Occupational Safety and Health 

Administration and Wage and Hour 

Division task forces, and other 

committees as appropriate. 

(q) The SMA must ensure that 

outreach efforts in all significant MSFW 

one-stop centers are reviewed at least 

yearly. This review will include 

accompanying at least one outreach staff 

from each significant MSFW one-stop 

center on field visits to MSFWs’ 

working, living, and/or gathering areas. 

The SMA must review findings from 

these reviews with the ES Office 

Managers. 

(r) The SMA must review on at least 

a quarterly basis all statistical and other 

MSFW-related data reported by ES 

offices in order: 

(1) To determine the extent to which 

the SWA has complied with the ES 

regulations; and 

(2) To identify the areas of noncompliance. 

(s) The SMA must have full access to 

all statistical and other MSFW-related 

information gathered by SWAs and ES 

offices and may interview ES staff with 

respect to reporting methods. After each 

review, the SMA must consult, as 

necessary, with the SWA and ES offices 

and provide technical assistance to 

ensure accurate reporting. 

(t) The SMA must review and 

comment on proposed State ES 

directives, manuals, and operating 

instructions relating to MSFWs and 

must ensure: 

(1) That they accurately reflect the 

requirements of the regulations; and 

(2) That they are clear and workable. 

The SMA also must explain and make 

available at the requestor’s cost, 

pertinent directives and procedures to 

employers, employer organizations, 

farmworkers, farmworker organizations, 

and other parties expressing an interest 

in a readily identifiable directive or 

procedure issued and receive 

suggestions on how these documents 

can be improved. 

(u) The SMA must prepare for the 

State Administrator, the Regional 

Monitor Advocate, and the National 

Monitor Advocate an Annual Summary 

describing how the State provided ES 

services to MSFWs within the State 

based on statistical data, reviews, and 

other activities as required in this 

chapter. The summary must include: 

(1) A description of the activities 

undertaken during the program year by 

the SMA pertaining to their 

responsibilities set forth in this section 

and other applicable regulations in this 

chapter. 

(2) An assurance that the SMA is a 

senior-level official who reports directly 

to the State Administrator or the State 

Administrator’s designee as described at 

paragraph (c) of this section. 

(3) An evaluation of SMA staffing 

levels, including: 

(i) An assurance the SMA devotes all 

of their time to Monitor Advocate 

functions or, if the SMA conducts their 

functions on a part-time basis, an 

assessment of whether all SMA 

functions are able to be effectively 

performed on a part-time basis; and 

(ii) An assessment of whether the 

performance of SMA functions requires 

increased time by the SMA (if part-time) 

or an increase in the number of ES staff 

assigned to assist the SMA in the 

performance of SMA functions, or both. 

(4) A summary of the monitoring 

reviews conducted by the SMA, 

including: 

(i) A description of any problems, 

deficiencies, or improper practices the 

SMA identified in the delivery of 

services; 

(ii) A summary of the actions taken by 

the SWA to resolve the problems, 

deficiencies, or improper practices 

described in its service delivery; and 

(iii) A summary of any technical 

assistance the SMA provided for the 

SWA, ES offices, and outreach staff. 

(5) A summary and analysis of the 

outreach efforts undertaken by all 

significant and non-significant MSFW 

one-stop centers, as well as the results 

of those efforts, and an analysis of 

whether the outreach levels and results 

were adequate. 

(6) A summary of the State’s actions 

taken under the Complaint System 

described in part 658, subpart E, of this 

chapter, identifying any challenges, 

complaint trends, findings from reviews 

of the Complaint System, trainings 

offered throughout the year, and steps 

taken to inform MSFWs and employers, 

and farmworker advocacy groups about 

the Complaint System. 

(7) A summary of how the SMA is 

working with WIOA sec. 167 NFJP 

grantees, the State-level E.O. Officer, 

and other organizations serving 

farmworkers, employers, and employer 

organizations in the State, and an 

assurance that the SMA is meeting at 

least quarterly with these individuals 

and representatives of these 

organizations. 

(8) A summary of the statistical and 

other MSFW-related data and reports 

gathered by SWAs and ES offices for the 

year, including an overview of the 

SMA’s involvement in the SWA’s 

reporting systems. 

(9) A summary of the training 

conducted for ES staff on techniques for 

accurately reporting data. 

(10) A summary of activities related to 

the AOP and an explanation of whether 

those activities helped the State reach 

the objectives described in the AOP. At 

the end of the 4-year AOP cycle, the 

summary must include a synopsis of the 

SWA’s achievements over the previous 

4 years to accomplish the objectives set 

forth in the AOP, and a description of 

the objectives which were not achieved 

and the steps the SWA will take to 

address those deficiencies. 

(11) For significant MSFW one-stop 

centers, a summary of the State’s efforts 

to comply with § 653.111. 

■ 18. Amend § 653.109 by: 

■ a. Revising paragraph (b)(9); 

■ b. Redesignating paragraph (b)(10) as 

paragraph (b)(11); 

■ c. Adding a new paragraph (b)(10); 

and 

■ d. Revising paragraphs (g), (h) 

introductory text, and (h)(1). 

The revision and additions read as 

follows: 

§ 653.109 Data collection and performance 

accountability measures. 

* * * * * 

(b) * * * 

(9) Agricultural clearance orders 

(including field checks), MSFW 


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complaints and apparent violations, and 

monitoring activities; 

(10) The number of reportable 

individuals and participants who are 

MSFWs; and 

* * * * * 

(g) Meet equity indicators that address 

ES controllable services and include, at 

a minimum, individuals referred to a 

job, receiving job development, and 

referred to supportive or career services. 

(h) Meet minimum levels of service in 

significant MSFW States. That is, only 

significant MSFW States will be 

required to meet minimum levels of 

service to MSFWs. Minimum level of 

service indicators must include, at a 

minimum, individuals placed in a job, 

individuals placed long-term (150 days 

or more) in a non-agricultural job, a 

review of significant MSFW one-stop 

centers, field checks conducted, 

outreach contacts per quarter, and 

processing of complaints. The 

determination of the minimum service 

levels required of significant MSFW 

States must be based on the following: 

(1) Past SWA performance in serving 

MSFWs, as reflected in on-site reviews 

and data collected under paragraph (b) 

of this section. 

* * * * * 

■ 19. Amend § 653.110 by revising 

paragraph (b) to read as follows: 

§ 653.110 Disclosure of data. 

* * * * * 

(b) If a request for data held by a SWA 

is made to the ETA national or regional 

office, ETA must forward the request to 

the SWA for response. 

* * * * * 

■ 20. Amend § 653.111 by revising the 

section heading and paragraphs (a) and 

(b) to read as follows: 

§ 653.111 State Workforce Agency staffing 

requirements for significant MSFW onestop centers. 

(a) The SWA must staff significant 

MSFW one-stop centers in a manner 

facilitating the delivery of ES services 

tailored to the unique needs of MSFWs. 

This includes recruiting qualified 

candidates who meet the criteria in 

§ 653.107(a)(3). 

(b) The SMA, Regional Monitor 

Advocate, or the National Monitor 

Advocate, as part of their regular 

reviews of SWA compliance with these 

regulations, must monitor the extent to 

which the SWA has complied with its 

obligations under paragraph (a) of this 

section. 

* * * * * 

■ 21. Amend § 653.501 by: 

■ a. Revising the introductory text of 

paragraph (a) and paragraph (a)(1); 

■ b. Revising paragraph (c)(3) 

introductory text; and 

■ c. Revising the first sentence in the 

introductory text of paragraph (d)(1) and 

paragraphs (d)(3), (6), (10), and (11). 

The revisions and additions read as 

follows: 

§ 653.501 Requirements for processing 

clearance orders. 

(a) Assessment of need. No ES staff 

may place a job order seeking workers 

to perform farmwork into intrastate or 

interstate clearance unless: 

(1) The ES office and employer have 

attempted and have not been able to 

obtain sufficient workers within the 

local labor market area; or 

* * * * * 

(c) * * * 

(3) SWAs must ensure that the 

employer makes the following 

assurances in the clearance order: 

* * * * * 

(d) * * * 

(1) The order-holding ES office must 

transmit an electronic copy of the 

approved clearance order to its SWA. 

* * * 

* * * * * 

(3) The approval process described in 

this paragraph (d)(3) does not apply to 

clearance orders that are attached to 

applications for foreign temporary 

agricultural workers pursuant to part 

655, subpart B, of this chapter; such 

clearance orders must be sent to the 

processing center as directed by ETA in 

guidance. For noncriteria clearance 

orders (orders that are not attached to 

applications under part 655, subpart B, 

of this chapter), the ETA regional office 

must review and approve the order 

within 10 business days of its receipt of 

the order, and the Regional 

Administrator or their designee must 

approve the areas of supply to which 

the order will be extended. Any denial 

by the Regional Administrator or their 

designee must be in writing and state 

the reasons for the denial. 

* * * * * 

(6) ES staff must assist all 

farmworkers to understand the terms 

and conditions of employment set forth 

in intrastate and interstate clearance 

orders and must provide such workers 

with checklists showing wage payment 

schedules, working conditions, and 

other material specifications of the 

clearance order. 

* * * * * 

(10) Applicant-holding offices must 

provide workers referred on clearance 

orders with a checklist summarizing 

wages, working conditions and other 

material specifications in the clearance 

order. The checklist must include 

language notifying the worker that a 

copy of the original clearance order is 

available upon request. 

(11) The applicant-holding office 

must give each referred worker a copy 

of the list of worker’s rights described in 

Departmental guidance. 

* * * * * 

■ 22. Amend § 653.502 by revising 

paragraph (d) to read as follows: 

§ 653.502 Conditional access to the 

Agricultural Recruitment System. 

* * * * * 

(d) Notice of denial. If the Regional 

Administrator denies the request for 

conditional access to the intrastate or 

interstate clearance system they must 

provide written notice to the employer, 

the appropriate SWA, and the ES office, 

stating the reasons for the denial. 

* * * * * 

■ 23. Amend § 653.503 by revising 

paragraphs (a) and (b) to read as follows: 

§ 653.503 Field checks. 

(a) If a worker is placed on a clearance 

order, the SWA must notify the 

employer in writing that the SWA, 

through its ES offices, and/or Federal 

staff, must conduct unannounced field 

checks to determine and document 

whether wages, hours, transportation, 

and working and housing conditions are 

being provided as specified in the 

clearance order. 

(b) Where the SWA has made 

placements on 10 or more agricultural 

clearance orders (pursuant to this 

subpart) during the quarter, the SWA 

must conduct field checks on at least 25 

percent of the total of such orders. 

Where the SWA has made placements 

on nine or fewer job orders during the 

quarter (but at least one job order), the 

SWA must conduct field checks on 100 

percent of all such orders. This 

requirement must be met on a quarterly 

basis. 

* * * * * 

■ 24. Add § 653.504 to read as follows: 

§ 653.504 Severability. 

Should a court hold any portion of 

any provision of this part to be invalid, 

the provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision or subprovision will be 

severable from this part and will not 

affect the remainder thereof. 


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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 82731 

PART 658—ADMINISTRATIVE 

PROVISIONS GOVERNING THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE 

■ 25. Revise the authority citation for 

part 658 to read as follows: 

Authority: Pub. L. 113–128, 128 Stat. 1425 

(July 22, 2014); 29 U.S.C. chapter 4B. 

■ 26. Amend § 658.400 by revising the 

second sentence of paragraph (a) and 

paragraph (d) to read as follows: 

§ 658.400 Purpose and scope of subpart. 

(a) * * * Specifically, the Complaint 

System processes complaints against an 

employer about the specific job to 

which the applicant was referred 

through the ES and complaints 

involving the failure to comply with the 

ES regulations under parts 651, 652, 

653, and 654 of this chapter and this 

part. * * * 

* * * * * 

(d) A complainant may designate an 

individual to act as their representative. 

■ 27. Amend § 658.410 by: 

■ a. Revising paragraphs (c), (g), (h), (k), 

and (m); 

■ b. Removing paragraph (n); and 

■ c. Redesignating (o) as paragraph (n) 

and revising the newly redesignated 

paragraph (n).. 

The revisions and redesignation read 

as follows: 

§ 658.410 Establishment of local and State 

complaint systems. 

* * * * * 

(c) SWAs must ensure centralized 

control procedures are established for 

the processing of complaints and 

apparent violations. The ES Office 

Manager and the State Administrator 

must ensure a central complaint log is 

maintained, listing all complaints taken 

by the ES office or the SWA and 

apparent violations identified by ES 

staff, and specifying for each complaint 

or apparent violation: 

(1) The name of the complainant (for 

complaints); 

(2) The name of the respondent 

(employer or State agency); 

(3) The date the complaint is filed or 

the apparent violation was identified; 

(4) Whether the complaint is made by 

or on behalf of a migrant and seasonal 

farmworker (MSFW) or whether the 

apparent violation affects an MSFW; 

(5) Whether the complaint or apparent 

violation concerns an employmentrelated law or the ES regulations; and 

(6) The actions taken (including any 

documents the SWA sent or received 

and the date the SWA took such 

action(s)), and whether the complaint or 

apparent violation has been resolved, 

including informally. 

* * * * * 

(g) All complaints filed through the 

ES office must be processed by a trained 

Complaint System Representative. 

(h) All complaints received by a SWA 

must be assigned to a trained Complaint 

System Representative designated by 

the State Administrator. Complaints 

must not be assigned to the State 

Monitor Advocate (SMA). 

* * * * * 

(k) The appropriate ES staff 

processing a complaint must offer to 

assist the complainant through the 

provision of appropriate services. 

* * * * * 

(m) Follow-up on unresolved 

complaints. When an MSFW submits a 

complaint, the Complaint System 

Representative must follow up monthly 

on the processing of the complaint and 

must inform the complainant of the 

status of the complaint. No follow-up 

with the complainant is required for 

non-MSFW complaints. 

(n) A complainant may designate an 

individual to act as their representative 

throughout the filing and processing of 

a complaint. 

■ 28. Amend § 658.411 by: 

■ a. Revising paragraphs (a)(2)(i) and 

(ii), (a)(3), the first sentence of 

paragraph (a)(4), and paragraphs (b)(1) 

introductory text, (b)(1)(i), and 

(b)(1)(ii)(A), (B), (D), and (E); 

■ b. Adding paragraph (b)(1)(ii)(F); and 

■ c. Revising paragraphs (c), (d)(1) 

introductory text, (d)(1)(i), (d)(1)(ii)(A), 

(B), (C), and (D), (d)(1)(iii) and (iv), the 

introductory text of (d)(3), (d)(4), the 

introductory text of (d)(5)(i), (d)(5)(ii), 

(d)(5)(iii)(G), and (d)(6). 

The revisions and addition read as 

follows: 

§ 658.411 Action on complaints. 

(a) * * * 

(2) * * * 

(i) Make every effort to obtain all the 

information they perceive to be 

necessary to investigate the complaint; 

(ii) Request that the complainant 

indicate all of the physical addresses, 

email addresses, telephone numbers, 

and any other helpful means by which 

they might be contacted during the 

investigation of the complaint; and 

* * * * * 

(3) The staff must ensure the 

complainant (or their representative) 

submits the complaint on the 

Complaint/Referral Form or another 

complaint form prescribed or approved 

by the Department or submits complaint 

information which satisfies paragraph 

(a)(4) of this section. The Complaint/ 

Referral Form must be used for all 

complaints, including complaints about 

unlawful discrimination, except as 

provided in paragraph (a)(4) of this 

section. The staff must offer to assist the 

complainant in filling out the form and 

submitting all necessary information 

and must do so if the complainant 

desires such assistance. If the 

complainant also represents several 

other complainants, all such 

complainants must be named. The 

complainant, or their representative, 

must sign the completed form in writing 

or electronically. The identity of the 

complainant(s) and any persons who 

furnish information relating to, or 

assisting in, an investigation of a 

complaint must be kept confidential to 

the maximum extent possible, 

consistent with applicable law and a fair 

determination of the complaint. A copy 

of the completed complaint submission 

must be given to the complainant(s), 

and the complaint form must be given 

to the appropriate Complaint System 

Representative described in 

§ 658.410(g). 

(4) Any complaint in a reasonable 

form (letter or email) which is signed by 

the complainant, or their representative, 

and includes sufficient information to 

initiate an investigation must be treated 

as if it were a properly completed 

Complaint/Referral Form filed in 

person. * * * 

(b) * * * 

(1) When a complaint is filed 

regarding an employment-related law 

with an ES office or a SWA, and 

paragraph (c) of this section does not 

apply, the office must determine if the 

complainant is an MSFW. 

(i) If the complainant is a non-MSFW, 

the office must immediately refer the 

complainant to the appropriate 

enforcement agency, another public 

agency, a legal aid organization, and/or 

a consumer advocate organization, as 

appropriate, for assistance. Upon 

completing the referral, the local or 

State representative is not required to 

follow up with the complainant. 

(ii) * * * 

(A) Take from the MSFW or their 

representative, in writing (hard copy or 

electronic), the complaint(s) describing 

the alleged violation(s) of the 

employment-related law(s); and 

(B) Attempt to resolve the issue 

informally at the local level, except in 

cases where the complaint was 

submitted to the SWA and the 

Complaint System Representative 

determines that they must take 

immediate action or in cases where 

informal resolution at the local level 

would be detrimental to the 

complainant(s). In cases where informal 


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82732 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

resolution at the local level would be 

detrimental to the complainant(s), the 

Complaint System Representative must 

immediately refer the complaint to the 

appropriate enforcement agency. 

Concurrently, the Complaint System 

Representative must offer to refer the 

MSFW to other ES services should the 

MSFW be interested. 

* * * * * 

(D) If the ES office or SWA Complaint 

System Representative determines that 

the complaint must be referred to a State 

or Federal agency, they must refer the 

complaint immediately to the 

appropriate enforcement agency for 

prompt action. 

(E) If the complaint was referred 

under paragraph (b)(1)(ii)(D) of this 

section, the representative must notify 

the complainant of the enforcement 

agency to which the complaint was 

referred. 

(F) When a complaint alleges an 

employer in a different State from where 

the complaint is filed has violated an 

employment-related law: 

(1) The ES office or SWA receiving 

the complaint must ensure the 

Complaint/Referral Form is adequately 

completed and then immediately send a 

copy of the Complaint/Referral Form 

and copies of any relevant documents to 

the SWA in the other State. Copies of 

the referral letter must be sent to the 

complainant, and copies of the 

complaint and referral letter must be 

sent to the ETA Regional Office(s) with 

jurisdiction over the transferring and 

receiving State agencies. All such copies 

must be sent via hard copy or electronic 

mail. 

(2) The SWA receiving the complaint 

must process the complaint as if it had 

been initially filed with that SWA. 

(3) The ETA Regional Office with 

jurisdiction over the receiving SWA 

must follow up with it to ensure the 

complaint is processed in accordance 

with these regulations. 

* * * * * 

(c) Complaints alleging unlawful 

discrimination or reprisal for protected 

activity. All complaints received under 

this subpart by an ES office or a SWA 

alleging unlawful discrimination or 

reprisal for protected activity in 

violation of nondiscrimination laws, 

such as those enforced by the Equal 

Employment Opportunity Commission 

(EEOC) or the Department of Labor’s 

Civil Rights Center (CRC), or in 

violation of the Immigration and 

Nationality Act’s anti-discrimination 

provision found at 8 U.S.C. 1324b, must 

be logged and immediately referred to 

the State-level E.O. Officer. The 

Complaint System Representative must 

notify the complainant of the referral in 

writing. 

(d) * * * 

(1) When an ES complaint is filed 

with an ES office or a SWA, and 

paragraph (c) of this section does not 

apply, the following procedures apply: 

(i) When an ES complaint is filed 

against an employer, the proper office to 

process the complaint is the ES office 

serving the area in which the employer 

is located. 

(ii) * * * 

(A) The ES office or SWA receiving 

the complaint must ensure the 

Complaint/Referral Form is adequately 

completed, and then immediately send 

a copy of the Complaint/Referral Form 

and copies of any relevant documents to 

the SWA in the other State. Copies of 

the referral letter must be sent to the 

complainant, and copies of the 

complaint and referral letter must be 

sent to the ETA Regional Office(s) with 

jurisdiction over the transferring and 

receiving State agencies. All such copies 

must be sent via hard copy or electronic 

mail. 

(B) The SWA receiving the complaint 

must process the complaint as if it had 

been initially filed with that SWA. 

(C) The ETA Regional Office with 

jurisdiction over the receiving SWA 

must follow up with it to ensure the 

complaint is processed in accordance 

with these regulations. 

(D) If the complaint is against more 

than one SWA, the complaint must so 

clearly state. Additionally, the 

complaints must be processed as 

separate complaints and must be 

processed according to procedures in 

this paragraph (d). 

(iii) When an ES complaint is filed 

against an ES office, the proper office to 

process the complaint is the ES office 

serving the area in which the alleged 

violation occurred. 

(iv) When an ES complaint is filed 

against more than one ES offices and is 

in regard to an alleged agency-wide 

violation, the SWA representative or 

their designee must process the 

complaint. 

* * * * * 

(3) When a non-MSFW or their 

representative files a complaint 

regarding the ES regulations with a 

SWA, or when a non-MSFW complaint 

is referred from an ES office the 

following procedures apply: 

* * * * * 

(4)(i) When a MSFW or their 

representative files a complaint 

regarding the ES regulations directly 

with a SWA, or when a MSFW 

complaint is referred from an ES office, 

the Complaint System Representative 

must investigate and attempt to resolve 

the complaint immediately upon receipt 

and may, if necessary, conduct a further 

investigation. 

(ii) If resolution at the SWA level has 

not been accomplished within 20 

business days after the complaint was 

received by the SWA (or after all 

necessary information has been 

submitted to the SWA pursuant to 

paragraph (a)(4) of this section), the 

Complaint System Representative must 

make a written determination regarding 

the complaint and must send electronic 

copies to the complainant and the 

respondent. The determination must 

follow the procedures set forth in 

paragraph (d)(5) of this section. 

(5)(i) All written determinations by 

the SWA on complaints under the ES 

regulations must be sent by certified 

mail (or another legally viable method) 

and a copy of the determination may be 

sent via electronic mail. The 

determination must include all the 

following: 

(ii) If the SWA determines that the 

employer has not violated the ES 

regulations, the SWA must offer to the 

complainant the opportunity to request, 

in writing, a hearing within 20 business 

days after the certified date of receipt of 

the notification. 

(iii) * * * 

(G) With the consent of the SWA and 

of the State hearing official, the party 

who requested the hearing may 

withdraw the request for the hearing in 

writing before the hearing. 

* * * * * 

(6) A complaint regarding the ES 

regulations must be processed to 

resolution by these regulations only if it 

is made within 2 years of the alleged 

occurrence. 

* * * * * 

■ 29. Amend § 658.417 by revising 

paragraph (b) to read as follows: 

§ 658.417 State hearings. 

* * * * * 

(b) The State hearing official may 

decide to conduct hearings on more 

than one complaint concurrently if they 

determine that the issues are related or 

that the complaints will be processed 

more expeditiously if conducted 

together. 

* * * * * 

■ 30. Amend § 658.419 by: 

■ a. Revising paragraph (a); and 

■ b. Adding paragraph (d). 

The revisions and addition read as 

follows: 

§ 658.419 Apparent violations. 

(a) If an ES staff member observes, has 

reason to believe, or is in receipt of 


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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 82733 

information regarding an apparent 

violation, except as part of a field check 

under § 653.503 of this chapter, the staff 

member must document the apparent 

violation and refer it to the ES Office 

Manager, who must ensure the apparent 

violation is documented in the 

Complaint System log, as described at 

§ 658.410. 

* * * * * 

(d) Apparent violations of 

nondiscrimination laws must be 

processed according to the procedures 

described in § 658.411(c). 

■ 31. Amend § 658.420 by revising 

paragraphs (b) and (c) to read as follows: 

§ 658.420 Responsibilities of the 

Employment and Training Administration 

regional office. 

* * * * * 

(b) The Regional Administrator must 

designate Department of Labor officials 

to process ES regulation-related 

complaints as follows: 

(1) All complaints received at the ETA 

regional office under this subpart that 

allege unlawful discrimination or 

reprisal for protected activity in 

violation of nondiscrimination laws, 

such as those enforced by the EEOC or 

CRC, or in violation of the Immigration 

and Nationality Act’s antidiscrimination provision found at 8 

U.S.C. 1324b, must be logged and 

immediately referred to the appropriate 

State-level E.O. Officer(s). 

(2) All complaints other than those 

described in paragraph (b)(1) of this 

section must be assigned to a regional 

office official designated by the Regional 

Administrator, provided that the 

regional office official designated to 

process MSFW complaints must be the 

Regional Monitor Advocate (RMA). 

(c) Except for those complaints under 

paragraph (b)(1) of this section, the 

Regional Administrator must designate 

Department of Labor officials to process 

employment-related law complaints in 

accordance with § 658.422, provided 

that the regional official designated to 

process MSFW employment-related law 

complaints must be the RMA. The RMA 

must follow up monthly on all 

complaints filed by MSFWs including 

complaints under paragraph (b)(1) of 

this section. 

* * * * * 

■ 32. Amend § 658.421 by revising the 

section heading, the first sentence of 

paragraph (a)(1), introductory text of 

(a)(2), the first sentences of paragraphs 

(a)(2)(i) and (b), and paragraphs (c) and 

(d) to read as follows: 

§ 658.421 Processing of Wagner-Peyser 

Act Employment Service regulation-related 

complaints. 

(a) Except as provided below in 

paragraph (a)(2) of this section, no 

complaint alleging a violation of the ES 

regulations may be processed at the ETA 

regional office level until the 

complainant has exhausted the SWA 

administrative remedies set forth at 

§§ 658.411 through 658.418. * * * 

(2) If a complaint is submitted directly 

to the Regional Administrator and if 

they determine that the nature and 

scope of a complaint described in 

paragraph (a) of this section is such that 

the time required to exhaust the 

administrative procedures at the SWA 

level would adversely affect a 

significant number of individuals, the 

RA must accept the complaint and take 

the following action: 

(i) If the complaint is filed against an 

employer, the regional office must 

process the complaint in a manner 

consistent with the requirements 

imposed upon State agencies by 

§§ 658.411 and 658.418. * * * 

* * * * * 

(b) The ETA regional office is 

responsible for processing appeals of 

determinations made on complaints at 

the SWA level. * * * 

(c)(1) Once the Regional 

Administrator receives a timely appeal, 

they must request the complete SWA 

file, including the original Complaint/ 

Referral Form from the appropriate 

SWA. 

(2) The Regional Administrator must 

review the file in the case and must 

determine within 10 business days 

whether any further investigation or 

action is appropriate; however, if the 

Regional Administrator determines that 

they need to request legal advice from 

the Office of the Solicitor at the U.S. 

Department of Labor, then the Regional 

Administrator is allowed 20 business 

days to make this determination. 

(d) If the Regional Administrator 

determines that no further action is 

warranted, the Regional Administrator 

will send their determination in writing 

to the appellant within 5 days of the 

determination, with a notification that 

the appellant may request a hearing 

before a Department of Labor 

Administrative Law Judge (ALJ) by 

filing a hearing request in writing with 

the Regional Administrator within 20 

working days of the appellant’s receipt 

of the notification. 

* * * * * 

■ 33. Amend § 658.422 by revising the 

section heading and paragraphs (a) 

through (c) to read as follows: 

§ 658.422 Processing of employmentrelated law complaints by the Regional 

Administrator. 

(a) This section applies to all 

complaints submitted directly to the 

Regional Administrator or their 

representative. 

(b) Each complaint filed by an MSFW 

alleging violation(s) of employmentrelated laws must be taken in writing, 

logged, and referred to the appropriate 

enforcement agency for prompt action. 

If such a complaint alleges a violation 

of nondiscrimination laws or reprisal for 

protected activity, it must be referred to 

the appropriate State-level E.O. Officer 

in accordance with § 658.420(b)(1). 

(c) Each complaint submitted by a 

non-MSFW alleging violation(s) of 

employment-related laws must be 

logged and referred to the appropriate 

enforcement agency for prompt action. 

If such a complaint alleges a violation 

of nondiscrimination laws or reprisal for 

protected activity, it must be referred to 

the appropriate State-level E.O. Officer 

in accordance with § 658.420(b)(1). 

* * * * * 

■ 34. Amend § 658.424 by revising 

paragraph (d) to read as follows: 

§ 658.424 Proceedings before the Office of 

Administrative Law Judges. 

* * * * * 

(d) The ALJ may decide to consolidate 

cases and conduct hearings on more 

than one complaint concurrently if they 

determine that the issues are related or 

that the complaints will be processed 

more expeditiously. 

* * * * * 

■ 35. Amend § 658.425 by revising 

paragraph (a)(1) to read as follows: 

§ 658.425 Decision of Department of Labor 

Administrative Law Judge. 

(a) * * * 

(1) Rule that they lack jurisdiction 

over the case: 

* * * * * 

■ 36. Add § 658.427 to read as follows: 

§ 658.427 Severability. 

Should a court hold any portion of 

any provision of this part to be invalid, 

the provision will be construed so as to 

continue to give the maximum effect to 

the provision permitted by law, unless 

such holding is one of total invalidity or 

unenforceability, in which event the 

provision or subprovision will be 

severable from this part and will not 

affect the remainder thereof. 

■ 37. Amend § 658.602 by revising 

paragraphs (f)(2) through (4), (g), (j) 

introductory text, (j)(8), (l) through (n), 

(o) introductory text paragraph, (p) 

through (r), (s) introductory text 


ddrumheller on DSK120RN23PROD with RULES2
82734 Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 

paragraph, and (s)(2) and (3) to read as 

follows: 

§ 658.602 Employment and Training 

Administration National Office 

responsibility. 

* * * * * 

(f) * * * 

(2) Review the performance of SWAs 

in providing the full range of ES 

services to MSFWs; 

(3) Take steps to resolve or refer ESrelated problems of MSFWs which come 

to their attention; 

(4) Take steps to refer non-ES-related 

problems of MSFWs which come to 

their attention; 

* * * * * 

(g) The NMA must be appointed by 

the Office of Workforce Investment 

Administrator (Administrator) after 

informing farmworker organizations and 

other organizations with expertise 

concerning MSFWs of the opening and 

encouraging them to refer qualified 

applicants to apply through the Federal 

merit system. Among qualified 

candidates, determined through merit 

systems procedures, individuals must 

be sought who meet the criteria used in 

the selection of the SMAs, as provided 

in SWA self-monitoring requirements at 

§ 653.108(a) of this chapter. 

* * * * * 

(j) The NMA must monitor and assess 

SWA compliance with ES regulations 

affecting MSFWs on a continuing basis. 

Their assessment must consider: 

* * * * * 

(8) Their personal observations from 

visits to SWAs, ES offices, agricultural 

work sites, and migrant camps. In the 

Annual Report, the NMA must include 

both a quantitative and qualitative 

analysis of their findings and the 

implementation of their 

recommendations by State and Federal 

officials, and must address the 

information obtained from all of the 

foregoing sources. 

* * * * * 

(l) If the NMA finds the effectiveness 

of any RMA has been substantially 

impeded by the Regional Administrator 

or other regional office official, they 

must, if unable to resolve such problems 

informally, report and recommend 

appropriate actions directly to the OWI 

Administrator. If the NMA receives 

information that the effectiveness of any 

SMA has been substantially impeded by 

the State Administrator, a State or 

Federal ES official, or other ES staff, 

they must, in the absence of a 

satisfactory informal resolution at the 

regional level, report and recommend 

appropriate actions directly to the OWI 

Administrator. 

(m) The NMA must be informed of all 

proposed changes in policy and practice 

within the ES, including ES regulations, 

which may affect the delivery of 

services to MSFWs. The NMA must 

advise the OWI Administrator 

concerning all such proposed changes 

which may adversely affect MSFWs. 

The NMA must propose directly to the 

OWI Administrator changes in ES 

policy and administration which may 

substantially improve the delivery of 

services to MSFWs. They also must 

recommend changes in the funding of 

SWAs and/or adjustment or reallocation 

of the discretionary portions of funding 

formulae. 

(n) The NMA must participate in the 

review and assessment activities 

required in this section and §§ 658.700 

through 658.711. As part of such 

participation, the NMA, or if they are 

unable to participate, an RMA must 

accompany the National Office review 

team on National Office on-site reviews. 

The NMA must engage in the following 

activities during each State on-site 

review: 

(1) They must accompany selected 

outreach staff on their field visits. 

(2) They must participate in field 

check(s) of migrant camps or work 

site(s) where MSFWs have been placed 

on inter or intrastate clearance orders. 

(3) They must contact local WIOA sec. 

167 National Farmworker Jobs Program 

grantees or other farmworker 

organizations as part of the on-site 

review and discuss with representatives 

of these organizations current trends 

and any other pertinent information 

concerning MSFWs. 

(4) They must meet with the SMA and 

discuss the full range of the ES services 

to MSFWs, including monitoring and 

the Complaint System. 

(o) In addition to the duties specified 

in paragraph (f) of this section, the NMA 

each year during the harvest season 

must visit the four States with the 

highest level of MSFW activity during 

the prior fiscal year, if they are not 

scheduled for a National Office on-site 

review during the current fiscal year, 

and must: 

* * * * * 

(p) The NMA must perform duties 

specified in §§ 658.700 through 765.711. 

As part of this function, they must 

monitor the performance of regional 

offices in imposing corrective action. 

The NMA must report any deficiencies 

in performance to the Administrator. 

(q) The NMA must establish routine 

and regular contacts with WIOA sec. 

167 National Farmworker Jobs Program 

grantees, other farmworker 

organizations and agricultural 

employers and/or employer 

organizations. The NMA must attend 

conferences or meetings of these groups 

wherever possible and must report to 

the Administrator and the National 

Farm Labor Coordinated Enforcement 

Committee on these contacts when 

appropriate. The NMA must include in 

the Annual Report recommendations 

about how the Department might better 

coordinate ES and WIOA sec. 167 

National Farmworker Jobs Program 

services as they pertain to MSFWs. 

(r) In the event that any SMA or RMA, 

enforcement agency, or MSFW group 

refers a matter to the NMA which 

requires emergency action, the NMA 

must assist them in obtaining action by 

appropriate agencies and staff, inform 

the originating party of the action taken, 

and, upon request, provide written 

confirmation. 

(s) Through all the mechanisms 

provided in this subpart, the NMA must 

aggressively seek to ascertain and 

remedy, if possible, systemic 

deficiencies in the provisions of ES 

services and protections afforded by 

these regulations to MSFWs. The NMA 

must: 

* * * * * 

(2) Provide technical assistance to 

ETA regional office and ES staff for 

administering the Complaint System, 

and any other ES services as 

appropriate. 

(3) Recommend to the Regional 

Administrator specific instructions for 

action by regional office staff to correct 

any ES-related systemic deficiencies. 

Prior to any ETA review of regional 

office operations concerning ES services 

to MSFWs, the NMA must provide to 

the Regional Administrator a brief 

summary of ES-related services to 

MSFWs in that region and their 

recommendations for incorporation in 

the regional review materials as the 

Regional Administrator and ETA 

reviewing organization deem 

appropriate. 

* * * * * 

■ 38. Amend § 658.603 by revising 

paragraphs (d)(7), (f)(1) through (3), (g), 

(i), introductory text of paragraph (k), 

(k)(7) and (8), (m), (n)(2) and (3), (o)(1), 

(p), (q), and (s) through (v) to read as 

follows: 

§ 658.603 Employment and Training 

Administration regional office 

responsibility. 

* * * * * 

(d) * * * 

(7) Unannounced field checks of a 

sample of agricultural work sites to 

which ES placements have been made 

through the clearance system to 


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determine and document whether 

wages, hours, and working and housing 

conditions are as specified on the 

clearance order. If regional office staff 

find reason to believe that conditions 

vary from clearance order specifications, 

findings must be documented on the 

Complaint/Apparent Violation Referral 

Form and provided to the State 

Workforce Agency to be processed as an 

apparent violation under § 658.419. 

* * * * * 

(f) * * * 

(1) Review the effective functioning of 

the SMAs in their region; 

(2) Review the performance of SWAs 

in providing the full range of ES 

services to MSFWs; 

(3) Take steps to resolve ES-related 

problems of MSFWs which come to 

their attention; 

* * * * * 

(g) The RMA must be appointed by 

the Regional Administrator after 

informing farmworker organizations and 

other organizations in the region with 

expertise concerning MSFWs of the 

opening and encouraging them to refer 

qualified applicants to apply through 

the Federal merit system. The RMA 

must have direct personal access to the 

Regional Administrator wherever they 

find it necessary. Among qualified 

candidates, individuals must be sought 

who meet the criteria used in the 

selection of the SMAs, as provided in 

§ 653.108(b) of this chapter. 

* * * * * 

(i) The RMA must participate in 

training sessions including those offered 

by the National Office and those 

necessary to maintain competency and 

enhance their understanding of issues 

farmworkers face (including trainings 

offered by OSHA, WHD, EEOC, CRC, 

and other organizations offering 

farmworker-related information). 

* * * * * 

(k) At the ETA regional level, the 

RMA must have primary responsibility 

for ensuring SWA compliance with ES 

regulations as it pertains to services to 

MSFWs is monitored by the regional 

office. They must independently assess 

on a continuing basis the provision of 

ES services to MSFWs, seeking out and 

using: 

* * * * * 

(7) Any other pertinent information 

which comes to their attention from any 

possible source. 

(8) In addition, the RMA must 

consider their personal observations 

from visits to ES offices, agricultural 

work sites, and migrant camps. 

* * * * * 

(m) The Regional Administrator’s 

quarterly report to the National Office 

must include the RMA’s summary of 

their independent assessment as 

required in paragraph (f)(5) of this 

section. The fourth quarter summary 

must include an Annual Summary from 

the region. The summary also must 

include both a quantitative and a 

qualitative analysis of their reviews and 

must address all the matters with 

respect to which they have 

responsibilities under these regulations. 

(n) * * * 

(2) Is being impeded in fulfilling their 

duties; or 

(3) Is making recommendations that 

are being consistently ignored by SWA 

officials. If the RMA believes that the 

effectiveness of any SMA has been 

substantially impeded by the State 

Administrator, other State agency 

officials, any Federal officials, or other 

ES staff, the RMA must report and 

recommend appropriate actions to the 

Regional Administrator. Copies of the 

recommendations must be provided to 

the NMA electronically or in hard copy. 

(o)(1) The RMA must be informed of 

all proposed changes in policy and 

practice within the ES, including ES 

regulations, which may affect the 

delivery of services to MSFWs. They 

must advise the Regional Administrator 

on all such proposed changes which, in 

their opinion, may adversely affect 

MSFWs or which may substantially 

improve the delivery of services to 

MSFWs. 

* * * * * 

(p) The RMA must participate in the 

review and assessment activities 

required in this section and §§ 658.700 

through 658.711. The RMA, an assistant, 

or another RMA must participate in 

National Office and regional office onsite statewide reviews of ES services to 

MSFWs in States in the region. The 

RMA must engage in the following 

activities in the course of participating 

in an on-site SWA review: 

(1) Accompany selected outreach staff 

on their field visits; 

(2) Participate in a field check of 

migrant camps or work sites where 

MSFWs have been placed on intrastate 

or interstate clearance orders; 

(3) Contact local WIOA sec. 167 

National Farmworker Jobs Program 

grantees or other farmworker 

organizations as part of the on-site 

review, and must discuss with 

representatives of these organizations 

perceived trends, and/or other relevant 

information concerning MSFWs in the 

area; and 

(4) Meet with the SMA and discuss 

the full range of the ES services to 

MSFWs, including monitoring and the 

Complaint System. 

(q) During the calendar quarter 

preceding the time of peak MSFW 

activity in each State, the RMA must 

meet with the SMA and must review in 

detail the State Workforce Agency’s 

capability for providing the full range of 

services to MSFWs as required by ES 

regulations, during the upcoming 

harvest season. The RMA must offer 

technical assistance and recommend to 

the SWA and/or the Regional 

Administrator any changes in State 

policy or practice that the RMA finds 

necessary. 

* * * * * 

(s) The RMA must initiate and 

maintain regular and personal contacts, 

including informal contacts in addition 

to those specifically required by these 

regulations, with SMAs in the region. In 

addition, the RMA must have personal 

and regular contact with the NMA. The 

RMA also must establish routine and 

regular contacts with WIOA sec. 167 

National Farmworker Jobs Program 

grantees, other farmworker 

organizations and agricultural 

employers and/or employer 

organizations in the RMA’s region. The 

RMA must attend conferences or 

meetings of these groups wherever 

possible and must report to the Regional 

Administrator and the Regional Farm 

Labor Coordinated Enforcement 

Committee on these contacts when 

appropriate. The RMA also must make 

recommendations as to how the 

Department might better coordinate ES 

and WIOA sec. 167 National 

Farmworker Jobs Program services to 

MSFWs. 

(t) The RMA must attend MSFWrelated public meeting(s) conducted in 

the region, as appropriate. Following 

such meetings or hearings, the RMA 

must take such steps or make such 

recommendations to the Regional 

Administrator, as the RMA deems 

necessary to remedy problem(s) or 

condition(s) identified or described 

therein. 

(u) The RMA must attempt to achieve 

regional solutions to any problems, 

deficiencies, or improper practices 

concerning services to MSFWs which 

are regional in scope. Further, the RMA 

must recommend policies, offer 

technical assistance, or take any other 

necessary steps as they deem desirable 

or appropriate on a regional, rather than 

State-by-State, basis to promote regionwide improvement in the delivery of ES 

services to MSFWs. The RMA must 

facilitate region-wide coordination and 

communication regarding provision of 

ES services to MSFWs among SMAs, 

State Administrators, and Federal ETA 

officials to the greatest extent possible. 


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In the event that any SWA or other 

RMA, enforcement agency, or MSFW 

group refers a matter to the RMA which 

requires emergency action, the RMA 

must assist them in obtaining action by 

appropriate agencies and staff, inform 

the originating party of the action taken, 

and, upon request, provide written 

confirmation. 

(v) The RMA must initiate and 

maintain such contacts as they deem 

necessary with RMAs in other regions to 

seek to resolve problems concerning 

MSFWs who work, live, or travel 

through the region. The RMA must 

recommend to the Regional 

Administrator and/or the National 

Office inter-regional cooperation on any 

particular matter, problem, or policy 

with respect to which inter-regional 

action is desirable. 

* * * * * 

■ 39. Amend § 658.604 by revising 

paragraph (c)(3)(i) to read as follows: 

§ 658.604 Assessment and evaluation of 

program performance data. 

* * * * * 

(c) * * * 

(3) * * * 

(i) Generally, for example, a SWA has 

direct and substantial control over the 

delivery of ES services such as referrals 

to jobs, job development contacts, 

counseling, referrals to career and 

supportive services, and the conduct of 

field checks. 

* * * * * 

■ 40. Amend § 658.702 by revising 

paragraphs (a), (d), (e), (f)(2), and (h)(5) 

to read as follows: 

§ 658.702 Initial action by the Regional 

Administrator. 

(a) The ETA Regional Administrator is 

responsible for ensuring that all SWAs 

in their region are in compliance with 

ES regulations. 

* * * * * 

(d) If the Regional Administrator 

determines that there is no probable 

cause to believe that a SWA has violated 

ES regulations, they must retain all 

reports and supporting information in 

Department files. In all cases where the 

Regional Administrator has insufficient 

information to make a probable cause 

determination, they must so notify the 

Administrator in writing and the time 

for the investigation must be extended 

20 additional business days. 

(e) If the Regional Administrator 

determines there is probable cause to 

believe a SWA has violated ES 

regulations, they must issue a Notice of 

Initial Findings of Non-compliance by 

registered mail (or other legally viable 

means) to the offending SWA. The 

notice will specify the nature of the 

violation, cite the regulations involved, 

and indicate corrective action which 

may be imposed in accordance with 

paragraphs (g) and (h) of this section. If 

the non-compliance involves services to 

MSFWs or the Complaint System, a 

copy of said notice must be sent to the 

NMA. 

(f) * * * 

(2) After the period elapses, the 

Regional Administrator must prepare 

within 20 business days, written final 

findings which specify whether the 

SWA has violated ES regulations. If in 

the final findings the Regional 

Administrator determines the SWA has 

not violated ES regulations, the Regional 

Administrator must notify the State 

Administrator of this finding and retain 

supporting documents in their files. If 

the final finding involves services to 

MSFWs or the Complaint System, the 

Regional Administrator also must notify 

the RMA and the NMA. If the Regional 

Administrator determines a SWA has 

violated ES regulations, the Regional 

Administrator must prepare a Final 

Notice of Noncompliance which must 

specify the violation(s) and cite the 

regulations involved. The Final Notice 

of Noncompliance must be sent to the 

SWA by registered mail or other legally 

viable means. If the noncompliance 

involves services to MSFWs or the 

Complaint System, a copy of the Final 

Notice must be sent to the RMA and the 

NMA. 

* * * * * 

(h) * * * 

(5) If, as a result of this review, the 

Regional Administrator determines the 

SWA has taken corrective action but is 

unable to determine if the violation has 

been corrected due to seasonality or 

other factors, the Regional 

Administrator must notify in writing the 

SWA and the Administrator of their 

findings. The Regional Administrator 

must conduct further follow-up at an 

appropriate time to make a final 

determination if the violation has been 

corrected. If the Regional 

Administrator’s follow-up reveals that 

violations have not been corrected, the 

Regional Administrator must apply 

remedial actions to the SWA pursuant 

to § 658.704. 

* * * * * 

■ 41. Amend § 658.704 by revising the 

fifth sentence of paragraph (d) and the 

fourth sentence of (f)(2) to read as 

follows: 

§ 658.704 Remedial actions. 

* * * * * 

(d) * * * The Regional Administrator 

must notify the SWA of their findings. 

* * * 

* * * * * 

(f) * * * 

(2) * * * Two must be sent to the 

ETA National Office, one must be sent 

to the Solicitor of Labor, Attention: 

Associate Solicitor for Employment and 

Training, and, if the case involves 

violations of regulations governing 

services to MSFWs or the Complaint 

System, copies must be sent to the RMA 

and the NMA. * * * 

■ 42. Amend § 658.705 by revising the 

introductory text of paragraphs (b) and 

(b)(3) and paragraphs (c) through (f) to 

read as follows: 

§ 658.705 Decision to decertify. 

* * * * * 

(b) The Assistant Secretary must grant 

the request for decertification unless 

they make a finding that: 

* * * * * 

(3) The Assistant Secretary has reason 

to believe the SWA will achieve 

compliance within 80 business days 

unless exceptional circumstances 

necessitate more time, pursuant to the 

remedial action already applied or to be 

applied. (In the event the Assistant 

Secretary does not have sufficient 

information to act upon the request, 

they may postpone the determination 

for up to an additional 20 business days 

to obtain any available additional 

information.) In making a determination 

whether violations are ‘‘serious’’ or 

‘‘continual,’’ as required by paragraph 

(b)(1) of this section, the Assistant 

Secretary must consider: 

* * * * * 

(c) If the Assistant Secretary denies a 

request for decertification, they must 

write a complete report documenting 

their findings and, if appropriate, 

instructing an alternate remedial action 

or actions be applied. Electronic copies 

of the report must be sent to the 

Regional Administrator. Notice of the 

Assistant Secretary’s decision must be 

published promptly in the Federal 

Register and the report of the Assistant 

Secretary must be made available for 

public inspection and copying. 

(d) If the Assistant Secretary decides 

decertification is appropriate, they must 

submit the case to the Secretary 

providing written explanation for their 

recommendation of decertification. 

(e) Within 30 business days after 

receiving the Assistant Secretary’s 

report, the Secretary must determine 

whether to decertify the SWA. The 

Secretary must grant the request for 

decertification unless they make one of 

the three findings set forth in paragraph 


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Federal Register / Vol. 88, No. 225 / Friday, November 24, 2023 / Rules and Regulations 82737 

(b) of this section. If the Secretary 

decides not to decertify, they must then 

instruct that remedial action be 

continued or that alternate actions be 

applied. The Secretary must write a 

report explaining their reasons for not 

decertifying the SWA and copies (hard 

copy and electronic) will be sent to the 

SWA. Notice of the Secretary’s decision 

must be published promptly in the 

Federal Register, and the report of the 

Secretary must be made available for 

public inspection and copy. 

(f) Where either the Assistant 

Secretary or the Secretary denies a 

request for decertification and orders 

further remedial action, the Regional 

Administrator must continue to monitor 

the SWA’s compliance. If the SWA 

achieves compliance within the time 

established pursuant to paragraph (b) of 

this section, the Regional Administrator 

must terminate the remedial actions. If 

the SWA fails to achieve full 

compliance within that time period after 

the Secretary’s decision not to decertify, 

the Regional Administrator must submit 

a report of their findings to the Assistant 

Secretary who must reconsider the 

request for decertification pursuant to 

the requirements of paragraph (b) of this 

section. 

■ 43. Amend § 658.706 to read as 

follows: 

§ 658.706 Notice of decertification. 

If the Secretary decides to decertify a 

SWA, they must send a Notice of 

Decertification to the SWA stating the 

reasons for this action and providing a 

10-business-day period during which 

the SWA may request an administrative 

hearing in writing to the Secretary. The 

document must be published promptly 

in the Federal Register. 

■ 44. Amend § 658.707 by revising 

paragraphs (a) and (b) to read as follows: 

§ 658.707 Requests for hearings. 

(a) Any SWA which received a Notice 

of Decertification under § 658.706 or a 

notice of disallowance under 

§ 658.702(g) may request a hearing on 

the issue by filing a written request for 

hearing with the Secretary within 10 

business days of receipt of the notice. 

Additionally, any SWA that has 

received a Notice of Remedial Action 

under § 658.704(c) may request a 

hearing by filing a written request with 

the Regional Administrator within 20 

business days of the SWA’s receipt of 

the notice. This request must state the 

reasons the SWA believes the basis of 

the decision to be wrong, and it must be 

signed by the State Administrator 

(electronic signatures may be accepted). 

(b) When the Secretary or Regional 

Administrator receives a request for a 

hearing from a SWA, they must send 

copies of a file containing all materials 

and correspondence relevant to the case 

to the Assistant Secretary, the Regional 

Administrator, the Solicitor of Labor, 

and the Department of Labor Chief 

Administrative Law Judge. When the 

case involves violations of regulations 

governing services to MSFWs or the 

Complaint System, a copy must be sent 

to the NMA. 

* * * * * 

Laura P. Watson, 

Deputy Assistant Secretary for Employment 

and Training, Labor. 

[FR Doc. 2023–25372 Filed 11–22–23; 8:45 am] 

BILLING CODE 4510–FN–P 


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