23700 Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules 

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: Proposed rule; request for 

comment. 

SUMMARY: The U.S. Department of Labor 

(Department or DOL) is issuing a notice 

of proposed rulemaking (NPRM) that, if 

finalized, would require States to use 

State merit staff to provide WagnerPeyser Act Employment Service (ES) 

services. If finalized, this proposal 

would extend the merit-staffing 

requirement to those States that 

previously had been operating different 

staffing models. The proposed changes 

would create a uniform standard of ES 

services provision for all States and 

align the use of State merit staff for ES 

services with the requirement that 

States administer the Unemployment 

Insurance (UI) programs with State 

merit staff. The Department is 

additionally proposing revisions to the 

ES regulations to strengthen the 

provision of services to migrant and 

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). 

DATES: To be ensured consideration, 

comments must be received on or before 

June 21, 2022. 

ADDRESSES: You may submit written 

comments electronically via the Federal 

eRulemaking portal (https://

www.regulations.gov). Follow the 

instructions on the website for 

submitting comments (under ‘‘FAQ’’ > 

‘‘Commenting’’). Label all submissions 

with docket number ETA–2022–0003 

and RIN 1205–AC02. 

Please be advised that the Department 

will post all comments received that 

relate to this proposed rule on https:// 

www.regulations.gov without making 

any change to the comments or 

redacting any information. The website 

is the Federal eRulemaking portal, and 

all comments posted there are available 

and accessible to the public. Therefore, 

the Department recommends that 

commenters remove personal 

information, such as Social Security 

numbers, personal addresses, telephone 

numbers, and email addresses, included 

in their comments. It is the 

responsibility of the commenter to 

safeguard personal information. 

Comments under the Paperwork 

Reduction Act of 1995 (PRA): In 

addition to filing comments on any 

aspect of this proposed rule with the 

Department, interested parties may 

submit comments that concern the 

information collection (IC) aspects of 

this proposed rule to the Office of 

Information and Regulatory Affairs at 

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

PRAMain. Find relevant information 

collections by selecting ‘‘Currently 

under Review—Open for Public 

Comments’’ or by using the search 

function. 

FOR FURTHER INFORMATION CONTACT: 

Heidi Casta, Acting Administrator, 

Office of Policy Development and 

Research, Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue NW, 

Room N–5641, Washington, DC 20210, 

Telephone: (202) 693–3700 (voice) (this 

is not a toll-free number) or 1–800–326– 

2577 (TDD). 

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents 

I. Acronyms and Abbreviations 

II. Statutory and Legal Background 

A. Required Use of State Merit Staff for 

Delivery of ES Services 

B. Legal Basis 

III. Section-by-Section Discussion of 

Proposed 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 

IV. Rulemaking Analyses and Notices 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

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) 

AOP Agricultural Outreach Plan 

ARS Agricultural Recruitment System 

BFOQ bona fide occupational qualification 

BLS U.S. Bureau of Labor Statistics 

CFR Code of Federal Regulations 

CNPC Chicago National Processing Center 

COVID–19 coronavirus disease 2019 

Complaint System Employment Service and 

Employment-Related Law Complaint 

System 

CRC DOL Civil Rights Center 

Department or DOL U.S. Department of 

Labor 

EEOC Equal Employment Opportunity 

Commission 

E.O. Executive Order 

EO Equal Opportunity 

ES Wagner-Peyser Act Employment Service 

ETA Employment and Training 

Administration 

FR Federal Register 

FTE(s) full-time equivalent(s) 

FUTA Federal Unemployment Tax Act 

IC(s) information collection 

ICR(s) information collection request 

IPA Intergovernmental Personnel Act of 

1970 

LEP limited English proficient 

MOU(s) memorandum/a of understanding 

MSFW(s) migrant and seasonal 

farmworker(s) 

NAICS North American Industry 

Classification System 

NFJP National Farmworker Jobs Program 

NMA National Monitor Advocate 

NPRM or proposed rule notifice of 

proposed rulemaking 

O*NET Occupational Information Network 

OEWS Occupational Employment and 

Wage Statistics 

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 

PIRL Participant Individual Record Layout 

PRA Paperwork Reduction Act of 1995 

Pub. L. Public Law 

PY Program Year 

RA(s) Regional Administrator(s) 

RFA Regulatory Flexibility Act 

RIN Regulation Identifier Number 

RMA(s) Regional Monitor Advocate 

Secretary Secretary of Labor 

SMA(s) State Monitor Advocate(s) 

SOC Standard Occupational Classification 

SSA Social Security Act 

Stat. United States Statutes at Large 

SWA(s) State Workforce Agency/ies 

TEGL Training and Employment Guidance 

Letter 

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 

WIOA Workforce Innovation and 

Opportunity Act 


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1Workforce 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). 

2See WIOA DOL-only Rule, 81 FR at 56267 and 

56341 (2016). 

3 29 U.S.C. 49. 

4Federal Unemployment Tax Act (FUTA) sec. 

3304(a)(1); Social Security Act (SSA) sec. 303(a)(2). 

5SSA sec. 303(a)(1) provides that the Secretary 

shall make no certification for payment to any State 

unless they find that the law of such State, 

approved by the Secretary under FUTA, includes 

provision for ‘‘[s]uch methods of administration 

(including after January 1, 1940, methods relating 

to the establishment and maintenance of personnel 

standards on a merit basis, except that the Secretary 

. . . shall exercise no authority with respect to the 

selection, tenure of office, and compensation of any 

individual employed in accordance with such 

methods) as are found by the Secretary . . . to be 

reasonably calculated to insure full payment of 

unemployment compensation when due.’’ 

6See 42 U.S.C. 503(a)(1). 

II. Statutory and Legal Background 

A. Required Use of State Merit Staff for 

Delivery of ES Services 

The Wagner-Peyser Act of 1933 

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 bringing together individuals seeking 

employment with employers seeking 

workers. Section 3(a) of the WagnerPeyser 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-services offices. This 

NPRM would amend regulations in 20 

CFR parts 651, 652, 653, and 658, and 

provide States with a uniform standard 

of ES services provision. States would 

be required to use State merit staff to 

provide ES services. The Department 

also is proposing targeted revisions to 

the regulations at parts 651, 653, and 

658. These proposed revisions are 

intended to ensure that State Workforce 

Agencies (SWAs) provide MSFWs with 

adequate access to ES services and that 

the role of the State Monitor Advocate 

(SMA) is effective. In addition, this 

NPRM would amend parts 651, 652, 

653, and 658 to further integrate genderinclusive language. Finally, the 

Department is proposing 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.1 The 

Department consistently applied this 

requirement, with minor 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. 

Thereafter, in 1998, the Department 

permitted Michigan to use State and 

local merit-staff 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). All three States continued 

to operate as demonstration States with 

approved staffing flexibility through an 

exemption in their approved State 

plans.2 Through rulemaking effective 

February 5, 2020, the Department 

removed the requirement that ES 

services be provided only through the 

use of State merit staff. See WagnerPeyser Act Staffing Flexibility; Final 

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

Final Rule). In the preamble to this rule, 

the Department explained that it sought 

to allow States maximum flexibility in 

staffing arrangements. Id. Accordingly, 

under current regulations, States may 

use a variety of staffing models to 

provide ES services. 

The Department has reassessed the 

approach adopted in the 2020 Final 

Rule and has determined that alignment 

of ES and UI staffing, which would 

allow ES staff to respond to surges of 

demand in UI, is more important than 

the efficiencies that flexibility may 

promote. Accordingly, as discussed 

below, the Department is proposing to 

require, with no exceptions, that States 

use State merit-staff employees to 

provide ES services. This NPRM 

proposes to require that all States, 

including the prior ‘‘demonstration 

States,’’ use State merit-staff employees 

to deliver ES services. This proposed 

staffing requirement would apply to all 

ES services, including services provided 

to MSFWs. 

This proposal would once again align 

the provision of ES services with the 

requirement that States administer the 

UI programs with State merit staff. The 

ES system is designed to ‘‘promote the 

establishment and maintenance of a 

national system of public employment 

service offices,’’ 3 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 

reenter the workforce. The Department 

thinks that it is vital that the ES be 

administered so that services are 

delivered effectively and equitably to UI 

beneficiaries and other ES customers. 

ES supports the work-test for UI, 

whereby UI recipients must demonstrate 

as a condition of continued UI receipt 

that they are workforce attached.4 This 

is includes various State-specific 

requirements including being able to 

work, available to work, and actively 

seeking work. Further, State merit ES 

staff are best positioned to and often do 

provide surge capacity for UI 

administration and adjudication.5 The 

proposed rule ensures States are 

universally equipped to use crosstrained ES staff to assist in processing 

UI claims, assist UI claimants, and 

promote reemployment in times of high 

demand for such services. For example, 

the recent stress placed upon State UI 

systems in response to the coronavirus 

disease 2019 (COVID–19) pandemic 

served to highlight the necessity of 

States to be able to rely on eligible State 

merit staff who are already cross-trained 

or able to be quickly cross-trained to 

assist UI claimants during times of high 

demand placed on State UI systems. 

States have experienced the benefits of 

cross-training staff to assist during 

recessions, the onset of natural 

disasters, and mass regional layoffs, in 

which State merit staff are needed to 

assist with State-level decisions and 

functions. Emergencies such as natural 

disasters are occurring across States 

with increased frequency such that this 

need for surge capacity and crosstrained staff is becoming increasingly 

necessary. States can assist one another 

when one is impacted by a natural 

disaster, where non-impacted State 

merit staff, including cross-trained ES 

staff, provide claims adjudication 

assistance, such as fact finding/ 

document analysis and claims 

processing of UI and Disaster 

Unemployment Assistance claims. 

Although the COVID–19 pandemic is an 

historically unprecedented event, in 

addition to disaster response, the UI 

system has been a key economic 

stabilizer in times of need such as the 

Great Recession, whereby State UI 

systems benefitted from cross-trained ES 

staff to provide extra capacity for UI 

administration and adjudication. 

Historical data from 1971 through 2021 

indicates regular and periodic increases 

in the number of UI initial claims and 

first payments in which having ES staff 

who are already cross-trained or able to 

be quickly cross-trained to assist UI 

claimants would be beneficial. The 

adjudication of UI claims is work that 

must be performed by State merit staff.6

Therefore, staff to assist with claims 

processing and adjudication must be 

merit staff directly employed by the 

State and available for States to redirect 


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7See sec. 4102(b) of the Families First 

Coronavirus Response Act (Pub. L. 116–127), 

including Division D Emergency Unemployment 

Insurance Stabilization and Access Act of 2020 

(EUISAA); sec. 2106 of the Coronavirus Aid, Relief, 

and Economic Security Act of 2020 (CARES Act) 

(Pub. L. 116–136); sec. 205 of the Continued 

Assistance Act (Pub. L. 116–260); and sec. 9015 of 

the American Rescue Plan Act of 2021 (Pub. L. 117– 

2). This flexibility only applied for responding to 

workload and increased demand resulting from the 

spread of COVID–19 and was limited to engaging 

temporary staff, rehiring retirees or former 

employees on a non-competitive basis, and other 

temporary actions to quickly process applications 

and claims. 

8 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). 

their work. Requiring that ES staff be 

State merit staff would allow the States 

to use ES staff to carry out both ES 

services and necessary UI functions. 

In response to the COVID–19 

pandemic, emergency legislation related 

to COVID–19 provided States the ability 

on a limited and temporary emergency 

basis to recruit staff on a non-merit basis 

to quickly process UI applications and 

claims.7 However, relying on such timelimited legislative action is not a viable, 

long-term solution, particularly as 

providing adequate training for UI 

adjudicators takes several months to a 

year. Furthermore, emergency 

legislation related to COVID–19 does 

not provide flexibility in future 

emergencies. Requiring ES labor 

exchange services to be provided by 

State merit staff will help ensure that 

States have the ability to shift staff 

resources during future exigencies 

affecting State-level functions and UI 

claims where time-limited legislative 

solutions are not available and there is 

a pressing need to have cross-trained 

staff who are legally permitted to assist 

with UI services. 

In addition, in the Intergovernmental 

Personnel Act (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. 42 U.S.C. 4701. 

Requiring States to employ the 

professionals who deliver ES services in 

accordance with these principals would 

help ensure that ES services are 

delivered by qualified, non-partisan 

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 high-quality 

performance, and maintain certain 

standards of performance. Id. 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. Id. By 

contrast, contract staff and subrecipient 

staff are employed by and accountable 

to non-State entities, and their 

individual adherence to State-issued 

policies and procedures is not directly 

observable. And, as noted previously, it 

is important that the States use State 

merit staff to deliver ES services because 

of the critical alignment between the ES 

and UI programs. 

In proposing 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 IPA, 42 

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

provisions, standing alone, provides the 

Department with the discretion 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.’’ As the court in 

Michigan v. Herman, 81 F. Supp. 2d 840 

(W.D. Mich. 1998), concluded, ‘‘the 

language in [sec. 3(a)] authorizing the 

Secretary to develop and prescribe 

‘minimum standards of efficiency’ is 

broad enough to permit the Secretary 

. . . to require merit staffing.’’ Id. 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 unemployment insurance claimant 

services.’’ As explained previously, the 

proposed merit-staffing requirement 

would align the staffing of ES services 

with the staffing that States are required 

to use in the administration of UI 

programs. This would allow crosstrained ES staff to assist States in 

processing and adjudicating UI claims, 

and assisting claimants with work 

search and reemployment services, 

particularly in times of high need, such 

as during the pandemic. It would, 

therefore, be reasonable for the 

Department to base the finding required 

by sec. 5(b)(2) of the Wagner-Peyser Act, 

in part, on a State’s agreement to use 

State merit staff to administer and 

provide ES services. 

Additionally, 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).8 In accordance with 5 CFR 

900.605, the Department has submitted 

this proposed rule to OPM for review 

and has received prior approval. 

The Department acknowledges that 

this proposal constitutes a change in its 

existing position and would require 

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). 

As explained previously, the 

Department is proposing this change to 

ensure that more workers will be 

available in the States if needed to back 

up the UI system. In the section-bysection discussion that follows, the 

Department further explains why it is 

proposing to require that States use 

State merit-staff employees to provide 

ES services, acknowledges the reliance 

interests of States that would need time 

to come into compliance with this 

requirement, and addresses those 

interests by proposing an 18-month 

transition period. 

B. Strengthening the Provision of 

Services to Migrant and Seasonal 

Farmworkers 

In addition to a merit-staffing 

requirement, the Department is 

proposing targeted revisions to the 

regulations at parts 651, 653, and 658. 

The proposed revisions are intended to 

ensure that SWAs provide adequate 

outreach services to MSFWs and that 

SMAs, Regional Monitor Advocates 

(RMAs) and the National Monitor 

Advocate (NMA) have the authority, 

tools, and resources that they need to 

monitor SWA compliance with the ES 

regulations. As described in detail in the 

section-by-section discussion that 

follows, the proposed revisions would 

strengthen the Monitor Advocate 

System established in the wake of 

NAACP, Western Region et al. v. 

Brennan, 360 F.Supp. 1006 (D.D.C. 

1973), and ensure that SWAs offer and 

provide ES services to MSFWs in a 

manner that is qualitatively equivalent 

and quantitatively proportionate to the 

ES services that they offer and provide 

to other job seekers. Additional 

proposed revisions include technical 

edits to improve clarity, such as adding 

commas or cross-references. 


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III. Section-by-Section Discussion of 

Proposed Rule 

A. Technical Amendments and Global 

Edits 

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 proposes 

making technical changes to replace the 

phrases ‘‘employment services,’’ 

‘‘Wagner-Peyser Act services,’’ and 

‘‘services provided under the WagnerPeyser 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 

proposed 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 for 

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 proposing 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 is 

proposing 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 proposes using 

their job title instead of a pronoun. 

These edits largely affect regulations 

impacting the NMA or the 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 at §§ 658.602 and 658.603. 

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

employer that is not an individual 

person, the Department proposes using 

the pronoun ‘‘it.’’ Where the possessive 

pronouns ‘‘his/her’’ were used, the 

Department proposes using ‘‘its.’’ This 

is appropriate because employers are 

entities, not individuals, and the proper 

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

§§ 658.502 and 658.504. 

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

used, the Department proposes using 

the pronoun ‘‘they’’ in its capacity as a 

gender-inclusive third-person singular 

pronoun but conjugated with thirdperson plural verbs. Where the 

possessive pronouns ‘‘his/her’’ were 

used, the Department proposes using 

‘‘their.’’ These changes are designed to 

remove binary gender language so that 

the full regulatory text is gender 

inclusive. The Department makes these 

changes in § 651.10 in the definition of 

seasonal farmworker. Edits are also 

made 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 proposes 

to replace 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 proposes conforming technical 

amendments to correct grammar in the 

regulations, as needed, because of these 

changes. In addition to such conforming 

technical amendments, the Department 

proposes adding and removing 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. 

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. The Department proposes to revise 

the following definitions to better align 

them across the regulatory text, as well 

as practice in the field, and to make 

them conform with other revisions the 

Department proposes to make in this 

NPRM, including changes to staffing 

requirements. 

The Department proposes to revise 

the first sentence of § 651.10 by 

providing the full title of the statute for 

the existing WIOA reference and 

identifying where WIOA is codified. 

These additions will help ensure the 

definitions in this section apply to 

WIOA, as published at 29 U.S.C. 3101 

et seq. 

The Department proposes 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. 

The Department has observed that 

SWAs have used inconsistent 

descriptions of the term in their policies 

and procedures, which are not always 

consistent with § 658.419. The proposed 

definition is derived from existing 

regulatory language at § 658.419, which 

describes that an apparent violation is a 

suspected violation of employmentrelated laws or ES regulations. 

The Department proposes to amend 

the definition of applicant holding 

office to replace ‘‘a Wagner-Peyser 

Employment Service Office’’ with ‘‘an 

ES office.’’ The definition of WagnerPeyser Act Employment Service (ES) 

also known as Employment Service (ES) 

explains that ES offices refers to ES 

offices described under the WagnerPeyser Act. Additionally, the definition 

of ES office explains that ES offices 

provide ES services as a one-stop 

partner program. Therefore, the 

reference to ‘‘a Wagner-Peyser 

Employment Service office’’ is 

redundant and unnecessary. 

The Department proposes 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 proposes 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 proposes 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 proposes to remove the words 

‘‘individual at the local or State level’’ 

due to proposed changes to the 

definition of ES staff. 


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The Department proposes 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 proposes to amend 

the definition of Employment Service 

(ES) office to replace ‘‘Wagner-Peyser 

Act’’ with ‘‘ES.’’ This change would 

align the definition with proposed 

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

known as the Employment Service (ES) 

and make the reference to ES consistent 

across all parts of the ES regulations. 

The Department proposes to amend 

the definition of Employment Service 

(ES) Office Manager to replace the 

phrase ‘‘all ES activities in a one-stop 

center’’ with the phrase ‘‘ES services 

provided in a one-stop center.’’ This 

change would align the definition with 

other proposed changes to the 

regulatory text and definitions, which 

refer to ‘‘ES services,’’ instead of ‘‘ES 

activities.’’ The Department also 

proposes to replace ‘‘individual’’ with 

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

Office Manager must be ES staff, as 

defined in this section. 

The Department proposes to amend 

the definition of Employment Service 

(ES) staff in two ways. First, the 

Department proposes to replace 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. 

Second, the Department proposes to 

delete the phrase ‘‘to carry out activities 

authorized under the Wagner-Peyser 

Act,’’ because this language is 

unnecessary. The ES regulations in parts 

652, 653, and 658 describe the activities 

and services that ES staff are authorized 

or required to carry out. The proposed 

changes are intended to define a term 

that, when referenced, will clearly 

identify services or tasks that must be 

performed by State merit staff, and to 

simplify terminology throughout all 

parts. The revised definition also makes 

clear that ES staff includes a SWA 

official. 

The Department proposes to amend 

the definition of field checks in several 

ways. First, the Department proposes 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 proposes to clarify in the 

definition that field checks may also be 

conducted by non-ES State staff, in 

addition to ES or Federal staff, if the 

SWA has entered into an arrangement 

with a State enforcement agency (or 

agencies) to conduct field checks. This 

proposed revision aligns the definition 

with existing practice permitted by the 

regulation at § 653.503, 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 ES personnel. 

Additionally, the Department 

proposes to remove from the definition 

that field checks are ‘‘random’’ 

appearances. The proposed revision 

would clarify that the selection of the 

clearance orders on which the SWA will 

conduct field checks does not need to be 

random, though random field checks 

may still occur. The revision clarifies 

that field checks may be targeted, where 

necessary, to respond to known or 

suspected compliance issues, thereby 

improving MSFW worker protection. In 

addition, if a SWA makes placements on 

9 or fewer clearance orders, the SWA 

must conduct field checks on 100 

percent of those clearance orders. See 

§ 653.503(b). Therefore, in those cases, 

field checks could not be conducted on 

a random basis. These proposed 

revisions would clarify the definition 

and make it consistent with 

§ 653.503(b). 

The Department proposes to amend 

the definition of field visits in several 

respects. First, the Department proposes 

to clarify that field visits are announced 

appearances by SMAs, RMAs, the NMA, 

or NMA team members. This term is 

currently defined to include 

appearances by Monitor Advocates or 

outreach staff, and the proposed 

revision would clarify which Monitor 

Advocates may conduct field visits and 

that the appearances are announced, 

and not unannounced, as with field 

checks. Second, the Department 

proposes to 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 

proposes to amend the definition to 

specify that field visits include 

discussions on farmworker rights and 

protections. The Department has 

observed through monitoring that 

outreach staff and SMAs do not always 

discuss farmworker rights and 

protections during field visits as part of 

broader discussions about ‘‘other 

employment-related programs,’’ and 

instead only cover information on ES 

services. An explicit reference to 

discussions on farmworker rights and 

protections in the definition will help 

ensure that these issues are consistently 

addressed. 

The Department proposes 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 proposes to amend 

the definitions 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 in this part. 

The Department also proposes to 

amend the definition of intrastate 

clearance order in two ways. First, the 

Department proposes to amend the 

definition to indicate that it is an 

agricultural ‘‘clearance’’ order for 

temporary employment instead of a 

‘‘job’’ order. This change aligns the 

definition with the definitions of job 

order and clearance order in this part. 

Second, the proposed revision clarifies 

that the term means an agricultural 

clearance order for temporary 

employment 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. The current definition 

does not include the word ‘‘all.’’ 

Therefore, it was not clear that such a 

request must go to all other offices in 

the State, and some ES offices were not 

distributing the clearance order to all 

offices. This clarification will help 

SWAs understand that an intrastate 

clearance order must be circulated to all 

ES offices within the State. 

The Department proposes to amend 

the definition of migrant farmworker by 

removing the exclusion of full-time 

students who are traveling in organized 

groups. The Department proposes 

considering anyone who meets the 

definition of migrant farmworker to be 

considered as such, including full-time 

students performing farmwork. This 

change will make the benefits and 

protections of the Monitor Advocate 

System, including safeguards built into 

the Complaint System, ES service 

requirements, and equity and minimum 

service levels, available to full-time 

students traveling in organized groups. 

The exclusion of full-time students from 

existing regulatory text was premised on 

the fact that full-time students did not 

need to meet minimum farmwork or 

income requirements, which no longer 

exist in the ES regulations. Therefore, 


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the reference is no longer relevant to the 

migrant farmworker definition. 

The Department proposes 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 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 proposes 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 proposes 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 proposes to amend 

the definition of outreach staff to clarify 

that SMAs are not considered outreach 

staff. The SMA’s role includes 

monitoring and providing guidance 

related to outreach staff but does not 

include acting as outreach staff. 

Outreach staff are a separate set of staff 

described in § 653.107(b). As noted in 

§ 653.108, no State may dedicate less 

than full-time staffing for the SMA 

position, unless the Regional 

Administrator (RA), with input from the 

RMA, provides written approval. The 

SMA must also be able to review 

outreach efforts as required in 

§ 653.108(o) and have adequate time to 

complete the extensive duties described 

in § 653.108. While an SMA may join 

ongoing outreach efforts, § 653.107 

requires SWAs to employ an adequate 

number of outreach staff. 

The Department proposes 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 it is therefore unnecessary 

to distinguish ‘‘State agency officials’’ in 

addition to the State agency. 

The Department is proposing to 

remove the exclusion of non-migrant 

full-time students from the definition of 

seasonal farmworker. This change 

would allow full-time students who 

work in seasonal farmwork to be 

considered seasonal farmworkers and 

would make the definition of seasonal 

farmworker consistent with the 

definition of migrant farmworker. 

The Department proposes to revise 

the definition for significant MSFW onestop centers in several ways. First, by 

removing the requirement that the 

designation be made annually, the 

Department can better rely on multiple 

data sources that are published in 

intervals up to every 5 years, including 

the Census of Agriculture and the 

Quarterly Census of Employment and 

Wages. This will help ensure the 

designation more accurately aligns with 

supporting data on the number of 

MSFWs in the service area. Based on the 

Department’s analysis of census and 

other SWA data, the data do not change 

significantly on an annual basis and, 

therefore, it is often unnecessary to 

change the designations. If annual 

adjustments are warranted by the data, 

the Department will make adjustments 

in annual designations. 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 also 

proposes to add that significant MSFW 

one-stop centers will also include ES 

offices where MSFWs account for 10 

percent or more of reportable 

individuals in the ES annually, not just 

10 percent or more of participants. This 

corresponds to the proposed change in 

§§ 653.103(a) and 653.109(b)(10), which 

would require ES offices to determine 

and collect data on the number of 

reportable individuals who are MSFWs. 

This proposal is intended to more 

closely correlate the designation of 

significant MSFW one-stop centers to 

the total number of MSFWs—and, 

therefore, potential participants—in the 

area, as opposed to just the number of 

existing participants in the area. Relying 

solely on the number of existing MSFW 

participants in the area fails to account 

for all other MSFWs in the area who 

could potentially become participants 

and does not account for situations 

where the number of participants in the 

area is low due to failure to perform 

adequate outreach or to make services 

available to MSFWs so that MSFWs who 

are reportable individuals may receive 

participant level services. In those cases, 

the number of participants is not an 

accurate indicator of the need for 

MSFW-specific ES services in the area. 

These proposed changes provide a more 

accurate representation of the number of 

MSFWs in the area who could benefit 

from access to ES services. The 

Department also is proposing to retain 

language permitting the Department to 

consider special circumstances beyond 

the estimated number of MSFWs in the 

area in designating significant MSFW 

one-stop centers. 

The Department proposes to amend 

the definition of significant MSFW 

States. Similar to the proposed changes 

to the definition of significant MSFW 

one-stop centers, the Department 

proposes to remove the annual 

designation requirement from the 

definition of significant MSFW States. 

The Department proposes to rely on 

information from the Census of 

Agriculture, which is published every 5 

years, and the Quarterly Census of 

Employment and Wages, which 

publishes a quarterly count of 

employment and wages. These data 

sources provide the most reliable 

farmworker estimates available. 

Additionally, the Department proposes 

to add ‘‘estimated’’ before ‘‘number of 

MSFW’’ and remove the word 

‘‘participants’’ because the Department 

intends to use the estimated number of 

MSFWs in each State, instead of 

exclusively the number of MSFW 

participants in the State to more 

accurately determine which States have 

the most MSFW activity and should 

therefore be designated as significant 

MSFW States. Relying on the estimated 

number of MSFWs in a State means the 

Department will account for those 

MSFWs who may eventually become 

participants instead of only focusing on 

States with the highest existing number 

of participants. 

The Department proposes to delete 

the definition of significant multilingual 

MSFW one-stop centers in its entirety 

because the Department is proposing 

changes to § 653.102 to remove specific 

requirements for offices that would meet 

the definition. The Department proposes 

to remove these specific requirements 

for significant multilingual MSFW onestop centers because all one-stop centers 

must comply with the language access 

requirements in 29 CFR 38.9, which 

prohibit discrimination on the basis of 

national origin, including limited 

English proficiency (LEP). The 

Department created the significant 

multilingual MSFW one-stop center 

definition and language access 

requirements at § 653.102 before 

comprehensive language access 

requirements implementing section 188 

of WIOA were codified in 29 CFR part 

38. The regulations at 29 CFR 38.9 

establish that language access 

requirements apply to services provided 

to all LEP individuals at all one-stop 

centers and are broader than the existing 

requirements for significant multilingual 

MSFW one-stop centers. For these 

reasons, the designation of significant 

multilingual MSFW one-stop centers is 

no longer necessary. Additionally, 


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9See, 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). 

having separate requirements for 

significant multilingual MSFW one-stop 

centers may inaccurately create the 

appearance that there are two sets of 

language access standards, or that 

requirements for significant multilingual 

MSFW one-stop centers are narrower. 

Removing the significant multilingual 

MSFW one-stop center definition 

therefore clarifies that the 

comprehensive language access 

requirements at 29 CFR 38.9 apply to all 

one-stop centers. 

The Department proposes 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. 

The Department is proposing to 

amend the definition of Wagner-Peyser 

Act Employment Service (ES) also 

known as Employment Service (ES) to 

replace the phrase ‘‘employment 

services’’ with ‘‘ES services.’’ This 

change would simplify the use of 

terminology throughout all parts. The 

Department also proposes to remove the 

words ‘‘and are’’ from the definition for 

greater clarity. 

C. Part 652—Establishment and 

Functioning of State Employment 

Service Subpart C—Employment Service 

Services in a One-Stop Delivery System 

Environment 

1. Subpart A—Employment Service 

Operations 

This subpart 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 

Department’s proposed amendments to 

subpart A focus solely on administrative 

provisions governing nondiscrimination 

requirements. 

Section 652.8 Administrative 

Provisions 

Section 652.8 covers administrative 

matters, including: Financial and 

program management information 

systems; recordkeeping and retention of 

records; required reports; monitoring 

and audits; costs; disclosure of 

information; sanctions; and 

nondiscrimination requirements. 

The Department proposes to correct 

the statutory reference in § 652.8(j)(2) 

regarding the bona fide occupational 

qualification (BFOQ) exception 

currently listed in the regulation as 42 

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

2(e). 

The Department proposes 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.9 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). 

Consistent with this proposed 

amendment, the Department also 

proposes to remove the phrase ‘‘and 

affirmative action’’ from the paragraph 

heading for § 652.8(j). 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 WagnerPeyser Act, as well as any other WIOA 

title I-financially 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 limited English 

proficiency, individuals with 

disabilities, and individuals in different 

age groups. 

2. Subpart C—Employment Service 

Services in a One-Stop Delivery System 

Environment 

This subpart 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; universal service access 

requirements; provision of services for 

UI claimants; and State planning. 

Among other changes, the NPRM’s 

proposed changes to regulations under 

subpart C are tailored to require all 

States to use State merit staff to provide 

ES services, reinstating a longstanding 

requirement that existed prior to the 

2020 Final Rule, and extending the 

requirement to those States using 

different staffing arrangements under 

the rule as it existed prior to the 2020 

Final Rule. As was true when the 

regulations were changed in 2020, none 

of the changes proposed at this time will 

impact the personnel requirements of 

the Vocational Rehabilitation (VR) 

program, one of the six core programs in 

the workforce development system that 

is authorized under title I of the 

Rehabilitation Act of 1973 

(Rehabilitation Act), as amended by title 

IV of WIOA. The Rehabilitation Act 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 Governor’s 

Reserve flow through the one-stop 

delivery system? 

This section explains that the 

Governor’s Reserve funds may, but are 

not required to, flow through the onestop delivery system and provides a list 

of allowable uses for those funds. The 

Department proposes 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 proposes 

to amend this section to reference 

professional development and career 

advancement of ES staff instead of SWA 

officials. Under the proposed revisions 

to the definitions found in part 651, ES 

staff would exclusively refer to State 

merit staff. This NPRM proposes to 

remove the term SWA official as a 

defined term in § 651.10, as the term is 

made redundant under the proposed 

changes. 

Section 652.215 Can Wagner-Peyser 

Act-funded activities be provided 

through a variety of staffing models? 

This section currently provides States 

the option to provide ES services 

through a variety of staffing models. For 

the reasons set forth in this NPRM, the 

Department proposes to amend 

§ 652.215 to require all States, including 

the historically exempted 

‘‘demonstration States,’’ to provide labor 

exchange services described in § 652.3 

of this part through State merit staff. 

The staffing requirement applies to ES 

services provided to MSFWs. 

Specifically, the proposed regulatory 

text states that labor exchange services 

must be provided by ES staff. Under 

proposed revisions to the definitions 

(§ 651.10), ES staff will exclusively refer 

to State merit staff. 

Historically, the Department relied on 

authority under sec. 3(a) of the WagnerPeyser Act, which requires the 


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10See 64 FR 18662, 18691 (April 15, 1999) 

(Workforce Investment Act (WIA) Interim Final 

Rule); 65 FR 49294, 49385 (Aug. 11, 2000) (WIA 

Final Rule); 80 FR 20690, 20805 (April 16, 2015) 

(WIOA NPRM); 81 FR 56072, 56267 (Aug. 19, 2016) 

(WIOA Final Rule). 

Department to assist in coordinating 

State ES offices and improve their 

usefulness by setting minimum 

standards of efficiency and promoting 

their uniform administration, as well as 

authority in sec. 5(b) of the WagnerPeyser Act, to promulgate regulations 

prescribing the use of State merit staff. 

Prior to 2020, in support of its 

longstanding State merit staff 

requirement for ES services, the 

Department explained that the benefits 

of merit-staffing in promoting greater 

consistency, efficiency, accountability, 

and transparency are well established.10

The Department’s discretion to require 

the use of State merit staff to provide ES 

services was affirmed in Michigan v. 

Herman, 81 F. Supp. 2d 840 (W.D. 

Mich. 1998). As explained earlier in this 

preamble, in the 1990s, the Department 

approved limited exemptions from the 

merit-staffing requirement for three 

States (Colorado, Massachusetts, and 

Michigan) during the establishment of 

the one-stop delivery system to test 

alternative service-delivery models, but 

subsequently noted that no additional 

exemptions would be authorized. 

In the 2020 Final Rule, the 

Department changed its longstanding 

policy and determined that granting 

States flexibility in staffing potentially 

would give States flexibility to meet the 

unique needs of ES customers, free up 

resources to serve employers and job 

seekers, and better integrate ES services 

with other WIOA programs. The 

Department also stated that similar 

programs operated successfully with 

flexible staffing arrangements and, 

therefore, staffing flexibility should be 

provided under the Wagner-Peyser Act. 

However, the recent stress placed upon 

State UI systems in response to the 

COVID–19 pandemic served to highlight 

the necessity of States to be able to rely 

on State merit staff who are already 

cross-trained or able to be quickly crosstrained and legally permitted to assist 

UI claimants during times of high 

demand placed on State UI systems. As 

discussed above, the Department has 

reassessed the factors it weighed in the 

2020 Final Rule and has determined 

that the alignment of ES and UI staffing 

is more important than the efficiencies 

that flexibility may promote, and that it 

is vital that the ES be administered so 

that quality services are delivered 

effectively and equitably to UI 

beneficiaries and other ES customers. 

Accordingly, the Department is now 

proposing to require, with no 

exceptions, that States use State meritstaff employees to provide ES services. 

This proposed rule ensures States are 

universally equipped to use crosstrained ES staff to assist in processing 

and adjudicating UI claims, and 

assisting claimants with work search 

and reemployment services. As 

described previously, the Department 

relies on authority under secs. 3(a) and 

5(b) of the Wagner-Peyser Act, as well 

as sec. 208 of the IPA, to exercise 

discretion to require the use of State 

merit staff to deliver ES services. 

To improve clarity, the Department 

proposes revising the section heading 

from ‘‘Can Wagner-Peyser Act funded 

activities be provided through a variety 

of staffing models?’’ to ‘‘What staffing 

model must be used to deliver services 

in the Employment Service?’’ In 

addition, the Department proposes 

revising the regulatory text by adding a 

new paragraph (a), which specifies that 

the Secretary requires that the labor 

exchange services described in § 652.3 

be provided by ES staff. This revision is 

proposed to reinstate the State meritstaffing requirement and align with the 

proposed definitions of ES and ES staff 

in § 651.10. 

The Department further proposes to 

add a new paragraph (b), which 

provides that the staffing requirement in 

this section would have the same 

effective date as other proposed changes 

in this NPRM and would become 

effective 60 days after publication of the 

final rule in the Federal Register. The 

Department also proposes to add a new 

paragraph (c), which specifies a 

compliance date for proposed § 652.215 

(i.e., the date on which the requirements 

of this section would become 

enforceable) of 18 months after the 

effective date of the final rule. The 

Department acknowledges that for 

States currently using different staffing 

models for the provision of ES services, 

both those that have been using 

different models for many years and 

those that changed or have begun to 

change their staffing models due to the 

2020 Final Rule, the use of State merit 

staff may take time to implement. 

In the short period of time that 

staffing flexibility has been available to 

all States, the Department is aware that 

a few States expressed an interest in 

using that flexibility. Some States may 

have taken steps to use the staffing 

flexibility without modifying their 

approved State plans, under which they 

indicate that they are using State merit 

staff to deliver ES services. At least one 

State has submitted a State plan 

modification indicating that the State 

intends to use non-State merit staff to 

provide ES services. Reinstating the 

State merit-staffing requirement will 

impact these States, but the Department 

thinks that the impact will be minimal, 

as described in the regulatory impact 

analysis section of this proposal (sec. 

III.A of the preamble). 

The Department recognizes that this 

proposed change will have the most 

impact on the three demonstration 

States, Colorado, Massachusetts, and 

Michigan. Since the 1990s, these three 

States have relied on an exemption in 

their approved State plans to use some 

limited form of non-State-merit staffing. 

Any burden imposed on these three 

States by the proposal to require their 

use of only State merit staff may be 

mitigated by the States’ currently 

approved staffing models. Colorado and 

Michigan both use only merit-staffing to 

deliver ES services, but they employ 

merit staff at both the State and local 

level to deliver services. For these 

States, the proposed regulation would 

require that they discontinue their use 

of local merit staff and use only State 

merit staff. Massachusetts uses some 

non-merit staff, but that use of nonmerit staff is only approved in 4 out of 

16 local areas in the State. In the 

remaining local areas, Massachusetts 

uses State merit staff to deliver ES 

services. Accordingly, while disruption 

in service delivery may occur due to 

this change, the Department anticipates 

that disruption to these States’ ES 

service delivery will be minimal. As 

noted in the regulatory impact analysis, 

prior to publication of this NPRM, the 

Department surveyed the demonstration 

States on any transition costs that may 

be incurred by the proposed State meritstaffing requirement. While the 

Department acknowledges that there 

may be some cost to these three States 

due to this change, the Department 

believes that the rationale for requiring 

the use of State merit staff applies 

equally to the demonstration States, and 

that the long-term benefits of having 

cross-trained ES staff outweigh the cost 

to these States of transitioning to the use 

of State merit staff. The Department 

seeks comment on the benefits and costs 

of transitioning to a State merit-staffing 

requirement in instances where States 

are using staff other than State merit 

staff to deliver services. In addition, the 

Department seeks comment on any 

positive or negative impact this change 

would have in terms of the quality of 

services provided within the American 

Job Centers—including those funded by 

WIOA. 

However, acknowledging that these 

three States, and any State that had 

taken action under the 2020 Final Rule, 

will be unable to immediately comply 


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with this proposed requirement, the 

Department proposes to provide 18 

months for States to implement the 

State merit-staffing requirement in order 

to provide States with adequate time to 

consider and implement any necessary 

changes to come into compliance, 

including time to resolve outstanding 

contractual obligations and align 

changes with the timed financial 

allotments. The Department is open to 

adjusting this time period and, 

accordingly, it seeks comments from 

States regarding whether 18 months is 

sufficient time to comply with this 

requirement. The Department also seeks 

comments from States describing other 

regulatory changes States believe are 

necessary to effectuate compliance with 

the proposed changes. 

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

Part 653 sets forth the principal 

regulations of the 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 fashion. The regulations in 

this part 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. As noted 

elsewhere in this preamble, the 

proposed State merit-staffing 

requirement discussed in part 652 

would also apply to delivery of all ES 

services to MSFWs, including outreach 

services and the Monitor Advocate 

System discussed in the following 

section. References to staffing 

throughout this part of the proposed 

rule, even where the Department has not 

proposed changes, refer to State merit 

staff. 

1. Subpart B—Services for Migrant and 

Seasonal Farmworkers (MSFWs) 

Section 653.100 Purpose and Scope of 

Subpart 

The Department proposes to amend 

§ 653.100(a) to clarify that the provision 

of services for MSFWs must be available 

in 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 sec. 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 

Wagner-Peyser Act Employment Service 

is a required one-stop partner, and the 

requirements of section 188 of WIOA 

apply to all one-stop partners. 29 CFR 

38.4(zz). 

Section 653.101 Provision of Services 

to Migrant and Seasonal Farmworkers 

The Department proposes 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. This clarification is proposed 

because it is ultimately incumbent upon 

the SWA to ensure ES staff at one-stop 

centers are carrying out the appropriate 

duties with their Wagner-Peyser Act 

funds. The Department also proposes to 

replace the requirement 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 the one-stop centers tailor 

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. This proposed change strengthens 

the requirement to tailor services to the 

individualized needs of MSFWs. The 

change also would make the 

requirement applicable to the SWA to 

ensure the one-stop centers comply, to 

align with the SWA’s position as the 

direct recipient of ES funds. 

Section 653.102 Job Information 

The Department proposes to revise 

the second sentence of § 653.102 to 

clarify that the SWA is the entity 

responsible for assisting MSFWs to 

access job order information, for the 

same rationale as described in the same 

proposed change for § 653.101. The 

Department’s proposed language also 

clarifies that the requirement applies to 

ES staff at one-stop centers because the 

scope of part 653 relates to the ES 

services program, not all one-stop 

partner programs. The Department also 

proposes to remove the word 

‘‘adequate’’ as a modifier to the phrase 

‘‘assistance to MSFWs.’’ The 

Department has observed that States’ 

interpretation of what it means to 

provide adequate assistance varies. 

Removing the word ‘‘adequate’’ will 

remove subjectivity and clarify that a 

SWA meets its obligation to assist 

MSFWs by complying with the 

requirements in parts 653 and 658. 

The Department also proposes to 

remove the final sentence of § 653.102, 

which stated that in designated 

significant MSFW multilingual offices, 

assistance with accessing job order 

information must be provided to 

MSFWs in their native language 

whenever requested or necessary. The 

Department proposes to remove this 

sentence to align language access 

requirements in the ES regulations with 

those required by WIOA sec. 188 and its 

implementing regulations at 29 CFR part 

38. Language access requirements are 

not limited to designated multilingual 

MSFW one-stop centers, but rather, they 

apply to LEP individuals regardless of 

through which office they seek ES 

services. The existing requirement was 

written into the regulations in the early 

1980s, well before the language access 

requirements were codified at 29 CFR 

part 38. Removing the existing 

requirement, which specifically applies 

to designated multilingual MSFW onestop centers, and adding a reference to 

the broader language access 

requirements at § 653.103(b) (described 

in the following section) is intended to 

strengthen language access for all LEP 

individuals. This change also aligns 

with the proposal to remove the 

definition for multilingual MSFW onestop centers from § 651.10. Accordingly, 

the Department proposes to add a 

broader language access requirement to 

§ 653.103, as described in the following 

section. 

Section 653.103 Process for Migrant 

and Seasonal Farmworkers To 

Participate in Workforce Development 

The Department proposes to make 

several revisions to § 653.103. In 

paragraph (a), the Department proposes 

to change ‘‘one-stop center’’ to ‘‘ES 

office.’’ This change clarifies that the 

requirement applies to ES staff because 

part 653 applies to the ES services 

program, not all one-stop partner 

programs. In addition to the existing 

requirement to determine whether 

participants, as defined at § 651.10, are 

MSFWs, the Department proposes to 

require that ES offices must determine 

whether reportable individuals, also 

defined at that section, are MSFWs. This 

proposed change will help ES staff 

identify all individuals who engage in 

ES services who are MSFWs, and not 

limit that assessment to participants 

only. With this information, SWAs will 

be able to better understand the number 

of MSFWs who engage in the ES and the 

degree of their engagement. This 

information is important for SWAs and 

SMAs to have so that they may 


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understand the full scope of who 

accesses particular services for the 

purposes of determining whether 

services are being provided to MSFWs 

on an equitable basis. For example, by 

having the number of MSFW reportable 

individuals, the SWAs and SMA can 

analyze situations where there may be 

large numbers of MSFW reportable 

individuals but very few or no MSFW 

participants, in proportions far different 

than other populations. Such scenarios 

may indicate that ES services are not 

being provided to MSFWs in a way that 

is tailored to individual MSFW 

preferences, needs, skills, and the 

availability of job and training 

opportunities, so that MSFWs are 

reasonably able to participate in the ES, 

as required by the proposed § 653.101. 

In § 653.103(b), the Department 

proposes to replace the existing 

provision requiring all SWAs to ensure 

that MSFWs who are English-language 

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 requiring all SWAs to 

comply with the language access and 

assistance requirements at 29 CFR 38.9 

with regard to all LEP individuals, 

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. This proposed change 

aligns the language access requirements 

for MSFWs with those requirements 

identified for all LEP individuals 

pursuant to 29 CFR 38.9 and helps 

ensure LEP individuals have meaningful 

access to the ES. 

Due to this proposed change, the 

Department proposes corresponding 

edits throughout the ES regulations to 

ensure that all language access 

requirements align with 29 CFR 38.9. 

This is important for several reasons. 

First, 29 CFR 38.9 is part of WIOA sec. 

188’s prohibition on discrimination on 

the basis of national origin, including 

limited English proficiency. 

Maintaining separate language access 

requirements could create confusion 

about which standard should apply. 

Second, the proposed change reduces 

duplication because the standards at 29 

CFR 38.9 already cover the language 

access requirements provided in the ES 

regulations. Third, aligning the ES 

regulations with 29 CFR 38.9 ensures 

broader language access protections for 

LEP farmworkers than those in the 

existing ES regulations. 

Lastly, in § 653.103(c), the 

Department proposes to remove the 

requirement that one-stop centers must 

provide MSFWs a list of available career 

and supportive services ‘‘in their native 

language.’’ This proposed change would 

make the provision consistent with the 

broader proposed revisions to language 

access requirements throughout all parts 

to ensure they align with 29 CFR 38.9. 

Section 653.107 Outreach 

Responsibilities and Agricultural 

Outreach Plan 

The Department proposes to revise 

the section heading in § 653.107 to read 

‘‘Outreach responsibilities and 

Agricultural Outreach Plan’’ to provide 

greater clarity. 

The Department proposes to revise 

§ 653.107(a)(1) in several ways. First, 

the Department proposes to move to 

§ 653.107(a)(4) the sentence that 

explains each SWA must provide an 

adequate number of outreach staff to 

conduct MSFW outreach in their service 

areas. The regulation at paragraph (a)(4) 

details how many outreach staff a SWA 

must provide and explains what it 

means to provide an adequate number 

of outreach staff. Therefore, the 

previously quoted language from 

§ 653.107(a)(1) more logically fits in 

§ 653.107(a)(4), where it provides clarity 

regarding what adequate means. The 

result of this change is that the first 

sentence of this section now requires 

that the SWA ensure that outreach staff 

fulfill the outreach responsibilities 

described in paragraph (b) of this 

section on an ongoing basis. The 

Department proposes to add that 

outreach staff must conduct outreach on 

an ongoing basis to clarify that outreach 

activities in all States must occur yearround. As described at 20 CFR 

653.107(a)(4), in significant MSFW 

States, there must be full-time, yearround outreach staff and in the 

remainder of the States there must be 

year-round part-time outreach staff. This 

change is proposed to clarify that all 

States must have some degree of 

outreach at all times. 

Second, the Department proposes to 

revise the sentence that provides SWA 

Administrators must ensure SMAs and 

outreach staff coordinate their outreach 

efforts with WIOA title I sec. 167 

grantees by replacing ‘‘their outreach 

efforts’’ with the word ‘‘activities.’’ This 

change is proposed to correct frequent 

misunderstandings by SWAs, where 

SWAs believe coordinating their 

outreach efforts means that other 

organizations such as National 

Farmworker Jobs Program (NFJP) 

grantees may conduct outreach on 

behalf of the SWA and that the NFJP 

grantees’ outreach is sufficient to satisfy 

the SWA’s outreach obligations. Using 

the word ‘‘activities’’ helps clarify that 

SWAs must coordinate their activities 

with NFJP grantees (i.e., work together 

to strengthen their respective services) 

but that NFJP grantee outreach is not a 

substitute for SWA outreach obligations. 

To further clarify this point, the 

Department proposes to add to 

§ 653.107(a)(1) a sentence explaining 

that WIOA title I sec. 167 grantees’ 

activities involving MSFWs does not 

substitute for SWA outreach 

responsibilities. This clarification is 

important because NFJP staff are not 

obligated to provide the same 

information or services to MSFWs as 

SWA outreach staff must provide, nor 

are they monitored by the SMA to 

ensure services are compliant with ES 

regulations. 

At § 653.107(a)(2)(i), the Department 

proposes a technical edit to change the 

period after ‘‘MSFWs’’ to a semicolon 

and adding the word ‘‘and’’ to clarify 

that as part of their outreach, SWAs 

must ensure outreach staff satisfy both 

paragraphs (i) and (ii), which follow. 

In § 653.107(a)(2)(ii), the Department 

proposes to revise the requirement that 

SWAs must ensure outreach staff 

conduct thorough outreach efforts with 

extensive follow-up activities in supply 

States by replacing ‘‘in supply States’’ 

with ‘‘identified at § 653.107(b)(5).’’ 

This change is proposed because SWAs 

must ensure outreach staff are 

conducting thorough outreach efforts 

with extensive follow-up activities in all 

States—not only in supply States. This 

proposed revision does not increase the 

outreach burden on non-supply States 

because all States must already comply 

with all applicable outreach provisions 

identified at § 653.107. 

The Department proposes several 

revisions to § 653.107(a)(3). First, the 

Department proposes to revise the 

language and structure of the paragraph. 

The Department proposes to replace 

‘‘For purposes of providing and 

assigning outreach staff to conduct 

outreach duties, and to facilitate the 

delivery of employment services 

tailored to the special needs of 

MSFWs. . .’’ with ‘‘When hiring or 

assigning outreach staff.’’ This change 

would operationalize the proposed State 

merit-staffing requirement for outreach 

workers. The existing regulatory text 

permits SWAs the flexibility to provide 

outreach staff in several ways, including 

by subcontracting staff. With this 

proposed change, the Department is 

making clear that the SWA is 

responsible for directly hiring outreach 

staff who must be State merit staff 

because the definition of outreach staff 

refers to ES staff, who must be State 

merit staff. 


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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, are from 

MSFW backgrounds, or have substantial 

work experience in farmworker 

activities. The proposed revision is also 

intended to clarify that SWAs must seek 

to hire for or assign to outreach staff 

positions, and put a strong emphasis on 

hiring or assigning, individuals who 

speak the language of a significant 

proportion of the State MSFW 

population and who either are from 

MSFW backgrounds or have substantial 

work experience in farmworker 

activities. Several revisions impact how 

a State staffs outreach responsibilities. 

Changes at 653.107(a) require outreach 

to be ongoing, changes at 653.107(a)(3) 

strengthen hiring requirements, and 

changes at 653.107(a)(4) clarify that fulltime outreach work means devoting 

100% of their time to outreach. 

Together, States will be unlikely to be 

able to fulfill these responsibilities 

unless they hire staff specifically for 

outreach. While States can assign 

outreach responsibilities to existing 

qualified staff, such staff in significant 

MSFW States must then devote 100% of 

their time to outreach, not merely add 

outreach to other responsibilities. For 

non-significant MSFW States, outreach 

staff must devote full time in peak 

season and part time in non-peak season 

to outreach. 

The Department proposes to maintain 

the language in § 653.107(a)(3)(i) that 

SWAs must seek qualified candidates 

who speak the language of a significant 

proportion of the State MSFW 

population. But to strengthen the 

existing requirement, the Department 

proposes to add that the SWA must not 

only seek but also put a strong emphasis 

on hiring qualified candidates. This 

language is proposed to increase the 

likelihood that SWAs will hire 

candidates with the criteria described in 

§ 653.107(a)(3)(i), instead of simply 

seeking candidates whom they never 

hire. To further increase the likelihood 

that SWAs hire candidates who meet 

the required criteria, the Department 

proposes to add a new paragraph at 

§ 653.107(a)(3)(ii) requiring the SWA to 

inform farmworker organizations and 

other organizations with expertise 

concerning MSFWs of outreach staff job 

openings and encourage them to refer 

qualified applicants to apply. These 

additions are proposed to expand the 

applicant pool for outreach staff 

positions to include individuals who 

have the knowledge, skills, and abilities 

to meet the unique needs of 

farmworkers. The proposed paragraph 

also makes requirements for hiring 

outreach staff consistent with the 

requirements for appointing an SMA 

under § 653.108(b). For the SMA 

position, the SWA is required to inform 

farmworker organizations and other 

organizations with expertise concerning 

MSFWs of the opening and encourage 

them to refer qualified applicants to 

apply. As discussed in this section, this 

requirement helps SWAs expand the 

applicant pool for SMAs to help the 

SWA choose from a larger selection of 

qualified applicants, and the same 

reasoning applies to outreach staff. 

The Department proposes to amend 

§ 653.107(a)(4) by adding the sentence 

that the Department proposes to remove 

from § 653.107(a)(1), which provides 

that each SWA must provide an 

adequate number of outreach staff to 

conduct MSFW outreach in their service 

areas. However, the Department 

proposes to replace ‘‘in their service 

areas’’ with ‘‘in each area of the State.’’ 

This change will clarify that SWAs must 

provide outreach in all areas of the State 

where there are farmworkers, not only 

in certain service areas. This change 

would make the expectation to cover the 

full State clear. The Department also 

proposes to replace ‘‘provide’’ with 

‘‘employ’’ and add to the end of the 

sentence language making clear that an 

adequate number of outreach staff are 

needed to contact a majority of MSFWs 

in all of the SWA’s service areas 

annually. These additions are proposed 

to clarify what it means to employ an 

‘‘adequate number of outreach staff,’’ all 

of whom must be State merit staff. 

Making this determination on an annual 

basis helps align the assessment of 

staffing levels with the reporting 

required in the SMA’s Annual 

Summary. 

The Department further proposes to 

revise the sentence requiring that in the 

20 States with the highest estimated 

year-round MSFW activity, as identified 

in guidance issued by the Secretary, 

there must be full-time, year-round 

outreach staff to conduct outreach 

duties. Specifically, the Department 

proposes to replace ‘‘in guidance issued 

by the Secretary’’ with ‘‘as identified by 

the Department.’’ This revision is 

necessary to conform to guidance issued 

by the Department. 

The Department also proposes to 

amend § 653.107(a)(4) to add a sentence 

clarifying what it means to have fulltime outreach staff. The proposed 

sentence explains that full-time means 

each individual outreach staff person 

must spend 100 percent of their time on 

the outreach responsibilities described 

at § 653.107(b). This requirement is 

important because having each outreach 

staff person engage in outreach on a fulltime basis gives that person more time 

to establish a positive working 

relationship with MSFWs and 

agricultural employers in their service 

area. This can be helpful for building 

trust and engaging in informal 

resolution of complaints and apparent 

violations. It is also necessary so that 

outreach staff are fully available to 

provide the level of ES and follow-up 

activities that these regulations describe. 

The Department proposes to keep the 

existing requirements that, in the 20 

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

the Department and defined as 

significant MSFW States at § 651.10, 

there must be full-time, year-round 

outreach staff to conduct outreach 

duties. In 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. This means that 

States that are not significant MSFW 

States may allow outreach staff to 

conduct other activities that promote 

farmworker safety, including housing 

inspections, when they are not in peak 

harvest season. If outreach staff in States 

that are not significant MSFW States 

have additional time available after 

fulfilling their required outreach 

responsibilities, those States may 

leverage outreach staff members, 

required to be State merit staff under 

this proposal, to help support other 

critical functions, such as UI. 

Finally, the Department proposes to 

further clarify outreach staffing 

requirements by adding a new sentence 

in § 653.107(a)(4) stating that 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 

§ 653.107(d). This language will help 

SWAs understand that the number of 

full-time or part-time outreach staff 

must be determined by information 

provided in the State’s AOP. These 

revisions will give the State a clear 

method to identify what staffing levels 

are appropriate. 

The Department also proposes to 

revise § 653.107(b) by adding that 

outreach staff responsibilities include 

the activities identified in 

§ 653.107(b)(1) through (11). This 

addition clarifies the specific activities 

included in outreach staff 

responsibilities. The proposed 

regulatory text also replaces a colon 

with a period, which helps the 


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construction of the sentence and its 

relationship to the following 

paragraphs. 

The Department proposes two 

revisions to § 653.107(b)(1). First, the 

Department proposes to replace 

‘‘Explaining’’ with ‘‘Outreach staff must 

explain’’ to align with the updated 

construction of the sentence whereby 

paragraph (b) is proposed to be a 

sentence ending in a period and not a 

colon, making the following paragraphs 

full sentences. Second, the Department 

proposes to remove the explicit 

requirement for the information that 

outreach staff must convey to be in a 

language readily understood by them, 

because proposed § 653.103(b) would 

already require this information to be in 

languages other than English for LEP 

individuals as provided under 29 CFR 

38.9. This proposed change conforms 

with other proposed changes to 

language access requirements 

throughout parts 651, 652, 653, and 658 

where the Department seeks to align 

these requirements with those identified 

at 29 CFR 38.9. 

The Department proposes to revise 

§ 653.107(b)(3) to replace ‘‘outreach 

workers’’ with ‘‘outreach staff’’ to align 

with the proposed definition of outreach 

staff at § 651.10. The Department 

proposes the same revision to paragraph 

(b)(4) and to remove the word ‘‘the’’ 

before ‘‘outreach staff’’ for clarity. These 

changes are necessary to align with the 

proposed State merit-staffing 

requirements for ES staff. Because 

§ 651.10 defines outreach staff as ES 

staff with responsibilities described at 

§ 653.107(b), the proposed State meritstaffing requirement applies to outreach 

staff. 

The Department proposes several 

revisions to § 653.107(b)(7). First, the 

Department proposes to replace the 

reference to outreach staff being trained 

in ‘‘local office’’ procedures with ‘‘onestop center’’ procedures to align with 

the ES office definition at proposed 

§ 651.10. Second, the Department 

proposes to require SWAs to provide 

outreach staff with training on sexual 

coercion, assault, and human 

trafficking, alongside the existing 

requirement to provide sexual 

harassment training. The current 

regulation gives SWAs the option of 

providing training on sexual coercion, 

assault, and human trafficking. The 

proposed regulation would require 

training in these areas due to an 

increased need to combat these issues in 

the field. These additional topics are of 

importance to the Department, and this 

proposal is driven by the increased 

frequency of complaints and apparent 

violations SWAs have processed and 

information from organizations the 

Department has partnered with 

regarding these issues. The focus 

remains for outreach staff to be able to 

identify and refer cases to the 

appropriate enforcement agencies. 

Third, the Department proposes to 

replace the requirement for outreach 

staff to be trained in the procedure for 

informal resolution of complaints with 

a requirement for them to be trained in 

the Complaint System procedures (at 

part 658, subpart E) and be aware of the 

local, State, regional, and national 

enforcement agencies that would be 

appropriate to receive referrals. This 

change is necessary so that outreach 

staff are trained in the full Complaint 

System procedures, which include 

informal resolution. 

The Department proposes to revise 

§ 653.107(b)(8) by changing the record 

retention requirement from 2 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. The 

Uniform Guidance applies to all grants 

funded by ETA. It is important to ensure 

record retention requirements are 

consistent across all ETA grantee 

activities, including for the Monitor 

Advocate System which is funded by 

the Wagner-Peyser Act grant. 

The Department proposes to make a 

technical edit to § 653.107(b)(11) by 

replacing the reference to significant 

MSFW ‘‘local offices’’ with ‘‘significant 

MSFW one-stop centers’’ to align with 

the defined term in § 651.10. The 

Department also proposes to add a 

requirement that the outreach activities 

must align with and be supported by 

information provided in the State’s AOP 

pursuant to § 653.107(d). 

The Department proposes to replace 

the requirement in § 653.107(d)(2)(ii) for 

SWAs in the AOP to provide an 

assessment of available outreach 

resources with a requirement that SWAs 

explain the materials, tools, and 

resources the State will use for outreach. 

The proposed revision clarifies the 

requirement to assist SWAs to better 

understand what information must be 

reported and that SWAs should provide 

more detailed and better explanations of 

how the SWA intends to use those 

resources. 

The Department proposes to amend 

§ 653.107(d)(2)(iii) to require SWAs to 

describe their activities to contact 

MSFWs who are not being reached by 

the normal intake activities conducted 

by the one-stop centers. The proposed 

regulation also would require the SWA 

to include the number of full-time and 

part-time outreach staff in the State and 

to demonstrate that there is sufficient 

outreach staff to contact a majority of 

MSFWs in all the State’s service areas 

annually. The Department is proposing 

these changes to strengthen the 

description in the AOP of how the SWA 

will contact MSFWs adequately, 

consistent with the proposed revision to 

§ 653.107(a)(4) for States to employ 

sufficient outreach staff to contact a 

majority of MSFWs in all the State’s 

service areas annually. It is also helpful 

for RMAs to understand staffing levels 

to assess whether the State can meet the 

SWAs outreach requirements. 

The Department proposes to clarify 

that § 653.107(d)(2)(iv) requires the AOP 

to describe activities planned for 

providing the full range of ES services 

to the agricultural community, instead 

of ‘‘employment and training services.’’ 

This change is necessary to explain 

which specific services the AOP must 

describe, which is specific to ES 

services and do not include all 

workforce development system 

activities. 

The Department proposes to replace 

the requirement at § 653.107(d)(2)(v) 

that the AOP must provide an assurance 

that the SWA is complying with the 

requirements under § 653.111 if the 

State has significant MSFW one-stop 

centers with a requirement that the AOP 

must include a description of how the 

SWA intends to provide ES staff in 

significant MSFW one-stop centers in 

accordance with § 653.111. This 

proposed change is intended to help the 

SMAs, RMAs, and the NMA assess 

whether SWAs will have the 

appropriate staffing structure to meet 

the unique needs of farmworkers. 

The Department proposes to amend 

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

must be submitted in accordance with 

§ 653.107(d)(1) instead of (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. 

The Department proposes two 

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

Department proposes 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 proposes 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. 


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11 Implementation of the Nondiscrimination and 

Equal Opportunity Provisions of the Workforce 

Innovation and Opportunity Act; Final Rule, 81 FR 

87130, 87176–87179 (Dec. 2, 2016). 12 Implementation of the Nondiscrimination and 

Equal Opportunity Provisions of the Workforce 

Innovation and Opportunity Act; Notice of 

Proposed Rulemaking, 81 FR 4494, 4516–4517 (Jan. 

26, 2016). 

Section 653.108 State Workforce 

Agency and State Monitor Advocate 

Responsibilities 

Section 653.108 governs what a SWA 

and SMA must do to monitor a State’s 

provision of ES services to MSFWs. As 

explained subsequently, the Department 

proposes several revisions to this 

section to strengthen the role of the 

SMA and to enhance the monitoring 

activities that SMAs perform. 

The Department proposes to revise 

§ 653.108(a) to explicitly prohibit the 

State Administrator or ES staff from 

retaliating against an SMA for 

performing the monitoring activities 

that are required by this section. 

Specifically, the Department proposes to 

add at the end of § 653.108(a) a 

requirement that 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. The 

addition of this sentence will emphasize 

the Department’s intolerance for 

retaliation against SMAs for conducting 

their duties and encourage and protect 

internal disclosures and discussions 

about noncompliance. 

The Department proposes to revise 

§ 653.108(b), which prescribes criteria 

that States must consider when 

appointing an SMA, 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). While 

the current regulations already require 

SWAs to ‘‘seek’’ qualified candidates 

who meet these criteria, the Department 

proposes to require that SWAs ‘‘put a 

strong emphasis on hiring’’ such 

candidates to increase the likelihood 

that SWAs hire SMAs who meet one or 

more of these criteria, and not simply 

seek such individuals. In the 

Department’s view, it is important for 

SMAs to meet one or more of these 

existing criteria, so that SMAs 

understand and have appropriate skills 

to assess whether the SWA is providing 

adequate services to MSFWs. 

The Department also proposes to 

remove the requirement in § 653.108(b) 

that the SMA be a SWA official because 

the proposed edits to § 651.10 remove 

SWA official as a defined term. The 

Department proposes to revise 

§ 653.108(c) to require that the SMA be 

an ES staff employee. As explained 

previously in this document, the 

Department is proposing to reinstate the 

longstanding State merit-staffing 

requirement that was in effect prior to 

the 2020 Final Rule. One of the ways in 

which the Department proposes to 

effectuate this proposal is to remove the 

definition of SWA official in § 651.10 

and to revise the definition of ES staff 

in § 651.10 to mean 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 who are funded, in 

whole or in part, by Wagner-Peyser Act 

funds. As relevant here, the Department 

proposes to remove the requirement in 

§ 653.108(b) for the SMA to be a SWA 

Official and to revise § 653.108(c) to 

require that the SMA be a senior level 

ES staff employee. While the specifics 

of this proposal are discussed in detail 

subsequently, the Department notes 

here that the term ES staff is intended 

to clarify that the proposed regulation 

would require the SMA to be not only 

a State employee, but a State merit-staff 

employee. This proposal, if finalized, 

will lead to more consistent delivery of 

services to ES customers. As a universal 

access system, it is vital that the ES be 

administered consistently across all 

States and that services are delivered 

effectively and equitably. Returning to 

the requirement that ES services be 

provided by State merit staff would help 

ensure that ES services are delivered by 

knowledgeable personnel in a manner 

consistent from State to State and allow 

for accountability that other staffing 

models cannot duplicate. 

The Department additionally 

proposes several revisions to 

§ 653.108(c) 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. With these 

proposed changes, the Department seeks 

to align the status of the SMA with that 

of the Equal Opportunity (E.O.) Officer 

because the SMA’s role is similar to the 

E.O. Officer’s role. Both are charged 

with ensuring compliance with 

regulations put in place to ensure 

individuals have meaningful access to 

services and equal employment 

opportunities. In 2016, the DOL Civil 

Rights Center (CRC) expanded on 

previous requirements specifying the 

authority and status that E.O. Officers 

must have to ensure they can most 

efficiently and effectively carry out the 

recipients’ nondiscrimination 

obligations. See generally, 29 CFR 38.28 

through 38.33.11 According to CRC’s 

NPRM,12 the changes were intended to 

address feedback from E.O. Officers that 

they lacked sufficient authority to carry 

out their responsibilities. Similarly, in 

returning to merit-staffing in this 

rulemaking, the Department proposes to 

more specifically describe the required 

status of the SMA. Prior to the 2020 

Final Rule, § 653.108(c) required the 

SMA to have direct, personal access, 

when necessary, to the State 

Administrator, and status and 

compensation comparable to other State 

positions assigned similar levels of 

tasks, complexity, and responsibility. By 

requiring the SMA to be a senior-level 

ES staff employee who reports directly 

to the State Administrator or their 

designee, this proposed rule would 

provide concrete ways to ensure that the 

SMA has status equivalent to what 

§ 653.108(c) required prior to the 2020 

Final Rule. This specification will also 

address feedback from many SMAs, 

who have reported that they lack 

sufficient authority to carry out their 

duties identified in the ES regulations. 

This change would allow SMAs to more 

efficiently and effectively carry out the 

SMA’s obligation to monitor whether 

the SWA is serving farmworkers in a 

way that is qualitatively equivalent and 

quantitatively proportionate to all other 

job seekers. 

To achieve these results, the 

Department proposes to strengthen the 

status of the SMA in several ways. First, 

the Department proposes at § 653.108(c) 

to create new paragraphs (c)(1) through 

(3). In paragraph (c)(1), the Department 

proposes to require that the SMA be a 

senior-level ES staff employee. As 

previously explained, enhancing the 

status of the SMA by making the SMA 

a senior-level official will allow the 

SMA to have the authority necessary to 

more effectively carry out their duties. 

Second, proposed paragraph (c)(2) 

requires 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. While current 

regulations require the SMA to have 

direct access to the State Administrator, 

in practice this requirement has been 

insufficient for the SMA to have the 

authority necessary to carry out their 

duties and to communicate with the 

State Administrator, when the SMA 

finds it necessary. Reporting directly to 

the State Administrator will provide 

more direct access to and interaction 

with State leadership for the SMAs to 


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carry out their duties. The Department 

proposes to make clear that if the State 

Administrator chooses to have the SMA 

report to a designee with the authority 

of the State Administrator, that person 

cannot be the individual who has direct 

program oversight of the ES. Though the 

State Administrator has overall 

responsibility for operation and 

compliance of the ES, the State 

Administrator is removed from the daily 

management of program operations. The 

proposed change would help the SMA 

avoid challenges that may exist if they 

were to report to an individual who has 

direct ES program oversight, for 

example the ES director, because in that 

case the SMA would be responsible to 

monitor compliance with decisions 

their direct supervisor made or was 

otherwise directly responsible for. 

Third, proposed paragraph (c)(3) would 

require that the SMA have the 

knowledge, skills, and abilities 

necessary to fulfill the responsibilities 

as described in this subpart. This 

proposed revision is intended to clarify 

the qualifications that SMAs must have 

to effectively perform all required SMA 

functions. 

The Department does not anticipate 

that these revisions to § 653.108(c) will 

cause undue burden on the SWA. The 

State Administrator may restructure the 

current SMA position to meet the 

requirements of part 653. Moreover, the 

requirement that State Administrators 

appoint an SMA is longstanding, and 

several States already staff their SMA 

position as described in the proposed 

revisions (i.e., where the SMA is a 

senior-level ES staff member who 

reports directly to the State 

Administrator or their designee). The 

proposed revisions will ensure all 

SWAs meet these same standards. The 

Department recognizes it may take 

States with SMA positions that do not 

already meet these standards some time 

to implement the standards. 

Accordingly, the Department seeks 

comments on whether it should provide 

a transition period to allow States 

additional time to come into compliance 

with the revised standards, and if so, the 

appropriate duration of such a period. 

The Department additionally 

proposes to enhance the authority of the 

SMA through several revisions to 

§ 653.108(d) and the addition of 

paragraph (e). Specifically, the 

Department proposes 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. While requiring 

that the SMA have sufficient staff 

necessary to fulfill effectively all the 

duties set forth in the subpart is not a 

new requirement, the Department seeks 

to clarify that the SMA must also have 

sufficient authority, resources, and 

access to top management to carry out 

their duties. The Department also 

proposes to specify that the number of 

ES staff positions required by this 

section must be assigned to the SMA 

The Department proposes to clarify that 

these positions specifically relate to ES 

staff assigned to the SMA to help the 

SMA carry out the duties set forth in 

§ 653.108, and that they may not be 

assigned conflicting roles to perform 

any of outreach responsibilities, ARS 

processing, or complaint processing. 

The Department proposes a new 

paragraph (e) to specify 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 proposed 

paragraph would maintain the 

requirement currently in paragraph (d) 

for any State proposing less than fulltime staffing to demonstrate that all 

SMA functions can be effectively 

performed with part-time staffing, but 

would require the State to make this 

demonstration to the RMA in addition 

to the RA. This proposed revision 

clarifies that the RA must approve the 

exception to the requirement for a fulltime SMA and that the SWA must 

demonstrate that part-time staffing will 

not affect the needs of and service 

delivery to MSFWs in the State and that 

the SMA will be able to effectively 

fulfill their duties while working on a 

part-time basis. The Department 

anticipates that a SWA would provide 

both qualitative and quantitative data 

and information in making its request, 

and it plans to provide States guidance 

on the factors that the RA and RMA will 

consider when States request part-time 

staffing for the SMA position. 

The Department proposes to revise 

§ 653.108(e) (now proposed § 653.108(f)) 

by removing the requirement for the 

SMA to attend, within the first 3 months 

of their tenure, a training session 

conducted by the RMA. Instead, the 

Department proposes to require all 

SMAs and their staff to attend training 

session(s) offered by the RMAs, the 

NMA, and their team, and those 

necessary to maintain competency and 

enhance SMA’s understanding of the 

unique needs of farmworkers. The 

Department proposes that such trainings 

must include those identified by the 

applicable RMA and may include those 

offered by the Occupational Safety and 

Health Administration (OSHA), WHD, 

the Equal Employment Opportunity 

Commission (EEOC), the Immigrant and 

Employee Rights Section of the 

Department of Justice’s Civil Rights 

Division, CRC, and other organizations 

offering farmworker-related information. 

These revisions are proposed to clarify 

the SMA’s responsibility to attend 

necessary training and keep apprised of 

issues affecting MSFWs to effectively 

carry out their duties as the SMA. 

Historically, there have been numerous 

cases where SMAs did not or could not 

attend trainings offered by the RMAs or 

NMA. This provision seeks to clarify the 

SMA’s responsibility to attend the 

trainings and increase SMA training 

opportunities and attendance. 

The Department proposes to 

redesignate § 653.108(f) and (g) due to 

updated sequencing. 

The Department proposes to revise 

§ 653.108(g)(1) (now proposed to be 

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

elements of the ongoing review that the 

SMA must conduct under this 

paragraph. In particular, new proposed 

subordinate 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 center 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 requirements in 

proposed paragraphs (h)(1)(i) and (iii) 

currently exist at § 653.108(g)(1) and the 

minor proposed revisions to these 

requirements are intended only to 

clarify the existing requirements. 

Specifically, in paragraph (h)(1)(i), the 

Department proposes to add a 

requirement that ongoing reviews 

include monitoring compliance with 

§ 653.111 to highlight the importance of 

significant MSFW one-stop centers in 

staffing appropriately to meet the 

unique needs of farmworkers. The 

Department proposes to add 

§ 653.108(h)(1)(ii) to clarify 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. 

Finally, the Department proposes to 

clarify in paragraph (h)(1)(iii) that SMAs 

must review informal resolution of 

complaints and apparent violations to 

ensure that resolution of matters is 

occurring consistent with the 

requirements in part 658, subpart E. 


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The Department proposes to 

redesignate § 653.108(g)(1) as 

§ 653.108(h)(2) and revise the regulatory 

text by replacing ‘‘local offices’’ with 

‘‘ES offices’’ to align with the defined 

term for ES office in § 651.10. The 

Department further proposes to revise 

the paragraph by clarifying that the 

SMA, if warranted, can notify the SWA 

of the corrective action(s) necessary to 

address the deficiencies described 

earlier in the paragraph, and that the 

corrective action plan must comply with 

the requirements at proposed paragraph 

(h)(3)(v). This revision is intended to 

clarify that the corrective action plan is 

the method by which a SWA or ES 

office achieves compliance with the 

SMA’s compliance findings. The 

existing regulatory text provides that the 

SMA may request a corrective action 

plan, which does not appear to require 

the SWA or ES office to take corrective 

action. The proposed revision clarifies 

that SMAs assure compliance by 

documenting noncompliance, 

describing the corrective actions 

necessary for the SWA to come into 

compliance, reviewing the corrective 

action plan that the SWA or ES office 

develops to implement the identified 

corrective action(s), documenting 

compliance or lack of compliance with 

the corrective action plan, and reporting 

to ETA any noncompliance. Once 

noncompliance is identified, SWAs 

have a responsibility to address it, as 

described in part 653, subpart D. 

The Department proposes to 

redesignate § 653.108(g)(2) to be 

§ 653.108(h)(3) and to clarify that SMAs 

must conduct onsite reviews of one-stop 

centers regardless of whether or not the 

one-stop center is designated as a 

significant MSFW one-stop center. This 

is an important clarification because 

SMAs often mistakenly think they only 

need to review significant MSFW onestop centers. The Department also 

proposes a clarifying edit to this 

paragraph by adding that the reviews 

must follow procedures set forth in 

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

section. This is proposed to help the 

structure of paragraph (h)(3) and its 

subordinate paragraphs. 

Correspondingly, current paragraph 

(g)(2)(ii), which is proposed to be new 

paragraph (h)(3)(ii), contains proposed 

clarifying edits, which state ‘‘The SMA 

must ensure. . .’’ instead of the existing 

‘‘Ensure. . . .’’ Finally, the Department 

proposes to specify that the complaint 

logs that the SMA must review pursuant 

to § 653.108(g)(2)(i)(D) (proposed 

§ 653.108(h)(3)(i)(D)) are the complaint 

logs required by the regulations under 

part 658 of this chapter. 

At § 653.108(g)(2)(iv), which is 

proposed § 653.108(h)(3)(iv), the 

Department proposes a few revisions. 

First, the Department proposes to add a 

comma after ‘‘After each review,’’ for 

technical clarity and readability. Next, 

the Department proposes to specify that 

the SMA’s conclusions include findings 

and areas of concern by adding 

‘‘including findings and areas of 

concern,’’ after ‘‘The conclusions.’’ The 

Department proposes this revision to 

make the SMA’s monitoring align with 

the ETA monitoring format, which 

§ 653.108(g)(3)(ii) requires the SMA use 

as a guideline. The Department also 

proposes to add a requirement that the 

SMA’s report be sent directly to the 

State Administrator. 

The Department also proposes to 

revise current § 653.108(g)(2)(v) 

(proposed 653.108(h)(3)(v)) in several 

ways. First, the Department proposes to 

add that the SMA’s report must include 

the corrective action(s) required. 

Second, the Department proposes to 

specify that, to resolve the findings, the 

ES Office Manager or other appropriate 

ES staff must develop and propose a 

written corrective action plan. These 

changes conform the SMA’s monitoring 

process with the ETA monitoring 

format, which requires the monitor to 

identify the corrective actions required. 

The Department proposes to add ‘‘the’’ 

before ‘‘actions,’’ as a technical edit. The 

Department also proposes to revise the 

third sentence to clarify that the 

corrective action plan should be 

designed to bring the ES office into 

compliance within 30 days, and to 

specify that where a plan is not 

designed to bring the ES office into 

compliance within 30 days, the length 

of and reasons for the expended period 

must be specifically stated and the plan 

must specify the major interim steps 

that the ES office will take to correct the 

compliance steps identified by the 

SMA. In other words, only if there is a 

documented justification for compliance 

to take longer than 30 days can such 

efforts be ‘‘steps’’ rather than full 

compliance. This revision is designed to 

help ensure SWAs resolve identified 

compliance issues. 

At current § 653.108(g)(2)(vii), which 

is proposed to be paragraph (h)(3)(vii), 

the Department proposes to allow the 

SMA to delegate reviews to their staff 

instead of ‘‘a SWA official’’ because 

SMA staff may conduct such reviews 

under the authority of the SMA. This 

change will clarify that other persons 

who conduct reviews on behalf of the 

SMA must be the SMA’s staff, who 

should share the same objectives of the 

SMA, helping ensure that the role of the 

monitor advocate is effectively carried 

out. The Department also proposes that 

the SMA may delegate the reviews 

whenever the SMA finds such 

delegation necessary, as opposed to 

when the State Administrator finds such 

delegation necessary. This proposed 

change aligns with the proposal for the 

SMA to be a senior-level official with 

greater authority within the SWA. The 

SMA, therefore, should be empowered 

to make the determination about 

whether such delegation is necessary. 

The Department also proposes to 

remove the words ‘‘and when’’ from the 

phrase ‘‘if and when’’ in this paragraph. 

As such, the proposed paragraph now 

states that the SMA may delegate the 

review described in § 653.108(h)(1) to 

the SMA’s staff, if the SMA finds such 

delegation necessary, and in such event, 

the SMA is responsible for and must 

approve the written report of the review. 

The Department proposes to revise 

§ 653.108(g)(3) (proposed paragraph 

(h)(4)) to ensure all significant MSFW 

one-stop centers not reviewed onsite by 

Federal staff are reviewed at least once 

per year by the SMA or their staff, 

instead of ‘‘a SWA official.’’ This change 

is proposed because it is important for 

these reviews to be conducted by staff 

who share the SMA’s objectives. As 

previously noted, the SMA’s staff are 

responsible to assist the SMA in 

carrying out the SMA’s duties described 

at § 653.108. 

Paragraph (g)(5), proposed 

§ 653.108(h)(6), currently requires SMAs 

to review outreach workers’ daily logs 

and other reports including those 

showing or reflecting the workers’ 

activities ‘‘on a random basis.’’ The 

Department proposes to replace 

‘‘random’’ with ‘‘regular.’’ SMAs were 

confused, at times, about what 

‘‘random’’ means and, therefore, how 

frequently they should be reviewing 

outreach staff’s logs. Replacing 

‘‘random’’ with ‘‘regular’’ is intended to 

help clarify the SMA’s responsibility 

that these reviews occur on a regular 

basis. The frequency of these reviews 

may vary based on how many outreach 

staff each SWA has; however, there 

should be some standard of frequency in 

each SWA to ensure regular review 

occurs. For example, in SWAs with one 

or two outreach staff, it may be possible 

for the SMA to review outreach logs 

every month, but in SWAs with many 

outreach staff, it may be more 

appropriate to review outreach logs 

quarterly. The Department also proposes 

to replace ‘‘outreach workers’’ with 

‘‘outreach staff’’ throughout this 

paragraph to use the defined term at 

§ 651.10. 

The Department proposes to revise 

§ 653.108(g)(6), proposed paragraph 


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(h)(7), which currently requires the 

SMA to write and submit Annual 

Summaries to the State Administrator 

with a copy to the RA by adding that a 

copy of the summary must also be sent 

to the NMA. This aligns the requirement 

with paragraph (s) (proposed paragraph 

(u)) whereby the Annual Summary must 

also be sent to the NMA. The 

Department also proposes to remove the 

last part of the sentence, ‘‘as described 

in paragraph (s) of this section,’’ as it is 

no longer necessary with the addition of 

the NMA to this provision. 

At § 653.108(h), proposed paragraph 

(i), the Department proposes 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.’’ This is proposed to 

be added to ensure the SMA participates 

in a way that is helpful and productive 

for the RMA or NMA. In the past, there 

have been cases where the SMA either 

was not permitted or chose not to 

participate in reviews with the Federal 

staff. This proposed addition helps 

ensure the SMA will participate when 

requested. 

The Department proposes to 

redesignate § 653.108(i) as § 653.108(j). 

The Department proposes to remove the 

provision permitting the State 

Administrator to assign the SMA the 

responsibility as the Complaint System 

Representative, and the requirement 

that the SMA participate in the 

Complaint System set forth in part 658, 

subpart E. As explained later in the 

section of the preamble addressing part 

658, subpart E, the Department is 

proposing to prohibit SWAs from 

assigning SMAs responsibility for 

processing complaints. The Department 

is proposing to remove SMAs from 

Complaint System processing because 

this section tasks SMAs with monitoring 

the Complaint System, and the 

Department anticipates that SMAs will 

be more objective in monitoring the 

Complaint System if they are not tasked 

with monitoring work that they 

themselves perform. This change would 

result in greater safeguards for MSFWs 

within the Complaint System. The 

Department proposes to make 

corresponding edits to part 658, subpart 

E. 

The Department proposes to 

redesignate § 653.108(j) and (k), as a 

technical edit. 

The Department proposes a new 

provision at proposed § 653.108(m). 

This provision is proposed to state how 

the SMA must establish an ongoing 

liaison with the State-level E.O. Officer. 

The Department proposes this addition 

to enhance equity and inclusion for 

farmworkers. When SMAs work closely 

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

SMA will have a better sense of steps 

the State is taking to meet its equity 

requirements pursuant to WIOA sec. 

188, and how the SMA can better ensure 

services are provided equitably for 

MSFWs. The SMA can also provide 

information to the State-level E.O. 

Officer on patterns in service provision. 

The Department proposes to 

redesignate § 653.108(l) as § 653.108(n), 

and to make a conforming revision to 

the cross reference in this paragraph so 

that the organizations with which the 

SMA must meet are updated to reflect 

the organizations described in proposed 

paragraph (l) and the State-level E.O. 

Officer referred to in proposed 

paragraph (m). This will mean that 

§ 653.108(n) would refer to the 

paragraphs requiring the SMA to 

establish an ongoing liaison with NFJP 

grantees, other organizations serving 

farmworkers, employers, and employer 

organizations in the State, and the Statelevel E.O. Officer. The Department also 

proposes to add a requirement that 

SMAs must communicate freely with 

these individuals and organizations to 

enable the SMA to communicate 

efficiently, so that important 

information is not delayed due to the 

SMA needing to get approval to speak 

with these individuals and groups. This 

proposed change also conforms with the 

proposed revisions to the SMA’s 

position as a senior-level staff member, 

who should have the discretion to 

communicate, as they find appropriate. 

In addition, the Department proposes to 

remove the requirement that the SMA 

receive complaints and assist in 

referrals of alleged violations to 

enforcement agencies to conform with 

the proposal to remove the SMA from 

Complaint System processing, as 

explained previously. 

The Department proposes to 

redesignate § 653.108(m) as 653.108(o), 

as a technical edit. The Department also 

proposes to revise this paragraph to 

clarify that when the SMA conducts 

field visits, they 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 explaining and 

providing direct employment services 

and access to other employment-related 

programs. The purpose of the SMA’s 

field visits is distinct from the direct ES 

services that outreach staff provide to 

MSFWs in the field, because the SMA 

is tasked with assessing how the ES is 

functioning and whether the SWA can 

make improvements, as opposed to the 

direct provision of ES services. This 

proposed revision helps clarify that 

SMA field visits are for a different 

purpose than outreach staff field visits. 

The Department proposes to 

redesignate § 653.108(n) through (p) as 

§ 653.108(o) through (q), as a technical 

edit. 

The Department proposes to 

redesignate § 653.108(q) as § 653.108(s), 

as a technical edit. The Department also 

proposes a technical edit to remove the 

reference to SWA staff and keep only 

‘‘ES staff’’ to align with the proposed 

definition for ES staff at § 651.10. 

Because SWA staff are included in the 

proposed definition of ES staff, this will 

not change the substance of the 

paragraph. The Department further 

proposes to simplify the wording of the 

paragraph by replacing the phrase 

‘‘Subsequent to’’ with the word ‘‘After.’’ 

The Department proposes to 

redesignate § 653.108(r) and (s) as 

§ 653.108(t) and (u), respectively, as a 

technical edit. 

The Department proposes to 

redesignate § 653.108(s) as § 653.108(u). 

Proposed paragraph (u) requires 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. It includes subordinate 

paragraphs (1) through (11), which 

identify the various required 

components of the Annual Summary. 

The Department proposes to revise 

§ 653.108(s)(2), proposed 

§ 653.108(u)(2), to conform with 

proposed edits at § 653.108(c). 

Specifically, § 653.108(s)(2) currently 

requires an assurance that the SMA has 

direct, personal access, whenever they 

find it necessary, to the State 

Administrator. Proposed paragraph 

(u)(2) would require 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 

§ 653.108(c). 

The Department proposes to amend 

§ 653.108(s)(3)(i) and (ii), proposed 20 

CFR 653.108(u)(3)(i) and (ii), to revise 

the assurance requested in the SMA’s 

Annual Summary regarding SMA 

staffing levels. Currently, the Annual 

Summary requires an assurance that the 

SMA devotes all of their time to Monitor 

Advocate functions, or, if the SMA 

conducts their functions on a part-time 

basis, an explanation of how the SMA 

functions are effectively performed with 

part-time staffing. This paragraph is 

proposed to be revised in several ways. 

First, proposed paragraph (u)(3) would 

begin with a requirement to provide an 

evaluation of SMA staffing levels, and it 

would be followed by § 653.108(u)(3)(i) 

and (ii), which would outline the 


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23716 Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules 

contents of this evaluation. Specifically, 

paragraph (u)(3)(i) would require the 

SMA to assure that they devote all their 

time to Monitor Advocate functions, or 

if the SMA has approval under 

§ 653.108(e) to conduct their functions 

on a part-time basis, an assessment of 

whether they can perform all their 

functions effectively on a part-time 

basis. Paragraph (u)(3)(ii) would 

additionally require the SMA to assess 

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. This information will 

help the RMA and NMA better 

understand whether the SMA’s status as 

full- or part-time is sufficient for them 

to carry out their duties, and whether 

the SMA requires additional staff to 

perform all the functions required by 

this section. The previous requirement 

for an assurance did not provide the 

depth, context, or explanation necessary 

for the State Administrator or the 

Department to assess whether the SMA 

has adequate staffing. 

The Department proposes to revise 

§ 653.108(s)(4) (iii), proposed 

§ 653.108(u)(4)(iii), to clarify that the 

summary of any technical assistance the 

SMA provided must include any 

technical assistance provided to 

outreach staff, in addition to technical 

assistance provided to the SWA and ES 

offices. While outreach staff are 

considered part of the SWA, the 

Department proposes to clarify that the 

summary must specifically identify the 

technical assistance that the SMA 

provided to outreach staff, so that the 

State Administrator and the Department 

may better assess whether outreach staff 

are obtaining the knowledge and 

resources necessary to fulfill their 

duties. 

The Department proposes to revise 

§ 653.108(s)(5), proposed 

§ 653.108(u)(5), to specify 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. Through this analysis, the 

Department would like to understand 

whether the SMA believes 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 Department proposes to revise 

§ 653.108(s)(7), proposed 

§ 653.108(u)(7), by adding that in 

addition to providing a summary of how 

the SMA is working with WIOA sec. 167 

NFJP grantees, the SMA must provide a 

summary of how they are working with 

the State-level E.O. Officer. This 

revision aligns with the proposed 

requirement at proposed § 653.108(m) 

for the SMA to establish an ongoing 

liaison with the State-level E.O. Officer. 

The inclusion of this information in the 

Annual Summary will allow State 

Administrators, RMAs, and the NMA to 

review what the SMA is doing to fulfill 

the new liaison requirement (e.g., how 

frequently are they meeting with the 

State-level E.O. Officer, the type of 

information that is shared, any best 

practices or lessons learned). 

The Department proposes to revise 

§ 653.108(s)(10), proposed 

§ 653.108(u)(10), which currently 

requires the SMA to provide a summary 

of activities related to the AOP and an 

explanation of how those activities 

helped the State reach the goals and 

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 goals set forth 

in the AOP, and a description of the 

goals which were not achieved and the 

steps the SWA will take to address those 

deficiencies. The Department proposes 

to replace the requirement to explain 

‘‘how’’ the activities helped the State 

reach the goals and objectives described 

in the AOP with a requirement to 

explain ‘‘whether’’ the activities helped 

the State reach the objectives described 

in the AOP. This revision better reflects 

the information that the Department 

seeks (i.e., whether these activities 

helped the State meet its objectives). 

The Department also proposes to 

remove ‘‘goals’’ from the first sentence 

and to replace ‘‘goals’’ with ‘‘objectives’’ 

in the second sentence, because the 

Department does not ask States to 

identify specific goals in the AOP. 

Rather, the SWA provides objectives in 

its AOP, and the SMA’s Annual 

Summary should explain whether the 

activities that the SWA performed that 

year are meeting the identified 

objectives. 

The Department proposes two 

clarifying edits to § 653.108(s)(11), 

proposed § 653.108(u)(11). First, the 

Department proposes to replace 

significant MSFW ‘‘ES offices’’ with 

significant MSFW ‘‘one-stop centers’’ to 

align with the defined term at § 651.10. 

Second, the Department proposes to 

revise the requirement for the SMA to 

summarize the State’s efforts to provide 

ES staff in accordance with § 653.111, to 

require the SMA to summarize the 

State’s efforts to comply with § 653.111. 

The Department anticipates that this 

change will put greater emphasis on 

compliance with the requirements of 

§ 653.111. 

Section 653.109 Data Collection and 

Performance Accountability Measures 

Section 653.109 specifies data 

collection and performance 

accountability measures specific to 

MSFWs. The Department proposes to 

make several revisions to this section. 

First, the Department proposes to add 

a new data collection requirement in 

paragraph (b) of this section. 

Specifically, the Department proposes to 

add § 653.109(b)(10), which would 

require SWAs to collect the number of 

reportable individuals and participants 

who are MSFWs. The Department 

anticipates that access to this 

information will help the SWAs and the 

Department to better understand how 

many MSFWs are engaging with the ES, 

either as reportable individuals or 

participants, and to identify potential 

issues surrounding MSFW access to ES 

services. Specifically, Monitor 

Advocates will be able to compare the 

number of MSFW reportable individuals 

and the number of MSFW participants 

and use this data to identify potential 

areas where MSFWs are not being 

offered participant-level services. The 

collection of this data is consistent with 

the Monitor Advocate System’s purpose 

to monitor whether MSFWs have 

meaningful access to services in a way 

that is appropriate to their particular 

needs. SWAs commonly report few or 

no MSFW ES participants, which 

creates the concern that MSFWs do not 

have access to ES services. This piece of 

information will enable Monitor 

Advocates to identify cases where there 

may be larger numbers of MSFW 

reportable individuals, but few or no 

MSFW participants. Without this 

information, Monitor Advocates and the 

Department lack data necessary to 

identify whether that problem exists, 

and cannot work to correct the problem, 

if it is present. 

Second, the Department proposes to 

redesignate § 653.109(b)(10) as 

§ 653.109(b)(11), as a technical edit to 

account for the insertion of proposed 

§ 653.109(b)(10). 

Third, the Department proposes 

several revisions to § 653.109(h), which 

sets forth the minimum levels of service 

that significant MSFW States must meet. 

First, the Department proposes to 

replace the requirement that a 

significant MSFW State measure the 

number of outreach contacts per ‘‘week’’ 

with the number of outreach contacts 

per ‘‘quarter’’ to align with the SWA’s 

quarterly data submissions to the 

Department. SMAs have provided 


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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. Second, the Department 

proposes to clarify that it will not 

update minimum service level 

indicators on an annual basis, by 

removing ‘‘for each year’’ from the last 

sentence in § 653.109(h). The 

Department’s practice has been that 

minimum service level indicators have 

not been updated each year because the 

Department has not identified such a 

need. This revision would align the 

regulation with what is happening in 

practice. 

Section 653.110 Disclosure of Data 

The Department proposes to revise 

§ 653.110(b) by removing the word 

‘‘the’’ before ‘‘ETA,’’ as a technical edit. 

Section 653.111 State Workforce 

Agency Staffing Requirements for 

Significant MSFW One-Stop Centers 

The Department proposes several 

revisions to § 653.111, which outlines 

SWA staffing requirements for 

significant MSFW one-stop centers. 

First, the Department proposes to revise 

the heading of this section to clarify that 

the staffing requirements in this section 

apply only to significant MSFW onestop centers. 

Second, the Department proposes 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, and 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 proposes this change to 

specify that SWAs must recruit 

qualified candidates who meet the 

criteria for outreach workers in 

§ 653.107(a)(3). SWAs have some 

discretion to create a plan to meet the 

standard, but the ultimate requirement 

is for SWAs to recruit qualified 

candidates who meet these criteria. 

Third, for purposes of consistency, 

the Department proposes a technical 

edit to replace ‘‘special needs of 

MSFWs’’ with ‘‘unique needs of 

MSFWs,’’ to conform to the terminology 

that the Department uses elsewhere in 

the ES regulations. 

2. Subpart F—Agricultural Recruitment 

System for U.S. Workers (ARS) 

Subpart F sets forth the regulations 

governing the ARS. 

Section 653.501 Requirements for 

Processing Clearance Orders 

Section 653.501 describes the 

requirements that ES staff must follow 

when processing clearance orders for 

the ARS. As explained subsequently, 

the Department proposes to make 

several substantive and technical 

revisions to this section. 

The Department proposes to make a 

minor clarifying edit to § 653.501(a) by 

replacing the terms ‘‘ES office’’ or 

‘‘SWA official’’ with ‘‘ES staff’’ to 

conform with the proposed revision to 

the definition of ES staff at § 651.10. 

The Department proposes to add a 

fourth paragraph to § 653.501(b), at 

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

staff to consult the Department’s Office 

of Foreign Labor Certification (OFLC) 

and Wage and Hour Division (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. The 

Department’s mission is to promote the 

welfare of workers. This addition is 

intended to further that mission by 

ensuring that ES offices do not place 

U.S. workers with employers who are 

presently barred from employing 

immigrant and nonimmigrant workers 

via the employment-based visa 

programs. This requirement protects 

workers who may be using the ARS by 

ensuring that the ARS is not used to 

place a worker with an employer that 

has failed to comply with its 

obligation(s) as an employer of foreign 

workers. ETA’s regulations at 20 CFR 

655.73, 655.182, 655.473, 656.31(f), and 

the Wage and Hour Division’s 

regulations at 29 CFR 503.24 describe 

the violations that may result in an 

employer’s debarment from receiving 

future labor certifications for a specified 

time period. The potential reasons for 

debarment include serious violations 

that could affect worker safety, for 

example ‘‘[a] single heinous act showing 

such flagrant disregard for the law’’ that 

future compliance with program 

requirements cannot reasonably be 

expected (§ 655.182(d)(1)(x)). Such 

reasons also include an employer’s 

substantial failure to comply with 

regulatory requirements, including an 

employer’s failure to pay or provide the 

required wages or working conditions, 

an employer’s failure to comply with its 

obligations to recruit U.S. workers, or an 

employer’s failure to cooperate with 

required audits or investigations. 

Additionally, an employer’s failure to 

pay a necessary certification fee in a 

timely manner may result in debarment. 

In the Department’s view, whether the 

reason an employer is debarred from an 

OFLC program (or programs) is directly 

related to worker safety, failure to 

provide required wages or working 

conditions, failure to comply with 

recruitment requirements or participate 

in required investigations or audits, or 

failure to pay required fees, the 

employer subject to debarment should 

be excluded from participation in the 

ARS. The Department does not want to 

facilitate placement of workers with 

employers whose actions have risen to 

a level that warrants debarment. 

The Department proposes 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. 

In addition, the Department proposes 

to make several technical and 

conforming edits in § 653.501(d). First, 

the Department proposes to revise 

§ 653.501(d)(1) by clarifying that the 

provision refers to the ‘‘order-holding 

ES office,’’ instead of ‘‘order-holding 

office,’’ as it is currently written. This 

proposed change aligns with § 651.10 by 

using the defined term, ES office. 

Second, the Department proposes to 

revise § 653.501(d)(3) by referring to 

‘‘this paragraph’’ instead of ‘‘paragraph 

(d)(3) of this section’’ for clarity. 

Third, the Department proposes to 

revise § 653.501(d)(6) to remove the 

explicit instruction for ES staff to assist 

all farmworkers ‘‘upon request in their 

native language.’’ This revision is 

intended to align with the broader 

proposed revisions regarding language 

access in this NPRM. Because the 

Department proposes in this NPRM to 

clarify that SWAs must already comply 

with the language access and assistance 

requirements at 29 CFR 38.9, the 

language access requirement here is 

redundant, unnecessary, and potentially 

confusing, because it may appear to set 

a different standard. 

Fourth, the Department proposes to 

revise § 653.501(d)(10) to remove the 

sentence requiring checklists under this 

paragraph to be in the workers’ native 

language because, as previously 

mentioned, language access 

requirements are already provided at 29 

CFR 38.9 and retaining this language 


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would be redundant and unnecessary. 

The Department also proposes to 

remove the requirement that SWAs 

must use a standard format provided by 

the Department (such as Form WH516 

or a successor form) to provide workers 

referred to clearance orders a checklist 

summarizing wages, working 

conditions, and other material 

specifications in the clearance order. 

Removing this requirement would 

provide SWAs with greater flexibility to 

develop and use their own forms that 

meet their needs. Under the proposed 

revision, SWAs may still use standard 

forms, including the WH516, but they 

would not be required to use a standard 

form. Regardless, the checklist that the 

SWA provides workers must include the 

material terms and conditions of 

employment that are required to be 

included in clearance orders pursuant to 

§ 653.501(c)(1)(iv). 

Finally, the Department proposes to 

revise § 653.501(d)(11) to replace the 

reference to the Department’s ‘‘ARS 

Handbook’’ with a reference to 

‘‘Departmental guidance.’’ As proposed, 

§ 653.501(d)(11) would require the 

applicant-holding office to give each 

referred worker a copy of the list of 

worker’s rights described in 

Departmental guidance. This revision is 

intended to reflect the fact that this list 

of worker’s rights may be available in 

different documents and formats in the 

future. 

Section 653.503 Field Checks 

The Department proposes to make 

two conforming and clarifying edits to 

the regulations governing field checks in 

§ 653.503. First, the Department 

proposes to revise § 653.503(a) to add 

‘‘transportation’’ to the list of conditions 

that SWAs must assess and document 

when performing a field check. This 

change would increase health and safety 

of MSFWs by adding an additional 

safeguard against dangerous 

transportation tied to their employment. 

Second, the Department also proposes 

to remove that the field checks are 

‘‘random.’’ The proposed revision 

would 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, thereby 

improving MSFW worker protection. In 

addition, if a SWA makes placements on 

9 or fewer clearance orders, the SWA 

must conduct field checks on 100 

percent of those clearance orders. See 

§ 653.503(b). Therefore, in those cases, 

field checks could not be conducted on 

a random basis. 

E. Part 658—Administrative Provisions 

Governing the Wagner-Peyser Act 

Employment Service 

This part sets forth the regulations 

governing the Complaint System for the 

Wagner-Peyser Act Employment Service 

(ES) at the State and Federal levels. 

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 ES 

regulations under 20 CFR parts 651, 

652, 653, and 654. The Complaint 

System also accepts, refers, and, under 

certain circumstances, tracks complaints 

involving employment-related laws as 

defined in § 651.10. While the 

Complaint system is available to 

MSFWs and non-MSFWs, the 

Complaint System includes additional 

shorter processing timelines and 

additional follow-up on MSFW-related 

complaints, which are designed to 

provide increased protection for 

MSFWs. The Department proposes to 

revise several regulations within this 

part to conform with proposed revisions 

to definitions listed at § 651.10, remove 

redundancies and make other nonsubstantive technical edits, clarify or 

modify certain requirements, and 

improve equity and inclusion for 

MSFWs in the ES system. The 

Department also proposes to remove the 

requirement that the SMA serve as a 

Complaint System Representative and 

eliminate the requirement that SMAs 

must process MSFW complaints. The 

Department is proposing these revisions 

because § 653.108 requires the SMA to 

monitor the Complaint System, and the 

proposed revisions would remove the 

challenge that exists when the SMA is 

required to monitor their own actions in 

processing MSFW complaints. The 

Department anticipates that an SMA 

will be more objective in monitoring the 

Complaint System if they are not tasked 

with monitoring their own actions. The 

proposed revisions would maintain the 

integrity of the Monitor Advocate 

System as it provides safeguards to 

MSFWs who participate in the 

Complaint System, and they would 

allow SMAs to focus their attention on 

monitoring the ES services that are 

provided to MSFWs in their State. 

The Department has observed through 

analysis of SWA quarterly Labor 

Exchange Agricultural Reporting System 

5148 Reports, meetings with SMAs and 

RMAs, and other communications with 

SWAs, that SWAs misunderstand 

several of the requirements currently in 

part 658. These misunderstandings have 

caused inaccurate recordkeeping and 

reporting, which impede the ability of 

SMAs and the Department to monitor 

MSFW complaints to determine 

whether the Complaint System is 

processing MSFW complaints 

consistently with the governing 

regulations. The Department also has 

received information, through 5148 

Reports and Monitor Advocate Annual 

Summaries, that Complaint System 

activity is low in many States. Through 

Wage and Hour Division (WHD) 

investigations, news reports, SMA 

Annual Summaries, conversations with 

farmworkers and farmworker advocacy 

organizations, and anecdotal 

information SMAs share with the 

Department, the Department concludes 

that violations of employment-related 

laws against MSFWs may be prevalent 

across the country—therefore, it is 

concerning that Complaint System 

activity is low. In Program Year 2019 

(July 2019-June 2020), which is the most 

recent complete set of data available, at 

least eight States did not report any 

MSFW complaints. RMAs and the NMA 

have communicated concerns to the 

Department that one of the reasons 

complaint numbers may be low is 

because MSFWs are unaware of the 

Complaint System, or SWAs are not 

processing or recording complaints 

correctly. 

Through SWA 5148 Reports and RMA 

monitoring, the Department has 

identified several common requirements 

in the regulatory text that SWAs may 

misunderstand. These 

misunderstandings have a direct impact 

on the availability and correct 

processing of complaints. To address 

these issues, several of the proposed 

revisions are more prescriptive than the 

existing regulatory text and specifically 

clarify terms and other requirements. 

1. Subpart E—Employment Service and 

Employment-Related Law Complaint 

System (Complaint System) 

Section 658.410 Establishment of 

Local and State Complaint Systems 

The Department proposes to amend 

§ 658.410(c) to replace the word ‘‘SWA’’ 

with ‘‘State’’ so that it clearly points to 

the defined term ‘‘State Administrator.’’ 

This change will clarify which specific 

individual is responsible to ensure a 

central complaint log is maintained. 

The Department proposes to remove 

language in § 658.410(c)(6) that the 

complaint log must include actions 

taken on apparent violations and, 

instead, add several specific references 

in § 658.410(c)(1) through (6) that 

explain that each requirement also 

applies to apparent violations. These 

proposed changes are intended to clarify 


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that the complaint log must document 

all the same components for apparent 

violations, except for the complainant’s 

name because there is no complainant 

for an apparent violation. The 

Department commonly identifies issues 

through RMA monitoring of SWAs 

where complaint logs do not document 

apparent violations. These proposed 

revisions would clarify the requirement 

to document apparent violations and 

specify the information that SWAs must 

include on the complaint log. 

The Department also proposes to 

amend § 658.410(c)(6) to make all uses 

of the word ‘‘action’’ plural because 

there may be several actions taken to 

appropriately process a complaint or 

apparent violation. This change is 

necessary to clarify to SWAs that they 

must document all actions. The 

Department also proposes to describe 

the type of information SWAs must 

include in their complaint logs by 

noting that it includes any documents 

the SWA sent or received and the date 

the SWA took such action(s). This 

change will mean the SWA must 

specifically record documents the SWA 

sent or received, and the dates of those 

actions, on the complaint log. Through 

monitoring SWAs, the Department has 

observed that SWAs often do not keep 

records of all actions taken. Instead, 

SWAs often have minimal information 

listed on their complaint logs. The 

proposed changes are purposefully 

prescriptive because it is critical that the 

Department has records of all 

documents sent and received related to 

complaints and apparent violations. 

This allows the Department to have 

sufficient information to monitor SWA 

complaint and apparent violation 

processing. These records are also 

critical when RAs receive appeals from 

SWA determinations and must review 

whether a SWA’s actions are compliant. 

The Department proposes to amend 

§ 658.410(g) to remove the word ‘‘local,’’ 

which comes before ‘‘ES office’’ in the 

existing regulatory text. This proposed 

change is appropriate because ES office 

is a defined term at § 651.10 and, 

therefore, the word ‘‘local’’ is not 

necessary. Removal of the word ‘‘local’’ 

will also clarify that the regulatory text 

is not referring to a different type of 

office. 

The Department proposes to remove 

the requirement in § 658.410(h) that the 

SMA must 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 processing MSFW 

complaints. The Department is 

proposing this change because SMAs 

are also tasked with monitoring the 

Complaint System, and the Department 

anticipates that SMAs will be more 

objective in monitoring the Complaint 

System if they are not tasked with 

monitoring work that they themselves 

perform. Removing this responsibility 

would also allow SMAs to focus their 

attention on monitoring the ES services 

provided to MSFWs in their State. 

For similar reasons, the Department 

proposes to revise § 658.410(m) to 

replace ‘‘SMA’’ with ‘‘Complaint 

System Representative.’’ This proposal 

is consistent with other changes 

throughout part 658 that remove the 

SMA’s direct involvement in the 

Complaint System, including the 

proposed removal of the SMA being 

designated to process MSFW 

complaints. 

The Department proposes to remove 

§ 658.410(n), which currently addresses 

correspondence to complainants who 

are English-language learners. The 

Department has determined that it is no 

longer necessary to include explicit 

requirements regarding language access 

in various sections of the ES regulations, 

because all one-stop centers and ES staff 

must comply with the language access 

and assistance requirements in 29 CFR 

38.9 with regard to all LEP individuals, 

including those LEP individuals who 

file complaints under the Complaint 

System set forth in this subpart. This 

proposed revision is consistent with the 

Department’s proposed addition in 

§ 653.103(b), which would require 

SWAs to comply with the language 

access and assistance requirements at 29 

CFR 38.9 with regard to all LEP 

individuals, including MSFWs who are 

LEP individuals, as defined at 29 CFR 

38.4(hh). The proposed revision would 

specify that this requirement includes 

ensuring ES staff in one-stop centers 

comply with these language access 

requirements. The regulations at 29 CFR 

38.9 establish that language access 

requirements apply to services provided 

to all LEP individuals at all one-stop 

centers and are broader than the existing 

requirement at § 658.410(n). For these 

reasons, the reference in § 658.410(n) is 

no longer necessary. Like the reasons 

laid out previously in the preamble 

concerning proposed changes to 

§ 653.103(b), having a specific reference 

to LEP translations for complaint 

correspondence may inaccurately create 

the appearance that there are two sets of 

language access standards or that 

requirements for the Complaint System 

are narrower. Removing the reference 

clarifies that the full scope of 29 CFR 

38.9 also applies to LEP individuals 

participating in the Complaint System. 

Due to the proposed removal of 

current regulatory text in § 658.410(n), 

the Department proposes to redesignate 

the existing regulatory text at 

§ 658.410(o) as § 658.410(n). 

Section 658.411 Action on Complaints 

The Department proposes to amend 

§ 658.411(a)(2)(ii) to remove the word 

‘‘and’’ before ‘‘telephone numbers’’ in 

the listed methods to contact a 

complainant, and to add ‘‘and any other 

helpful means by’’ to broaden the scope 

of contact methods requested from 

complainants. In addition, the 

Department proposes to indicate that 

there may be multiple physical 

addresses and email addresses through 

which a complainant could be 

contacted. The Department has received 

information from SWAs and other 

grantee organizations, including NFJP 

grantees, that MSFWs often do not have 

or respond to traditional methods of 

communication, including mail, email, 

and telephone. Specifically, migrant 

farmworkers move from one location to 

another for work, so it is not always 

reliable or efficient to send 

communications through mail to their 

last known or permanent addresses. 

Additionally, SWAs and NFJP grantees 

indicate that MSFW youth often are 

more responsive to communication sent 

through social media and other 

applications. In the process of advising 

SWAs regarding complaints, the 

Department has encountered several 

cases where SWAs closed complaints 

because the complainant failed to 

respond to the SWA. It is possible that 

a portion of these failures to respond are 

due to lack of current contact 

information, instead of the 

complainant’s desire to close the 

complaint. The Department’s proposed 

revision addresses this issue by 

directing SWAs to request from 

complainants any other helpful means 

by which they might be contacted, 

which would broaden the potential 

methods by which SWAs may contact 

complainants and account for the fact 

that complainants may receive 

information through various platforms 

other than physical mail, email, or 

telephone, including technological 

applications. This would also increase 

the likelihood that SWAs will be able to 

communicate with complainants to 

process complaints to resolution. This 

change should improve MSFW access to 

the Complaint System and increase the 

SWA’s ability to resolve complaints. 

Paragraph (b) of § 658.411 covers 

complaints regarding an employmentrelated law. The Department proposes to 

amend § 658.411(b)(1) to replace ‘‘a’’ 

with ‘‘an’’ before ‘‘ES office’’ as a 


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23720 Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules 

technical grammar edit. The Department 

also proposes to clarify the appropriate 

steps for processing employment-related 

law complaints involving alleged 

violations of nondiscrimination laws or 

reprisal for protected activity by 

revising § 658.411(b)(1), to add a 

reference to § 658.411(c). This revision 

would clarify that the procedures in 

§ 658.411(c) apply to any employmentrelated law complaint alleging unlawful 

discrimination or reprisal for protected 

activity in violation of 

nondiscrimination laws, such as those 

enforced by the EEOC or the DOL’s CRC, 

or in violation of the Immigration and 

Nationality Act’s anti-discrimination 

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

The Department proposes three 

changes to § 658.411(b)(1)(ii)(B). First, 

the Department proposes to remove both 

references to the SMA making 

determinations and taking actions on 

employment-related law complaints and 

replace the first with a reference to the 

‘‘Complaint System Representative.’’ 

This proposal is consistent with other 

changes throughout part 658 that 

remove the SMA’s direct involvement in 

the Complaint System, including the 

proposed removal of the SMA being 

designated to process MSFW 

complaints. As explained earlier, the 

Department is proposing to remove the 

SMA from Complaint System processing 

because the SMA duties outlined at 

§ 653.108 include monitoring the 

Complaint System, and the Department 

anticipates that SMAs will be more 

objective in performing this monitoring 

if they are not tasked with monitoring 

their own actions for compliance. 

Second, the Department proposes to 

replace the word ‘‘employment’’ with 

‘‘ES’’ before ‘‘services’’ in the last 

sentence to conform with the defined 

term Wagner-Peyser Act Employment 

Service (ES) also known as Employment 

Service (ES). The Department also 

proposes to change ‘‘and except’’ to ‘‘or’’ 

to clarify that immediate action must be 

taken in cases where either the 

Complaint System Representative 

determines that it is necessary or where 

informal resolution would be 

detrimental to the complainant. 

Consistent with the proposed removal 

of the SMA from § 658.411(b)(1)(ii)(B), 

the Department proposes to amend 

§ 658.411(b)(1)(ii)(D) to remove the 

requirement for the ES office or SWA 

Complaint System Representative to 

refer the complaint to the SMA who 

must immediately refer the complaint. 

Instead, under the proposed regulatory 

text, the ES office or SWA Complaint 

System Representative would 

themselves refer the complaint 

immediately to the appropriate 

enforcement agency for prompt action. 

This change would remove the SMA 

from Complaint System processing for 

the same reasons that the Department 

proposes to remove the SMA from other 

aspects of Complaint System processing. 

This proposed change is consistent with 

the SWA’s requirements in processing 

non-MSFW complaints, where staff 

other than the SMA refer complaints to 

enforcement agencies. Additionally, this 

proposed change would decrease the 

amount of administrative time for 

complaints to be referred for prompt 

action by enforcement agencies. It is 

important to note that this regulation 

specifically deals with complaints that 

ES offices or SWA staff have determined 

need to be referred to a State or Federal 

agency. Requiring staff to refer the 

complaint first to the SMA, who then 

refers to the applicable agency, adds 

unnecessary time, which may cause 

avoidable harm to complainants in 

sensitive or otherwise serious, timesensitive situations. 

The Department proposes to remove 

all references to the ‘‘SMA’’ in 20 CFR 

658.411(b)(1)(ii)(D) and (E) to conform 

with the Department’s proposal to 

remove the SMA from playing a direct 

role in Complaint System processing. 

Under the proposed changes, the 

complaint will not be referred to the 

SMA. Instead, the Complaint System 

Representative must notify the 

complainant of the enforcement agency 

to which the complaint was referred, 

rather than for the SMA to notify the 

complainant. 

The Department proposes to add 

§ 658.411(b)(1)(ii)(F) to provide steps ES 

offices and SWAs must take when they 

receive complaints alleging an employer 

in a different State has violated an 

employment-related law, when such 

complaints are filed by or on behalf of 

MSFWs. The proposed changes would 

require SWAs and ES offices to use the 

same process for processing 

employment-related law complaints as 

§ 658.411(d)(ii) currently requires for ES 

complaints involving an employer in 

another State. This situation comes up 

periodically, and the Department has 

advised SWAs to follow the same 

procedures for when an ES complaint is 

filed in a different State, which includes 

sending the complaint to the SWA in 

the other State. This addition is 

intended to make the employmentrelated law complaint regulations 

consistent with current SWA practices. 

Because the regulations currently do not 

address this scenario, the regulations 

currently are unclear as to whether ES 

offices and SWAs must immediately 

refer employment-related law 

complaints against out-of-State 

employers to enforcement agencies or if 

they should attempt to resolve MSFWrelated complaints involving employers 

in other States. The Department believes 

that the most beneficial option is for 

these complaints to be referred to the 

SWA in the other State, consistent with 

how SWAs process complaints 

involving employers in other States. 

Additionally, the entity best situated to 

process a complaint is the SWA for the 

State where the employer is located, 

because that SWA has greater 

knowledge of applicable employmentrelated laws and may have other records 

for the employer that impact 

appropriate decision making. The 

proposed changes also specifically 

require the ES office or SWA receiving 

the complaint to ensure the Complaint/ 

Referral Form is adequately completed 

before sending the Complaint/Referral 

Form and copies of any relevant 

documents to the SWA in the other 

State. This language is designed to 

correct issues the Department has 

observed, where SWAs have informed 

SWAs in other States of complaint 

information but have not completed the 

Complaint/Referral Form or provided 

copies of any relevant documents. As a 

result, the other State SWAs were not 

able to contact the complainant or 

identify other critical information to act 

on the complaint, including material 

facts and allegations and the identity of 

the employer respondent. The proposed 

changes explicitly require the referring 

SWA to provide this necessary 

documentation so that the SWA 

receiving the complaint can address it 

appropriately. 

The Department proposes to revise 

the heading and text of § 658.411(c) to 

clarify that all complaints under this 

subpart alleging unlawful 

discrimination or reprisal for protected 

activity should be handled in 

accordance with the procedures in this 

paragraph. In addition, the Department 

proposes to modify the procedures in 

this paragraph to require an ES office or 

SWA in receipt of such a complaint to 

log and immediately refer it to the Statelevel E.O. Officer. The process set forth 

in the existing regulations has proven to 

be confusing, because it identifies 

multiple officials to which 

nondiscrimination complaints should 

be referred and requires ES staff to 

determine which nondiscrimination 

laws are at issue. The revisions that the 

Department proposes here would 

simplify the process by requiring ES 

offices and SWAs to treat all 

nondiscrimination complaints that they 

receive under this subpart in the same 

manner. Specifically, under the 


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proposed revision, when an ES office or 

SWA receives such a complaint, they 

will log it and immediately refer it to 

the State-level E.O. Officer, regardless of 

the nondiscrimination law(s) at issue, 

and notify the complainant of the 

referral in writing. The State-level E.O. 

Officer will then either process the 

complaint if it is within their 

jurisdiction or immediately refer the 

complaint to the appropriate 

enforcement agency if it is not. This 

simplified referral process will reduce 

confusion for ES staff and ensure that 

someone with appropriate 

nondiscrimination expertise—the Statelevel E.O. Officer—will determine how 

the complaint should be handled and by 

whom. 

The Department proposes to amend 

§ 658.411(d) throughout to replace ‘‘a’’ 

with ‘‘an’’ as a technical edit when it 

comes before ‘‘ES office.’’ In addition, 

the Department proposes to revise 

§ 658.411(d)(1) to clarify that the 

procedures in § 658.411(c) apply to all 

ES complaints alleging violations of 

nondiscrimination laws, including 

violations of EEOC regulations, the 

Immigration and Nationality Act’s antidiscrimination provision, or laws 

enforced by CRC. 

The Department proposes to rephrase 

§ 658.411(d)(2)(ii)(A), which addresses 

how an ES office should process an ES 

complaint filed against an employer that 

is not located within its service area, to 

clarify the order of steps such an office 

must take, without substantively 

changing the steps. Specifically, the 

proposed regulatory text changes the 

phrasing from ‘‘must send, after 

ensuring that the Complaint/Referral 

Form is adequately completed, a copy 

. . .’’ to ‘‘must ensure the Complaint/ 

Referral Form is adequately completed, 

and then immediately send a copy 

. . . .’’ This proposed change is 

consistent with the proposed change at 

§ 658.411(b)(3), so that processes for 

both ES complaints and employmentrelated law complaints (other than 

alleged violations of rights under the 

EEOC regulations or laws enforced by 

CRC, as described at § 658.411(c)) are 

the same when the complaint involves 

an employer in a different State. The 

changes are, therefore, necessary for 

clarity and consistency. 

At § 658.411(d)(1)(iv), the Department 

proposes a technical edit to add a 

comma after ‘‘alleged agency-wide 

violation.’’ 

The Department proposes to amend 

§ 658.411(d)(4)(i) and (5)(i) to replace 

references to the SMA investigating, 

attempting informal resolution, and 

making written determinations with 

references to the ‘‘Complaint System 

Representative’’ taking such actions. 

This proposed change is necessary to 

conform to the proposed change, 

discussed previously, to remove the 

SMA from playing a direct role in 

Complaint System processing. This will 

strengthen the SMA’s role to monitor 

the Complaint System. 

The Department proposes to amend 

§ 658.411(d)(5)(i) to change ‘‘ES or SWA 

officials’’ to ‘‘the SWA’’ because the 

proposed changes to § 651.10 remove 

the definition of SWA official. 

The Department proposes to amend 

§ 658.411(d)(5)(ii) in three ways. First, 

the Department proposes to change 

‘‘SWA officials’’ to ‘‘the SWA’’ because 

the proposed changes to § 651.10 

remove the definition of SWA official. 

Because of this proposed term change, 

it is also necessary to make the word 

‘‘determine’’ plural for subject-verb 

agreement. Second, the Department 

proposes to insert ‘‘, in writing,’’ 

between ‘‘request’’ and ‘‘hearing’’ to 

clarify that the complainant must 

request a hearing in writing. This 

change will make the procedures 

consistent with § 658.411(d)(5)(i)(D). 

Lastly, the Department proposes to 

change ‘‘working days’’ to ‘‘business 

days.’’ Under § 651.10, working days 

and business days have the same 

meaning and can be used 

interchangeably. However, because this 

reference is located immediately after a 

use of ‘‘business days’’ in 

§ 658.411(d)(5)(i)(D), it may give the 

appearance that there are different 

meanings between the terms. To correct 

this issue, the Department proposes to 

use the same term—‘‘business days’’—in 

both places. 

The Department proposes to amend 

§ 658.411(d)(5)(iii)(G) to change ‘‘SWA 

official’’ to ‘‘SWA’’ because the 

proposed changes to § 651.10 remove 

the definition of SWA official. This 

change would make the provision agree 

with the proposed definitions. 

Section 658.419 Apparent Violations 

The Department proposes several 

clarifying revisions to § 658.419(a). 

First, the Department proposes 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 proposed regulatory text will use the 

term ES staff uniformly. 

The Department also proposes to 

change the second reference to a 

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

‘‘apparent violation’’ for clarity. In 

addition, the Department proposes to 

add 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 proposes 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. 

Section 658.420 Responsibilities of the 

Employment and Training 

Administration Regional Office 

The Department proposes several 

revisions to § 658.420. First, the 

Department proposes to revise 

§ 658.420(b) to conform with the 

simplified process for referring 

nondiscrimination complaints in 

proposed § 658.411(c). In particular, the 

Department proposes 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). 

As explained previously under the 

section addressing revisions to 

§ 658.411(c), this simplified referral 

process would provide clear instruction 

to ETA regional staff and task State-level 

E.O. Officers, who have appropriate 

nondiscrimination expertise, with 

determining how nondiscrimination 

complaints should be handled and by 

whom. 

Second, the Department proposes to 

remove 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 

proposes to make 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 proposes to 

revise § 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 


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procedures for ES offices and SWAs 

(and not ETA regional offices). 

Section 658.422 Processing of 

Employment-Related Law Complaints 

by the Regional Administrator 

The Department proposes several 

revisions to § 658.422. First, the 

Department proposes to revise 

paragraph (a) to clarify that this section 

applies to all ‘‘employment-related law’’ 

complaints submitted directly to the 

ETA Regional Administrator or their 

representative. Second, the Department 

proposes to add 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). 

2. Subpart F—Discontinuation of 

Services to Employers by the WagnerPeyser Act Employment Service 

Section 658.501 Basis for 

Discontinuation of Services 

The Department proposes to amend 

§ 658.501(a)(4) to add that SWA officials 

must initiate procedures for 

discontinuation of services to employers 

who are currently debarred or 

disqualified from participating in one of 

the Department’s foreign labor 

certification programs. This revision 

corresponds to the proposed addition in 

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

staff to consult the Department’s OFLC 

and Wage and Hour Division debarment 

lists prior to placing a job order into 

intrastate or interstate clearance, and to 

initiate discontinuation of services 

pursuant to this subpart if the employer 

requesting access to the clearance 

system is currently debarred or 

disqualified from participating in one of 

the Department’s foreign labor 

certification programs. As explained in 

the section of this preamble addressing 

the proposed addition in § 653.501(a)(4), 

the Department is proposing this 

requirement to protect workers that are 

referred to employers through the ARS 

by ensuring that the ARS is not used to 

place a worker with an employer that 

has failed to comply with its 

obligation(s) as an employer of foreign 

workers. 

The Department proposes to amend 

§ 658.501(b) to correct an error in the 

existing regulatory text, which 

improperly references § 658.501, instead 

of § 658.502. Specifically, the regulatory 

text currently provides that SWA 

officials may discontinue services 

immediately if, in the judgment of the 

State Administrator, exhaustion of the 

administrative procedures set forth in 

§ 658.501(a)(1) through (7) would cause 

substantial harm to a significant number 

of workers. The reference to paragraphs 

(a)(1) through (7) of § 685.501 appears to 

have been made in error, because 

§ 658.501 does not set forth 

administrative procedures but rather the 

bases for discontinuation of services. 

Section 658.502, by contrast, sets forth 

the process by which SWAs must 

generally follow when discontinuing the 

provision of ES services. Accordingly, 

the Department proposes to replace the 

cross reference in 658.501(b) to 

658.501(a)(1) through (7) with a cross 

reference to § 658.502, which will 

clarify that the administrative 

procedures that must otherwise be 

exhausted are set forth in § 658.502. 

This revision is necessary to clarify 

when a SWA official may discontinue 

services immediately. 

The Department proposes to amend 

§ 658.501(c) to correct an error in the 

regulatory text like the cross-referencing 

error in § 658.501(b). This section 

incorrectly references the bases on 

which a SWA may discontinue services 

to an employer in § 658.501(a)(1) 

through (8), instead of the procedures to 

discontinue such services set forth in 

§ 658.502. Accordingly, the Department 

proposes to replace the reference to 

§ 658.501(a)(1) through (8) with a cross 

reference to § 658.502. 

The Department proposes to amend 

§ 658.502(a)(4) to add that where a 

SWA’s decision to discontinue services 

is based on the fact that the employer is 

currently debarred or disqualified from 

participating in one of the Department’s 

foreign labor certification programs, the 

SWA must specify the time period for 

which the employer is debarred or 

disqualified. The proposed revision 

would further specify that the employer 

must be notified that all ES services will 

be terminated in 20 working days 

unless, within that time, the employer 

provides adequate evidence that the 

Department’s disbarment or 

disqualification is no longer in effect or 

will terminate before the employer’s 

anticipated date of need. Similar to the 

proposed revision to § 658.501(a)(4) 

discussed previously, the revisions 

proposed here correspond to the 

proposed addition in § 653.501(a)(4), 

which would require ES staff to consult 

the Department’s OFLC and Wage and 

Hour Division debarment lists prior to 

placing a job order into intrastate or 

interstate clearance, and to initiate 

discontinuation of services pursuant to 

this subpart if the employer requesting 

access to the clearance system is 

currently debarred or disqualified from 

participating in one of the Department’s 

foreign labor certification programs. 

3. 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 proposes to amend 

§ 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), which does not 

contain self-monitoring requirements. 

This proposed revision will clarify the 

location of self-monitoring requirements 

for readers. 

The Department proposes to amend 

the introductory text of § 658.602(n) to 

replace the phrase ‘‘in the course of’’ 

with the word ‘‘during’’ for purposes of 

clarity. 

The Department proposes to amend 

§ 658.602(n)(1) to replace the phrase 

‘‘outreach workers’’ with ‘‘outreach 

staff’’ because outreach staff is a defined 

term in § 651.10. Using the defined term 

will make the regulatory text more clear 

regarding which staff it references. 

The Department proposes to amend 

§ 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. 

The Department proposes to amend 

§ 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 

(8). 

Section 658.603 Employment and 

Training Administration Regional Office 

Responsibility 

The Department proposes to amend 

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

order’’ with ‘‘clearance order.’’ This 

change will make the provision conform 

with the proposed changes to the 

definition of clearance order in 

§ 651.10. The change will also clarify 

that field checks should only be 

conducted on orders that have been 

cleared for intrastate and/or interstate 

recruitment, not including local job 


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13Since the 2020 Final Rule, some States 

expressed an interest in using non-merit staff. 

Delaware began using this flexibility and currently 

uses two contract staff for ES services. Missouri has 

an approved WIOA State Plan modification to 

utilize non-State-merit staff. 

orders. The Department also proposes to 

remove the word ‘‘random’’ from the 

requirement for the RA to conduct field 

checks. Under the proposed revision, 

the selection of agricultural work sites 

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 proposes to add 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 proposes 

to amend § 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 replace 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 OSHA, WHD, EEOC, CRC, 

and other organizations offering 

farmworker-related information). The 

proposed regulatory text removes the 

requirement for training within the first 

3 months of an RMA’s tenure because 

RMAs must participate in all trainings 

necessary to learn and maintain 

competencies for the role. The proposed 

regulatory text clarifies that training 

attendance is required beyond the first 

3 months of an RMA’s tenure. The 

proposed regulatory text regarding 

maintaining competencies specifically 

aligns with the Department’s training 

requirements for SMAs as well as E.O. 

staff training requirements, which 

provide a positive example for RMA 

training. 

The Department proposes to amend 

§ 658.603(p)(1) to replace ‘‘workers’’ 

with ‘‘staff.’’ This change would 

implement the defined term of outreach 

staff to clarify the type of staff to which 

the provision refers. 

The Department proposes to amend 

§ 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. This change will clarify that 

RMAs may conduct targeted field 

checks where necessary, allowing the 

Department to respond to known or 

suspected compliance issues, in 

addition to random field checks. 

4. Subpart H—Federal Application of 

Remedial Action to State Workforce 

Agencies 

Section 658.702 Assessment and 

Evaluation of Program Performance Data 

The Department proposes to amend 

§ 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. The notification required by 

these revisions would improve the 

RMA’s ability to effectively perform all 

required duties. 

Section 658.704 Remedial Actions 

The Department proposes to amend 

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

the RA’s notification to the SWA of 

decertification proceedings must be sent 

to the RMA and the NMA. The existing 

regulatory text only requires that one 

copy be sent to the NMA. This revision 

is necessary because the RMA needs to 

be aware of all issues that relate to 

MSFWs in the regional office. 

The Department proposes to amend 

§ 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. This is a clarifying edit, as 

§ 658.704(c) already provides a SWA the 

opportunity to request a hearing under 

these circumstances. The Department 

additionally proposes to add a reference 

to the RA in § 658.707(b), because 

§ 658.704(c) directs the SWA to send its 

written request to the RA. 

IV. Rulemaking Analyses and Notices 

A. Executive Orders 12866 (Regulatory 

Planning and Review) and 13563 

(Improving Regulation and Regulatory 

Review) 

Under Executive Order (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 3(f) of E.O. 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that: (1) Has an annual effect on the 

economy of $100 million or more, or 

adversely affects in a material way a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities 

(also referred to as economically 

significant); (2) creates serious 

inconsistency or otherwise interferes 

with an action taken or planned by 

another agency; (3) materially alters the 

budgetary impacts of entitlement grants, 

user fees, or loan programs, or the rights 

and obligations of recipients thereof; or 

(4) raises novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the E.O. Id. This proposed 

rule is a significant regulatory action, 

although not an economically 

significant regulatory action, under sec. 

3(f) of E.O. 12866. Accordingly, OMB 

has reviewed this proposed 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 

proposed rule would result in costs, 

transfer payments, and benefits for State 

governments and agricultural 

employers. The costs of the proposed 

rule would include rule familiarization 

and additional information collection 

for State governments, as well as 

transition costs such as recruitment, 

training, and technology expenses for 

the four States (i.e., Colorado, Delaware, 

Massachusetts, and Michigan) that 

currently have non-State-merit staff 

providing some labor exchange services 

and would need to transition to State 

merit staff for the provision of all labor 

exchange services.13

The transfer payments would include 

the changes in wages and fringe benefits 

for staff providing Wagner-Peyser Act 


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14This analysis uses codes from the Standard 

Occupational Classification (SOC) system and the 

North American Industry Classification System 

(NAICS). 

15BLS, ‘‘Occupational Employment and Wage 

Statistics, National Industry-Specific Occupational 

Employment and Wage Estimates, NAICS 999200,’’ 

SOC Code 11–3121, May 2020, https://www.bls.gov/ 

oes/current/naics4_999200.htm (last visited Aug. 2, 

2021). 

16BLS, ‘‘National Compensation Survey, 

Employer Costs for Employee Compensation,’’ 

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

2, 2021). For State and local government workers, 

wages and salaries averaged $32.72 per hour 

worked in 2020, while benefit costs averaged 

$20.09, which is a benefits rate of 61 percent. 

17Cody 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 Aug. 2, 2021). 

18Anecdotal evidence from States indicates a 

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

question to an existing data collection. 

19BLS, ‘‘Occupational Employment and Wage 

Statistics, National Industry-Specific Occupational 

Employment and Wage Estimates, NAICS 999200, 

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

naics4_999200.htm. 

ES labor exchange services in the four 

States that currently have non-Statemerit staff providing ES labor exchange 

services: Colorado, Delaware, 

Massachusetts, and Michigan. 

The benefits of the merit-staffing 

provisions in the proposed rule would 

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 also is proposing 

amendments to the regulations that 

govern labor exchange services provided 

to MSFWs, the Monitor Advocate 

System, and the Complaint System. 

These amendments would remove 

redundancies, clarify requirements, and 

improve equity and inclusion for 

MSFWs in the ES system. 

1. Costs 

The Department anticipates that the 

proposed rule would 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 14

assumes that the changes introduced by 

the rule would be reviewed by Human 

Resources Managers (SOC code 11– 

3121) employed by SWAs. The 

Department anticipates that it would 

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 (OEWS) data show that 

the median hourly wage of State 

government Human Resources Managers 

is $43.75.15 The Department used a 61 

percent benefits rate 16 and a 17 percent 

overhead rate,17 so the fully loaded 

hourly wage is $77.88 [= $43.75 + 

($43.75 × 61%) + ($43.75 × 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 $4,439 (= 

$77.88 × 1 hour × 57 jurisdictions). 

b. Transition Costs 

Four States would potentially incur 

one-time costs associated with the 

proposal to require all ES labor 

exchanges services to be provided by 

State merit staff. Colorado, Delaware, 

Massachusetts, and Michigan currently 

have some non-State-merit staff who 

provide labor exchange services, and 

these 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 

may experience nonquantifiable 

transition costs associated with service 

interruptions during the time period in 

which the State is making staff changes 

to comply with the provisions of this 

proposed rule. 

The Department used a survey to ask 

the four States to estimate these 

potential expenses. One State 

anticipates that transition expenses 

would be minimal unless one of the 

local one-stop centers goes through an 

‘‘upheaval’’ due to the proposed change. 

The State explained that the SWA 

provides employee training, and this 

would not change under the provisions 

in the proposed rule. Moreover, 

technology costs have always been 

shared costs, and recruitment is 

conducted by local management teams 

on an on-going basis. The State noted, 

however, that there would be significant 

disruptions in the workforce areas that 

use non-State merit-staffed employees to 

provide ES labor exchange services; 

those areas constitute 25 percent of the 

State’s workforce areas. Hiring State 

merit-staffed employees in those areas 

would take months; moreover, the State 

would need to add State supervision 

and engage in union negotiations. 

A second State estimated that the 

transition costs related to training and 

technology would be minimal. 

However, obtaining additional FTE 

State merit-staffed employees would 

generate nonquantifiable costs. The 

State explained that the process would 

entail requesting and justifying new 

positions, preparing and submitting a 

budget request, posting the positions, 

interviewing candidates, checking 

references, and onboarding new hires. 

The State estimated that the process 

would take at least 12 to 18 months. 

The Department is not able to 

quantify the transition costs to the four 

States due to the lack of data. The 

Department is seeking additional input 

from the four States on their potential 

transition expenses such as recruitment, 

training, or technology costs, as well as 

costs related to the State budgeting 

process. The Department is also seeking 

input on the potential costs associated 

with service interruptions during the 

time period in which the State is 

making staff changes to comply with the 

provisions of this proposed rule. 

c. Information Collection Costs 

IC costs represent direct costs to 

States associated with the proposed 

information collection requests (ICRs) 

under this proposed rule. 

The first ICR pertains to the proposed 

requirement that SWA Wagner-Peyser 

programs document Participant 

Individual Record Layout (PIRL) data 

element 413 for all reportable 

individuals. The Department assumes 

that this provision would 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 

would need to reprogram their ES 

registration systems to ask MSFW status 

(PIRL 413) questions earlier in the 

registration process. The Department 

assumes reprogramming would cost an 

average of $4,000 per jurisdiction,18 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 would 

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 $26.85 for educational, 

guidance, and career counselors and 

advisors (SOC code 21–1012) employed 

by State governments (NAICS 

999200).19 The Department used a 61- 

percent benefits rate and a 17-percent 

overhead rate, so the fully loaded hourly 

wage is $47.79 [= $26.85 + ($26.85 × 

61%) + ($26.85 × 17%)]. Assuming ES 

staff assist in registering half of the 10.2 

million reportable individuals (based on 

the average for Program Years 2018, 

2019, and 2020), the annual cost is 


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20BLS, ‘‘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. 

21BLS, OEWS data for government workers by 

State, May 2020, https://www.bls.gov/oes/ 

special.requests/oes_research_2020_sec_99.xlsx 

(last visited Aug. 2, 2021). 

22 ($61,840¥$59,000) × 1.78 + 

($43,910¥$48,000) × 1.78 = ¥$2,225. 

estimated at $8,129,913 (= 10,207,047 

reportable individuals × 50% × 2 

minutes × $47.79 per hour). For the 

annual burden on SMAs, the 

Department anticipates that it would 

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 $36.25 for 

social and community service managers 

(SOC code 11–9151) employed by State 

governments (NAICS 999200).20 The 

Department used a 61-percent benefits 

rate and a 17-percent overhead rate, so 

the fully loaded hourly wage is $64.53 

[= $36.25 + ($36.25 × 61%) + ($36.25 × 

17%)]. Therefore, the annual cost is 

estimated at $14,713 (= 57 SMAs × 4 

hours per year × $64.53 per hour). 

The second ICR pertains to the 

proposed requirement that SWA 

applicant-holding 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 

would 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 $47.79 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 $406,454 (= 

14,580 clearance orders × 35 minutes × 

$47.79 per hour). 

The third ICR pertains to the 

proposed changes associated with the 

Migrant and Seasonal Farmworker 

Monitoring Report and Complaint/ 

Apparent Violation Form. The 

Department assumes that this provision 

would 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 would 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 $64.53 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 

$1,238,976 (= 2,400 ES Managers × 8 

hours per year × $64.53 per hour). For 

the annual burden on SMAs, the 

Department anticipates that it would 

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 $64.53 for social 

and community service managers (SOC 

code 11–9151) employed by State 

governments (NAICS 999200). 

Therefore, the annual cost is estimated 

at $11,035 (= 57 SMAs × 3 hours per 

year × $64.53 per hour). 

The fourth ICR pertains to the 

proposal to require the delivery of all ES 

labor exchanges services by State merit 

staff. The Department proposes to create 

a new ICR that would 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. 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. 

In total, the proposed rule is expected 

to have first-year IC costs of $10.0 

million in 2020 dollars. Over the 10- 

year analysis period, the annualized 

costs are estimated at $9.8 million at a 

discount rate of 7 percent in 2020 

dollars. 

2. Transfer Payments 

According to OMB Circular A–4, 

transfer payments are monetary 

payments from one group to another 

that do not affect total resources 

available to society. The transfer 

payments for this proposed rule are the 

transfer payments associated with 

employee wages and fringe benefits. 

The 2020 Final Rule gave all States 

and territories more staffing options for 

delivering labor exchange services. Four 

States (Colorado, Delaware, 

Massachusetts, and Michigan) currently 

have non-State-merit staff providing 

labor exchange services, and others have 

expressed interest in such an 

arrangement. This proposed rule would 

require all ES labor exchange services to 

be provided by State merit-staffed 

employees; therefore, these four States 

would need to restaff (along with other 

States that could implement non-Statemerit staffing before this NPRM is 

finalized) 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. 

To estimate the transfer payments, the 

Department surveyed the four States 

and asked them to provide the total 

number of full-time equivalent (FTE) 

hours provided by State merit staff and 

non-State-merit staff dedicated to 

delivering ES services, as well as the 

occupation (or position title) and annual 

salary for all employees included in the 

FTE calculations. Delaware, 

Massachusetts, and Michigan provided 

data via email, while Colorado 

responded via telephone. 

Delaware reported that it currently 

has two FTE non-State, merit-staffed 

employees delivering ES services: one 

FTE management analyst with an 

annual salary of $59,000 and one FTE 

migrant farm outreach worker with an 

annual salary of $48,000. The 

Department assumes that Delaware 

would replace the two FTE non-State, 

merit-staffed employees with one State 

merit-staffed management analyst (SOC 

code 13–1111) and one State meritstaffed community and social service 

specialist (SOC code 21–1099). To 

calculate the change in wage costs for 

Delaware, the Department used OEWS 

data to estimate the median annual 

wages for management analysts and 

community and social service 

specialists employed by the State of 

Delaware. The median annual wage for 

management analysts is $61,840, while 

the median annual wage for community 

and social service specialists is 

$43,910.21

The Department adjusted the annual 

wages to account for fringe benefits (61 

percent) and overhead costs (17 

percent). Then, the Department 

calculated the difference between the 

fully loaded wage rates of the two 

current non-State-merit staff and two 

potential State merit staff. The decrease 

in wage costs for Delaware is estimated 

at $2,225 per year.22

Massachusetts reported that currently 

it has approximately 30 FTE non-State, 

merit-staffed employees providing ES 

services, but did not provide their job 

titles or annual salaries. Based on the 

occupational distribution of the State 

merit staff reported by Massachusetts, 

the Department assumes that 80 percent 

(or 24 FTEs) of the 30 FTE non-Statemerit staff are educational, guidance, 

and career counselors and advisors 

(SOC code 21–1012), 10 percent (or 3 

FTEs) are social and community service 


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23 In May 2020, total employment was 

139,099,570 (https://www.bls.gov/oes/current/oes_

nat.htm), with 117,718,070 jobs (85 percent) in the 

private sector (https://www.bls.gov/oes/current/ 

000001.htm) and 21,381,500 jobs (15 percent) in the 

government sector (https://www.bls.gov/oes/ 

current/999001.htm). 

24BLS, ‘‘OEWS, May 2020 State Occupational 

Employment and Wage Estimates: Massachusetts,’’ 

https://www.bls.gov/oes/current/oes_ma.htm (last 

visited Aug. 2, 2021). 

25The Department assumes that Massachusetts 

would replace non-State, merit-staffed educational, 

guidance, and career counselors and advisors with 

State merit-staffed ES services representatives or job 

specialists; non-State, merit-staffed social and 

community service managers with State meritstaffed program managers; and non-State, meritstaffed office and administrative support workers 

with State merit-staffed office support specialists. 

26 ($59,689¥$69,722) × 24 × 1.78 + 

($75,880¥$67,309) × 3 × 1.78 + ($47,176¥$46,342) 

× 3 × 1.78 = ¥$378,387. 

27The Department assumes that Michigan will 

replace non-State merit-staffed program managers 

with State merit-staffed employees paid at a rate 

similar to State administrative managers; non-State 

merit-staffed employment and job specialists (and 

other professional occupations) with State meritstaffed employees paid at a rate similar to migrant 

service workers; and non-State merit-staffed office 

and office support specialists with State meritstaffed employees paid at a rate similar to office 

secretaries. In categorizing each non-State 

employee, the Department used the job title and 

compensation rate provided by the State. 

28 ($189,639¥$86,494) × 14.3 + 

($100,894¥$50,955) × 159.3 + ($102,135¥$43,602) 

× 18.1 = $10,489,704. 

29BLS, Current Population Survey, unpublished 

tables. 

managers (SOC code 11–9151), and 10 

percent (or 3 FTEs) are office and 

administrative support workers (SOC 

code 43–0000). To calculate the change 

in wage costs for Massachusetts, the 

Department used OEWS data on median 

annual wages in Massachusetts for the 

three occupations identified previously. 

The median wage rates for private sector 

workers are not available by State and 

occupation; therefore, the Department 

used the median wage rates for all 

sectors in Massachusetts as a proxy 

because private sector jobs constitute 85 

percent of total employment.23 The 

median annual wage for educational, 

guidance, and career counselors and 

advisors in Massachusetts is $69,722, 

the median for social and community 

service managers is $67,309, and the 

median for office and administrative 

support workers is $46,342.24

Massachusetts reported that the 

median annual salary for State meritstaffed ES services representatives and 

State merit-staffed job specialists is 

$59,689, the median for State meritstaffed program managers is $75,880, 

and the median for State merit-staffed 

office support specialists is $47,176.25

The Department adjusted the annual 

wages to account for fringe benefits (61 

percent) and overhead costs (17 

percent). Then, the Department 

calculated the difference between the 

fully loaded wage rates of the 30 current 

non-State-merit staff and 30 potential 

State merit staff. The decrease in wage 

costs for Massachusetts is estimated at 

$378,387 per year.26

Michigan reported that it currently 

has approximately 192 FTE non-Statemerit staff. A wide range of 

occupational titles for non-State-merit 

staff providing ES services was reported; 

however, most of the staff members are 

program managers, employment and job 

specialists (or other professional 

occupations), or office and 

administrative support workers. Based 

on the occupational distribution of the 

State merit staff reported by Michigan, 

the Department assumes that 7 percent 

(or 14.3 FTEs) of the 192 FTE non-Statemerit staff are program managers, 83 

percent (or 159.3 FTEs) are employment 

and job specialists, and 9 percent (or 

18.1 FTEs) are office and administrative 

support workers. Michigan reported that 

the median annual salary plus benefits 

and other associated employment costs 

for non-State, merit-staffed program 

managers is $86,494, the median for 

employment and job specialists (or 

other professional occupations) is 

$50,955, and the median for non-State, 

merit-staffed office support specialists is 

$43,602. 

Michigan also reported that the 

median annual salary plus benefits and 

other associated employment costs for 

State merit-staffed State administrative 

managers is $189,639, the median for 

State merit-staffed migrant service 

workers is $100,894, and the median for 

State merit-staffed office secretaries is 

$102,135.27

The Department did not adjust the 

annual wages to account for fringe 

benefits or overhead costs because the 

wages reported by Michigan already 

included benefits and other 

employment costs. The Department 

calculated the difference between the 

fully loaded wage rates of the 192 

current non-State-merit staff and 192 

potential State merit staff. The wage cost 

increase for Michigan is estimated at 

$10,489,704 per year.28

In total, the proposed rule is expected 

to have annual transfer payments of 

$10,109,091 for Delaware, 

Massachusetts, and Michigan 

(=¥$2,225¥$378,387 + $10,489,704). 

The Department continues to seek data 

from Colorado and intends to include in 

the final rule an analysis of any 

pertinent data received. 

This proposed rule may impact the 

demographic composition of the staff 

delivering ES labor exchange services. 

State government employees are more 

likely than private sector employees to 

be women or black. Current Population 

Survey data show that 60 percent of 

State government employees in 2020 

were women compared to 46 percent of 

private sector employees. With respect 

to race, 75 percent of State government 

employees in 2020 were white 

compared to 78 percent of employees in 

the private sector, 15 percent of State 

government employees were black 

compared to 12 percent of employees in 

the private sector, and 6 percent of State 

government employees were Asian 

compared to 7 percent of employees in 

the private sector. As far as the ethnic 

composition of these two labor forces, 

12 percent of State government 

employees in 2020 were Hispanic 

compared to 18 percent of employees in 

the private sector.29

3. Nonquantifiable Benefits 

The Department is proposing to 

reinstate the longstanding requirement 

that States use only State merit staff to 

deliver ES labor exchange services, with 

no exceptions. 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, would require that ES 

labor exchange services be provided 

only by State merit staff because UI 

services are required to be delivered 

solely by State merit staff pursuant to 

sec. 303(a)(1) of the Social Security Act. 

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. 

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 

services, 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 


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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 effectively and 

equitably to UI beneficiaries and other 

ES customers. 

The Department is also proposing 

amendments to the regulations 

governing ES labor exchange services 

provided to MSFWs, the Monitor 

Advocate System, and the Complaint 

System. These amendments would 

remove redundancies, clarify 

requirements, and enhance equity and 

inclusion for farmworkers in the ES 

system. 

4. Summary 

Exhibit 1 shows the annualized rule 

familiarization costs, IC costs, and 

transfer payments at discount rates of 3 

percent and 7 percent. The proposed 

rule is expected to have first-year rule 

familiarization costs of $4,439 in 2020 

dollars, first-year IC costs of $10.0 

million in 2020 dollars, and first-year 

transfer payments of $10.1 million in 

2020 dollars. Over the 10-year analysis 

period, the annualized rule 

familiarization costs are estimated at 

$591 at a discount rate of 7 percent in 

2020 dollars, the annualized IC costs are 

estimated at $9.8 million at a discount 

rate of 7 percent in 2020 dollars, and 

annualized transfer payments are 

estimated at $10.1 million at a discount 

rate of 7 percent in 2020 dollars. 

Due to data limitations, the 

Department is unable to quantify 

transition costs such as recruitment, 

training, and technology expenses that 

would be incurred by the four States 

(i.e., Colorado, Delaware, 

Massachusetts, and Michigan) that 

currently have non-State-merit staff 

providing some ES labor exchange 

services. 

5. 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 return to the pre2020 Wagner-Peyser Act regulations, 

reinstituting the State merit-staffing 

requirement for all States except for the 

three States previously operating as 

exceptions: Colorado, Massachusetts, 

and Michigan. After careful 

consideration, the Department is not 

pursuing this alternative. These States 

operate ES by devolving it to the local 

level where it can be managed alongside 

WIOA title I services. While such 

alignment with WIOA title I has some 

value, it 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 administration and 

adjudication during times of high need. 

Therefore, the Department is proposing 

that all States, including those that 

previously operated as demonstration 

States, come into compliance with the 

merit-staffing requirement. 

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 significant interruption 

to ES labor exchange services in the four 

States not already operating in 

compliance with the proposed rule. 

Colorado, Delaware, Massachusetts, and 

Michigan would need to rapidly shift 

existing staff or hire new staff and may 

find themselves in violation of contracts 

for services negotiated after the 2020 

Final Rule. The Department recognizes 

that this alternative would be a 

substantial change for those States that 

have relied on other staffing 

arrangements and they may need time to 

make adjustments to personnel, 

contractual arrangements, and service 

provision. Accordingly, the Department 

is proposing to allow those States 18 

months from the effective date of the 

final rule to come into compliance with 

the 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS2EP20AP22.000</GPH>

2022 $ $ 10029091 

2023 $ - $ 911)1091 

2024 $ - $ 9801091 $ 

4 2025 $ - $ 9 801091 $ 9801 $ 

s 2026 $ - $ 9 801091 $ 9801091 $ 10109091 

6 20Zl $ - $ 9801091 $ 9801091 s 10109091 

7 2028 s - $ 9801091 $ 9801091 $ 10109091 

8 2029 $ - $ 9 801091 $ 9801091 $ 10109091 

9 2030 $ - $ 9801091 $ 9 091 $ 10109 

10 2031 $ - $ 9 801091 $ 9. 091 $ 10109 

Annualized with 7%4 $ 591 $ 9 831:429 $ 9 020 $ 10109 

Annualized with 3%cl $ sos $ 9.827.()41 $ 9821546 s 10109 
23728 Federal Register / Vol. 87, No. 76 / Wednesday, April 20, 2022 / Proposed Rules 

Department to evaluate the economic 

impact of this proposed 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 proposed rule 

would impose a significant economic 

impact on a substantial number of such 

small entities. The Department 

concludes that this proposed rule does 

not regulate any small entities directly, 

so any regulatory effect on small entities 

will be indirect. Accordingly, the 

Department has determined this 

proposed rule would 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 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 approved by OMB under the PRA 

and 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 proposed rule. This provides the 

public the opportunity to submit 

comments on the ICs, either directly to 

the Department or to OMB. The 60-day 

period for the public to submit 

comments begins with the submission 

of the ICRs to OMB. Comments may be 

submitted electronically through 

https://www.regulations.gov. See the 

ADDRESSES section of this proposed rule 

for more information about submitting 

comments. 

The ICs in this proposed 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 proposed 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 NPRM proposes to add 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 proposed 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. The NPRM also proposes 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 proposed 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: 10,610,629,971. 

Estimated Total Annual Other Burden 

Costs: $9,719,287. 

Regulations Sections: §§ 653.103(a), 

653.109(a)(10). 

Agency: DOL–ETA. 

Title of Collection: Agricultural 

Recruitment System Forms Affecting 

Migrant and Seasonal Farmworkers. 

Type of Review: New Collection. 

OMB Control Number: 1205–0NEW. 

Description: This NPRM proposes to 

add a new IC to address the requirement 

for SWAs to provide certain workers 

with checklists summarizing wages, 

working conditions, and other material 

specifications. Specifically, pursuant to 

proposed 20 CFR 653.501(d)(6), ES staff 

would be required to provide 

farmworkers with ‘‘checklists showing 

wage payment schedules, working 

conditions, and other material 

specifications of the clearance order.’’ In 

addition, pursuant to proposed 20 CFR 

653.501(d)(10), SWA 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 Department also 

proposes that this ICR include a new 

Agricultural Clearance Order Form, ETA 

Form 790B, which will be attached to 

the Agricultural Clearance Order Form, 

ETA Form 790 (see OMB Control 

Number 1205–0466). The Department 

previously proposed the ETA Form 

790B through OMB Control Number 

1205–0134, which is an expired ICR for 

which a submission requesting 

reinstatement is currently pending at 

OMB. The Department proposes to 

withdraw OMB Control Number 1205– 

0134 and to instead attach ETA Form 

790B to this ICR because the subjects are 

related. ETA Form 790B is only used for 

employers who submit clearance orders 

requesting U.S. workers for temporary 

agricultural jobs, which are not attached 

to requests for foreign workers through 

the H–2A visa program. ETA is 

including the estimated burden to the 

public for the completion of ETA Form 

790 in addition to the estimated burden 

for the ETA Form 790B, because 

employers would fill out both forms. 

Affected Public: State Governments, 

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profits, not-for-profit institutions, and 

farms. 

Obligation to Respond: Required to 

Obtain or Retain Benefits. 

Estimated Total Annual Respondents: 

18,180. 

Estimated Total Annual Responses: 

18,180. 

Estimated Total Annual Burden 

Hours: 11,606. 

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 proposed rule would 

require four areas to be changed in this 

ICR. First, there would be 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 proposed changes, the Department 

also proposes to revise the ETA Form 

5148 to include the proposed content. 

Second, the Department proposes to 

make 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 

proposes to add a new IC to conform 

with the proposed change to 

§ 653.107(b)(8), which is proposed to 

require 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 

proposes to add an IC to this ICR to 

explain the recordkeeping requirements 

established at § 658.410(c) regarding 

maintaining a central complaint log. 

The Department does not propose to 

establish a required form, but rather to 

describe the minimum contents that 

must be included in any complaint logs 

SWAs create. In addition, the 

Department proposes to revise the ETA 

Form 5148 to conform with proposed 

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: 

9,050. 

Estimated Total Annual Burden 

Hours: 28,240. 

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 proposed changes in 

this rulemaking described subsequently 

will eventually be included in OMB 

Control Number 1205–0522 (Expires 01/ 

31/2023). As a result of the upcoming 

expiration date for 1205–0522, the 

Department will soon begin the process 

to request an extension for use of the 

ICR as required under the PRA. 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 

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 proposed rule would require all 

States to provide Wagner-Peyser Act ES 

services through State merit staff. The 

Department proposes to create 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 

proposes to reinstitute the SWA’s 

requirement to provide assurances that 

it will use State merit staff to deliver ES 

services. The NPRM also proposes 

several clarifications regarding outreach 

and significant MSFW one-stop center 

staffing, including changes to the 

content of the AOP. The proposed 

changes will require revision to the AOP 

instructions. 

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. 

As noted in the ADDRESSES section of 

this proposed rule, interested parties 

may send comments about the ICs to the 

Department, OMB, or both throughout 

the 60-day comment period. To help 

ensure appropriate consideration, such 

comments should mention the 

applicable OMB control number(s). 

The Department and OMB are 

particularly interested in comments 

that: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology (e.g., permitting 

electronic submission of responses). 

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 


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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. The 

Department has reviewed the proposed 

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 proposed 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 proposed 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 proposed 

rule, if finalized, 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. 

F. Executive Order 13175 (Indian Tribal 

Governments) 

The Department has reviewed this 

proposed 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 NPRM 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 

proposes to amend 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 

continues to read as follows: 

Authority: 29 U.S.C. 49a; 38 U.S.C. part III, 

4101, 4211; Secs. 503, 3, 189, 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,’’ 

‘‘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, as 

set forth in § 658.419 of this chapter. 

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, and 1627. 

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. 


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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 

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 who 

are funded, in whole or in part, by 

Wagner-Peyser Act funds. ES staff 

includes a State Workforce Agency 

(SWA) official. 

* * * * * 

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 team 

member(s)), or outreach staff to the 

working and living areas of migrant and 

seasonal farmworkers (MSFWs), to 

discuss ES services, farmworker rights 

and protections, and other employmentrelated programs with MSFWs, crew 

leaders, and employers. 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 

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 


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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 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. 

* * * * * 

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 

continues to read as follows: 

Authority: 29 U.S.C. 491–2; 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), (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: 

(1) * * * 

(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, 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. Revise the heading for Subpart C to 

read as follows: 

Subpart C—Employment Service 

Services in a One-Stop Delivery 

System Environment 

■ 6. Amend § 652.204 by revising the 

section heading and the first sentence to 

read as follows: 

§ 652.204 Must funds authorized under the 

Governor’s Reserve flow through the onestop delivery system? 

No, sec. 7(b) of the Wagner-Peyser Act 

provides that 10 percent of the State’s 

allotment under the Wagner-Peyser Act 

is reserved for use by the Governor for 

performance incentives, supporting 

exemplary models of service delivery, 

professional development and career 

advancement of ES staff as applicable, 

and services for groups with special 

needs. * * * 

■ 7. Amend § 652.205 by revising 

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

§ 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 

* * * * * 

■ 8. 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. 

* * * * * 

■ 9. Revise § 652.215 to read as follows: 

§ 652.215 What staffing models must be 

used to deliver services in the Employment 

Service? 

(a) Staffing requirement. 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. 

(b) Effective date. This section 

becomes effective [60 DAYS AFTER 

DATE OF PUBLICATION OF THE 

FINAL RULE IN THE Federal Register]. 

(c) Compliance date. All obligations 

in this section become enforceable [18 

MONTHS AFTER EFFECTIVE DATE OF 

THE FINAL RULE]. 

PART 653—SERVICES OF THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE SYSTEM 

■ 10. 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. 

■ 11. 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. 

* * * * * 

■ 12. 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. 

■ 13. Amend § 653.102 by revising the 

third sentence and removing the fourth 

sentence to read as follows: 


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§ 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. 

■ 14. 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 limited English proficient (LEP) 

individuals, including MSFWs who are 

LEP 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. 

* * * * * 

■ 15. Amend § 653.107 by: 

■ a. Revising the section heading and 

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

(a)(3)(i); 

■ b. Adding paragraphs (a)(3)(i)(A) and 

(B); and 

■ c. Revising paragraphs (a)(3)(ii), (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)(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. SWA 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: 

(i) SWAs must 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) SWAs must 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 employ 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. In the 20 States with the 

highest estimated year-round MSFW 

activity, as identified by the 

Department, there must be full-time, 

year-round outreach staff to conduct 

outreach duties. Full-time means each 

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. 

* * * * * 

(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, including 

identifying the number of full-time and 


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part-time outreach staff positions in the 

State and demonstrating that there is 

sufficient outreach staff to contact a 

majority of MSFWs in all the State’s 

service areas 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. 

* * * * * 

■ 16. 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. 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 

monitoring 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. 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 SMA functions. 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. 

(f) All SMAs and their staff must 

attend training session(s) offered by the 

Regional Monitor Advocate(s) and 

National Monitor Advocate and their 

team 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 


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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 

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 


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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 

ES offices, 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. 

■ 17. 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), and 

(h)(1). 

The revision, redesignation, and 

additions read as follows: 

§ 653.109 Data collection and performance 

accountability measures. 

* * * * * 

(b) * * * 

(9) Agricultural clearance orders 

(including field checks), MSFW 

complaints and apparent violations, and 

monitoring activities; 

(10) The number of reportable 

individuals and participants who are 

MSFWs; and 

(11) Any other data required by the 

Department. 

* * * * * 

(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 ES offices, 

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. 

* * * * * 

■ 18. 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. 

* * * * * 

■ 19. 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. 

* * * * * 

■ 20. Amend § 653.501 by: 

■ a. Revising the introductory text of 

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

■ b. Adding paragraph (b)(4); 

■ c. Revising paragraph (c)(3) 

introductory text; and 

■ d. 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 

* * * * * 

(b) * * * 

(4) Prior to placing a job order into 

intrastate or interstate clearance, ES staff 

must consult the Department’s Office of 

Foreign Labor Certification and Wage 

and Hour Division debarment lists. If 

the employer requesting access to the 

clearance system is currently debarred 

or disqualified from participating in one 

of the Department’s foreign labor 

certification programs, the SWA must 

initiate discontinuation of services 

pursuant to part 658, subpart F of this 

chapter. 

(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 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 


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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. 

* * * * * 

■ 21. 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. 

* * * * * 

■ 22. 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. 

* * * * * 

PART 658—ADMINISTRATIVE 

PROVISIONS GOVERNING THE 

WAGNER-PEYSER ACT EMPLOYMENT 

SERVICE 

■ 23. 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. 

■ 24. 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. 

■ 25. Amend § 658.410 by: 

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

and (m); 

■ b. Removing paragraph (n); and 

■ c. Redesignating and revising 

paragraph (o) as 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 

local 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. 

■ 26. 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), 

(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)(i), 

(d)(1)(ii)(A) through (D), (d)(1)(iii) and 

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

(d)(4), the introductory text of (d)(5)(i) 

and (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 


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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 

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 


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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. 

* * * * * 

■ 27. 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. 

* * * * * 

■ 28. Amend § 658.419 by revising 

paragraph (a) to read as follows: 

§ 658.419 Apparent violations. 

(a) If an ES staff member observes, has 

reason to believe, or is in receipt of 

information regarding a suspected 

violation of employment-related laws or 

ES regulations by an employer, except 

as provided at § 653.503 of this chapter 

(field checks) or § 658.411 (complaints), 

the employee must document the 

apparent violation and refer this 

information to the ES Office Manager, 

who must document the apparent 

violation in the Complaint System log, 

as described at § 658.410. Apparent 

violations of nondiscrimination laws 

must be processed according to the 

procedures described in § 658.411(c). 

* * * * * 

■ 29. 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, in violation of the Immigration 

and Nationality Act’s antidiscrimination provision found at 8 

U.S.C. 1324b, must immediately 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. 

* * * * * 

■ 30. 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. 

* * * * * 

■ 31. Amend § 658.422 by revising the 

section heading and paragraphs (a) 

through (c) to read as follows: 


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§ 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). 

* * * * * 

■ 32. 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. 

* * * * * 

■ 33. 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: 

* * * * * 

■ 34. Amend § 658.501 by revising 

paragraphs (a)(4), (b), and (c) to read as 

follows: 

§ 658.501 Basis for discontinuation of 

services. 

(a) * * * 

(4) Are found by a final determination 

by an appropriate enforcement agency 

to have violated any employmentrelated laws and notification of this 

final determination has been provided 

to the Department or the SWA by that 

enforcement agency or are currently 

debarred or disqualified from 

participating in one of the Department’s 

foreign labor certification programs; 

* * * * * 

(b) SWA officials may discontinue 

services immediately if, in the judgment 

of the State Administrator, exhaustion 

of the administrative procedures set 

forth in § 658.502 would cause 

substantial harm to a significant number 

of workers. In such instances, 

procedures at §§ 658.503 and 658.504 

must be followed. 

(c) If it comes to the attention of an 

ES office or a SWA that an employer 

participating in the ES may not have 

complied with the terms of its 

temporary labor certification, under, for 

example the H–2A and H–2B visa 

programs, SWA officials must engage in 

the procedures for discontinuation of 

services to employers pursuant to 

§ 658.502 and simultaneously notify the 

Chicago National Processing Center 

(CNPC) of the alleged non-compliance 

for investigation and consideration of 

ineligibility pursuant to § 655.184 or 

§ 655.73 of this chapter respectively for 

subsequent temporary labor 

certification. 

* * * * * 

■ 35. Amend § 658.502 by revising the 

introductory text of paragraphs (a)(1) 

through (3), (a)(4), introductory text of 

(a)(5) through (7), (a)(7)(i) and (iii), and 

(b) to read as follows: 

§ 658.502 Notification to employers. 

(a) * * * 

(1) Where the decision is based on 

submittal and refusal to alter or to 

withdraw job orders containing 

specifications contrary to employmentrelated laws, the SWA must specify the 

date the order was submitted, the job 

order involved, the specifications 

contrary to employment-related laws 

and the laws involved. The SWA must 

notify the employer in writing that all 

ES services will be terminated in 20 

working days unless the employer 

within that time: * * * 

(2) Where the decision is based on the 

employer’s submittal of an order and 

refusal to provide assurances that the 

job is in compliance with employmentrelated laws or to withdraw the order, 

the SWA must specify the date the order 

was submitted, the job order involved, 

and the assurances involved. The 

employer must be notified that all ES 

services will be terminated within 20 

working days unless the employer 

within that time: * * * 

(3) Where the decision is based on a 

finding that the employer has 

misrepresented the terms or conditions 

of employment specified on job orders 

or failed to comply fully with 

assurances made on job orders, the SWA 

must specify the basis for that 

determination. The employer must be 

notified that all ES services will be 

terminated in 20 working days unless 

the employer within that time: * * * 

(4) Where the decision is based on a 

final determination by an enforcement 

agency or the employer is currently 

debarred or disqualified from 

participating in one of the Department’s 

foreign labor certification programs, the 

SWA must specify the enforcement 

agency’s findings of facts and 

conclusions of law and, if applicable, 

the time period for which the employer 

is debarred or disqualified from 

participating in one of the Department’s 

foreign labor certification programs. The 

employer must be notified that all ES 

services will be terminated in 20 

working days unless the employer 

within that time: 

(i) Provides adequate evidence that 

the enforcement agency has reversed its 

ruling and that the employer did not 

violate employment-related laws; or 

(ii) Provides adequate evidence that 

the Department’s disbarment or 

disqualification is no longer in effect or 

will terminate before the employer’s 

anticipated date of need; or 

(iii) Provides adequate evidence that 

the appropriate fines have been paid 

and/or appropriate restitution has been 

made; and 

(iv) Provides assurances that any 

policies, procedures, or conditions 

responsible for the violation have been 

corrected and the same or similar 

violations are not likely to occur in the 

future. 

(5) Where the decision is based on a 

finding of a violation of ES regulations 

under § 658.411, the SWA must specify 

the finding. The employer must be 

notified that all ES services will be 

terminated in 20 working days unless 

the employer within that time: * * * 

(6) Where the decision is based on an 

employer’s failure to accept qualified 

workers referred through the clearance 

system, the SWA must specify the 

workers referred and not accepted. The 

employer must be notified that all ES 

services will be terminated in 20 

working days unless the employer 

within that time: * * * 

(7) Where the decision is based on 

lack of cooperation in the conduct of 

field checks, the SWA must specify the 

lack of cooperation. The employer must 

be notified that all ES services will be 

terminated in 20 working days unless 

the employer within that time: 

(i) Provides adequate evidence that it 

did cooperate; or 

* * * * * 

(iii) Provides assurances that it will 

cooperate in future field checks in 

further activity; or 

* * * * * 


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(b) If the employer chooses to respond 

pursuant to this section by providing 

documentary evidence or assurances, it 

must at the same time request a hearing 

if such hearing is desired in the event 

that the SWA does not accept the 

documentary evidence or assurances as 

adequate. 

* * * * * 

■ 36. Amend § 658.504 by revising 

paragraphs (a)(2)(ii) and (b) to read as 

follow: 

§ 658.504 Reinstatement of services. 

(a) * * * 

(2) * * * 

(ii) The employer provides adequate 

evidence that it has responded 

adequately to any findings of an 

enforcement agency, SWA, or ETA, 

including restitution to the complainant 

and the payment of any fines, that were 

the basis of the discontinuation of 

services. 

(b) The SWA must notify the 

employer requesting reinstatement 

within 20 working days whether its 

request has been granted. If the State 

denies the request for reinstatement, the 

basis for the denial must be specified 

and the employer must be notified that 

it may request a hearing within 20 

working days. 

* * * * * 

■ 37. Amend § 658.602 by revising 

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

introductory text paragraph (j), (j)(8), (l) 

through (n), introductory text paragraph 

(o), (p) through (r), introductory text 

paragraph(s), (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 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 


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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 

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 


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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. 

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) * * * One copy must be retained. 

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 


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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 

(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. 

* * * * * 

Angela Hanks, 

Acting Assistant Secretary for Employment 

and Training, Labor. 

[FR Doc. 2022–07628 Filed 4–19–22; 8:45 am] 

BILLING CODE 4510–FN–P 


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