[Federal Register Volume 87, Number 76 (Wednesday, April 20, 2022)]
[Proposed Rules]
[Pages 23700-23744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07628]



[[Page 23699]]

Vol. 87

Wednesday,

No. 76

April 20, 2022

Part II





Department of Labor





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Employment and Training Administration





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20 CFR Parts 651, 652, 653, et al.





Wagner-Peyser Act Staffing; Proposed Rule

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

[[Page 23700]]


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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.

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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 Wagner-Peyser 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 Employment-
Related 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

[[Page 23701]]

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 Wagner-Peyser Act directs the Secretary of Labor 
(Secretary) to assist States by developing and prescribing minimum 
standards of efficiency and promoting uniformity in the operation of 
the system of public employment-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 gender-inclusive 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 Wagner-Peyser 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.
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    \1\ Workforce 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).
    \2\ See WIOA DOL-only Rule, 81 FR at 56267 and 56341 (2016).
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    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.
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    \3\ 29 U.S.C. 49.
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    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 cross-trained 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 cross-
trained 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 
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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.
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    \4\ Federal Unemployment Tax Act (FUTA) sec. 3304(a)(1); Social 
Security Act (SSA) sec. 303(a)(2).
    \5\ SSA 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.''
    \6\ See 42 U.S.C. 503(a)(1).
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    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 time-
limited 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.
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    \7\ See 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.
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    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 Wagner-Peyser 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 Wagner-Peyser 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 cross-trained 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.
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    \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).
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    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-by-section 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.

[[Page 23703]]

III. Section-by-Section Discussion of Proposed Rule

A. Technical Amendments and Global Edits

    To conform with the proposed changes to the definition of Wagner-
Peyser Act Employment Service (ES) also known as Employment Service 
(ES) in Sec.  651.10, the Department proposes making technical changes 
to replace the phrases ``employment services,'' ``Wagner-Peyser Act 
services,'' and ``services provided under the Wagner-Peyser Act'' with 
``ES services.'' Changes also have been made to replace the phrase 
``employment office'' with ``ES office,'' and ``Wagner-Peyser Act 
participants'' with ``ES participants.'' These changes will simplify 
and standardize the use of terminology. The 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 Sec.  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 Sec. Sec.  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 
gender-inclusive 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 Sec. Sec.  
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 Sec. Sec.  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 third-
person 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 Sec.  
651.10 in the definition of seasonal farmworker. Edits are also made to 
Sec. Sec.  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 (Sec.  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 Sec.  
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 Sec.  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 Sec.  658.419. The proposed definition is derived from 
existing regulatory language at Sec.  658.419, which describes that an 
apparent violation is a suspected violation of employment-related 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 Wagner-Peyser Act Employment 
Service (ES) also known as Employment Service (ES) explains that ES 
offices refers to ES offices described under the Wagner-Peyser 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 Sec.  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.

[[Page 23704]]

    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 Wagner-Peyser 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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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,

[[Page 23705]]

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 Sec.  653.107(b). As noted in Sec.  
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 Sec.  653.108(o) and have adequate time 
to complete the extensive duties described in Sec.  653.108. While an 
SMA may join ongoing outreach efforts, Sec.  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 one-stop 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 Sec. Sec.  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 Sec.  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 one-stop 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 Sec.  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,

[[Page 23706]]

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 Sec.  
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 Sec.  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 Sec.  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 Wagner-Peyser 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.
---------------------------------------------------------------------------

    \9\ See, 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).
---------------------------------------------------------------------------

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 one-stop 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 Sec.  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 Sec.  652.215 to 
require all States, including the historically exempted ``demonstration 
States,'' to provide labor exchange services described in Sec.  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 (Sec.  651.10), 
ES staff will exclusively refer to State merit staff.
    Historically, the Department relied on authority under sec. 3(a) of 
the Wagner-Peyser Act, which requires the

[[Page 23707]]

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 
Wagner-Peyser 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.
---------------------------------------------------------------------------

    \10\ See 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).
---------------------------------------------------------------------------

    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 cross-trained 
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 merit-staff employees to 
provide ES services. This proposed rule ensures States are universally 
equipped to use cross-trained 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 Sec.  652.3 be provided by ES 
staff. This revision is proposed to reinstate the State merit-staffing 
requirement and align with the proposed definitions of ES and ES staff 
in Sec.  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 Sec.  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 
non-merit 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 merit-
staffing 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

[[Page 23708]]

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 Wagner-Peyser 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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 one-stop centers, and adding a reference 
to the broader language access requirements at Sec.  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 one-stop 
centers from Sec.  651.10. Accordingly, the Department proposes to add 
a broader language access requirement to Sec.  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 Sec.  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 Sec.  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

[[Page 23709]]

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 Sec.  653.101.
    In Sec.  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 Sec.  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 Sec.  
653.107 to read ``Outreach responsibilities and Agricultural Outreach 
Plan'' to provide greater clarity.
    The Department proposes to revise Sec.  653.107(a)(1) in several 
ways. First, the Department proposes to move to Sec.  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 Sec.  
653.107(a)(1) more logically fits in Sec.  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 year-round. As described at 20 CFR 653.107(a)(4), in significant 
MSFW States, there must be full-time, year-round 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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  653.107.
    The Department proposes several revisions to Sec.  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.

[[Page 23710]]

    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 full-time 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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  653.107(a)(4) by adding the 
sentence that the Department proposes to remove from Sec.  
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 Sec.  653.107(a)(4) to add a 
sentence clarifying what it means to have full-time 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 Sec.  653.107(b). This 
requirement is important because having each outreach staff person 
engage in outreach on a full-time 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 
year-round MSFW activity, as identified by the Department and defined 
as significant MSFW States at Sec.  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 Sec.  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 Sec.  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 Sec.  653.107(b) by adding 
that outreach staff responsibilities include the activities identified 
in Sec.  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

[[Page 23711]]

construction of the sentence and its relationship to the following 
paragraphs.
    The Department proposes two revisions to Sec.  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 Sec.  
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 Sec.  653.107(b)(3) to replace 
``outreach workers'' with ``outreach staff'' to align with the proposed 
definition of outreach staff at Sec.  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 Sec.  651.10 defines outreach staff as ES staff with 
responsibilities described at Sec.  653.107(b), the proposed State 
merit-staffing requirement applies to outreach staff.
    The Department proposes several revisions to Sec.  653.107(b)(7). 
First, the Department proposes to replace the reference to outreach 
staff being trained in ``local office'' procedures with ``one-stop 
center'' procedures to align with the ES office definition at proposed 
Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
653.107(d).
    The Department proposes to replace the requirement in Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  
653.107(d)(2)(v) that the AOP must provide an assurance that the SWA is 
complying with the requirements under Sec.  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 Sec.  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 Sec.  653.107(d)(4) to clarify 
that the AOP must be submitted in accordance with Sec.  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 Sec.  653.107(d)(5). 
First, the Department proposes a technical edit to change the reference 
from Sec.  653.108(s) to Sec.  653.108(u) due to restructuring 
paragraphs at Sec.  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.

[[Page 23712]]

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 Sec.  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 Sec.  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 non-compliance 
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 Sec.  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 Sec.  
653.108(b) that the SMA be a SWA official because the proposed edits to 
Sec.  651.10 remove SWA official as a defined term. The Department 
proposes to revise Sec.  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 Sec.  651.10 
and to revise the definition of ES staff in Sec.  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 Sec.  653.108(b) for 
the SMA to be a SWA Official and to revise Sec.  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 Sec.  
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, Sec.  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 
Sec.  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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    To achieve these results, the Department proposes to strengthen the 
status of the SMA in several ways. First, the Department proposes at 
Sec.  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

[[Page 23713]]

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 Sec.  
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 Sec.  653.108(d) and the addition 
of paragraph (e). Specifically, the Department proposes to revise Sec.  
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 Sec.  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 full-time 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 full-time 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 Sec.  653.108(e) (now proposed 
Sec.  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 Sec.  653.108(f) and (g) due 
to updated sequencing.
    The Department proposes to revise Sec.  653.108(g)(1) (now proposed 
to be Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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.

[[Page 23714]]

    The Department proposes to redesignate Sec.  653.108(g)(1) as Sec.  
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 Sec.  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 Sec.  653.108(g)(2) to be 
Sec.  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 one-stop 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 Sec.  653.108(g)(2)(i)(D) (proposed Sec.  
653.108(h)(3)(i)(D)) are the complaint logs required by the regulations 
under part 658 of this chapter.
    At Sec.  653.108(g)(2)(iv), which is proposed Sec.  
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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  653.108.
    Paragraph (g)(5), proposed Sec.  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 
Sec.  651.10.
    The Department proposes to revise Sec.  653.108(g)(6), proposed 
paragraph

[[Page 23715]]

(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 Sec.  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 Sec.  653.108(i) as Sec.  
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 Sec.  653.108(j) and (k), as 
a technical edit.
    The Department proposes a new provision at proposed Sec.  
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 Sec.  653.108(l) as Sec.  
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 Sec.  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 State-level 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 Sec.  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 Sec.  653.108(n) through (p) 
as Sec.  653.108(o) through (q), as a technical edit.
    The Department proposes to redesignate Sec.  653.108(q) as Sec.  
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 Sec.  
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 Sec.  653.108(r) and (s) as 
Sec.  653.108(t) and (u), respectively, as a technical edit.
    The Department proposes to redesignate Sec.  653.108(s) as Sec.  
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 Sec.  653.108(s)(2), proposed 
Sec.  653.108(u)(2), to conform with proposed edits at Sec.  
653.108(c). Specifically, Sec.  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 Sec.  653.108(c).
    The Department proposes to amend Sec.  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 Sec.  
653.108(u)(3)(i) and (ii), which would outline the

[[Page 23716]]

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 Sec.  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 Sec.  653.108(s)(4) (iii), 
proposed Sec.  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 Sec.  653.108(s)(5), proposed 
Sec.  653.108(u)(5), to specify that when the SMA summarizes the 
outreach efforts undertaken by all significant and non-significant MSFW 
ES offices in the State, the SMA must include the results of those 
efforts and analyze whether the outreach levels and results were 
adequate. 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 Sec.  653.107, including whether outreach staff are able to reach 
the majority of MSFWs in the State.
    The Department proposes to revise Sec.  653.108(s)(7), proposed 
Sec.  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 Sec.  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 Sec.  653.108(s)(10), proposed 
Sec.  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 Sec.  
653.108(s)(11), proposed Sec.  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 Sec.  
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 Sec.  653.111, to require the SMA to summarize the 
State's efforts to comply with Sec.  653.111. The Department 
anticipates that this change will put greater emphasis on compliance 
with the requirements of Sec.  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 Sec.  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 Sec.  653.109(b)(10) 
as Sec.  653.109(b)(11), as a technical edit to account for the 
insertion of proposed Sec.  653.109(b)(10).
    Third, the Department proposes several revisions to Sec.  
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

[[Page 23717]]

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 Sec.  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 Sec.  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 Sec.  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 one-stop 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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  651.10.
    The Department proposes to add a fourth paragraph to Sec.  
653.501(b), at Sec.  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 (Sec.  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 Sec.  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 Sec.  653.501(d). First, the Department proposes to 
revise Sec.  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 Sec.  
651.10 by using the defined term, ES office.
    Second, the Department proposes to revise Sec.  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 Sec.  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 Sec.  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

[[Page 23718]]

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 Sec.  
653.501(c)(1)(iv).
    Finally, the Department proposes to revise Sec.  653.501(d)(11) to 
replace the reference to the Department's ``ARS Handbook'' with a 
reference to ``Departmental guidance.'' As proposed, Sec.  
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 Sec.  653.503. First, the 
Department proposes to revise Sec.  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 Sec.  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 Sec.  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 
Sec.  651.10, remove redundancies and make other non-substantive 
technical edits, clarify or modify certain requirements, and improve 
equity and inclusion for MSFWs in the ES system. 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 Sec.  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 Sec.  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 Sec.  658.410(c)(6) 
that the complaint log must include actions taken on apparent 
violations and, instead, add several specific references in Sec.  
658.410(c)(1) through (6) that explain that each requirement also 
applies to apparent violations. These proposed changes are intended to 
clarify

[[Page 23719]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  
658.410(n). For these reasons, the reference in Sec.  658.410(n) is no 
longer necessary. Like the reasons laid out previously in the preamble 
concerning proposed changes to Sec.  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 Sec.  
658.410(n), the Department proposes to redesignate the existing 
regulatory text at Sec.  658.410(o) as Sec.  658.410(n).
Section 658.411 Action on Complaints
    The Department proposes to amend Sec.  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 Sec.  658.411 covers complaints regarding an 
employment-related law. The Department proposes to amend Sec.  
658.411(b)(1) to replace ``a'' with ``an'' before ``ES office'' as a

[[Page 23720]]

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 Sec.  658.411(b)(1), to add a reference 
to Sec.  658.411(c). This revision would clarify that the procedures in 
Sec.  658.411(c) apply to any employment-related 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 Sec.  
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 Sec.  
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 Sec.  
658.411(b)(1)(ii)(B), the Department proposes to amend Sec.  
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, time-sensitive 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 Sec.  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 
Sec.  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 employment-related 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 MSFW-related 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 
employment-related 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 Sec.  
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 State-level 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

[[Page 23721]]

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 State-level E.O. Officer--will 
determine how the complaint should be handled and by whom.
    The Department proposes to amend Sec.  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 Sec.  
658.411(d)(1) to clarify that the procedures in Sec.  658.411(c) apply 
to all ES complaints alleging violations of nondiscrimination laws, 
including violations of EEOC regulations, the Immigration and 
Nationality Act's anti-discrimination provision, or laws enforced by 
CRC.
    The Department proposes to rephrase Sec.  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 Sec.  658.411(b)(3), so that 
processes for both ES complaints and employment-related law complaints 
(other than alleged violations of rights under the EEOC regulations or 
laws enforced by CRC, as described at Sec.  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 Sec.  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 Sec.  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 Sec.  658.411(d)(5)(i) to change 
``ES or SWA officials'' to ``the SWA'' because the proposed changes to 
Sec.  651.10 remove the definition of SWA official.
    The Department proposes to amend Sec.  658.411(d)(5)(ii) in three 
ways. First, the Department proposes to change ``SWA officials'' to 
``the SWA'' because the proposed changes to Sec.  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 Sec.  658.411(d)(5)(i)(D). Lastly, the Department 
proposes to change ``working days'' to ``business days.'' Under Sec.  
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 Sec.  
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 Sec.  658.411(d)(5)(iii)(G) to 
change ``SWA official'' to ``SWA'' because the proposed changes to 
Sec.  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 Sec.  
658.419(a). First, the Department proposes to update Sec.  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 Sec.  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 
Sec.  653.107(b). This change will make Sec.  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 Sec.  658.419(a) to ``apparent violation'' 
for clarity. In addition, the Department proposes to add a sentence to 
Sec.  658.419(a) to clarify that the apparent violation must be 
documented in the Complaint System log as described at Sec.  658.410.
    Finally, the Department proposes to add a sentence at the end of 
Sec.  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 Sec.  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 Sec.  658.420. First, 
the Department proposes to revise Sec.  658.420(b) to conform with the 
simplified process for referring nondiscrimination complaints in 
proposed Sec.  658.411(c). In particular, the Department proposes to 
revise Sec.  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 Sec.  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 Sec.  
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 Sec.  
658.420(b)(1). Third, the Department proposes to make several revisions 
to conform with this deletion--namely, to move the text in existing 
Sec.  658.420(c) to Sec.  658.420(b) and remove all references to 
paragraph (b)(2) in this section.
    Finally, the Department proposes to revise Sec.  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 Sec.  658.422. The existing regulation incorrectly 
references Sec.  658.411, which provides complaint processing

[[Page 23722]]

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 Sec.  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 Sec.  
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 Sec.  
658.420(b)(1).
2. Subpart F--Discontinuation of Services to Employers by the Wagner-
Peyser Act Employment Service
Section 658.501 Basis for Discontinuation of Services
    The Department proposes to amend Sec.  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 Sec.  
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 Sec.  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 Sec.  658.501(b) to correct an 
error in the existing regulatory text, which improperly references 
Sec.  658.501, instead of Sec.  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 Sec.  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 Sec.  
685.501 appears to have been made in error, because Sec.  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 Sec.  658.502, which will clarify that the 
administrative procedures that must otherwise be exhausted are set 
forth in Sec.  658.502. This revision is necessary to clarify when a 
SWA official may discontinue services immediately.
    The Department proposes to amend Sec.  658.501(c) to correct an 
error in the regulatory text like the cross-referencing error in Sec.  
658.501(b). This section incorrectly references the bases on which a 
SWA may discontinue services to an employer in Sec.  658.501(a)(1) 
through (8), instead of the procedures to discontinue such services set 
forth in Sec.  658.502. Accordingly, the Department proposes to replace 
the reference to Sec.  658.501(a)(1) through (8) with a cross reference 
to Sec.  658.502.
    The Department proposes to amend Sec.  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 Sec.  658.501(a)(4) discussed previously, the revisions proposed 
here correspond to the proposed addition in Sec.  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 Sec.  658.602(g) to refer to Sec.  
653.108(a) instead of Sec.  653.108(b). This is necessary to correct 
the inaccurate citation to Sec.  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 Sec.  
658.602(n) to replace the phrase ``in the course of'' with the word 
``during'' for purposes of clarity.
    The Department proposes to amend Sec.  658.602(n)(1) to replace the 
phrase ``outreach workers'' with ``outreach staff'' because outreach 
staff is a defined term in Sec.  651.10. Using the defined term will 
make the regulatory text more clear regarding which staff it 
references.
    The Department proposes to amend Sec.  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 Sec.  658.602(o) to remove ``(8)'' 
from the reference to paragraph (f)(8) as a technical edit. Paragraph 
(f) of Sec.  658.602 does not have a subordinate paragraph (8).
Section 658.603 Employment and Training Administration Regional Office 
Responsibility
    The Department proposes to amend Sec.  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 Sec.  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

[[Page 23723]]

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 Sec.  658.603 addresses RMA training. The 
Department proposes to amend Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 
Sec.  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 Sec.  658.707(b), because Sec.  
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\
---------------------------------------------------------------------------

    \13\ Since 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.
---------------------------------------------------------------------------

    The transfer payments would include the changes in wages and fringe 
benefits for staff providing Wagner-Peyser Act

[[Page 23724]]

ES labor exchange services in the four States that currently have non-
State-merit 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.
---------------------------------------------------------------------------

    \14\ This analysis uses codes from the Standard Occupational 
Classification (SOC) system and the North American Industry 
Classification System (NAICS).
---------------------------------------------------------------------------

    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 
x 61%) + ($43.75 x 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 x 1 hour x 57 jurisdictions).
---------------------------------------------------------------------------

    \15\ BLS, ``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).
    \16\ BLS, ``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.
    \17\ Cody 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-HQ-OPPT-2014-0650-0005 (last visited Aug. 2, 2021).
---------------------------------------------------------------------------

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 x 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 x 61%) + ($26.85 x 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

[[Page 23725]]

estimated at $8,129,913 (= 10,207,047 reportable individuals x 50% x 2 
minutes x $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 x 61%) + ($36.25 x 17%)]. 
Therefore, the annual cost is estimated at $14,713 (= 57 SMAs x 4 hours 
per year x $64.53 per hour).
---------------------------------------------------------------------------

    \18\ Anecdotal evidence from States indicates a range of $2,000 
to $6,000 to add one yes/no question to an existing data collection.
    \19\ BLS, ``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.
    \20\ BLS, ``Occupational Employment and Wage Statistics, 
National Industry-Specific Occupational Employment and Wage 
Estimates, NAICS 999200, SOC 11-9151.'' https://www.bls.gov/oes/current/naics4_999200.htm.
---------------------------------------------------------------------------

    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 x 35 minutes x $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 x 8 hours 
per year x $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 x 3 hours per year x 
$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-State-merit 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 merit-staffed 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\
---------------------------------------------------------------------------

    \21\ BLS, 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \22\ ($61,840-$59,000) x 1.78 + ($43,910-$48,000) x 1.78 = -
$2,225.
---------------------------------------------------------------------------

    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-
State-merit staff are educational, guidance, and career counselors and 
advisors (SOC code 21-1012), 10 percent (or 3 FTEs) are social and 
community service

[[Page 23726]]

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\
---------------------------------------------------------------------------

    \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).
    \24\ BLS, ``OEWS, May 2020 State Occupational Employment and 
Wage Estimates: Massachusetts,'' https://www.bls.gov/oes/current/oes_ma.htm (last visited Aug. 2, 2021).
---------------------------------------------------------------------------

    Massachusetts reported that the median annual salary for State 
merit-staffed ES services representatives and State merit-staffed job 
specialists is $59,689, the median for State merit-staffed 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\
---------------------------------------------------------------------------

    \25\ The 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 merit-staffed program 
managers; and non-State, merit-staffed office and administrative 
support workers with State merit-staffed office support specialists.
    \26\ ($59,689-$69,722) x 24 x 1.78 + ($75,880-$67,309) x 3 x 
1.78 + ($47,176-$46,342) x 3 x 1.78 = -$378,387.
---------------------------------------------------------------------------

    Michigan reported that it currently has approximately 192 FTE non-
State-merit 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-State-merit 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\
---------------------------------------------------------------------------

    \27\ The 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 merit-staffed employees paid at a rate 
similar to migrant service workers; and non-State merit-staffed 
office and office support specialists with State merit-staffed 
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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \28\ ($189,639-$86,494) x 14.3 + ($100,894-$50,955) x 159.3 + 
($102,135-$43,602) x 18.1 = $10,489,704.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \29\ BLS, Current Population Survey, unpublished tables.
---------------------------------------------------------------------------

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

[[Page 23727]]

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.
[GRAPHIC] [TIFF OMITTED] TP20AP22.000

    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 pre-2020 
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

[[Page 23728]]

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 Sec. Sec.  
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 Sec.  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: Sec. Sec.  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, Private Sector: Business or 
other for-

[[Page 23729]]

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: Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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: Sec. Sec.  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:
    <bullet> 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;
    <bullet> 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;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> 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

[[Page 23730]]

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

0
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).

0
2. Amend Sec.  651.10 by:
0
a. Revising the introductory text;
0
b. Adding in alphabetical order a definition for ``Apparent 
violation'';
0
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'';
0
d. Removing the definition of ``Migrant food processing worker'';
0
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'';
0
f. Removing the definitions of ``Significant multilingual MSFW one-stop 
centers'' and ``State Workforce Agency (SWA) official''; and
0
g. Revising the definition of ``Wagner-Peyser Act Employment Service 
(ES) also known as Employment Service (ES).''
    The addition and revisions read as follows:


Sec.  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 
Sec.  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 year-round 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 Sec.  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.

[[Page 23731]]

    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 one-stop partner program. A site must be colocated in a 
one-stop center consistent with the requirements of Sec. Sec.  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 one-stop 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 
employment-related 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 Sec.  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 Sec.  677.150(a)(3) of this 
chapter, after satisfying all applicable programmatic requirements for 
the provision of services, such as eligibility determination. (See 
Sec.  677.150(a) of this chapter.)
    (1) The following individuals are not Participants, subject to 
Sec.  677.150(a)(3)(ii) and (iii) of this chapter:
    (i) Individuals who only use the self-service 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 Sec.  677.150(b) of 
this chapter), including:
    (1) Individuals who provide identifying information;
    (2) Individuals who only use the self-service 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

[[Page 23732]]

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

0
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).

0
4. Amend Sec.  652.8 by revising paragraphs (h), introductory text of 
paragraph (j), (j)(2), and (3) to read as follows:


Sec.  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.
* * * * *
0
5. Revise the heading for Subpart C to read as follows:

Subpart C--Employment Service Services in a One-Stop Delivery 
System Environment

0
6. Amend Sec.  652.204 by revising the section heading and the first 
sentence to read as follows:


Sec.  652.204   Must funds authorized under the Governor's Reserve flow 
through the one-stop 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. * * 
*
0
7. Amend Sec.  652.205 by revising paragraph (b)(3) to read as follows:


Sec.  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
* * * * *
0
8. Amend Sec.  652.207 by revising the section heading and paragraph 
(a) to read as follows:


Sec.  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.
* * * * *
0
9. Revise Sec.  652.215 to read as follows:


Sec.  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 Sec.  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

0
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.

0
11. Amend Sec.  653.100 by revising paragraph (a) to read as follows:


Sec.  653.100   Purpose and scope of subpart.

    (a) This subpart sets forth the principal regulations of the 
Wagner-Peyser 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.
* * * * *
0
12. Revise Sec.  653.101 to read as follows:


Sec.  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.
0
13. Amend Sec.  653.102 by revising the third sentence and removing the 
fourth sentence to read as follows:

[[Page 23733]]

Sec.  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.
0
14. Amend Sec.  653.103 by revising paragraphs (a) through (c) to read 
as follows:


Sec.  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 Sec.  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.
* * * * *
0
15. Amend Sec.  653.107 by:
0
a. Revising the section heading and paragraphs (a)(1), (a)(2)(i) and 
(ii), and (a)(3)(i);
0
b. Adding paragraphs (a)(3)(i)(A) and (B); and
0
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:


Sec.  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 on-site 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

[[Page 23734]]

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 Sec.  
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 Sec.  653.108(u) must update 
the Department on the SWA's progress toward meeting the objectives set 
forth in the AOP.
* * * * *
0
16. Revise Sec.  653.108 to read as follows:


Sec.  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 Sec.  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 farmworker-related 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 Sec.  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

[[Page 23735]]

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 one-stop 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 Sec. Sec.  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 non-compliance.
    (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

[[Page 23736]]

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 Sec.  653.111.
0
17. Amend Sec.  653.109 by:
0
a. Revising paragraph (b)(9);
0
b. Redesignating paragraph (b)(10) as paragraph (b)(11);
0
c. Adding a new paragraph (b)(10); and
0
d. Revising paragraphs (g), (h), and (h)(1).
    The revision, redesignation, and additions read as follows:


Sec.  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.
* * * * *
0
18. Amend Sec.  653.110 by revising paragraph (b) to read as follows:


Sec.  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.
* * * * *
0
19. Amend Sec.  653.111 by revising the section heading and paragraphs 
(a) and (b) to read as follows:


Sec.  653.111   State Workforce Agency staffing requirements for 
significant MSFW one-stop 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 Sec.  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.
* * * * *
0
20. Amend Sec.  653.501 by:
0
a. Revising the introductory text of paragraph (a) and paragraph 
(a)(1);
0
b. Adding paragraph (b)(4);
0
c. Revising paragraph (c)(3) introductory text; and
0
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:


Sec.  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

[[Page 23737]]

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.
* * * * *
0
21. Amend Sec.  653.502 by revising paragraph (d) to read as follows:


Sec.  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.
* * * * *
0
22. Amend Sec.  653.503 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  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

0
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.

0
24. Amend Sec.  658.400 by revising the second sentence of paragraph 
(a) and paragraph (d) to read as follows:


Sec.  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.
0
25. Amend Sec.  658.410 by:
0
a. Revising paragraphs (c), (g), (h), (k), and (m);
0
b. Removing paragraph (n); and
0
c. Redesignating and revising paragraph (o) as paragraph (n).
    The revisions and redesignation read as follows:


Sec.  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 
employment-related 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.
0
26. Amend Sec.  658.411 by:
0
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);
0
b. Adding paragraph (b)(1)(ii)(F); and
0
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:


Sec.  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

[[Page 23738]]

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 Sec.  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

[[Page 23739]]

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.
* * * * *
0
27. Amend Sec.  658.417 by revising paragraph (b) to read as follows:


Sec.  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.
* * * * *
0
28. Amend Sec.  658.419 by revising paragraph (a) to read as follows:


Sec.  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 
Sec.  653.503 of this chapter (field checks) or Sec.  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 Sec.  
658.410. Apparent violations of nondiscrimination laws must be 
processed according to the procedures described in Sec.  658.411(c).
* * * * *
0
29. Amend Sec.  658.420 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  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 anti-discrimination 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 Sec.  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.
* * * * *
0
30. Amend Sec.  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:


Sec.  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 Sec. Sec.  
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 Sec. Sec.  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.
* * * * *
0
31. Amend Sec.  658.422 by revising the section heading and paragraphs 
(a) through (c) to read as follows:

[[Page 23740]]

Sec.  658.422   Processing of employment-related 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 
employment-related 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 Sec.  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 Sec.  658.420(b)(1).
* * * * *
0
32. Amend Sec.  658.424 by revising paragraph (d) to read as follows:


Sec.  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.
* * * * *
0
33. Amend Sec.  658.425 by revising paragraph (a)(1) to read as 
follows:


Sec.  658.425   Decision of Department of Labor Administrative Law 
Judge.

    (a) * * *
    (1) Rule that they lack jurisdiction over the case:
* * * * *
0
34. Amend Sec.  658.501 by revising paragraphs (a)(4), (b), and (c) to 
read as follows:


Sec.  658.501   Basis for discontinuation of services.

    (a) * * *
    (4) Are found by a final determination by an appropriate 
enforcement agency to have violated any employment-related 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 Sec.  658.502 would cause substantial harm to a 
significant number of workers. In such instances, procedures at 
Sec. Sec.  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 Sec.  658.502 and 
simultaneously notify the Chicago National Processing Center (CNPC) of 
the alleged non-compliance for investigation and consideration of 
ineligibility pursuant to Sec.  655.184 or Sec.  655.73 of this chapter 
respectively for subsequent temporary labor certification.
* * * * *
0
35. Amend Sec.  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:


Sec.  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 
employment-related 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 employment-related 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 Sec.  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
* * * * *

[[Page 23741]]

    (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.
* * * * *
0
36. Amend Sec.  658.504 by revising paragraphs (a)(2)(ii) and (b) to 
read as follow:


Sec.  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.
* * * * *
0
37. Amend Sec.  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:


Sec.  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 ES-related 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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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

[[Page 23742]]

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.
* * * * *
0
38. Amend Sec.  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:


Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  658.700 through 
658.711. The RMA, an assistant, or another RMA must participate in 
National Office and regional office on-site 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

[[Page 23743]]

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 MSFW-related 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 region-wide 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.
* * * * *
0
39. Amend Sec.  658.604 by revising paragraph (c)(3)(i) to read as 
follows:


Sec.  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.
* * * * *
0
40. Amend Sec.  658.702 by revising paragraphs (a), (d), (e), (f)(2), 
and (h)(5) to read as follows:


Sec.  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 Sec.  658.704.
* * * * *
0
41. Amend Sec.  658.704 by revising the fifth sentence of paragraph (d) 
and the fourth sentence of (f)(2) to read as follows:


Sec.  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. * * *
* * * * *
0
42. Amend Sec.  658.705 by revising the introductory text of paragraphs 
(b) and (b)(3) and paragraphs (c) through (f) to read as follows:


Sec.  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

[[Page 23744]]

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.
0
43. Amend Sec.  658.706 to read as follows:


Sec.  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.
0
44. Amend Sec.  658.707 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  658.707   Requests for hearings.

    (a) Any SWA which received a Notice of Decertification under Sec.  
658.706 or a notice of disallowance under Sec.  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 Sec.  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