Wagner-Peyser Act Staffing

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 651, 652, 653, and 658

[Docket No. ETA-2022-0003]

RIN 1205-AC02

Wagner-Peyser Act Staffing

AGENCY:

Employment and Training Administration, Labor.

ACTION:

Proposed rule; request for comment.

SUMMARY:

The U.S. Department of Labor (Department or DOL) is issuing a notice of proposed rulemaking (NPRM) that, if finalized, would require States to use State merit staff to provide 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

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.

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).

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.

3

29 U.S.C. 49.

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 redirect

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.

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).

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.

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.

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.

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).

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.

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 § 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 § 651.10 within the definitions for

applicant holding office, Employment Service (ES) office,

field visits, outreach staff,

placement,

and

reportable individual,

in addition to the changes in the definition of

Wagner-Peyser Act Employment Service (ES) also known as Employment Service (ES).

Conforming changes have also been made to the subpart heading at part 652, subpart C, and within the regulatory text at §§ 652.205, 652.207, 652.215, 653.107, 653.108, 658.411, 658.502, 658.602, and 658.603.

The Department is proposing several technical edits to refine 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 §§ 658.602 and 658.603.

Second, where “he/she” refers to an employer that is not an individual person, the Department proposes using the pronoun “it.” Where the possessive pronouns “his/her” were used, the Department proposes using “its.” This is appropriate because employers are entities, not individuals, and the proper pronoun is “it.” This edit is made at §§ 658.502 and 658.504.

In all other cases where “he/she” was used, the Department proposes using the pronoun “they” in its capacity as a gender-inclusive third-person singular pronoun but conjugated with 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 § 651.10 in the definition of

seasonal farmworker.

Edits are also made to §§ 653.107, 653.108, 653.111, 653.501, 653.502, 658.400, 658.410, 658.411, 658.421, 658.422, 658.602, 658.603, 658.702, 658.705, 658.706, and 658.707.

In addition, the Department proposes to replace the words “handle” and “handled” with “process” and “processed,” as appropriate, to clarify that actions by ES staff and Federal staff must follow the processing requirements listed throughout part 658, subparts E and H, which use the word “process.” The word “handle” does not have a specific meaning in the regulatory text and may be unclear to SWAs.

In some instances, the Department also proposes conforming technical amendments to correct grammar in the regulations, as needed, because of these changes. In addition to such conforming technical amendments, the Department proposes adding and removing commas throughout the regulatory text to improve clarity and readability. These global changes and technical amendments described in this section are not explicitly identified later in the section-by-section discussion.

B. Part 651—General Provisions Governing the Wagner-Peyser Act Employment Service

Part 651 (§ 651.10) sets forth definitions for parts 652, 653, 654, and 658. The Department proposes to revise the following definitions to better align them across the regulatory text, as well as practice in the field, and to make them conform with other revisions the Department proposes to make in this NPRM, including changes to staffing requirements.

The Department proposes to revise the first sentence of § 651.10 by providing the full title of the statute for the existing WIOA reference and identifying where WIOA is codified. These additions will help ensure the definitions in this section apply to WIOA, as published at 29 U.S.C. 3101

et seq.

The Department proposes to add a definition for

apparent violation

to clarify that the term means a suspected violation of employment-related laws or ES regulations, as set forth in § 658.419. The Department has observed that SWAs have used inconsistent descriptions of the term in their policies and procedures, which are not always consistent with § 658.419. The proposed definition is derived from existing regulatory language at § 658.419, which describes that an apparent violation is a suspected violation of 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 § 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.

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 § 652.215. Second, the Department proposes to delete the phrase “to carry out activities authorized under the Wagner-Peyser Act,” because this language is unnecessary. The ES regulations in parts 652, 653, and 658 describe the activities and services that ES staff are authorized or required to carry out. The proposed changes are intended to define a term that, when referenced, will clearly identify services or tasks that must be performed by State merit staff, and to simplify terminology throughout all parts. The revised definition also makes clear that ES staff includes a SWA official.

The Department proposes to amend the definition of

field checks

in several ways. First, the Department proposes to replace the term “job order” with “clearance order,” which is more accurate because field checks must be conducted on clearance orders as defined in § 651.10. Second, the Department proposes to clarify in the definition that field checks may also be conducted by non-ES State staff, in addition to ES or Federal staff, if the SWA has entered into an arrangement with a State enforcement agency (or agencies) to conduct field checks. This proposed revision aligns the definition with existing practice permitted by the regulation at § 653.503, which allows SWA officials to enter into formal or informal arrangements with appropriate State and Federal enforcement agencies where the enforcement agency staff may conduct field checks instead of and on behalf of ES personnel.

Additionally, the Department proposes to remove from the definition that field checks are “random” appearances. The proposed revision would clarify that the selection of the clearance orders on which the SWA will conduct field checks does not need to be random, though random field checks may still occur. The revision clarifies that field checks may be targeted, where necessary, to respond to known or suspected compliance issues, thereby improving MSFW worker protection. In addition, if a SWA makes placements on 9 or fewer clearance orders, the SWA must conduct field checks on 100 percent of those clearance orders. See § 653.503(b). Therefore, in those cases, field checks could not be conducted on a random basis. These proposed revisions would clarify the definition and make it consistent with § 653.503(b).

The Department proposes to amend the definition of

field visits

in several respects. First, the Department proposes to clarify that field visits are announced appearances by SMAs, RMAs, the NMA, or NMA team members. This term is currently defined to include appearances by Monitor Advocates or outreach staff, and the proposed revision would clarify which Monitor Advocates may conduct field visits and that the appearances are announced, and not unannounced, as with field checks. Second, the Department proposes to replace the reference to “employment services” with “ES services” to conform with the use of the “ES” abbreviation throughout the regulatory text. Third, the Department proposes to amend the definition to specify that field visits include discussions on farmworker rights and protections. The Department has observed through monitoring that outreach staff and SMAs do not always discuss farmworker rights and protections during field visits as part of broader discussions about “other employment-related programs,” and instead only cover information on ES services. An explicit reference to discussions on farmworker rights and protections in the definition will help ensure that these issues are consistently addressed.

The Department proposes to amend the definition of

Hearing Officer

to remove the words “of Labor” because § 651.10 previously defines “Department” as “the United States Department of Labor.”

The Department proposes to amend the definitions of

interstate clearance order

to indicate that it is an agricultural “clearance” order for temporary employment instead of a “job” order. This change aligns the definitions of job order and clearance order in this part.

The Department also proposes to amend the definition of

intrastate clearance order

in two ways. First, the Department proposes to amend the definition to indicate that it is an agricultural “clearance” order for temporary employment instead of a “job” order. This change aligns the definition with the definitions of job order and clearance order in this part. Second, the proposed revision clarifies that the term means an agricultural clearance order for temporary employment describing one or more hard-to-fill job openings, which an ES office uses to request recruitment assistance from

all

other ES offices within the State. The current definition does not include the word “all.” Therefore, it was not clear that such a request must go to all other offices in the State, and some ES offices were not distributing the clearance order to all offices. This clarification will help SWAs understand that an intrastate clearance order must be circulated to all ES offices within the State.

The Department proposes to amend the definition of

migrant farmworker

by removing the exclusion of full-time students who are traveling in organized groups. The Department proposes considering anyone who meets the definition of migrant farmworker to be considered as such, including full-time students performing farmwork. This change will make the benefits and protections of the Monitor Advocate System, including safeguards built into the Complaint System, ES service requirements, and equity and minimum service levels, available to full-time students traveling in organized groups. The exclusion of full-time students from existing regulatory text was premised on the fact that full-time students did not need to meet minimum farmwork or income requirements, which no longer exist in the ES regulations. Therefore,

the reference is no longer relevant to the

migrant farmworker

definition.

The Department proposes to remove the definition of

migrant food processing worker

because migrant food processing worker status has not been a separately tracked part of the MSFW definition since the ES regulations were updated in 2016. See 81 FR 56071 (Oct. 18, 2016). Current ETA reporting does not require States to document migrant food processing workers as a particular type of MSFW and this definition is unnecessary because the existing MSFW definitions are inclusive of individuals who perform work as migrant food processors.

The Department proposes to amend the definition of

Occupational Information Network (O*NET)

to remove the word “system” from the definition, as it is not needed to describe O*NET.

The Department proposes to amend the definition of

O*NET-SOC

to remove the words “of Labor” after “Department” because Department is previously defined in this section as “the United States Department of Labor.”

The Department proposes to amend the definition of

outreach staff

to clarify that SMAs are not considered outreach staff. The SMA's role includes monitoring and providing guidance related to outreach staff but does not include acting as outreach staff. Outreach staff are a separate set of staff described in § 653.107(b). As noted in § 653.108, no State may dedicate less than full-time staffing for the SMA position, unless the Regional Administrator (RA), with input from the RMA, provides written approval. The SMA must also be able to review outreach efforts as required in § 653.108(o) and have adequate time to complete the extensive duties described in § 653.108. While an SMA may join ongoing outreach efforts, § 653.107 requires SWAs to employ an adequate number of outreach staff.

The Department proposes to revise the definition of

respondent

by removing the parenthetical language “including a State agency official” because the term “State agency” is assumed to include “State agency officials” and it is therefore unnecessary to distinguish “State agency officials” in addition to the State agency.

The Department is proposing to remove the exclusion of non-migrant full-time students from the definition of

seasonal farmworker.

This change would allow full-time students who work in seasonal farmwork to be considered seasonal farmworkers and would make the definition of

seasonal farmworker

consistent with the definition of

migrant farmworker.

The Department proposes to revise the definition for

significant MSFW 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 §§ 653.103(a) and 653.109(b)(10), which would require ES offices to determine and collect data on the number of reportable individuals who are MSFWs. This proposal is intended to more closely correlate the designation of significant MSFW one-stop centers to the total number of MSFWs—and, therefore, potential participants—in the area, as opposed to just the number of existing participants in the area. Relying solely on the number of existing MSFW participants in the area fails to account for all other MSFWs in the area who could potentially become participants and does not account for situations where the number of participants in the area is low due to failure to perform adequate outreach or to make services available to MSFWs so that MSFWs who are reportable individuals may receive participant level services. In those cases, the number of participants is not an accurate indicator of the need for MSFW-specific ES services in the area. These proposed changes provide a more accurate representation of the number of MSFWs in the area who could benefit from access to ES services. The Department also is proposing to retain language permitting the Department to consider special circumstances beyond the estimated number of MSFWs in the area in designating significant MSFW one-stop centers.

The Department proposes to amend the definition of

significant MSFW States.

Similar to the proposed changes to the definition of

significant MSFW one-stop centers,

the Department proposes to remove the annual designation requirement from the definition of

significant MSFW States.

The Department proposes to rely on information from the Census of Agriculture, which is published every 5 years, and the Quarterly Census of Employment and Wages, which publishes a quarterly count of employment and wages. These data sources provide the most reliable farmworker estimates available. Additionally, the Department proposes to add “estimated” before “number of MSFW” and remove the word “participants” because the Department intends to use the estimated number of MSFWs in each State, instead of exclusively the number of MSFW participants in the State to more accurately determine which States have the most MSFW activity and should therefore be designated as

significant MSFW States.

Relying on the estimated number of MSFWs in a State means the Department will account for those MSFWs who may eventually become participants instead of only focusing on States with the highest existing number of participants.

The Department proposes to delete the definition of

significant multilingual MSFW one-stop centers

in its entirety because the Department is proposing changes to § 653.102 to remove specific requirements for offices that would meet the definition. The Department proposes to remove these specific requirements for

significant multilingual MSFW 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

s

ig

nificant multilingual MSFW one-stop center

definition and language access requirements at § 653.102 before comprehensive language access requirements implementing section 188 of WIOA were codified in 29 CFR part 38. The regulations at 29 CFR 38.9 establish that language access requirements apply to services provided to all LEP individuals at all one-stop centers and are broader than the existing requirements for

significant multilingual MSFW one-stop centers.

For these reasons, the designation of

significant multilingual MSFW one-stop centers

is no longer necessary. Additionally,

having separate requirements for

significant multilingual MSFW one-stop centers

may inaccurately create the appearance that there are two sets of language access standards, or that requirements for

significant multilingual MSFW one-stop centers

are narrower. Removing the

significant multilingual MSFW one-stop center

definition therefore clarifies that the comprehensive language access requirements at 29 CFR 38.9 apply to all one-stop centers.

The Department proposes to remove the definition of

State Workforce Agency (SWA) official,

because SWA officials would be considered ES staff based on the Department's proposed revisions to the definition of

ES staff

in this rulemaking.

The Department is proposing to amend the definition of

Wagner-Peyser Act Employment Service (ES) also known as Employment Service (ES)

to replace the phrase “employment services” with “ES services.” This change would simplify the use of terminology throughout all parts. The Department also proposes to remove the words “and are” from the definition for greater clarity.

C. Part 652—Establishment and Functioning of State Employment Service Subpart C—Employment Service Services in a One-Stop Delivery System Environment

1. Subpart A—Employment Service Operations

This subpart includes: An explanation of the scope and purpose of the ES; the rules governing allotments and grant agreements; authorized services; administrative provisions; and rules governing labor disputes. The Department's proposed amendments to subpart A focus solely on administrative provisions governing nondiscrimination requirements.

Section 652.8 Administrative Provisions

Section 652.8 covers administrative matters, including: Financial and program management information systems; recordkeeping and retention of records; required reports; monitoring and audits; costs; disclosure of information; sanctions; and nondiscrimination requirements.

The Department proposes to correct the statutory reference in § 652.8(j)(2) regarding the bona fide occupational qualification (BFOQ) exception currently listed in the regulation as 42 U.S.C. 2000(e)-2(e) to 42 U.S.C. 2000e-2(e).

The Department proposes to amend § 652.8(j)(3) to remove an outdated reference to affirmative action requests to make the Department's regulation consistent with U.S. Supreme Court jurisprudence on race-based affirmative action.

9

The proposed revision clarifies that the States' obligation is to comply with 41 CFR 60-300.84. The regulation at 41 CFR 60-300.84 requires ES offices to refer qualified protected veterans to fill employment openings required to be listed with ES offices by certain Federal contractors; give priority to qualified protected veterans in making such referrals; and, upon request, provide the Office of Federal Contract Compliance Programs with information as to whether certain Federal contractors are in compliance with the mandatory job listing requirements of the equal opportunity clause (41 CFR 60-300.5). Consistent with this proposed amendment, the Department also proposes to remove the phrase “and affirmative action” from the paragraph heading for § 652.8(j). The Department reminds SWAs that they have an affirmative outreach obligation under 29 CFR 38.40 that requires them to take appropriate steps to ensure they are providing equal access to services and activities authorized under the 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 § 651.10, as the term is made redundant under the proposed changes.

Section 652.215 Can Wagner-Peyser Act-funded activities be provided through a variety of staffing models?

This section currently provides States the option to provide ES services through a variety of staffing models. For the reasons set forth in this NPRM, the Department proposes to amend § 652.215 to require all States, including the historically exempted “demonstration States,” to provide labor exchange services described in § 652.3 of this part through State merit staff. The staffing requirement applies to ES services provided to MSFWs. Specifically, the proposed regulatory text states that labor exchange services must be provided by ES staff. Under proposed revisions to the definitions (§ 651.10), ES staff will exclusively refer to State merit staff.

Historically, the Department relied on authority under sec. 3(a) of the Wagner-Peyser Act, which requires the

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 § 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 § 651.10.

The Department further proposes to add a new paragraph (b), which provides that the staffing requirement in this section would have the same effective date as other proposed changes in this NPRM and would become effective 60 days after publication of the final rule in the

Federal Register

. The Department also proposes to add a new paragraph (c), which specifies a compliance date for proposed § 652.215 (

i.e.,

the date on which the requirements of this section would become enforceable) of 18 months after the effective date of the final rule. The Department acknowledges that for States currently using different staffing models for the provision of ES services, both those that have been using different models for many years and those that changed or have begun to change their staffing models due to the 2020 Final Rule, the use of State merit staff may take time to implement.

In the short period of time that staffing flexibility has been available to all States, the Department is aware that a few States expressed an interest in using that flexibility. Some States may have taken steps to use the staffing flexibility without modifying their approved State plans, under which they indicate that they are using State merit staff to deliver ES services. At least one State has submitted a State plan modification indicating that the State intends to use non-State merit staff to provide ES services. Reinstating the State merit-staffing requirement will impact these States, but the Department thinks that the impact will be minimal, as described in the regulatory impact analysis section of this proposal (sec. III.A of the preamble).

The Department recognizes that this proposed change will have the most impact on the three demonstration States, Colorado, Massachusetts, and Michigan. Since the 1990s, these three States have relied on an exemption in their approved State plans to use some limited form of non-State-merit staffing. Any burden imposed on these three States by the proposal to require their use of only State merit staff may be mitigated by the States' currently approved staffing models. Colorado and Michigan both use only merit-staffing to deliver ES services, but they employ merit staff at both the State and local level to deliver services. For these States, the proposed regulation would require that they discontinue their use of local merit staff and use only State merit staff. Massachusetts uses some non-merit staff, but that use of 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

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 § 653.100(a) to clarify that the provision of services for MSFWs must be available in an equitable and nondiscriminatory fashion. The addition of the phrase “and nondiscriminatory” is intended to clarify that SWAs must not discriminate against farmworkers either because they are farmworkers or because of any characteristics protected under the nondiscrimination and equal opportunity provisions of WIOA, which are contained in sec. 188 of WIOA, 29 U.S.C. 3248, and the implementing regulations at 29 CFR part 38. The requirements of section 188 of WIOA apply to ES services because the Wagner-Peyser Act Employment Service is a required one-stop partner, and the requirements of section 188 of WIOA apply to all one-stop partners. 29 CFR 38.4(zz).

Section 653.101 Provision of Services to Migrant and Seasonal Farmworkers

The Department proposes to amend § 653.101 by revising the first sentence to clarify that the SWA is the primary recipient of Wagner-Peyser Act funds and, therefore, is the entity responsible for ensuring that ES staff offer MSFWs the full range of career and supportive services. This clarification is proposed because it is ultimately incumbent upon the SWA to ensure ES staff at one-stop centers are carrying out the appropriate duties with their Wagner-Peyser Act funds. The Department also proposes to replace the requirement to consider and be sensitive to the preferences, needs, and skills of individual MSFWs and the availability of job and training opportunities with a requirement that SWAs ensure the one-stop centers tailor ES services in a way that accounts for individual MSFW preferences, needs, skills, and the availability of job and training opportunities, so that MSFWs are reasonably able to participate in the ES. This proposed change strengthens the requirement to tailor services to the individualized needs of MSFWs. The change also would make the requirement applicable to the SWA to ensure the one-stop centers comply, to align with the SWA's position as the direct recipient of ES funds.

Section 653.102 Job Information

The Department proposes to revise the second sentence of § 653.102 to clarify that the SWA is the entity responsible for assisting MSFWs to access job order information, for the same rationale as described in the same proposed change for § 653.101. The Department's proposed language also clarifies that the requirement applies to ES staff at one-stop centers because the scope of part 653 relates to the ES services program, not all one-stop partner programs. The Department also proposes to remove the word “adequate” as a modifier to the phrase “assistance to MSFWs.” The Department has observed that States' interpretation of what it means to provide adequate assistance varies. Removing the word “adequate” will remove subjectivity and clarify that a SWA meets its obligation to assist MSFWs by complying with the requirements in parts 653 and 658.

The Department also proposes to remove the final sentence of § 653.102, which stated that in designated significant MSFW multilingual offices, assistance with accessing job order information must be provided to MSFWs in their native language whenever requested or necessary. The Department proposes to remove this sentence to align language access requirements in the ES regulations with those required by WIOA sec. 188 and its implementing regulations at 29 CFR part 38. Language access requirements are not limited to designated multilingual MSFW one-stop centers, but rather, they apply to LEP individuals regardless of through which office they seek ES services. The existing requirement was written into the regulations in the early 1980s, well before the language access requirements were codified at 29 CFR part 38. Removing the existing requirement, which specifically applies to designated multilingual MSFW one-stop centers, and adding a reference to the broader language access requirements at § 653.103(b) (described in the following section) is intended to strengthen language access for all LEP individuals. This change also aligns with the proposal to remove the definition for

multilingual MSFW one-stop centers

from § 651.10. Accordingly, the Department proposes to add a broader language access requirement to § 653.103, as described in the following section.

Section 653.103 Process for Migrant and Seasonal Farmworkers To Participate in Workforce Development

The Department proposes to make several revisions to § 653.103. In paragraph (a), the Department proposes to change “one-stop center” to “ES office.” This change clarifies that the requirement applies to ES staff because part 653 applies to the ES services program, not all one-stop partner programs. In addition to the existing requirement to determine whether

participants,

as defined at § 651.10, are MSFWs, the Department proposes to require that ES offices must determine whether

reportable individuals,

also defined at that section, are MSFWs. This proposed change will help ES staff identify all individuals who engage in ES services who are MSFWs, and not limit that assessment to participants only. With this information, SWAs will be able to better understand the number of MSFWs who engage in the ES and the degree of their engagement. This information is important for SWAs and SMAs to have so that they may

understand the full scope of who accesses particular services for the purposes of determining whether services are being provided to MSFWs on an equitable basis. For example, by having the number of MSFW reportable individuals, the SWAs and SMA can analyze situations where there may be large numbers of MSFW reportable individuals but very few or no MSFW participants, in proportions far different than other populations. Such scenarios may indicate that ES services are not being provided to MSFWs in a way that is tailored to individual MSFW preferences, needs, skills, and the availability of job and training opportunities, so that MSFWs are reasonably able to participate in the ES, as required by the proposed § 653.101.

In § 653.103(b), the Department proposes to replace the existing provision requiring all SWAs to ensure that MSFWs who are English-language learners receive, free of charge, the language assistance necessary to afford them meaningful access to the programs, services, and information offered by the one-stop centers with a new provision requiring all SWAs to comply with the language access and assistance requirements at 29 CFR 38.9 with regard to all LEP individuals, including MSFWs who are LEP individuals, as defined at 29 CFR 38.4(hh). This compliance includes ensuring ES staff comply with these language access and assistance requirements. This proposed change aligns the language access requirements for MSFWs with those requirements identified for all LEP individuals pursuant to 29 CFR 38.9 and helps ensure LEP individuals have meaningful access to the ES.

Due to this proposed change, the Department proposes corresponding edits throughout the ES regulations to ensure that all language access requirements align with 29 CFR 38.9. This is important for several reasons. First, 29 CFR 38.9 is part of WIOA sec. 188's prohibition on discrimination on the basis of national origin, including limited English proficiency. Maintaining separate language access requirements could create confusion about which standard should apply. Second, the proposed change reduces duplication because the standards at 29 CFR 38.9 already cover the language access requirements provided in the ES regulations. Third, aligning the ES regulations with 29 CFR 38.9 ensures broader language access protections for LEP farmworkers than those in the existing ES regulations.

Lastly, in § 653.103(c), the Department proposes to remove the requirement that one-stop centers must provide MSFWs a list of available career and supportive services “in their native language.” This proposed change would make the provision consistent with the broader proposed revisions to language access requirements throughout all parts to ensure they align with 29 CFR 38.9.

Section 653.107 Outreach Responsibilities and Agricultural Outreach Plan

The Department proposes to revise the section heading in § 653.107 to read “Outreach responsibilities and Agricultural Outreach Plan” to provide greater clarity.

The Department proposes to revise § 653.107(a)(1) in several ways. First, the Department proposes to move to § 653.107(a)(4) the sentence that explains each SWA must provide an adequate number of outreach staff to conduct MSFW outreach in their service areas. The regulation at paragraph (a)(4) details how many outreach staff a SWA must provide and explains what it means to provide an adequate number of outreach staff. Therefore, the previously quoted language from § 653.107(a)(1) more logically fits in § 653.107(a)(4), where it provides clarity regarding what adequate means. The result of this change is that the first sentence of this section now requires that the SWA ensure that outreach staff fulfill the outreach responsibilities described in paragraph (b) of this section on an ongoing basis. The Department proposes to add that outreach staff must conduct outreach on an ongoing basis to clarify that outreach activities in all States must occur 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 § 653.107(a)(1) a sentence explaining that WIOA title I sec. 167 grantees' activities involving MSFWs does not substitute for SWA outreach responsibilities. This clarification is important because NFJP staff are not obligated to provide the same information or services to MSFWs as SWA outreach staff must provide, nor are they monitored by the SMA to ensure services are compliant with ES regulations.

At § 653.107(a)(2)(i), the Department proposes a technical edit to change the period after “MSFWs” to a semicolon and adding the word “and” to clarify that as part of their outreach, SWAs must ensure outreach staff satisfy both paragraphs (i) and (ii), which follow.

In § 653.107(a)(2)(ii), the Department proposes to revise the requirement that SWAs must ensure outreach staff conduct thorough outreach efforts with extensive follow-up activities in supply States by replacing “in supply States” with “identified at § 653.107(b)(5).” This change is proposed because SWAs must ensure outreach staff are conducting thorough outreach efforts with extensive follow-up activities in all States—not only in supply States. This proposed revision does not increase the outreach burden on non-supply States because all States must already comply with all applicable outreach provisions identified at § 653.107.

The Department proposes several revisions to § 653.107(a)(3). First, the Department proposes to revise the language and structure of the paragraph. The Department proposes to replace “For purposes of providing and assigning outreach staff to conduct outreach duties, and to facilitate the delivery of employment services tailored to the special needs of MSFWs. . .” with “When hiring or assigning outreach staff.” This change would operationalize the proposed State merit-staffing requirement for outreach workers. The existing regulatory text permits SWAs the flexibility to provide outreach staff in several ways, including by subcontracting staff. With this proposed change, the Department is making clear that the SWA is responsible for directly hiring outreach staff who must be State merit staff because the definition of outreach staff refers to ES staff, who must be State merit staff.

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 § 653.107(a)(3)(i) that SWAs must seek qualified candidates who speak the language of a significant proportion of the State MSFW population. But to strengthen the existing requirement, the Department proposes to add that the SWA must not only seek but also put a strong emphasis on hiring qualified candidates. This language is proposed to increase the likelihood that SWAs will hire candidates with the criteria described in § 653.107(a)(3)(i), instead of simply seeking candidates whom they never hire. To further increase the likelihood that SWAs hire candidates who meet the required criteria, the Department proposes to add a new paragraph at § 653.107(a)(3)(ii) requiring the SWA to inform farmworker organizations and other organizations with expertise concerning MSFWs of outreach staff job openings and encourage them to refer qualified applicants to apply. These additions are proposed to expand the applicant pool for outreach staff positions to include individuals who have the knowledge, skills, and abilities to meet the unique needs of farmworkers. The proposed paragraph also makes requirements for hiring outreach staff consistent with the requirements for appointing an SMA under § 653.108(b). For the SMA position, the SWA is required to inform farmworker organizations and other organizations with expertise concerning MSFWs of the opening and encourage them to refer qualified applicants to apply. As discussed in this section, this requirement helps SWAs expand the applicant pool for SMAs to help the SWA choose from a larger selection of qualified applicants, and the same reasoning applies to outreach staff.

The Department proposes to amend § 653.107(a)(4) by adding the sentence that the Department proposes to remove from § 653.107(a)(1), which provides that each SWA must provide an adequate number of outreach staff to conduct MSFW outreach in their service areas. However, the Department proposes to replace “in their service areas” with “in each area of the State.” This change will clarify that SWAs must provide outreach in all areas of the State where there are farmworkers, not only in certain service areas. This change would make the expectation to cover the full State clear. The Department also proposes to replace “provide” with “employ” and add to the end of the sentence language making clear that an adequate number of outreach staff are needed to contact a majority of MSFWs in all of the SWA's service areas annually. These additions are proposed to clarify what it means to employ an “adequate number of outreach staff,” all of whom must be State merit staff. Making this determination on an annual basis helps align the assessment of staffing levels with the reporting required in the SMA's Annual Summary.

The Department further proposes to revise the sentence requiring that in the 20 States with the highest estimated year-round MSFW activity, as identified in guidance issued by the Secretary, there must be full-time, year-round outreach staff to conduct outreach duties. Specifically, the Department proposes to replace “in guidance issued by the Secretary” with “as identified by the Department.” This revision is necessary to conform to guidance issued by the Department.

The Department also proposes to amend § 653.107(a)(4) to add a sentence clarifying what it means to have 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 § 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 § 651.10, there must be full-time, year-round outreach staff to conduct outreach duties. In the remainder of the States, there must be year-round part-time outreach staff, and during periods of the highest MSFW activity, there must be full-time outreach staff. This means that States that are not significant MSFW States may allow outreach staff to conduct other activities that promote farmworker safety, including housing inspections, when they are not in peak harvest season. If outreach staff in States that are not significant MSFW States have additional time available after fulfilling their required outreach responsibilities, those States may leverage outreach staff members, required to be State merit staff under this proposal, to help support other critical functions, such as UI.

Finally, the Department proposes to further clarify outreach staffing requirements by adding a new sentence in § 653.107(a)(4) stating that staffing levels must align with and be supported by information about the estimated number of farmworkers in the State and the farmworker activity in the State as demonstrated in the State's Agricultural Outreach Plan (AOP) pursuant to § 653.107(d). This language will help SWAs understand that the number of full-time or part-time outreach staff must be determined by information provided in the State's AOP. These revisions will give the State a clear method to identify what staffing levels are appropriate.

The Department also proposes to revise § 653.107(b) by adding that outreach staff responsibilities include the activities identified in § 653.107(b)(1) through (11). This addition clarifies the specific activities included in outreach staff responsibilities. The proposed regulatory text also replaces a colon with a period, which helps the

construction of the sentence and its relationship to the following paragraphs.

The Department proposes two revisions to § 653.107(b)(1). First, the Department proposes to replace “Explaining” with “Outreach staff must explain” to align with the updated construction of the sentence whereby paragraph (b) is proposed to be a sentence ending in a period and not a colon, making the following paragraphs full sentences. Second, the Department proposes to remove the explicit requirement for the information that outreach staff must convey to be in a language readily understood by them, because proposed § 653.103(b) would already require this information to be in languages other than English for LEP individuals as provided under 29 CFR 38.9. This proposed change conforms with other proposed changes to language access requirements throughout parts 651, 652, 653, and 658 where the Department seeks to align these requirements with those identified at 29 CFR 38.9.

The Department proposes to revise § 653.107(b)(3) to replace “outreach workers” with “outreach staff” to align with the proposed definition of outreach staff at § 651.10. The Department proposes the same revision to paragraph (b)(4) and to remove the word “the” before “outreach staff” for clarity. These changes are necessary to align with the proposed State merit-staffing requirements for ES staff. Because § 651.10 defines outreach staff as ES staff with responsibilities described at § 653.107(b), the proposed State merit-staffing requirement applies to outreach staff.

The Department proposes several revisions to § 653.107(b)(7). First, the Department proposes to replace the reference to outreach staff being trained in “local office” procedures with “one-stop center” procedures to align with the

ES office

definition at proposed § 651.10. Second, the Department proposes to require SWAs to provide outreach staff with training on sexual coercion, assault, and human trafficking, alongside the existing requirement to provide sexual harassment training. The current regulation gives SWAs the option of providing training on sexual coercion, assault, and human trafficking. The proposed regulation would require training in these areas due to an increased need to combat these issues in the field. These additional topics are of importance to the Department, and this proposal is driven by the increased frequency of complaints and apparent violations SWAs have processed and information from organizations the Department has partnered with regarding these issues. The focus remains for outreach staff to be able to identify and refer cases to the appropriate enforcement agencies. Third, the Department proposes to replace the requirement for outreach staff to be trained in the procedure for informal resolution of complaints with a requirement for them to be trained in the Complaint System procedures (at part 658, subpart E) and be aware of the local, State, regional, and national enforcement agencies that would be appropriate to receive referrals. This change is necessary so that outreach staff are trained in the full Complaint System procedures, which include informal resolution.

The Department proposes to revise § 653.107(b)(8) by changing the record retention requirement from 2 years to 3 years to align with the Office of Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal awards to non-Federal Entities (Uniform Guidance) record retention requirements at 2 CFR 200.334. The Uniform Guidance applies to all grants funded by ETA. It is important to ensure record retention requirements are consistent across all ETA grantee activities, including for the Monitor Advocate System which is funded by the Wagner-Peyser Act grant.

The Department proposes to make a technical edit to § 653.107(b)(11) by replacing the reference to significant MSFW “local offices” with “significant MSFW one-stop centers” to align with the defined term in § 651.10. The Department also proposes to add a requirement that the outreach activities must align with and be supported by information provided in the State's AOP pursuant to § 653.107(d).

The Department proposes to replace the requirement in § 653.107(d)(2)(ii) for SWAs in the AOP to provide an assessment of available outreach resources with a requirement that SWAs explain the materials, tools, and resources the State will use for outreach. The proposed revision clarifies the requirement to assist SWAs to better understand what information must be reported and that SWAs should provide more detailed and better explanations of how the SWA intends to use those resources.

The Department proposes to amend § 653.107(d)(2)(iii) to require SWAs to describe their activities to contact MSFWs who are not being reached by the normal intake activities conducted by the one-stop centers. The proposed regulation also would require the SWA to include the number of full-time and part-time outreach staff in the State and to demonstrate that there is sufficient outreach staff to contact a majority of MSFWs in all the State's service areas annually. The Department is proposing these changes to strengthen the description in the AOP of how the SWA will contact MSFWs adequately, consistent with the proposed revision to § 653.107(a)(4) for States to employ sufficient outreach staff to contact a majority of MSFWs in all the State's service areas annually. It is also helpful for RMAs to understand staffing levels to assess whether the State can meet the SWAs outreach requirements.

The Department proposes to clarify that § 653.107(d)(2)(iv) requires the AOP to describe activities planned for providing the full range of ES services to the agricultural community, instead of “employment and training services.” This change is necessary to explain which specific services the AOP must describe, which is specific to ES services and do not include all workforce development system activities.

The Department proposes to replace the requirement at § 653.107(d)(2)(v) that the AOP must provide an assurance that the SWA is complying with the requirements under § 653.111 if the State has significant MSFW one-stop centers with a requirement that the AOP must include a description of how the SWA intends to provide ES staff in significant MSFW one-stop centers in accordance with § 653.111. This proposed change is intended to help the SMAs, RMAs, and the NMA assess whether SWAs will have the appropriate staffing structure to meet the unique needs of farmworkers.

The Department proposes to amend § 653.107(d)(4) to clarify that the AOP must be submitted in accordance with § 653.107(d)(1) instead of (d), as currently written. Paragraph (d)(1) is the accurate reference that explains the SWA's responsibility to develop the AOP as a part of the Unified or Combined State Plan.

The Department proposes two revisions at § 653.107(d)(5). First, the Department proposes a technical edit to change the reference from § 653.108(s) to § 653.108(u) due to restructuring paragraphs at § 653.108. Second, the Department proposes to replace “its goals” with “the objectives.” Referring to “the objectives” is more accurate because the Department does not ask SWAs to provide specific goals in the AOP, rather SWAs identify various objectives.

Section 653.108 State Workforce Agency and State Monitor Advocate Responsibilities

Section 653.108 governs what a SWA and SMA must do to monitor a State's provision of ES services to MSFWs. As explained subsequently, the Department proposes several revisions to this section to strengthen the role of the SMA and to enhance the monitoring activities that SMAs perform.

The Department proposes to revise § 653.108(a) to explicitly prohibit the State Administrator or ES staff from retaliating against an SMA for performing the monitoring activities that are required by this section. Specifically, the Department proposes to add at the end of § 653.108(a) a requirement that the State Administrator and ES staff must not retaliate against staff, including the SMA, for self-monitoring or raising any issues or concerns regarding 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 § 653.108(b), which prescribes criteria that States must consider when appointing an SMA, to require that SWAs not only seek but also put a strong emphasis on hiring qualified candidates for the SMA position who meet one or more of the criteria listed in paragraphs (b)(1) through (3). While the current regulations already require SWAs to “seek” qualified candidates who meet these criteria, the Department proposes to require that SWAs “put a strong emphasis on hiring” such candidates to increase the likelihood that SWAs hire SMAs who meet one or more of these criteria, and not simply seek such individuals. In the Department's view, it is important for SMAs to meet one or more of these existing criteria, so that SMAs understand and have appropriate skills to assess whether the SWA is providing adequate services to MSFWs.

The Department also proposes to remove the requirement in § 653.108(b) that the SMA be a SWA official because the proposed edits to § 651.10 remove

SWA official

as a defined term. The Department proposes to revise § 653.108(c) to require that the SMA be an ES staff employee. As explained previously in this document, the Department is proposing to reinstate the longstanding State merit-staffing requirement that was in effect prior to the 2020 Final Rule. One of the ways in which the Department proposes to effectuate this proposal is to remove the definition of

SWA official

in § 651.10 and to revise the definition of

ES staff

in § 651.10 to mean State government personnel who are employed according to the merit-system principles described in 5 CFR part 900, subpart F (Standards for a Merit System of Personnel Administration) and who are funded, in whole or in part, by Wagner-Peyser Act funds. As relevant here, the Department proposes to remove the requirement in § 653.108(b) for the SMA to be a

SWA Official

and to revise § 653.108(c) to require that the SMA be a senior level

ES staff

employee. While the specifics of this proposal are discussed in detail subsequently, the Department notes here that the term

ES staff

is intended to clarify that the proposed regulation would require the SMA to be not only a State employee, but a State merit-staff employee. This proposal, if finalized, will lead to more consistent delivery of services to ES customers. As a universal access system, it is vital that the ES be administered consistently across all States and that services are delivered effectively and equitably. Returning to the requirement that ES services be provided by State merit staff would help ensure that ES services are delivered by knowledgeable personnel in a manner consistent from State to State and allow for accountability that other staffing models cannot duplicate.

The Department additionally proposes several revisions to § 653.108(c) to strengthen the status of the SMA, as many SMAs have reported difficulty in their ability to fully carry out their duties due to insufficient status within the SWA. With these proposed changes, the Department seeks to align the status of the SMA with that of the Equal Opportunity (E.O.) Officer because the SMA's role is similar to the E.O. Officer's role. Both are charged with ensuring compliance with regulations put in place to ensure individuals have meaningful access to services and equal employment opportunities. In 2016, the DOL Civil Rights Center (CRC) expanded on previous requirements specifying the authority and status that E.O. Officers must have to ensure they can most efficiently and effectively carry out the recipients' nondiscrimination obligations.

See generally,

29 CFR 38.28 through 38.33.

11

According to CRC's NPRM,

12

the changes were intended to address feedback from E.O. Officers that they lacked sufficient authority to carry out their responsibilities. Similarly, in returning to merit-staffing in this rulemaking, the Department proposes to more specifically describe the required status of the SMA. Prior to the 2020 Final Rule, § 653.108(c) required the SMA to have direct, personal access, when necessary, to the State Administrator, and status and compensation comparable to other State positions assigned similar levels of tasks, complexity, and responsibility. By requiring the SMA to be a senior-level ES staff employee who reports directly to the State Administrator or their designee, this proposed rule would provide concrete ways to ensure that the SMA has status equivalent to what § 653.108(c) required prior to the 2020 Final Rule. This specification will also address feedback from many SMAs, who have reported that they lack sufficient authority to carry out their duties identified in the ES regulations. This change would allow SMAs to more efficiently and effectively carry out the SMA's obligation to monitor whether the SWA is serving farmworkers in a way that is qualitatively equivalent and quantitatively proportionate to all other job seekers.

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 § 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

carry out their duties. The Department proposes to make clear that if the State Administrator chooses to have the SMA report to a designee with the authority of the State Administrator, that person cannot be the individual who has direct program oversight of the ES. Though the State Administrator has overall responsibility for operation and compliance of the ES, the State Administrator is removed from the daily management of program operations. The proposed change would help the SMA avoid challenges that may exist if they were to report to an individual who has direct ES program oversight, for example the ES director, because in that case the SMA would be responsible to monitor compliance with decisions their direct supervisor made or was otherwise directly responsible for. Third, proposed paragraph (c)(3) would require that the SMA have the knowledge, skills, and abilities necessary to fulfill the responsibilities as described in this subpart. This proposed revision is intended to clarify the qualifications that SMAs must have to effectively perform all required SMA functions.

The Department does not anticipate that these revisions to § 653.108(c) will cause undue burden on the SWA. The State Administrator may restructure the current SMA position to meet the requirements of part 653. Moreover, the requirement that State Administrators appoint an SMA is longstanding, and several States already staff their SMA position as described in the proposed revisions (

i.e.,

where the SMA is a senior-level ES staff member who reports directly to the State Administrator or their designee). The proposed revisions will ensure all SWAs meet these same standards. The Department recognizes it may take States with SMA positions that do not already meet these standards some time to implement the standards. Accordingly, the Department seeks comments on whether it should provide a transition period to allow States additional time to come into compliance with the revised standards, and if so, the appropriate duration of such a period.

The Department additionally proposes to enhance the authority of the SMA through several revisions to § 653.108(d) and the addition of paragraph (e). Specifically, the Department proposes to revise § 653.108(d) to require that the SMA have sufficient authority, staff, resources, and access to top management to monitor compliance with the ES regulations. While requiring that the SMA have sufficient staff necessary to fulfill effectively all the duties set forth in the subpart is not a new requirement, the Department seeks to clarify that the SMA must also have sufficient authority, resources, and access to top management to carry out their duties. The Department also proposes to specify that the number of ES staff positions required by this section must be assigned to the SMA The Department proposes to clarify that these positions specifically relate to ES staff assigned to the SMA to help the SMA carry out the duties set forth in § 653.108, and that they may not be assigned conflicting roles to perform any of outreach responsibilities, ARS processing, or complaint processing.

The Department proposes a new paragraph (e) to specify that no State may dedicate less than full-time staffing for the SMA position unless the RA, with input from the RMA, provides written approval. The proposed paragraph would maintain the requirement currently in paragraph (d) for any State proposing less than 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 § 653.108(e) (now proposed § 653.108(f)) by removing the requirement for the SMA to attend, within the first 3 months of their tenure, a training session conducted by the RMA. Instead, the Department proposes to require all SMAs and their staff to attend training session(s) offered by the RMAs, the NMA, and their team, and those necessary to maintain competency and enhance SMA's understanding of the unique needs of farmworkers. The Department proposes that such trainings must include those identified by the applicable RMA and may include those offered by the Occupational Safety and Health Administration (OSHA), WHD, the Equal Employment Opportunity Commission (EEOC), the Immigrant and Employee Rights Section of the Department of Justice's Civil Rights Division, CRC, and other organizations offering farmworker-related information. These revisions are proposed to clarify the SMA's responsibility to attend necessary training and keep apprised of issues affecting MSFWs to effectively carry out their duties as the SMA. Historically, there have been numerous cases where SMAs did not or could not attend trainings offered by the RMAs or NMA. This provision seeks to clarify the SMA's responsibility to attend the trainings and increase SMA training opportunities and attendance.

The Department proposes to redesignate § 653.108(f) and (g) due to updated sequencing.

The Department proposes to revise § 653.108(g)(1) (now proposed to be § 653.108(h)(1)) to specify important elements of the ongoing review that the SMA must conduct under this paragraph. In particular, new proposed subordinate paragraphs (h)(1)(i) through (iii) would require the SMA to conduct an ongoing review of the delivery of services and protections afforded by the ES regulations to MSFWs by the SWA and ES offices, including: (i) Monitoring compliance with § 653.111; (ii) monitoring the ES services that the SWA and one-stop center provide to MSFWs to assess whether they are qualitatively equivalent and quantitatively proportionate to the services the SWA and one-stop centers provide to non-MSFWs; and (iii) reviewing the appropriateness of informal resolution of complaints and apparent violations as documented in the complaint logs. The requirements in proposed paragraphs (h)(1)(i) and (iii) currently exist at § 653.108(g)(1) and the minor proposed revisions to these requirements are intended only to clarify the existing requirements. Specifically, in paragraph (h)(1)(i), the Department proposes to add a requirement that ongoing reviews include monitoring compliance with § 653.111 to highlight the importance of significant MSFW one-stop centers in staffing appropriately to meet the unique needs of farmworkers. The Department proposes to add § 653.108(h)(1)(ii) to clarify that SMAs are required to monitor whether the ES services provided to MSFWs are qualitatively equivalent and quantitatively proportionate to the services provided to non-MSFWs. Finally, the Department proposes to clarify in paragraph (h)(1)(iii) that SMAs must review informal resolution of complaints and apparent violations to ensure that resolution of matters is occurring consistent with the requirements in part 658, subpart E.

The Department proposes to redesignate § 653.108(g)(1) as § 653.108(h)(2) and revise the regulatory text by replacing “local offices” with “ES offices” to align with the defined term for ES office in § 651.10. The Department further proposes to revise the paragraph by clarifying that the SMA, if warranted, can notify the SWA of the corrective action(s) necessary to address the deficiencies described earlier in the paragraph, and that the corrective action plan must comply with the requirements at proposed paragraph (h)(3)(v). This revision is intended to clarify that the corrective action plan is the method by which a SWA or ES office achieves compliance with the SMA's compliance findings. The existing regulatory text provides that the SMA may request a corrective action plan, which does not appear to require the SWA or ES office to take corrective action. The proposed revision clarifies that SMAs assure compliance by documenting noncompliance, describing the corrective actions necessary for the SWA to come into compliance, reviewing the corrective action plan that the SWA or ES office develops to implement the identified corrective action(s), documenting compliance or lack of compliance with the corrective action plan, and reporting to ETA any noncompliance. Once noncompliance is identified, SWAs have a responsibility to address it, as described in part 653, subpart D.

The Department proposes to redesignate § 653.108(g)(2) to be § 653.108(h)(3) and to clarify that SMAs must conduct onsite reviews of one-stop centers regardless of whether or not the one-stop center is designated as a significant MSFW one-stop center. This is an important clarification because SMAs often mistakenly think they only need to review significant MSFW 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 § 653.108(g)(2)(i)(D) (proposed § 653.108(h)(3)(i)(D)) are the complaint logs required by the regulations under part 658 of this chapter.

At § 653.108(g)(2)(iv), which is proposed § 653.108(h)(3)(iv), the Department proposes a few revisions. First, the Department proposes to add a comma after “After each review,” for technical clarity and readability. Next, the Department proposes to specify that the SMA's conclusions include findings and areas of concern by adding “including findings and areas of concern,” after “The conclusions.” The Department proposes this revision to make the SMA's monitoring align with the ETA monitoring format, which § 653.108(g)(3)(ii) requires the SMA use as a guideline. The Department also proposes to add a requirement that the SMA's report be sent directly to the State Administrator.

The Department also proposes to revise current § 653.108(g)(2)(v) (proposed 653.108(h)(3)(v)) in several ways. First, the Department proposes to add that the SMA's report must include the corrective action(s) required. Second, the Department proposes to specify that, to resolve the findings, the ES Office Manager or other appropriate ES staff must develop and propose a written corrective action plan. These changes conform the SMA's monitoring process with the ETA monitoring format, which requires the monitor to identify the corrective actions required. The Department proposes to add “the” before “actions,” as a technical edit. The Department also proposes to revise the third sentence to clarify that the corrective action plan should be designed to bring the ES office into compliance within 30 days, and to specify that where a plan is not designed to bring the ES office into compliance within 30 days, the length of and reasons for the expended period must be specifically stated and the plan must specify the major interim steps that the ES office will take to correct the compliance steps identified by the SMA. In other words, only if there is a documented justification for compliance to take longer than 30 days can such efforts be “steps” rather than full compliance. This revision is designed to help ensure SWAs resolve identified compliance issues.

At current § 653.108(g)(2)(vii), which is proposed to be paragraph (h)(3)(vii), the Department proposes to allow the SMA to delegate reviews to their staff instead of “a SWA official” because SMA staff may conduct such reviews under the authority of the SMA. This change will clarify that other persons who conduct reviews on behalf of the SMA must be the SMA's staff, who should share the same objectives of the SMA, helping ensure that the role of the monitor advocate is effectively carried out. The Department also proposes that the SMA may delegate the reviews whenever the SMA finds such delegation necessary, as opposed to when the State Administrator finds such delegation necessary. This proposed change aligns with the proposal for the SMA to be a senior-level official with greater authority within the SWA. The SMA, therefore, should be empowered to make the determination about whether such delegation is necessary. The Department also proposes to remove the words “and when” from the phrase “if and when” in this paragraph. As such, the proposed paragraph now states that the SMA may delegate the review described in § 653.108(h)(1) to the SMA's staff, if the SMA finds such delegation necessary, and in such event, the SMA is responsible for and must approve the written report of the review.

The Department proposes to revise § 653.108(g)(3) (proposed paragraph (h)(4)) to ensure all significant MSFW one-stop centers not reviewed onsite by Federal staff are reviewed at least once per year by the SMA or their staff, instead of “a SWA official.” This change is proposed because it is important for these reviews to be conducted by staff who share the SMA's objectives. As previously noted, the SMA's staff are responsible to assist the SMA in carrying out the SMA's duties described at § 653.108.

Paragraph (g)(5), proposed § 653.108(h)(6), currently requires SMAs to review outreach workers' daily logs and other reports including those showing or reflecting the workers' activities “on a random basis.” The Department proposes to replace “random” with “regular.” SMAs were confused, at times, about what “random” means and, therefore, how frequently they should be reviewing outreach staff's logs. Replacing “random” with “regular” is intended to help clarify the SMA's responsibility that these reviews occur on a regular basis. The frequency of these reviews may vary based on how many outreach staff each SWA has; however, there should be some standard of frequency in each SWA to ensure regular review occurs. For example, in SWAs with one or two outreach staff, it may be possible for the SMA to review outreach logs every month, but in SWAs with many outreach staff, it may be more appropriate to review outreach logs quarterly. The Department also proposes to replace “outreach workers” with “outreach staff” throughout this paragraph to use the defined term at § 651.10.

The Department proposes to revise § 653.108(g)(6), proposed paragraph

(h)(7), which currently requires the SMA to write and submit Annual Summaries to the State Administrator with a copy to the RA by adding that a copy of the summary must also be sent to the NMA. This aligns the requirement with paragraph (s) (proposed paragraph (u)) whereby the Annual Summary must also be sent to the NMA. The Department also proposes to remove the last part of the sentence, “as described in paragraph (s) of this section,” as it is no longer necessary with the addition of the NMA to this provision.

At § 653.108(h), proposed paragraph (i), the Department proposes to add “as requested by the Regional or National Monitor Advocate,” after “The SMA must participate in Federal reviews conducted pursuant to part 658, subpart G, of this chapter.” This is proposed to be added to ensure the SMA participates in a way that is helpful and productive for the RMA or NMA. In the past, there have been cases where the SMA either was not permitted or chose not to participate in reviews with the Federal staff. This proposed addition helps ensure the SMA will participate when requested.

The Department proposes to redesignate § 653.108(i) as § 653.108(j). The Department proposes to remove the provision permitting the State Administrator to assign the SMA the responsibility as the Complaint System Representative, and the requirement that the SMA participate in the Complaint System set forth in part 658, subpart E. As explained later in the section of the preamble addressing part 658, subpart E, the Department is proposing to prohibit SWAs from assigning SMAs responsibility for processing complaints. The Department is proposing to remove SMAs from Complaint System processing because this section tasks SMAs with monitoring the Complaint System, and the Department anticipates that SMAs will be more objective in monitoring the Complaint System if they are not tasked with monitoring work that they themselves perform. This change would result in greater safeguards for MSFWs within the Complaint System. The Department proposes to make corresponding edits to part 658, subpart E.

The Department proposes to redesignate § 653.108(j) and (k), as a technical edit.

The Department proposes a new provision at proposed § 653.108(m). This provision is proposed to state how the SMA must establish an ongoing liaison with the State-level E.O. Officer. The Department proposes this addition to enhance equity and inclusion for farmworkers. When SMAs work closely with the State-level E.O. Officer, the SMA will have a better sense of steps the State is taking to meet its equity requirements pursuant to WIOA sec. 188, and how the SMA can better ensure services are provided equitably for MSFWs. The SMA can also provide information to the State-level E.O. Officer on patterns in service provision.

The Department proposes to redesignate § 653.108(l) as § 653.108(n), and to make a conforming revision to the cross reference in this paragraph so that the organizations with which the SMA must meet are updated to reflect the organizations described in proposed paragraph (l) and the State-level E.O. Officer referred to in proposed paragraph (m). This will mean that § 653.108(n) would refer to the paragraphs requiring the SMA to establish an ongoing liaison with NFJP grantees, other organizations serving farmworkers, employers, and employer organizations in the State, and the 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 § 653.108(m) as 653.108(o), as a technical edit. The Department also proposes to revise this paragraph to clarify that when the SMA conducts field visits, they must discuss the SWA's provision of ES services and obtain input on the adequacy of those services from MSFWs, crew leaders, and employers, rather than explaining and providing direct employment services and access to other employment-related programs. The purpose of the SMA's field visits is distinct from the direct ES services that outreach staff provide to MSFWs in the field, because the SMA is tasked with assessing how the ES is functioning and whether the SWA can make improvements, as opposed to the direct provision of ES services. This proposed revision helps clarify that SMA field visits are for a different purpose than outreach staff field visits.

The Department proposes to redesignate § 653.108(n) through (p) as § 653.108(o) through (q), as a technical edit.

The Department proposes to redesignate § 653.108(q) as § 653.108(s), as a technical edit. The Department also proposes a technical edit to remove the reference to SWA staff and keep only “ES staff” to align with the proposed definition for

ES staff

at § 651.10. Because SWA staff are included in the proposed definition of ES staff, this will not change the substance of the paragraph. The Department further proposes to simplify the wording of the paragraph by replacing the phrase “Subsequent to” with the word “After.”

The Department proposes to redesignate § 653.108(r) and (s) as § 653.108(t) and (u), respectively, as a technical edit.

The Department proposes to redesignate § 653.108(s) as § 653.108(u). Proposed paragraph (u) requires the SMA to prepare an Annual Summary describing how the State provided ES services to MSFWs within the State based on statistical data, reviews, and other activities. It includes subordinate paragraphs (1) through (11), which identify the various required components of the Annual Summary.

The Department proposes to revise § 653.108(s)(2), proposed § 653.108(u)(2), to conform with proposed edits at § 653.108(c). Specifically, § 653.108(s)(2) currently requires an assurance that the SMA has direct, personal access, whenever they find it necessary, to the State Administrator. Proposed paragraph (u)(2) would require an assurance that the SMA is a senior-level official who reports directly to the State Administrator or the State Administrator's designee as described at § 653.108(c).

The Department proposes to amend § 653.108(s)(3)(i) and (ii), proposed 20 CFR 653.108(u)(3)(i) and (ii), to revise the assurance requested in the SMA's Annual Summary regarding SMA staffing levels. Currently, the Annual Summary requires an assurance that the SMA devotes all of their time to Monitor Advocate functions, or, if the SMA conducts their functions on a part-time basis, an explanation of how the SMA functions are effectively performed with part-time staffing. This paragraph is proposed to be revised in several ways. First, proposed paragraph (u)(3) would begin with a requirement to provide an evaluation of SMA staffing levels, and it would be followed by § 653.108(u)(3)(i) and (ii), which would outline the

contents of this evaluation. Specifically, paragraph (u)(3)(i) would require the SMA to assure that they devote all their time to Monitor Advocate functions, or if the SMA has approval under § 653.108(e) to conduct their functions on a part-time basis, an assessment of whether they can perform all their functions effectively on a part-time basis. Paragraph (u)(3)(ii) would additionally require the SMA to assess whether the performance of SMA functions requires increased time by the SMA (if part time) or an increase in the number of ES staff assigned to assist the SMA in the performance of SMA functions, or both. This information will help the RMA and NMA better understand whether the SMA's status as full- or part-time is sufficient for them to carry out their duties, and whether the SMA requires additional staff to perform all the functions required by this section. The previous requirement for an assurance did not provide the depth, context, or explanation necessary for the State Administrator or the Department to assess whether the SMA has adequate staffing.

The Department proposes to revise § 653.108(s)(4) (iii), proposed § 653.108(u)(4)(iii), to clarify that the summary of any technical assistance the SMA provided must include any technical assistance provided to outreach staff, in addition to technical assistance provided to the SWA and ES offices. While outreach staff are considered part of the SWA, the Department proposes to clarify that the summary must specifically identify the technical assistance that the SMA provided to outreach staff, so that the State Administrator and the Department may better assess whether outreach staff are obtaining the knowledge and resources necessary to fulfill their duties.

The Department proposes to revise § 653.108(s)(5), proposed § 653.108(u)(5), to specify that when the SMA summarizes the outreach efforts undertaken by all significant and 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 § 653.107, including whether outreach staff are able to reach the majority of MSFWs in the State.

The Department proposes to revise § 653.108(s)(7), proposed § 653.108(u)(7), by adding that in addition to providing a summary of how the SMA is working with WIOA sec. 167 NFJP grantees, the SMA must provide a summary of how they are working with the State-level E.O. Officer. This revision aligns with the proposed requirement at proposed § 653.108(m) for the SMA to establish an ongoing liaison with the State-level E.O. Officer. The inclusion of this information in the Annual Summary will allow State Administrators, RMAs, and the NMA to review what the SMA is doing to fulfill the new liaison requirement (

e.g.,

how frequently are they meeting with the State-level E.O. Officer, the type of information that is shared, any best practices or lessons learned).

The Department proposes to revise § 653.108(s)(10), proposed § 653.108(u)(10), which currently requires the SMA to provide a summary of activities related to the AOP and an explanation of how those activities helped the State reach the goals and objectives described in the AOP. At the end of the 4-year AOP cycle, the summary must include a synopsis of the SWA's achievements over the previous 4 years to accomplish the goals set forth in the AOP, and a description of the goals which were not achieved and the steps the SWA will take to address those deficiencies. The Department proposes to replace the requirement to explain “how” the activities helped the State reach the goals and objectives described in the AOP with a requirement to explain “whether” the activities helped the State reach the objectives described in the AOP. This revision better reflects the information that the Department seeks (

i.e.,

whether these activities helped the State meet its objectives). The Department also proposes to remove “goals” from the first sentence and to replace “goals” with “objectives” in the second sentence, because the Department does not ask States to identify specific goals in the AOP. Rather, the SWA provides objectives in its AOP, and the SMA's Annual Summary should explain whether the activities that the SWA performed that year are meeting the identified objectives.

The Department proposes two clarifying edits to § 653.108(s)(11), proposed § 653.108(u)(11). First, the Department proposes to replace significant MSFW “ES offices” with significant MSFW “one-stop centers” to align with the defined term at § 651.10. Second, the Department proposes to revise the requirement for the SMA to summarize the State's efforts to provide ES staff in accordance with § 653.111, to require the SMA to summarize the State's efforts to comply with § 653.111. The Department anticipates that this change will put greater emphasis on compliance with the requirements of § 653.111.

Section 653.109 Data Collection and Performance Accountability Measures

Section 653.109 specifies data collection and performance accountability measures specific to MSFWs. The Department proposes to make several revisions to this section.

First, the Department proposes to add a new data collection requirement in paragraph (b) of this section. Specifically, the Department proposes to add § 653.109(b)(10), which would require SWAs to collect the number of reportable individuals and participants who are MSFWs. The Department anticipates that access to this information will help the SWAs and the Department to better understand how many MSFWs are engaging with the ES, either as reportable individuals or participants, and to identify potential issues surrounding MSFW access to ES services. Specifically, Monitor Advocates will be able to compare the number of MSFW reportable individuals and the number of MSFW participants and use this data to identify potential areas where MSFWs are not being offered participant-level services. The collection of this data is consistent with the Monitor Advocate System's purpose to monitor whether MSFWs have meaningful access to services in a way that is appropriate to their particular needs. SWAs commonly report few or no MSFW ES participants, which creates the concern that MSFWs do not have access to ES services. This piece of information will enable Monitor Advocates to identify cases where there may be larger numbers of MSFW reportable individuals, but few or no MSFW participants. Without this information, Monitor Advocates and the Department lack data necessary to identify whether that problem exists, and cannot work to correct the problem, if it is present.

Second, the Department proposes to redesignate § 653.109(b)(10) as § 653.109(b)(11), as a technical edit to account for the insertion of proposed § 653.109(b)(10).

Third, the Department proposes several revisions to § 653.109(h), which sets forth the minimum levels of service that significant MSFW States must meet. First, the Department proposes to replace the requirement that a significant MSFW State measure the number of outreach contacts per “week

”

with the number of outreach contacts per “quarter

”

to align with the SWA's quarterly data submissions to the Department. SMAs have provided

feedback to the Department that measuring contacts per week is difficult and not an effective measurement of outreach, and they believe it would be a better measure to report contacts per quarter. Second, the Department proposes to clarify that it will not update minimum service level indicators on an annual basis, by removing “for each year” from the last sentence in § 653.109(h). The Department's practice has been that minimum service level indicators have not been updated each year because the Department has not identified such a need. This revision would align the regulation with what is happening in practice.

Section 653.110 Disclosure of Data

The Department proposes to revise § 653.110(b) by removing the word “the” before “ETA,” as a technical edit.

Section 653.111 State Workforce Agency Staffing Requirements for Significant MSFW One-Stop Centers

The Department proposes several revisions to § 653.111, which outlines SWA staffing requirements for significant MSFW one-stop centers. First, the Department proposes to revise the heading of this section to clarify that the staffing requirements in this section apply only to significant MSFW 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 § 653.107(a)(3)—and divide it into two sentences. The first sentence would provide that a SWA

must

staff significant MSFW one-stop centers in a manner that facilitates the delivery of ES services tailored to the unique needs of MSFWs, and the second sentence would clarify that such staffing includes recruiting qualified candidates who meet the criteria for outreach worker positions in § 653.107(a)(3). The Department proposes this change to specify that SWAs must recruit qualified candidates who meet the criteria for outreach workers in § 653.107(a)(3). SWAs have some discretion to create a plan to meet the standard, but the ultimate requirement is for SWAs to recruit qualified candidates who meet these criteria.

Third, for purposes of consistency, the Department proposes a technical edit to replace “special needs of MSFWs” with “unique needs of MSFWs,” to conform to the terminology that the Department uses elsewhere in the ES regulations.

2. Subpart F—Agricultural Recruitment System for U.S. Workers (ARS)

Subpart F sets forth the regulations governing the ARS.

Section 653.501 Requirements for Processing Clearance Orders

Section 653.501 describes the requirements that ES staff must follow when processing clearance orders for the ARS. As explained subsequently, the Department proposes to make several substantive and technical revisions to this section.

The Department proposes to make a minor clarifying edit to § 653.501(a) by replacing the terms “ES office” or “SWA official” with “ES staff” to conform with the proposed revision to the definition of

ES staff

at § 651.10.

The Department proposes to add a fourth paragraph to § 653.501(b), at § 653.501(b)(4), which would require ES staff to consult the Department's Office of Foreign Labor Certification (OFLC) and Wage and Hour Division (WHD) debarment lists before placing a job order into intrastate or interstate clearance and initiate discontinuation of ES services if the employer is debarred or disqualified from participating in one or all of the Department's foreign labor certification programs. The Department's mission is to promote the welfare of workers. This addition is intended to further that mission by ensuring that ES offices do not place U.S. workers with employers who are presently barred from employing immigrant and nonimmigrant workers via the employment-based visa programs. This requirement protects workers who may be using the ARS by ensuring that the ARS is not used to place a worker with an employer that has failed to comply with its obligation(s) as an employer of foreign workers. ETA's regulations at 20 CFR 655.73, 655.182, 655.473, 656.31(f), and the Wage and Hour Division's regulations at 29 CFR 503.24 describe the violations that may result in an employer's debarment from receiving future labor certifications for a specified time period. The potential reasons for debarment include serious violations that could affect worker safety, for example “[a] single heinous act showing such flagrant disregard for the law” that future compliance with program requirements cannot reasonably be expected (§ 655.182(d)(1)(x)). Such reasons also include an employer's substantial failure to comply with regulatory requirements, including an employer's failure to pay or provide the required wages or working conditions, an employer's failure to comply with its obligations to recruit U.S. workers, or an employer's failure to cooperate with required audits or investigations. Additionally, an employer's failure to pay a necessary certification fee in a timely manner may result in debarment. In the Department's view, whether the reason an employer is debarred from an OFLC program (or programs) is directly related to worker safety, failure to provide required wages or working conditions, failure to comply with recruitment requirements or participate in required investigations or audits, or failure to pay required fees, the employer subject to debarment should be excluded from participation in the ARS. The Department does not want to facilitate placement of workers with employers whose actions have risen to a level that warrants debarment.

The Department proposes minor edits to § 653.501(c)(3) to clarify that paragraph (c) sets forth a list of the assurances that an employer must make before the SWA may place a job order into intrastate or interstate clearance.

In addition, the Department proposes to make several technical and conforming edits in § 653.501(d). First, the Department proposes to revise § 653.501(d)(1) by clarifying that the provision refers to the “order-holding ES office,” instead of “order-holding office,” as it is currently written. This proposed change aligns with § 651.10 by using the defined term,

ES office.

Second, the Department proposes to revise § 653.501(d)(3) by referring to “this paragraph” instead of “paragraph (d)(3) of this section” for clarity.

Third, the Department proposes to revise § 653.501(d)(6) to remove the explicit instruction for ES staff to assist all farmworkers “upon request in their native language.” This revision is intended to align with the broader proposed revisions regarding language access in this NPRM. Because the Department proposes in this NPRM to clarify that SWAs must already comply with the language access and assistance requirements at 29 CFR 38.9, the language access requirement here is redundant, unnecessary, and potentially confusing, because it may appear to set a different standard.

Fourth, the Department proposes to revise § 653.501(d)(10) to remove the sentence requiring checklists under this paragraph to be in the workers' native language because, as previously mentioned, language access requirements are already provided at 29 CFR 38.9 and retaining this language

would be redundant and unnecessary. The Department also proposes to remove the requirement that SWAs must use a standard format provided by the Department (such as Form WH516 or a successor form) to provide workers referred to clearance orders a checklist summarizing wages, working conditions, and other material specifications in the clearance order. Removing this requirement would provide SWAs with greater flexibility to develop and use their own forms that meet their needs. Under the proposed revision, SWAs may still use standard forms, including the WH516, but they would not be required to use a standard form. Regardless, the checklist that the SWA provides workers must include the material terms and conditions of employment that are required to be included in clearance orders pursuant to § 653.501(c)(1)(iv).

Finally, the Department proposes to revise § 653.501(d)(11) to replace the reference to the Department's “ARS Handbook” with a reference to “Departmental guidance.” As proposed, § 653.501(d)(11) would require the applicant-holding office to give each referred worker a copy of the list of worker's rights described in Departmental guidance. This revision is intended to reflect the fact that this list of worker's rights may be available in different documents and formats in the future.

Section 653.503 Field Checks

The Department proposes to make two conforming and clarifying edits to the regulations governing field checks in § 653.503. First, the Department proposes to revise § 653.503(a) to add “transportation” to the list of conditions that SWAs must assess and document when performing a field check. This change would increase health and safety of MSFWs by adding an additional safeguard against dangerous transportation tied to their employment.

Second, the Department also proposes to remove that the field checks are “random.” The proposed revision would clarify that the selection of the clearance orders on which the SWA will conduct field checks does not need to be random, and may respond to known or suspected compliance issues, thereby improving MSFW worker protection. In addition, if a SWA makes placements on 9 or fewer clearance orders, the SWA must conduct field checks on 100 percent of those clearance orders. See § 653.503(b). Therefore, in those cases, field checks could not be conducted on a random basis.

E. Part 658—Administrative Provisions Governing the Wagner-Peyser Act Employment Service

This part sets forth the regulations governing the Complaint System for the Wagner-Peyser Act Employment Service (ES) at the State and Federal levels. Specifically, the Complaint System processes complaints against an employer about the specific job to which the applicant was referred through the ES, and complaints involving the failure to comply with ES regulations under 20 CFR parts 651, 652, 653, and 654. The Complaint System also accepts, refers, and, under certain circumstances, tracks complaints involving employment-related laws as defined in § 651.10. While the Complaint system is available to MSFWs and non-MSFWs, the Complaint System includes additional shorter processing timelines and additional follow-up on MSFW-related complaints, which are designed to provide increased protection for MSFWs. The Department proposes to revise several regulations within this part to conform with proposed revisions to definitions listed at § 651.10, remove redundancies and make other 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 § 653.108 requires the SMA to monitor the Complaint System, and the proposed revisions would remove the challenge that exists when the SMA is required to monitor their own actions in processing MSFW complaints. The Department anticipates that an SMA will be more objective in monitoring the Complaint System if they are not tasked with monitoring their own actions. The proposed revisions would maintain the integrity of the Monitor Advocate System as it provides safeguards to MSFWs who participate in the Complaint System, and they would allow SMAs to focus their attention on monitoring the ES services that are provided to MSFWs in their State.

The Department has observed through analysis of SWA quarterly Labor Exchange Agricultural Reporting System 5148 Reports, meetings with SMAs and RMAs, and other communications with SWAs, that SWAs misunderstand several of the requirements currently in part 658. These misunderstandings have caused inaccurate recordkeeping and reporting, which impede the ability of SMAs and the Department to monitor MSFW complaints to determine whether the Complaint System is processing MSFW complaints consistently with the governing regulations. The Department also has received information, through 5148 Reports and Monitor Advocate Annual Summaries, that Complaint System activity is low in many States. Through Wage and Hour Division (WHD) investigations, news reports, SMA Annual Summaries, conversations with farmworkers and farmworker advocacy organizations, and anecdotal information SMAs share with the Department, the Department concludes that violations of employment-related laws against MSFWs may be prevalent across the country—therefore, it is concerning that Complaint System activity is low. In Program Year 2019 (July 2019-June 2020), which is the most recent complete set of data available, at least eight States did not report any MSFW complaints. RMAs and the NMA have communicated concerns to the Department that one of the reasons complaint numbers may be low is because MSFWs are unaware of the Complaint System, or SWAs are not processing or recording complaints correctly.

Through SWA 5148 Reports and RMA monitoring, the Department has identified several common requirements in the regulatory text that SWAs may misunderstand. These misunderstandings have a direct impact on the availability and correct processing of complaints. To address these issues, several of the proposed revisions are more prescriptive than the existing regulatory text and specifically clarify terms and other requirements.

1. Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System)

Section 658.410 Establishment of Local and State Complaint Systems

The Department proposes to amend § 658.410(c) to replace the word “SWA” with “State” so that it clearly points to the defined term “State Administrator.” This change will clarify which specific individual is responsible to ensure a central complaint log is maintained.

The Department proposes to remove language in § 658.410(c)(6) that the complaint log must include actions taken on apparent violations and, instead, add several specific references in § 658.410(c)(1) through (6) that explain that each requirement also applies to apparent violations. These proposed changes are intended to clarify

that the complaint log must document all the same components for apparent violations, except for the complainant's name because there is no complainant for an apparent violation. The Department commonly identifies issues through RMA monitoring of SWAs where complaint logs do not document apparent violations. These proposed revisions would clarify the requirement to document apparent violations and specify the information that SWAs must include on the complaint log.

The Department also proposes to amend § 658.410(c)(6) to make all uses of the word “action” plural because there may be several actions taken to appropriately process a complaint or apparent violation. This change is necessary to clarify to SWAs that they must document all actions. The Department also proposes to describe the type of information SWAs must include in their complaint logs by noting that it includes any documents the SWA sent or received and the date the SWA took such action(s). This change will mean the SWA must specifically record documents the SWA sent or received, and the dates of those actions, on the complaint log. Through monitoring SWAs, the Department has observed that SWAs often do not keep records of all actions taken. Instead, SWAs often have minimal information listed on their complaint logs. The proposed changes are purposefully prescriptive because it is critical that the Department has records of all documents sent and received related to complaints and apparent violations. This allows the Department to have sufficient information to monitor SWA complaint and apparent violation processing. These records are also critical when RAs receive appeals from SWA determinations and must review whether a SWA's actions are compliant.

The Department proposes to amend § 658.410(g) to remove the word “local,” which comes before “ES office” in the existing regulatory text. This proposed change is appropriate because

ES office

is a defined term at § 651.10 and, therefore, the word “local” is not necessary. Removal of the word “local” will also clarify that the regulatory text is not referring to a different type of office.

The Department proposes to remove the requirement in § 658.410(h) that the SMA must be the Complaint System Representative designated to handle MSFW complaints and replace it with a provision prohibiting the State Administrator from assigning the SMA responsibility for processing MSFW complaints. The Department is proposing this change because SMAs are also tasked with monitoring the Complaint System, and the Department anticipates that SMAs will be more objective in monitoring the Complaint System if they are not tasked with monitoring work that they themselves perform. Removing this responsibility would also allow SMAs to focus their attention on monitoring the ES services provided to MSFWs in their State.

For similar reasons, the Department proposes to revise § 658.410(m) to replace “SMA” with “Complaint System Representative.” This proposal is consistent with other changes throughout part 658 that remove the SMA's direct involvement in the Complaint System, including the proposed removal of the SMA being designated to process MSFW complaints.

The Department proposes to remove § 658.410(n), which currently addresses correspondence to complainants who are English-language learners. The Department has determined that it is no longer necessary to include explicit requirements regarding language access in various sections of the ES regulations, because all one-stop centers and ES staff must comply with the language access and assistance requirements in 29 CFR 38.9 with regard to all LEP individuals, including those LEP individuals who file complaints under the Complaint System set forth in this subpart. This proposed revision is consistent with the Department's proposed addition in § 653.103(b), which would require SWAs to comply with the language access and assistance requirements at 29 CFR 38.9 with regard to all LEP individuals, including MSFWs who are LEP individuals, as defined at 29 CFR 38.4(hh). The proposed revision would specify that this requirement includes ensuring ES staff in one-stop centers comply with these language access requirements. The regulations at 29 CFR 38.9 establish that language access requirements apply to services provided to all LEP individuals at all one-stop centers and are broader than the existing requirement at § 658.410(n). For these reasons, the reference in § 658.410(n) is no longer necessary. Like the reasons laid out previously in the preamble concerning proposed changes to § 653.103(b), having a specific reference to LEP translations for complaint correspondence may inaccurately create the appearance that there are two sets of language access standards or that requirements for the Complaint System are narrower. Removing the reference clarifies that the full scope of 29 CFR 38.9 also applies to LEP individuals participating in the Complaint System.

Due to the proposed removal of current regulatory text in § 658.410(n), the Department proposes to redesignate the existing regulatory text at § 658.410(o) as § 658.410(n).

Section 658.411 Action on Complaints

The Department proposes to amend § 658.411(a)(2)(ii) to remove the word “and” before “telephone numbers” in the listed methods to contact a complainant, and to add “and any other helpful means by” to broaden the scope of contact methods requested from complainants. In addition, the Department proposes to indicate that there may be multiple physical addresses and email addresses through which a complainant could be contacted. The Department has received information from SWAs and other grantee organizations, including NFJP grantees, that MSFWs often do not have or respond to traditional methods of communication, including mail, email, and telephone. Specifically, migrant farmworkers move from one location to another for work, so it is not always reliable or efficient to send communications through mail to their last known or permanent addresses. Additionally, SWAs and NFJP grantees indicate that MSFW youth often are more responsive to communication sent through social media and other applications. In the process of advising SWAs regarding complaints, the Department has encountered several cases where SWAs closed complaints because the complainant failed to respond to the SWA. It is possible that a portion of these failures to respond are due to lack of current contact information, instead of the complainant's desire to close the complaint. The Department's proposed revision addresses this issue by directing SWAs to request from complainants any other helpful means by which they might be contacted, which would broaden the potential methods by which SWAs may contact complainants and account for the fact that complainants may receive information through various platforms other than physical mail, email, or telephone, including technological applications. This would also increase the likelihood that SWAs will be able to communicate with complainants to process complaints to resolution. This change should improve MSFW access to the Complaint System and increase the SWA's ability to resolve complaints.

Paragraph (b) of § 658.411 covers complaints regarding an employment-related law. The Department proposes to amend § 658.411(b)(1) to replace “a” with “an” before “ES office” as a

technical grammar edit. The Department also proposes to clarify the appropriate steps for processing employment-related law complaints involving alleged violations of nondiscrimination laws or reprisal for protected activity by revising § 658.411(b)(1), to add a reference to § 658.411(c). This revision would clarify that the procedures in § 658.411(c) apply to any 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 § 658.411(b)(1)(ii)(B). First, the Department proposes to remove both references to the SMA making determinations and taking actions on employment-related law complaints and replace the first with a reference to the “Complaint System Representative.” This proposal is consistent with other changes throughout part 658 that remove the SMA's direct involvement in the Complaint System, including the proposed removal of the SMA being designated to process MSFW complaints. As explained earlier, the Department is proposing to remove the SMA from Complaint System processing because the SMA duties outlined at § 653.108 include monitoring the Complaint System, and the Department anticipates that SMAs will be more objective in performing this monitoring if they are not tasked with monitoring their own actions for compliance. Second, the Department proposes to replace the word “employment” with “ES” before “services” in the last sentence to conform with the defined term

Wagner-Peyser Act Employment Service (ES) also known as Employment Service (ES).

The Department also proposes to change “and except” to “or” to clarify that immediate action must be taken in cases where either the Complaint System Representative determines that it is necessary or where informal resolution would be detrimental to the complainant.

Consistent with the proposed removal of the SMA from § 658.411(b)(1)(ii)(B), the Department proposes to amend § 658.411(b)(1)(ii)(D) to remove the requirement for the ES office or SWA Complaint System Representative to refer the complaint to the SMA who must immediately refer the complaint. Instead, under the proposed regulatory text, the ES office or SWA Complaint System Representative would themselves refer the complaint immediately to the appropriate enforcement agency for prompt action. This change would remove the SMA from Complaint System processing for the same reasons that the Department proposes to remove the SMA from other aspects of Complaint System processing. This proposed change is consistent with the SWA's requirements in processing non-MSFW complaints, where staff other than the SMA refer complaints to enforcement agencies. Additionally, this proposed change would decrease the amount of administrative time for complaints to be referred for prompt action by enforcement agencies. It is important to note that this regulation specifically deals with complaints that ES offices or SWA staff have determined need to be referred to a State or Federal agency. Requiring staff to refer the complaint first to the SMA, who then refers to the applicable agency, adds unnecessary time, which may cause avoidable harm to complainants in sensitive or otherwise serious, 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 § 658.411(b)(1)(ii)(F) to provide steps ES offices and SWAs must take when they receive complaints alleging an employer in a different State has violated an employment-related law, when such complaints are filed by or on behalf of MSFWs. The proposed changes would require SWAs and ES offices to use the same process for processing employment-related law complaints as § 658.411(d)(ii) currently requires for ES complaints involving an employer in another State. This situation comes up periodically, and the Department has advised SWAs to follow the same procedures for when an ES complaint is filed in a different State, which includes sending the complaint to the SWA in the other State. This addition is intended to make the 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 § 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

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 § 658.411(d) throughout to replace “a” with “an” as a technical edit when it comes before “ES office.” In addition, the Department proposes to revise § 658.411(d)(1) to clarify that the procedures in § 658.411(c) apply to all ES complaints alleging violations of nondiscrimination laws, including violations of EEOC regulations, the Immigration and Nationality Act's anti-discrimination provision, or laws enforced by CRC.

The Department proposes to rephrase § 658.411(d)(2)(ii)(A), which addresses how an ES office should process an ES complaint filed against an employer that is not located within its service area, to clarify the order of steps such an office must take, without substantively changing the steps. Specifically, the proposed regulatory text changes the phrasing from “must send, after ensuring that the Complaint/Referral Form is adequately completed, a copy . . .” to “must ensure the Complaint/Referral Form is adequately completed, and then immediately send a copy . . . .” This proposed change is consistent with the proposed change at § 658.411(b)(3), so that processes for both ES complaints and employment-related law complaints (other than alleged violations of rights under the EEOC regulations or laws enforced by CRC, as described at § 658.411(c)) are the same when the complaint involves an employer in a different State. The changes are, therefore, necessary for clarity and consistency.

At § 658.411(d)(1)(iv), the Department proposes a technical edit to add a comma after “alleged agency-wide violation.”

The Department proposes to amend § 658.411(d)(4)(i) and (5)(i) to replace references to the SMA investigating, attempting informal resolution, and making written determinations with references to the “Complaint System Representative” taking such actions. This proposed change is necessary to conform to the proposed change, discussed previously, to remove the SMA from playing a direct role in Complaint System processing. This will strengthen the SMA's role to monitor the Complaint System.

The Department proposes to amend § 658.411(d)(5)(i) to change “ES or SWA officials” to “the SWA” because the proposed changes to § 651.10 remove the definition of SWA official.

The Department proposes to amend § 658.411(d)(5)(ii) in three ways. First, the Department proposes to change “SWA officials” to “the SWA” because the proposed changes to § 651.10 remove the definition of

SWA official.

Because of this proposed term change, it is also necessary to make the word “determine” plural for subject-verb agreement. Second, the Department proposes to insert “, in writing,” between “request” and “hearing” to clarify that the complainant must request a hearing in writing. This change will make the procedures consistent with § 658.411(d)(5)(i)(D). Lastly, the Department proposes to change “working days” to “business days.” Under § 651.10,

working days

and

business days

have the same meaning and can be used interchangeably. However, because this reference is located immediately after a use of “business days” in § 658.411(d)(5)(i)(D), it may give the appearance that there are different meanings between the terms. To

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