Wagner-Peyser Act Staffing Flexibility
| Citation | 84 FR 29433 |
| Record Number | 2019-12111 |
| Published date | 24 June 2019 |
| Court | Employment And Training Administration,Labor Department |
Federal Register, Volume 84 Issue 121 (Monday, June 24, 2019)
[Federal Register Volume 84, Number 121 (Monday, June 24, 2019)]
[Proposed Rules]
[Pages 29433-29455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12111]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 651, 652, 653, and 658
[Docket No. ETA-2019-0004]
RIN 1205-AB87
Wagner-Peyser Act Staffing Flexibility
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Labor (Department) is issuing a Notice
of Proposed Rulemaking (NPRM) that, if finalized, would give States
increased flexibility in their administration of Employment Service
(ES) activities funded under the Wagner-Peyser Act. The proposed
changes would modernize the regulations to align them with the
flexibility allowed under the Workforce Innovation and Opportunity Act
(WIOA). The changes would also give States the flexibility to staff
employment and farmworker-outreach services in the most effective and
efficient way, using a combination of State employees, local government
employees, contracted services, and other staffing models in the way
that makes the most sense for them. This in turn could leave more
resources to help employers find employees, and to help employees find
the work they need. The proposed changes are also consistent with
Executive Order (E.O.) 13777, which requires the Department to identify
outdated, inefficient, unnecessary, or overly burdensome regulations
that should be repealed, replaced, or modified.
DATES: To be ensured consideration, comments must be received on or
before July 24, 2019.
ADDRESSES: You may submit comments, identified by docket number ETA-
2019-0004, for Regulatory Information Number (RIN) 1205-AB87, by one of
the following methods:
Federal e-Rulemaking portal: http://www.regulations.gov. Follow the
website instructions for submitting comments (under ``Help'' > ``How to
use Regulations.gov'').
Mail and hand delivery/courier: Written comments, disk, and CD-ROM
submissions may be mailed to Adele Gagliardi, Administrator, Office of
Policy Development and Research, U.S. Department of Labor, 200
Constitution Avenue NW, Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with ``RIN 1205-AB87.''
Please submit your comments by only one method. Please be advised
that the Department will post all comments received that relate to this
NPRM on http://www.regulations.gov without making any change to the
comments or redacting any information. The http://www.regulations.gov
website is the Federal e-rulemaking 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 (SSNs), personal addresses, telephone
numbers, and email addresses included in their comments, as such,
information may become easily available to the public via the http://www.regulations.gov website. It is the responsibility of the commenter
to safeguard personal information.
Also, please note that, due to security concerns, postal mail
delivery in Washington, DC, may be delayed. Therefore, the Department
encourages the public to submit comments on http://www.regulations.gov.
Docket: All comments on this proposed rule will be available on the
http://www.regulations.gov website and can be found using RIN 1205-
AB87. The Department also will make all the comments it receives
available for public inspection by appointment during normal business
hours at the above address. If you need assistance to review the
comments, the Department will provide appropriate aids such as readers
or print magnifiers. The Department will make copies of this proposed
rule available, upon request, in large print and electronic file on
computer disk. To schedule an appointment to review the comments and/or
obtain the proposed rule in an alternative format, contact the Office
of Policy Development and Research (OPDR) at (202) 693-3700 (this is
not a toll-free number). You may also contact this office at the
address listed below.
[[Page 29434]]
Comments under the Paperwork Reduction Act (PRA): In addition to
filing comments with the Employment and Training Administration (ETA),
persons wishing to comment on the information collection (IC) aspects
of this proposed rule may send comments to: Office of Information and
Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA, Office of
Management and Budget, Room 10235, 725 17th Street NW, Washington, DC
20503, Fax: (202) 395-6881 (this is not a toll-free number), email:
[email protected].
FOR FURTHER INFORMATION CONTACT: Adele Gagliardi, Administrator, Office
of Policy Development and Research, 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).
Preamble Table of Contents
I. Summary
A. Delivery of Wagner-Peyser Act \1\-Funded Activities
---------------------------------------------------------------------------
\1\ This statute was originally titled the Act of June 6, 1933.
Section 16 of the Wagner-Peyser Act instructs that the statute may
be called the Wagner-Peyser Act.
---------------------------------------------------------------------------
i. Flexible Staffing for Wagner-Peyser Act-Funded Activities
ii. Flexible Staffing for Wagner-Peyser Act-Funded Activities
Conducted Under the Monitor Advocate System
B. Legal Basis
II. Section-By-Section Discussion of Proposal
A. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
B. Part 652--Establishment and Functioning of State Employment
Service
C. Part 653--Services of the Wagner-Peyser Act Employment
Service System
D. Part 658--Administrative Provisions Governing the Wagner-
Peyser Act Employment Service
III. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 13771
(Reducing Regulation and Controlling Regulatory Costs)
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Executive Order 13132 (Federalism)
E. Unfunded Mandates Reform Act of 1995
F. Executive Order 13175 (Indian Tribal Governments)
IV. Amended Regulatory Text
I. Summary
A. Delivery of Wagner-Peyser Act-Funded Activities
The Wagner-Peyser Act established the ES program, which is a
nationwide system of public employment offices that provide public
labor exchange services. The ES program is designed 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 to assist
States by ``developing and prescribing minimum standards of
efficiency'' for the States' public ES offices. This NPRM would amend
regulations in 20 CFR parts 651, 652, 653, and 658 by allowing States
flexibility in how they engage in ES activities. States would have the
freedom to use State employees, local employees, contractors, other
personnel, or a combination of them to best meet their States' unique
circumstances in engaging in ES activities. These changes may free up
resources for the ES program and put its focus where it counts: On
helping employers find the employees they need, and helping workers
find the jobs they are looking for. The Department is also proposing
technical corrections to these parts for consistency among the parts
and to make them easier to understand.
The proposed regulation is consistent with recent E.O.s. On January
30, 2017, President Trump signed E.O. 13771, ``Reducing Regulation and
Controlling Regulatory Costs.'' E.O. 13771 announced ``the policy of
the executive branch to be prudent and financially responsible in the
expenditure of funds, from both public and private sources.'' E.O.
13771 requires that for every new regulation, at least two be
identified for elimination, and that the total incremental cost of new
regulations be no greater than zero. On February 25, 2017, President
Trump signed E.O. 13777, ``Enforcing the Regulatory Reform Agenda.''
E.O. 13777 directs agencies to identify regulations that eliminate jobs
or inhibit job creation; are outdated, unnecessary, or ineffective; or
impose costs that exceed benefits. As required by the E.O.s, ETA is in
the process of identifying such overly burdensome regulations for
repeal, replacement, or modification. This rule is an E.O. 13771
deregulatory action, as it would remove unnecessary restrictions on
States, giving them the flexibility to serve workers better and more
efficiently. Details on the estimated cost savings of this proposed
rule can be found in the proposed rule's economic analysis.
The proposed modifications, if finalized, would require conforming
amendments to the specific Wagner-Peyser Act reference in 20 CFR
678.630, 34 CFR 361.630, and 34 CFR 463.630 of the U.S. Departments of
Labor and Education's joint WIOA regulations (Workforce Innovation and
Opportunity Act; Joint Rule for Unified and Combined State Plans,
Performance Accountability, and the One-Stop System Joint Provisions
Final Rule, 81 FR 55,792 (Aug. 19, 2016)) in a separate rulemaking.
This change would not affect other programs' staffing requirements,
such as the Vocational Rehabilitation program.
i. Flexible Staffing for Wagner-Peyser Act-Funded Activities
Although the Wagner-Peyser Act does not impose particular staffing
requirements for State ES offices, current Wagner-Peyser Act
regulations (see 20 CFR parts 651 through 653, 658) require that labor
exchange services provided through the ES program, Monitor Advocate
System activities for migrant and seasonal farmworkers (MSFWs), and ES
Complaint System intake be provided under the Federal standards for
merit personnel systems.\2\ See 5 CFR part 900, subpart F.
---------------------------------------------------------------------------
\2\ Throughout this NPRM, the term merit staff is used in
several different contexts, but, is always meant to refer to the
requirement to employ individuals consistent with the Federal
standards for merit personnel systems.
---------------------------------------------------------------------------
The Department has reconsidered these one-size-fits-all federally
mandated regulatory requirements and is now proposing to allow States
more flexibility. Specifically, the Department proposes to allow States
to use the staffing model that best fits their needs and the needs of
workers and job creators, whether that model be State staff that comply
with Federal criteria for merit personnel systems, local-area staff,
contracted services, other alternatives, or all of the above. The
Department would remove, with limited exceptions, the requirement for
one-size-fits-all State staffing based on Federal criteria for the
Wagner-Peyser Act ES program. The Department is proposing the change
for several reasons.
First, this proposal aligns the provision of Wagner-Peyser Act
services and activities with WIOA's service-delivery model, so the
programs work better together. WIOA envisions an integrated workforce
development system that provides streamlined service delivery of the
WIOA core programs,\3\ including ES services. Neither statute nor
regulation requires
[[Page 29435]]
that personnel providing services under WIOA's Adult, Dislocated
Worker, and Youth programs meet Federal merit personnel system
criteria. Instead, States and local areas have discretion in how to
staff WIOA title I programs, and they have adopted a variety of
staffing approaches--local-area staff, contractors, and State
employees. The specific staffing requirements in the current ES
regulations may inhibit full integration of the ES program with WIOA's
other services, such as those provided through the WIOA title I
programs. This proposal, if finalized, would allow States to use the
same service-delivery model for both the ES program and other
Department-administered WIOA title I programs.
---------------------------------------------------------------------------
\3\ The WIOA core programs are the WIOA title I Adult,
Dislocated Worker, and Youth programs; the WIOA title II Adult
Education and Family Literacy Act (AEFLA) program; the Wagner-Peyser
Act Employment Service (ES) program, authorized under the Wagner-
Peyser Act, as amended by title III of WIOA; and the Vocational
Rehabilitation (VR) program, authorized under title I of the
Rehabilitation Act of 1973, as amended by title IV of WIOA.
---------------------------------------------------------------------------
Second, allowing maximum flexibility to States would encourage
innovative and creative approaches to delivering employment services
with limited resources. This flexibility would allow States to create
the staffing solutions that best meet their unique needs.
Third, and as a direct consequence, allowing States more staffing
flexibility for ES activities would free up resources to assist job
creators and workers more effectively. Section 3 of the Wagner-Peyser
Act charges the Department with helping States in coordinating ``State
public employment services throughout the country and increasing their
usefulness.'' These proposed changes would free States focusing on
issues of internal administration to focus on issues that are most
central--and most useful--to the purpose of the ES program: Helping
workers find jobs, and helping employers find workers. The changes may
also free up additional resources for States to better help workers and
job creators.
Fourth, the Department has found that services similar to those
provided through the ES program can be delivered effectively through
systems without the specific Federal regulatory requirements regarding
merit staffing. States have had experience administering similar
services through flexible staffing models since 1982, under the Job
Training Partnership Act, the Workforce Investment Act of 1998 (WIA),
and WIOA. These programs historically have placed an emphasis on
serving disadvantaged populations with barriers to employment, as
opposed to the ES program's emphasis on providing universal access to
all job seekers. But the WIOA title I formula programs for adults and
dislocated workers provide similar services to the ES program using a
combination of State employees, other employees, and contractors. These
similar services include job-search assistance, job-referral and
placement assistance for job seekers, reemployment services for
unemployment-insurance claimants, and recruitment services for
employers with job openings. The Department acknowledges that ES
services are less staff- and time-intensive than some services offered
under WIOA's Adult and Dislocated Worker programs (e.g., individualized
case management, training services, etc.). Yet, when comparing the WIOA
title I core programs and ES services that are similar, the performance
outcomes are comparable (earnings, employment status, etc.).\4\ ETA
seeks comments addressing how differing staffing models for the various
DOL-administered workforce programs affect--or do not affect--services
delivered, worker and employer outcomes, and administrative costs and
efficiency.
---------------------------------------------------------------------------
\4\ Full employment-outcome data under WIOA are not yet
available, so the Department has analyzed outcomes for the programs
under WIA, which authorized similar services. Under WIA, those
services were identified as ``core'' services, while under WIOA,
they are classified as ``basic career services.'' To find data
related to ES program outcomes, please visit http://doleta.gov/performance/results/wagner-peyser_act.fm. To find data on WIA
outcomes, please visit http://doleta.gov/performance/results/WIA_Performance_Results.cfm.
---------------------------------------------------------------------------
The Department notes that, unlike the Wagner-Peyser Act, section
303(a)(1) of the Social Security Act requires States to administer the
Unemployment Insurance (UI) program with personnel who meet the Federal
criteria for a merit-staff personnel system. The ES is required to
provide certain services to UI claimants. For example, the ES is
required to administer the work-test requirements of the State
unemployment-compensation system. See 20 CFR 652.3(e). Any eligibility
issues for UI claimants that arise out of these services must still be
handled by staff that meet the requirements of the Social Security Act.
ii. Flexible Staffing for Wagner-Peyser Act-Funded Activities Conducted
Under the Monitor Advocate System
The Monitor Advocate System was created to comply with a court
order issued by the U.S. District Court for the District of Columbia.
See Order issued on August 13, 1974 in NAACP, Western Region et al. v.
Brennan, No. 2010-72 (D.D.C.); see also 45 FR 39,454 (June 10, 1980).
The Order set forth requirements to establish a system to ensure that
MSFWs receive ES services that are qualitatively equivalent and
quantitatively proportionate to the services provided other job
seekers. Key components of the Monitor Advocate System include
outreach, monitoring, the Complaint System, and the Agricultural
Recruitment System for U.S. Workers. The Department still expects
States to ensure that MSFWs receive ES services that are qualitatively
equivalent and quantitatively proportionate to the services provided
other job seekers. But the Department has determined that nothing in
the Order requires staff providing ES services to MSFWs to meet the
Federal criteria of a merit-personnel system. The Department welcomes
comment and information regarding this issue.
As explained more fully below, the Department now proposes changes
to the Monitor Advocate System regulations found at 20 CFR parts 651,
653, and 658 to parallel the proposed changes in part 652, which would
permit States flexibility in their staffing of certain activities
funded by the Wagner-Peyser Act. The Department also proposes other
changes necessitated by the new flexibilities for States. The
Department's proposed changes to part 651 involve revisions to
definitions used throughout the Monitor Advocate System regulations,
including ES office, field checks, field visits, outreach contact, and
Respondent. The most notable proposed change is adding new, clarifying
definitions for Complaint System Representative and outreach staff.
In part 653, the Department proposes to change the language
throughout to reflect States' new flexibility in staffing. In addition,
the Department proposes two other notable changes in part 653: (1)
Clarifying that complaint logs must include actions regarding the
informal resolution of complaints (see proposed Sec. 653.107(b)(8))
and that State Monitor Advocates (SMAs) must monitor the informal
resolution of complaints (see proposed Sec. 653.108(g)(1)); and (2)
requiring that the SMA be a State employee, though he or she need not
be merit-staffed (see proposed Sec. 653.108(b)). While the Department
is generally proposing to allow States to determine the best staffing
model for the needs of their program, the Department has concluded it
would be more appropriate for the SMA to be a State employee, as
explained in further detail below.
In part 658, the Department proposes several changes: (1) Stating
that the State Administrator has overall responsibility for the
Complaint System, which includes informal resolution of complaints; (2)
requiring a State Workforce Agency (SWA) official (as proposed to be
defined at Sec. 651.10) to make determinations regarding initiation of
the discontinuation of services to an employer; and (3) no
[[Page 29436]]
longer requiring that the Regional Monitor Advocate (RMA) be a full-
time position.
B. Legal Basis
The Wagner-Peyser Act does not dictate particular staffing
requirements. Section 3(a) of the Wagner-Peyser Act requires the
Secretary of Labor to assist in coordinating the ES Offices by
``developing and prescribing minimum standards of efficiency.''
Historically, the Department has interpreted Section 3(a) as permitting
the Department to require, through regulations, States to provide
Wagner-Peyser Act labor exchange services with State merit staff. The
Department has determined, however, that is not the only reasonable
interpretation of this open-ended statutory provision. Under this
proposed rule, the Department would adopt an interpretation that would
allow States the flexibility to use staffing arrangements that best
suit their needs and thereby to create additional efficiencies in their
provision and administration of Wagner-Peyser Act-funded activities.
Under these proposed regulations, if finalized, States could use a
personnel system that meets Federal merit-staffing criteria if they
deem that their best solution.
The broad scope of Section 3(a) has been recognized in court. In
1998, the State of Michigan challenged the Department's authority to
require the use of State merit staff. See Michigan v. Herman, 81 F.
Supp. 2d 840 (W.D. Mich. 1998). The district court held that ``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'' and that ``the
Department of Labor's construction of the Wagner-Peyser Act to require
merit-staffing is a reasonable and permissible interpretation of the
Act.'' Id. at 848. The court also recognized that ``there is ample
basis for a conflicting interpretation of the Wagner-Peyser Act's
requirements.'' Id.
The WIA and WIOA rulemakings continued the Department's requirement
of federal merit-system staffing procedures for the Wagner-Peyser Act-
funded employment services. See 64 FR 18,662, 18,691 (April 15, 1999)
(WIA Interim Final Rule); 65 FR 49,294, 49,385 (Aug. 11, 2000) (WIA
Final Rule); 80 FR 20,690, 20,805 (April 16, 2015) (WIOA NPRM); 81 FR
56,072, 56,267 (Aug. 19, 2016) (WIOA Final Rule). Those rulemakings
acknowledged the Department's history of requiring these procedures,
but they did not interpret the Wagner-Peyser Act itself to require
them. Rather, the Department in those rulemakings continued to impose
federal merit-system staffing requirements on States as a policy
choice.
The Department has in the past cited section 5(b) of the Wagner-
Peyser Act as support for imposing the federal merit-system staffing
requirement, both during the Michigan litigation and in rulemaking, see
65 FR 49,294, 49,385; Michigan, 81 F. Supp. 2d at 845, but section 5(b)
also does not require the imposition of such a requirement. Instead,
section 5(b) requires the Secretary of Labor to certify that each State
seeking Wagner-Peyser Act funds ``has an unemployment compensation law
. . . in compliance with section 303 of the Social Security Act,''
``coordinate[s] the public employment services with the provision of
unemployment insurance claimant services,'' and ``compli[es] with this
[Wagner-Peyser] Act.'' Section 303 of the Social Security Act expressly
requires ``the establishment and maintenance of personnel standards on
a merit basis,'' see 42 U.S.C. 503(a)(1), but the Wagner-Peyser Act
does not. Section 5(b) thus conditions States' Wagner-Peyser Act funds
on such staffing in the administration of UI programs. Section 5(b)
does not condition funds on such staffing in the administration of
Wagner-Peyser Act-funded services and activities.
As authorized by the Wagner-Peyser Act and acknowledged by the
district court, the Department has discretion in how ``to develop and
prescribe minimum standards of efficiency'' in the provision of ES
services. Exercising this discretion, the Department proposes to change
its policy to allow States additional flexibility in their staffing
approaches for the provision of Wagner-Peyser Act-funded services.
The Department has authority to change its interpretation of an
ambiguous statutory provision like Section 3(a) so long as the
Department offers a reasoned explanation for the change. See Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016); Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863-64
(1984). Here, the Department believes that its proposal will ensure and
indeed enhance the efficiency of States as they seek to carry out
Wagner-Peyser-funded activities. The reasons for this belief are
discussed throughout this preamble and include the benefits of granting
States flexibility to fit the unique needs of their particular workers,
employers, and ES programs; freeing up resources to better serve job
creators and job seekers; better integrating the ES program with
services under WIOA; and the successful functioning of flexible
staffing arrangements in the provision of other, comparable services.
This proposal, if finalized, should not affect the reliance
interests of States accustomed to the current rules. This proposed rule
would not impose any new requirements on States. States could choose to
make no changes to their staffing arrangements as a result of this
proposed rule. This proposed rule only provides States flexibility to
determine the system that best meets their workers' and employers'
needs.
Accordingly, the Department proposes to amend regulations at parts
651, 652, 653, and 658.
II. Section-By-Section Discussion of Proposal
A. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
20 CFR 651.10 sets forth definitions for 20 CFR parts 652, 653,
654, and 658. The Department proposes to revise the definitions to
better align them across the regulatory text, and to conform them to
the proposed changes permitting States flexibility in the staffing of
certain Wagner-Peyser Act-funded activities.
The Department proposes to delete the definition of affirmative
action as, for the reasons stated in the preamble explaining changes to
Sec. 653.111, the term will no longer be used in these regulations.
The Department proposes to add a definition for Complaint System
Representative to this section. Currently, this term is used in part
658, but is not defined. The proposed definition makes clear that a
Complaint System Representative is an ES staff person working at the
local or State level who is responsible for handling complaints. The
Complaint System Representative position is funded, in whole or in
part, by the funds the Department provides to the States to administer
the Wagner-Peyser Act ES program. As such, the individual is an ES
staff person. Except when the SMA acts as the Complaint System
Representative as required by Sec. 653.108, the proposed rule provides
States the flexibility to determine how to staff the Complaint System
Representative position.
The Department proposes to amend the definition of Employment
Service (ES) office in two ways. First, the Department intends to
define the term more accurately. Currently the ES office definition
refers to a local workforce development board (WDB) as the site where
the ES office is located. However,
[[Page 29437]]
the previous usage of ``local WDB'' in this situation did not fully
capture the intended meaning because local WDBs are not physical
locations. Therefore, the Department is proposing to remove the
reference to the local WDB and instead define an ES office as a ``site
that provides Wagner-Peyser Act services as a one-stop partner
program.'' \5\ This would better align the use of the terms in the
other WIOA regulations and guidance. Second, the Department proposes to
remove the language referring to staff of the SWA and the requirements
found in 20 CFR 652.215. This change is proposed for consistency with
the proposed changes to 20 CFR 652.215 in how to staff the provision of
Wagner-Peyser Act-funded services.
---------------------------------------------------------------------------
\5\ There are two categories of partner programs under WIOA,
those which are statutorily required to participate in one-stop
centers for regions in which those programs are active, and optional
partner programs, which can be any Federal, State, or local
government entity or organization, as long as it is approved by the
local Workforce Development Board. The required partner programs
are, as listed in 20 CFR 678.400: The WIOA Title I programs for
adults, dislocated workers, youth, job corps, YouthBuild, Native
American Programs, and Migrant Seasonal Farmworker (MSFW) programs;
the Wagner-Peyser Act Employment Service; the Adult Education and
Family Literacy Act program; the Vocational Rehabilitation program;
the Senior Community Service Employment Program; career and
technical education programs at the postsecondary level authorized
by the Carl D. Perkins Career and Technical Education Act of 2006,
as amended by the Strengthening Career and Technical Education for
the 21st Century Act; programs carrying out Trade Adjustment
Assistance activities; Jobs for Veterans State Grant programs;
programs carrying out Community Services Block Grant activities;
programs authorized under State unemployment laws; and Temporary
Assistance for Needy Families (TANF), unless exempted by the
Governor under 20 CFR 678.405(b).
---------------------------------------------------------------------------
The Department proposes to change the definition of Local Office
Manager to Employment Service (ES) Office Manager. This proposed change
includes replacing ``official'' with ``individual.'' The term
``official'' may suggest a person employed by the State, but the
Department is not requiring the ES Office Manager to be a State
employee. Second, the Department proposes to change the term Local
Office Manager to ES Office Manager, because the current regulations do
not use the term Local Office Manager and instead use the undefined
term of ES Office Manager. Within Sec. 651.10, the Department will
move the definition to align with alphabetical order, placing it
between Employment Service (ES) office and Employment Service (ES)
regulations.
The Department proposes to align the definition of field checks
with section 653.503(a). The proposed language would also provide that
Federal staff may, at times, be involved in or make field checks. The
Department notes that the terms field checks and field visits are
distinct.
The Department proposes to change the definition of field visits to
replace the language referring to ``State Workforce Agency outreach
personnel'' with ``outreach staff.'' This change would align the
definition with the proposal to afford States greater flexibility in
staffing.
The Department proposes to change the definition of outreach
contact to remove ``worker'' from the definition and replace it with
the term ``staff.'' This would align terminology throughout the
regulations for consistent use of the term ``worker'' to mean someone
who receives services through the system and ``staff'' to mean someone
who provides services funded by the Wagner-Peyser Act.
The Department proposes to add a new definition for the term
outreach staff to mean ES staff with the responsibilities described in
653.107(b) of this chapter.
The Department proposes to amend the definition of Respondent to
include the term ``service provider'' as an entity that may be alleged
to have committed a violation of the ES regulation, or other violations
of employment-related laws. Because States now have the flexibility to
provide certain Wagner-Peyser Act services through contracts, the
Department proposes to add the term ``service provider'' to make it
clear that service providers can also be Respondents. The Department
notes that the list of Respondents in this proposed regulation is not
exhaustive.
The Department proposes to add the term State Workforce Agency
(SWA) official, because proposed changes elsewhere in the ES
regulations have added this term or amended language to include this
term. The definition clarifies that SWA officials are individuals
employed directly by the SWA or its subparts, rather than through other
staffing mechanisms such as those provided for in the proposed
definition for ES staff.
The Department proposes to add the term Wagner-Peyser Act
Employment Service staff (ES staff) which it defines as individuals,
including, but not limited to, State employees and contractors, who are
funded, in whole or in part, by Wagner-Peyser Act funds to carry out
activities authorized under the Wagner-Peyser Act. As discussed below,
the Department is proposing to revise Sec. 652.215 to allow States
more flexibility in providing Wagner-Peyser Act services and
activities. To implement this change, the Department proposes to
replace ``Staff funded under the Wagner-Peyser Act,'' ``SWA or ES
office representative,'' and ``State Workforce Agency personnel'' with
the umbrella term ``ES staff'' throughout the regulations. Accordingly,
the Department proposes to add this definition to Sec. 651.10.
The Department is not proposing changes to the definitions of
State, State Administrator, State agency, or State Workforce Agency,
but notes that these terms have been used throughout the proposed rule
text to confer ultimate responsibility for Wagner-Peyser Act functions
on the State as the grant recipient. Although a State may contract for
the provision of most Wagner-Peyser Act functions, the State must
ensure that contractors are fulfilling their responsibilities
consistent with the requirements of the Wagner-Peyser Act, its
implementing regulations, and all relevant guidance. This requires
States to monitor how contractors are fulfilling their obligations. If
a contractor is not following all applicable requirements, States must
take steps to bring the contractor into compliance, or, ultimately, to
replace the contractor if necessary. Additionally, the Department will
continue to monitor States' provision of Wagner-Peyser Act services and
activities. States will continue to be held responsible for meeting all
applicable requirements, whether or not they use contractors.
B. Part 652--Establishment and Functioning of State Employment Service
Subpart C--Wagner-Peyser Act 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 Wagner-Peyser Act
services; universal service access requirements; provision of services
and work-test requirements for UI claimants; and State planning. The
NPRM's proposed changes to regulations under subpart C are tailored to
provide flexibility to States by allowing them to use alternative
staffing models to deliver Wagner-Peyser Act-funded services and
activities.
The Department notes that, while the proposed changes under subpart
C give States more flexibility in staffing programs funded under the
Wagner-Peyser Act, the changes do not affect existing merit-staffing
requirements applicable to the UI program. These are required by
statute. See 42 U.S.C. 503(a)(1). Under 20 CFR 652.209(b)(2)
[[Page 29438]]
and Sec. 3(c)(3) of the Wagner-Peyser Act, States are required to
provide reemployment services to certain UI claimants; however, these
services are not required to be delivered by merit-staff employees. For
example, 20 CFR 652.209(b)(2) requires that the State administer the
work-test, conduct eligibility assessments, register UI claimants for
employment services, and provide job-finding and placement services,
but these activities, under these proposed regulations, could be
performed under any staffing model the State determines most
appropriate. In accordance with the applicable UI system requirements,
which would remain unaffected by these proposed regulations, all UI
eligibility determinations would still need to be issued by staff who
meet the UI staffing requirements.
Sec. 652.204 Must funds authorized under the Wagner-Peyser Act (the
Governor's Reserve) flow through the one-stop delivery system?
This section clarifies that the Governor's reserve funds may or may
not flow through the one-stop delivery system and provides a list of
allowable uses for those funds. The proposed text would change ``SWA
staff'' to ``SWA official.'' Under the current regulations, ``SWA
staff'' are employees of the State. Under the proposed revisions to the
regulations, SWA staff would no longer be required to be State
employees; ``SWA officials,'' however, would be required to be State
employees. This change was made to align the proposed regulations with
the Wagner-Peyser Act, which allows funds under Sec. 7(b)(3) of the
Act, as amended by WIOA, to be used for professional development and
career advancement of ``State agency staff.'' The Department interprets
``State agency staff'' in this provision of the Wagner-Peyser Act to be
employees of the State. Therefore, the Department is proposing to use
the term ``SWA officials'' instead of ``SWA staff'' here.
Sec. 652.215 Can Wagner-Peyser Act-funded activities be provided
through a variety of staffing models?
This section currently provides that only State merit staff may
provide Wagner-Peyser Act labor exchange services. For the reasons
explained at length earlier in this NPRM, the Department proposes to
exercise its discretion under Sec. 3(a) of the Wagner-Peyser Act to
permit States to deliver Wagner-Peyser Act-funded employment services
using a variety of staffing models, rather than with the current one-
size-fits-all merit personnel system. The Department notes that Section
3(a) of the Act also requires the Department to assist States in
``promoting uniformity in their [States] administrative and statistical
procedure . . .'' Although States would now have the discretion to
determine what staffing structure best suits their unique needs, the
Department would still require the uniform provision of services as
governed by the Act and the other regulations that implement the Act.
The proposed expansion of options would give States greater
flexibility to determine how best to provide these services, whether
through State staff, local government staff, a contractor, a
combination of these personnel, or otherwise. Since the early 1990s,
pursuant to Sec. 3(a)'s open-ended terms, the Department has permitted
the use of different staffing systems in three States--Colorado,
Massachusetts, and Michigan. This allowed these States the flexibility
to set their own staffing models. The Department seeks comments on the
use of the different staffing systems and their impact on service
delivery under Wagner-Peyser Act-funded programs in these States.
The Department proposes revising both the question asked by 20 CFR
652.215 as well as the response. The Department proposes revising the
current question to: ``Can Wagner-Peyser Act-funded activities be
provided through a variety of staffing models?'' The Department also
proposes revising the response to: ``Yes, Wagner-Peyser Act-funded
activities can be provided through a variety of staffing models. They
are not required to be provided by State merit-staff employees;
however, States may still choose to do so.'' These revisions are
proposed to make the amended 20 CFR 652.215 clear and concise. In the
proposed amended Sec. 652.215, the Department is referring to
``Wagner-Peyser Act-funded activities'' instead of ``services'' to
clarify that the flexibility afforded by this section pertains not only
to labor exchange services, but also to certain activities covered by
the Monitor Advocate System and some administrative functions of the
Wagner-Peyser Act.
These proposed changes would allow States to continue using State
and State merit-staffing models, but provide additional flexibility to
use other innovative staffing and service delivery models, such as
contract-based staffing, which may free up resources to better serve
employers and workers. The Department requests comments on different
service-delivery methods States could use to provide these services
with the flexibility proposed in this section. This proposal would
allow Colorado, Massachusetts, and Michigan, as well as all other
States, to provide labor exchange services using staff that are not
State merit staff. Under the proposed regulations, all States would
have the flexibility to determine what staffing arrangement best suits
their needs.
In the preamble to the Department's final rule for WIOA, the
Department addressed this same section and stated that the benefits of
merit staffing included promoting greater consistency, efficiency,
accountability, and transparency. See 81 FR 56,072, 56,267. The
Department values these benefits and believes they can be achieved by
approaches other than a requirement mandating one-size-fits-all State
merit staffing, when such requirement is not mandated by statute. As
discussed above, services similar to those provided through the ES
program are delivered effectively through systems without the specific
Federal regulatory requirements regarding merit staffing. Allowing
States flexibility in their Wagner-Peyser Act-funded activities gives
them the opportunity to innovate, better integrates WIOA title I
services, and may improve efficiency by focusing States on serving
employers and workers rather than complying with one-size-fits-all
staffing requirements--which, in turn, may preserve resources for those
services to employers and workers. As noted above, under the proposed
rule, the Department would continue to hold States accountable for
providing high-quality Wagner-Peyser Act-funded services, consistent
with the Act and its implementing regulations.
Sec. 652.216 May the one-stop operator provide guidance to ES staff in
accordance with the Wagner-Peyser Act?
This section explains that ES staff may receive guidance from a
one-stop operator about the provision of labor exchange services. The
Department proposes to change the language in 20 CFR 652.216 to clarify
that staff funded under the Wagner-Peyser Act could be employed through
a variety of staffing models. The Department proposes removing
references to State merit-staff employees found in 20 CFR 652.216 and
replacing them with the newly defined ``ES staff,'' as appropriate.
One-stop operators would be able to continue to provide guidance to
staff funded under the Wagner-Peyser Act, if that guidance is
consistent with the provisions of the Wagner-Peyser Act, the Memorandum
of Understanding as described in 20 CFR 678.500, and any applicable
collective-bargaining agreements. This change is proposed to align this
section with the proposed change under 20 CFR 652.215
[[Page 29439]]
that would give States more flexibility in providing Wagner-Peyser Act-
funded employment services. In light of this proposal, the Department
would no longer require that personnel matters for ES staff remain
under the authority of the SWA.
C. Part 653--Services of the Wagner-Peyser Act Employment Service
System
Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
This subpart 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. Throughout
subpart B, the Department proposes revised language to conform to the
proposed changes above that would allow States more staffing
flexibility, except at section 653.108(b), where the Department
clarifies that the SMA must be a SWA official. This proposed change is
further explained below.
Sec. 653.102 Job Information
The regulations at Sec. 653.102 provide for equitable access to
job information for MSFWs. This section requires one-stop centers to
take affirmative steps to assist MSFWs in accessing job information to
enable them to take advantage of employment services in a manner
comparable to non-MSFWs. The current text states, ``One-stop centers
must provide adequate staff assistance to MSFWs to access job order
information easily and efficiently.'' Consistent with the changes
proposed in part 652, the Department proposes to remove the word
``staff.'' This change would give States maximum flexibility to
determine who, on behalf of the one-stop centers--including
contractors--provides assistance to MSFWs to access job order
information. This proposed change is consistent with the Department's
broader goal to give States flexibility in how they staff the provision
of services.
Sec. 653.103 Process for Migrant and Seasonal Farmworkers To
Participate in Workforce Development Activities
The regulation at Sec. 653.103 describes the process for MSFWs to
participate in workforce development activities. This section provides
for meaningful access to career services in particular for MSFWs who
are English-language learners. Specifically, section 653.103(c)
requires that one-stop centers provide MSFWs a list of available career
and supportive services in their native language, and paragraph (d) of
this section requires that one-stop centers refer and/or register MSFWs
for services, as appropriate, if the MSFW is interested in obtaining
such services. Consistent with the proposed changes to part 652, the
Department proposes to change sections 653.103(c) and (d) by removing
the word ``staff.'' This change would give States maximum flexibility
to determine who on behalf of the one-stop centers, including
contractors, provides services to MSFWs participating in workforce
development activities, allowing the States to adopt staffing models
that best meet the unique needs of MSFWs in their areas.
Sec. 653.107 Outreach and Agricultural Outreach Plan
Section 653.107 requires States to conduct outreach to MSFWs and
specifies the requirements for the Agricultural Outreach Plan. The
Department is proposing to make several changes to this section of the
regulation to provide States flexibility in how best to staff the
provision of outreach services.
Proposed Sec. 653.107 contains changes to conform to the addition
of the term outreach staff proposed in part 651. This proposed addition
is explained in the preamble to part 651.
Section 653.107(a)(1) currently requires States to ``employ'' an
adequate number of outreach workers to conduct MSFW outreach in their
service areas. In this paragraph, the Department proposes to replace
``employ'' with ``provide.'' The Department currently requires that
these services be delivered by State employees under a merit-personnel
system, but is proposing to give States flexibility to determine what
staffing solution best fits the States' unique needs. The use of the
term ``provide'' instead of ``employ'' in the proposed regulation makes
it clear that States would have the discretion and flexibility to
choose to provide the services with State employees or to contract for
these outreach services. Although this would give States significantly
more flexibility in how they satisfy the requirement that there be an
adequate number of outreach staff, States would still be required to
meet that requirement consistent with the requirement for the equitable
provision of services.
Section 653.107(a)(2) assigns responsibility to the SWA to
communicate the full range of workforce development services available
to MSFWs and to conduct thorough outreach and follow-up in Supply
States. The Department proposes to replace the current language, which
states that ``SWAs must'' perform these outreach functions, with the
requirement that ``SWAs must ensure outreach staff'' perform these
functions. This proposed change would align this provision with the
other flexibility-maximizing provisions. Under this proposed change,
SWAs will have the flexibility to choose whether to provide these
services directly, as they do now, or, if it is a better approach, to
use another model described in the preamble to Sec. 652.215. This
change does not affect the SWAs' ultimate responsibility for the
outreach program, nor their responsibility to monitor their own
compliance with program requirements, under the oversight of the State
Administrator, as required by section 653.108(a). A State that
contracts for MSFW outreach would still be required to ensure that
contractors are fulfilling their responsibilities consistent with
regulatory requirements. This would require States to monitor their
contractors and, if a contractor is not following all applicable
requirements, to take steps to bring the contractor into compliance or,
ultimately, to replace the contractor if necessary.
Section 653.107(a)(3) sets out criteria the SWAs must look for in
seeking and ``hiring'' outreach staff candidates. The Department
proposes to change ``hiring'' to ``providing,'' and to no longer
require that SWAs seek candidates ``through merit system procedures,''
consistent with the proposed change to paragraph (a)(1) of this
section. However a State chooses to staff these positions, it would
still be required to seek out candidates possessing the MSFW-related
qualities specified in Sec. 653.107. The Department also proposes to
replace the phrase ``affirmative action programs'' with the requirement
that States seek outreach staff candidates using the same criteria used
for State Monitor Advocates. Those criteria are located in Sec.
653.108(b)(1) through (3). The reasons for these proposed revisions are
explained below in the discussion of proposed Sec. 653.111, which
would be revised similarly and remind States of their obligations to
comply with all applicable antidiscrimination laws.
Paragraph (a)(4) of this section lays out the requirement to have
full-time, year-round outreach staff in the 20 States with the highest
estimated MSFW activity, and provides for increasing the required part-
time staff coverage in the remaining States to full-time coverage
during periods of high activity. The current provision requires the
States to ``assign'' staff ``in accordance with State merit staff
requirements'' to conduct outreach duties. The Department proposes to
no longer require State
[[Page 29440]]
merit staffing and to remove the provision specifically for assignment
of staff by the States. Similarly, the Department proposes to no longer
require that the States outside the top 20 with the highest levels of
activity ``hire'' outreach staff, instead requiring that these States
``provide'' sufficient staff, whether through direct hiring or outside
contracting. The proposed language maintains the current staffing level
requirements based on areas with high MSFW activity but would provide
States flexibility in how they achieve those levels. Allowing States to
use different models to achieve required staffing levels aligns with
the other proposed changes to the ES regulations.
Section 653.107(b) includes provisions regarding outreach staff
responsibilities. In particular, paragraph (b)(4) of this section
specifies the responsibilities of outreach staff to provide various
forms of on-site assistance in situations where the MSFW cannot or does
not want to visit the one-stop center, where the MSFW would otherwise
be able to obtain the full range of employment and training services.
One of these responsibilities is to refer ES or employment law-related
complaints to the ES Office Complaint Specialist or ES Office Manager.
Here, the Department proposes to replace the term ``ES Office Complaint
Specialist'' with ``Complaint System Representative,'' in order to
clarify to whom the referral must be sent and to align the terminology
with the proposed added definition of ``Complaint System
Representative'' at Sec. 651.10.
Paragraph (b)(8) of this section lays out the recordkeeping
requirements for outreach staff in order to document their contacts
with MSFWs. The paragraph requires in part that outreach staff maintain
records of the number of contacts, the names of contacts (if
available), and the services provided by the staff. The regulations
provide examples of events that would require documentation, including
``whether a referral was made.'' The Department proposes to change this
example to clarify that outreach staff must document ``if the complaint
or apparent violation was resolved informally or referred to the
appropriate enforcement agency.'' The Department proposes this change
to ensure that logs kept by outreach staff capture the complaints that
were resolved informally without the need for referral, which provides
the opportunity for higher-level review of informal complaint
resolution among the services provided, and methods and tools used, by
outreach staff.
Under the current version of Sec. 653.107(c), the performance of
outreach staff, including quality and productivity of their work, is
assessed by the ``ES Office Manager and/or other appropriate State
office staff.'' The Department proposes to delete the words ``State
office'' and refer only to ``staff.'' The current regulation gives
States the flexibility to determine who, in addition to or in place of
the ES Office Manager, may appropriately assess outreach worker
performance. The proposed change would maximize this flexibility by
enabling States to determine the appropriate staff, whether employed by
the State, contracted, or otherwise, to perform these assessments.
Sec. 653.108 State Workforce Agency and State Monitor Advocate
Responsibilities
The regulations at Sec. 653.108 contain the provisions for SWA and
SMA responsibilities. The Department proposes several changes to this
section to improve SWA and SMA review functions, increase hiring and
staffing flexibility, and align the language with proposed new
terminology.
Section 653.108(b) provides the process by which the SMA is
appointed. Currently, paragraph (b) of this section requires the State
Administrator to appoint the SMA. First, the Department proposes to add
that the SMA must be a SWA official and cannot be a contracted
position. The Department proposes to add this provision to distinguish
the SMA from other ES staff. The SMA performs oversight functions on
behalf of the State Administrator to ensure compliance with the ES
regulations. This oversight function suggests that it is more
appropriate for the SMA to be a SWA official. Likewise, the
responsibilities of the SMA, which include entering into memoranda of
understanding (MOUs) on behalf of the State with workforce system
partners, such as the National Farmworker Jobs Program (NFJP) grantees,
are more appropriately carried out by a State employee. Second, the
Department proposes to delete the current requirement that the State
Administrator encourage SMA applicants to apply through ``the State
merit system prior to appointing a State Monitor Advocate.'' While the
SMA would continue to be a State employee, the SWA may choose to hire
the SMA through means other than the State merit system. Again, this
would allow States more hiring flexibility.
Section 653.108(c) currently requires that the SMA ``have direct,
personal access, when necessary, to the State Administrator,'' and that
the SMA ``have status and compensation as approved by the civil service
classification system and be comparable to other State positions
assigned similar levels of tasks, complexity, and responsibility.'' The
Department proposes to remove the second requirement regarding the
SMA's status and compensation and comparability to other State
positions. This gives the States the flexibility to determine what is
appropriate for the SMA position and conforms with other changes
proposed throughout the NPRM.
Section 653.108(d) provides staffing requirements for the SMA. The
current text requires that the SMA ``be assigned'' the staff necessary
to perform all regulatory responsibilities. The Department proposes to
change this provision to require simply that SMAs ``must have'' the
necessary staff. This change is proposed to provide maximum flexibility
in the manner in which SMAs are staffed, whether by the State directly
or through a contractor. The Department further proposes to insert
``ES'' before ``staff'' and ``staffing'' consistent with the proposed
definition of the term ``ES staff,'' to reflect that while the SMA must
be a SWA official, SMA staff do not necessarily have to meet State- or
merit-staffing requirements.
Section 653.108(g) lays out SMA duties in reviewing the provision
of services to MSFWs. In paragraph (g)(1) of this section, the current
text provides that the SMA must ``[c]onduct an ongoing review of the
delivery of services and protections afforded by the ES regulations to
MSFWs by the SWA and ES offices (including progress made in achieving
affirmative action staffing goals),'' which the SMA performs in part by
studying complaint logs prior to on-site reviews as described in
paragraph (g)(2) of this section. The Department seeks to clarify in
proposed paragraphs (g)(1) and (g)(2)(i)(D) of this section that
reviewing the log includes reviewing the informal resolution of
complaints and apparent violations. This would allow the SMA as a State
official to assess the outcomes of complaints and apparent violations
regarding MSFWs, in conjunction with the comprehensive recordkeeping
requirements provided in Sec. 653.107(b)(8), to determine whether such
outcomes are in keeping with the States' obligations to MSFWs and with
applicable laws. The Department also proposes changing the phrase
``achieving affirmative action staffing goals'' to ``efforts to provide
ES staff in accordance with Sec. 653.111,'' to conform to revisions
proposed to Sec. 653.111.
Paragraph (g)(2)(v) of this section discusses procedures following
SMA on-site reviews and analysis. Among other requirements, this
paragraph
[[Page 29441]]
states that ``[i]f the review results in any findings of noncompliance
with the regulations under this chapter, the ES Office Manager must
develop and propose a written corrective action plan. The plan must be
approved or revised by appropriate superior officials and the SMA.''
The Department proposes to replace ``superior officials'' with ``SWA
officials'' to clarify that the corrective action plan must continue to
be approved by State employees (i.e., not contractors). This will avoid
any ambiguity that may be introduced by enabling other functions
throughout this subpart to be performed by non-State employees.
Section 653.108(i), which discusses the SMA's role in the Complaint
System, states that the SMA may be assigned the responsibility as the
Complaint Specialist. Similar to the proposed change to section
653.107(b), the Department proposes to replace ``Complaint Specialist''
with ``Complaint System Representative'' in accordance with the
definition of Complaint System Representative that is proposed to be
added to Sec. 651.10, to ensure that these regulations refer in a
consistent manner to the individual at the State or local level
responsible for handling complaints.
Section 653.108(s) lays out the requirements for the Annual Summary
that the SMA must prepare for the State Administrator, the RMA, and the
National Monitor Advocate (NMA) on the State's provision of services to
MSFWs. Proposed section 653.108(s)(2) states that the summary must
include an assurance that ``the SMA has status and compensation
approved by the civil service classification system, and is comparable
to other State positions assigned similar levels of tasks, complexity,
and responsibility.'' The Department proposes to remove these
requirements surrounding status and compensation and comparability to
other State positions to maintain consistency with the proposed change
to section 653.108(c).
Section 653.108(s)(3) further states that the summary must also
include ``[a]n assurance the SMA devotes all of his/her time to monitor
advocate functions. Or, if the SWA proposed the SMA conducts his/her
functions on a part-time basis, an explanation of how the SMA functions
are effectively performed with part-time staffing.'' In this paragraph,
the Department proposes to remove ``the SWA proposed'' for clarity.
This results in a requirement that the summary contain an explanation
of the effectiveness of part-time SMAs if those functions are in fact
being performed on a part-time basis.
Finally, in section 653.108(s)(11), the Department proposes
changing the phrase ``the functioning of the State's affirmative action
staffing program'' to ``the State's efforts to provide ES staff in
accordance with Sec. 653.111,'' to conform to revisions proposed to
Sec. 653.111.
Sec. 653.111 State Workforce Agency Staffing Requirements
Section 653.111 contains provisions for SWA staffing requirements
in ``significant'' MSFW ES offices, as defined in current Sec. 651.10.
The Department proposes two sets of changes to Sec. 653.111.
The first set of changes would revise the section to reflect the
new flexibilities proposed for States. Current section 653.111(a)
requires SWAs to employ ES staff to facilitate the provision of
services tailored to MSFWs. Consistent with similar changes proposed
elsewhere in this NPRM, the Department proposes to change this
provision to require the SWA to provide such staff, but not necessarily
to hire or employ them directly.
The second set of changes regards the section's staffing criteria.
The Department is fully committed to serving all MSFWs, and to
requiring that States provide useful help to them from staff who can
speak their languages and understand their work environment.
Accordingly, the Department proposes to maintain an emphasis on hiring
ES staff who speak languages spoken by MSFWs and who have an MSFW
background or experience, by cross-referencing those same criteria as
used in the hiring of State Monitor Advocates. The Department, however,
has serious concerns about the constitutionality of the additional,
race-based and ethnicity-based hiring criteria in the current
regulation. The regulations were originally adopted to remedy
discrimination in response to a court order in NAACP, Western Region v.
Brennan, No. 2010-72, 1974 WL 229 (D.D.C. 1974). In the intervening
years, the Supreme Court has held that government-imposed racial
classifications must be narrowly tailored, including by lasting no
``longer than the discriminatory effects it is designed to eliminate.''
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 238 (1995) (quoting
Fullilove v. Klutznick, 448 U.S. 448, 513 (1980) (Powell, J.,
concurring; cf. Fisher v. Texas, 136 S. Ct. 2198, 2208 (2016) (``A
university cannot impose a fixed quota or otherwise define diversity as
some specified percentage of a particular group merely because of its
race or ethnic origin.'' (quoted sources omitted)). The Department
believes it can meet the needs of MSFWs without resorting to employment
criteria that favor or disfavor applicants on the basis of race or
ethnicity. The Department thus proposes to remove the requirement for
an ``affirmative action program,'' which requires quota-style
``sufficient staffing'' of employees in ``under-represented
categories,'' 20 CFR 653.111(b)(2), and replace it with the express
requirements that the SWA seek ES staff that meet the same criteria as
those used for State Monitor Advocates. The proposed regulation also
includes an explicit reminder that SWAs remain subject to all
applicable federal laws prohibiting discrimination and protecting equal
employment opportunity.\6\ See Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (``The way to stop
discrimination on the basis of race is to stop discriminating on the
basis of race.''). SWAs' efforts to hire in accordance with this
section would be monitored as part of their regular compliance reviews.
Current Sec. 653.111(a) would be modified accordingly, Sec.
653.111(b) through (b)(2) would be removed, and current paragraph Sec.
653.111(b)(3) would be renumbered as Sec. 653.111(b), with the revised
instruction that SWAs be regularly reviewed for their compliance with
the requirements of this section.\7\ A new paragraph Sec. 653.111(c)
would be added to remind SWAs of their obligations to comply with all
applicable federal antidiscrimination laws.
---------------------------------------------------------------------------
\6\ These laws include, as applicable, Titles VI and VII of the
Civil Rights Act, Title IX of the Education Amendments Act of 1972,
and WIOA Sec. 188.
\7\ As mentioned above, the Department is aware that the MSFW
program was founded as a remedial measure in litigation against the
Department in the 1970s and 1980s, prior to more recent precedent
from the U.S. Supreme Court. The Department is continuing to
evaluate whether the results of that litigation require additional
or different changes to the regulations governing employment in
significant MSFW ES offices than those proposed in this NPRM.
---------------------------------------------------------------------------
Subpart F--Agricultural Recruitment System for U.S. Workers (ARS)
This subpart includes the requirements for the acceptance of
intrastate and interstate job clearance orders, which seek U.S. workers
to perform farmwork on a temporary, less than year-round basis. Orders
seeking workers to perform farmwork on a year-round basis are not
subject to the requirements of this subpart. This subpart affects all
job orders for workers who are recruited through the ES intrastate and
interstate clearance systems for less than year-round
[[Page 29442]]
farmwork, including both MSFWs and non-MSFW job seekers.
The Department proposes changes to this subpart, which include
clarifying who must make certain decisions or take specific actions.
Sec. 653.502 Conditional Access to the Agricultural Recruitment System
The regulations at Sec. 653.502 cover the provisions for
conditional access to the ARS. Employers may be granted conditional
access if they provide assurance that housing that does not meet
applicable standards will be brought into compliance at least 20
calendar days before occupancy. Section 653.502(e) covers housing
inspections for employers who were granted conditional access to ARS.
If the housing inspection reveals that the housing is not in full
compliance as assured by the employer, and the employer does not then
come into compliance within 5 calendar days, the ES office must take
immediate action, including removing the employer's clearance orders
from interstate and intrastate clearance. The Department proposes to
add the requirement that this removal take place only with the approval
of an appropriate SWA official. This would ensure that parties' rights
and responsibilities are determined by the State itself, which is a
typical governmental duty. Further, State governments have experience
and expertise in adjudicating parties' rights and responsibilities.
Sec. 653.503 Field Checks
The regulation at Sec. 653.503 includes the provisions for field
checks as defined at 20 CFR 651.10. This section discusses how and when
field checks must be conducted, and the respective roles of the SWAs
and ES staff generally. Section 653.503(d) provides procedures for
instances in which fields checks reveal conditions not as stated in the
clearance order or employment law violations. Currently, these
conditions or violations are described as being documented by the SWA
or Federal personnel. The Department proposes to revise the language to
replace ``SWA or Federal personnel observe'' with ``If the individual
conducting the field check observes'' and replace, ``the SWA must''
with ``the individual must'' to recognize that States may assign these
duties to non-State employees, while ensuring that whoever is
conducting the field check (be they ES staff, a State employee, or a
Federal employee) documents the finding.
Section 653.503(e) provides authority for SWAs to enter into
agreements with State and Federal enforcement agencies for enforcement-
agency staff to conduct field checks on the SWAs' behalf. Currently,
this paragraph enables the SWA to enter into either formal or informal
agreements. The Department proposes to change ``SWA'' to ``SWA
officials'' to clarify that only State employees, and not contractors,
may enter into formal or informal arrangements with appropriate State
and Federal enforcement agencies. The Department also proposes to
delete the reference to performing checks on behalf of SWA
``personnel'' and instead refer simply to ``the SWA'' for clarity.
D. Part 658--Administrative Provisions Governing the Wagner-Peyser Act
Employment Service
Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Subpart E sets forth the regulations governing the Complaint System
for the ES at the State and Federal levels. The Complaint System
handles complaints from applicants against an employer about a specific
job to which the applicant was referred through the ES, and complaints
involving failure to comply with the ES regulations under parts 651,
652, 653, and 654 of this chapter. The Complaint System also accepts,
refers, and, under certain circumstances, tracks and resolves
complaints involving employment-related laws as defined in Sec.
651.10.
Throughout subpart E, the Department proposes revisions consistent
with the proposed new flexibility for States' provision of and
engagement in Wagner-Peyser Act-funded services and activities from
Sec. 652.215. Additionally, the Department proposes clarifications to
several provisions in subpart E to state explicitly that the State
Administrator's ultimate responsibility for the Complaint System, as
currently provided in the regulation, includes the informal resolution
of complaints and apparent violations.
Further, the Department proposes that the SMA, a State official,
review complaint logs and monitor actions on the informal resolution of
complaints. The Department notes that it is not proposing that informal
resolution of complaints must be approved in each instance by a State
official. More information can be found about this in proposed Sec.
653.108 and its accompanying preamble. The Department also proposes to
change references to a Complaint Specialist to ``Complaint System
Representative'' for clarity, consistency, and alignment with the
proposed definition for Complaint System Representative at Sec.
651.10.
The Department has made various changes to terms in proposed part
658 to conform to changes in proposed part 651. As discussed in detail
above, throughout this proposed rule the Department proposes to use an
umbrella term, ES staff, to refer to a variety of individuals providing
Wagner-Peyser Act services. The term ES staff is defined in proposed
Sec. 651.10 and includes State employees and contractors. Where the
Department uses the term ES staff in this Part, the State has the
flexibility to contract for the services governed or required by that
provision of the regulation if the State so chooses.
Likewise, the Department proposes to change the term ``outreach
worker'' to ``outreach staff,'' which is a type of ES staff. As with
other ES staff, outreach staff can be State employees or contractors,
as States would no longer be required to hire individuals directly to
perform this work.
While the Department is now giving States more flexibility for
accomplishing many ES activities, the States still retain ultimate
responsibility for ensuring the services and activities required to be
provided under this Part are consistent with the requirements of the
statute, regulation, and any relevant guidance.
Sec. 658.410 Establishment of Local and State Complaint Systems
The regulations at Sec. 658.410 govern the establishment of local
and State Complaint Systems. The Department is proposing to amend
section 658.410(b) to clarify that the State Administrator has overall
responsibility for the informal resolution of complaints. Currently,
section 658.410(b) provides that the State Administrator has overall
responsibility for the operation of the Complaint System. Informal
resolution of complaints is already a part of the Complaint System, and
thus, the State Administrator already has responsibility for the
resolution of these complaints. The Department proposes to clarify that
the State Administrator's responsibilities extend to informal
resolution of complaints, a duty that ES staff would be permitted to
perform under the proposed regulation. Additional information about the
informal resolution of complaints is found in proposed Sec. 653.108
and its accompanying preamble. The Department notes that ``the State
Administrator has overall responsibility'' means the State
Administrator must ensure all of the requirements set forth in the
operation of the Complaint System at the local and
[[Page 29443]]
State level are followed, regardless of the staffing model used to meet
the requirements.
The Department also proposes to modify the second sentence of Sec.
658.410(b) to clarify that the ES Office Manager, as defined at Sec.
651.10, is responsible for the operation of the Complaint System. The
current version of the regulation states, ``At the ES office level the
manager must be responsible for the operation of the Complaint
System.'' The Department proposes to revise the sentence to, ``In the
ES office, the ES Office Manager is responsible for the operation of
the Complaint System'' to align it with the definition of ES Office
Manager at Sec. 651.10.
Section 658.410(c) requires, among other things, that the SWA
maintain a central complaint log. This log contains a variety of
information to help determine if complaints are being appropriately
handled. The Department proposes to modify section 658.410(c)(6) to
include a clarification that the complaint log's description of what
action was taken on a complaint must also include whether the complaint
was resolved informally. This clarification is proposed to ensure these
actions are captured in complaint logs and therefore will be reviewed
by the SMA. In proposed section 653.108(g), the Department clarifies
that the SMA, a SWA official, must review informal resolution of
complaints. The language proposed in section 658.410(c)(6) will ensure
this information is available in the complaint log to facilitate the
SMA's review of complaints. Additionally, to ensure that the SMA
reviews action on apparent violations, the Department proposes to add a
new sentence to section 658.410(c) that clarifies that the complaint
log must include any action taken on apparent violations.
In the second sentence of section 653.410(c), the Department
proposes to change ``manager of the ES office,'' an undefined term, to
``the ES Office Manager,'' a term proposed to be added to the part 651
definitions. The Department intends no change in meaning, but merely
proposes the change here for clarity and consistency within the
regulations.
Section 658.410(h) governs who must be designated to handle
complaints. Currently, the provision requires the State Administrator
to assign complaints to a State agency official, with the State agency
official designated to handle MSFW complaints being the SMA. The term
``State agency official'' suggests the individual handling the
complaints is a State employee. Because the Department is proposing to
give States the flexibility to determine how to staff the provision of
Wagner-Peyser Act-funded services, State employees would no longer be
required to handle non-MSFW complaints. Therefore, the Department
proposes to replace ``State agency official'' with ``Complaint System
Representative.'' As noted above, the Department proposes to define
Complaint System Representative in Sec. 651.10 as an ES staff
individual who is responsible for handling complaints. As with other ES
staff, Complaint System Representatives would be permitted to be State
employees (merit staff or otherwise), local government employees,
contractors, others, or a combination of such personnel.
Section 658.410(m) governs follow-up on unresolved complaints for
MSFWs. When an MSFW submits a complaint at the State level to the SWA,
the SMA is responsible for handling the complaint. This provision
requires the SMA to follow-up monthly on the handling of the complaint
and inform the complainant of the complaint's status. The Department
proposes to streamline the text of this provision to make the
requirements clearer. The Department notes that the current regulations
do not require follow-up on complaints made by individuals who are not
MSFWs, and the Department is not proposing to change this.
Sec. 658.411 Action on Complaints
The regulations at Sec. 658.411 govern the actions States must
take when individuals file complaints. There are two kinds of
complaints, ES complaints and employment-law related complaints. There
are also specific procedures States must follow when an MSFW makes a
complaint.
Section 658.411(a) governs the procedures for filing complaints.
Currently, Sec. 658.411(a)(1) provides that when an individual
indicates interest in filing a complaint with an ``ES Office, a SWA
representative, or an outreach worker,'' the individual who receives
the complaint must explain the operation of the Complaint System and
offer to take the complaint in writing. Under the changes proposed to
parts 651 and 652, States would be permitted to contract for the
provision of these services, which could include some responsibilities
in the Complaint System. In this section, the Department proposes to
replace the term ``a SWA representative'' with a reference to ``the
SWA'' to make it clear that the SWA, not its representatives, has the
responsibility for ensuring that the individuals receiving complaints
offer to explain the operation of the Complaint System and offer to
take the complaint in writing. As in other areas of the program, the
SWA has discretion to choose how best to carry out this requirement.
Section 658.411(d) governs how States are required to treat
complaints regarding the ES regulations (ES complaints). Section
658.411(d)(3)(ii) requires States to issue a written determination
about a complaint if 30 calendar days have elapsed since the complaint
was received or after all necessary information was submitted to the
SWA pursuant to paragraph (a)(4) of this section. Currently, the
regulation requires ``the SWA'' to make a written determination. While
the Department is giving States the flexibility to permit non-State
employees to be involved in many aspects of administering the Complaint
System, the Department has determined that making determinations on
complaints is more appropriately handled by a State employee. This
ensures that parties' rights and responsibilities are determined by the
State itself, which is a typical governmental duty. Further, State
governments have experience and expertise in adjudicating parties'
rights and responsibilities. Moreover, a State might contract with more
than one contractor to provide the services throughout the State, or
that contractor might change with time. Different contractors could
make different and possibly inconsistent decisions. Requiring States to
make these determinations means that only one entity will be doing so,
promoting consistency in determinations. The regulation implements this
approach by proposing to add the word ``official'' to this provision to
make it clear that the SWA official, a State employee, must make
written determinations.
Section 658.411(d)(5)(ii) requires SWAs to offer complainants a
hearing if the SWA has determined that a Respondent has not violated
the ES regulations. Currently, this paragraph provides that if the
``SWA determines that an employer has not violated the ES
regulations,'' then the SWA must offer the complainant the opportunity
to request a hearing. The Department proposes to revise this provision
to require SWA officials to make the determination that ES regulations
have not been violated instead of referencing only the SWA. The
Department proposes to make this change for similar reasons to the
proposed change in Sec. 658.411(d)(3)(ii) as explained above.
Section 658.411(d)(5)(iii) governs how a SWA must handle a written
request for a hearing. A party can submit a written withdrawal of their
hearing request before the hearing. However, the
[[Page 29444]]
SWA and the State hearing official must consent to the withdrawal. This
NPRM proposes more flexibility for States, under which they could
choose to contract for the processing of complaints. But, the
Department has determined that a SWA official--a State employee--should
decide whether to consent to the withdrawal of complaints. Such a
decision is akin to a determination on the merits of a complaint,
because a withdrawal almost always indicates the parties have accepted
(or otherwise reached) a compromise on the underlying determination.
The same policy considerations thus apply to both determinations on
complaints and decisions on withdrawals. To implement this decision,
the Department proposes to replace ``SWA representative'' with ``SWA
official'' in section 658.411(d)(5)(iii)(G). The proposed regulation
would then read, ``With the consent of the SWA official and of the
State hearing official, the party who requested the hearing may
withdraw the request for hearing in writing before the hearing.''
Subpart F--Discontinuation of Services to Employers by the Wagner-
Peyser Act Employment Service
This subpart contains the regulations governing the discontinuation
of services provided pursuant to 20 CFR part 653 to employers by ETA,
including SWAs. In this subpart, the Department proposes to clarify
various provisions to state that a SWA official must initiate
procedures for and make decisions regarding the discontinuation of
services to employers. These proposed clarifications would maintain
consistency with the Department's determination that it is most
appropriate for a State employee to determine when an employer may no
longer use the Wagner-Peyser Act services.
Sec. 658.501 Basis for Discontinuation of Services
The regulations at Sec. 658.501 govern the basis for
discontinuation of services. Section 658.501(a) states that a SWA must
initiate procedures for discontinuation of services to employers who
have committed one or more of the eight infractions listed under
paragraph (a) of this section. The Department proposes to add the word
``official'' after ``SWA'' to clarify that a SWA official must initiate
procedures for discontinuation of services. While the Department
proposes more flexibility for States to choose to contract for services
related to the discontinuation of services provisions, for the same
reasons discussed above regarding decisions on complaints and
withdrawals, the Department has determined that it would be most
appropriate for a State employee to determine when an employer may no
longer access the Wagner-Peyser Act-funded services. To make this
requirement clear, the Department proposes to insert the term
``officials'' after SWA in paragraph (a) of this section to provide
that only State employees may initiate procedures to discontinue
services.
The Department is proposing similar changes to Sec. 658.501(b) and
(c) for the same reasons as the change to paragraph 658.501(a). Section
658.501(b) governs when a SWA may discontinue services immediately. The
Department proposes to change the beginning of the sentence from ``The
SWA may'' to ``SWA officials may'' to clarify that only SWA officials
may discontinue services. The Department also proposes a similar change
for Sec. 658.501(c). Currently, this provision in the regulation
provides that the ``State agencies'' must engage in the procedures for
discontinuation of services if it comes to the attention of the ES
office or SWA that an employer participating in the ES may not have
complied with the terms of its temporary labor certification. The
Department proposes to change ``State agencies'' to ``SWA officials''
to clarify that only State employees may engage in the procedures for
discontinuation of services under paragraph (a)(1) of this section.
Subpart G--Review and Assessment of State Workforce Agency Compliance
With Employment Service Regulations
This subpart sets forth the regulations governing review and
assessment of SWA compliance with the ES regulations at this part and
parts 651, 652, 653, and 654 of this chapter. In Subpart G, the
Department proposes changes to update reporting-system references. It
also proposes changes to the ETA Regional Office responsibilities by
providing Regional Administrators (RAs) greater flexibility in staffing
their ETA regional offices and obligating travel funds. The Department
notes that these changes would directly affect only the U.S. Department
of Labor's internal administration.
Sec. 658.601 State Workforce Agency Responsibility
The regulations at Sec. 658.601 govern SWA responsibilities for
establishing and maintaining a self-appraisal system for ES operations
to determine success in reaching its goals and to correct deficiencies
in performance. The Department proposes to change how this information
is submitted to the Department. Previously the information was
submitted through the ETA 9002A report. However, the Department is
proposing that it be submitted through the WIOA Common Performance
Reporting System, ETA Form 9172 (Participant Individual Record Layout).
The Department is proposing to change the reference to ETA 9002A report
in section 658.601(a)(1)(ii) to ETA Form 9172. A similar change for the
same reasons is also proposed at section 658.601(a)(2)(ii).
Sec. 658.602 Employment and Training Administration National Office
Responsibility
Section 658.602 governs the responsibilities of the ETA National
Office. This provision requires the NMA to monitor and assess the SWAs'
compliance with the ES regulations affecting MSFWs. Currently, section
658.602(l) requires the NMA to take certain steps if the NMA receives
information that the effectiveness of any SMA is being substantially
impeded by the State Administrator or another State or Federal ES
official. The Department proposes to add ``ES staff'' to this group of
individuals who may be impeding the effectiveness of the SMA. This
proposed addition would clarify that the NMA is also responsible for
ensuring that the SMA is not substantially impeded by any of the
individuals who may be providing Wagner-Peyser Act-funded services,
whether that individual is an employee of the State or Federal
government or a contractor. The revised provision would state, ``If the
NMA receives information that the effectiveness of any SMA has been
substantially impeded by the State Administrator, a State or Federal ES
official, or ES staff . . .''
Sec. 658.603 Employment and Training Administration Regional Office
Responsibility
Section 658.603 governs ETA Regional Office responsibilities.
Section 658.603(f) currently requires the RMA to be devoted fulltime to
RMA duties. Recognizing different States' MSFW populations in the
relevant labor markets, the Department is proposing to remove that
requirement to give RAs greater flexibility in how they staff and
assign duties in the regional offices to meet MSFWs' needs best. To
make this change, in the first sentence of paragraph Sec. 658.603(f),
the Department proposes to replace ``devote full time'' with ``carry
out'' so that it is clear there is not a requirement for the RMA to
work full time on RMA duties.
[[Page 29445]]
Section 658.603(h) requires the RA to ensure assignment of the
staff necessary to fulfill effectively the regional-office
responsibilities set forth in Sec. 658.603. Currently, the second
sentence of this provision requires the RMA to notify the RA of
staffing deficiencies and for the RA to appropriately respond. The
Department proposes to delete this sentence because the RA is in the
best position to determine regional office staffing needs. This
proposed deletion does not prevent the RMA from making staffing
recommendations to the RA. The Department notes that section 658.603(h)
would continue to require the RA to ensure there are the necessary
staff to fulfill effectively the regional office responsibilities.
Proposed section 658.603(n)(3) adds the term ``ES staff'' to the
list of those who could ``impede'' the effectiveness of an SMA, and who
must be reported to the Regional Administrator by the RSMA with
recommended appropriate actions. This change is proposed to bring this
provision in line with other proposed changes made throughout this
NPRM, including the proposed addition of the term ``ES staff'' and
corresponding change to section 653.602(l), Employment and Training
Administration National Office responsibility, discussed earlier in
this preamble.
Finally, section 658.603(r) currently requires the RMA to visit
each State in the region not scheduled for an on-site review during
peak harvest season of that fiscal year. It may not be necessary to
visit each of these States every year, due, for example, to there not
being a significant MSFW population in those States or to a visit by
the NMA instead of the RMA that year. Further, with limited funds, this
is very challenging to carry out. Therefore, the Department proposes to
revise this provision to read, ``As appropriate, each year during the
peak harvest season, the RMA will visit each State in the region not
scheduled for an on-site review. . .'' The remainder of the provision
would retain the current language. This will allow Regional
Administrators the flexibility to determine where staff will travel
depending on the specific needs of each State and the availability of
Federal funds.
Proposed section 658.603(t) adds ``as necessary'' to the end of the
first sentence, to clarify that the RMA will not be attending all MSFW-
related public meetings. The Department is adding ``as appropriate''
here to allow flexibility to adapt to unforeseen circumstances, such as
limited resources, or the urgency of issues.
III. Rulemaking Analyses and Notices
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
Under E.O. 12866, the Office of Management and Budget (OMB)'s
Office of Information and Regulatory Affairs determines whether a
regulatory action is significant and, therefore, subject to the
requirements of the E.O. and review by OMB. 58 FR 51735. Section 3(f)
of E.O. 12866 defines a ``significant regulatory action,'' as an action
that is likely to result in a rule that: (1) Has an annual effect on
the economy of $100 million or more, or adversely affects in a material
way a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities (also referred to as economically
significant); (2) creates serious inconsistencies or otherwise
interferes with an action taken or planned by another agency; (3)
materially alters the budgetary impacts of entitlement grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the E.O.. OMB has determined that while this proposed rule is not an
economically significant regulatory action under Sec. 3(f) of E.O.
12866, it raises novel legal or policy issues and is therefore
otherwise significant. Accordingly, OMB has reviewed this proposed
rule.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; it
is tailored to impose the least burden on society, consistent with
achieving the regulatory objectives; and in choosing among alternative
regulatory approaches, the agency has selected those approaches that
maximize net benefits. E.O. 13563 recognizes that some benefits are
difficult to quantify and provides that, where appropriate and
permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
E.O. 13771, titled Reducing Regulation and Controlling Regulatory
Costs, was issued on January 30, 2017 and is discussed in the Summary
section of this preamble. This proposed rule, if finalized as proposed,
is expected not to be an E.O. 13771 regulatory action, because it
imposes no more than de minimis costs.
Wage Savings for States
As stated elsewhere in this preamble, the Department is exercising
its discretion under the Wagner-Peyser Act to give States more staffing
options for how they provide labor exchange services and carry out
certain other ES activities authorized by that Act. This flexibility
would permit States to continue using State merit-staffing models to
perform these functions, or to use other innovative models such as
contract-based staffing that best suit each State's individual needs.
All 50 States, plus the District of Columbia, Puerto Rico, Guam, and
the U.S. Virgin Islands, receive funding under the Wagner-Peyser Act.
To estimate the wage savings to States, the Department surveyed a
sample of States that receive various levels of Wagner-Peyser Act
funding to obtain an approximation of staffing levels and patterns.
Seventeen jurisdictions \8\ receive annual Wagner-Peyser Act funding
between $12.3 and $78.3 million (labeled Tier 1 States in this
analysis), 17 jurisdictions receive funding between $6.0 million and
$12.2 million (labeled Tier 2 States in this analysis), and 20
jurisdictions receive funding of less than $6.0 million (labeled Tier 3
States in this analysis).\9\ Eight States were surveyed by the
Department and asked to provide the total number of Full-Time
Equivalent (FTE) hours provided by State merit staff dedicated to
providing Wagner-Peyser Act-funded services, as well as the
occupational/position title for all employees included in the FTE
calculations.\10\ The results ranged from 561 FTEs in California, the
state that received the highest level of Wagner-Peyser Act funding in
Program Year (PY) 2018, to 19 FTEs in Delaware, the state that received
the lowest level of Wagner-Peyser Act funding in PY 2018.\11\ On
average among the States
[[Page 29446]]
surveyed, 15 percent of staff funded under the Wagner-Peyser Act are
managers or supervisors, 19 percent provide project management or mid-
level analysis, and 66 percent provide administrative support and/or
customer service.
---------------------------------------------------------------------------
\8\ Fifty States receive Wagner-Peyser Act funding.
Additionally, the District of Columbia, Puerto Rico, Guam, and the
Virgin Islands receive Wagner-Peyser Act funding.
\9\ State allotments are primarily based on a State's relative
share of the civilian labor force and relative share of total
unemployment.
\10\ The eight States surveyed were California, Delaware, Idaho,
Maryland, North Dakota, Ohio, Tennessee, and Utah. California, Ohio,
and Tennessee are in Tier 1. Maryland and Idaho are in Tier 2. Utah,
North Dakota, and Delaware are in Tier 3.
\11\ The U.S. Virgin Islands and Guam received lower levels of
Wagner-Peyser Act funding than Delaware. The PY 2018 allotments are
available at https://www.federalregister.gov/documents/2018/05/25/2018-11307/program-year-py-2018-workforce-innovation-and-opportunity-act-wioa-allotments-py-2018-wagner-peyser.
---------------------------------------------------------------------------
To estimate the percent of current ES positions that States would
choose to re-staff under this rule, the Department surveyed three
States that participate in a Wagner-Peyser Act pilot program and
already have non-State-merit staff providing labor exchange services:
Colorado, Massachusetts, and Michigan. These three States were asked
how many of their Wagner-Peyser Act-funded FTE hours are provided by
non-State-merit staff.\12\ The three pilot States have an average of 52
percent non-State-merit staff providing labor exchange services;
therefore, the Department assumes a 50 percent substitution rate in its
wage savings calculations. For example, the Department estimated that
California would employ 280.5 FTEs (= 561 FTEs x 50%) who are neither
merit-staffed nor State employees after the rule takes effect, while
Delaware would employ 9.5 such FTEs (= 19 FTEs x 50%). The FTEs are
assumed to be distributed in accordance with the average staffing
patterns of the surveyed states: 15 percent managers or supervisors, 19
percent provide project management or mid-level analysis, and 66
percent provide administrative support and/or customer service.
---------------------------------------------------------------------------
\12\ State Monitor Advocates will continue to be State staff, so
they are not included in the calculations of this rule.
---------------------------------------------------------------------------
To calculate the potential savings, median wage rates for
government workers in each of the eight States were obtained from the
Bureau of Labor Statistics (BLS) Occupational Employment Statistics
(OES) program.\13\ The median wage rates for private sector workers are
not available by State and occupation; therefore, the Department used
the median wage rates for all sectors \14\ as a proxy, because private
sector jobs constitute 85 percent of total employment.\15\ The median
wage rates were obtained for three Standard Occupational Classification
(SOC) codes: (1) SOC 11-3011 Administrative Services Managers; (2) SOC
13-1141 Compensation, Benefits, and Job Analysis Specialists; and (3)
SOC 43-9061 Office Clerks, General. The wage rates were doubled to
account for fringe benefits and overhead costs. Then the difference
between the fully loaded wage rates of government workers and workers
in all sectors was calculated. For example, in Ohio, the median hourly
wage rate for managers/supervisors is $36.02 in the government sector
and $40.52 in all sectors. Accounting for fringe benefits and overhead
costs, the fully loaded median hourly rate is $72.04 in the government
sector and $81.04 in all sectors, a difference of $9.00 per hour. Since
the fully loaded wage rate is $9.00 per hour higher in all sectors than
in the government sector, Ohio would not realize a savings at the
manager/supervisor level under this proposed rule. However, Ohio would
realize a $0.42 per hour savings at the project management level (=
$56.08 for government workers - $55.66 for workers in all sectors) and
a $6.66 per hour savings at the administrative support level (= $36.42
for government workers - $29.76 for workers in all sectors).
---------------------------------------------------------------------------
\13\ BLS OES data for government workers by State (May 2017):
https://www.bls.gov/oes/special.requests/oes_research_2017_sec_99.xlsx. These data do not distinguish between
government staff employed under a merit system and staff who are
not, thus the Department could not accurately estimate of the impact
of transitioning to State employees not under a merit system.
\14\ BLS OES data for all sectors by State (May 2017): https://www.bls.gov/oes/special.requests/oesm17st.zip.
\15\ In May 2017, total employment was 142,549,250 (https://www.bls.gov/oes/current/oes_nat.htm), with 120,851,270 jobs (85%) in
the private sector (https://www.bls.gov/oes/current/000001.htm) and
21,697,980 jobs (15%) in the government sector (https://www.bls.gov/oes/current/999001.htm).
---------------------------------------------------------------------------
Multiplying these fully loaded wage rate differences by the
estimated number of FTEs in each occupation and by 2,080 hours (= 40
hours per week x 52 weeks per year) results in a potential savings for
Ohio of $3,058 per year at the project management level (= $0.42 per
hour savings x 3.5 FTEs x 2,080 hours per year) and $470,995 per year
at the administrative support level (= $6.66 per hour savings x 34.0
FTEs x 2,080 hours per year). In total, the estimated savings for Ohio
under this proposed rule is $474,053 per year (= $0 at the manager/
supervisor level + $3,058 at the project management level + $470,995 at
the administrative support level). The same process was followed for
the other seven States surveyed by the Department.
Next, the estimated wage savings for the States within each tier
were summed. The estimated savings for the Tier 1 States of California
($4,066,254), Ohio ($474,053), and Tennessee ($100,880) equals
$4,641,187. The estimated savings for the Tier 2 States of Maryland
($0) and Idaho ($174,637) equals $174,637. The estimated savings for
the Tier 3 States of Utah ($20,301), North Dakota ($121,118), and
Delaware ($35,693) equals $177,112.
The results for each tier were then multiplied by the appropriate
ratio to estimate the wage savings for the entire tier. There are 17
States in Tier 1, so the estimated savings for the Tier 1 States of
California, Ohio, and Tennessee ($4,641,187) was multiplied by 17/3,
bringing the total estimated savings to $26,300,061 per year for Tier
1. There are 17 States in Tier 2, so the estimated savings for the Tier
2 States of Maryland and Idaho ($174,637) was multiplied by 17/2,
bringing the total estimated savings to $1,484,413 per year for Tier 2.
There are 20 States in Tier 3, so the estimated savings for the Tier 3
States of Utah, Nevada, and Delaware ($177,112) was multiplied by 20/3,
bringing the total estimated savings to $1,180,747 per year for Tier 3.
Finally, the estimated wage savings for each tier were added
together. Therefore, the total estimated savings of this proposed rule
is $28,965,220 per year (= $26,300,061 for Tier 1 States + $1,484,413
for Tier 2 States + $1,180,747 for Tier 3 States), as shown in Table
X.\16\
---------------------------------------------------------------------------
\16\ This proposed rule may have other effects, which are
described qualitatively here. The changes proposed to Sec. 653.111,
regarding the staffing of significant MSFW one-stop centers, could
affect States' administrative costs. The changes would revise the
staffing criteria for these centers, eliminating some requirements
and adding new requirements. It is unknown whether this change would
reduce or increase costs, but the Department believes that the
effect in either case would be small.
---------------------------------------------------------------------------
For purposes of Executive Orders 12866 and 13771, these estimated
savings are categorized as transfers from employees to States.
BILLING CODE P
[[Page 29447]]
[GRAPHIC] [TIFF OMITTED] TP24JN19.007
BILLING CODE C
Rule Familiarization Costs
Regulatory familiarization costs represent direct costs to States
associated with reviewing the new regulation. The Department calculated
this cost by multiplying the estimated
[[Page 29448]]
time to review the rule by the hourly compensation of a Human Resources
Manager and by the number of States (including the District of
Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands).
The Department estimates that rule familiarization will take on
average one hour by a State government Human Resources Manager who is
paid a median hourly wage of $47.25.\17\ To account for fringe benefits
and overhead costs, the median hourly wage rate has been doubled, so
the fully loaded hourly wage is $94.50 (= $47.25 x 2). Therefore, the
one-time rule familiarization cost for all 54 jurisdictions (the 50
States, the District of Columbia, Puerto Rico, Guam, and the U.S.
Virgin Islands) is estimated to be $5,103 (= $94.50 x 1 hour x 54
jurisdictions).
---------------------------------------------------------------------------
\17\ BLS OES National Industry-Specific Occupational Employment
and Wage Estimates, Sector 99 (May 2017): https://www.bls.gov/oes/current/naics2_99.htm.
---------------------------------------------------------------------------
Summary of Estimated Impacts and Discussion of Uncertainty
For all States, the expected first-year budget savings will be
approximately $28,960,117 (= $28,965,220 wage savings - $5,103
regulatory familiarization costs).
This analysis assumes a 50 percent substitution rate, meaning that
States would choose to re-staff certain positions with personnel other
than State merit staff, because these models may be more efficient and
less expensive. Wage savings will vary among States based on each
State's substitution rate. For some States, substitution at the
managerial level may be cheaper; for other States, cost savings may be
realized for administrative staff. Some States may find that private
sector wage rates, for example, are more expensive than State merit
staff wage rates and so choose to keep their current Wagner-Peyser Act
merit staff. Under this proposed rule, States are not required to re-
staff employment services and certain other activities under the
Wagner-Peyser Act; they are given the option to do so. The purpose of
this rule is to grant States maximum flexibility in administering the
Wagner-Peyser Act Employment Service program and thereby free up
resources for more and better service to employers and job seekers.
Each State's wage savings will depend on the choices it makes for
staffing. The Department seeks comments on the savings expected from
this proposed rule.\18\
---------------------------------------------------------------------------
\18\ This NPRM is expected to reduce deadweight loss (DWL). DWL
occurs when a market operates at less than optimal equilibrium
output, which happens anytime the conditions for a perfectly
competitive market are not met. Causes of DWL include taxes,
subsidies, externalities, labor market interventions, price
ceilings, and price floors. This NPRM removes a wage premium. The
lower cost of labor may lead to an increase in the total number of
labor hours purchased on the market. DWL reduction is a function of
the difference between the compensation employers would be willing
to pay for the hours gained and the compensation employees would be
willing to accept for those hours. The size of the DWL reduction
will largely depend on the elasticities of labor demand and labor
supply.
---------------------------------------------------------------------------
Non-Quantifiable Benefits
In addition to cost savings, this proposed rule will likely provide
benefits to States and to society. The added staffing flexibility this
rule gives to States will allow them to identify and achieve
administrative efficiencies. Given the estimated cost savings that will
result, States will be able to dedicate more resources under the
Wagner-Peyser Act to providing services to job seekers and employers.
These services, which help individuals find jobs and helps employers
find workers, will provide economic benefits through greater
employment. These resources can also provide the States with added
capacity to provide more intensive services, which studies have shown
improve employment outcomes. The Department seeks comments on these
anticipated benefits, including studies and data.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. Chapter 6, requires
the Department to evaluate the economic impact of this proposed rule on
small entities. The RFA defines small entities to include small
businesses, small organizations, including not-for-profit
organizations, and small governmental jurisdictions. The Department
must determine whether the final rule imposes a significant economic
impact on a substantial number of such small entities. The Department
concludes that this rule does not directly regulate any small entities,
so any regulatory effect on small entities would be indirect.
Accordingly, the Department has determined this rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the RFA.
C. Paperwork Reduction Act
The Purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
for public comment a summary of the collection of information and a
brief description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by OMB under the PRA and displays a
currently valid OMB control number. The public is also not required to
respond to a collection of information unless it displays a currently
valid OMB control number. In addition, notwithstanding any other
provisions of law, no person will be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
In accordance with the PRA, the Department has submitted two ICRs
to OMB in concert with the publishing of this NPRM. This provides the
public the opportunity to submit comments on the information
collections, either directly to the Department or to OMB. The 60-day
period for the public to submit comments begins with the submission of
the ICRs to OMB. Comments may be submitted electronically through www.
Regulations.gov, or in hardcopy via the United States Postal Service.
The information collections in this NPRM are summarized as follows.
Unified or Combined State Plan and Plan Modifications Under the
Workforce Innovation and Opportunity Act, Wagner-Peyser WIOA Title I
Programs and Vocational Rehabilitation Adult Education
Agency: DOL-ETA.
Title of Collection: Unified or Combined State Plan and Plan
Modifications Under the Workforce Innovation and Opportunity Act,
Wagner-Peyser WIOA Title I Programs and Vocational Rehabilitation Adult
Education.
Type of Review: Revision.
OMB Control Number: 1205-0522.
[[Page 29449]]
Description: Under the provisions of Workforce Innovation and
Opportunity Act (WIOA), the Governor of each State or Territory must
submit a Unified or Combined State Plan to the U.S. Department of
Labor, which is approved jointly with the Department of Education, that
fosters strategic alignment of the six core programs, which include the
adult, dislocated worker, youth, Wagner-Peyser Act Employment Service,
AEFLA, and VR programs.
Affected Public: States, Local, and Tribal Governments.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 38.
Estimated Total Annual Responses: 38.
Estimated Total Annual Burden Hours: 8,136.
Estimated Total Annual Other Burden Costs: $0.
Regulations sections: DOL programs--20 CFR 652.211, 653.107(d),
653.109(d), 676.105, 676.110, 676.115, 676.120, 676.135, 676,140,
676.145, 677.230, 678.310, 678.405, 678.750(a), 681.400(a)(1),
681.410(b)(2), 682.100, 683.115. ED programs--34 CFR parts 361, 462 and
463.
Migrant and Seasonal Farmworker Monitoring Report and Complaint/
Apparent Violation Form
This information collection is not new. The MSFW information
collected supports regulations that set forth requirements to ensure
such workers receive services that are qualitatively equivalent and
quantitatively proportionate to other workers. ETA is proposing to
revise Form ETA-5148 to conform to this NPRM's proposed changes to
Sec. 653.107(a)(3), .108(g)(1) & (s)(11), and .111.
Unrelated to this rulemaking, this information collection is
currently being revised for other purposes. Those changes were the
subject of a separate Federal Register Notice published on March 7,
2019 (84 FR 8343).
Agency: DOL-ETA.
Title of Collection: Migrant and Seasonal Farmworker Monitoring
Report and Complaint/Apparent Violation Form.
Type of Review: Revision.
OMB Control Number: 1205-0039.
Description: This information collection package includes the ETA
Form 5148 (Services to Migrant and Seasonal Farmworkers Report) and the
ETA Form 8429 (Complaint/Apparent Violation Form). SWAs must submit
(pursuant to Sec. 653.109) ETA Form 5148 quarterly to report the level
of services provided to MSFWs through the one-stop centers and through
outreach staff to demonstrate the degree to which MSFWs are serviced
and to ensure that such services are provided on a basis that is
qualitatively equivalent and quantitatively proportionate to the
services provided to non-MSFWs. The Department requires SWAs to use ETA
Form 8429 when logging and referring complaints and/or apparent
violations pursuant to part 658, Subpart E.
Affected Public: State and Local Governments; Individuals or
Households.
Obligation to Respond: Required to Obtain or Retain Benefits.
Estimated Total Annual Respondents: 52.
Estimated Total Annual Responses: 7,416.
Estimated Total Annual Burden Hours: 9,706.
Estimated Total Annual Other Burden Costs: $297,922.
Regulations sections: Sec. 653.107, Sec. 653.108(g)(6), Sec.
653.108(s), Sec. 653.108(i), 653.108(m), 653.109, Sec. 658.601.
Interested parties may obtain a copy free of charge of one or more
of the information collection requests submitted to the OMB on the
reginfo.gov website at http:// www.reginfo.gov/public/do/PRAMain. From
the Information Collection Review tab, select Information Collection
Review. Then select Department of Labor from the Currently Under Review
dropdown menu and look up the Control Number. You may also request a
free copy of an information collection by contacting the person named
in the ADDRESSES section of this preamble.
As noted in the ADDRESSES section of this proposed rule, interested
parties may send comments about the information collections to the
Department throughout the 60-day comment period and/or to the OMB
within 30 days of publication of this notice in the Federal Register.
In order to help ensure appropriate consideration, comments should
mention the applicable OMB Control Number(s).
The Department and OMB are particularly interested in comments
that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
D. Executive Order 13132 (Federalism)
E.O. 13132 requires Federal agencies to ensure that the principles
of Federalism animating our Constitution guide the executive
departments and agencies in the formulation and implementation of
policies and to further the policies of the Unfunded Mandates Reform
Act. Further, agencies must strictly adhere to constitutional
principles. Agencies must closely examine the constitutional and
statutory authority supporting any action that would limit the policy-
making discretion of the States and they must carefully assess the
necessity for any such action. To the extent practicable, State and
local officials must be consulted before any such action is
implemented. The Department has reviewed the NPRM in light of these
requirements and has concluded that it is properly premised on the
statutory authority given to the Secretary of Labor to set standards of
efficiency for programs under the Wagner-Peyser Act, and it meets the
requirements of E.O. 13132 by enhancing, rather than limiting, States'
discretion in the administration of these programs.
Accordingly, the Department has reviewed this NPRM and has
concluded that the rulemaking has no substantial direct effects on
States, or on the distribution of power and responsibilities among the
various levels of government as described by E.O. 13132. Therefore, the
Department has concluded that this NPRM does not have a sufficient
Federalism implication to warrant consultation with State and local
officials or the preparation of a summary impact statement.
E. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any federal mandate in a final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation with the base year
[[Page 29450]]
1995) in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector. A Federal mandate is defined in 2
U.S.C. 658 in part as any provision in a regulation that imposes an
enforceable duty upon State, local, or tribal governments, or the
private sector.
Following consideration of these factors, the Department has
concluded that the NPRM contains no unfunded Federal mandates,
including either a ``Federal intergovernmental mandate'' or a ``Federal
private sector mandate.'' Rather, this NPRM increases State flexibility
in staffing the Wagner-Peyser program.
F. Executive Order 13175 (Indian Tribal Governments)
The Department has reviewed the NPRM under the terms of E.O. 13175
and DOL's Tribal Consultation Policy, and have concluded that the
changes to regulatory text which are the focus of the NPRM would not
have tribal implications, as these changes do not have substantial
direct effects on one or more Indian tribes, the relationship between
the Federal government and Indian tribes, nor the distribution of power
and responsibilities between the Federal government and Indian tribes.
Therefore, no consultations with tribal governments, officials, or
other tribal institutions were necessary.
List of Subjects
20 CFR Part 651
Employment, Grant programs--labor.
20 CFR Part 652
Employment, Grant programs--labor, Reporting and recordkeeping
requirements.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, ETA proposes to amend 20
CFR parts 651, 652, 653 and 658 to read as follows:
PART 651--GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
1. The authority citation for part 651 continues to read as
follows:
Authority: 29 U.S.C. 49a; 38 U.S.C. part III, 4101, 4211; Secs.
503, 3, 189, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
0
2. Amend Sec. 651.10 by:
0
a. Adding the definitions for ``Complaint System Representative,''
``Employment Service (ES) Office Manager,'' ``Outreach staff,'' ``State
Workforce Agency (SWA) official,'' and ``Wagner-Peyser Act Employment
Service staff (ES staff);'' in alphabetical order.
0
b. Revising the definitions of ``Employment Service (ES) office,''
``Field checks,'' ``Field visits,'' ``Outreach contact,'' and
``Respondent,'' and
0
c. Removing the definitions of ``affirmative action'' and ``Local
Office Manager.''
The additions and revisions read as follows:
Sec. 651.10 Definitions of terms used in this part and parts 652,
653, 654, and 658 of this chapter.
* * * * *
Complaint System Representative means the ES staff individual at
the local or State level who is responsible for handling complaints.
* * * * *
Employment Service (ES) office means a site that provides Wagner-
Peyser Act services as a one-stop partner program. A site must be co-
located in a one-stop center consistent with the requirements of
Sec. Sec. 678.305 through 678.315 of this chapter.
Employment Service (ES) Office Manager means the individual in
charge of all ES activities in a one-stop center.
* * * * *
Field checks means random, unannounced appearances by the SWA,
through its ES offices, and/or Federal staff at agricultural worksites
to which ES placements have been made through the intrastate or
interstate clearance system to ensure that conditions are as stated on
the job order and that the employer is not violating an employment-
related law.
Field visits means appearances by Monitor Advocates or outreach
staff to the working and living areas of migrant and seasonal
farmworkers (MSFWs), to discuss employment services and other
employment-related programs with MSFWs, crew leaders, and employers.
Monitor Advocates or outreach staff must keep records of each such
visit.
* * * * *
Outreach contact means each MSFW that receives the presentation of
information, offering of assistance, or follow-up activity from
outreach staff.
Outreach staff means ES staff with the responsibilities described
in Sec. 653.107(b) of this chapter.
* * * * *
Respondent means the individual or entity alleged to have committed
the violation described in the complaint, such as the employer, service
provider, or State agency (including a State agency official).
* * * * *
State Workforce Agency (SWA) official means an individual employed
by the State Workforce Agency or any of its subdivisions.
* * * * *
Wagner-Peyser Act Employment Service staff (ES staff) means
individuals, including but not limited to State employees, contractors,
and staff of a subrecipient, who are funded, in whole or in part, by
Wagner-Peyser Act funds to carry out activities authorized under the
Wagner-Peyser Act.
* * * * *
PART 652--ESTABLISHMENT AND FUNCTIONING OF STATE EMPLOYMENT SERVICE
0
3. The authority citation for part 652 continues to read as follows:
Authority: 29 U.S.C. 491-2; Secs. 189 and 503, Public Law 113-
128, 128 Stat. 1425 (Jul. 22, 2014).
0
4. Amend Sec. 652.204 by revising the first sentence of the paragraph
to read as follows:
Sec. 652.204 Must funds authorized under the Wagner-Peyser Act (the
Governor's Reserve) flow through the one-stop delivery system?
No, Sec. 7(b) of the Wagner-Peyser Act provides that 10 percent of
the State's allotment under the Wagner-Peyser Act is reserved for use
by the Governor for performance incentives, supporting exemplary models
of service delivery, professional development and career advancement of
SWA officials as applicable, and services for groups with special
needs. * * *
0
5. Amend Sec. 652.207 by revising paragraph (b)(3) to read as follows:
Sec. 652.207 How does a State meet the requirement for universal
access to services provided under the Wagner-Peyser Act?
* * * * *
(b) * * *
(3) In each local area, in at least one comprehensive physical
center, ES staff must provide labor exchange services (including staff-
assisted labor exchange services) and career services as described in
Sec. 652.206; and
* * * * *
[[Page 29451]]
0
6. Amend Sec. 652.210 by revising the introductory text of paragraphs
(b) to read as follows:
Sec. 652.210 What are the Wagner-Peyser Act's requirements for
administration of the work test, including eligibility assessments, as
appropriate, and assistance to unemployment insurance claimants?
* * * * *
(b) ES staff must assure that:
* * * * *
0
7. Revise Sec. 652.215 and the section heading to read as follows:
Sec. 652.215 Can Wagner-Peyser Act-funded activities be provided
through a variety of staffing models?
Yes, Wagner-Peyser Act-funded activities can be provided through a
variety of staffing models. They are not required to be provided by
State merit-staff employees; however, States may still choose to do so.
0
8. Revise Sec. 652.216 and the section heading to read as follows:
Sec. 652.216 May the one-stop operator provide guidance to ES staff
in accordance with the Wagner-Peyser Act?
(a) Yes, the one-stop delivery system envisions a partnership in
which Wagner-Peyser Act labor exchange services are coordinated with
other activities provided by other partners in a one-stop setting. As
part of the local Memorandum of Understanding described in Sec.
678.500 of this chapter, the SWA, as a one-stop partner, may agree to
have ES staff receive guidance from the one-stop operator regarding the
provision of labor exchange services.
(b) The guidance given to ES staff must be consistent with the
provisions of the Wagner-Peyser Act, the local Memorandum of
Understanding, and applicable collective bargaining agreements.
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
0
9. The authority citation for part 653 continues to read as follows:
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
0
10. Amend Sec. 653.102 by removing the word ``staff'' from the third
sentence, to reads as follows:
Sec. 653.102 Job information.
* * * One-stop centers must provide adequate assistance to MSFWs to
access job order information easily and efficiently. * * *
0
11. Amend Sec. 653.103 by revising paragraphs (c) and (d) to read as
follows:
Sec. 653.103 Process for migrant and seasonal farmworkers to
participate in workforce development activities.
* * * * *
(c) One-stop centers must provide MSFWs a list of available career
and supportive services in their native language.
(d) One-stop centers must refer and/or register MSFWs for services,
as appropriate, if the MSFW is interested in obtaining such services.
0
12. Amend Sec. 653.107 by revising paragraphs (a)(1), intro text of
paragraph (2) and (3), paragraph (4), intro text of paragraph (b), (2),
(4)(iv), (5) through (11), and (c) to read as follows:
Sec. 653.107 Outreach and Agricultural Outreach Plan
(a) * * *
(1) Each SWA must provide an adequate number of outreach staff to
conduct MSFW outreach in their service areas. SWA Administrators must
ensure State Monitor Advocates and outreach staff coordinate their
outreach efforts with WIOA title I sec. 167 grantees as well as with
public and private community service agencies and MSFW groups.
(2) As part of their outreach, SWAs must ensure outreach staff:
* * * * *
(3) 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, SWAs must seek
qualified candidates who meet the criteria in Sec. 653.108(b)(1)
through (3).
* * * * *
(4) 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. For
the remainder of the States, there must be year-round part-time
outreach staff, and during periods of the highest MSFW activity, there
must be full-time outreach staff. All outreach staff must be
multilingual if warranted by the characteristics of the MSFW population
in the State, and must spend a majority of their time in the field.
* * * * *
(b) Outreach staff responsibilities. Outreach staff must locate and
contact MSFWs who are not being reached by the normal intake activities
conducted by the ES offices. Outreach staff responsibilities include:
* * * * *
(2) Outreach staff must not enter work areas to perform outreach
duties described in this section on an employer's property without
permission of the employer unless otherwise authorized to enter by law;
must not enter workers' living areas without the permission of the
workers; and must comply with appropriate State laws regarding access.
* * * * *
(4) * * *
* * * * *
(iv) Referral of complaints to the ES Office Complaint System
Representative or ES Office Manager;
* * * * *
(5) Outreach staff must make follow-up contacts as necessary and
appropriate to provide the assistance specified in paragraphs (b)(1)
through (4) of this section.
(6) Outreach staff must be alert to observe the working and living
conditions of MSFWs and, upon observation or upon receipt of
information regarding a suspected violation of Federal or State
employment-related law, document and refer information to the ES Office
Manager for processing in accordance with Sec. 658.411 of this
chapter. Additionally, if an outreach staff member observes or receives
information about apparent violations (as described in Sec. 658.419 of
this chapter), the outreach staff member must document and refer the
information to the appropriate ES Office Manager.
(7) Outreach staff must be trained in local office procedures and
in the services, benefits, and protections afforded MSFWs by the ES,
including training on protecting farmworkers against sexual harassment.
While sexual harassment is the primary requirement, training also may
include similar issues such as sexual coercion, assault, and human
trafficking. Such trainings are intended to help outreach staff
identify when such issues may be occurring in the fields and how to
document and refer the cases to the appropriate enforcement agencies.
They also must be trained in the procedure for informal resolution of
complaints. The program for such training must be formulated by the
State Administrator, pursuant to uniform guidelines developed by the
Employment and Training Administration (ETA). The SMA must be given an
opportunity to review and comment on the State's program.
(8) Outreach staff must maintain complete records of their contacts
with MSFWs and the services they perform. These records must include a
daily log, a copy of which must be sent monthly to the ES Office
Manager and
[[Page 29452]]
maintained on file for at least 2 years. These records must include the
number of contacts, the names of contacts (if available), and the
services provided (e.g., whether a complaint was received and if the
complaint or apparent violation was resolved informally or referred to
the appropriate enforcement agency, and whether a request for career
services was received). Outreach staff also must maintain records of
each possible violation or complaint of which they have knowledge, and
their actions in ascertaining the facts and referring the matters as
provided herein. These records must include a description of the
circumstances and names of any employers who have refused outreach
staff access to MSFWs pursuant to paragraph (b)(2) of this section.
(9) Outreach staff must not engage in political, unionization, or
anti-unionization activities during the performance of their duties.
(10) Outreach staff must be provided with, carry and display, upon
request, identification cards or other material identifying them as ES
staff.
(11) Outreach staff in significant MSFW local offices must conduct
especially vigorous outreach in their service areas.
(c) ES office outreach responsibilities. Each ES Office Manager
must file with the SMA a monthly summary report of outreach efforts.
These reports must summarize information collected, pursuant to
paragraph (b)(8) of this section. The ES Office Manager and/or other
appropriate staff must assess the performance of outreach staff by
examining the overall quality and productivity of their work, including
the services provided and the methods and tools used to offer services.
Performance must not be judged solely by the number of contacts made by
the outreach staff. The monthly reports and daily outreach logs must be
made available to the SMA and Federal on-site review teams.
* * * * *
0
13. Amend Sec. 653.108 by:
0
a. Revising paragraph (b), (c), (d), (g)(2)(i)(D), (g)(2)(iv),
(g)(2)(vii), (g)(3), (o), (s)(2), (3), (9), and (11);
0
b. Revising the first sentence of paragraphs (g)(1), (i) and (o);
0
c. Revising the second sentence of paragraph (g)(2)(v).
The revisions read as follows:
Sec. 653.108 State Workforce Agency and State Monitor Advocate
responsibilities.
* * * * *
(b) The State Administrator must appoint a State Monitor Advocate
who must be a SWA official. The State Administrator must inform
farmworker organizations and other organizations with expertise
concerning MSFWs of the opening and encourage them to refer qualified
applicants to apply. Among qualified candidates, the SWAs must seek
persons:
* * * * *
(c) The SMA must have direct, personal access, when necessary, to
the State Administrator.
(d) The SMA must have ES staff necessary to fulfill effectively all
of the duties set forth in this subpart. The number of ES staff
positions must be determined by reference to the number of MSFWs in the
State, as measured at the time of the peak MSFW population, and the
need for monitoring activity in the State. The SMA must devote full-
time to Monitor Advocate functions. Any State that proposes less than
full-time dedication must demonstrate to its Regional Administrator
that the SMA function can be effectively performed with part-time ES
staffing.
* * * * *
(g) * * *
(1) Conduct an ongoing review of the delivery of services and
protections afforded by the ES regulations to MSFWs by the SWA and ES
offices (including efforts to provide ES staff in accordance with Sec.
653.111, and the appropriateness of informal complaint and apparent
violation resolutions as documented in the complaint logs). * * *
(2) * * *
(i) * * *
* * * * *
(D) Complaint logs including logs documenting the informal
resolution of complaints and apparent violations; and
* * * * *
(v) * * * The plan must be approved or revised by appropriate
superior officials and the SMA. * * *
* * * * *
(vii) The SMA may recommend that the review described in paragraph
(g)(2) of this section be delegated to an ES staff person, if and when
the State Administrator finds such delegation necessary. In such event,
the SMA is responsible for and must approve the written report of the
review.
(3) Ensure all significant MSFW one-stop centers not reviewed
onsite by Federal staff are reviewed at least once per year by ES
staff, and that, if necessary, those ES offices in which significant
problems are revealed by required reports, management information, the
Complaint System, or other means are reviewed as soon as possible.
* * * * *
(i) At the discretion of the State Administrator, the SMA may be
assigned the responsibility as the Complaint System Representative. * *
*
* * * * *
(o) The SMA must ensure that outreach efforts in all significant
MSFW ES offices are reviewed at least yearly. This review will include
accompanying at least one outreach staff from each significant MSFW ES
office on field visits to MSFWs' working, living, and/or gathering
areas. * * *
* * * * *
(s) * * *
* * * * *
(2) An assurance that the SMA has direct, personal access, whenever
he/she finds it necessary, to the State Administrator.
(3) An assurance the SMA devotes all of his/her time to monitor
advocate functions. Or, if the SMA conducts his/her functions on a
part-time basis, an explanation of how the SMA functions are
effectively performed with part-time staffing.
* * * * *
(9) A summary of the training conducted for ES staff on techniques
for accurately reporting data.
* * * * *
(11) For significant MSFW ES offices, a summary of the State's
efforts to provide ES staff in accordance with Sec. 653.111.
0
14. Amend Sec. 653.109 by revising paragraph (c) to read as follows:
Sec. 653.109 Data collection and performance accountability measures.
* * * * *
(c) Provide necessary training to ES staff on techniques for
accurately reporting data.
* * * * *
0
15. Amend Sec. 653.111 by:
0
a. Revising paragraph (a);
0
b. Removing paragraphs (a)(1) through (2), paragraphs (b) and (b)(1)
through (2);
0
c. Revising paragraph (b)(3) and redesignate it as paragraph (b); and
0
d. Adding paragraph (c).
The revisions read as follows:
Sec. 653.111 State Workforce Agency staffing requirements.
(a) The SWA must implement and maintain a program for staffing
significant MSFW one-stop centers by providing ES staff in a manner
facilitating the delivery of employment services tailored to the
special needs of MSFWs, including by seeking ES staff that meet the
criteria in Sec. 653.108(b)(1) through (3)).
* * * * *
[[Page 29453]]
(b) The SMA, Regional Monitor Advocate, or the National Monitor
Advocate, as part of his/her regular reviews of SWA compliance with
these regulations, must monitor the extent to which the SWA has
complied with its obligations under paragraph (a) of this section.
(c) SWAs remain subject to all applicable federal laws prohibiting
discrimination and protecting equal employment opportunity.
0
16. Amend Sec. 653.501 by revising the introductory text in paragraph
(a) and paragraphs (c)(3)(vii), (d)(6), and (9) to read as follows:
Sec. 653.501 Requirements for processing clearance orders.
(a) Assessment of need. No ES office or SWA official may place a
job order seeking workers to perform farmwork into intrastate or
interstate clearance unless:
* * * * *
(c) * * *
* * * * *
(3) * * *
* * * * *
(vii) Outreach staff must have reasonable access to the workers in
the conduct of outreach activities pursuant to Sec. 653.107.
(d) * * *
* * * * *
(6) ES staff must assist all farmworkers, upon request in their
native language, to understand the terms and conditions of employment
set forth in intrastate and interstate clearance orders and must
provide such workers with checklists in their native language showing
wage payment schedules, working conditions, and other material
specifications of the clearance order.
* * * * *
(9) If weather conditions, over-recruitment, or other conditions
have eliminated the scheduled job opportunities, the SWAs involved must
make every effort to place the workers in alternate job opportunities
as soon as possible, especially if the worker(s) is/(are) already en-
route or at the job site. ES staff must keep records of actions under
this section.
* * * * *
0
17. Amend Sec. 653.502 by revising paragraph (e)(2) to read as
follows:
Sec. 653.502 Conditional access to the Agricultural Recruitment
System.
* * * * *
(e) * * *
* * * * *
(2) With the approval of an appropriate SWA official, remove the
employer's clearance orders from intrastate and interstate clearance;
and
* * * * *
0
18. Amend Sec. 653.503 by revising paragraphs (d) and (e) to read as
follows:
Sec. 653.503 Field checks.
* * * * *
(d) If the individual conducting the field check observes or
receives information, or otherwise has reason to believe that
conditions are not as stated in the clearance order or that an employer
is violating an employment-related law, the individual must document
the finding and attempt informal resolution where appropriate (for
example, informal resolution must not be attempted in certain cases,
such as E.O. related issues and others identified by the Department
through guidance). If the matter has not been resolved within 5
business days, the SWA must initiate the Discontinuation of Services as
set forth at part 658, subpart F, of this chapter and must refer
apparent violations of employment-related laws to appropriate
enforcement agencies in writing.
(e) SWA officials may enter into formal or informal arrangements
with appropriate State and Federal enforcement agencies where the
enforcement agency staff may conduct field checks instead of and on
behalf of the SWA. The agreement may include the sharing of information
and any actions taken regarding violations of the terms and conditions
of the employment as stated in the clearance order and any other
violations of employment-related laws. An enforcement agency field
check must satisfy the requirement for SWA field checks where all
aspects of wages, hours, working and housing conditions have been
reviewed by the enforcement agency. The SWA must supplement enforcement
agency efforts with field checks focusing on areas not addressed by
enforcement agencies.
* * * * *
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
0
19. The authority citation for part 658 continues to read as follows:
Authority: Secs. 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 29 U.S.C. chapter 4B.
0
20. Amend Sec. 658.410 by revising paragraphs (b), (c), (c)(6), (f),
(g), (h), (k), and (m) to read as follows:
Sec. 658.410 Establishment of local and State complaint systems.
* * * * *
(b) The State Administrator must have overall responsibility for
the operation of the Complaint System; this includes responsibility for
the informal resolution of complaints. In the ES office, the ES Office
Manager is responsible for the operation of the Complaint System.
(c) SWAs must ensure centralized control procedures are established
for the processing of complaints. The ES Office Manager and the SWA
Administrator must ensure a central complaint log is maintained,
listing all complaints taken by the ES office or the SWA, and
specifying for each complaint:
* * * * *
(6) The action taken, and whether the complaint has been resolved,
including informally. The complaint log also must include action taken
on apparent violations.
* * * * *
(f) Complaints may be accepted in any one-stop center, or by a SWA,
or elsewhere by outreach staff.
(g) All complaints filed through the local ES office must be
handled by a trained Complaint System Representative.
(h) All complaints received by a SWA must be assigned to a trained
Complaint System Representative designated by the State Administrator,
provided that the Complaint System Representative designated to handle
MSFW complaints must be the State Monitor Advocate (SMA).
* * * * *
(k) The appropriate ES staff handling a complaint must offer to
assist the complainant through the provision of appropriate services.
* * * * *
(m) Follow-up on unresolved complaints. When an MSFW submits a
complaint, the SMA must follow-up monthly on the handling of the
complaint, and must inform the complainant of the status of the
complaint. No follow-up with the complainant is required for non-MSFW
complaints.
* * * * *
Sec. 658.410 [Amended]
0
21. Amend Sec. 658.410 paragraph (i) by removing the words ``Complaint
System representative'' and add in its place the words ``Complaint
System Representative''.
0
22. Amend Sec. 658.411 by:
0
a. Revising paragraph (a)(1);
0
b. Removing in paragraphs (a)(2)(iii), (3), (4) (in the second and
third sentences), (b)(1)(ii), (1)(ii)(B) (in the second and third
sentences), (1)(ii)(C),
[[Page 29454]]
(1)(D), (c)(1), (d)(2)(i), (2)(ii), and (3)(i) the words ``Complaint
System representative'' and adding in its place the words ``Complaint
System Representative''; and
0
c. Revising paragraphs (d)(3)(ii), (5)(ii), and (5)(iii)(G).
The revisions are to read as follows:
Sec. 658.411 Action on complaints.
(a) * * *
(1) Whenever an individual indicates an interest in filing a
complaint under this subpart with an ES office, the SWA, or outreach
staff, the individual receiving the complaint must offer to explain the
operation of the Complaint System and must offer to take the complaint
in writing.
* * * * *
(d) * * *
* * * * *
(3) * * *
* * * * *
(ii) If resolution at the SWA level has not been accomplished
within 30 working days after the complaint was received by the SWA (or
after all necessary information has been submitted to the SWA pursuant
to paragraph (a)(4) of this section), whether the complaint was
received directly or from an ES office pursuant to paragraph (d)(2)(ii)
of this section, the SWA official must make a written determination
regarding the complaint and must send electronic copies to the
complainant and the respondent. The determination must follow the
procedures set forth in paragraph (d)(5) of this section.
* * * * *
(5) * * *
* * * * *
(ii) If SWA officials determine that the employer has not violated
the ES regulations, the SWA must offer to the complainant the
opportunity to request a hearing within 20 working days after the
certified date of receipt of the notification.
(iii) * * *
* * * * *
(G) With the consent of the SWA official and of the State hearing
official, the party who requested the hearing may withdraw the request
for the hearing in writing before the hearing.
* * * * *
0
23. Amend Sec. 658.419 by revising paragraph (a) to read as follows:
Sec. 658.419 Apparent violations.
(a) If a SWA, ES office employee, or outreach staff, observes, has
reason to believe, or is in receipt of information regarding a
suspected violation of employment-related laws or ES regulations by an
employer, except as provided at Sec. 653.503 of this chapter (field
checks) or Sec. 658.411 (complaints), the employee must document the
suspected violation and refer this information to the ES Office
Manager.
* * * * *
0
24. Amend Sec. 658.501 by revising paragraphs (b) and (c) to read as
follows:
Sec. 658.501 Basis for discontinuation of services.
* * * * *
(b) SWA officials may discontinue services immediately if, in the
judgment of the State Administrator, exhaustion of the administrative
procedures set forth in this subpart in paragraphs (a)(1) through (7)
of this section would cause substantial harm to a significant number of
workers. In such instances, procedures at Sec. Sec. 658.503 and
658.504 must be followed.
(c) If it comes to the attention of an ES office or SWA that an
employer participating in the ES may not have complied with the terms
of its temporary labor certification, under, for example the H-2A and
H-2B visa programs, SWA officials must engage in the procedures for
discontinuation of services to employers pursuant to paragraphs (a)(1)
through (8) of this section and simultaneously notify the Chicago
National Processing Center (CNPC) of the alleged non-compliance for
investigation and consideration of ineligibility pursuant to Sec.
655.184 or Sec. 655.73 of this chapter respectively for subsequent
temporary labor certification.
0
25. Amend Sec. 658.601 by revising paragraphs (a)(1)(ii) and (2)(ii)
to read as follows:
Sec. 658.601 State Workforce Agency responsibility.
(a) * * *
(1) * * *
* * * * *
(ii) To appraise numerical activities/indicators, actual results as
shown on the Department's ETA Form 9172, or any successor report
required by the Department must be compared to planned levels.
Differences between achievement and plan levels must be identified.
* * * * *
(2) * * *
* * * * *
(ii) To appraise these key numerical activities/indicators, actual
results as shown on ETA Form 9172, or any successor report required by
the Department must be compared to planned levels. Differences between
achievement and plan levels must be identified.
* * * * *
0
26. Amend Sec. 658.602 by revising paragraphs (l), (o)(1), and (s)(2)
to read as follows:
Sec. 658.602 Employment and Training Administration National Office
responsibility
* * * * *
(l) If the NMA finds the effectiveness of any RMA has been
substantially impeded by the Regional Administrator or other regional
office official, he/she must, if unable to resolve such problems
informally, report and recommend appropriate actions directly to the
OWI Administrator. If the NMA receives information that the
effectiveness of any SMA has been substantially impeded by the State
Administrator, a State or Federal ES official, or other ES staff, he/
she must, in the absence of a satisfactory informal resolution at the
regional level, report and recommend appropriate actions directly to
the OWI Administrator.
* * * * *
(o) * * *
(1) Meet with the SMA and other ES staff to discuss MSFW service
delivery; and
* * * * *
(s) * * *
* * * * *
(2) Provide technical assistance to ETA regional office and ES
staff for administering the Complaint System, and any other employment
services as appropriate.
* * * * *
0
27. Amend Sec. 658.603 by:
0
a. Revising introductory language in paragraph (f);
0
b. Revising paragraph (h);
0
c. Republishing the introductory text of paragraph (n); and
0
d. Revising paragraphs (n)(3), intro text paragraph (r), (r)(1), and
(t).
The revisions read as follows:
Sec. 658.603 Employment and Training Administration Regional Office
responsibility.
* * * * *
(f) The Regional Administrator must appoint a RMA who must carry
out the duties set forth in this subpart. The RMA must:
* * * * *
(h) The Regional Administrator must ensure that staff necessary to
fulfill effectively all the regional office responsibilities set forth
in this section are assigned.
* * * * *
(n) The RMA must review the activities and performance of the SMAs
[[Page 29455]]
and the State monitoring system in the region, and must recommend any
appropriate changes in the operation of the system to the Regional
Administrator. The RMA's review must include a determination whether
the SMA:
* * * * *
(3) Is making recommendations which are being consistently ignored
by SWA officials. If the RMA believes that the effectiveness of any SMA
has been substantially impeded by the State Administrator, other State
agency officials, any Federal officials, or other ES staff, he/she must
report and recommend appropriate actions to the Regional Administrator.
Copies of the recommendations must be provided to the NMA
electronically or in hard copy.
* * * * *
(r) As appropriate, each year during the peak harvest season, the
RMA must visit each State in the region not scheduled for an on-site
review during that fiscal year and must:
(1) Meet with the SMA and other ES staff to discuss MSFW service
delivery; and
* * * * *
(t) The RMA must attend MSFW-related public meeting(s) conducted in
the region, as appropriate. Following such meetings or hearings, the
RMA must take such steps or make such recommendations to the Regional
Administrator, as he/she deems necessary to remedy problem(s) or
condition(s) identified or described therein.
* * * * *
0
28. In Sec. 658.704, the introductory text of paragraph (a) is
republished and paragraph (a)(4) is revised to read as follows:
Sec. 658.704 Remedial actions.
(a) If a SWA fails to correct violations as determined pursuant to
Sec. 658.702, the Regional Administrator must apply one or more of the
following remedial actions to the SWA:
* * * * *
(4) Requirement of special training for ES staff;
* * * * *
Molly E. Conway,
Acting Assistant Secretary for Employment and Training.
[FR Doc. 2019-12111 Filed 6-21-19; 8:45 am]
BILLING CODE P
