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Friday
January 11, 1980
Part III
Department of Labor
Employment and Training Administration
Services to Migrant and Seasonal
Farmworkers, Employment Service
Complaint System, Monitoring and
Enforcement
Federal Register / Vol. 45, No. 8 1 Friday, January 11, 1980 / Proposed Rules
DEPARTMENT OF LABOR
Employment and Training
Administration
20 CFR Parts 651,653 and 658
Services to Migrant and Seasonal
Farmworkers; Employment Service
Complaint System, Monitoring and
Enforcement
AGENCY: Employment and Training
Administration, Labor.
ACTION: Proposed rule.
SUMMARY: The Department of Labor is
proposing regulations which all State
Employment Service agencies must
follow in offering services to the public.
In some areas, these regulations
establish entirely new responsibilities
and procedures with respect to the
provision of services to migrant and
seasonal farmworkers. In other areas,
the regulations clarify and update
special requirements already
established to govern services to
migrant and seasonal farmworkers. In
particular, the regulations make
important changes to the following
components of the ES system: the
delivery of outreach services, the
meeting of affirmative action
obligations, the use of agricultural job
clearance orders, the Employment
Service complaint system, the
monitoring of Employment Service
activities, and the Federal enforcement
of State agency compliance with all
Employment Service regulations.
DATES: Comments must be received on
or before: March 11, 1980.
ADDRESS: Comments should be
addressed to the Assistant Secretary for
Employment and Training, U;S.
Department of Labor, 601 D Street NW.,
Washington, D.C. 20213. Attn: David 0.
Williams, Administrator, United States
Employment Service.
FOR FURTHER INFORMATION CONTACT:
Joseph Paslawski, Regulations
Coordinator, Office of Policies and
Program Design, 601 D Street NW.,
Room 8018, Washington, D.C. 20213,
202-376-7601.
SUPPLEMENTARY INFORMATION: The
Wagner-Peyser Act of 1933, as amended,
established the Employment Service
system. The Act authorized a national
system of public employment offices to
assist men, women and youth in
obtaining employment.
The Employment Service performs
essentially a labor exchange function.
That is, the system provides no-fee
employment services to applicants
seeking employment and to employers
seeking applicants. Among the services
provided applicants are job information,
referral to job openings listed with the
Employment Service, employment
counseling, employment testing, job
development and referral to training.
Among the services provided employers
are referral of qualified applicants to job
openings listed with the Employment
Service system; labor market
information; and assistance in meeting
affirmative action obligations under
legislation, court order, consent decree,
government contracts, or other fair
employment practice authority rulings.
On January 25, 1977, at 42 FR 4722, the
Employment and Training
Administration (ETA) of the Department
of Labor published final regulations (20
CFR Parts 651, 653 and 658) under the
Wagner-Peyser Act, ("the 1977
regulations"), governing services to
migrant and seasonal farmworkers by
the Federal-State public Employment
Service system and establishing
procedures for the administrative
handling of complaints alleging
violations of Employment Service
regulations, the monitoring of all
Employment Service activities, and the
ensuring of State agency compliance
with Employment Service regulations.
The 1977 regulations paralleled the court
order in the case of NAACP v. Marshall,
Civil Action No. 2010-72, 8 Empl. Prac.
Dec. 19634 (D.D.C. Aug. 13, 1974),
pursuant to 5 Empl. Prac. Dec. 18637
(D.D.C. May 31, 1973). See 360 F. Supp.
1006 (D.D.C. 1973).
Since the 1977 regulations were
implemented, the Department has
become aware of the need for
clarification and/or supplementation in
many areas in order to ensure the
adequate provision of services to
migrant and seasonal farmworkersand
the proper operation of the various
administrative programs and procedures
established by the regulations. Many of
the clarifications have been suggested
by State Employment Service agencies
and the State and federal migrant and
seasonal farmworker Monitor
Advocates during training sessions and
conferenrles conducted by the
Department of Labor. Most of the
supplementary provisions have been
requested by advocate groups on behalf
of migrant and seasonal farmworkers.
These provisions represent significant
improvements in the various ES systems
and include new responsibilities for
both ETA and State ES officials. At the
same time, an attempt has been made to
focus all new requirements on the areas
where comprehensive services to
MSFWs are most needed and to give
States some flexibility to adjust their
programs to varying circumstances.
The Department has given careful
consideration to the regulatory changes
made in this proposal. The experience of
the past three years under the 1977
regulations has been given particular
weight by the Department in drafting
new provisions. These proposed
regulations are the result of extensive
negotiations between the Department
and the plaintiff organizations in
NAACP v. Marshall, and represent part
of a proposed settlement agreement
concluding the litigation in that case.
Additional proposed regulations
concerning the Department's
coordinated enforcement program for
farm labor enforcement, 29 CFR Part 42,
are also published in today's Federal
Register and should be read in
conjunction with and as complementary
to these regulations.
In promulgating special requirements
for the provisions of services to MSFWs,
the Department recognizes that MSFWs
have special employment-related needs.
The transient nature of MSFW work, the
low pay and difficult working conditions
of migrant farmwork, the heavy reliance
that MSFWs place on the ES interstate
clearance system, and the difficulties
that migrant workers face in receiving
certain State benefits make MSFWs
stand out among employment groups
receiving ES services as being
particularly vulnerable and in need of
specialized attention. In proposing these
regulations today, the Department
intends to continue its effort to serve
fully the special needs of MSFWs
Among the major changes proposed
by these regulations are the following.
1. Definition of Migrant and Seasonal
Farmworker
The definition of migrant and
seasonal farmworker (MSFW) included
in the 1977 regulations has proved to be
confusing both to applicants for
Employment Services and to State
agency staff. It has also proven to be
cumbersome for program administrators
faced with a wide disparity between the
definition used by the Employment
Service and the various definitions used
in other Federal programs. The proposed
definitions seek to simplify the
definitional problems for Employment
Service interviewers and is more
compatible with the definitions in other
Federal program.
2. Applications
The proposed regulations include
changes designed to make the process of
taking the applications of MSFWs more
complete and helpful to the applicant.
The regulations eliminate the waiver
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Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Pioposed Rules 2499
form that had been used under the 1977
regulations and substitute the use of a
checklist of all ES services written in
both English and Spanish. A copy of this
checklist is given to each MSFW who
applies for any ES services. The
proposed regulations also embody the
statutory prohibition against State ES
agencies serving unregistered farm labor
contractors or farm labor contractor
employees.
3. Planning and Delivery of Outreach
Services
The proposed regulations make
substantial changes to improve the
effectiveness of State agency outreach
efforts. Each State will be required to
prepare an outreach plan setting forth,
among its various objectives to provide
quality outreach, numerical goals for the
number of MSFWs to be contacted and
the number of staff years to be utilized
for outreach. The proposed plan shall be
provided to CETA 303 and other
appropriate MSFW groups for review
and comment 45 days prior to
submission to the Department's
Regional Administrator for approval as
part of the State agency's program
budget plan. In drawing up their plans,
State agencies are encouraged to
coordinate their outreach services with
other service deliverers, wherever
possible.
The proposed regulations include the
statements of ETA policy making clear
that State agencies are expected to use
outreach to make sufficient penetration
in the farmworker community so that a
large number of MSFWs in the service
area of local offices are aware of the full
range of ES services. An especially
thorough outreach efforts and
appropriate.follow-up activity is
expected in those areas where MSFWs
reside for a relatively long time. The
ultimate objective of this outreach
program, of course, is to promote the use
by MSFWs of the services offered by the
ES system.
The proposed regulations further
provide that, through merit system
procedures, State agencies shall seek, in
hiring and assigning outreach staff,
persons who are from farmworker
backgrounds, speak Spanish, and/or are
racially or ethnically representative of
MSFWs in the service area. Additional
staffing requirements for outreach
workers are provided for certain of the
States with the highest estimated year-
round MSFW activity.
The regulations specify in greater
detail the activities of outreach workers.
the regulations require outreach workers
to transmit information concerning
suspected violations of federal and State
laws to appropriate enforcement
agencies and maintain records of their
outreach activities.
4. Affirmative Action Obligations
The proposed regulations establish
comprehensive affirmative action
obligations on the part of State ES
agencies. They require State agencies to
develop affirmative action plans for
certain significant MSFW local offices
as part of the agency's program budget
plan. The plans shall include goals and
timetables and shall ensure that
sufficient numbers of qualified,
permanent minority staff are hired. In
analyzing the work force characteristics,
the MSFW population (i.e. the number of
work years spent by MSFWs in the
area) shall be included by multiplying
the average length of time (stated as a
fraction of a year) MSFWs stay in the
area by the total estimated MSFW
population in the area during the
previous year. The proposed affirmative
action plan shall be provided to MSFW
groups and other interested
organizations for their review and
comments. The State and Regional
MSFW Monitor Advocates shall review
the affirmative action plans and monitor
compliance with the plans as part of the
regular reviews of State agency
compliance.
5. Agricultural ob Clearance Orders
The proposed regulations require that
agricultural job clearance orders contain
the statement that no job order accepted
or recruited upon by the Employment
Service constitutes a job offer to which
ETA or a State agency is in any way a
party. At the same time, the regulations
recognize that MSFWs rely heavily on
agricultural job clearance orders for
their employment and that the
circumstances of employment for
MSFWs are considerably different from
those of non-migrant and non-seasonal
employment Accordingly, the
regulations include special requirements
to ensure that applicable statutory
protections are provided. For example,
the clearance orders must contain the
piece rate estimated in hourly wage rate
equivalents for each activity and unit
size. ES staff shall ensure that the
employer's estimation of the hourly
wage rate is reasonably accurate, and
that the hourly rate is not less than
prevailing wage rates or the applicable
federal or state minimum wage,
whichever is higher.
In addition, job orders must contain a
number of new employer's assurances,
including the following: an assurance
that the employer will notify the order-
holding office immediately upon
learning of a change in weather or crop
conditions: an assurance that the
employer will provide workers with the
number of hours of work stated in the
clearance order for the week beginning
with the anticipated date of need unless
the employer has notified the order-
holding office at least 10 days prior to
the original date of need; and an
assurance that the employer will
provide adequate housing on a no-cost
or nominal cost basis to workers
recruited on inter and intra-state
clearance orders. These assurances
have been incorporated into the job
order form to address specific problems
faced regularly by MSFWs in their work.
The regulations continue the practice
established by the 1977 regulations
requiring an employer's assurance that
all terms and conditions of employment
are in compliance with applicable
federal and State laws.
The proposed regulations also require
order holding offices to provide workers
referred on clearance orders with a
checklist summarizing wages, working
conditions and other material
specifications of the job orders, and,
where necessary, such a checklist shall
be in English and Spanish. Finally, the
proposed regulations require State
agencies to conduct random,
unannounced field checks at a
significant number of agricultural work
sites to which ES placements have been
made through the interstate or intrastate
clearance system. Records must be kept
of all such field checks.
6. Complaint System
The proposed regulations reform the
ES complaint system in a number of
important ways. They clarify the types
of complaints which are to be processed
in the complaint system and provide
that non-ES related complaints alleging
violations of employment-related laws
shall be received by State agencies and
regional offices and then promptly
referred to the appropriate'enforcement
agency. The definition of "employer" in
this section includes farm labor
contractors and other "crew leaders."
Where ES-related complaints filed by
MSFWs against employers involve
possible violations of employment-
related laws, local offices not only must
refer that aspect of the complaint
immediately to the appropriate
enforcement agency, they must also
track the status of the referred matter
monthly.
The proposed regulations also specify
the procedures to be followed after a
complaint is filed, including the offer of
a hearing at the State level and the right
to an appeal to the appropriate Regional
Administrator if the party is dissatisfied
with the State level-determination. The
regulations permit that, whenever the
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
appropriate regional official determines
that the nature and scope of the
complaint received at the regional office
are such that the time required to
exhaust State administrative procedures
would adversely affect any significant
number of applicants, the regional office
shall immediately take the complaint
and follow the procedures for resolution
and a hearing.
Finally, the procedures for
discontinuation of services to employers
have been clarified and streamlined.
They provide that the State agency may
suspend services to an employer
immediately if, in the judgment of the
State Administrator, exhaustion of
administrative procedures would cause
substantial harm to a significant number
of workers.
7. Monitoring Provisions
The proposed regulations clarify and
expand upon the responsibilities of the
State, Regional, and National MSFW
Monitor Advocates and strengthen their
positions within the Employment
Service system. State Monitor
Advocates conduct regular reviews of
State agency performance, including
data analyses, field visits and reviews
of significant local offices. They also
establish ongoing liaison with CETA 303
and other outside organizations.
Regional Monitor Advocates are given
significant responsibilities in reviewing
the delivery of services to MSFWs by
States in their region. Provision is made
for orsite participation in State reviews
and sufficient staff support. The
National MSFW Monitor Advocate is
also given increased responsibility in
overseeing the effective functioning of
the ES system as it pertains to services
to MSFWs. The National MSFW
Monitor Advocate will prepare an
annual report on the matters covered by
the ES regulations.
Both the Regional and National
MSFW Monitor Advocates are given
specific responsibility to deal with
emergencies that might arise by
assisting State MSFW Monitor
Advocates, enforcement agencies or
MSFW groups in obtaining action by
appropriate, agencies and staffs.
The regulations also include
requirements that, in selecting National,
Regional and State MSFW Monitor
Advocates, qualified candidates will be
sought who (1) are from farmworker
backgrounds, (2) speak Spanish, (3) are
Racially or ethnically similar to the
MSFWs in the area, or (4) have
substantial work experience in
farmworker services.
8. Compliance Procedures
The proposed regulations make
significant changes-to ETA compliance
procedures. They make clear that ETA
will take all necessary action to ensure
that State agencies comply fully with the
requirements of Employment Service
regulations. The regulations set specific
time-frames for certain actions by
regional and national ETA officials,
from the issuance of corrective action to
decertification. They require regional
administrators to accept and act on
complaints under the compliance
procedures in certain instances without
exhaustion of the complaint process at
the State level.
In critical situations, Regional
Administrators may impose immediate
corrective action on the State agency
under the proposed regulations. If
corrective actions fail and remedial
actions must be imposed by the
Regional Administrator, the notices of
remedial action, if dealing with MSFWs
or the complaint system, shall be
published in the Federal Register. If the
State agency is not in compliance within
180 days of the initial application of
remedial action, the Regional
Administrator must initiate
decertification proceedings, and the
Assistant Secretary for ETA must
decide whether to proceed with
decertification within 45 days of the
Regional Administrator's initiation of
decertification. The regulations call for
the Assistant Secretary and the
Secretary to review promptly all
requests for decertification made by
Regional Administrators and to make a
decision whether to grant the request
based on very specific criteria.
9. Regulatory Assessment
This regulation, although significant,
is not a major regulation as defined in
the Department of Labor's guidelines
implementing Executive Order 12044
Improving Government Regulations. The
guidelines were published on January
26, 1979, at 44 FR 5576. Because this is
not a major regulation, no regulatory
analysis has been prepared.
Accordingly, Title 20 of the CFR, Parts
651, 653 and 658, is proposed as follows:
1. Section 651.9 of Part 651 is amended
as follows:
651.9 Consolidated Table of Contents
for Parts 651-658.
The table of contents for Parts 651-658
is as follows:
* *
PART 653-SERVICES OF THE
EMPLOYMENT SERVICE SYSTEM
Subpart A-Basic Services of the
Employment Service System [Reserved]
Subpart B-Services for Migrant and
Seasonal Farmworkers (MSFWS)
653.100 Purpose and scope of subpart.
S 653.101 Provision of services to migrant
and seasonal farmworkers (MSFWs).
I 653.102 Job Information.
653.103 MSFW job applications.
653.104 Job applications of MSFW
families and crew members.
5 653.105 Job applications at day-haul
facilities.
653.106 ES day-haul responsibilities.
653.107 Outreach.
S 653.108 State agency self-monitoring.
653.109 Data collection.
653.110 Disclosure of data.
653.111 State agency staffing
requirements.
S 653.112 State agency program budget
plans.
*
Subpart F-Agricultural Clearance Order
Activity
653.500 Purpose and scope of subpart.
653.501 Requirements for accepting and
processing clearance orders.
653.502 Changes in crop and recruitment
situations.
S653.503 Field checks.
*
PART 658-ADMINISTRATIVE
PROVISIONS GOVERNING THE
EMPLOYMENT SERVICE SYSTEM
Subpart A-[Reserved]
Subpart B-[Reserved]
Subpart C-[Reserved[
Subpart D-[Reserved]
Subpart E-Employment Service Complaint
System
658.400 Purpose and scope of subpart.
658.401 Types of complaints handled by
ES complaint system.
State ES Complaint System
658.410 Establishment of State agency ES
complaint system.
658.411 Filing nd assignment of ES-
related complaints.
658.412 Complaint resolution.
658.413 Initial handling of complaints by
the State or local office.
658.414 Referral of non-ES-related
complaints.
658.415 Transferring complaints to proper
ES office.
658.418 Action on ES-related complaints.
658.417 Hearings.
658.418 Decision of the State hearing
official.
Federal ES Complaint System
658.420 Establishment of the ES coinplaint
system at the ETA regional office.
658.421 Handling of ES-related complaintss
about a State agency of local office.
I I
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-ederal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed 'Rules
658.422 Handling of non-ES-related
complaints by the Regional
Administrator.
658.423 Handling of other complaints by
the Regional Administrator.
658.424 Complaints against U.S.E.S.
I 658.425 Federal hearings.
658.426 Decision of the DOL
Administrative Law Judge.
Subpart F-Discontinuation of Services to
Employers by the Employment Service
System
658.500 Scope and purpose of subpart.
658.501 Basis for discontinuation of
services.
658.502 Notification to employers.
658.503 Discontinuation of services.
658.504 Reinstatement of services.
Subpart G-Review and Assessment of State
Agency Compliance With Employment
Service Regulations
658.600 Scope and purpose of subpart.
658.601 State agency responsibility.
658.602 ETA national office responsibility.
658.603 ETA regional office responsibility.
658.604 Assessment and evaluation of
program performance data.
658.605 Communication of findings to
State agencies.
Subpart H-Federal Applications of
Remedial Action to State Agencies
658.700 Scope and purpose of subpart.
658.701 Statements of policy.
I 658.702 Initial action by the Regional
Administrator.
658.703 Emergency corrective action.
658.704 Remedial actions.
658.705 Decision to decertify.
658.706 Notice of decertification.
658.707 Requests for hearings.
S658.708 Hearings.
658.709 Conduct of hearings.
658.710 Decision of the Hearing Officer.
658.711 Decision of the Secretary.
651.10 [Amended]
2. Section 651.10 of Part 651 is
amended by adding the following
definitions and inserting them in
alphabetical order:
* *
"Applicant" shall mean a person who
files an application for services with a
local office of a State agency, with
outstationed staff or with an outreach
worker.
* *
"Migrant Farmworker" shall mean a
person who during the preceding 12
months worked at least one month in
farmwork, earned at least half of his/her
earned income from farmwork and who
had to travel to do the farmwork so that
he/she was unable to return to his/her
permanent place of residence within the
same day. Full time students who not
traveling as members of a family group
are excluded.
"Migrant Food Processing Worker"
shall mean a person who during the
preceding 12 months has worked at least
one month in food processing (as
classified in the 1972 Standard Industrial
Classification (SIC) definitions 201, 2033,
2035, and 2037 for food processing
establishments), earned at least half of
his/her earned income from processing
work and was not employed in food
processing year round by the same
employer, provided that the food
processing required travel such that the
worker was unable to return to his/her
residence (domicile) in the same day.
* *
"MSFW" shall mean a migrant
farmworker, a migrant food processing
worker, or a seasonal farmworker.
"Seasonal Farmworker" shall mean a
person who during the preceding 12
months worked at least one month in
farmwork, earned at least half of his/her
earned income from seasonal farmwork
and was not employed in farmwork year
round by the same employer. Full time
students are excluded from this
definition.
*
"Significant MSFW States" shall be
those States designated annually by
ETA and shall include the twenty (20)
States with the highest number of
MSFW applicants.
*
"Significant MSFW Local Offices"
shall be those designated annually by
ETA and include those local offices
where MSFWs account for 10% or more
of annual applicants and those local
offices which the Administrator
determines should be included due to
special circumstances such as an
estimated large number of MSFWs in
the local office service area. In no event
shall the number of significant MSFW
local offices be less than 100.
*
"Significant Bilingual MSFW Local
Offices" shall be those designated
annually by ETA and include those
significant MSFW offices where 10% or
more of MSFW applicants are estimated
to require service provisions in Spanish
unless the Administrator determines
other local offices also should be
included due to special circumstances.
^* *- *
3. Subpart B is proposed to be added
to Part 653.
PART 653-SERVICES OF THE
EMPLOYMENT SERVICE SYSTEM
*. *
Subpart B-Services for Migrant and
Seasonal Farmworkers (MSFWs)
Sec.
653.100 Purpose and scope of subpart.
653.101 Provision of services to migrant and
seasonal farmworkers (MSFWs).
653.102 Job information.
653.103 MSFW job applications.
653.104 Job applications of MSFW families
and crew members.
653.105 Job applications at day-haul
facilities.
653.106 ES day-haul responsibilities.
653.107 Outreach.
653.108 State agency self-monitoring.
653.109 Data collection.
653.110 Disclosure of data.
653.111 State agency staffing requirements.
653.112 State agency program budget plans.
Subpart F-Agricultural Clearance Order
Activity.
653.500 Purpose and scope of subpart.
653.501 Requirements for accepting and
processing clearance orders.
653.502 Changes in crop and recruitment
situations.
653.503 Filed checks.
Authority: Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq., unless
otherwise noted.
Subpart B-Services for Migrant and
Seasonal Farmworkers (MSFWs)
653.100 Purpose and scope of subpart.
This subpart sets forth the principal
regulations of the United States
Employment Service (USES) for
counseling, testing, and job and training
referral services for migrant and
seasonal farmworkers (MSFWs) on a
basis which is qualitatively equivalent
and quantitatively proportionate to
services provided to non-MSFWs. It also.
contains requirements that State
agencies establish a system to monitor
their own compliance with USES
regulations governing services to
MSFWs, including the regulations under
this subpart
653.101 Provision of services to migrant
and seasonal farmworkers (MSFWs).
(a) Each State agency'and each local
office shall offer to migrant and
seasonal farmworkers (MSFWs) the full
range of employment services, benefits
and protections, including the full range
of counseling, testing, and job and
training referral services as are provided
to non-MSFWs. In providing such
services, the State agency shall consider
and be sensitive to the preferences,
needs and skills of individual MSFWs
and the availability of job and training
opportunities.
(b) Each State agency shall assure
that, in a local area, the same.local
offices, including itinerant and satellite
offices, but exclusive of day-haul
operations, offer service to both non-
MSFWs and MSFWs. Separate farm
labor service local offices, which offer
only farmwork to agricultural workers
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Federal -Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
while another local office serving the
same geographical area offers other ES
services to other applicants, are
prohibited so that all applicants are
about to receive employment services
on the same basis.
S653.102 Job Information.
All State agencies shall make job
order information conspicuous and
available to MSFWs all local offices.
This information shall include Job Bank
4 information in local offices where it is
available. Such information shall be
made available either by computer
terminal, microfiche, hard copy, or other
equally effective means. Each significant
local office shall provide adequate staff
assistance to each MSFW to use the job
order information effectively. In those
offices designated as significant
bilingual offices, such assistance shall
be provided to MSFWs in Spanish and
English, wherever requested, during any
period of substantial MSFW activity.
653.103 MSFW job applications.
(a) Every local office shall determine
whether or not applicants are MSFWs
as defined at 651.105 of this chapter.
(b) Except as provided in 653.10 of this
subpart, when an MSFW applies for ES
services at a local office or is contacted
by an Outreach worker, the services
available in the local office shall be
explained to the MSFW. In local offices
which have been designated as
significant bilingual offices by ETA, this
explanation shall be made in Spanish, if
necessary or requested during any
period of substantial MSFW activity.
Other local offices shall provide
bilingual explanations wherever
feasible.
(c) The local office staff member shall
provide the MSFW a checklist of those
services. The checklist shall be written
in English and Spanish. The checklist
shall specify those services which are
available after completion of a full
application and those services which
are available after completion of a
partial application. The ES staff member
shall explain to each MSFW the
advantages of completing a full
application. Applications shall be
reviewed periodically by the local office
manager or a member of his/her staff to
ensure their accuracy and quality.
.Applications and the application-taking
process shall also be reviewed during
State and Federal onsite reviews by the
State and Regional MSFW Monitor
Advocates and/or review staff, who
shall check overall accuracy and
quality, and offer technical advice on
corrections or improvements.
(d) If the MSFW wishes to complete a
full application, the staff shall provide
all assistance necessary to complete the
application and shall ensure that the
form includes complete information. It
shall include, to the extent possible, the
significant history of the MSFW's prior
employment, training and educational
background and a statement of any
desired training and/or employment in
order to permit a thorough assessment
of the applicant's skills, abilities and
preferences. All applicable items shall
be completed according to the ETA
instructions for preparation of the
application card (ES-511). Additional
Dictionary of Occupational Titles codes
or key words shall be assigned, where
appropriate, based on the MSFW's work
history, training, and skills, knowledge,
and abilities, and secondary cards shall
be completed and separately filed. In
extremely small local offices where the
limited applicant load and file size does
not require completion of secondary
cards, additional D.O.T. codes shall be
noted on the primary application card.
(e) If an MSFW wishes any ES
service, and does not wish or is unable
to file a full application, the interviewer
shall try to obtain as much information
as possible for a partial application. The
interviewer shall complete the partial
application. The interviewer shall offer
to refer the applicant to any available
jobs for which the MSFW may be
qualified, and any ES services permitted
by the limited information available.
He/she shall advise the MSFW that he/
she may file a full application at any
time.
(f) Partial applications shall be
completed according to ETA
instructions.
(g) Partial applications for MSFWs
shall be filed in accordance with local
office procedures for filing other partial
applications.
(h) To minimize the need for
additional applications, States shall
issue ES cards to MSFWs at the initial
visit under the following conditions:
(1) When automated data retrieval
systems are available in the State. In
this instance, ES staff shall advise the
MSFW that the ES card may be
,presented at any other ES office in the
State and that services will be provided
without completion of an additional
application unless the -services
requested require additional information
for adequate service delivery.
(2) When an MSFW is referred on an
interstate or intrastate order. In this
instance, when it is known to the order-
holding local office (through the
presentation of an ES card or otherwise)
that the MSFW has completed a full
application or partial application in the
applicant holding office or elsewhere, an
additional application shall not be taken
by the order-holding office unless the -
MSFW requests ES services in addition
to referral on the clearance order.
653.104 Job applications of MSFW
families and crew members.
(a) Except as provided at 653.103(e]
and 653.105 of this subpart, no local
office shall refer an MSFW family or
crew unless each working member of
the family or crew being referred, has
filed either a full or partial application
at a local office or has been issued an
ES card in instances set forth in section
653.103(h). Local offices may, upon
request, provide general information,
e.g., the types of crops in other areas, to
crew leaders and family heads prior to
the registration of all working members.
(b) No local office shall either accept
an application from or fill an agricultural
job order submitted by a farm labor
contractor ("FLC") or farm labor
contractor employee ("FLCE") unless
the FLC or FLCE shows or obtains a
valid FLC certificate, or FLCE
identification card, respectively, where
required by Federal law, and a valid
State certification where required by
State law. If a FLC or FLCE is
temporarily without his or her valid FLC
certificate or FLCE identification card,
respectively, the local office shall try to
verify the existence of the valid
certificate or identification card by
telephoning the Department of Labor's
Employment Standards Administration
regional office. The local office,
however, shall not serve the FLC or
FLCE until the existence of the valid
certificate or identification card is
verified.
653.105 Job applications at day-haul
facilities.
If the State agency is operating a day-
haul facility under the exceptional
circumstances provisions described in
I 653.106(a), a checklist shall be
distributed and a full application shall
be completed whenever an MSFW
requests the opportunity to file a full
application unless this is impractical at
that time. In such cases, a full
application shall be taken at the earliest
practical time. In all other cases, a
checklist shall be distributed.
653.106 ES day-haul responsibilities.
(a) State agencies shall not establish,
operate, or supervise any agricultural
day-haul facilities unless exceptional
circumstances warrant such action and
prior approval of the USES
Administrator is obtained.
(b) No ES applicants shall be referred
to non-ES operated day-haul facilities.
However, general labor market
information in the availability of jobs,
I I
2502
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules 2503
the level of activity of agricultural and
nonagricultural employment, and crop
conditions shall be provided, upon
request, to applicants where specific
referrals to employment cannot be
made.
(c) ES outreach workers shall visit all
day-haul facilities with substantial
activity during their operation for
purposes of providing MSFWs with
information and assistance pursuant to
653.107 (j) of this Subpart. Monitoring
of such activity shall be conducted
pursuant to 653.108(p).
653.107 Outreach.
(a) Each State agency shall operate an
outreach program in order to locate and
to contact MSFWs who are not being
reached by the normal intake activities
conducted by the local offices. Upon
receipt of planning instructions and
resource guidance from ETA, each State
agency shall develop an annual
outreach plan, setting forth numerical
goals, policies and objectives. This plan
shall be subject to the approval of the
Regional Administrator as part of the
program budget plan (PBP) process.
Wherever feasible, State agencies shall
coordinate their outreach efforts with
those of public and private community
service agencies and MSFW groups.
(b) In determining the extent of their
outreach program, states shall be guided
by the following statement of ETA
policy:
(1) State agencies should make
sufficient penetration in the farmworker
community so that so that a large
number of MSFWs are aware of the full
range of ES services.
(2) State agencies with local offices of
significant MSFW activity should
conduct especially vigorous outreach
efforts in the service areas of those
offices.
(3) State agencies in supply states
should conduct particularly thorough
outreach efforts with extensive follow-
up activities which capitalize on the
relatively long duration of MSFW
residence in the state.
(c) The plan shall be based on the
actual conditions which exist in the
particular state, taking into account the
State agency's history of providing
outreach services, the estimated number
of MSFWs in the state, and the need for
outreach services in that state. The
approval of the Regional Administrator
shall be based upon his/her
consideration of the following features
of the outreach plan:
S(1) Assessment of Need. This
assessment of need shall include:
(i) A review of the previous year's
agricultural activity in the State.'
(ii) A review of the previous year's
MSFW activity in the State.
(iii) A projected level of agricultural
activity in the State for the coming year.
(iv) A projected number of MSFWs in
the State for the coming year, which
shall be based on data supplied by
CETA 303, other Statewide MSFW
organizations, and federal and/or State
agency data sources such as the
Department of Agriculture and the
United States Employment Service.
(v) A statement of the consideration
given to the State Monitor Advocate's
recommendation as set forth in the
annual summary developed under
653.108(t).
(2) Assessment of Available
Resources. This assessment of the
resources available for outreach shall
include:
(i) The level of funds available from
all sources, including the funds
specifically made available to the State
agency for outreach.
(ii) Resources made available through
existing cooperative agreements with
public and private community service
agencies and MSFW groups.
(iii) Where fewer resources are
available for outreach than in a prior
year, a statement of why fewer
resources are available.
(3) Proposed Outreach Activities. The
proposed outreach activities shall be
designed to meet the needs determined
under paragraph (c)(1) with the
available resources determined under
paragraph (c)(2]. The plan for the
proposed outreach activities shall
include:
(i) Numerical goals for the number of
MSFWs to be contacted during the fiscal
year by ES staff and by cooperating
agency staff. These numerical goals
shall be based on the number of MSFWs
estimated to be in the State in the
coming year, taking into account the
varying concentration of MSFWs during
the seasons in each geographic area, the
range of services needed in each area
and the number of ES and/or
cooperating agency staff who will
conduct outreach.
(ii) Numerical goals for the staff years
to be utilized for outreach during the
fiscal year.
(iii) The level of funding to be utilized
for outreach during the fiscal year.
(iv) The tools which will be used to
conduct outreach contacts, including
personal contact, printed matter,
videotapes, slides, and/or cassette
recordings.
(v) The records to be maintained by
the ES outreach staff-logs of daily
contacts to include the number of
MSFWs contacted and type of service
offered or assistance provided. The
name of the individual contacted should
be recorded when:
(A) An application for work is taken
by an outreach worker, (B) a referral to
a job is made by an outreach worker,
and/or (C) a complaint is taken by an
outreach worker.
(d) In developing the outreach plan,
the State agency shall solicit the
assistance of CETA 303 and other
appropriate MSFW groups and other
interested organizations. In addition, at
least 45 days before submitting its final
outreach plan to the Regional
Administrator, the State agency shall
provide a proposed plan to CETA 303
and other appropriate MSFW groups
and other interested organizations, and
allow at least 30 days for review and
comment. The State agency shall
consider any comments received in
formulating its final proposed plan. The
State agency shall inform all
commenting parties in writing whether
their comments have been incorporated
and, if not, the reasons therefore. The
State agency shall transmit the
comments and recommendations
received and its responses to the
Regional Administrator with the
submission of the plan. (If the comments
are received after the submission of the
plan, they may be sent separately to the
Regional Administrator.)
(e) The outreach plan, including the
comments and recommendations
received from interested parties, shall
be submitted as an essential part of the
State's annual PBP. The resource
requirement of the plan shall be
reflected in the PBP budget request. The
plan, including the resource
requirement, shall be reviewed by the
Regional Administrator during the
annual PBP approval process. The State
agency shall be required to implement
the approved outreach plan as part of its
compliance with the PBP.
(f) The Regional Administrator shall
review and evaluate the outreach plan,
including the assessments of needs and
resources, in light of the history of the
State's outreach efforts and the
statements of policy set forth in
653.107(b). He/she shall approve the
plan only if it demonstrates that
adequate outreach will be conducted.
The approved outreach plan shall be
available for review by interested
parties.
(g) As part of the annual PBP process,
funding of State agencies shall be
contingent upon the substantial and
timely compliance of the State agency
with its prior year outreach plan.
However, if the Regional Administrator
makes a finding of good faith efforts, he/
she may fund a State agency even
2504 Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
- ,j ,
though it did not achieve substantial
and timely compliance.
(h) For purposes of hiring and
assigning staff to outreach duties, State
agencies shall seek, through merit
system procedures, qualified candidates:
(1) Who are from farmworker
backgrounds, and/or
(2) Who speak Spanish, and/or
(3) Who are racially or ethnically
representative of the MSFWs in the
service area.
(i) The five States with the highest
.estimated year round MSFW activity
shall assign, in accordance with State
merit staff requirements, full-time, year
round staff to outreach duties. The
remainder of the significant MSFW
states shall make maximum efforts to
hire outreach staff with farmworker
experience for year round positions and
shall assign outreach staff to work full-
time during the period of the highest
MSFW activity. Such outreach staff
shall be billingual if warranted by the
characteristics of the MSFW population
in the State, and shall spend a majority
of their time in the field. The Regional
Administrator may grant approval for a
deviation from the requirements of this
section if the State agency provides
adequate evidence that outreach
activities and service delivery to
MSFWs would be improved through
other staffing arrangements.
(j) For purposes of this subpart, an
outreach "contact" shall include either
the presentation of information and offer
of assistance specified in paragraphs
(j)(1) and (j)(2) of this section, or the
follow-up activity specified in (j)(3).
(1) Outreach workers shall explain to
MSFWs at their working, living or
gathering areas, including day-haul
sites, by means of written and oral
presentations either spontaneous or
recorded, in a language readily
understood by them, the following:
(i) The services available from the
local office, including the availability of
referrals to agricultural and
nonagricultural employment, to training,
to supportive services, as well as the
availability of testing, counseling and
other job development services;
(ii) Types of specific employment
opportunities which are currently
available in the ES system;
(iii) Information on the ES complaint
system and other organizations serving
MSFWs;
(iv) A basic summary of farmworker
rights with respect to the terms and
conditions of employment.
(2) After making the presentation,
outreach workers shall urge the MSFWs
to go to the local office to obtain the full
range of ES services. If an MSFW
cannot or does not wish to visit the local
ES office, the outreach workers shall
offer to provide on-site the following:
(i) Assistance in the preparation of
applications:
(ii) Assistance in obtaining referral to
specific employment opportunities
currently available;
(iii) Assistance in the preparation of
either ES or non-ES related complaints;
(iv) Receipt and subsequent referral of
complaints to appropriate authorities;
(v) Referral to supportive services for
which the individual or a family member
may be eligible.
(vi) As needed, assistance in making
appointments and arranging
transportation for or accompanying
individual MSFWs or members of their
family to and from local offices or other
appropriate agencies.
(3) Outreach workers shall make
follow-up contacts as are necessary and
appropriate to provide to the maximum
extent possible the assistance specified
in paragraphs (1) and (2) of this
subsection.
(4) In addition to the foregoing
outreach contacts, the State agency
shall publicize the availability of ES
services through such means as
newspaper and electronic media
publicity. Contacts with public and
private community agencies, employers
and/or employer organizations, and
MSFW groups also shall be utilized to
facilitate the widest possible
distribution of information concerning
ES services.
(k) Outreach workers shall 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 law,
transmit the information to the
appropriate authorities in accordance
with Part 658.400 herein.
(1) Outreach workers shall be trained
in local office procedures and in the
services, benefits, and protections
afforded MSFWs by the ES. They shall
also be trained in the procedure for
informal resolution of complaints. The
program for such training shall be
formulated by the State Administrator,
pursuant to uniform guidelines '
developed by ETA, and each State's
program shall be reviewed and
commented upon in advance by the
State MSFW Monitor Advocate.
(m) Outreach workers shall maintain
complete records of their contacts with
MSFWs and the services they perform
in accordance with a format developed
by ETA. These records shall include a
daily log, a copy of which shall be sent
monthly to the local office manager and
maintained on file for at least two years.
These records shall include the number
of contacts and names of contacts
(where applicable), the services
provided (e.g., whether a complaint was
received, whether an application was
taken, and whether a referral was
made). Outreach workers also shall
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.
(n) Each outreach worker shall file
with the local office manager a monthly
summary report of outreach efforts,
based on his/her records. A copy of
these reports shall be sent to the State
MSFW Monitor Advocate. These reports
shall include all information necessary
for outreach collection, as provided at
paragraph (m) of this section. The local
office manager shall assess the
performance of outreach workers by
examining the overall quality and
productivity of their work, including the
services provided and the methods and
tools used to offer services. Performance
shall not be judged solely by the number
of contacts made by the worker. The
monthly reports and daily outreach logs
shall be made available to the State
MSFW Monitor Advocate and federal
On-Site Review Teams. In addition, the
distribution of any special funds for
outreach, should funds become
available, shall be based on the
effectiveness and need of the State's
outreach program as monitored by ETA.
653.108 State agency self-monitoring.
(a) State Administrators shall assure
that their State agencies monitor their
own compliance with ES regulations in
serving MSFWs on an ongoing basis.
The State Administrator shall have
overall responsibility for State agency
self-monitoring.
(b) The State Administrator shall
appoint a State MSFW Monitor
Advocate. The State Administrator shall
inform farmworker organizations and
other organizations with expertise
concerning MSFWs of the opening and
encourage them to refer qualified
applicants to apply through the State
merit system prior to appointing a State
MSFW Monitor Advocate. Among
qualified candidates determined through
State merit system procedures, the State
agencies shall seek persons (1) who are
from farmworker backgrounds, or (2)
who speak Spanish or other languages
of a significant proportion of the State
MSFW population, or (3) who are
racially or ethnically similar to the
MSFWs in the State, or (4) who have
substantial work experience in
farmworker services.
(c) The State MSFW Monitor
Advocate shall have direct, personal
Federal Register / Vol. 45, No. 8 / Friday. Tannarv 11. 1980 1 Pronosed uliea
access, whenever he/she finds it
necessary, to the State Administrator
and shalt work in the State central
office. The State MSFW Monitor
Advocate shall have status and
compensation as approved by the
Regional Administrator.
(dj The State MSFW Monitor
Advocate shall be assigned staff
necessary to fulfill effectively all of hist
her duties as set forth in this subpart.
The number of staff positions shall be
determined by reference to (1) the
number of MSFWs in the State, as
measured at the time of the peak MSFW
population, and (2) the need for
monitoring activity in the State. All
professional staff members shall devote
full time to monitor advocate functions,
unless the State Administrator has
submitted, and the USES Administrator
has approved a plan for less than full-
time work. Any such plan must
demonstrate that the State MSFW
Monitor Advocate function can be
effectively performed with part-time
staffing.
(e) All State MSFW Monitor
Advocates and Assistant MSFW
Monitor Advocates shall attend within
the first three months of their tenure a
training session conducted by the
Regional MSFW Monitor Advocate.
They shall also attend whatever
additional training sessions ae required
by the Regional or National MSFW
Monitor Advocate.
(f) The State MSFW Monitor
Advocate shall provide any relevant
documentation requested by the
Regional MSFW Monitor Advocate.
(g) The State MSFW Monitor
Advocate shall:
(1) Conduct an ongoing-review of the
delivery of services and protections
afforded by ES regulations to MSFWs
by the State agency and local offices.
The State MSFW Monitor Advocate,
without delay, shall advise the State
agency and local offices of (1) problems.
deficiencies, or improper practices in the
delivery of services and protections
afforded by these regulations (including
progress made in achieving affirmative
action goals and timetables), and (ii)
means to improve such delivery.
(2) Participate in onsite local office
formal monitoring reviews on a regular
basis.
(3) Assure that all significant local
offices are reviewed onsite at least once
a year by State or Federal staff, and
that, if necessary, those local offices in
which significant problems are revealed
by required reports, management
information, the ES complaint system or
otherwise are reviewed as soon as
possible.
(4) Assure that the monitoring review
format, developed by ETA, is used as a
guideline in the conduct of local office
onsite formal monitoring reviews.
(5) Review the State agency's
outreach plan, and on a selective basis,
the outreach workers' daily logs and
other reports including those showing or
reflecting the workers' activities, to
ensure that they comply with the
outreach plan.
(h) Formal onsite MSFW monitoring
reviews of local offices shall be
conducted using the following
procedures:
(1) Before beginning such a review,
the State MSFW Monitor Advocate shall
study:
(i) Program performance data,
(ii) Reports of previous reviews,
(iii) Corrective action plans developed
as a result of previous reviews,
(iv) Complaint logs, and
(v) Complaints elevated from the
office or concerning the office.
(2] Upon compeltion of a local office
onsite formal monitoring review, the
State MSFW Monitor Advocate shall
hold one or more wrap-up sessions with
the local office manager and staff to
discuss any obvious findings and offer
initial recommendations and
appropriate technical assistance.
(3) After each review the State MSFW
Monitor Advocate shall conduct an
indepth analysis of the review data. The
conclusions and recommendations of
the State MSFW Monitor Advocate shall
be put in writing, shall be sent to the
State Administrator, and shall then be
discussed with the official of the State
agency with line authority over the local
office.
(4) The State MSFW Monitor
Advocate may delegate the review
responsibility set forth in this subsection
to a responsible professional member of
the administrative staff of the State
agency, if and when the State
Administrator finds such delegation
necessary. In such event, the State
MSFW Monitor Advocate shall be
responsible for and shall approve the
written report of the review.
(5) The local office manager shall
develop and propose a written
corrective action plan. The plan shall be
approved, or appropriately revised, by
appropriate superior officials and the
State MSFW Monitor Advocate. The
plan shall include actions required to
correct or to take major steps to correct
any problems within 30 days or if the
plan allows for more than 30 days for
full compliance, the length of, and the
reasons for, the extended period shall be
specifically stated.
() State agencies, through line
supervisory staff, shall be responsible
for assuring and documenting that the
local office is in compliance within the
time period designated in the plan State
agencies shah submit to the appropriate '
ETA regipnol offices copies of theensite
local office formal monitoring review
reports and corrective action plans for
significant local offices.
(i) The State MSFW Monitor
Advocate shall participate in federal
reviews conducted pursuant to subpart
G.
(j) The State MSFW Monitor
Advocate shall participate in the
monitor the performance of the
complaint system, as set forth at 20 CFR
658.400 etseq. The State MSFW Monitor
Advocate shall review the local office
managers' informal resolution of
complaints relating to MSFWs and shall
ensure that the State agency transmits
copies of the logs of MSFW complaints
to the regional office quarterly.
(k) The State MSFW Monitor
Advocate shall establish ongoing liaison
with CETA 303 and other organizations
serving farmworkers, and employers
and/or employer organizations, in the
State. The State MSFW Monitor
Advocate shall meet frequently with
representatives of these organizations to
receive complaints, assist in referrals of
alleged violations to enforcement
agencies, receive input on improving
coordination with ES or improving ES
services to MSFWs.
(1) The State MSFW Monitor
Advocate shall conduct frequent field
visits to the working and living areas of
MSFWs, and shall discuss ES services
and other employment-related programs
with MSFWs, crew leaders, and
employers. Records shall be kept of
each such visit.
(m) The State MSFW Monitor
Advocate shaB participate in the
appropriated regional public meetings)
held by the Department of Labor
Regional Farm' Labor Coordinated
Enforcement Committee.
(n) The State MSFW Monitor
Advocate shall ensure that outreach
efforts in all significant local offices are
reviewed at least yearly to ensure that
there is continuing compliance with 20
CFR 653.107. This review will include
accompanying at least one outreach
worker from each significant local office
on his/her visits to MSFWs workrig
and living areas. The State MSFW
Monitor Advocate shall review findtigs
from these reviews.
(o) The State MSFW Monitor
Advocate shall review and assess the
adequacy of the annual State affirmative
action plan for MSFWs, and shall report
such finding to the State Administrator.
(p) The State MSFW Monitor
Advocate shall ensure that ES outreach
Fedra RgilerI el 4, DL /Frday Tnmy 1, 9Et roose Rde 2ft
2Qitte
2506 Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
activities are reviewed periodically at
day-haul sites at which these activities
are conducted. Complete records of such
visits shall be kept. The State MSFW
Monitor Advocate shall ensure that
local offices and the State Administrator
are advised of any deficiencies.
(q) The State MSFW Monitor
Advocate shall review on at least a
quarterly basis all statistical and other
MSFW-related data reported by
significant local offices in order (1) to
determine the extent to which the State
agency has compiled with regulations at
"653.100 et seq., and (2) to identify the
areas of inadequate compliance.
(r) The State MSFW Monitor
Advocate shall have full access to all
statistical and other MSFW-related
information gathered by State*agencies
and local offices and may interview
State and local office staffs with respect
to reporting methods. Subsequent to
each review, the State MSFW Monitor
Advocate shall consult, as necessary,
with State and local offices and provide
technical assistance to ensure accurate
reporting.
(s) The State MSFW Monitor
Advocate shall review and comment on
proposed State ES directives, manuals,
and operating instructions relating to
MSFWs and shall ensure (1) that they
accurately reflect the requirements of
the regulations, (2) that they are clear
and workable, and (3) that they are
available to farmworker organizations
and other interested parties. The State
MSFW Monitor Advocate shall also
explain such directives and procedures
to farmworkers, farmworker
organizations and other interested
parties and receive suggestions on how
these documents can be improved.
(t) The State MSFW Monitor
Advocate shall prepare for the State
Administrator an annual summary of ES
services to MSFWs within his/her State
based on statistical data and his/her
reviews and activities set forth in these
regulations. The summary shall include
an assessment of the State agency's
activities related.to MSFWs such as
those covered in the State agency's PBP,
outreach plan, and affirmative action
plan, and the other matters with respect
to which the State MSFW Monitor
Advocate has responsibilities under
these regulations. A copy of this
summary shall be forwarded to the
Regional Administrator by the State
Administrator.
653.109 Data collection.
State agencies shall: (a) Collect data
on MSFWs, including data on the
number (1) contacted through outreach
activities, (2) registering for service, (3)
referred to agricultural jobs, (4) referred
to non-agricultural jobs, (5) placed in
agricultural jobs, (6) placed in non-
agricultural jobs, (7) referred to training,
(8) receiving counseling, (9) receiving job
development, (10) receiving testing, (11)
referred to supportive service, (12)
receiving some service, (13) placed
according to wage rates, and (14) placed
according to duration. The State
agencies also shall collect data on
agricultural clearance orders (including
field checks), MSFW complaints, and
monitoring activities, as directed by
ETA. These data shall be collected in
accordance with the ESARS Handbook
and applicable ETA Reports and
Analysis Letters.
(b) Collect data on the number of
MSFWs who were served as to whether
they were male, female, black, Hispanic,
American Indian, Asian, or Pacific
Islander.
(c) Provide necessary training to State
agency, including local office, personnel
to assure accurate reporting of data;
(d) Collect and submit to ETA as
directed by ETA, data on MSFWs
required by the PBP, and
(e) Periodically collect and verify data
required under this subsection, take
necessary steps to ensure its validity,
and collect and submit data for
verification to ETA, as directed by ETA;
and
(f) Submit additional reports to the
ETA at such times and containing such
items as ETA directs.
653.110 Disclosure of data.
(a) State agencies shall disclose to the
public, on written request, the data
collected by State and local offices
pursuant to 653.109 of this subpart, if
possible within 10 working days after
receipt of the request.
(b) If a request for data held by a
State agency is made to the ETA
national or regional office, the ETA shall
forward the request to the State agency
for response.
(c) If the requested data cannot be
supplied within 10 working days of
receipt by the State agency of the
request, the State agency shall respond
to the requestor in writing, giving the
reason for the delay and specifying the
date by which it expects to be able to
comply.
(d) State agency intra-agency
memoranda and reports (or parts
thereof) and memoranda and reports (or
parts thereof) between the State agency
and the ETA, however, to the extent that
they contain statements of opinion
rather than facts, may be withheld from
public disclosure provided this reason
for withholding is given to the requestor
in writing. Similarly, documents or parts
thereof, which, if disclosed, would
constitute an unwarranted invasion of
personal or employer privacy, may also
be withheld provided the reason is given
to the requestor in writing.
653.111 State agency staffing
requirements.
(a)(1) As part of the PBP, each State
agency shall develop and submit to the
Regional Administrator affirmative
action plans for all significant local
offices within its jurisdiction (which, for
the purposes of this provision, means
those local offices representing the top
20% of MSFW activity nationally). These
affirmative action plans shall include
goals and timetables and shall ensure
that sufficient numbers of qualified,
permanent minority staff are hired.
Where qualified minority applicants are
not available to be hired as permanent
staff, qualified minority part-time,
provisional, or temporary staff shall be
hired. These affirmative action plans
shall be prepared on an individual office
basis.
(2) The affirmative action plans shall
include an analysis of the racial and
ethnic characteristics of the work force
in the local office service area. To
determine the "work force" for the
purpose of this paragraph, the State
agency shall include the racial and
ethnic characteristics of any MSFW
population work force by computing an
estimate of the total work years MSFWs
collectively spend in the area and
including a number of workers
equivalent to this estimate as part of the
permanent work force. This computation
shall be made by calculating the average
length of time MSFWs stay in the area
and then multiplying this figure by the
total estimated MSFW population in the
area during the previous year.
(3) The affirmative action plan also
shall include an analysis of the local
office staffing characteristics. The plan
shall provide a comparison between the
characteristics of the staff and the work
force and determine if the composition
of the local office staffs) is
representative of the racial and ethnic
characteristics of the work force in the
local office service areass.
(4) If the staff under-represents any of
these characteristics, the State agency
shall establish a staffing goal at a level
equivalent to the percentage of the
characteristics in the work force in the
local office service areas. The State
agency also shall establish a reasonable
timetable for achieving the staffing goal
by hiring or promoting available,
qualified staff in the under-represented
categories. In establishing timetables,
the State agency shall consider the
vacancies anticipated through
expansion, contraction, and turnover in
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules .2507
the offices) and available funds, and all
affirmative action plans shall establish
timetables that are designed to achieve
the staffing goal no later than December
31, 1983.
(b) On a statewide basis, staff
representative of the racial and ethnic
characteristics in the work force shall be
distributed in substantially the same
proportion among (i) all "job groups" (as
that term is defined by the Office of
Federal Contract Compliance Programs),
and (ii) all offices in the planss.
(c) In addition, each State agency
which has "significant local offices,"
shall undertake special efforts to recruit
MSFWs and persons from MSFW
backgrounds for its staff, shall document
achievements, and shall include in the
affirmative action plans) a complete
description of specific actions which the
agency will take and time frames within
which these actions will be taken.
(d) In developing the affirmative
action plan, the State agency shall
solicit from CETA 303 and other
appropriate MSFW groups, and other
interested organizations, estimates of
the total MSFW population in each local
office service area, and the average
length of time the MSFWs stay in the
area. In addition, State agencies shall
solicit, consider, incorporate, respond to
and include copies of comments from
CETA 303 and other appropriate MSFW
groups and other interested
organizations, following procedures set
forth for the annual outreach plan at
653.107(d).
(e) As part of the annual Program and
Budget Plan (PBP) process, the funding
of State agencies which are required to
develop and implement affirmative
action plans for significant local offices
shall be contingent upon the timely
submittal of adequate affirmative action
plans and the substantial and timely
attainment of the goals and timetables
contained in those plans. However, if
the Regional Administrator makes a
finding of good faith efforts, he/she may
fund a State agency even though it did
not achieve substantial and timely
compliance.
(f) All State Employment Security
Agencies (SESAs) required to develop
affirmative action plans for significant
local, offices shall keep accurate records
of their employment practices for those
offices, including information on all
applications. These records shall be
maintained in accordance with the
recordkeeping requirements concerning
affirmative action which are established
by ETA and distributed to the SBSAs.
All records shall be made available to
the State MSFW Monitor Advocate,
EEO staff and Federal On-Site Review
Teams.
(g) Affirmative action plans shall
contain a description of specific steps to
be taken for the adequate recruitment of
MSFWs for all vacant positions in
significant local offices and the central
office. These steps shall include
advertisements in newspapers, radio or
other media, in a manner calculated to
best reach the MSFW population, and
contacts by outreach workers and the
State MSFW Monitor Advocate with
groups serving the MSFW population.
(h) State EEO staff shall have the
responsibility for developing affirmative
action plans. The State MSFW Monitor
Advocate(s) shall comment on the plan
to the State Administrator. Upon
submission of the affirmative action
plan as part of the State agency's PBP
submittal, the Regional MSFW Monitor
Advocate shall review the affirmative
action plans) as it pertains to MSFWs
and comment to the Regional
Administrator. As part of his/her regular
reviews of State agency compliance, the
Regional MSFW Monitor Advocate shall
monitor the extent to which the State
has complied with its affirmative action
plans) as it pertains to MSFWs. The
Regional MSFW Monitor Advocate's
finding as to the adequacy of the plans)
and as to the State's compliance with
the plans) shall beconsidered in PBP
decisions involving future funding of the
State agency.
653.112 State agency program budget
plans.
(a) Each State agency, in its annual
program budget plan, shall describe its
plan to carry out the requirements of
this subpart in the following year. The
plan shall include, where applicable, the
outreach and affirmative action plans
required by 653.107 and 653.111,
respectively. For Significant MSFW
States, ETA shall establish program
performance indicators reflecting equity
indicators and indicators measuring
minimum levels of service to MSFWs
which State agencies will be required to
meet. These program performance
indicator requirements shall be
contained in the PBP Guidelines which
ETA promulgates on an annual basis.
(b) Equity indicators shall address ES
controllable services and shall include,
at a minimum, individuals referred to a
job; receiving counselling; receiving job
development; receiving some service;
and referred to supportive service.
(c) Minimum level of service
indicators shall address other services
to MSFWs and shall include, at a
minimum, individuals placed in a job;
placed ina job with a wage exceeding
the minimum wage by at least 50 cents/
hour; referred to a non-agricultural job;
review of significant MSFW local
offices; field checks on agricultural
clearance orders; outreach contacts per
staff year; and processing of complaints.
The determination of the minimum
service levels required for each year
shall be based on the following:
(1) Past State agency performance in
serving MSFWs, as reflected in on-site
reviews and data collected under
653.109;
(2) The need for services to MSFWs in
the following year, comparing prior and
projected levels of MSFW activity;
(3) The ETA program priorities for the
following year, and
(4) Special circumstances and
external factors existing in the
particular Stai te
(d) The Regional Administrator shall
review this portion of the PBP, and
approve it upon making a written
determination that it is acceptable in
light of the requirements of this subpart.
The Regional Administrator's written
determination shall be available to the
public upon request.
Subpart F-Agricultural Clearance
Order Activity
653.500 Purpose and scope of this
subpart.
This section contains the
requirements for acceptance and
handling of intrastate and interstate job
clearance orders seeking agricultural or
migrant food processing workers. This
section, therefore, contains requirements
which affect not only MSFWs, but all
agricultural or migrant food processing
workers who are recruited through the
ES intrastate and interstate clearance
systems.
653.501 Requirements foraccepting and
processing clearance orders.
(a)(1) In view of the statutorily
established basic function of the
employment service as a no-fee labor
exchange, that is, as a forum for bringing
together employers and job seekers,
neither the ETA nor the State agencies
are guarantors of the accuracy or
truthfulness of information contained on
job orders submitted by employers. Nor
does any job order accepted or recruited
upon by the ES constitute a contractual
job offer to Which the ETA.or a State
agency is in any way a party.
Nevertheless, if the ETA or a State
agency discovers that an employer's job
order contains a material
misrepresentation, the procedures of
Subpart F of Part 658 of this Chapter
shall be followed.
(b) Intrastate and interstate job orders
shall include the language of the first
two sentences of paragraph ta) of this
section.
2508 Federal Register / Vol. 45, No. 8/ Friday, January 11, 1980 / Proposed Rules
(c) No local office or State agency
shall place into intrastate or interstate
clearance any job order for agricultural
or migrant food processing workers
before reviewing it pursuant to
paragraphs (d) or (e) below, as
applicable.
* (d) No local office shall place a job
order for agricultural or migrant food
processing workers into intrastate
clearance unless:
(1) The job order does not contain an
unlawful discriminatory specification by
race, color, religion, national origin, age,
sex, citizenship, mental or physical
status unrelated to job performance
(handicap), or veteran or nonveteran
status;
(2) The employer has signed the job
order and the job order states all the
material terms and conditions of the
employment, including:
(i) The crop;
(ii) The nature of the work;
(iii) The anticipated period and hours
of employment;
(iv) The anticipated starting and
ending date of employment and the
anticipated number of days and hours
each week for which work will be
available;
(v) An assurance that the employer
will provide to workers the number of
hours of work cited in (iv) for the week
beginning with the anticipated date of
need, unless the employer has amended
the date of need by notifying the order-
holding office in sufficient time for the
State agency to contact referred workers
(pursuant to (xiii)), at least 10 working
days prior to original date of need.
Workers referred shall be notified that
they have an obligation to contact the
order-holding office to verify the date of
need cited in the order at least 10
working days prior to the stated date of
need. Assistance in accomplishing this
shall be available in all local offices;
(vi) The hourly wage rate or the piece
rate estimated in hourly wage rate
equivalents for each activity and unit
size;
(vii) Any deductions to be made from
wages;
(viii) A specification of any non-
monetary benefits to be provided by the
employer;
(ix) Any days or weeks for which
work is guaranteed, and, for each
guaranteed week of work, the exclusive
manner in which the guarantee may be
abated due to weather conditions or
other acts of God beyond the employer's
control;
(x) Any bonus or work incentive
payments or other expenses which will
be paid by the employer in addition to
the basic wage rate, including the
anticipated time periods) within which
such payments will be made. No such
payments, however, shall be made
contingent upon the worker continuing
employment beyond the period of
employment specified in the job order
or, in the case of any worker with
children, beyond the time needed to
return home for the beginning of the
school year;
(xi) An assurance that no extension of
employment beyond the period of
employment specified in the job order
shall relieve the employer from paying
the wages already earned, or if specified
in the job order as a term of
employment, providing transportation or
paying transportation expenses to the
worker's home;
(xii) Assurances that the working
conditions comply with applicable
Federal and State minimum wage, child
labor, social security, health and safety,
farm labor contractor registration and
other employment-related laws;
(xiii) An assurance that the employer
will expeditiously notify the order
holding local office or State agency by
telephone, with follow-up in writing,
immediately upon learning that a crop is
maturing earlier or later, or that weather
conditions, over-recruitment or other
factors have changed the terms and
conditions of employment;
(xiv) An assurance that the employer,
if acting as a farm labor contractor
("FLC") or farm labor contractor
employee ("FLCE") on the order, has a
valid FLC certificate or FLCE
identification card; and
(xv) An assurance of the availability
of no cost or nominal cost housing
which meets the Federal standards. This
assurance shall cover the availability of
housing for only those workers who are
unable to return to their residence in the
same day.
(3) The job order contains all the
material terms and conditions of the job,
and that all items therein are actual
conditions of the job offer by signing the
following statement: "This job order
describes the actual terms and
conditions of the employment being
offered by me and contains all the
material terms and conditions of the
job";
(4) The wages and working conditions
offered are not less than the prevailing
wages and working conditions among
similarly employed agricultural workers
in the areas of intended employment or
the applicable Federal and State
minimum wage, whichever is higher. If
the wages offered are expressed as
piece rates or as base rates and
bonuses, the ES staff shall ensure that
the employer's calculation of the
estimated hourly wage rate is
reasonably accurate and is not less than
the prevailing wage rate of applicable
Federal or State minimum wage, which-
ever is higher;
(5) The employer has agreed to
provide or pay for the transportation of
the workers and their families on at
least the same terms as transportation is
commonly provided by employers in the
area of intended employment to
agricultural workers and their families
recruited'from the same area of supply;
(6) ES staff have determined that the
employer will provide or has assured
the availability of housing, except as
provided in subsection (2)(xv) above,
which meets the full set of standards set
forth at Part 620 of this Chapter or the
full set of standards set forth at 29 CFR
1910.142; except that mobile range
housing for sheepherders shall meet
existing Departmental guidelines; and
(7) The local office and employer have
attempted and have not been able to
obtain sufficient workers within the
local labor market area, or the local
office anticipates a shortage of local
workers.
(e) No state agency shall place a job
order for agricultural or migrant food
processing workers with interstate
clearance unless:
(1) The job order meets the
requirements set forth at paragraphs
(d)(1)Jhrough (d)(6) of this Section;
(2) The State agency and the employer
have attempted and have not been able
to locate sufficient workers within the
state, or the State agency anticipates a
shortage of workers within the State;
and
(3) The order has been reviewed and
approved by the ETA regional office
within 10 working days, and the
Regional Administrator has determined
the areas of supply to which the order
shall be extended.
(f)(1) The local office shall use the
agricultural clearance form prescribed
by ETA, and shall see that all necessary
items on the form are completed,
including items on attachments to the
form prescribed by ETA.
(2)(i) The original of an interstate
agricultural clearance form shall be
retained for the orderholding local office
files. At a minimum, additional copies of
the form with all attachments shall be
distributed as follows:
(A) At least one clear copy of each of
the State agencies selected for
recruitment (areas of supply);
(b) One copy to each applicant-
holding ETA regional office;
(C) One copy to the order-holding
(area of employment) State office;
(D) One copy to the order-holding
ETA regional office; and
(E) One copy to the Regional Farm
Labor Coordinated Enforcement
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
Committee in the area of employment,
Attn: Farm Labor Specialist.
(F) In cases where employers submit
the clearance order in conjunction with
a request for certification of temporary
alien agricultural workers, one copy to
the USES National office.
(ii) Applicant holding offices shall
provide workers referred on clearance
orders with a checklist summarizing
wages, working conditions and other
material specifications on the job order.
Such checklists, where necessary, shall
be in English and Spanish. The checklist
shall include language notifying the ,
worker that a copy of the complete order
is available for inspection. One copy of
the form with all attachments shall be
available for inspection in the applicant-
holding office and the order-holding
office.
(iii) The applicant-holding office shall
give each referred worker, upon request,
a copy of a description of the worker's
rights as an MSFW developed by the
National Farm Labor Coordinated
Enforcement Committee.
(g] The local office may place an
intrastate or interstate agricultural order
for a specific crew leader or worker
preferred by the employer provided the
order meets ES nondiscrimination
criteria. The order would not meet such
criteria, for example, if it requested a
"white male crew leader" or "any white
male crew leader."
(h) In local offices which have been
designated significant bilingual offices
by ETA, and in any other local office
with bilingual staff, bilingual (English-
Spanish) staff shall assist all agricultural
workers, upon request, to understand
the terms and conditions of employment
set forth in intrastate and interstate job
orders and shall provide such workers
with checklists in Spanish showing
wage payment schedules, working
conditions and other material
specifications of the job order. Such
checklists shall include the language of
the first two sentences of 653.501(a)(1)
of this subpart.
653.502 Changes In crop and
recruitment situations.
If a labor demand State agency learns
that a crop is maturing earlier or later
than expected or that other material
factors, including weather conditions
and recruitment levels, have changed,
the agency shall immediately contact
the labor supply State agency, who shall
in turn immediately inform crews and
families scheduled through the ES
clearance system of the changed
circumstances and adjust arrangements
on behalf of such crews of families. If
weather conditions, over-recruitment or
other conditions have eliminated the
scheduled job opportunities, the State
agencies involved shall make every
effort to place the workers in alternate
job opportunities as soon as possible,
especially ifthe workers) is already
enroute or at the job site. ES staff shall
keep records of actions under this
section.
653.503 Field checks.
(a) The State agency, through its local
offices or otherwise, shall conduct
random, unannounced fieldchecks at a
significant number of agricultural
worksites to which ES placements have
been made through the intrastate or
interstate clearance system. These field
checks shall include visits) to the
worksite at a time when MSFWs are
there. Both the employees and the
employer shall be consulted, and ES
shall determine and document whether
wages, hours, working and housing
conditions are as specified in job orders.
ES staff shall keep records of all field
checks. If State agency personnel
observe or find reason to believe that
worksite conditions are not as stated or
promised on the job order, the State
agency shall follow the procedure set
forth at Subpart F of Part 658 of this
Chapter. If State agency personnel
observe or find reason to believe that an
employer is violating any Federal or
State employment-related laws, they
shall follow the procedure set forth in
Subpart F of Part 658 of these
regulations.
(b) State agencies, to the maximum
extent possible, shall make formal or
informal arrangements with appropriate
State and Federal enforcement agencies
pursuant to which such agencies will
agree to conduct compliance reviews in
their areas of enforcement responsibility
at agricultural worksites where the State
agency has placed MSFWs and to
inform the State agency if violations are
found. An enforcement agency
compliance review shall satisfy the
requirement for State agency field
checks where all aspects of wages,
hours, working and housing conditions
have been reviewed by the enforcement
agency reviews. The State agency shall
supplement enforcement agency efforts
with field checks focusing on areas not
addressed by enforcement agencies.
State agencies shall report difficulties in
making such formal or informal
arrangements with State enforcement
agencies as well as deficiencies in State
enforcement agency activities to the
Regional Farm Labor Coordinated
Enforcement Committee.
4. Part 658 is proposed to be added as
follows:
PART 658-ADMINISTRATIVE
PROVISIONS GOVERNING THE
EMPLOYMENT SERVICE SYSTEM
Subpart A-[Reserved]
Subpart B-[Reserved]
Subpart C-[Reserved]
Subpart D-[Reserved]
Subpart E-Employment Service
Complaint System
Sec.
658.400 Purpose and scope of subpart.
658.401 Types of complaints handled by the
ES complaint system.
658.410 Establishment of State agency ES
complaint system.
658.411 Filing and assignment of ES-related
complaints.
658.412 Complaint resolution.
658.413 Initial handling of complaints by the
State or local office.
658.414 Referral of non-ES-related
complaints.
658.415 Transferring complaints to proper
ES office.
658.416 Action on ES-related complaints.
658.417 Hearings.
658.418 Decision of the State hearing
officiaL
658.420 Establishment of the ES complaint
system at the ETA regional office.
658.421 Handling of ES-related complaints
about a State agency or local office.
658.422 Handling of non-ES-related
complaints by the Regional
Administrator.
658.423 Complaints against U.S.E.S.
658.424 Federal Hearings.
658.425 Decision of the DOL Administrative
Law Judge.
Subpart F-Discontinuance of
Services to Employers by the
Employment Service System
658.500 Scope and purpose of subpart.
658.501 Basis for discontinuation of
services.
658.502 Notification to employers.
658.503 Discontinuation of services.
658.504 Reinstatement of services.
Subpart G-Review and Assessment
of State Agency Compliance With
Employment Service Regulations
658.600 Scope and purpose of subpart.
658.601 State agency responsibility.
658.602 ETA national office responsibility.
658.603 ETA regional office responsibility.
658.604 Assessment and evaluation of
program performance data.
658.605 Communication of findings to State
agencies.
Subpart H-Federal Application of
Remedial Action to State Agencies
658.700 Scope and purpose of subpart.
658.701 Statement of policy.
658.702 Initial action by the Regional
Administrator.
2509
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
Sec.
658.703
658.704
658.705
658.706
658.707
658.708
658.709
658.710
658.711
Emergency corrective action.
Remedial actions.
Decision to decertify.
Notice of decertification.
Requests for hearings.
Hearings.
Conduct of hearings.
Decision of the Hearing Officer.
Decision of the Secretary.
Subpart E-Employment Service
Complaint System
Authority: Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq.; 38 U.S.C.
Chapters 41 and 42; unless otherwise noted.
658.400 Purpose and scope of subpart.
This subpart sets forth the regulations
governing the employment service
complaint system at both the State and
Federal levels.
658.401 Types of complaints handled by
the ES complaint system.
(a)(1) The types of complaints (ES
related complaints) which shall be
handled to resolution by the ES
complaint system are as follows: (i)
complaints against an employer about
the specific job to which an applicant
was referred by the ES (employer-
related complaint) and (ii) complaints
about employment service actions or
omissions under ES regulations (agency-
related complaints). (2) A complaint
shall be handled to resolution by these
regulations only if it is made within one
year of the alleged occurrence.
(b) Complaints by veterans alleging
employer violations of the mandatory
listing requirements under 38 U.S.C. 2012
shall not be handled under this subpart.
The State agency shall handle such
complaints under the Department's
regulations at 41 CFR Parts 60-250.
(c) Complaints alleging violations of
employment-related Federal, State or
local laws other than ES regulations by
employers, their agents, or DOL
subagencies other than ES (non-ES-
related complaints) shall be received by
the State agency and the ETA regional
office and referred to the appropriate
local, State or federal enforcement
agency pursuant to the procedures set
forth in 658.441 and 658.422 of this
subpart.
(d) Certain types of complaints, such
as, but not limited to, complaints by
veterans or MSFWs, and complaints
alleging unlawful discrimination, shall,
as set forth in this subpart, be handled
by specified officials of the State agency
or of ETA.
(e) Definitions for the purpose of this
Subpart E:
(1) "Complaint" means a
representation made or referred to a
State or local ES office of a violation of
the ES regulations and/or other federal,
State or local employment related law.
(2) "Complainant" means the
individual, employer, organization,
association, or other entity filing a
complaint.
(3) "Employer" means (1) a person,
firm, corporation which currently has a
location within the United States, or (2)
a firm or corporation with a location in a
foreign country, to which workers may
be legally referred for employment, or
(3) the various units of government
within the United States.
(4) "Respondent" means the employer
or State agency (including a State
agency official) who is alleged to have
committed the violation described in a
complaint.
State ES Complaint System
658.410 Establishment of State agency
ES complaint system.
(a) Each State agency shall establish
and maintain an employment service
complaint system pursuant to this
subpart.
(b) The State Administrator shall have
overall responsibility for the operation
of the State agency ES complaint
system. At the local office level, the
local office manager shall be
responsible for the management of the
ES complaint system.
(c)(1) State agencies shall ensure that
centralized control procedures are
established for the handling of
complaints and files relating to the
handling of complaints. The Manager or
Administrator of the local or State office
taking the complaint shall ensure that a
central complaint log is maintained,
listing all complaints received, and
specifying for each complaint: (i) the
name of the complainant, (ii) the name
of the respondent (employer or State
agency), (iii) the date the complaint is
filed, (iv) whether the complaint is by or
on behalf of an MSFW, (v) whether the
complaint is ES-related, (vi) if the
complaint is ES-related, whether it is
employer-related or agency-related, (vii)
if the complaint is non-ES-related, the
information required by 658.414(c),
and (viii) the action taken, including for
ES-related complaints, whether the
complaint has been resolved.
(2) If an MSFW complaint is received
in a local office during a calendar
quarter, within one month after the end
of that calendar quarter, the local office
manager shall transmit a copy of the
local office complaint log for that
quarter to the State Administrator.
Within two months after the end of each
calendar quarter the State
Administrator shall transmit copies of
all local and State office complaint logs
received for that quarter to the Regional
Administrator.
(3) State agencies shall ensure that
any action taken on a complaint by the
responsible official, including referral, is
fully documented in a file containing all
relevant information, including a copy of
the original complaint form, a copy of
any investigation reports, and/or any
related correspondence, a list of actions
taken, and a record of related telephone
calls.
(4) At the State office level, the State
Administrator shall ensure that all ES-
related complaints referred from local
offices, and all correspondence relating
thereto are logged with a notation of the
nature of each item.
(d) State agencies shall ensure that
information pertaining to the use of the
ES complaint system is publicized. This
shall include the prominent display of
an ETA-approved ES complaint system
poster in each local office, satellite or
district office, and at each State agency
operated day-haul facility.
658.411 Filing and assignment of ES-
related complaints.
(a) Complaints may be filed in any
office of the State employment service
agency.
(b) If a State agency employee
observes or has reason to believe that
there has been a violation of ES
regulations by an employer, even in the
absence of the filing of a complaint, the
State agency shall put the matter in
writing on the ES Complaint/Referral
Form, investigate the suspected
violation of the ES regulations, and
otherwise treat it as a complaint under
this part. If a non-State agency
complainant withdraws a complaint
against an employer, but the State
agency still has reason to believe the
employer has violated the ES
regulations, the appropriate State
agency official shall continue to
investigate the alleged violations)
pursuant to the provisions of this
Subpart.
(c) Assignment of complaints to local
office personnel shall be as follows:
(1) All ES-related complaints filed
with a local office, and alleging unlawful
discrimination by race, color, religion,
national origin, sex, citizenship, physical
or mental status unrelated to job
'performance (handicap), or veteran
status shall be assigned to a local office
Equal Employment Opportunity (EEO)
representative if the local office has a
trained and designated EEO
representative, or, if the local office does
not have such a representative, shall be
sent immediately to the State EEO
representative or, where appropriate,
2510
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
handled in accordance with the
-procedures set forth at 29 CFR Part 31.
(2) All ES-related complaints from
veterans, except those from veterans
who are MSFWs or ES-related
complaints from veterans alleging
unlawful discrimination as described in
paragraph (c)(1) of this section shall be
assigned to the Local Veterans'
Employment Representative (LVER). If
the local office does not have an LVER,
such complaints shall be sent
immediately to the State Administrator.
(3) All ES-related complaints other
than those described in paragraphs (b)
(1) and (2) of this section may be
personally handled by the local office
manager, and all non-ES-related
complaints shall either be personally
handled by the offce manager or
assigned by the local office manager to
another local office employee.
(d) Assignment of complaints to State
office personnel shall be as follows:
(1) The handling of all ES-related
complaints received by the State office
alleging unlawful discrimination by
race, color, religion, national origin, sex,
age, citizenship, physical or mental
status unrelated to job performance
(handicap), or veteran or non-veteran
status shall be assigned to a-State EEO
representative and, where appropriate,
handled in accordance with procedures
set forth at 29 CFR Part 31.
(2) The handling of all other ES-
related complaints and all non-ES-
related complaints received by the State
office shall be assigned to a State
agency official designated by the State
Administrator, provided that the State
agency official designated to handle
MSFW complaints shall be the State
MSFW Monitor Advocate.
658.412 Complaint resolution.
(a) An ES-related complaint is
resolved when:
(1) the complainant indicates
satisfaction with the outcome, or
(2) the complainant chooses not to
elevate the complaint to the next level of
review, or
(3) the complainant fails to respond
within 30 days of a written request by
the appropriate local or State office, or
(4) the complainant exhausts the final
level of review.
658.413 Initial handling of complaints by
the State or local office.
(a) There shall be an appropriate
official available during regular office
hours to take complaints in each local
office.
(b) Whenever an individual indicates-
an interest in making any complaint to a
State agency office, the appropriate ES
official shall offer to receive the
complaint and to explain the operation
of the ES complaint system. The official
shall require that the complainant put
the complaint in writing on the ES
Complaint/Referral Form prescribed or
approved by the ETA. The ES
Complaint/Referral Form shall be used
for all complaints taken by a State
agency, including complaints by
veterans and complaints about unlawful
discrimination, except as provided in
658.413(c). The State agency official
shall offer to assist the complainant in
filling out the form and shall do so if the
complainant desires such assistance. If
the complainant also represents several
other complainants, all such
complainants shall be named on the ES
Complaint/Referral Form. The
complainant shall sign the completed
form. The identity of the complainant(s)
and any persons who furnish
information relating to, or assisting in,
an investigation of a complaint shall be
kept confidential to the maximum extent
possible, consistent with applicable law
and a fair determination of the
complaint. A copy of the completed ES
Complaint/Referral Form shall be given
to the complainant, and the complaint
form shall be given to the appropriate
ES official.
(c) If an ES official receives a
complaint in any form (e.g., a letter)
which is signed by the complainant and
includes sufficient information for the
ES official to initiate an investigation,
the document shall be treated as if it
were a properly completed ES
Complaint/Referral Form filed in person
by the complainant. The ES official shall
send a confirming letter to this effect to
the complainant and shall give the
document to the appropriate ES official.
If the complainant has not provided
sufficient information to investigate the
matter expeditiously, the ES official
shall request additional information
from the complainant.
(d) If the appropriate ES official
determines that the complaint is not ES-
related, the official shall follow the
procedures set forth in 658.414.
(e) If the appropriate ES official
determines that the complaint is ES-
related, the official shall ensure that the
complaint is handled in accordance with
this Subpart E.
658.414 Referral of non-ES-related
complaints.
(a) Non-ES-related complaints shall
be immediately sent to the appropriate
enforcement agency or agencies along
with a written statement that the
complaint was received by ES and that
it is being referred for prompt action
pursuant to 29 CFR Part 42 (Farm Labor
Coordinated Enforcement).
(b) Upon referring the complaint in
accordance with paragraph (a) above,
the ES official shall inform the
complainant of the enforcement agency
(and individual, if known) to which the
complaint was referred and shall also
refer the complainant to the enforcement.
agency, another public agency, legal aid
agency, a consumer advocate and/or
other appropriate assistance.
(c) For all non-ES-related complaints
received, the appropriate ES official
shall record the referral of the complaint
(and the complainant) and the agency or
agencies (and individualss, if known) to
which the complaint and the
complainant were referred on the
complaint log specified in
658.410(c)(1). The ES official shall also
prepare and keep the file specified in
658.410(c)(3).
658.415 Transferring complaints to
proper ES office.
(a) Where an ES-related complaint
deals with an employer, the proper
office to handle the complaint initially is
ordinarily the local office serving the
area in which the employer is located.
Where an ES-related complaint deals
with an office of a State agency, the
proper office to handle the complaint
initially is the local office serving the
area in which the alleged violation of
the ES regulations occurred. Where an
agency-related complaint deals with
more than one office of a State agency,
with an alleged agency-wide violation,
or with the State office, the appropriate
State agency official may direct that the
State office of that agency handle the
complaint initially.
(b) The State Administrator shall
establish a system whereby the office in
which an ES-related complaint is filed,
alleging a violation in that same State,
ensures that the ES Complaint/Referral
Form is adequately completed, and then
sends the complaint to the proper State
or local office of that agency. A copy of
the referral letter shall be sent to the
complainant.
(c) Whenever an ES-related complaint
deals with an employer in another State
or another State agency, the State
agency shall send, after ensuring that
the ES Complaint/Referral Form is
adequately completed, a copy of the ES
Complaint/Referral Form and copies of
any relevant documents to the State
agency in the other State. Copies of the
referral letter shall be sent to the
complainant, and copies of the
complaint and referral letter shall be
sent to the ETA Regional Office(s) with
jurisdiction over the transferring and
receiving State agencies.
(d) The State agency receiving the
complaint after an interstate transferral
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under paragraph. (c) of this section shall
handle the complaint as if it had been
initially filed with that office.
(e) The ETA regional office with
jurisdiction over the receiving State
shall follow-up with the receiving State
agency to ensure the complaint is
handled in accordance with these
regulations.
658.416 Action on ES-related complaint.
(a) The appropriate State agency
official handling an ES-related
complaint shall offer to assist the
complainant through the provision of
appropriate ES services. For complaints
against employers, this may include
such services as referring a worker-
complainant to another job.
(b)(1) If the complaint concerns
violations of an employment-related
law, the local or State office official
shall refer the complaint to the
appropriate enforcement agency and
notify the complainant in writing of the
referral. The office referring the MSFW
complaint shall follow up with the
enforcement agency monthly, and shall
inform the complainant of the status of
the complaint periodically.
(2) If the enforcement agency finds
that the employer violated a law, the
State ES agency shall initiate
procedures for discontinuation of
services immediately in accordance
with Subpart F. The State agency shall
notify the complainant and the employer
of this action.
(c) If the complaint is filed initially in
a local office, and is not referred under
858.416(b), the appropriate local office
official shall investigate and attempt to
resolve the complaint immediately upon
receipt. If resolution has not been
achieved to the satisfaction of the
complainant and the respondent, within
15 working days after receipt of the
complaint, or 5 working days with
respect to complaints filed by or on
behalf of MSFWs, the local office
official shall send the complaint to the
State office for resolution or further
action. The local office shall notify the
complainant and the respondent, in
writing of the results of its investigation
pursuant to this paragraph, and of the
referral.
(d) If the complaint is filed initially
with the State office, and is not
transferred to a local office under
858.415(a), or not referred to an
enforcement agency under section
658.416(b), the appropriate State office
official shall investigate and attempt to
resolve the complaint immediately upon
receipt. If the State office receives the
complaint on referral from a local office,
the State official shall attempt to resolve
the complaint immediately and may, if
necessary, conduct a further
investigation. If resolution at the State
office level has notbeen accomplished
within 30 working days (20 working
days with respect to complaints by
MSFWs) after the complaint was
received by the State office (whether the
complaint was received directly or from
a local office pursuant to paragraph (c)
of this section), the State office shall
make a written determination regarding
the complaint and shall send copies to
the complainant, the respondent, and
the Regional Administrator. The
determination shall include all of the
following:
(1) The results of any State office
investigation pursuant to paragraph (d)
of this section.
(2) Conclusions reached on the
allegations of the complaint.
(3) An explanation of why the
complaint was not resolved.
(4) If the complaint is against an
employer, and the State office has found
that the employer has violated ES
regulations, the determination shall
state that the State will initiate
procedures for discontinuation of
services to the employer in accordance
with Subpart F.
(5) If the complaint is against an
employer and has not been referred to
an enforcement agency pursuant to
section (b)(1) above, and the State office
has found that the employer has not
violated ES regulations, an offer to the
complainant of the opportunity to
request a hearing within 20 working
days after the date of the notification.
(6) If the complaint is against the State
agency, an offer to the complainant of
the opportunity to request in writing a
hearing within 20 working days after the
date of the notification.
(e) If the State office, within 20
working days of the notification
provided for in paragraph (d) of this
section, receives a written request for a
hearing in response thereto, the State
office shall refer the complaint to a State
hearing official for hearing. The parties
to whom the determination was sent
(the State agency may also be a party),
shall then be notified in writing by the
State office that:
(1) The parties will be notified of the
date, time and place of the hearing;
(2) The parties may be represented at
the hearing by an attorney or other
representative;
(3) The parties may bring witnesses
and/or documentary evidence to the
hearing;
(4) The parties may cross-examine
opposing witnesses at the hearing;
(5) The decision on the complaint will
be based on the evidence presented at
the hearing;
(6) The State hearing official may
reschedule the hearing at the request of
a party or its representative; and
(7) With the consent of the State
agency's representative and of the State
hearing official, the party who requested
the hearing may withdraw the request
for hearing in writing before the hearing.
658.417 Hearings.
(a) Hearings shall be held by State
hearing officials. A State hearing official
may be any State official authorized to
hold hearings under State law. They
may be, for example, the same referees
who hold hearings under the State
unemployment compensation law and/
or the Work Incentive Program or any
official of the State agency, authorized
by State law to preside at State
administrative hearings.
(b) The State hearing official may
decide to conduct hearings on more than
one complaint concurrently if he/she
determines that the issues are related or
that the complaints willbe handled
more expeditiously in this fashion.
(c) The State hearing official, upon the
referral of a case for a hearing, shall:
(1) Notify all involved parties of the
date, time and place of the hearing; and
(2) Re-schedule the hearing, as
appropriate.
(d) In conducting a hearing the State
hearing official shall:
(1) Regulate the course of the hearing;
(2) Issue subpoenas, if empowered to
do so under State law, if necessary;
(3) Assure that all relevant issues are
considered;
(4) Rule on the introduction of
evidence and testimony; and
(5) Take any other action which is
necessary to insure an orderly hearing.
(e) The testimony at the hearing shall
be recorded and may be transcribed
when appropriate.
(f) The parties shall be afforded the
opportunity to present, examine, and
cross-examine witnesses.
(g) The State hearing official may
elicit testimony from witness, but shall
not act as advocate for any party.
(h) The State hearing official shall
receive and include in the record,
documentary evidence offered by any
party and accepted at the hearing, -
Copies thereof shall be made available
by the party submitting the document to
other parties to the hearing upon
request.
(i) Technical rules or evidence shall
not apply to hearings conducted
pursuant to this section, but rules or
principles designed to assure production
of the most credible evidence available
and to subject testimony to test by
cross-examination, shall be applied
where reasonably necessary by the
Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
State hearing official. The State hearing
official may exclude irrelevant,
immaterial, or unduly repetitious
evidence.
(j) The case record, or any portion
thereof, shall be available for inspection
and copying by any party at, prior to, or
subsequent to the hearing upon request.
Special procedures may be used for
disclosure of medical and psychological
records such as disclosure to a
physician designated by the individual.
(k) The State hearing official shall, if
feasible, resolve the dispute by
conciliation at any time prior to the
conclusion of the hearing.
(1) At the State hearing official's
discretion, other appropriate
individuals, organizations, or
associations may be permitted to
participate in the hearing as dmicus
curiae (friends of the court) with respect
to specific legal or factual issues
relevant to the complaint. Any
documents submitted by the amicus
curiae shall be included in the record.
(m) The following standards shall
apply to the location of hearings
involving parties in more than one State
or in locations which are within a State
but which are separated geographically
so that access to the hearing location is
extremely inconvenient for one or more
parties as determined by the State
hearing official.
(1) Whenever possible, the State
hearing official shall hold a single
hearing, at a location convenient to all
parties or their representatives wishing
to appear and present evidence, and
with all such parties and/or their
representatives present.
(2) If a hearing location cannot be
established by the State hearing official
at a State agency office pursuant to
paragraph (m)(1) of this section, the
State hearing official may conduct, with
the consent of the parties, the hearing by
a telephone conference call from a State
agency office with all parties and their
representatives not choosing to be
present at that location permitted to
participate in the hearing from their
distant locations.
(3) Where the State agency does not
have the facilities to conduct hearings
by telephone pursuant to paragraphs
(m)(1) or (m)(2) of this section, the State
agencies in the States where the parties
are located shall take evidence and hold
the hearing in the same manner as used
for appealed interstate unemployment
claims in those States, to the extent that
such procedures are consistent with
658.416 or this Part.
658.418 Decision of the State hearing
official.
(a) The State hearing official may:
(1) Rule that the case is improperly
before it, that is, that there is a lack of
jurisdiction over the case;
(2) Rule that the complaint has been
withdrawn properly and in writing;
(3) Rule that reasonable cause exists
to believe that the request has been
abandoned or that repeated requests for
re-scheduling are arbitrary and for the
purpose of unduly delaying or avoiding
a hearing; or
(4) Render such other rulings as are
appropriate to the issues in question.
However, the State hearing official shall
not have jurisdiction to consider the
validity or constitutionality of ES
regulations or of the Federal statutes
under which they are promulgated.
(b) Based on the entire record,
including the investigations and
determinations of the local and State
offices and any evidence provided at the
hearing, the State hearing official shall
prepare a written decision. The State
hearing official shall send a copy of the
decision stating the findings and
conclusions of law-and fact and the
reasons therefore to the complainant, the
respondent entities serving in amicus
capacity (if any), the State office, the
Regional Administrator, and the
Solicitor of Labor, Attn: Associate
Solicitor for Employment and Training
Legal Service, Department of Labor,
Room N2101, 200 Constitution Avenue,
N.W., Washington, D.C. 20210.
(c) All decision of a State hearing
official shall be accompanied by a
written notice informing the parties (not
including the Regional Administrator,
the Solicitor of Labor, or entities serving
in an amicus capacity) that, if they are
not satisfied, they may, within 20
working days of the date of the decision,
file an appeal in writing with the
Regional Administrator. The notice shall
give the address of the Regional
Administrator.
Federal ES Complaint System
658.420 Establishment of ES complaint
system at the ETA regional office.
(a) Each Regional Administrator shall
establish and maintain an ES complaint
system at the DOL regional office level.
(b) The Regional Administrator shall
designate DOL officials to handle ES-
related complaints as follows:
(1) The handling of all ES-related
complaints alleging discrimination by
race, color, religion, national origin, sex,
age, citizenship, physical or mental
status unrelated to job performance
(handicap), or veteran status shall be
assigned to a Regional Equal
Employment Opportunity
Representative (REEOR) and, where
appropriate, handled in accordance with
procedures at 29 CFR Part 31.
(2) The handling of all ES-related
complaints from veterans, except from
veterans who are MSFWs, and
complaints from veterans about
discrimination as described in
paragraph (b)(1) of this section shall be
assigned to the Regional Veterans'
Employment Representative (RVER);
(3) The handling of all ES-related
complaints other than those described in
paragraphs (b)(1) and (2) of this section
shall be assigned to a regional office
official designated by the Regional
Administrator, provided that the
regional office official designated to
handle MSFW complaints shall be the
Regional MSFW Monitor Advocate.
(c) The Regional Administrator shall
designate DOL officials to handle non-
ES-related complaints in accordance
with 658.422 of this Subpart, provided
that the regional official designated to
handle MSFW non-ES-related
complaints shall be the Regional MSFW
Monitor Advocate.
(d) The Regional Administrator shall
assure that all ES-related complaints
and all correspondence relating thereto
are logged, with a notation of the nature
of each item.
658.421 Handling of ES-related
complaints about a State agency or local
office.
(a) No ES-related complaint about a
State agency or local offices) shall be
handled at the ETA regional office level
until the complainant has exhausted the
State agency administrative remedies
set forth at 658.410-418 of this
subpart. Therefore, if the Regional
Administrator determines that any
complainant, who has filed an ES-
related complaint with the regional
office, has not yet exhausted the
administrative remedies at the State
agency level, the Regional Administrator
shall inform the complainant within 10
working days in writing that the
complainant must first exhaust those
remedies before the complaint may be
filed in the regional office. A copy of this
letter shall be sent to the State
Administrator. However, nothing in this
provision shall prevent an ETA regional
office from accepting and handling to
resolution an ES-related complaint
pursuant to 658.423 or 658.702(c).
(b) The ETA regional office shall be
responsible for handling appeals of
determinations made on complaints at
the State level. An "appeal" shall
include any letter or other writing
requesting review if it is received by the
regional office and signed by a party to
the complaint. Upon receipt of an appeal
by the Regional Administrator after the
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exhaustion of State agency
administrative remedies, the Regional
Administrator immediately shall send
for the complete State agency file,
including the original ES Complaint/
Referral Form.
(c) The Regional Administrator shall
review the file in the case and shall
determine within ten 110) working days
whether any further investigation or
action is appropriate, provided however
that the Regional Administrator shall
have twenty (20) working days to make
this determination if legal advice is
necessary.
(d) If the Regional Administrator
determines that no further action is
warranted, the Regional Administrator
shall send this determination in writing
to the appellant within five (5) days of
his/her determination and may, in the
Regional Administrator's discretion,
offer the appellant a hearing before a
DOL Administrative Law Judge,
provided the appellant requests such a
hearing in writing from the Regional
Administrator within 20 working days of
the date of the Regional Administrator's
offer of hearing.
(e) If the Regional Administrator
determines that further investigation or
other action is warranted, the Regional
Administrator immediately shall
undertake such an investigation,
informal resolution or other action.
(f) If the Regional Administrator
determines'to reverse or modify the
decision of the State hearing official or
the State Administrator, the Regional
Administrator shall offer each party to
the State hearing official's hearing or to
whom the State office determination
was sent, the opportunity for a hearing
before a DOL Administrative Law Judge,
provided the party requests such a
hearing in writing within 20 working
days of the date of the Regional
Administrator's offer of hearing.
(g) If the Regional Administrator finds
reason to believe that a State agency or
one of its local offices has violated ES
regulations, the Regional Administrator
shall follow the procedures set forth at
Subpart H of this Part.
(h) If the appeal is not resolved,
pursuant to paragraph (e) of this section,
to the appellant's satisfaction, the
Regional Administrator may, in the
Regional Administrator's discretion,
offer the appellant in writing a hearing
before a DOL Administrative Law Judge
provided the appellant requests such a
hearing in writing from the Regional
Administrator within 20 working days of
the date of the Regional Administrator's
offer of hearing.
658.422 Handling of non-ES-related
complaints by the Regional Administrator.
(a) Each non-ES-related complaint
received by the regional office shall be
handled in accordance with this
paragraph unless it also has been filed
with a State agency, in which case the
State agency shall handle the complaint
pursuant to 658.414 of this Subpart.
(b) Non-ES-related complaints shall
be immediately sent to the appropriate
local, state, or federal enforcement
agency or agencies along with a written
statement that the complaint was
received by ETA and that it is being
referred for prompt action pursuant to 29
CFR Part 42.
(c) Upon referring the complaint in
accordance with subsection (b) above,
the regional official shall inform the
complainant of the enforcement agency
(and individual, if known) to which the
complaint was referred and shall also
refer the complainant to the enforcement
agency, another public agency, an
attorney, a consumer advocate and/or
other appropriate assistance.
(d) For all non-ES-related complaints
received, the appropriate regional
official shall record the referral of the
complaint (and the complainant] and the
agency or agencies (and individualss, if
known) to which the complaint and the
complainant were referred on a
complaint log, similar to the one
described in 658.410(c)(1) of this
Subpart. The appropriate regional
official shall also prepare and keep the
file specified in 658.410(c)(3).
658.423 Handling of other complaints by
the Regional Administrator.
Whenever the regional office receives
an ES-related complaint and the
appropriate official determines that the
nature and scope of the complaint are
such that the time required to exhaust
the administrative procedures at the
State level would adversely affect a
significant number of applicants, he/she
shall take the complaint and follow-up
on the complaint in manner consistent
with the requirements imposed upon
State agencies by 658.413 and 658.416
herein. A hearing shall be offered to the
parties once the Regional Administrator
makes a determination on the complaint.
658.424 Complaints against U.S.E.S.
Complaints alleging that an ETA
regional office or the national office of
U.S.E.S. has violated ES regulations
should be mailed to the Assistant
Secretary for Employment and Training,
U.S. Department of Labor, Washington,
D.C., 20210. Such complaints should
include: (1) the allegations of wrong-
doing, (2) the date of the incident, (3)
location of the incident, (4) who the
complaint is against, and (5) any other
relevant information available to the
complainant.
658.425 Federal hearings.
(a) If a party requests a hearing
pursuant to 648.421(d), (f), or (h), the
Regional Administrator shall:
(a) Send the party requesting the
hearing and all other parties to the prior
State agency hearing, a written notice
containing the statements set forth at
658.416(e)(1)(b) of this subpart;
(2) Compile four hearing files
containing copies of all documents
relevant to the case, indexed and
compiled chronologically;
(3) Send simultaneously one hearing
file to the DOL Chief Administrative
Law Judge, 1111 20th Street, NW.,
Washington, D.C. 20036, one hearing file
to the Administrator, and one hearing
file to the Solicitor of Labor, Attn:
Associate Solicitor for Employment and
Training Legal Services, and retain one
hearing file.
(b) Upon the receipt of a hearing file,
the DOL Administrative Law Judge
designated by the Chief Administrative
Law Judge shall notify the party
requesting the hearing, all parties to the
prior State hearing official hearing (if
any), the State agency, the Regional
Administrator, the Administrator, and
the Solicitor of the receipt of the case.
The DOL Administrative Law Judge
shall afford the non-Federal parties 20
working days to submit written
evidence and/or legal arguments in the
case. The DOL Administrative Law
Judge shall afford the Solicitor 20
working days to submit written
evidence and/or legal arguments in the
case on behalf of the Federal parties.
After the 20 working days elapse, the
Hearing Officer shall decide whether to
schedule a hearing, or make a
determination on the record.
(c) The DOL Administrative Law
Judge may decide to conduct hearings
on more than one complaint
concurrently if he/she determines that
the issues are related or that the
complaints will be handled more
expeditiously in this fashion.
(d) At the DOL Administrative Law
Judge's discretion, other appropriate
individuals, organizations, or
associations may be permitted to
participate in the hearing as amicus
curiae with respect to specific legal or
factual issues relevant to the complaint.
Any documents submitted by the
amicus curiae shall be included in the
record.
(e) The following standards shall
apply to the location of hearings
involving parties in more than one State
or in locations which are within a State
_ _
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but which are separated geographically
so that access to the hearing location is
extremely inconvenient for one or more
parties as determined by the
Administrative Law Judge.
(1) Whenever possible, the
Administrative Law Judge shall hold a
single hearing, at a location convenient
to all parties or their representatives
wishing to appear and present evidence,
and with all such parties and/or their
representatives present.
(2) If a hearing location cannot be
established by the Administrative Law
Judge at a location pursuant to
paragraph (e)(1) of this section, the
Administrative Law Judge may conduct,
with the consent of the parties, the
hearing by a telephone conference call
from an office with all parties and their
representatives not choosing to be
present at that location permitted to
participate in the hearing from their
distant locations.
(3) Where the Administrative Law
Judge is unable to locate facilities to
conduct hearings by telephone pursuant
to paragraphs (e)(1) or (e)(2) of this
section, the Administrative Law Judge
shall take evidence in the States where
the parties are located and hold the
hearing in the same manner as used for
appealed interstate unemployment
claims in those States, to the extent that
such procedures are consistent with
658.416 of this Part.
(f) The DOL Administrative Law Judge
shall:
(1) Notify all involved parties of the
date, time and place of the hearing; and
(2) Re-schedule the hearing, as
appropriate.
(g) In conducting a hearing the DOL
Administrative Law Judge shall:
(1) Regulate the course of the hearing;
(2) Issue subpoenas if necessary;
(3) Consider all relevant issues which
are raised;
(4) Rule on the introduction of
evidence and testimony;
(5) Take any other action which is
necessary to insure an orderly hearing.
(h) The testimony at the hearing shall
be recorded, and shall be transcribed if
appropriate.
(i) The parties to the hearing shall be
afforded the opportunity to present,
examine, and cross-examine witnesses.
The DOL Administrative Law Judge may
elicit testimony from witnesses, but
shall not act as advocate for any party.
(j) The DOL Administrative Law Judge
shall receive, and make part of the
record, documentary evidence offered
by any party and accepted at the
hearing. Copies thereof shall be made
available by the party submitting the
documentary evidence, to any party to
the hearing upon request.
(k) Technical rules of evidence shall
not apply to hearings conducted
pursuant to this part, but rules or
principles designed to assure production
of the most credible evidence available
and to subject testimony to test by
cross-examination; shall be applied
where reasonably necessary by the
Administrative Law Judge conducting
the hearing. The Administrative Law
Judge may exclude irrelevant,
immaterial, or unduly repetitious
evidence.
(1) The case record, or any portion
thereof, shall be available for inspection
and copying by any party to the hearing
at, prior to, or subsequent to the hearing
upon request. Special procedures may
be used for disclosure of medical and
psychological records such as disclosure
to a physician designated by the
individual concerned.
(m) The DOL Administrative Law
Judge shall, if feasible, encourage
resolution of the dispute by conciliation
at any time prior to the conclusion of the
hearing.
658.426 Decision of DOL Administrative
Law Judge.
(a) The DOL Administrative Law
Judge may:
(1) Rule that there is a lack of
jurisdiction over the case;
(2) Rule that the appeal has been
withdrawn properly and in writing, with
the written consent of all the parties;
(3) Rule that reasonable cause exists
to believe that the appeal has been
abandoned or that repeated requests for
re-scheduling are arbitrary and for the
purpose of unduly delaying or avoiding
-a hearing; or
(4) Render such other rulings as are
appropriate to the issues in question.
However, the DOL Administrative Law
Judge shall not have jurisdiction to
consider the validity or constitutionality
of ES regulations or of the Federal
statutes under which they are
promolgated.
(b) Based on the entire record,
including any legal briefs, the record
before the State agency, the
investigation (if any) and determination
of the Regional Administrator, and
evidence provided at the hearing, the
DOL Administrative Law Judge shall
prepare a written decision. The DOL
Administrative Law Judge shall send a
copy of the decision stating the findings
and conclusions of law and fact and the
reasons therefore to the parties to the
hearing, including the State agency, the
Regional Administrator, the
Administrator, and the Solicitor, and to
entities filing amicus briefs (if any).
(c) The decision of the DOL
Administrative Law Judge shall be the
final decision of the Secretary.
Subpart F-Discontinuation of
Services to Employers by the
Employment Service System
Authority: Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq., unless
otherwise noted.
658.500 Scope and purpose of subpart.
This subpart contains the regulations
governing the discontinuation of
services to employers by the U.S.E.S,
including State agencies.
658.501 Basis for discontinuation of
services.
(a) The State agency shall initiate
procedures for discontinuation of
services to employers who:
(1) Submit and refuse to alter job
orders containing specifications which
are contrary to employment-related
laws;
(2) Refuse to provide assurances, in
accordance with section 653.501(d)
above, that the jobs offered are in
compliance with employment-related
laws;'
(3) Are found through field checks or -
otherwise to have either misrepresented
the terms or conditions of employment
specified on job orders or failed to
comply fully with assurances made on
job orders;
(4) Are found by an appropriate
enforcement agency to have violated
any employment-related laws;
(5) Are found to have violated ES
regulations pursuant to 658.416(d)(4) of
this chapter;
(6) Refuse to accept qualified workers
referred through the clearance system;
and
(7) Repeatedly cause the initiation of
the procedures for discontinuation of
services pursuant to subsections (a) (1)
through (5).
(b) The State agency may suspend
services immediately if, in the judgment
of the State Administrator, exhaustion
of the administrative procedures set
forth in this subpart at 658.501 through
658.502 would cause substantial harm to
a significant number of workers. In such
instances, procedures at 658.503(b), et
seq. shall be followed..
658.502 Notification to employers.
(a) The State agency shall notify the
employer that it intends to discontinue
the provision of ES services and the
reason therefore:
(1) Where the decision is based on
submittal and refusal to alter job orders
containing specifications contrary to
employment-related laws, the State
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Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
agency shall specify the date the order
was submitted, the job order involved,
the specifications contrary to
employment-related laws and the laws
involved. The employer shall be notified
that all ES services will be terminated in
20 working days unless the employer
within that time:
(i) Provides adequate evidence that
the specifications are not contrary to
employment-related laws, or
(ii) Withdraws the specifications and
resubmits the job order in compliance
with all employment-related laws, or
(iii) If the job is no longer available
makes adequate assurances that all
future job orders submitted will be in
Compliance with all employment-related
laws.
(2) Where the decision is based on the
employer's refusal to provide
assurances that the job is in compliance
with employment-related laws, the State
agency shall specify the date the order
was submitted, the job order involved
and the assurances involved. The
employer shall be notified that all ES
services will be terminated within 20
working days unless the employer
within that time:
(i) Resubmits the job order with the
appropriate assurances, or
(ii) If the job is no longer available,
make adequate assurances that all
future job orders submitted will contain
all necessary assurances that the job
offered is in compliance with
employment-related laws.
(3) Where the decision is based on a
finding that the employer has
misrepresented the terms or conditions
of employment specified on job orders
or failed to comply fully with assurances
made on job orders, the State agency
shall specify the basis for that
determination. The employer shall be
notified that all ES services will be
terminated in 20 working days unless
the employer within that time:
(i) Provides adequate evidence that
the terms and conditions of employment
were not misrepresented, or
(ii) Provides adequate evidence that
there was full compliance with the
assurances made on the job orders, or
(iii) Provides resolution of a complaint
which is satisfactory to a complainant
referred by the ES, and
(iv) Provides adequate assurance that
specifications on future orders will
accurately represent the terms and
conditions of employment and that there
will be full compliance with all job
orders assurances.
(4) Where the decision is based on a
finding by an enforcement agency that
the employer violated any employment-
related laws, or where the decision is
based on a finding of a violation of ES
regulations under 658.416(d)(4), the
State agency shall specify the finding.
The employer shall be notified that all
ES services will be terminated in 20
working days unless the employer
within that time:
(i) Provides adequate evidence that
the enforcement agency, State ES
agency, or U.S.E.S. has reversed its
ruling and that the employer did not
violate employment-related laws, or ES
regulations, or
(ii) Provides adequate evidence that
the appropriate fines have been paid
and/or appropriate restitution has been
made, and
(iii) Provides adequate assurances
that any policies, procedures, or
conditions responsible for the violation
have been corrected and the same or
similar violations are not likely to occur
in the future.
(5) Where the decision is based on an
employer's failure to accept qualified
workers referred through the clearance
system, the State agency shall specify
the workers referred and not accepted.
The employer shall be notified that all
ES services will be terminated in 20
working days unless the employer
within that time:
(i) Provides adequate evidence that
the workers were accepted, or
(ii) Provides adequate evidence that
the workers were not available to
accept the job, or
(iii) Provides adequate evidence that
the workers were not qualified, or
(iv) Provides adequate assurances
that qualified workers referred in the
future will be accepted.
(b) Where the decision is based on
repeated initiation of procedures for
discontinuation of services, the
employer shall be notified that services
have been terminated.
658.503 Discontinuation of services.
(a) If the employer does not provide a
satisfactory response in accordance
with 658.602, within 20 working days,
the State agency shall immediately
terminate services to the employer.
(b) The employer shall be notified that
services have been terminated, and that
he/she may request a hearing to
reinstate service eligibility by submitting
a written request for a hearing to the
State Administrator within 20 working
days.
(c) If the employer makes a timely
request of a hearing, the State agency
shall follow procedures set forth at
658.417
(d) If services are discontinued to an
employer subject to Federal Contractor
Job Listing Requirements, the State
agency shall notify the ETA regional
office immediately.
658.504 Reinstatement of services.
Services may be reinstated to an
employer after discontinuation under
658.603, if;
(a)(1) The State is ordered to do so by
a hearing officer; or
(2) The employer provides adequate
evidence that any policies, procedures
or conditions responsible for the
previous discontinuation of services
have been corrected and that the same
or similar difficulties are not likely to
occur in the future, and
(b) The employer provides adequate
evidence that the employer has
responded adequately to any findings of
an enforcement agency, State ES
agency, or U.S.E.S., including restitution
to the complainant and the payment of
any fines, which were the basis of the
discontinuation of services.
Subpart G-Review and Assessment
of State Agency Compliance With
Employment Service Regulations
Authority: Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq.; 5 U.S.C. 301 et
seq.
S658.600 Scope and purpose of subpart.
This subpart sets forth the regulations
governing review and assessment of
State agency compliance with the
Employment Service regulations at 20
CFR Parts 601, 602, 603, 604, 620, 621, 651
through 658 and 29 CFR Part 8.
658.601 State agency responsibility.
(a) Each State agency shall establish
and maintain a self-appraisal system for
employment service operations to
determine success in reaching goals and
to correct deficiencies in performance.
The self-appraisal system shall include
numerical (quantitative) and appraisal
and non-numerical (qualitative)
appraisal.
(1) Numerical (quantitative) appraisal
shall be conducted as follows:
(i) Performance shall be measured
against planned service levels as stated
in the State Program and Budget Plan
(PBP). The State plan shall be consistent
with numerical goals contained in local
office plans.
(ii) At a minimum,-the following
numerical activities/indicators shall be
appraised at least quarterly for activities
funded under Title III.
(A) Placements, both individuals
placed and transactions;
(B) Employment counseling, both
individuals counseled'and counseling
interviews;
(C) Services to special applicant
groups;
(D) Job openings received; and
(E) Productivity per total ES staff
years worked.
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Federal Register / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
(iii) To appraise these key numerical
. activities/indicators, actual results as
shown on the Employment Security
Automated Reporting System (ESARS)
tables and Cost Accounting Reports
shall be compared to planned levels.
Variances between achievement and
plan shall be identified.
(iv) When the numerical appraisal of
required activities/indicators identifies
significant variances from planned
levels, additionaldata analysis shall be
conducted to isolate possible
contributing factors. This data analysis
shall include, as appropriate,
comparsions to past performance,
productivity measures, and attainment
of PBP operational objectives.
(v) Results of local office numerical
reviews shall be documented and
deficiencies identified. A corrective
action plan as described at
658.601(a)(5) shall be developed.
(vi) The result of local office
appraisal, including corrective action
plans, shall be communicated in writing
to the next higher level of authority for
review. This review shall cover
adequacy of data analysis,
appropriateness of corrective actions,
and need for higher level involvement.
When this review is conducted at an
area or district office, a report
describing local office performance
within the area or district jurisdiction
shall be communicated to the central
office on a quarterly basis.
(vii) The central office shall review
Statewide data, including those
activities listed in paragraph (a)(1)(ii) of
this section, on at least a quarterly basis
to determine the need for additional
analysis, including identification of
trends, Statewide corrective measures,
or changes in State agency procedures.
(2) Nonnumerical (qualitative)
appraisal of local office employment
service Title III activities shall be
conducted at least annually as follows:
(i) Each local office shall assess the
quality of its services to applicants,
employers, and the community and its
compliance with Federal regulations.
(ii) At a minimum, nonnumerical
review shall include an assessment of
the following factors;
(A) Appropriateness of services
provided to applicants Ind employers;
(B) Timely delivery of services to
applicants and employers;
(C) Staff sensitivity to individual
applicant and employer needs;
(D) Thoroughness and accuracy of
documents prepared in the course of
service delivery; and
(E) Effectiveness of ES interface with
external organizations, i.e., other ETA
funded programs, community groups,
etc.
(iii) Nonnumerical review methods
shall include:
(A) Observation of processes;
(B) Review of documents used in
service provision; and
(C) Solicitation of input from
applicants, employers, and the
community.
(iv) The result of nonnumerical
reviews shall be documented and
deficiencies identified. A corrective
action plan that addresses these
deficiencies as described at
658.601(a)(5) shall be developed.
(v) The result of local office
nonnumerical appraisal, including
corrective actions, shall be
communicated in writing to the next
higher level of authority for review. This
review shall cover thoroughness and
adequacy of local office appraisal,
appropriateness of corrective actions,
and need for higher level involvement.
When this review is conducted at an
area or district level, a report
summarizing local office performance
within that jurisdiction shall be
communicated to the central office on
an annual basis.
(3) The central office is responsible for
conducting onsite reviews in those local
offices which show continuing internal
problems or deficiencies in performance
as indicated by such sources as data
analysis or public complaints.
(4) Nonnumerical (qualitative) review
of central office employment service
activities shall be conducted as follows:
(i) Central office operations shall be
assessed annually to determine
compliance with Federal regulations and
to assess progress made on goals
established for central office staff.
(ii) Results of nonnumerical reviews
shall be documented and deficiencies
identified. A corrective action plan that
addresses these deficiencies shall be
developed.
(5) Corrective action plans developed
to address deficiencies uncovered at
any administrative level within the State
as a result of the self-appraisal process
shall include:
(i) Specific descriptions of the type of
action to be taken, the time frames
involved and the assignment of
responsibility.
(ii) Provision for the delivery of
technical assistance as needed.
(iii) A plan to conduct follow-up on a
timely basis to determine if action taken
to correct the deficiencies has been
effective.
(6) The provisions of ES regulations
which require numerical and non-
numerical assessment of service to
special applicant groups, e.g., services to
veterans at 20 CFR 653.221-230 and
services to MSFWs at 20 CFR 653.108,
are supplementary to the provisions of
this section.
658.602 ETA national office
responsibility.
The ETA national office shall: (a)
Monitor ETA regional offices' carrying
out of ES regulations;
(b) From time to time, conduct such
special reviews and audits as necessary
to monitor ETA regional office and State
agency compliance with ES regulations;
(c) Offer technical assistance to the
ETA regional offices and State agencies
in carrying out ES regulations and
programs;
(d) Have reports validation surveys
conducted in support of resource
allocations;
S(e) Develop tools and techniques for
reviewing and assessing State agency
performance and compliance with ES
regulations.
(f) ETA shall appoint a National
MSFW Monitor Advocate, who shall
devote full time to the duties set forth in
this subpart. The National MSFW
Monitor Advocate shall (i) review the
effective functioning of the Regional and
State MSFW Monitor Advocates; (ii)
review the performance of state
agencies in providing the full range of
ES services to MSFWs; (iii) take steps to
resolve or refer ES-related problems of
MSFWs which come to his/her
attention; (iv) take steps to refer non ES-
related problems of MSFWs which come
to his/her attention; and (v) recommend
to the Administrator changes in policy
toward MSFWs. The National MSFW
Monitor Advocate shall be a member of
the National Farm Labor Coordinated
Enforcement Staff Level Working
Committee.
(1) The National MSFW Monitor
Advocate shall be appointed by the
Administrator after informing
farmworker organizations and other
organizations with expertise concerning
MSFWs of the opening and encouraging
them to refer qualified applicants to
apply through the federal merit system.
Among qualified candidates, determined
through merit systems procedures,
individuals shall be sought who meet
the criteria used in the selection of the
State MSFW Monitor Advocates, as
provided in 653.108(b).
(2) The National MSFW Monitor
Advocate shall be assigned staff
necessary to fulfill effectively all the
responsibilities set forth in this subpart.
(3) The National MSFW Monitor
Advocate shall submit an annual report
("Annual Report") to the Administrator,
the ETA Assistant Secretary, and the
National Farm Labor Coordinated
Enforcement Committee covering the
matters set forth in this subpart.
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Federal Resister / Vol. 45, No. 8 / Friday, January 11, 1980 / Proposed Rules
(4) The National MSFW Monitor
Advocate shall monitor and assess State
agency compliance with ES regulations
on a continuing basis. His/her
assessment shall consider (i)
information from Regional and State
MSFW Monitor Advocates; (ii) program
performance data, including the service
indicators; (iii) periodic reports from
regional offices; (iv) all federal on-site
reviews; (v) selected State on-site
reviews; (vi) other relevant reports
prepared by USES; (vii) information
received from farmworker organizations
and employers; and (viii) his/her
personal observations from visits to
State ES offices, agricultural work sites
and migrant camps. In the Annual
Report, the National MSFW Monitor
Advocate shall include both a
quantitative and qualitative analysis of
his/her findings and the implementation
of his/her recommendations by State
and federal officials, and shall address
the information obtained from all of the
foregoing sources.
(5) The National MSFW Monitor
Advocate shall review the activities of
the State/federal monitoring system as
it applies to services to MSFWs and the
ES complaint system including the
effectiveness of the regional monitoring
function in each region and shall
recommend any appropriate changes in
the operation of the system. The
National MSFW Monitor Advocate's
findings and recommendations shall be
fully set forth in the Annual Report.
(6) If the National MSFW Monitor
Advocate finds that the effectiveness of
any Regional MSFW Monitor Advocate
has been substantially impeded by the
Regional Administrator or other
Regional Office official, he/she shall, if
unable to resolve such problems
Informally, report and recommend
appropriate actions directly to the
Administrator. If the National MSFW
Monitor Advocate receives information
that the effectiveness of any State
MSFW Monitor Advocate has been
substantially impeded by the State
Administrator or other State or federal
ES official, he/she shall, in the absence
of a satisfactory informal resolution at
the regional level, report and
recommend appropriate actions directly
to the Administrator.
(7) The National MSFW Monitor
Advocate shall be informed of all
proposed changes in policy and practice
within USES, including ES regulations,
which may affect the delivery of
services of MSFWs. The National
MSFW Monitor Advocate shall advise
the Administrator concerning all such
proposed changes which may adversely
affect MSFWs. The National MSFW
Monitor Advocate shall propose directly
to the Administrator changes in ES
policy and administration which may
substantially improve the delivery of
services to MSFWs. He/she shall also
recommend changes in the funding of
state agencies and/or adjustment or
reallocation of the discretionary
portions of funding formulae.
(8) The National MSFW Monitor
Advocate shall participate in the review
and assessment activities required at
658.602 and 658.700 et seq. As part of
such participation, the National MSFW
Monitor Advocate, or if he/she is unable
to participate a Regional MSFW Monitor
Advocate, shall accompany the National
Office review team on National Office
on-site reviews. The National MSFW
Monitor Advocate shall engage in the
following activities in the course of each
State on-site review:
(1) He/she shall accompany selected
outreach workers on their field visits.
(ii) He/she shall participate in a
random field checks] of migrant camps
or work sites] where MSFWs have been
placed on inter or intra state clearance
orders.
(iii) He/she shall contact local CETA
303 groups or other farmworker
organizations as part of the on-site
review, and, conduct an interview with
representatives of the organizations.
(iv) He/she shall meet with the State
MSFW Monitor Advocate and discuss
the full range of the ES services to
MSFWs including the monitoring and
complaint systems.
(9) In addition to the duties specified
in 658.602(f)(8), the National MSFW
Monitor Advcoate each year during the
harvest season shall visit the four states
with the highest level of MSFW activity
during the prior fiscal year, if they are
not scheduled for a National Office on-
site review during the current fiscal
year, and shall; (i) meet with the State
MSFW Monitor Advocate and other
central office staff to discuss MSFW
service delivery, and (ii) contact
representatives of MSFW organizations
to obtain information concerning ES
service delivery and coordination with
other agencies.
(10) The National MSFW Monitor
Advocate shall perform the duties
specified in Section 658.700. As part of
this function, he/she shall monitor the
performance of regional offices in
imposing corrective action. The National
MSFW Monitor Advocate shall report
any deficiencies in performance to the
Administrator.
(11) The National MSFW Monitor
Advocate shall establish routine and
regular contacts with CETA 303 groups,
other farmworker organizations and
agricultural employers and/or employer
organizations. He/she shall attend
conferences or meetings of these groups
wherever possible and shall report to
the Administrator and the National
Farm Labor Coordinated Enforcement
Committee on these contacts when
appropriate. The National MSFW
Monitor Advocate shall include in the
Annual Report recommendations as to
how DOL might better coordinate ES
and CETA 303 services as they pertain
to MSFWs.
(12) In the event that any State or
Regional MSFW Monitor Advocate,
enforcement agency, or MSFW group
refers a matter to the National MSFW
Monitor Advocate which requires
emergency action, he/she shall assist
them in obtaining action by appropriate
agencies and staff, inform the
originating party of the action taken,
and, upon request, provide written
confirmation.
(13) Through all the mechanisms
provided in this subpart, the National
MSFW Monitor Advocate shall
aggressively seek to ascertain and
remedy, if possible; systemic
deficiencies in the provisions of ES
services and protections afforded by
these regulations to MSFWs. The
National MSFW Monitor Advocate
shall:
(i) Use the regular reports on
complaints submitted by State agencies
and ETA regional offices to assess the
adequacy of these systems and to
determine the existence of systemic
deficiencies.
(ii) Provide technical assistance to
ETA regional office and State agency
staffs for administering the ES complaint
system.
- (iii) Recommend to the Administrator
specific instructions for action by
regional office staff to correct any ES-
related systemic deficiencies. Prior to
any ETA review of regional office
operations concerning ES services to
MSFWs, the National MSFW Monitor
Advocate shall provide to the
Administrator a brief summary of ES-
related services to MSFWs in that
region and his/her recommendations for
incorporation in the regional review
materials, as the Administrator and ETA
reviewing organization deem
appropriate. .
(iv) Recommend to the National Farm
Labor Coordinated Enforcement
Committee specific instructions for
action by ESA and OSHA regional
office staff to correct any non-ES-related
systemic deficiencies of which he/she is
aware.
2-518 -
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658.603 ETA regional office
responsibility.
(a) The Regional Administrator shall
have responsibility for the regular
review and assessment of State agency
performance and compliance with ES
regulations.
(b) The Regional Administrator shall
review and approve annual program
budget plans for the State agencies
within the region. In reviewing the
program budget plans the Regional
Administrator shall consider relevant
factors including the following:
(1) State agency compliance with ES
regulations;
(2) State agency performance against
the goals and objectives established in
the previous year's program budget plan;
(3) The effect which economic
conditions and other external factors
considered by the ETA in the resource
allocation process may have had or are
expected to have on State agency
performance;
(4) State agency adherence to national
program emphasis; and
(5) The adequacy and appropriateness
of the program budget plan for carrying
out ES programs.
(c) The Regional Administrator shall
assess the overall performance of State
agencies on an ongoing basis through
desk reviews and the use of required
reporting systems and other available
information.
(d) As appropriate, Regional
Administrators shall conduct or have
conducted:
(1) Comprehensive on-site reviews of
State agencies and their offices to
review State agency organization,
management, and program operations;
(2) Periodic performance reviews of
State agency operation of ES programs
to measure actual performance against
the program budget plan, past
performance, the performance of other
State agencies, etc.;
(3) Audits of State agency programs to
review State agency program activity
and to assess whether the expenditure
of grant funds has been in accordance
with the approved budget. Regional
Administrators may also conduct audits
through other agencies or organizations
or may require the State agency to have
audits conducted;
(4) Validations of data entered into
management information systems to
assess;
(i) The accuracy of data entered by
the State agencies into management
information system;
(ii) Whether the State agencies' data
validating and reviewing procedures
conform to ETA instructions; and
(iii) Whether State agencies have
implemented any corrective action plans
required by the ETA to remedy
deficiencies in their validation
programs;
(5) Technical assistance programs to
assist State agencies in carrying out ES
regulations and programs; and
(6) Reviews to assess whether the
State agency has complied with
corrective action plans imposed by the
ETA or by the State agency itself.
(7) Random, unannounced field
checks of a sample of agricultural work
sites to which ES placements have been
made through the clearance system to
determine and document whether
wages, hours, working and housing
conditions are as specified on the job
order. If regional office staff find reason
to believe that conditions vary from job
order specifications, findings should be
documented on the ES Complaint
Referral Form and provided to the State
agency to be handled as a complaint
under 658.411(b).
(e) The Regional Administrator shall
provide technical assistance to State
agencies to assist them is carrying out
ES regulations and programs.
(f) The Regional Administrator shall
appoint a Regional MSFW Monitor
Advocate who shall devote full time to
the duties set forth in this subpart. The
Regional MSFW Monitor Advocate shall
(i) review the effective functioning of the
State MSFW Monitor Advocates in his/
her region; (ii) review the performance
of State agencies in providing the full
range of ES services to MSFWs; (iii)
take steps to resolve ES-related
problems of MSFWs which come to his/
her attention; (iv) recommend to the
Regional Administrator changes in
policy towards MSFWs; and (v) review
the operation of the ES complaint
system. The Regional MSFW Monitor
Advocate shall be a member of the
Regional Farm Labor Coordinated
Enforcement Committee.
(1) The Regional MSFW Monitor
Advocate shall be appointed by the
Regional Administrator after informing
farmworker organizations and other
organizations in the region with
expertise concerning MSFWs of the
opening and encouraging them to refer
qualified applicants to apply through the
federal merit system. The Regional
MSFW Monitor Advocate shall have
direct personal access to the Regional
Administrator wherever he/she finds it
necessary. Among qualified candidates,
individuals shall be sought who meet
the criteria used in the selection of the
State MSFW Monitor Advocates, as
provided in I 653.108(b).
(2) The Regional Administrator shall
ensure that staff necessary to fulfill
effectively all the regional office
responsibilities set forth in this
subsection are assigned. The Regional
MSFW Monitor Advocate shall notify
the Regional Administrator of any
staffing deficiencies and the Regional
Administrator shall take appropriate
action.
(3) The Regional MSFW Monitor
Advocates within the first three months
of their tenure shall participate in a
training sessions) approved by the
National office.
(4) At the regional level, the Regional
MSFW Monitor Advocate shall have
primary responsibility for (i) monitoring
the effectiveness of the ES complaint
system set forth at Subpart E of this
Part; (ii) apprising appropriate State and
ETA officials of deficiencies in the
complaint system; and (iii) providing
technical assistance to State MSFW
Monitor Advocates in the region.
(5) At the ETA regional level, the
Regional MSFW Monitor Advocate shall
have primary responsibility for ensuring
that state agency compliance with ES
regulations as they pertain to services to
MSFWs is monitored by the regional
office. He/she shall independently
assess on a continuing basis the
provision of ES services to MSFWs,
seeking out and using: (i) information
from State MSFW Monitor Advocates,
including all reports and other
documents; (ii) program performance
data; (iii) the periodic and other required
reports from State ES offices; (iv) federal
on-site reviews; (vi) other reports
prepared by the National Office; (vii)
information received from farmworker
organizations and employers; and (viii)
any other pertinent information which
comes to his/her attention from any
possible source. In addition, the
Regional MSFW Monitor Advocate shall
consider his/her personal observations
from visits to ES offices, agricultural
work sites and migrant camps. The
Regional MSFW Monitor Advocate shall
assist the Regional Administrator and
other appropriate line officials in
applying appropriate corrective and
remedial actions to State agencies.
(6) The Regional Administrator's
quarterly report to the National Office
shall include the Regional MSFW
Monitor Advocate's summary of his/her
independent assessment as required in
658.603(f)(5). The fourth quarter
summary shall include an annual
summary from the region. The summary
also shall include both a quantitative,
and a qualitative analysis of his/her
reviews and shall address all the
matters with respect to which he/she
has responsibilities under these
regulations.
(7) The Regional MSFW Monitor
Advocate shall review the activities and
performance of the State MSFW
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Monitor Advocates and the State
monitoring system in the region, and
shall recommend any.appropriate
changes in the operation of the system
to the Regional Administrator. The
Regional MSFW Monitor Advocate's
review shall include a determination
whether the State MSFW Monitor
Advocate (1) does not have adequate
access to information, (2) is being
impeded in fulfilling his/her duties, or
(3) is making recommendations which
are being consistently ignored by State
agency officials. If the Regional MSFW
Monitor Advocate believes that the
effectiveness of any State MSFW
Monitor Advocate has been
substantially impeded by the State
Administrator, other State office
officials, or any federal officials, he/she
shall report and recommend appropriate
actions to the Regional Administrator.
Information copies of the
recommendations shall be provided the
National MSFW Monitor Advocate.
(8) The Regional MSFW Monitor
Advocate shall be informed of all
proposed changes in policy and practice
within USES, including ES regulations,
which may affect the delivery of
services to MSFWs. He/she shall advise
the Regional Administrator on all such
proposed changes which, in his/her
opinion, may adversely affect MSFWs
or which may substantially improve the
delivery of services to MSFWs. The
Regional MSFW Monitor Advocate may
also recommend changes in ES policy or
regulations, as well as changes in the
funding of State agencies and/or
adjustment or reallocation of the
discretionary portions of funding
formulae as they pertain to MSFWs.
(9) The Regional MSFW Monitor
Advocate shall participate in the review
and assessment activities required at
S 658.603 and 658.700 et seq. He/she,
an Assistant, or another Regional
MSFW Monitor Advocate, shall
participate in national office and
regional office on-site statewide reviews
of ES services to MSFWs in states in the
region. The Regional MSFW Monitor
Advocate shall engage in the following
activities in the course of participating
in an on-site State agency review: (i) he/
she shall accompany selected outreach
workers on their field visits; (ii) he/she
shall participate in a random field check
of migrant camps or work sites where
MSFWs have been placed on inter or
intrastate clearance orders; (iii) he/she
shall contact local CETA 303 groups or
other farmworker organizations as part
of the on-site review, and shall conduct
interviews with representatives of the
organizations; and (iv) he/she shall meet
with the State MSFW Monitor Advocate
and discuss the full range of the ES
services to MSFWs, including the
monitoring and complaint systems.
(10) Duringthe calendar quarter
preceding the time of peak MSFW
activity in each State, the Regional
MSFW Monitor Advocate shall meet
with the State MSFW Monitor Advocate
and shall review in detail the State
agency's capability for providing full
services to MSFWs as required by ES
regulations, during the upcoming harvest
season. The Regional MSFW Monitor
Advocate shall offer technical
assistance and recommend to the State
agency and/or the Regional
Administrator any changes in State
policy or practice that he/she finds
necessary.
(11) The Regional MSFW Monitor
Advocate each year during the peak
harvest season shall visit each state in
the region not scheduled for an onsite
review during that fiscal year and shall:
(i) meet with the State MSFW Monitor
Advocate and other central office staff
to discuss MSFW service delivery, and
(ii) contact representatives of MSFW
organizations to obtain information
concerning ES service delivery and
coordination with other agencies.
(12) The Regional MSFW Monitor
Advocate shall initiate and maintain
regular and personal contacts, including
informal contacts in addition to those
specifically required by these
regulations, with State MSFW Monitor
Advocate in the region. In addition, the
Regional MSFW Monitor Advocate shall
have personal and regular contact with
the National MSFW Monitor Advocate.
The Regional MSFW Monitor Advocate
shall also establish routine and regular
contacts with CETA 303 groups, other
farmworker organizations and
agricultural employers and/or employer
organizations in his/her region. He/she
shall attend conferences or meetings of
these groups wherever possible and
shall report to the Regional
Administrator and the Regional Farm
Labor Coordinated Enforcement
Committee on these contacts when
appropriate. He/she shall also make
recommendations as to how DOL might
better coordinate ES and CETA 303
services to MSFWs,
(13) The Regional MSFW Monitor
Advocate shall attend MSFW-related
public meetings) conducted in the
region, pursuant to 29 CFR 42.20.
Following such meetings or hearings, the
Regional MSFW Monitor Advocate shall
take such steps or make such
recommendations to the Regional
Administrator, as he/she deems
necessary to remedy problems) or
conditions) identified or described
therein.
(14) The Regional MSFW Monitor
Advocate shall attempt to achieve
regional solutions to any problems,
deficiencies or improper practices
concerning services to MSFWs which
are regional in scope. Further, he/she
shall recommend policies, offer
technical assistance or take any other
necessary steps as he/she deems
desirable or appropriate on a regional,
rather than state-by-state basis, to
promote region-wide improvement in ES
services to MSFWs. He/she shall
facilitate region-wide coordination and
communication regarding provision of
ES services to MSFWs among State
MSFW Monitor Advocates. State
Administrators and federal ETA
officials to the greatest extent possible.
In the event that any State or other
Regional MSFW Monitor Advocate,
enforcement agency, or MSFW group
refers a matter to the Regional MSFW
Monitor Advocate which requires
emergency action, he/she shall assist
them in obtaining action by appropriate
agencies and staff, inform the
originating party of the action taken,
and, upon request, provide written
confirmation.
(15) The Regional MSFW Monitor
Advocate shall initiate and maintain
such contacts as he/she deems
necessary with Regional MSFW Monitor
Advocates in other regions to seek to
resolve problems concerning MSFWs
who work, live or travel through the
region. He/she shall recommend to the
Regional Administrator and/or the
National Office inter-regional
cooperation on any particular matter,
problem, or policy with respect to which
inter-regional action is desirable.
(16) The Regional MSFW Monitor
Advocate shall establish regular
contacts with the ESA and OSHA
farmworker specialists in the region
and, to the extent necessary, shall
establish contacts with the staff of other
DOL agencies represented on the
Regional Farm Labor Coordinated
Enforcement Committee. The Regional
MSFW Monitor Advocate shall
coordinate his/her efforts with
specialists in the region to ensure that
the policy specified in 29 CFR 42.20(cX3)
is followed.
(17) The Regional MSFW Monitor
Advocate shall participate in the
regional reviews of State agency
Program Budget Plans, and shall
comment to the Regional Administrator
as to the adequacy of the affirmative
action plans, the outreach plans and
other specific plans included therein.
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658.604 Assessment and evaluation of
program performance data.'
(a) State agencies shall compile
program performance data required by
ETA, including statistical information on
program operations.
(b) The ETA shall use the program
performance data in assessing and
evaluating whether the State agencies
have complied with ES regulations and
their State agency program budget
plans.
(c) In assessing and evaluating
program performance data, the ETA
shall act in accordance with the
following general principles:
(1) The fact that the program
performance data from a State agency,
whether overall or relative to a
particular program activity, indicate
poor program performance does not by
itself constitute a violation of ES
regulations or.of the State agency's
responsibilities under its State agency
program budget plan;
(2) Program performance data,
however, may so strongly indicate that a
State agency's performance is poor that
the data may raise a presumption (prima
facie case) that a State agency is
violating ES regulations or the State
agency program budget plan. A State
agency's failure to meet the operational
objectives set forth in the PBP shall raise
a presumption that the agency is
violating ES regulations and/or its PBP.
In such cases, the ETA shall afford the
State agency an opportunity to rebut the
presumption of a violation pursuant to
the procedures at Subpart H of this Part.
(3) The ETA shall take into account
that certain program performance data
may measure items over which State
agencies have direct or substantial
control while other data may measure
items over which the State agency was
indirect or minimal control.
(i) Generally, for example, a State
agency has direct and substantial
control over the delivery of employment
services such as referrals to jobs, job
development contacts, applicant
counseling, referrals to supportive
services and field checks.
(ii) State agencies, however, have only
indirect control over the outcome of
services. State agencies, for example,
cannot guarantee that an employer will
hire a referred applicant, nor can they
guarantee that the terms and conditions
of employment will be as stated on a job
order.
(iii) Outside forces, moreover, such as
a sudden heavy increase in
unemployment rates, a strike by State
agency employees, or a severe drought
or flood may skew the results measured
by program performance data;
(4) The ETA shall consider a State
agency's failure to keep accurate and
complete program performance data
required by ES regulations as a violation
of the ES regulations.
658.605 Communication of findings to
State agencies.
(a) The Regional Administrator shall
inform State agencies in writing of the
results of review and assessment
activities and, as appropriate, shall
discuss with the State Administrator the
impact or action required by ETA as a
result of review and assessment
activities.
(b) The ETA national office shall
transmit the results of any review and
assessment activities conducted by it to
the Regional Administrator, who shall
send the information to the State
agency.
(c) Whenever the review and
assessment indicates a State agency
violation of ES regulations or its State
agency program budget plan, the
Regional Administrator shall follow the
procedures set forth at Subpart H of this
Part.
(d) Regional Administrators shall
follow-up any corrective action plan
imposed on a State agency under
Subpart H of this Part by further review
and assessment of the State agency
pursuant to this subpart.
Subpart H-Federal Application of
Remedial Action to State Agencies
Authority: Wagner-Peyser Act of 1933, as
amended, 29 U.S.C. 49 et seq.; 5-U.S.C. 301 et
seq.
658.700 Scope and purpose of subpart.
This subpart sets forth the procedures
which ETA shall follow upon either
discovering independently or receiving
from others) information indicating that
State agencies may not be adhering to
ES regulations.
658.701 Statements of policy.
(a) It is the policy of the Employment
and Training Administration (ETA) to
take all necessary action, including the
imposition of the full range of sanctions
set forth in this subpart, to ensure that.
State agencies comply with all
requirements established by ES,
regulations.
(b) It is the policy of ETA to initiate
decertification procedures against State
agencies in instances of serious or
continual violations of ES regulations if
less stringent remedial actions taken in
accordance with this subpart fail to
resolve noncompliance.
(c) It is the policy of the ETA to act on
information concerning alleged
violations by State agencies of the ES
regulations received from any person or
organization.
658.702 Initial action by the Regional
Administrator.
(a) The ETA Regional Administrator
shall be responsible for ensuring that all
State agencies in his/her region are in
compliance with ES regulations.
(b) Wherever a Regional
Administrator discovers or is apprised
of possible State agency violations of ES
regulations by the review and
assessment activities under subpart G of
this part, or through required reports or
written complaints from individuals,
organizations or employers which are
elevated to ETA after the exhaustion of
State agency administrative remedies,
the Regional Administrator shall
conduct an investigation. The Regional
Administrator shall make a
determination within 10 working days
after receipt of the report or other
information whether there is probable
cause to believe that a State agency has
violated ES regulations.
(c) The Regional Administrator shall
accept complaints regarding possible
State agency violations of ES
regulations by employee organizations,
employers or other groups, without
exhaustion of the complaint process
described at Subpart E, if the Regional
Administrator determines that the
nature and scope of the complaint are
such that the time required to exhaust
the administrative procedures at the
State level would adversely affect a
significant number of applicants. In such
cases, the Regional Administrator shall
investigate the matter within 10 working
days, may provide the State agency 10
working days for comment, and shall
make a determination within an
additional 10 working days whether
there is probable cause to believe that a
State agency has violated ES
regulations.
(d) If the Regional Administrator
determines that there is no probable
cause to believe that a state agency has
violated ES regulations, he/she shall
retain all reports and supporting
information in ETA files. In! all cases
where the Regional Administrator has
insufficient information to make a
probable cause determination, he/she
shall so notify the Administrator in
writing and the time for the
investigation shall be extended 20
additional working days.
(e) If the Regional Admin strator
determines that there is pr able cause
to believe that a State agen y has
violated ES regulations, he she shall
issue a Notice of Initial Fin ings of
Noncompliance by register d mail to the
offending State agency. Th notice will
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specify the nature of the violation, cite
the regulations involved, and indicate
corrective action which may be imposed
in accordance with paragraphs (g) and
(h) below. If the non-compliance
involves services to MSFWs or the ES
complaint system, a copy of said notice
shall be sent to the National MSFW
Monitor Advocate.
(f)(1) The State agency shall have 20
,working days to comment on the
findings, or a longer period, up to 20
additional working days, if the Regional
Administrator determines that such a
longer period is appropriate. The State
agency's comments shall include
agreement or disagreement with the
findings and suggest corrective actions,
where appropriate.
(2) After the period elapses, the
Regional Administrator shall prepare
within 20 working days, written final
findings which specify whether or not
the State agency has violated ES
regulations. If in the final findings, the
Regional Administrator determines that
the State agency has not violated ES
regulations, the Regional Administrator
shall notify the State and National
MSFW Monitor Advocate of this finding
and retain supporting documents in his/
her files. If the Regional Administrator
determines that a State agency has
violated ES regulations, the Regional
Administrator shall prepare a Final
Notice of Noncompliance which shall
specify the violations) and cite the
regulations involved. The Final Notice of
Noncompliance shall be sent to the
State agency by registered mail. If the
noncompliance involves services to
MSFWs or the ES complaint system, a
copy of the Final Notice shall be sent to
the National MSFW Monitor Advocate.
(g) If the violation involves the
misspending of grant funds, the Regional
Administrator may order in the Final
Notice of Noncompliance a
disallowance of the expenditure and
may either demand repayment or
withhold future funds in the amount in
question. If the Regional Administrator
disallows costs, the Regional .
Administrator shall give the reasons for
the disallowance, inform the State
agency that the disallowance is effective
immediately and that no more funds
may be spent in the unallowed manner,
and offer the State agency the
opportunity to request a hearing
pursuant to section 658.707 of this
subpart. The offer, or the acceptance of
an offer of a hearing, however, shall not
stay the effectiveness of the
disallowance. The Regional
Administrator shall keep complete
records of the disallowance.
(h) If the violation does not involve
mispending or grant funds or the
Regional Administrator determines that
the circumstances warrant other action:
(1) The Final Notice of Noncompliance
shall direct the State agency to
implement a specific corrective action
plan to correct all violations. If the State
agency's comment demonstrates with
supporting evidence (except where
inappropriate) that all violations have
already been corrected, the Regional
Administrator need not impose a
corrective action plan and instead may
cite the violations and accept their
resolution, subject to follow-up review,
if necessary. If the Regional
Administrator determines that the
violations) cited had been found
previously and that the corrective
actions) taken had not corrected the
violations) contrary to the findings of
previous follow-up reviews, the Regional
Administrator shall apply remedial
actions to the State agency pursuant to
section 658.704 of this subpart
(2) The Final Notice of Noncompliance
shall specify the time by which each
corrective action must be taken. This
period shall not exceed 40 working days
unless the Regional Administrator
determines that exceptional
circumstances necessitate corrective
actions requiring a longer time period. In
such cases, and if the violations involve
services to MSFWs or the ES complaint
system, the Regional Administrator shall
notify the Administrator in writing of
the exceptional circumstances which
necessitate a longer time period, and
shall specify that time period. The
specified time period shall commence
with the date of signature on the
registered mail receipt.
(3) When the time period provided for
in subsection (h)(2) above elapses, ETA
staff shall review the State agency's
efforts as documented by the State
agency to determine if the corrective
actions) has been taken and if the State
agency has achieved compliance with
ES regulations. If necessary, ETA staff
shall conduct a follow-up visit as part of
this review.
(4) If, as a result of this review, the
Regional Administrator determines that
the State agency has corrected the
violationss, the Regional Administrator
shall record the basis for this
determination, notify the State agency,
send a copy to the Administrator, and
retain a copy in ETA files.
(5) If, as a result of this review, the
Regional Administrator determines that
the State has taken corrective action but
is unable to determine if the violation
has been corrected due to seasonality or
other factors, the Regional
Administrator shall notify in writing the
State agency and the Administrator of
his/her findings. The Regional
Administrator shall conduct further
follow-up at an appropriate time to
make a final determination if the
violation has been corrected. If the
Regional Administrator's further follow-
up reveals that violations have not been
corrected, the Regional Administrator
shall apply remedial actions to the State
agency pursuant to 658.704 of this
subpart.
(6) If, as a result of the review the
Regional Administrator determines that
the State agency has not corrected the
violations and has not made good faith
efforts and adequate progress toward
the correction of the violations, the
Regional Administrator shall apply
remedial actions to the State agency
pursuant to 658.704 of this subpart.
(7) If, as a result of the review, the
Regional Administrator determines that
the State agency has made good faith
efforts and adequate progress toward
the correction of the violation and it
appears that the violation will be fully
corrected within a reasonable time
period, the State agency shall be
advised by registered mail (with a copy
sent to the Administrator) of this
conclusion, of remaining differences, of
further needed corrective action, and
that all deficiencies must be corrected
within a specified time period. This
period shall not exceed 40 working days
unless the Regional Administrator
determines that exceptional
circumstances necessitates corrective
action requiring a longer time period. In
such cases, the Regional Administrator
shall notify the Administrator in writing
of the exceptional circumstances which
necessitate a longer time period, and
shall specify that time period. The
specified time period shall commence
with the date of signature on the
registered mail receipt.
(8)(i) If the State agency has been
given an additional time period pursuant
to paragraph (b)(7) of this section, ETA
staff shall review the State agency's
efforts as documented by the State
agency at the end of the time period. If
necessary, ETA shall conduct a follow-
up visit as part of this review.
(ii) If the State agency has corrected
the violationss, the Regional
Administrator shall document that
finding, notify in writing the State
agency and the Administrator, and
retain supporting documents in ETA
files. If the State agency has not
corrected the violationss, the Regional
Administrator shall apply remedial
actions pursuant to 658.704 of this
subpart.
658.703 Emergency corrective action.
In critical situations as determined by
the Regional Administrator, where it is
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Federal Register / Vol. 45, No. 8 / Friday, january 11. 1980 / ProDosed Rules
necessary to protect the integrity of the
funds, or insure the proper operation of
the program, the Regional Administrator
may impose immediate corrective
action. Where immediate corrective
action is imposed, the Regional
Administrator shall notify the State
agency of the reason for imposing the
corrective action prior to providing the
State agency an opportunity to
comment.
658.704 Remedial actions.
(a) If a State agency fails to correct
violations as determined pursuant to
section 658.702 of this subpart, the
Regional Administrator shall apply one
or more of the following remedial
actions to the State agency:
(1) Imposition of special reporting
requirements for a specified period of
time;
(2) Restrictions of obligational
authority within one or more expense
classifications;
(3) Implementation of specific
operating systems or procedures for a
specified time;
(4) Requirement of special training for
State agency personnel;
(5) With the approval of the Assistant
Secretary and after affording the State
Administrator the opportunity to request
a conference with the Assistant
Secretary, the elevation of specific
decisionmaking functions from the State
Administrator to the Regional
Administrator;
(6) With the approval of the Assistant
Secretary-and after affording the State
Administrator the opportunity to request
a conference with the Assistant
Secretary, the imposition of Federal staff
in key State agency positions;
(7) With the approval of the Assistant
Secretary and after affording the State
Administrator the opportunity to request
a conference with the Assistant
Secretary, funding of the State agency
on a short-term basis or partial
withholding of funds for a specific
function or for a specific geographical
area;
(8) Holding of public hearings in the
State on the State agency's deficiencies;
(9) Disallowance of funds pursuant to
658.702(g) of this subpart; or
(10) If.the matter involves a serious or
continual violation, the initiation of
decertification procedures against the
State agency, as set forth in subsection
(e) below.
(b) The Regional Administrator shall
send, by registered mail, a Notice of
Remedial Action to the State agency.
The Notice of Remedial Action shall set
forth the reasons for the remedial action.
When such a notice is the result of
violations of regulations governing
services to MSFWs (20 CFR 653.100 et
seq.) or the ES complaint system (20
CFR 658.400 et seq.), a copy of said
notice shall be sent to the
Administrator, who shall publish the
notice promptly in the Federal Register.
(c) If the remedial action is other than
decertification, the notice shall state
that the remedial action shall take effect
immediately. The notice shall also state
that the State agency may request a
.hearing pursuant to 658.707 of this
subpart by filing a request in writing
with the Regional Administrator
pursuant to 658.707 of this subpart
within 20 working days of the State
agency's receipt of the notice. The offer
of hearing, or the acceptance thereof,
however, shall-not stay the
implementation of remedial action.
(d) Within 60 working days after the
initial application of remedial action, the
Regional Administrator shall conduct a
review of the State agency's compliance
with ES regulations unless the Regional
Administrator determines that a longer
time period is necessary. In such cases,
the Regional Administrator shall notify
the Administrator in writing of the
circumstances which necessitate a
longer time period, and specify that time
period. If necessary, ETA staff shall
conduct a follow-up visit as part of this
review. If the State agency is in
compliance with the ES regulations, the
Regional Administrator shall fully
document these facts and shall
terminate the remedial actions. The
Regional Administrator shall notify the
State agency of his/her findings. When
the case involves violations of
regulations governing services to
MSFWs or the ES complaint system, a
copy of said notice shall be sent to the
Administrator, who shall promptly
publish the notice in the Federal
Register. The Regional Administrator
shall conduct, within a reasonable time
after terminating the remedial actions, a
review of the State agency's compliance
to determine whether any remedial
actions should be reapplied.
(e) If, upon conducting the on-site
review referred to in subsection (c)
above, the Regional Administrator finds
that the State agency remains in
noncompliance, the Regional
Administrator shall continue the
remedial action and/or impose different
additional remedial actions. The
Regional Administrator shall fully
document all such decisions and when
the case involves violations of
regulations governing services to
MSFWs or the ES complaint system
shall send copies to the Administrator,
who shall promptly publish the notice in
the Federal Register.
(f)(1) If the State agency has not
brought itself into compliance with ES
regulations within 120 working days of
the initial application of remedial action,
the Regional Administrator shall initiate
decertification unless the Regional
Administrator determines that
circumstances necessitate continuing
remedial action for a longer period of
time. In such cases, the Regional
SAdministrator shall notify the
Administrator in writing of the
circumstances which necessitate the
longer time period, and specify the time
period.
(2) The Regional Administrator shall
notify the State agency by registered
mail of the decertification proceedings,
and shall state the reasons therefore.
Whenever such a notice is sent to a
State agency, the Regional
Administrator shall prepare five
indexed copies containing, in
chronological order, all the documents
pertinent to the case along with a
request for decertification stating the
grounds therefore. One copy shall be
retained. Two shall be sent to the ETA
national office, one shall be sent to the
Solicitor of Labor, Attention: Associate,
Solicitor for Employment and Training,
and, if the case involves violations of
regulations governing services to
MSFWs or the complaint system, one
copy shall be sent to the National
MSFW Monitor Advocate. The notice
sent by the Regional Adminsistrator
shall be published promptly in the
Federal Register.
658.705 Decision to decertify.
(a) Within 30 working days of
receiving a request for decertification,
the Assistant Secretary for ETA shall
review the case and shall decide
whether to proceed with decertification.
(b) The Assistant Secretary shall grant
the request for decertification unless he/
she makes a finding that (i) the
violations of ES regulations are neither
serious nor continual; (ii) the State
agency is in compliance; or (iii) the
Assistant Secretary has reason to
believe that the State agency will
achieve compliance within 80 working
days unless exceptional circumstances
necessitate a longer time period,
pursuant to the remedial action already.
applied or to be applied. (In the event
the Assistant Secretary does not have
sufficient information to act upon the
request, he/she may postpone the
determination for up to an additional 20
working days in order to obtain any
available additional information.) In
making a determination of whether
violations are "serious" or "continual,"
as required by this subsection, the
Assistant Secretary shall consider:
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(i) Statewide or multiple deficiencies
as shown by performance data and/or
on-site reviews;
(ii) Recurrent violations, even if they
do not persist over consecutive reporting
periods; and
(iii) The good faith efforts of the State
agency to achieve full compliance with
ES regulations as shown by the record.
(c) If the Assistant Secretary denies a
request for decertification, he/she shall
write a complete report documenting
his/her findings and, if appropriate,
instructing that an alternate remedial
action or actions be applied. Copies of
the report shall be sent to the Regional
Administrator. Notice of the Assistant
Secretary's decision shall be published
promptly in the Federal Register, and the
report of the Assistant Secretary shall
be made available for public inspection
and copying.
(d) If the Assistant Secretary decides
that decertification is appropriate, he/
she shall submit the case to the
Secretary providing written explanation
for his/her recommendation of
decertification.
(e) Within 30 working days after
receiving the report of the Assistant
Secretary, the Secretary shall determine
whether to decertify the State agency.
The Secretary shall grant the request for
decertification unless he/she makes one
of the three findings set forth in
658.705(b). If the Secretary decides not
to decertify, he/she shall then instruct
that remedial action be continued or
that alternate actions be applied. The
Secretary shall write a report explaining
his/her reasons for not decertifying the
State agency and copies will be sent to
the State agency. Notice of the
Secretary's decision shall be published
promptly in the Federal Register, and the
report of the Secretary shall be made
available for public inspection and
copying.
(f) Where either the Assistant
Secretary or the Secretary denies a
request for decertification, and orders
further remedial action, the Regional
Administrator shall continue to monitor
the State agency's compliance. If the
agency achieves compliance within the
'time period established pursuant to
658.705(b), the Regional Administrator
shall terminate the remedial actions. If
the State agency fails to achieve full
compliance within that time period after
the Secretary's decision not to decertify,
the Regional Administrator shall submit
a report of his/her findings to the
Assistant Secretary who shall
reconsider the request for decertification
pursuant to the requirements of
658.705(b).
658.706 Notice of decertification.
If the Secretary decides to decertify a
State agency, he/she shall sent a Notice
of decertification to the State agency
stating the reasons for which this action
and providing a 10 working day period
during which the State agency may
request an administrative hearing in
writing to the Secretary. The notice shall
be published promptly in the Federal
Register.
658.707 Requests for hearings.
(a) Any State agency which receives a
Notice of Decertification under 658.706
of this subpart or notice of disallowance
under 658.706 of this subpart may
request a hearing on the issue by filing a
written request for hearing with the
Secretary within 10 working days of
receipt of the notice. This request shall
state the reasons the State agency
believes the basis of the decision to be
wrong and, it must be signed by the
State Administrator.
(b) When the Secretary receives a
request for a hearing from a State
agency, he/she shall send copies of a
file containing all materials and
correspondence relevant to the case to
the Assistant Secretary, the Regional
Administrator, the Solicitor of Labor,
and the Chief Administrative Law Judge
of the DOL. When the case involves
violations of regulations governing
services to MSFWs or the ES complaint
system, a copy shall be sent to the
National MSFW Monitor Advocate.
(c) The Secretary shall publish notice
of the hearing in the Federal Register.
This notice shall invite all interested
parties to attend and to present
evidence at the hearing. All interested
parties who make written request to
participate shall thereafter receive
copies of all documents filed in said
proceedings.
658.708 Hearings.
(a) Upon receipt of a hearing file by
the Chief Administrative Law Judge, the
case shall be docketed and notice sent
by registered mail, return receipt
requested, to the Solicitor of Labor,
Attention: Associate Solicitor for
Employment and Training, the
Administrator, the Regional
Administrator and the State
Administrator. The notice shall set a
time, place, and date for a hearing on
the matter and shall advise the parties
that:
(1) They may be represented at the
hearing:
(2) They may present oral and
documentary evidence at the hearing;
(3) They may cross-examine opposing
witnesses at the hearing; and
(4) They may request rescheduling of
the hearing if the time, place, or date set
are inconvenient.
(b) The Solicitor of Labor or the
Solicitor's designee shall represent the
Department at the hearing.
S658.709 Conduct of hearings.
(a) Hearings shall be conducted in
accordance with Sections 5-8 of the
Administrative Procedure Act, 5 U.S.C.
533 et seq.
(b) Technical rules of evidence shall
not apply, but rules or principles
designed to assure production of the
most credible evidence available and to
subject testimony to test by cross-
examination, shall be applied if
necessary by the Administrative Law
Judge conducting the hearing. The
Administrative Law Judge may exclude
irrelevant, immaterial or unduly
repetitious evidence. All documents and
other evidence offered or taken for the
record shall be open to examination by
the parties. Opportunity shall be given
to refute facts and arguments advanced
on either side of the issue. A transcript
shall be made of the oral evidence
except to the extent the substance
thereof is stipulated for the record.
(c) The general provisions governing
discovery as provided in the Rules of
Civil Procedure for the United States
District Court, Title V, 28 U.S.C., Rules
26 through 37, may be made applicable
to the extent that the Administrative
Law Judge concludes that their use
would promote the proper advancement
of the hearing.
(d) When a public officer is a
respondent in a hearing in an official
capacity and during its pendency dies,
resigns, or otherwise ceases to hold
office, the proceeding does not abate
and the officer's successor is
,automatically substituted as a party.
Proceedings following the substitution
shall be in the name of the substituted
party, but any misnomer not affecting
the substantive rights of the parties shall
be disregarded. An order of substitution
may be entered at any time, but the
omission to enter such an order shall not
affect the substitution.
658.710 Decision of the Administrative
Law Judge.
(a) The Administrative Law Judge
shall have jurisdiction to decide all
issues of fact and related issues of law
and to grant or deny appropriate
motions, but shall not have jurisdiction
to decide upon the validity of Federal
statutes or regulations.
(b) The decision of the Administrative
Law Judge shall be based on the hearing
record, shall be in writing and shall
state the factual and legal basis of the
.
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decision. Notice of the decision shall be
published in the Federal Register and
the Administrative Law Judge's Decision
shall be available for public inspection
and copying.
(c) Except when the case involves the
decertification of a State agency, the
decision of the Administrative Law
Judge shall be the final decision of the
Secretary.
(d) If the case involves the
decertification of the State agency, the
decision of the Administrative Law
Judge shall contain a notice stating that,
within 30 calendar days of the decision,
the State agency or the Administrator
may appeal to the Secretary by sending
by registered mail, return receipt
requested, a written appeal to the
Secretary, case of the Administrative
Law Judge who made the decision.
658.711 Decision of the Secretary.
(a) Upon the receipt of an appeal to
the Secretary, the Administrative Law
Judge shall certify the record in the case
to the Secretary, who shall make a
decision to decertify or not on the basis
of the hearing record.
(b) The decision of the Secretary shall
be final, shall be in writing, and shall set
forth the factual and legal basis for the
decision. Notice of the Secretary's
decision shall be published in the
Federal Register, and copies shall be
made available for public inspection
and copying.
Signed at Washington, D.C. this 4th day of
January, 1980.
Ernest G. Green,
Assistant Secretary for Employment and
Training.
[FR Doc. 80-736 Filed 1-10-80; 8:45 am]
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