section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text 20:20:4.0.1.1.2.2.3.1,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.400 Purpose and scope of subpart.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82731, Nov. 24, 2023]","(a) This subpart sets forth the regulations governing the Complaint System for the Wagner-Peyser Act Employment Service (ES) at the State and Federal levels. Specifically, the Complaint System processes complaints against an employer about the specific job to which the applicant was referred through the ES and complaints involving the failure to comply with the ES regulations under parts 651, 652, 653, and 654 of this chapter and this part. As noted in § 658.411(d)(6), this subpart only covers ES-related complaints made within 2 years of the alleged violation. (b) Any complaints alleging violations under the Unemployment Insurance program, under Workforce Innovation and Opportunity Act (WIOA) title I programs, or complaints by veterans alleging employer violations of the mandatory listing requirements under 38 U.S.C. 4212 are not covered by this subpart and must be referred to the appropriate administering agency which would follow the procedures set forth in the respective regulations. (c) The Complaint System also accepts, refers, and, under certain circumstances, tracks complaints involving employment-related laws as defined in § 651.10 of this chapter. (d) A complainant may designate an individual to act as their representative." 20:20:4.0.1.1.2.2.3.2,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.410 Establishment of local and State complaint systems.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 628, Jan. 6, 2020; 88 FR 82731, Nov. 24, 2023]","(a) Each State Workforce Agency (SWA) must establish and maintain a Complaint System pursuant to this subpart. (b) The State Administrator must have overall responsibility for the operation of the Complaint System; this includes responsibility for the informal resolution of complaints. In the ES office, the ES Office Manager is responsible for the operation of the Complaint System. (c) SWAs must ensure centralized control procedures are established for the processing of complaints and apparent violations. The ES Office Manager and the State Administrator must ensure a central complaint log is maintained, listing all complaints taken by the ES office or the SWA and apparent violations identified by ES staff, and specifying for each complaint or apparent violation: (1) The name of the complainant (for complaints); (2) The name of the respondent (employer or State agency); (3) The date the complaint is filed or the apparent violation was identified; (4) Whether the complaint is made by or on behalf of a migrant and seasonal farmworker (MSFW) or whether the apparent violation affects an MSFW; (5) Whether the complaint or apparent violation concerns an employment-related law or the ES regulations; and (6) The actions taken (including any documents the SWA sent or received and the date the SWA took such action(s)), and whether the complaint or apparent violation has been resolved, including informally. (d) State agencies must ensure information pertaining to the use of the Complaint System is publicized, which must include, but is not limited to, the prominent display of an Employment and Training Administration (ETA)-approved Complaint System poster in each one-stop center. (e) Each one-stop center must ensure there is appropriate staff available during regular office hours to take complaints. (f) Complaints may be accepted in any one-stop center, or by a SWA, or elsewhere by outreach staff. (g) All complaints filed through the ES office must be processed by a trained Complaint System Representative. (h) All complaints received by a SWA must be assigned to a trained Complaint System Representative designated by the State Administrator. Complaints must not be assigned to the State Monitor Advocate (SMA). (i) State agencies must ensure any action taken by the Complaint System Representative, including referral on a complaint from an MSFW, is fully documented and contains all relevant information, including a notation of the type of each complaint pursuant to Department guidance, a copy of the original complaint form, a copy of any ES-related reports, any relevant correspondence, a list of actions taken, a record of pertinent telephone calls, and all correspondence relating thereto. (j) Within 1 month after the end of the calendar quarter, the ES office manager must transmit an electronic copy of the quarterly Complaint System log described in paragraph (c) of this section to the SMA. These logs must be made available to the Department upon request. (k) The appropriate ES staff processing a complaint must offer to assist the complainant through the provision of appropriate services. (l) The State Administrator must establish a referral system for cases where a complaint is filed alleging a violation that occurred in the same State but through a different ES office. (m) Follow-up on unresolved complaints. When an MSFW submits a complaint, the Complaint System Representative must follow up monthly on the processing of the complaint and must inform the complainant of the status of the complaint. No follow-up with the complainant is required for non-MSFW complaints. (n) A complainant may designate an individual to act as their representative throughout the filing and processing of a complaint." 20:20:4.0.1.1.2.2.3.3,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.411 Action on complaints.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88 FR 82731, Nov. 24, 2023]","(a) Filing complaints. (1) Whenever an individual indicates an interest in filing a complaint under this subpart with an ES office, the SWA, or outreach staff, the individual receiving the complaint must offer to explain the operation of the Complaint System and must offer to take the complaint in writing. (2) During the initial discussion with the complainant, the staff taking the complaint must: (i) Make every effort to obtain all the information they perceive to be necessary to investigate the complaint; (ii) Request that the complainant indicate all of the physical addresses, email addresses, telephone numbers, and any other helpful means by which they might be contacted during the investigation of the complaint; and (iii) Request that the complainant contact the Complaint System Representative before leaving the area if possible, and explain the need to maintain contact during the investigation. (3) The staff must ensure the complainant (or their representative) submits the complaint on the Complaint/Referral Form or another complaint form prescribed or approved by the Department or submits complaint information which satisfies paragraph (a)(4) of this section. The Complaint/Referral Form must be used for all complaints, including complaints about unlawful discrimination, except as provided in paragraph (a)(4) of this section. The staff must offer to assist the complainant in filling out the form and submitting all necessary information and must do so if the complainant desires such assistance. If the complainant also represents several other complainants, all such complainants must be named. The complainant, or their representative, must sign the completed form in writing or electronically. The identity of the complainant(s) and any persons who furnish information relating to, or assisting in, an investigation of a complaint must be kept confidential to the maximum extent possible, consistent with applicable law and a fair determination of the complaint. A copy of the completed complaint submission must be given to the complainant(s), and the complaint form must be given to the appropriate Complaint System Representative described in § 658.410(g). (4) Any complaint in a reasonable form (letter or email) which is signed by the complainant, or their representative, and includes sufficient information to initiate an investigation must be treated as if it were a properly completed Complaint/Referral Form filed in person. A letter (via hard copy or email) confirming the complaint was received must be sent to the complainant and the document must be sent to the appropriate Complaint System Representative. The Complaint System Representative must request additional information from the complainant if the complainant has not provided sufficient information to investigate the matter expeditiously. (b) Complaints regarding an employment-related law. (1) When a complaint is filed regarding an employment-related law with an ES office or a SWA, and paragraph (c) of this section does not apply, the office must determine if the complainant is an MSFW. (i) If the complainant is a non-MSFW, the office must immediately refer the complainant to the appropriate enforcement agency, another public agency, a legal aid organization, and/or a consumer advocate organization, as appropriate, for assistance. Upon completing the referral, the local or State representative is not required to follow up with the complainant. (ii) If the complainant is a MSFW, the ES office or SWA Complaint System Representative must: (A) Take from the MSFW or their representative, in writing (hard copy or electronic), the complaint(s) describing the alleged violation(s) of the employment-related law(s); and (B) Attempt to resolve the issue informally at the local level, except in cases where the complaint was submitted to the SWA and the Complaint System Representative determines that they must take immediate action or in cases where informal resolution at the local level would be detrimental to the complainant(s). In cases where informal resolution at the local level would be detrimental to the complainant(s), the Complaint System Representative must immediately refer the complaint to the appropriate enforcement agency. Concurrently, the Complaint System Representative must offer to refer the MSFW to other ES services should the MSFW be interested. (C) If the issue is not resolved within 5 business days, the Complaint System Representative must refer the complaint to the appropriate enforcement agency (or another public agency, a legal aid organization, or a consumer advocate organization, as appropriate) for further assistance. (D) If the ES office or SWA Complaint System Representative determines that the complaint must be referred to a State or Federal agency, they must refer the complaint immediately to the appropriate enforcement agency for prompt action. (E) If the complaint was referred under paragraph (b)(1)(ii)(D) of this section, the representative must notify the complainant of the enforcement agency to which the complaint was referred. (F) When a complaint alleges an employer in a different State from where the complaint is filed has violated an employment-related law: ( 1 ) The ES office or SWA receiving the complaint must ensure the Complaint/Referral Form is adequately completed and then immediately send a copy of the Complaint/Referral Form and copies of any relevant documents to the SWA in the other State. Copies of the referral letter must be sent to the complainant, and copies of the complaint and referral letter must be sent to the ETA Regional Office(s) with jurisdiction over the transferring and receiving State agencies. All such copies must be sent via hard copy or electronic mail. ( 2 ) The SWA receiving the complaint must process the complaint as if it had been initially filed with that SWA. ( 3 ) The ETA Regional Office with jurisdiction over the receiving SWA must follow up with it to ensure the complaint is processed in accordance with these regulations. (2) If an enforcement agency makes a final determination that the employer violated an employment-related law and the complaint is connected to a job order, the SWA must initiate procedures for discontinuation of services immediately in accordance with subpart F of this part. If this occurs, the SWA must notify the complainant and the employer of this action. (c) Complaints alleging unlawful discrimination or reprisal for protected activity. All complaints received under this subpart by an ES office or a SWA alleging unlawful discrimination or reprisal for protected activity in violation of nondiscrimination laws, such as those enforced by the Equal Employment Opportunity Commission (EEOC) or the Department of Labor's Civil Rights Center (CRC), or in violation of the Immigration and Nationality Act's anti-discrimination provision found at 8 U.S.C. 1324b, must be logged and immediately referred to the State-level E.O. Officer. The Complaint System Representative must notify the complainant of the referral in writing. (2) Any complaints received either at the local and State level or at the ETA regional office, that allege violations of civil rights laws and regulations such as those under title VI of the Civil Rights Act or sec. 188 of WIOA, including for beneficiaries (as defined in 29 CFR 38.4) only, on the basis of citizenship status or participant status, as well as reprisal for protected activity, must immediately be logged and directed or forwarded to the recipient's Equal Opportunity Officer or the CRC. (d) Complaints regarding the ES regulations (ES complaints). (1) When an ES complaint is filed with an ES office or a SWA, and paragraph (c) of this section does not apply, the following procedures apply: (i) When an ES complaint is filed against an employer, the proper office to process the complaint is the ES office serving the area in which the employer is located. (ii) When a complaint is against an employer in another State or against another SWA: (A) The ES office or SWA receiving the complaint must ensure the Complaint/Referral Form is adequately completed, and then immediately send a copy of the Complaint/Referral Form and copies of any relevant documents to the SWA in the other State. Copies of the referral letter must be sent to the complainant, and copies of the complaint and referral letter must be sent to the ETA Regional Office(s) with jurisdiction over the transferring and receiving State agencies. All such copies must be sent via hard copy or electronic mail. (B) The SWA receiving the complaint must process the complaint as if it had been initially filed with that SWA. (C) The ETA Regional Office with jurisdiction over the receiving SWA must follow up with it to ensure the complaint is processed in accordance with these regulations. (D) If the complaint is against more than one SWA, the complaint must so clearly state. Additionally, the complaints must be processed as separate complaints and must be processed according to procedures in this paragraph (d). (iii) When an ES complaint is filed against an ES office, the proper office to process the complaint is the ES office serving the area in which the alleged violation occurred. (iv) When an ES complaint is filed against more than one ES offices and is in regard to an alleged agency-wide violation, the SWA representative or their designee must process the complaint. (v) When a complaint is filed alleging a violation that occurred in the same State but through a different ES office, the ES office where the complaint is filed must ensure that the Complaint/Referral Form is adequately completed and send the form to the appropriate local ES office for tracking, further referral if necessary, and follow-up. A copy of the referral letter must be sent to the complainant via hard copy or electronic mail. (2)(i) If a complaint regarding an alleged violation of the ES regulations is filed in a ES office by either a non-MSFW or MSFW, or their representative(s) (or if all necessary information has been submitted to the office pursuant to paragraph (a)(4) of this section), the appropriate ES office Complaint System Representative must investigate and attempt to resolve the complaint immediately upon receipt. (ii) If resolution has not been achieved to the satisfaction of the complainant within 15 working days after receipt of the complaint, or 5 working days with respect to complaints filed by or on behalf of MSFWs, (or after all necessary information has been submitted to the ES office pursuant to paragraph (a)(4) of this section), the Complaint System Representative must send the complaint to the SWA for resolution or further action. (iii) The ES office must notify the complainant and the respondent, in writing (via hard copy or electronic mail), of the determination (pursuant to paragraph (d)(5) of this section) of its investigation under paragraph (d)(2)(i) of this section, or of the referral to the SWA (if referred). (3) When a non-MSFW or their representative files a complaint regarding the ES regulations with a SWA, or when a non-MSFW complaint is referred from an ES office the following procedures apply: (i) If the complaint is not transferred to an enforcement agency under paragraph (b)(1)(i) of this section the Complaint System Representative must investigate and attempt to resolve the complaint immediately upon receipt. (ii) If resolution at the SWA level has not been accomplished within 30 working days after the complaint was received by the SWA (or after all necessary information has been submitted to the SWA pursuant to paragraph (a)(4) of this section), whether the complaint was received directly or from an ES office pursuant to paragraph (d)(2)(ii) of this section, the SWA official must make a written determination regarding the complaint and must send electronic copies to the complainant and the respondent. The determination must follow the procedures set forth in paragraph (d)(5) of this section. (4)(i) When a MSFW or their representative files a complaint regarding the ES regulations directly with a SWA, or when a MSFW complaint is referred from an ES office, the Complaint System Representative must investigate and attempt to resolve the complaint immediately upon receipt and may, if necessary, conduct a further investigation. (ii) If resolution at the SWA level has not been accomplished within 20 business days after the complaint was received by the SWA (or after all necessary information has been submitted to the SWA pursuant to paragraph (a)(4) of this section), the Complaint System Representative must make a written determination regarding the complaint and must send electronic copies to the complainant and the respondent. The determination must follow the procedures set forth in paragraph (d)(5) of this section. (5)(i) All written determinations by the SWA on complaints under the ES regulations must be sent by certified mail (or another legally viable method) and a copy of the determination may be sent via electronic mail. The determination must include all the following: (A) The results of any SWA investigation; (B) The conclusions reached on the allegations of the complaint; (C) If a resolution was not reached, an explanation of why the complaint was not resolved; and (D) If the complaint is against the SWA, an offer to the complainant of the opportunity to request, in writing, a hearing within 20 business days after the certified date of receipt of the notification. (ii) If the SWA determines that the employer has not violated the ES regulations, the SWA must offer to the complainant the opportunity to request, in writing, a hearing within 20 business days after the certified date of receipt of the notification. (iii) If the SWA, within 20 business days from the certified date of receipt of the notification provided for in paragraph (d)(5) of this section, receives a written request (via hard copy or electronic mail) for a hearing, the SWA must refer the complaint to a State hearing official for hearing. The SWA must, in writing (via hard copy or electronic mail), notify the respective parties to whom the determination was sent that: (A) The parties will be notified of the date, time, and place of the hearing; (B) The parties may be represented at the hearing by an attorney or other representative; (C) The parties may bring witnesses and/or documentary evidence to the hearing; (D) The parties may cross-examine opposing witnesses at the hearing; (E) The decision on the complaint will be based on the evidence presented at the hearing; (F) The State hearing official may reschedule the hearing at the request of a party or its representative; and (G) With the consent of the SWA and of the State hearing official, the party who requested the hearing may withdraw the request for the hearing in writing before the hearing. (iv) If the State agency makes a final determination that the employer who has or is currently using the ES has violated the ES regulations, the determination, pursuant to paragraph (d)(5) of this section, must state that the State will initiate procedures for discontinuation of services to the employer in accordance with subpart F of this part. (6) A complaint regarding the ES regulations must be processed to resolution by these regulations only if it is made within 2 years of the alleged occurrence. (e) Resolution of complaints. A complaint is considered resolved when: (1) The complainant indicates satisfaction with the outcome via written correspondence; (2) The complainant chooses not to elevate the complaint to the next level of review; (3) The complainant or the complainant's authorized representative fails to respond to a request for information under paragraph (a)(4) of this section within 20 working days or, in cases where the complainant is an MSFW, 40 working days of a written request by the appropriate ES office or State agency; (4) The complainant exhausts all available options for review; or (5) A final determination has been made by the enforcement agency to which the complaint was referred. (f) Reopening of case after resolution. If the complainant or the complainant's authorized representative fails to respond pursuant to paragraph (e)(3) of this section, the complainant or the complainant's authorized representative may reopen the case within 1 year after the SWA has closed the case." 20:20:4.0.1.1.2.2.3.4,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.417 State hearings.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82732, Nov. 24, 2023]","(a) The hearing described in § 658.411(d)(5) must be held by State hearing officials. A State hearing official may be any State official authorized to hold hearings under State law. Examples of hearing officials are referees in State unemployment compensation hearings and officials of the State agency authorized to preside at State administrative hearings. (b) The State hearing official may decide to conduct hearings on more than one complaint concurrently if they determine that the issues are related or that the complaints will be processed more expeditiously if conducted together. (c) The State hearing official, upon the referral of a case for a hearing, must: (1) Notify all involved parties of the date, time, and place of the hearing; and (2) Reschedule the hearing, as appropriate. (d) In conducting a hearing, the State hearing official must: (1) Regulate the course of the hearing; (2) Issue subpoenas if necessary, provided the official has the authority to do so under State law; (3) Ensure that all relevant issues are considered; (4) Rule on the introduction of evidence and testimony; and (5) Take all actions necessary to ensure an orderly proceeding. (e) All testimony at the hearing must be recorded and may be transcribed when appropriate. (f) The parties must be afforded the opportunity to present, examine, and cross-examine witnesses. (g) The State hearing official may elicit testimony from witnesses, but may not act as advocate for any party. (h) The State hearing official must receive and include in the record, documentary evidence offered by any party and accepted at the hearing. Copies thereof must be made available by the party submitting the document to other parties to the hearing upon request. (i) Federal and State rules of evidence do not apply to hearings conducted pursuant to this section; however rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination, must be applied where reasonably necessary by the State hearing official. The State hearing official may exclude irrelevant, immaterial, or unduly repetitious evidence. (j) The case record, or any portion thereof, must 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 must, if feasible, resolve the dispute at any time prior to the conclusion of the hearing. (l) At the State hearing official's discretion, other appropriate individuals, organizations, or associations may be permitted to participate in the hearing as amicus curiae (friends of the court) with respect to any legal or factual issues relevant to the complaint. Any documents submitted by the amicus curiae must be included in the record. (m) If the parties to the hearing are located in more than one State or are located in the same State but access to the hearing location is extremely inconvenient for one or more parties as determined by the State hearing official, the hearing official must: (1) Whenever possible, hold a single hearing at a location convenient to all parties or their representatives wishing to appear and present evidence, with all such parties and/or their representatives present. (2) If a hearing location cannot be established by the State hearing official under 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. If the hearing is conducted via telephone conference call the parties and their representatives must have the option to participate in person or via telephone. (3) Where the State agency is not able, for any reason, to conduct a telephonic hearing under paragraph (m)(2) of this section, the State agencies in the States where the parties are located must 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 this section." 20:20:4.0.1.1.2.2.3.5,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.418 Decision of the State hearing official.,DOL,,,,"(a) The State hearing official may: (1) Rule that it lacks jurisdiction over the case; (2) Rule that the complaint has been withdrawn properly in writing; (3) Rule that reasonable cause exists to believe that the request has been abandoned; or (4) Render such other rulings as are appropriate to resolve the issues in question. However, the State hearing official does not have authority or jurisdiction to consider the validity or constitutionality of the 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 ES offices and State agencies and any evidence provided at the hearing, the State hearing official must prepare a written decision. The State hearing official must send a copy of the decision stating the findings of fact and conclusions of law, and the reasons therefor to the complainant, the respondent, entities serving as amicus capacity (if any), the State agency, the Regional Administrator, and the Solicitor of Labor, Attn: Associate Solicitor for Employment and Training Legal Services, Department of Labor, Room N2101, 200 Constitution Avenue NW., Washington, DC 20210. The notification to the complainant and respondent must be sent by certified mail or by other legally viable means. (c) All decisions of a State hearing official must 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 they may appeal the judge's decision within 20 working days of the certified date of receipt of the decision, and they may file an appeal in writing with the Regional Administrator. The notice must give the address of the Regional Administrator." 20:20:4.0.1.1.2.2.3.6,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.419 Apparent violations.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88 FR 82732, Nov. 24, 2023]","(a) If an ES staff member observes, has reason to believe, or is in receipt of information regarding an apparent violation, except as part of a field check under § 653.503 of this chapter, the staff member must document the apparent violation and refer it to the ES Office Manager, who must ensure the apparent violation is documented in the Complaint System log, as described at § 658.410. (b) If the employer has filed a job order with the ES office within the past 12 months, the ES office must attempt informal resolution provided at § 658.411. (c) If the employer has not filed a job order with the ES office during the past 12 months, the suspected violation of an employment-related law must be referred to the appropriate enforcement agency in writing. (d) Apparent violations of nondiscrimination laws must be processed according to the procedures described in § 658.411(c)." 20:20:4.0.1.1.2.2.4.10,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.424 Proceedings before the Office of Administrative Law Judges.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 82733, Nov. 24, 2023]","(a) If a party requests a hearing pursuant to § 658.421 or § 658.707, the Regional Administrator must: (1) Send the party requesting the hearing, and all other parties to the prior State level hearing, a written notice (hard copy or electronic) that the matter will be referred to the Office of Administrative Law Judges for a hearing; (2) Compile four hearing files (hard copy or electronic) containing copies of all documents relevant to the case, indexed and compiled chronologically; and (3) Send simultaneously one hearing file to the Department of Labor Chief Administrative Law Judge, 800 K Street NW., Suite 400N, Washington, DC 20001-8002, one hearing file to the OWI 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) Proceedings under this section are governed by the rules of practice and procedure at subpart A of 29 CFR part 18, Rule of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, except where otherwise specified in this section or at § 658.425. (c) Upon receipt of a hearing file, the ALJ designated to the case must notify the party requesting the hearing, all parties to the prior State hearing official hearing (if any), the State agency, the Regional Administrator, the OWI Administrator, and the Solicitor of Labor of the receipt of the case. After conferring all the parties, the ALJ may decide to make a determination on the record in lieu of scheduling a hearing. (d) The ALJ may decide to consolidate cases and conduct hearings on more than one complaint concurrently if they determine that the issues are related or that the complaints will be processed more expeditiously. (e) If the parties to the hearing are located in more than one State or are located in the same State but access to the hearing location is extremely inconvenient for one or more parties as determined by the ALJ, the ALJ must: (1) Whenever possible, hold a single hearing, at a location convenient to all parties or their representatives wishing to appear and present evidence, with all such parties and/or their representatives present. (2) If a hearing location cannot be established by the ALJ at a location pursuant to paragraph (e)(1) of this section, the ALJ may conduct, with the consent of the parties, the hearing by a telephone conference call. If the hearing is conducted via telephone conference call the parties and their representatives must have the option to participate in person or via telephone. (3) Where the ALJ is unable, for any reason, to conduct a telephonic hearing under paragraph (e)(2) of this section, the ALJ must confer with the parties on how to proceed. (f) Upon deciding to hold a hearing, the ALJ must notify all involved parties of the date, time, and place of the hearing. (g) The parties to the hearing must be afforded the opportunity to present, examine, and cross-examine witnesses. The ALJ may elicit testimony from witnesses, but may not act as advocate for any party. The ALJ has the authority to issue subpoenas. (h) The ALJ must receive, and make part of the record, documentary evidence offered by any party and accepted at the hearing, provided that copies of such evidence is provided to the other parties to the proceeding prior to the hearing at the time required by the ALJ. (i) Technical rules of evidence do 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 must be applied where reasonably necessary by the ALJ conducting the hearing. The ALJ may exclude irrelevant, immaterial, or unduly repetitious evidence. (j) The case record, or any portion thereof, must 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. (k) The ALJ must, if feasible, encourage resolution of the dispute by conciliation at any time prior to the conclusion of the hearing." 20:20:4.0.1.1.2.2.4.11,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.425 Decision of Department of Labor Administrative Law Judge.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]","(a) The ALJ may: (1) Rule that they lack jurisdiction over the case: (2) Rule that the appeal has been withdrawn, with the written consent of all parties; (3) Rule that reasonable cause exists to believe that the appeal has been abandoned; or (4) Render such other rulings as are appropriate to the issues in question. However, the ALJ does not have jurisdiction to consider the validity or constitutionality of the ES regulations or of the Federal statutes under which they are promulgated. (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 ALJ must prepare a written decision. The ALJ must send a copy of the decision stating the findings of fact and conclusions of law to the parties to the hearing, including the State agency, the Regional Administrator, the OWI Administrator, and the Solicitor, and to entities filing amicus briefs (if any). (c) The decision of the ALJ serves as the final decision of the Secretary." 20:20:4.0.1.1.2.2.4.12,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.426 Complaints against the United States Employment Service.,DOL,,,,"(a) Complaints alleging that an ETA regional office or the National Office has violated ES regulations must be mailed to the Assistant Secretary for Employment and Training, U.S. Department of Labor, Washington, DC 20210. Such complaints must include: (1) A specific allegation of the violation; (2) The date of the incident; (3) Location of the incident; (4) The individual alleged to have committed the violation; and (5) Any other relevant information available to the complainant. (b) The Assistant Secretary or the Regional Administrator as designated must make a determination and respond to the complainant after investigation of the complaint." 20:20:4.0.1.1.2.2.4.13,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.427 Severability.,DOL,,,"[88 FR 82733, Nov. 24, 2023]","Should a court hold any portion of any provision of this part to be invalid, the provision will be construed so as to continue to give the maximum effect to the provision permitted by law, unless such holding is one of total invalidity or unenforceability, in which event the provision or subprovision will be severable from this part and will not affect the remainder thereof." 20:20:4.0.1.1.2.2.4.7,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.420 Responsibilities of the Employment and Training Administration regional office.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended 88 FR 82733, Nov. 24, 2023]","(a) Each Regional Administrator must establish and maintain a Complaint System within each ETA regional office. (b) The Regional Administrator must designate Department of Labor officials to process ES regulation-related complaints as follows: (1) All complaints received at the ETA regional office under this subpart that allege unlawful discrimination or reprisal for protected activity in violation of nondiscrimination laws, such as those enforced by the EEOC or CRC, or in violation of the Immigration and Nationality Act's anti-discrimination provision found at 8 U.S.C. 1324b, must be logged and immediately referred to the appropriate State-level E.O. Officer(s). (2) All complaints other than those described in paragraph (b)(1) of this section must be assigned to a regional office official designated by the Regional Administrator, provided that the regional office official designated to process MSFW complaints must be the Regional Monitor Advocate (RMA). (c) Except for those complaints under paragraph (b)(1) of this section, the Regional Administrator must designate Department of Labor officials to process employment-related law complaints in accordance with § 658.422, provided that the regional official designated to process MSFW employment-related law complaints must be the RMA. The RMA must follow up monthly on all complaints filed by MSFWs including complaints under paragraph (b)(1) of this section. (d) The Regional Administrator must ensure that all complaints and all related documents and correspondence are logged with a notation of the nature of each item." 20:20:4.0.1.1.2.2.4.8,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.421 Processing of Wagner-Peyser Act Employment Service regulation-related complaints.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]","(a)(1) Except as provided below in paragraph (a)(2) of this section, no complaint alleging a violation of the ES regulations may be processed at the ETA regional office level until the complainant has exhausted the SWA administrative remedies set forth at §§ 658.411 through 658.418. If the Regional Administrator determines that a complaint has been prematurely filed with an ETA regional office, the Regional Administrator must 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 and a copy of the complaint also must be sent to the State Administrator. (2) If a complaint is submitted directly to the Regional Administrator and if they determine that the nature and scope of a complaint described in paragraph (a) of this section is such that the time required to exhaust the administrative procedures at the SWA level would adversely affect a significant number of individuals, the RA must accept the complaint and take the following action: (i) If the complaint is filed against an employer, the regional office must process the complaint in a manner consistent with the requirements imposed upon State agencies by §§ 658.411 and 658.418. A hearing must be offered to the parties once the Regional Administrator makes a determination on the complaint. (ii) If the complaint is filed against a SWA, the regional office must follow procedures established at § 658.411(d). (b) The ETA regional office is responsible for processing appeals of determinations made on complaints at the SWA level. An appeal includes any letter or other writing which the Regional Administrator reasonably understands to be requesting review if it is received by the regional office and signed by a party to the complaint. (c)(1) Once the Regional Administrator receives a timely appeal, they must request the complete SWA file, including the original Complaint/Referral Form from the appropriate SWA. (2) The Regional Administrator must review the file in the case and must determine within 10 business days whether any further investigation or action is appropriate; however, if the Regional Administrator determines that they need to request legal advice from the Office of the Solicitor at the U.S. Department of Labor, then the Regional Administrator is allowed 20 business days to make this determination. (d) If the Regional Administrator determines that no further action is warranted, the Regional Administrator will send their determination in writing to the appellant within 5 days of the determination, with a notification that the appellant may request a hearing before a Department of Labor Administrative Law Judge (ALJ) by filing a hearing request in writing with the Regional Administrator within 20 working days of the appellant's receipt of the notification. (e) If the Regional Administrator determines that further investigation or other action is warranted, the Regional Administrator must undertake such an investigation or other action necessary to resolve the complaint. (f) After taking the actions described in paragraph (e) of this section, the Regional Administrator must either affirm, reverse, or modify the decision of the State hearing official, and must notify each party to the State hearing official's hearing or to whom the State office determination was sent, notice of the determination and notify the parties that they may appeal the determination to the Department of Labor's Office of Administrative Law Judges within 20 business days of the party's receipt of the notice. (g) If the Regional Administrator finds reason to believe that a SWA or one of its ES offices has violated ES regulations, the Regional Administrator must follow the procedures set forth at subpart H of this part." 20:20:4.0.1.1.2.2.4.9,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,E,Subpart E—Employment Service and Employment-Related Law Complaint System (Complaint System),,§ 658.422 Processing of employment-related law complaints by the Regional Administrator.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82733, Nov. 24, 2023]","(a) This section applies to all complaints submitted directly to the Regional Administrator or their representative. (b) Each complaint filed by an MSFW alleging violation(s) of employment-related laws must be taken in writing, logged, and referred to the appropriate enforcement agency for prompt action. If such a complaint alleges a violation of nondiscrimination laws or reprisal for protected activity, it must be referred to the appropriate State-level E.O. Officer in accordance with § 658.420(b)(1). (c) Each complaint submitted by a non-MSFW alleging violation(s) of employment-related laws must be logged and referred to the appropriate enforcement agency for prompt action. If such a complaint alleges a violation of nondiscrimination laws or reprisal for protected activity, it must be referred to the appropriate State-level E.O. Officer in accordance with § 658.420(b)(1). (d) Upon referring the complaint in accordance with paragraphs (b) and (c) of this section, the regional official must inform the complainant of the enforcement agency (and individual, if known) to which the complaint was referred." 20:20:4.0.1.1.2.3.5.1,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,F,Subpart F—Discontinuation of Services to Employers by the Wagner-Peyser Act Employment Service,,§ 658.500 Scope and purpose of subpart.,DOL,,,"[89 FR 34065, Apr. 29, 2024]","(a) This subpart contains the regulations governing the discontinuation of services provided by the ES to employers pursuant to parts 652 and 653 of this chapter. (b) For purposes of this subpart only, where the term “employer” is used, it refers to employers, agents, farm labor contractors, joint employers, and successors in interest to any employer, agent, farm labor contractor, or joint employer, as defined at § 651.10 of this chapter. A successor in interest to an employer, agent, or farm labor contractor may be held liable for the duties and obligations of that employer, agent, or farm labor contractor for purposes of recruitment of workers through the ES clearance system or enforcement of ES regulations, regardless of whether such successor in interest has succeeded to all the rights and liabilities of the predecessor entity." 20:20:4.0.1.1.2.3.5.2,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,F,Subpart F—Discontinuation of Services to Employers by the Wagner-Peyser Act Employment Service,,§ 658.501 Basis for discontinuation of services.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 89 FR 34065, Apr. 29, 2024]","(a) SWA officials must initiate procedures for discontinuation of services to employers who: (1) Submit and refuse to correct or withdraw job orders containing terms and conditions that are contrary to employment-related laws; (2) Submit job orders and refuse to provide assurances, or refuse to withdraw job orders that do not contain assurances, required pursuant to the Agricultural Recruitment System for U.S. Workers at part 653, subpart F, of this chapter; (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 a final determination by an appropriate enforcement agency to have violated any employment-related laws and notification of this final determination has been provided to the Department or the SWA by that enforcement agency, including those who are currently debarred from participating in the H-2A or H-2B foreign labor certification programs pursuant to § 655.73 or § 655.182 of this chapter or 29 CFR 501.20 or 503.24; (5) Are found to have violated ES regulations pursuant to § 658.411 or § 658.419; (6) Refuse to accept qualified workers referred through the clearance system for criteria clearance orders filed pursuant to part 655, subpart B, of this chapter; (7) Refuse to cooperate in field checks conducted pursuant to § 653.503 of this chapter; or (8) Repeatedly cause the initiation of the procedures for discontinuation of services pursuant to paragraphs (a)(1) through (7) of this section. (b) If an ES office or SWA has information that an employer participating in the ES may have committed fraud or misrepresentation in connection with its current or prior temporary labor certification or may not have complied with the terms of such certification, under, for example the H-2A and H-2B visa programs, SWA officials must notify the OFLC National Processing Center and the Wage and Hour Division of the alleged noncompliance as applicable under § 655.185 and 29 CFR 501.2, 501.6, 503.3, and 503.7. If the circumstances occurred within the previous 3 years, SWA officials must determine whether there is a basis under paragraph (a) of this section for which the SWA must initiate procedures for discontinuation of services. (c) [Reserved]" 20:20:4.0.1.1.2.3.5.3,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,F,Subpart F—Discontinuation of Services to Employers by the Wagner-Peyser Act Employment Service,,§ 658.502 Notification to employers of intent to discontinue services.,DOL,,,"[89 FR 34066, Apr. 29, 2024]","(a) Except as provided in paragraph (b) of this section, where the SWA determines that there is an applicable basis for discontinuation of services under § 658.501(a)(1) through (8), the SWA must notify the employer in writing that it intends to discontinue the provision of ES services in accordance with this section and must provide the reasons for proposing discontinuation of services. (1) Where the decision is based on § 658.501(a)(1), the SWA must specify the date the order was submitted, the job order involved, and the terms and conditions contrary to employment-related laws and the laws involved. The SWA must notify the employer in writing that all ES services will be terminated unless the employer within 20 working days: (i) Provides adequate evidence that the terms and conditions are not contrary to employment-related laws; (ii) Withdraws the terms and conditions and resubmits the job order in compliance with all employment-related laws; or (iii) If the job is no longer available, makes assurances that all future job orders submitted will be in compliance with all employment-related laws. (2) Where the decision is based on § 658.501(a)(2), the SWA must specify the date the order was submitted, the job order involved, the assurances involved, and explain how the employer refused to provide the assurances. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (i) Resubmits the order with the required assurances; or (ii) If the job is no longer available, makes assurances that all future job orders submitted will contain all assurances required pursuant to the Agricultural Recruitment System for U.S. Workers at part 653, subpart F, of this chapter. (3) Where the decision is based on § 658.501(a)(3), the SWA must specify the terms and conditions the employer misrepresented or the assurances with which the employer did not fully comply, and explain how the employer misrepresented the terms or conditions or failed to comply with assurances on the job order. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (i) Provides adequate evidence that terms and conditions of employment were not misrepresented; (ii) Provides adequate evidence that there was full compliance with the assurances made on the job orders; or (iii) Provides adequate evidence that it has resolved the misrepresentation of terms and conditions of employment or noncompliance with assurances and 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 order assurances. (4) Where the decision is based on § 658.501(a)(4), the SWA must provide evidence of the final determination, including debarment. For final determinations, the SWA must specify the enforcement agency's findings of facts and conclusions of law as to the employment-related law violation(s). For final debarment orders, the SWA must specify the time period for which the employer is debarred from participating in one of the Department's foreign labor certification programs. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (i) Provides adequate evidence that the enforcement agency's determination is not final because, for example, it has been stayed pending appeal, overturned, or reversed; or (ii) Provides adequate evidence that, as applicable: (A) The Department's debarment is no longer in effect; and (B) The employer has completed all required actions imposed by the enforcement agency as a consequence of the violation, including payment of any fines or restitution to remediate the violation; and (iii) Provides assurances that any policies, procedures, or conditions responsible for the violation have been corrected and the same or similar violations are not likely to occur in the future. (5) Where the decision is based on § 658.501(a)(5), the SWA must specify which ES regulation, as defined in § 651.10, the employer has violated and must provide basic facts to explain the violation. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (i) Provides adequate evidence that the employer did not violate ES regulations; or (ii) Provides adequate evidence that appropriate restitution has been made or remedial action taken; and (iii) Provides assurances that any policies, procedures, or conditions responsible for the violation have been corrected and the same or similar violations are not likely to occur in the future. (6) Where the decision is based on § 658.501(a)(6), the SWA must indicate that the employer filed the job order pursuant to part 655, subpart B, of this chapter, and specify the name of each worker the SWA referred and the employer did not accept. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (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 evidence that the workers were referred after the time period described in § 655.135(d) of this chapter elapsed; or (v) Provides adequate evidence that: (A) After refusal, the employer accepted the qualified workers referred; or (B) Appropriate restitution has been made or other remedial action taken; and (vi) Provides assurances that qualified workers referred in the future will be accepted or, if the time period described in § 655.135(d) of this chapter has lapsed, provides assurances that qualified workers referred on all future criteria clearance orders will be accepted. (7) Where the decision is based on § 658.501(a)(7), the SWA must explain how the employer did not cooperate in the field check. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days: (i) Provides adequate evidence that it did cooperate; or (ii) Immediately cooperates in the conduct of field checks; and (iii) Provides assurances that it will cooperate in future field checks. (8) Where the decision is based on § 658.501(a)(8), the SWA must list and provide basic facts explaining the prior instances where the employer has repeatedly caused initiation of discontinuation proceedings. The SWA must notify the employer that all ES services will be terminated unless the employer within 20 working days provides adequate evidence that the SWA's initiation of discontinuation in prior proceedings was unfounded. (b) SWA officials must discontinue services immediately in accordance with § 658.503, without providing the notice described in this section, if an employer has met any of the bases for discontinuation of services under § 658.501(a) and, in the judgment of the State Administrator, exhaustion of the administrative procedures set forth in this section would cause substantial harm to workers." 20:20:4.0.1.1.2.3.5.4,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,F,Subpart F—Discontinuation of Services to Employers by the Wagner-Peyser Act Employment Service,,§ 658.503 Discontinuation of services.,DOL,,,"[89 FR 34067, Apr. 29, 2024]","(a) Within 20 working days of receipt of the employer's response to the SWA's notification under § 658.502(a), or at least 20 working days after the SWA's notification has been received by the employer if the SWA does not receive a response, the SWA must notify the employer in writing of its final determination. If the SWA determines that the employer did not provide a satisfactory response in accordance with § 658.502(a), the SWA's notification must specify the reasons for its determination and state that the discontinuation of services is effective 20 working days from the date of the notification. The notification must also state that the employer may request reinstatement or appeal the determination by requesting a hearing pursuant to § 658.504, and that a request for a hearing stays the discontinuation pending the outcome of the hearing. If the employer does not request a hearing, the SWA must also notify the ETA Office of Workforce Investment of any final determination to discontinue ES services within 10 working days of the date the determination becomes effective. (b) Where the SWA discontinues services immediately under § 658.502(b), the SWA's written notification must specify the facts supporting the applicable basis for discontinuation under § 658.501(a), the reasons that exhaustion of the administrative procedures would cause substantial harm to workers, and that services are discontinued as of the date of the notification. The notification must also state that the employer may request reinstatement or appeal the determination by requesting a hearing pursuant to § 658.504, and that a request for a hearing relating to immediate discontinuation does not stay the discontinuation pending the outcome of the hearing. Within 10 working days of the date of issuance, the SWA must also notify the ETA Office of Workforce Investment of any determination to immediately discontinue ES services. (c) If the SWA discontinues services to an employer that is subject to Federal Contractor Job Listing Requirements, the SWA must notify the ETA regional office immediately. (d) If the SWA discontinues services to an employer based on a complaint filed pursuant to § 658.411, the SWA must notify the complainant of the employer's discontinuation of services. (e) If the SWA discontinues services to an employer, the employer cannot participate in or receive Wagner-Peyser Act ES Services provided by the ES, including by any SWA, to employers pursuant to parts 652 and 653 of this chapter. From the date of discontinuance, the SWA that issued the determination must remove the employer's active job orders from the clearance system. No SWA may process any future job orders from the employer or provide any other services pursuant to parts 652 and 653 of this chapter to the employer unless services have been reinstated under § 658.504. (f) SWAs must continue to provide the full range of ES and other appropriate services to workers whose employers experience discontinuation of services under this subpart." 20:20:4.0.1.1.2.3.5.5,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,F,Subpart F—Discontinuation of Services to Employers by the Wagner-Peyser Act Employment Service,,§ 658.504 Reinstatement of services.,DOL,,,"[89 FR 34067, Apr. 29, 2024]","(a) Where the SWA discontinues services to an employer under § 658.502(b) or § 658.503, the employer may submit a written request for reinstatement of services to the SWA or may, within 20 working days of receiving notice of the SWA's final determination, appeal the discontinuation by submitting a written request for a hearing. (b) If the employer submits a written request for reinstatement of services to the SWA: (1) Within 20 working days of receipt of the employer's request for reinstatement, the SWA must notify the employer of its decision to grant or deny the request. If the SWA denies the request for reinstatement, it must specify the reasons for the denial and notify the employer that it may request a hearing, in accordance with paragraph (c) of this section, within 20 working days. (2) The SWA must reinstate services if: (i) The employer provides adequate evidence that the policies, procedures, or conditions responsible for the previous discontinuation of services have been corrected and that the same or similar circumstances are not likely to occur in the future; and (ii) The employer provides adequate evidence that it has responded to all findings of an enforcement agency, SWA, or ETA, including payment of any fines or restitution to remediate the violation, that were the basis of the discontinuation of services, if applicable. (c) If the employer submits a timely request for a hearing: (1) The SWA must follow the procedures set forth in § 658.417; and (2) The SWA must reinstate services to the employer if ordered to do so by a State hearing official, Regional Administrator, or Federal Administrative Law Judge as a result of a hearing offered pursuant to paragraph (c)(1) of this section. (d) Within 10 working days of the date of issuance, the SWA must notify the ETA Office of Workforce Investment of any determination to reinstate ES services, or any decision on appeal upholding a SWA's determination to discontinue services." 20:20:4.0.1.1.2.4.5.1,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.600 Scope and purpose of subpart.,DOL,,,,"This subpart sets forth the regulations governing review and assessment of State Workforce Agency (SWA) compliance with the ES regulations at this part and parts 651, 652, 653, and 654 of this chapter. All recordkeeping and reporting requirements contained in this part and part 653 of this chapter have been approved by the Office of Management and Budget as required by the Paperwork Reduction Act of 1980." 20:20:4.0.1.1.2.4.5.2,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.601 State Workforce Agency responsibility.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020]","(a) Each SWA must establish and maintain a self-appraisal system for ES operations to determine success in reaching goals and to correct deficiencies in performance. The self-appraisal system must include numerical (quantitative) appraisal and non-numerical (qualitative) appraisal. (1) Numerical appraisal at the ES office level must be conducted as follows: (i) Performance must be measured on a quarterly-basis against planned service levels as stated in the Unified or Combined State Plan (“State Plan”). The State Plan must be consistent with numerical goals contained in ES office plans. (ii) To appraise numerical activities/indicators, actual results as shown on the Department's ETA Form 9172, or any successor report required by the Department must be compared to planned levels. Differences between achievement and plan levels must be identified. (iii) When the numerical appraisal of required activities/indicators identifies significant differences from planned levels, additional analysis must be conducted to isolate possible contributing factors. This data analysis must include, as appropriate, comparisons to past performance, attainment of State Plan goals and consideration of pertinent non-numerical factors. (iv) Results of ES office numerical reviews must be documented and significant deficiencies identified. A corrective action plan as described in paragraph (a)(6) of this section must be developed to address these deficiencies. (v) The result of ES office appraisal, including corrective action plans, must be communicated in writing to the next higher level of authority for review. This review must cover adequacy of 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 ES office performance within the area or district jurisdiction must be communicated to the SWA on a quarterly basis. (2) Numerical appraisal at the SWA level must be conducted as follows: (i) Performance must be measured on a quarterly basis against planned service levels as stated in the State Plan. The State Plan must be consistent with numerical goals contained in ES office plans. (ii) To appraise these key numerical activities/indicators, actual results as shown on ETA Form 9172, or any successor report required by the Department must be compared to planned levels. Differences between achievement and plan levels must be identified. (iii) The SWA must review statewide data and performance against planned service levels as stated in the State Plan on at least a quarterly basis to identify significant statewide deficiencies and to determine the need for additional analysis, including identification of trends, comparisons to past performance, and attainment of State Plan goals. (iv) Results of numerical reviews must be documented and significant deficiencies identified. A corrective action plan as described in paragraph (a)(5) of this section must be developed to address these deficiencies. These plans must be submitted to the ETA Regional Office as part of the periodic performance process described at § 658.603(d)(2). (3) Non-numerical (qualitative) appraisal of ES office activities must be conducted at least annually as follows: (i) Each ES office must assess the quality of its services to applicants, employers, and the community and its compliance with Federal regulations. (ii) At a minimum, non-numerical review must include an assessment of the following factors: (A) Appropriateness of services provided to participants and employers; (B) Timely delivery of services to participants and employers; (C) Staff responsiveness to individual participants 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, such as other ETA-funded programs, community groups, etc. (iii) Non-numerical review methods must include: (A) Observation of processes; (B) Review of documents used in service provisions; and (C) Solicitation of input from applicants, employers, and the community. (iv) The result of non-numerical reviews must be documented and deficiencies identified. A corrective action plan addressing these deficiencies as described in paragraph (a)(6) of this section must be developed. (v) The result of ES office non-numerical appraisal, including corrective actions, must be communicated in writing to the next higher level of authority for review. This review must cover thoroughness and adequacy of ES 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 ES office performance within that jurisdiction must be communicated to the SWA on an annual basis. (4) As part of its oversight responsibilities, the SWA must conduct onsite reviews in those ES offices which show continuing internal problems or deficiencies in performance as indicated by such sources as data analysis, non-numerical appraisal, or other sources of information. (5) Non-numerical (qualitative) review of SWA ES activities must be conducted as follows: (i) SWA operations must be assessed annually to determine compliance with Federal regulations. (ii) Results of non-numerical reviews must be documented and deficiencies identified. A corrective action plan addressing these deficiencies must be developed. (6) Corrective action plans developed to address deficiencies uncovered at any administrative level within the State as a result of the self-appraisal process must include: (i) Specific descriptions of the type of action to be taken, the time frame 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. (7)(i) The provisions of the ES regulations which require numerical and non-numerical assessment of service to special applicant groups ( e.g. , services to veterans at 20 CFR part 1001—Services for Veterans and services to MSFWs at this part and part 653 of this chapter), are supplementary to the provisions of this section. (ii) Each State Administrator and ES office manager must ensure their staff know and carry out ES regulations, including regulations on performance standards and program emphases, and any corrective action plans imposed by the SWA or by the Department. (iii) Each State Administrator must ensure the SWA complies with its approved State Plan. (iv) Each State Administrator must ensure to the maximum extent feasible the accuracy of data entered by the SWA into Department-required management information systems. Each SWA must establish and maintain a data validation system pursuant to Department instructions. The system must review every local ES office at least once every 4 years. The system must include the validation of time distribution reports and the review of data gathering procedures. (b) [Reserved]" 20:20:4.0.1.1.2.4.5.3,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.602 Employment and Training Administration National Office responsibility.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 629, Jan. 6, 2020; 88 FR 82733, Nov. 24, 2023]","The ETA National Office must: (a) Monitor ETA Regional Offices' operations under ES regulations; (b) From time to time, conduct such special reviews and audits as necessary to monitor ETA regional office and SWA compliance with ES regulations; (c) Offer technical assistance to the ETA regional offices and SWAs in carrying out ES regulations and programs; (d) Have report validation surveys conducted in support of resource allocations; and (e) Develop tools and techniques for reviewing and assessing SWA performance and compliance with ES regulations. (f) ETA must appoint a National Monitor Advocate (NMA), who must devote full time to the duties set forth in this subpart. The NMA must: (1) Review the effective functioning of the Regional Monitor Advocates (RMAs) and SMAs; (2) Review the performance of SWAs in providing the full range of ES services to MSFWs; (3) Take steps to resolve or refer ES-related problems of MSFWs which come to their attention; (4) Take steps to refer non-ES-related problems of MSFWs which come to their attention; (5) Recommend to the Administrator changes in policy toward MSFWs; and (6) Serve as an advocate to improve services for MSFWs within the ES system. The NMA must be a member of the National Farm Labor Coordinated Enforcement Staff Level Working Committee and other Occupational Safety and Health Administration (OSHA) and Wage and Hour Division (WHD) task forces, and other committees as appropriate. (g) The NMA must be appointed by the Office of Workforce Investment Administrator (Administrator) after informing farmworker organizations and other organizations with expertise concerning MSFWs of the opening and encouraging them to refer qualified applicants to apply through the Federal merit system. Among qualified candidates, determined through merit systems procedures, individuals must be sought who meet the criteria used in the selection of the SMAs, as provided in SWA self-monitoring requirements at § 653.108(a) of this chapter. (h) The NMA must be assigned staff necessary to fulfill effectively all the responsibilities set forth in this subpart. (i) The NMA must submit the Annual Report to the OWI Administrator, the ETA Assistant Secretary, and the National Farm Labor Coordinated Enforcement Committee covering the matters set forth in this subpart. (j) The NMA must monitor and assess SWA compliance with ES regulations affecting MSFWs on a continuing basis. Their assessment must consider: (1) Information from RMAs and SMAs; (2) Program performance data, including the service indicators; (3) Periodic reports from regional offices; (4) All Federal on-site reviews; (5) Selected State on-site reviews; (6) Other relevant reports prepared by the ES; (7) Information received from farmworker organizations and employers; and (8) Their personal observations from visits to SWAs, ES offices, agricultural work sites, and migrant camps. In the Annual Report, the NMA must include both a quantitative and qualitative analysis of their findings and the implementation of their recommendations by State and Federal officials, and must address the information obtained from all of the foregoing sources. (k) The NMA must review the activities of the State/Federal monitoring system as it applies to services to MSFWs and the Complaint System including the effectiveness of the regional monitoring function in each region and must recommend any appropriate changes in the operation of the system. The NMA's findings and recommendations must be fully set forth in the Annual Report. (l) If the NMA finds the effectiveness of any RMA has been substantially impeded by the Regional Administrator or other regional office official, they must, if unable to resolve such problems informally, report and recommend appropriate actions directly to the OWI Administrator. If the NMA receives information that the effectiveness of any SMA has been substantially impeded by the State Administrator, a State or Federal ES official, or other ES staff, they must, in the absence of a satisfactory informal resolution at the regional level, report and recommend appropriate actions directly to the OWI Administrator. (m) The NMA must be informed of all proposed changes in policy and practice within the ES, including ES regulations, which may affect the delivery of services to MSFWs. The NMA must advise the OWI Administrator concerning all such proposed changes which may adversely affect MSFWs. The NMA must propose directly to the OWI Administrator changes in ES policy and administration which may substantially improve the delivery of services to MSFWs. They also must recommend changes in the funding of SWAs and/or adjustment or reallocation of the discretionary portions of funding formulae. (n) The NMA must participate in the review and assessment activities required in this section and §§ 658.700 through 658.711. As part of such participation, the NMA, or if they are unable to participate, an RMA must accompany the National Office review team on National Office on-site reviews. The NMA must engage in the following activities during each State on-site review: (1) They must accompany selected outreach staff on their field visits. (2) They must participate in field check(s) of migrant camps or work site(s) where MSFWs have been placed on inter or intrastate clearance orders. (3) They must contact local WIOA sec. 167 National Farmworker Jobs Program grantees or other farmworker organizations as part of the on-site review and discuss with representatives of these organizations current trends and any other pertinent information concerning MSFWs. (4) They must meet with the SMA and discuss the full range of the ES services to MSFWs, including monitoring and the Complaint System. (o) In addition to the duties specified in paragraph (f) of this section, the NMA each year during the harvest season must visit the four States with the highest level of MSFW activity during the prior fiscal year, if they are not scheduled for a National Office on-site review during the current fiscal year, and must: (1) Meet with the SMA and other ES staff to discuss MSFW service delivery; and (2) Contact representatives of MSFW organizations and interested employer organizations to obtain information concerning ES delivery and coordination with other agencies. (p) The NMA must perform duties specified in §§ 658.700 through 765.711. As part of this function, they must monitor the performance of regional offices in imposing corrective action. The NMA must report any deficiencies in performance to the Administrator. (q) The NMA must establish routine and regular contacts with WIOA sec. 167 National Farmworker Jobs Program grantees, other farmworker organizations and agricultural employers and/or employer organizations. The NMA must attend conferences or meetings of these groups wherever possible and must report to the Administrator and the National Farm Labor Coordinated Enforcement Committee on these contacts when appropriate. The NMA must include in the Annual Report recommendations about how the Department might better coordinate ES and WIOA sec. 167 National Farmworker Jobs Program services as they pertain to MSFWs. (r) In the event that any SMA or RMA, enforcement agency, or MSFW group refers a matter to the NMA which requires emergency action, the NMA must assist them in obtaining action by appropriate agencies and staff, inform the originating party of the action taken, and, upon request, provide written confirmation. (s) Through all the mechanisms provided in this subpart, the NMA must aggressively seek to ascertain and remedy, if possible, systemic deficiencies in the provisions of ES services and protections afforded by these regulations to MSFWs. The NMA must: (1) Use the regular reports on complaints submitted by SWAs and ETA regional offices to assess the adequacy of these systems and to determine the existence of systemic deficiencies. (2) Provide technical assistance to ETA regional office and ES staff for administering the Complaint System, and any other ES services as appropriate. (3) Recommend to the Regional Administrator specific instructions for action by regional office staff to correct any ES-related systemic deficiencies. Prior to any ETA review of regional office operations concerning ES services to MSFWs, the NMA must provide to the Regional Administrator a brief summary of ES-related services to MSFWs in that region and their recommendations for incorporation in the regional review materials as the Regional Administrator and ETA reviewing organization deem appropriate. (4) Recommend to the National Farm Labor Coordinated Enforcement Committee specific instructions for action by WHD and OSHA regional office staff to correct any non-ES-related systemic deficiencies of which he/she is aware." 20:20:4.0.1.1.2.4.5.4,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.603 Employment and Training Administration regional office responsibility.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 630, Jan. 6, 2020; 88 FR 82734, Nov. 24, 2023]","(a) The Regional Administrator must have responsibility for the regular review and assessment of SWA performance and compliance with ES regulations. (b) The Regional Administrator must participate with the National Office staff in reviewing and approving the State Plan for the SWAs within the region. In reviewing the State Plans the Regional Administrator and appropriate National Office staff must consider relevant factors including the following: (1) State Workforce Agency compliance with ES regulations; (2) State Workforce Agency performance against the goals and objectives established in the previous State 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 the SWA's performance; (4) SWA adherence to national program emphasis; and (5) The adequacy and appropriateness of the State Plan for carrying out ES programs. (c) The Regional Administrator must assess the overall performance of SWAs on an ongoing basis through desk reviews and the use of required reporting systems and other available information. (d) As appropriate, Regional Administrators must conduct or have conducted: (1) Comprehensive on-site reviews of SWAs and their offices to review SWA organization, management, and program operations; (2) Periodic performance reviews of SWA operation of ES programs to measure actual performance against the State Plan, past performance, the performance of other SWAs, etc.; (3) Audits of SWA programs to review their program activity and to assess whether the expenditure of grant funds has been in accordance with the approved budget. Regional Administrators also may conduct audits through other agencies or organizations or may require the SWA to have audits conducted; (4) Validations of data entered into management information systems to assess: (i) The accuracy of data entered by the SWAs into the management information system; (ii) Whether the SWAs' data validating and reviewing procedures conform to Department instructions; and (iii) Whether SWAs have implemented any corrective action plans required by the Department to remedy deficiencies in their validation programs; (5) Technical assistance programs to assist SWAs in carrying out ES regulations and programs; (6) Reviews to assess whether the SWA has complied with corrective action plans imposed by the Department or by the SWA itself; and (7) Unannounced field checks of a sample of agricultural work sites to which ES placements have been made through the clearance system to determine and document whether wages, hours, and working and housing conditions are as specified on the clearance order. If regional office staff find reason to believe that conditions vary from clearance order specifications, findings must be documented on the Complaint/Apparent Violation Referral Form and provided to the State Workforce Agency to be processed as an apparent violation under § 658.419. (e) The Regional Administrator must provide technical assistance to SWAs to assist them in carrying out ES regulations and programs. (f) The Regional Administrator must appoint a RMA who must carry out the duties set forth in this subpart. The RMA must: (1) Review the effective functioning of the SMAs in their region; (2) Review the performance of SWAs in providing the full range of ES services to MSFWs; (3) Take steps to resolve ES-related problems of MSFWs which come to their attention; (4) Recommend to the Regional Administrator changes in policy towards MSFWs; (5) Review the operation of the Complaint System; and (6) Serve as an advocate to improve service for MSFWs within the ES. The RMA must be a member of the Regional Farm Labor Coordinated Enforcement Committee. (g) The RMA must be appointed by the Regional Administrator after informing farmworker organizations and other organizations in the region with expertise concerning MSFWs of the opening and encouraging them to refer qualified applicants to apply through the Federal merit system. The RMA must have direct personal access to the Regional Administrator wherever they find it necessary. Among qualified candidates, individuals must be sought who meet the criteria used in the selection of the SMAs, as provided in § 653.108(b) of this chapter. (h) The Regional Administrator must ensure that staff necessary to fulfill effectively all the regional office responsibilities set forth in this section are assigned. (i) The RMA must participate in training sessions including those offered by the National Office and those necessary to maintain competency and enhance their understanding of issues farmworkers face (including trainings offered by OSHA, WHD, EEOC, CRC, and other organizations offering farmworker-related information). (j) At the regional level, the RMA must have primary responsibility for: (1) Monitoring the effectiveness of the Complaint System set forth at subpart E of this part; (2) Apprising appropriate State and ETA officials of deficiencies in the Complaint System; and (3) Providing technical assistance to SMAs in the region. (k) At the ETA regional level, the RMA must have primary responsibility for ensuring SWA compliance with ES regulations as it pertains to services to MSFWs is monitored by the regional office. They must independently assess on a continuing basis the provision of ES services to MSFWs, seeking out and using: (1) Information from SMAs, including all reports and other documents; (2) Program performance data; (3) The periodic and other required reports from SWAs; (4) Federal on-site reviews; (5) Other reports prepared by the National Office; (6) Information received from farmworker organizations and employers; and (7) Any other pertinent information which comes to their attention from any possible source. (8) In addition, the RMA must consider their personal observations from visits to ES offices, agricultural work sites, and migrant camps. (l) The RMA must assist the Regional Administrator and other line officials in applying appropriate corrective and remedial actions to State agencies. (m) The Regional Administrator's quarterly report to the National Office must include the RMA's summary of their independent assessment as required in paragraph (f)(5) of this section. The fourth quarter summary must include an Annual Summary from the region. The summary also must include both a quantitative and a qualitative analysis of their reviews and must address all the matters with respect to which they have responsibilities under these regulations. (n) The RMA must review the activities and performance of the SMAs and the State monitoring system in the region, and must recommend any appropriate changes in the operation of the system to the Regional Administrator. The RMA's review must include a determination whether the SMA: (1) Does not have adequate access to information; (2) Is being impeded in fulfilling their duties; or (3) Is making recommendations that are being consistently ignored by SWA officials. If the RMA believes that the effectiveness of any SMA has been substantially impeded by the State Administrator, other State agency officials, any Federal officials, or other ES staff, the RMA must report and recommend appropriate actions to the Regional Administrator. Copies of the recommendations must be provided to the NMA electronically or in hard copy. (o)(1) The RMA must be informed of all proposed changes in policy and practice within the ES, including ES regulations, which may affect the delivery of services to MSFWs. They must advise the Regional Administrator on all such proposed changes which, in their opinion, may adversely affect MSFWs or which may substantially improve the delivery of services to MSFWs. (2) The RMA also may recommend changes in ES policy or regulations, as well as changes in the funding of State Workforce Agencies and/or adjustments of reallocation of the discretionary portions of funding formulae as they pertain to MSFWs. (p) The RMA must participate in the review and assessment activities required in this section and §§ 658.700 through 658.711. The RMA, an assistant, or another RMA must participate in National Office and regional office on-site statewide reviews of ES services to MSFWs in States in the region. The RMA must engage in the following activities in the course of participating in an on-site SWA review: (1) Accompany selected outreach staff on their field visits; (2) Participate in a field check of migrant camps or work sites where MSFWs have been placed on intrastate or interstate clearance orders; (3) Contact local WIOA sec. 167 National Farmworker Jobs Program grantees or other farmworker organizations as part of the on-site review, and must discuss with representatives of these organizations perceived trends, and/or other relevant information concerning MSFWs in the area; and (4) Meet with the SMA and discuss the full range of the ES services to MSFWs, including monitoring and the Complaint System. (q) During the calendar quarter preceding the time of peak MSFW activity in each State, the RMA must meet with the SMA and must review in detail the State Workforce Agency's capability for providing the full range of services to MSFWs as required by ES regulations, during the upcoming harvest season. The RMA must offer technical assistance and recommend to the SWA and/or the Regional Administrator any changes in State policy or practice that the RMA finds necessary. (r) As appropriate, each year during the peak harvest season, the RMA must visit each State in the region not scheduled for an onsite review during that fiscal year and must: (1) Meet with the SMA and other ES staff to discuss MSFW service delivery; and (2) Contact representatives of MSFW organizations to obtain information concerning ES delivery and coordination with other agencies and interested employer organizations. (s) The RMA must initiate and maintain regular and personal contacts, including informal contacts in addition to those specifically required by these regulations, with SMAs in the region. In addition, the RMA must have personal and regular contact with the NMA. The RMA also must establish routine and regular contacts with WIOA sec. 167 National Farmworker Jobs Program grantees, other farmworker organizations and agricultural employers and/or employer organizations in the RMA's region. The RMA must attend conferences or meetings of these groups wherever possible and must report to the Regional Administrator and the Regional Farm Labor Coordinated Enforcement Committee on these contacts when appropriate. The RMA also must make recommendations as to how the Department might better coordinate ES and WIOA sec. 167 National Farmworker Jobs Program services to MSFWs. (t) The RMA must attend MSFW-related public meeting(s) conducted in the region, as appropriate. Following such meetings or hearings, the RMA must take such steps or make such recommendations to the Regional Administrator, as the RMA deems necessary to remedy problem(s) or condition(s) identified or described therein. (u) The RMA must attempt to achieve regional solutions to any problems, deficiencies, or improper practices concerning services to MSFWs which are regional in scope. Further, the RMA must recommend policies, offer technical assistance, or take any other necessary steps as they deem desirable or appropriate on a regional, rather than State-by-State, basis to promote region-wide improvement in the delivery of ES services to MSFWs. The RMA must facilitate region-wide coordination and communication regarding provision of ES services to MSFWs among SMAs, State Administrators, and Federal ETA officials to the greatest extent possible. In the event that any SWA or other RMA, enforcement agency, or MSFW group refers a matter to the RMA which requires emergency action, the RMA must assist them in obtaining action by appropriate agencies and staff, inform the originating party of the action taken, and, upon request, provide written confirmation. (v) The RMA must initiate and maintain such contacts as they deem necessary with RMAs in other regions to seek to resolve problems concerning MSFWs who work, live, or travel through the region. The RMA must recommend to the Regional Administrator and/or the National Office inter-regional cooperation on any particular matter, problem, or policy with respect to which inter-regional action is desirable. (w) The RMA must establish regular contacts with the regional agricultural coordinators from WHD and OSHA and any other regional staff from other Federal enforcement agencies and must establish contacts with the staff of other Department agencies represented on the Regional Farm Labor Coordinated Enforcement Committee and to the extent necessary, on other pertinent task forces or committees. (x) The RMA must participate in the regional reviews of the State Plans, and must comment to the Regional Administrator as to the SWA compliance with the ES regulations as they pertain to services to MSFWs, including the staffing of ES offices." 20:20:4.0.1.1.2.4.5.5,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.604 Assessment and evaluation of program performance data.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]","(a) State Workforce Agencies must compile program performance data required by the Department, including statistical information on program operations. (b) The Department must use the program performance data in assessing and evaluating whether each SWA has complied with ES regulations and its State Plan. (c) In assessing and evaluating program performance data, the Department must act in accordance with the following general principles: (1) The fact that the program performance data from a SWA, 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 Workforce Agency's responsibilities under its State Plan; (2) Program performance data, however, may so strongly indicate that a SWA's performance is so poor that the data may raise a presumption ( prima facie case) that a SWA is violating ES regulations or the State Plan. A SWA's failure to meet the operational objectives set forth in the State Plan raises a presumption that the agency is violating ES regulations and/or obligations under its State Plan. In such cases, the Department must afford the SWA an opportunity to rebut the presumption of a violation pursuant to the procedures at subpart H of this part. (3) The Department must take into account that certain program performance data may measure items over which SWAs have direct or substantial control while other data may measure items over which the SWA has indirect or minimal control. (i) Generally, for example, a SWA has direct and substantial control over the delivery of ES services such as referrals to jobs, job development contacts, counseling, referrals to career and supportive services, and the conduct of field checks. (ii) State Workforce Agencies, however, have only indirect control over the outcome of services. For example, SWAs 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, such as a sudden heavy increase in unemployment rates, a strike by SWA employees, or a severe drought or flood, may skew the results measured by program performance data. (4) The Department must consider a SWA's failure to keep accurate and complete program performance data required by ES regulations as a violation of the ES regulations." 20:20:4.0.1.1.2.4.5.6,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,G,Subpart G—Review and Assessment of State Workforce Agency Compliance With Employment Service Regulations,,§ 658.605 Communication of findings to State agencies.,DOL,,,,"(a) The Regional Administrator must inform SWAs in writing of the results of review and assessment activities and, as appropriate, must discuss with the State Administrator the impact or action required by the Department as a result of review and assessment activities. (b) The ETA National Office must transmit the results of any review and assessment activities it conducted to the Regional Administrator who must send the information to the SWA. (c) Whenever the review and assessment indicates a SWA violation of ES regulations or its State Plan, the Regional Administrator must follow the procedures set forth at subpart H of this part. (d) Regional Administrators must follow-up any corrective action plan imposed on a SWA under subpart H of this part by further review and assessment of the State Workforce Agency pursuant to this subpart." 20:20:4.0.1.1.2.5.5.1,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.700 Scope and purpose of subpart.,DOL,,,,This subpart sets forth the procedures which the Department must follow upon either discovering independently or receiving from other(s) information indicating that SWAs may not be adhering to ES regulations. 20:20:4.0.1.1.2.5.5.10,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.709 Conduct of hearings.,DOL,,,,"(a) Proceedings under this section are governed by secs. 5 through 8 of the Administrative Procedure Act, 5 U.S.C. 553 et seq. and the rules of practice and procedure at subpart A of 29 CFR part 18, except as otherwise specified in this section. (b) Technical rules of evidence do 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, must be applied if necessary by the ALJ conducting the hearing. The ALJ may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record must be open to examination by the parties. Opportunity must be given to refute facts and arguments advanced on either side of the issue. A transcript must be made of the oral evidence except to the extent the substance thereof is stipulated for the record. (c) Discovery may be conducted as provided in the rules of practice and procedure at 29 CFR 18.50 through 18.65. (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 must be in the name of the substituted party, but any misnomer not affecting the substantive rights of the parties must be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order may not affect the substitution." 20:20:4.0.1.1.2.5.5.11,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.710 Decision of the Administrative Law Judge.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 86 FR 1778, Jan. 11, 2021]","(a) The ALJ has jurisdiction to decide all issues of fact and related issues of law and to grant or deny appropriate motions, but does not have jurisdiction to decide upon the validity of Federal statutes or regulations. (b) The decision of the ALJ must be based on the hearing record, must be in writing, and must state the factual and legal basis of the decision. The ALJ's decision must be available for public inspection and copying. (c) Except when the case involves the decertification of a SWA, the decision of the ALJ will be considered the final decision of the Secretary. (d) If the case involves the decertification of an appeal to the SWA, the decision of the ALJ must contain a notice stating that, within 30 calendar days of the decision, the SWA or the Administrator may appeal to the Administrative Review Board, United States Department of Labor, by filing an appeal with the Administrative Review Board in accordance with 29 CFR part 26." 20:20:4.0.1.1.2.5.5.12,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.711 Decision of the Administrative Review Board.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 13030, Mar. 6, 2020; 85 FR 30615, May 20, 2020]","(a) Upon the receipt of an appeal to the Administrative Review Board, United States Department of Labor, the ALJ must certify the record in the case to the Administrative Review Board, which must make a decision to decertify or not on the basis of the hearing record. (b) The decision of the Administrative Review Board must be in writing, and must set forth the factual and legal basis for the decision. After the Board's decision becomes final, notice of the decision must be published in the Federal Register, and copies must be made available for public inspection and copying." 20:20:4.0.1.1.2.5.5.2,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.701 Statements of policy.,DOL,,,,"(a) It is the policy of the Department to take all necessary action, including the imposition of the full range of sanctions set forth in this subpart, to ensure State Workforce Agencies comply with all requirements established by ES regulations. (b) It is the policy of the Department to initiate decertification procedures against SWAs 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 Department to act on information concerning alleged violations by SWAs of the ES regulations received from any person or organization." 20:20:4.0.1.1.2.5.5.3,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.702 Initial action by the Regional Administrator.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]","(a) The ETA Regional Administrator is responsible for ensuring that all SWAs in their region are in compliance with ES regulations. (b) Wherever a Regional Administrator discovers or is apprised of possible SWA 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 the Department after the exhaustion of SWA administrative remedies, the Regional Administrator must conduct an investigation. Within 10 business days after receipt of the report or other information, the Regional Administrator must make a determination whether there is probable cause to believe that a SWA has violated ES regulations. (c) The Regional Administrator must accept complaints regarding possible SWA violations of ES regulations from employee organizations, employers or other groups, without exhaustion of the complaint process described at subpart E of this part, 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 must investigate the matter within 10 business days, may provide the SWA 10 business days for comment, and must make a determination within an additional 10 business days whether there is probable cause to believe that the SWA has violated ES regulations. (d) If the Regional Administrator determines that there is no probable cause to believe that a SWA has violated ES regulations, they must retain all reports and supporting information in Department files. In all cases where the Regional Administrator has insufficient information to make a probable cause determination, they must so notify the Administrator in writing and the time for the investigation must be extended 20 additional business days. (e) If the Regional Administrator determines there is probable cause to believe a SWA has violated ES regulations, they must issue a Notice of Initial Findings of Non-compliance by registered mail (or other legally viable means) to the offending SWA. The notice will specify the nature of the violation, cite the regulations involved, and indicate corrective action which may be imposed in accordance with paragraphs (g) and (h) of this section. If the non-compliance involves services to MSFWs or the Complaint System, a copy of said notice must be sent to the NMA. (f)(1) The SWA may have 20 business days to comment on the findings, or up to 20 additional days, if the Regional Administrator determines a longer period is appropriate. The SWA's comments must include agreement or disagreement with the findings and suggested corrective actions, where appropriate. (2) After the period elapses, the Regional Administrator must prepare within 20 business days, written final findings which specify whether the SWA has violated ES regulations. If in the final findings the Regional Administrator determines the SWA has not violated ES regulations, the Regional Administrator must notify the State Administrator of this finding and retain supporting documents in their files. If the final finding involves services to MSFWs or the Complaint System, the Regional Administrator also must notify the RMA and the NMA. If the Regional Administrator determines a SWA has violated ES regulations, the Regional Administrator must prepare a Final Notice of Noncompliance which must specify the violation(s) and cite the regulations involved. The Final Notice of Noncompliance must be sent to the SWA by registered mail or other legally viable means. If the noncompliance involves services to MSFWs or the Complaint System, a copy of the Final Notice must be sent to the RMA and the NMA. (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 must give the reasons for the disallowance, inform the SWA that the disallowance is effective immediately and that no more funds may be spent in the disallowed manner, and offer the SWA the opportunity to request a hearing pursuant to § 658.707. The offer, or the acceptance of an offer of a hearing, however, does not stay the effectiveness of the disallowance. The Regional Administrator must keep complete records of the disallowance. (h) If the violation does not involve misspending of grant funds or the Regional Administrator determines that the circumstances warrant other action: (1) The Final Notice of Noncompliance must direct the SWA to implement a specific corrective action plan to correct all violations. If the SWA'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 violation(s) and accept the SWA's resolution, subject to follow-up review, if necessary. If the Regional Administrator determines that the violation(s) cited had been found previously and that the corrective action(s) taken had not corrected the violation(s) contrary to the findings of previous follow-up reviews, the Regional Administrator must apply remedial actions to the SWA pursuant to § 658.704. (2) The Final Notice of Noncompliance must specify the time by which each corrective action must be taken. This period may not exceed 40 business 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 Complaint System, the Regional Administrator must notify the Administrator in writing of the exceptional circumstances which necessitate more time, and must specify the additional time period. The specified time must commence with the date of signature on the registered mail receipt. (3) When the time provided for in paragraph (h)(2) of this section elapses, Department staff must review the SWA's efforts as documented by the SWA to determine if the corrective action(s) has been taken and if the SWA has achieved compliance with ES regulations. If necessary, Department staff must conduct a follow-up visit as part of this review. (4) If, as a result of this review, the Regional Administrator determines the SWA has corrected the violation(s), the Regional Administrator must record the basis for this determination, notify the SWA, send a copy to the Administrator, and retain a copy in Department files. (5) If, as a result of this review, the Regional Administrator determines the SWA has taken corrective action but is unable to determine if the violation has been corrected due to seasonality or other factors, the Regional Administrator must notify in writing the SWA and the Administrator of their findings. The Regional Administrator must conduct further follow-up at an appropriate time to make a final determination if the violation has been corrected. If the Regional Administrator's follow-up reveals that violations have not been corrected, the Regional Administrator must apply remedial actions to the SWA pursuant to § 658.704. (6) If, as a result of the review the Regional Administrator determines the SWA has not corrected the violations and has not made good faith efforts and adequate progress toward the correction of the violations, the Regional Administrator must apply remedial actions to the SWA pursuant to § 658.704. (7) If, as a result of the review, the Regional Administrator determines the SWA has made good faith efforts and adequate progress toward the correction of the violation and it appears the violation will be fully corrected within a reasonable amount of time, the SWA must be advised by registered mail or other legally viable means (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 may not exceed 40 business days unless the Regional Administrator determines exceptional circumstances necessitate corrective action requiring more time. In such cases, the Regional Administrator must notify the Administrator in writing of the exceptional circumstances which necessitate more time, and must specify that time period. The specified time commences with the date of signature on the registered mail receipt. (8)(i) If the SWA has been given additional time pursuant to paragraph (h)(7) of this section, Department staff must review the SWA's efforts as documented by the SWA at the end of the time period. If necessary, the Department must conduct a follow-up visit as part of this review. (ii) If the SWA has corrected the violation(s), the Regional Administrator must document that finding, notify in writing the SWA and the Administrator, and retain supporting documents in Department files. If the SWA has not corrected the violation(s), the Regional Administrator must apply remedial actions pursuant to § 658.704." 20:20:4.0.1.1.2.5.5.4,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.703 Emergency corrective action.,DOL,,,,"In critical situations as determined by the Regional Administrator, where it is necessary to protect the integrity of the funds, or ensure the proper operation of the program, the Regional Administrator may impose immediate corrective action. Where immediate corrective action is imposed, the Regional Administrator must notify the SWA of the reason for imposing the emergency corrective action prior to providing the SWA an opportunity to comment." 20:20:4.0.1.1.2.5.5.5,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.704 Remedial actions.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 85 FR 630, Jan. 6, 2020; 88 FR 82736, Nov. 24, 2023]","(a) If a SWA fails to correct violations as determined pursuant to § 658.702, the Regional Administrator must apply one or more of the following remedial actions to the SWA: (1) Imposition of special reporting requirements for a specified 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 ES staff; (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 decision-making 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 SWA 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 SWA 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 SWA's deficiencies; (9) Disallowance of funds pursuant to § 658.702(g); or (10) If the matter involves a serious or continual violation, the initiation of decertification procedures against the State Workforce Agency, as set forth in paragraph (e) of this section. (b) The Regional Administrator must send, by registered mail, a Notice of Remedial Action to the SWA. The Notice of Remedial Action must set forth the reasons for the remedial action. When such a notice is the result of violations of regulations governing services to MSFWs (§§ 653.100 through 653.113 of this chapter) or the Complaint System (§§ 658.400 through 658.426), a copy of said notice must be sent to the Administrator, who must publish the notice promptly in the Federal Register . (c) If the remedial action is other than decertification, the notice must state the remedial action must take effect immediately. The notice also must state the SWA may request a hearing pursuant to § 658.707 by filing a request in writing with the Regional Administrator pursuant to § 658.707 within 20 business days of the SWA's receipt of the notice. The offer of hearing, or the acceptance thereof, however, does not stay or otherwise delay the implementation of remedial action. (d) Within 60 business days after the initial application of remedial action, the Regional Administrator must conduct a review of the SWA's compliance with ES regulations unless the Regional Administrator determines more time is necessary. In such cases, the Regional Administrator must notify the Administrator in writing of the circumstances which necessitate more time, and specify that time period. If necessary, Department staff must conduct a follow-up visit as part of this review. If the SWA is in compliance with the ES regulations, the Regional Administrator must fully document these facts and must terminate the remedial actions. The Regional Administrator must notify the SWA of their findings. When the case involves violations of regulations governing services to MSFWs or the Complaint System, a copy of said notice must be sent to the Administrator, who must promptly publish the notice in the Federal Register. The Regional Administrator must conduct, within a reasonable time after terminating the remedial actions, a review of the SWA's compliance to determine whether any remedial actions must be reapplied. (e) If, upon conducting the on-site review referred to in paragraph (c) of this section, the Regional Administrator finds the SWA remains in noncompliance, the Regional Administrator must continue the remedial action and/or impose different additional remedial actions. The Regional Administrator must fully document all such decisions and, when the case involves violations of regulations governing services to MSFWs or the Complaint System, must send copies to the Administrator, who must promptly publish the notice in the Federal Register . (f)(1) If the SWA has not brought itself into compliance with ES regulations within 120 business days of the initial application of remedial action, the Regional Administrator must initiate decertification unless the Regional Administrator determines the circumstances necessitate continuing remedial action for more time. In such cases, the Regional Administrator must notify the Administrator in writing of the circumstances which necessitate the extended time, and specify the time period. (2) The Regional Administrator must notify the SWA by registered mail or by other legally viable means of the decertification proceedings, and must state the reasons therefor. Whenever such a notice is sent to a SWA, the Regional Administrator must prepare five copies (hard copies or electronic copies) containing, in chronological order, all the documents pertinent to the case along with a request for decertification stating the grounds therefor. One copy must be retained. Two must be sent to the ETA National Office, one must be sent to the Solicitor of Labor, Attention: Associate Solicitor for Employment and Training, and, if the case involves violations of regulations governing services to MSFWs or the Complaint System, copies must be sent to the RMA and the NMA. All copies also must be sent electronically to each respective party. The notice sent by the Regional Administrator must be published promptly in the Federal Register ." 20:20:4.0.1.1.2.5.5.6,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.705 Decision to decertify.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82736, Nov. 24, 2023]","(a) Within 30 business days of receiving a request for decertification, the ETA Assistant Secretary must review the case and must decide whether to proceed with decertification. (b) The Assistant Secretary must grant the request for decertification unless they make a finding that: (1) The violations of ES regulations are neither serious nor continual; (2) The SWA is in compliance; or (3) The Assistant Secretary has reason to believe the SWA will achieve compliance within 80 business days unless exceptional circumstances necessitate more time, pursuant to the remedial action already applied or to be applied. (In the event the Assistant Secretary does not have sufficient information to act upon the request, they may postpone the determination for up to an additional 20 business days to obtain any available additional information.) In making a determination whether violations are “serious” or “continual,” as required by paragraph (b)(1) of this section, the Assistant Secretary must consider: (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 to achieve full compliance with ES regulations as shown by the record. (c) If the Assistant Secretary denies a request for decertification, they must write a complete report documenting their findings and, if appropriate, instructing an alternate remedial action or actions be applied. Electronic copies of the report must be sent to the Regional Administrator. Notice of the Assistant Secretary's decision must be published promptly in the Federal Register and the report of the Assistant Secretary must be made available for public inspection and copying. (d) If the Assistant Secretary decides decertification is appropriate, they must submit the case to the Secretary providing written explanation for their recommendation of decertification. (e) Within 30 business days after receiving the Assistant Secretary's report, the Secretary must determine whether to decertify the SWA. The Secretary must grant the request for decertification unless they make one of the three findings set forth in paragraph (b) of this section. If the Secretary decides not to decertify, they must then instruct that remedial action be continued or that alternate actions be applied. The Secretary must write a report explaining their reasons for not decertifying the SWA and copies (hard copy and electronic) will be sent to the SWA. Notice of the Secretary's decision must be published promptly in the Federal Register, and the report of the Secretary must be made available for public inspection and copy. (f) Where either the Assistant Secretary or the Secretary denies a request for decertification and orders further remedial action, the Regional Administrator must continue to monitor the SWA's compliance. If the SWA achieves compliance within the time established pursuant to paragraph (b) of this section, the Regional Administrator must terminate the remedial actions. If the SWA fails to achieve full compliance within that time period after the Secretary's decision not to decertify, the Regional Administrator must submit a report of their findings to the Assistant Secretary who must reconsider the request for decertification pursuant to the requirements of paragraph (b) of this section." 20:20:4.0.1.1.2.5.5.7,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.706 Notice of decertification.,DOL,,,"[88 FR 82737, Nov. 24, 2023]","If the Secretary decides to decertify a SWA, they must send a Notice of Decertification to the SWA stating the reasons for this action and providing a 10-business-day period during which the SWA may request an administrative hearing in writing to the Secretary. The document must be published promptly in the Federal Register ." 20:20:4.0.1.1.2.5.5.8,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.707 Requests for hearings.,DOL,,,"[81 FR 56352, Aug. 19, 2016, as amended at 88 FR 82737, Nov. 24, 2023]","(a) Any SWA which received a Notice of Decertification under § 658.706 or a notice of disallowance under § 658.702(g) may request a hearing on the issue by filing a written request for hearing with the Secretary within 10 business days of receipt of the notice. Additionally, any SWA that has received a Notice of Remedial Action under § 658.704(c) may request a hearing by filing a written request with the Regional Administrator within 20 business days of the SWA's receipt of the notice. This request must state the reasons the SWA believes the basis of the decision to be wrong, and it must be signed by the State Administrator (electronic signatures may be accepted). (b) When the Secretary or Regional Administrator receives a request for a hearing from a SWA, they must send copies of a file containing all materials and correspondence relevant to the case to the Assistant Secretary, the Regional Administrator, the Solicitor of Labor, and the Department of Labor Chief Administrative Law Judge. When the case involves violations of regulations governing services to MSFWs or the Complaint System, a copy must be sent to the NMA. (c) The Secretary must publish notice of hearing in the Federal Register. This notice must invite all interested parties to attend and to present evidence at the hearing. All interested parties who make written request to participate must thereafter receive copies (hard copy and/or electronic) of all documents filed in said proceedings." 20:20:4.0.1.1.2.5.5.9,20,Employees' Benefits,V,,658,PART 658—ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE,H,Subpart H—Federal Application of Remedial Action to State Workforce Agencies,,§ 658.708 Hearings.,DOL,,,,"(a) Upon receipt of a hearing file by the Chief Administrative Law Judge, the case must be docketed and notice sent by electronic mail, other means of electronic service, or 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 must set a time, place, and date for a hearing on the matter and must 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 will represent the Department at the hearing." 34:34:3.1.3.1.24.1.17.1,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,A,Subpart A—General,,§ 658.1 What is the Undergraduate International Studies and Foreign Language Program?,ED,,,"[64 FR 7739, Feb. 16, 1999, as amended at 74 FR 35073, July 17, 2009]","The Undergraduate International Studies and Foreign Language Program is designed to provide assistance to institutions of higher education, consortia of those institutions, or partnerships between nonprofit educational organizations and institutions of higher education, to assist those institutions, consortia, or partnerships in planning, developing, and carrying out programs to improve undergraduate instruction in international studies and foreign languages." 34:34:3.1.3.1.24.1.17.2,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,A,Subpart A—General,,§ 658.2 Who is eligible to apply for assistance under this program?,ED,,,"[47 FR 14122, Apr. 1, 1982, as amended at 64 FR 7739, Feb. 16, 1999; 74 FR 35073, July 17, 2009]","The following are eligible to apply for assistance under this part: (a) Institutions of higher education. (b) Consortia of institutions of higher education. (c) Partnerships between nonprofit educational organizations and institutions of higher education. (d) Public and private nonprofit agencies and organizations, including professional and scholarly associations." 34:34:3.1.3.1.24.1.17.3,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,A,Subpart A—General,,§ 658.3 What regulations apply?,ED,,,"[58 FR 32576, June 10, 1993]","The following regulations apply to this program: (a) The regulations in 34 CFR part 655. (b) The regulations in this part 658." 34:34:3.1.3.1.24.1.17.4,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,A,Subpart A—General,,§ 658.4 What definitions apply to the Undergraduate International Studies and Foreign Language Program?,ED,,,,The definitions in 34 CFR 655.4 apply to this program. 34:34:3.1.3.1.24.2.17.1,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,B,Subpart B—What Kinds of Projects Does the Secretary Assist Under This Program?,,§ 658.10 For what kinds of projects does the Secretary assist institutions of higher education?,ED,,,"[47 FR 14122, Apr. 1, 1982, as amended at 52 FR 28422, July 29, 1987; 58 FR 32576, June 10, 1993; 64 FR 7740, Feb. 16, 1999; 74 FR 35074, July 17, 2009]","(a) The Secretary may provide assistance to an institution of higher education, a consortium of institutions of higher education, or a partnership between a nonprofit educational organization and an institution of higher education to plan, develop, and carry out a program to improve undergraduate instruction in international studies and foreign languages. Those grants must be awarded to institutions, consortia, or partnerships seeking to create new programs or to strengthen existing programs in foreign languages, area studies, and other international fields. (b) The Secretary gives consideration to an applicant that proposes a program that— (1) Initiates new or revised courses in international or area studies; (2) Makes instruction in foreign languages available to students in the program; and (3) Takes place primarily in the United States. (c) The program shall focus on— (1) International or global studies; (2) One or more world areas and their languages; or (3) Issues or topics, such as international environmental studies or international health." 34:34:3.1.3.1.24.2.17.2,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,B,Subpart B—What Kinds of Projects Does the Secretary Assist Under This Program?,,§ 658.11 What projects and activities may a grantee conduct under this program?,ED,,,"[64 FR 7740, Feb. 16, 1999, as amended at 74 FR 35074, July 17, 2009]","The Secretary awards grants under this part to assist in carrying out projects and activities that are an integral part of a program to improve undergraduate instruction in international studies and foreign languages. These include projects such as— (a) Planning for the development and expansion of undergraduate programs in international studies and foreign languages; (b) Teaching, research, curriculum development, faculty training in the United States or abroad, and other related activities, including— (1) Expanding library and teaching resources; (2) Conducting faculty workshops, conferences, and special lectures; (3) Developing and testing new curricular materials, including self-instructional materials in foreign languages, or specialized language materials dealing with a particular subject (such as health or the environment); (4) Initiating new and revised courses in international studies or area studies and foreign languages; and (5) Conducting pre-service teacher training and in-service teacher professional development; (c) Expanding the opportunities for learning foreign languages, including less commonly taught languages; (d) Providing opportunities for which foreign faculty and scholars may visit institutions as visiting faculty; (e) Placing U.S. faculty members in internships with international associations or with governmental or nongovernmental organizations in the U.S. or abroad to improve their understanding of international affairs; (f) Developing international education programs designed to develop or enhance linkages between 2-and 4-year institutions of higher education, or baccalaureate and post-baccalaureate programs or institutions; (g) Developing undergraduate educational programs— (1) In locations abroad where those opportunities are not otherwise available or that serve students for whom those opportunities are not otherwise available; and (2) That provide courses that are closely related to on-campus foreign language and international curricula; (h) Integrating new and continuing education abroad opportunities for undergraduate students into curricula of specific degree programs; (i) Developing model programs to enrich or enhance the effectiveness of educational programs abroad, including pre-departure and post-return programs, and integrating educational programs abroad into the curriculum of the home institution; (j) Providing grants for educational programs abroad that— (1) Are closely linked to the program's overall goals; and (2) Have the purpose of promoting foreign language fluency and knowledge of world regions; (k) Developing programs designed to integrate professional and technical education with foreign languages, area studies, and other international fields; (l) Establishing linkages overseas with institutions of higher education and organizations that contribute to the educational programs assisted under this part; (m) Developing partnerships between— (1) Institutions of higher education; and (2) The private sector, government, or elementary and secondary education institutions in order to enhance international knowledge and skills; and (n) Using innovative technology to increase access to international education programs." 34:34:3.1.3.1.24.2.17.3,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,B,Subpart B—What Kinds of Projects Does the Secretary Assist Under This Program?,,§ 658.12 For what kinds of projects does the Secretary assist associations and organizations?,ED,,,,"The Secretary may award grants under this part to public and private nonprofit agencies and organizations including scholarly associations, that propose projects that will make an especially significant contribution to strengthening and improving undergraduate instruction in international studies and foreign languages at institutions of higher education." 34:34:3.1.3.1.24.4.17.1,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.30 How does the Secretary evaluate an application?,ED,,,"[70 FR 13375, Mar. 21, 2005, as amended at 74 FR 35074, July 17, 2009]","(a) The Secretary evaluates an application from an institution of higher education or a consortium of such institutions on the basis of the criteria in §§ 658.31 and 658.32. The Secretary informs applicants of the maximum possible score for each criterion in the application package or in a notice published in the Federal Register . (b) The Secretary evaluates an application from an agency or organization or professional or scholarly association on the basis of the criteria in §§ 658.31 and 658.33. The Secretary informs applicants of the maximum possible score for each criterion in the application package or in a notice published in the Federal Register ." 34:34:3.1.3.1.24.4.17.2,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.31 What selection criteria does the Secretary use?,ED,,,"[47 FR 14122, Apr. 1, 1982, as amended at 70 FR 13375, Mar. 21, 2005]","The Secretary evaluates an application for a project under this program on the basis of the criteria in this section. (a) Plan of operation. (See 34 CFR 655. 31(a)) (b) Quality of key personnel. (See 34 CFR 655.31(b)) (c) Budget and cost effectiveness. (See 34 CFR 655.31(c)) (d) Evaluation plan. (See 34 CFR 655.31(d)) (e) Adequacy of resources. (See 34 CFR 655.31(e))" 34:34:3.1.3.1.24.4.17.3,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.32 What additional criteria does the Secretary apply to institutional applications?,ED,,,"[47 FR 14122, Apr. 1, 1982, as amended at 52 FR 28422, July 29, 1987; 70 FR 13375, Mar. 21, 2005; 74 FR 35074, July 17, 2009]","In addition to the criteria referred to in § 658.31, the Secretary evaluates an application submitted by an institution of higher education or a consortium of such institutions on the basis of the criteria in this section. (a) Commitment to international studies. (1) The Secretary reviews each application for information that shows the applicant's commitment to the international studies program. (2) The Secretary looks for information that shows— (i) The institution's current strength as measured by the number of international studies courses offered; (ii) The extent to which planning for the implementation of the proposed program has involved the applicant's faculty, as well as administrators; (iii) The institutional commitment to the establishment, operation, and continuation of the program as demonstrated by optimal use of available personnel and other resources; and (iv) The institutional commitment to the program as demonstrated by the use of institutional funds in support of the program's objectives. (b) Elements of the proposed international studies program. (1) The Secretary reviews each application for information that shows the nature of the applicant's proposed international studies program. (2) The Secretary looks for information that shows— (i) The extent to which the proposed activities will contribute to the implementation of a program in international studies and foreign languages at the applicant institution; (ii) The interdisciplinary aspects of the program; (iii) The number of new and revised courses with an international perspective that will be added to the institution's programs; and (iv) The applicant's plans to improve or expand language instruction. (c) Need for and prospective results of the proposed program. (1) The Secretary reviews each application for information that shows the need for and the prospective results of the applicant's proposed program. (2) The Secretary looks for information that shows— (i) The extent to which the proposed activities are needed at the applicant institution; (ii) The extent to which the proposed use of Federal funds will result in the implementation of a program in international studies and foreign languages at the applicant institution; (iii) The likelihood that the activities initiated with Federal funds will be continued after Federal assistance is terminated; and (iv) The adequacy of the provisions for sharing the materials and results of the program with other institutions of higher education." 34:34:3.1.3.1.24.4.17.4,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.33 What additional criterion does the Secretary apply to applications from organizations and associations?,ED,,,"[47 FR 14122, Apr. 1, 1982, as amended at 70 FR 13375, Mar. 21, 2005]","In addition to the criteria referred to in § 658.31, the Secretary evaluates an application submitted by an organization or association on the basis of the criterion in this section. (a) Need for and potential impact of the proposed project in improving international studies and the study of modern foreign language at the undergraduate level. (b) The Secretary reviews each application for information that shows the need for and the potential impact of the applicant's proposed projects in improving international studies and the study of modern foreign language at the undergraduate level. (1) The Secretary looks for information that shows— (i) The extent to which the applicant's proposed apportionment of Federal funds among the various budget categories for the proposed project will contribute to achieving results; (ii) The international nature and contemporary relevance of the proposed project; (iii) The extent to which the proposed project will make an especially significant contribution to the improvement of the teaching of international studies or modern foreign languages at the undergraduate level; and (iv) The adequacy of the applicant's provisions for sharing the materials and results of the proposed project with the higher education community. (2) [Reserved]" 34:34:3.1.3.1.24.4.17.5,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.34 What additional factors does the Secretary consider in selecting grant recipients?,ED,,,"[58 FR 32576, June 10, 1993]","In addition to applying the selection criteria in, as appropriate §§ 658.31, 658.32, and 658.33, the Secretary, to the extent practicable and consistent with the criterion of excellence, seeks to encourage diversity by ensuring that a variety of types of projects and institutions receive funding." 34:34:3.1.3.1.24.4.17.6,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,D,Subpart D—How Does the Secretary Make a Grant?,,§ 658.35 What priority does the Secretary give?,ED,,,"[58 FR 32576, June 10, 1993, as amended at 74 FR 35074, July 17, 2009]","(a) The Secretary gives priority to applications from institutions of higher education or consortia of these institutions that require entering students to have successfully completed at least two years of secondary school foreign language instruction or that require each graduating student to earn two years of postsecondary credit in a foreign language (or have demonstrated equivalent competence in the foreign language) or, in the case of a 2-year degree granting institution, offer two years of postsecondary credit in a foreign language. (b) The Secretary announces the number of points to be awarded under this priority in the application notice published in the Federal Register." 34:34:3.1.3.1.24.5.17.1,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,E,Subpart E—What Conditions Must Be Met by a Grantee?,,§ 658.40 What are the limitations on allowable costs?,ED,,,"[74 FR 35074, July 17, 2009]","(a) Equipment costs may not exceed five percent of the grant amount; and (b) No more than ten percent of the total amount of grant funds awarded to a grantee under this part may be used for the activity described in § 658.11(j)." 34:34:3.1.3.1.24.5.17.2,34,Education,VI,,658,PART 658—UNDERGRADUATE INTERNATIONAL STUDIES AND FOREIGN LANGUAGE PROGRAM,E,Subpart E—What Conditions Must Be Met by a Grantee?,,§ 658.41 What are the cost-sharing requirements?,ED,,,"[58 FR 32577, June 10, 1993, as amended at 64 FR 7740, Feb. 16, 1999; 74 FR 35074, July 17, 2009]","(a) The grantee's share may be derived from cash contributions from private sector corporations or foundations in the amount of one-third of the total cost of the project. (b) The grantee's share may be derived from cash or in-kind contributions from institutional and noninstitutional funds, including State and private sector corporation or foundation contributions, equal to one-half of the total cost of the project. (c) In-kind contributions means property or services that benefit a grant-supported project or program and that are contributed by non-Federal third parties without charge to the grantee. (d) The Secretary may waive or reduce the required non-Federal share for institutions that— (1) Are eligible to receive assistance under part A or B of title III or under title V of the Higher Education Act of 1965, as amended; and (2) Have submitted a grant application under this part that demonstrates a need for a waiver or reduction." 7:7:6.1.3.6.27.0.1.1,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.1 Purpose.,NRCS,,,,"This part sets out the criteria developed by the Secretary of Agriculture, in cooperation with other Federal agencies, pursuant to section 1541(a) of the Farmland Protection Policy Act (FPPA or the Act) 7 U.S.C. 4202(a). As required by section 1541(b) of the Act, 7 U.S.C. 4202(b), Federal agencies are (a) to use the criteria to identify and take into account the adverse effects of their programs on the preservation of farmland, (b) to consider alternative actions, as appropriate, that could lessen adverse effects, and (c) to ensure that their programs, to the extent practicable, are compatible with State and units of local government and private programs and policies to protect farmland. Guidelines to assist agencies in using the criteria are included in this part. The Department of Agriculture (hereinafter USDA) may make available to States, units of local government, individuals, organizations, and other units of the Federal Government, information useful in restoring, maintaining, and improving the quantity and quality of farmland." 7:7:6.1.3.6.27.0.1.2,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.2 Definitions.,NRCS,,,"[49 FR 27724, July 5, 1984, as amended at 59 FR 31117, June 17, 1994]","(a) Farmland means prime or unique farmlands as defined in section 1540(c)(1) of the Act or farmland that is determined by the appropriate state or unit of local government agency or agencies with concurrence of the Secretary to be farmland of statewide of local importance. “Farmland” does not include land already in or committed to urban development or water storage. Farmland “already in” urban development or water storage includes all such land with a density of 30 structures per 40-acre area. Farmland already in urban development also includes lands identified as “urbanized area” (UA) on the Census Bureau Map, or as urban area mapped with a “tint overprint” on the USGS topographical maps, or as “urban-built-up” on the USDA Important Farmland Maps. Areas shown as white on the USDA Important Farmland Maps are not “farmland” and, therefore, are not subject to the Act. Farmland “committed to urban development or water storage” includes all such land that receives a combined score of 160 points or less from the land evaluation and site assessment criteria. (b) Federal agency means a department, agency, independent commission, or other unit of the Federal Government. (c) Federal program means those activities or responsibilities of a Federal agency that involve undertaking, financing, or assisting construction or improvement projects or acquiring, managing, or disposing of Federal lands and facilities. (1) The term “Federal program” does not include: (i) Federal permitting, licensing, or rate approval programs for activities on private or non-Federal lands; and (ii) Construction or improvement projects that were beyond the planning stage and were in either the active design or construction state on August 4, 1984. (2) For the purposes of this section, a project is considered to be “beyond the planning stage and in either the active design or construction state on August 4, 1984” if, on or before that date, actual construction of the project had commenced or: (i) Acquisition of land or easements for the project had occurred or all required Federal agency planning documents and steps were completed and accepted, endorsed, or approved by the appropriate agency; (ii) A final environmental impact statement was filed with the Environmental Protection Agency or an environmental assessment was completed and a finding of no significant impact was executed by the appropriate agency official; and (iii) The engineering or architectural design had begun or such services had been secured by contract. The phrase “undertaking, financing, or assisting construction or improvement projects” includes providing loan guarantees or loan insurance for such projects and includes the acquisition, management and disposal of land or facilities that a Federal agency obtains as the result of foreclosure or other actions taken under a loan or other financial assistance provided by the agency directly and specifically for that property. For the purposes of this section, the phrase “acquiring, managing, or disposing of Federal lands and facilities” refers to lands and facilities that are acquired, managed, or used by a Federal agency specifically in support of a Federal activity or program, such as national parks, national forests, or military bases, and does not refer to lands and facilities that are acquired by a Federal agency as the incidental result of actions by the agency that give the agency temporary custody or ownership of the lands or facilities, such as acquisition pursuant to a lien for delinquent taxes, the exercise of conservatorship or receivership authority, or the exercise of civil or criminal law enforcement forfeiture or seizure authority. (d) State or local government policies or programs to protect farmland include: Zoning to protect farmland; agricultural land protection provisions of a comprehensive land use plan which has been adopted or reviewed in its entirety by the unit of local government in whose jurisdiction it is operative within 10 years preceding proposed implementation of the particular Federal program; completed purchase or acquisition of development rights; completed purchase or acquisition of conservation easements; prescribed procedures for assessing agricultural viability of sites proposed for conversion; completed agricultural districting and capital investments to protect farmland. (e) Private programs to protect farmland means programs for the protection of farmland which are pursuant to and consistent with State and local government policies or programs to protect farmland of the affected State and unit of local government, but which are operated by a nonprofit corporation, foundation, association, conservancy, district, or other not-for-profit organization existing under State or Federal laws. Private programs to protect farmland may include: (1) Acquiring and holding development rights in farmland and (2) facilitating the transfer of development rights of farmland. (f) Site means the location(s) that would be converted by the proposed action(s). (g) Unit of local government means the government of a county, municipality, town, township, village, or other unit of general government below the State level, or a combination of units of local government acting through an areawide agency under a State law or an agreement for the formulation of regional development policies and plans." 7:7:6.1.3.6.27.0.1.3,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.3 Applicability and exemptions.,NRCS,,,"[49 FR 27724, July 5, 1984, as amended at 59 FR 31117, June 17, 1994]","(a) Section 1540(b) of the Act, 7 U.S.C. 4201(b), states that the purpose of the Act is to minimize the extent to which Federal programs contribute to the unnecessary and irreversible conversion of farmland to nonagricultural uses. Conversion of farmland to nonagricultural uses does not include the construction of on-farm structures necessary for farm operations. Federal agencies can obtain assistance from USDA in determining whether a proposed location or site meets the Act's definition of farmland. The USDA Natural Resources Conservation Service (NRCS) field office serving the area will provide the assistance. Many State or local government planning offices can also provide this assistance. (b) Acquisition or use of farmland by a Federal agency for national defense purposes is exempted by section 1547(b) of the Act, 7 U.S.C. 4208(b). (c) The Act and these regulations do not authorize the Federal Government in any way to regulate the use of private or non-Federal land, or in any way affect the property rights of owners of such land. In cases where either a private party or a non-Federal unit of government applies for Federal assistance to convert farmland to a nonagricultural use, the Federal agency should use the criteria set forth in this part to identify and take into account any adverse effects on farmland of the assistance requested and develop alternative actions that would avoid or mitigate such adverse effects. If, after consideration of the adverse effects and suggested alternatives, the landowners want to proceed with conversion, the Federal agency, on the basis of the analysis set forth in § 658.4 and any agency policies or procedures for implementing the Act, may provide or deny the requested assistance. Only assistance and actions that would convert farmland to nonagricultural uses are subject to this Act. Assistance and actions related to the purchase, maintenance, renovation, or replacement of existing structures and sites converted prior to the time of an application for assistance from a Federal agency, including assistance and actions related to the construction of minor new ancillary structures (such as garages or sheds), are not subject to the Act. (d) Section 1548 of the Act, as amended, 7 U.S.C. 4209, states that the Act shall not be deemed to provide a basis for any action, either legal or equitable, by any person or class of persons challenging a Federal project, program, or other activity that may affect farmland. Neither the Act nor this rule, therefore, shall afford any basis for such an action. However, as further provided in section 1548, the governor of an affected state, where a state policy or program exists to protect farmland, may bring an action in the Federal district court of the district where a Federal program is proposed to enforce the requirements of section 1541 of the Act, 7 U.S.C. 4202, and regulations issued pursuant to that section." 7:7:6.1.3.6.27.0.1.4,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.4 Guidelines for use of criteria.,NRCS,,,"[49 FR 27724, July 5, 1984, as amended at 59 FR 31118, June 17, 1994]","As stated above and as provided in the Act, each Federal agency shall use the criteria provided in § 658.5 to identify and take into account the adverse effects of Federal programs on the protection of farmland. The agencies are to consider alternative actions, as appropriate, that could lessen such adverse effects, and assure that such Federal programs, to the extent practicable, are compatible with State, unit of local government and private programs and policies to protect farmland. The following are guidelines to assist the agencies in these tasks: (a) An agency may determine whether or not a site is farmland as defined in § 658.2(a) or the agency may request that NRCS make such a determination. If an agency elects not to make its own determination, it should make a request to NRCS on Form AD-1006, the Farmland Conversion Impact Rating Form, available at NRCS offices, for determination of whether the site is farmland subject to the Act. If neither the entire site nor any part of it are subject to the Act, then the Act will not apply and NRCS will so notify the agency. If the site is determined by NRCS to be subject to the Act, then NRCS will measure the relative value of the site as farmland on a scale of 0 to 100 according to the information sources listed in § 658.5(a). NRCS will respond to these requests within 10 working days of their receipt except that in cases where a site visit or land evaluation system design is needed, NRCS will respond in 30 working days. In the event that NRCS fails to complete its response within the required period, if further delay would interfere with construction activities, the agency should proceed as though the site were not farmland. (b) The Form AD 1006, returned to the agency by NRCS will also include the following incidental information: The total amount of farmable land (the land in the unit of local government's jurisdiction that is capable of producing the commonly grown crop); the percentage of the jurisdiction that is farmland covered by the Act; the percentage of farmland in the jurisdiction that the project would convert; and the percentage of farmland in the local government's jurisdiction with the same or higher relative value than the land that the project would convert. These statistics will not be part of the criteria scoring process, but are intended simply to furnish additional background information to Federal agencies to aid them in considering the effects of their projects on farmland. (c) After the agency receives from NRCS the score of a site's relative value as described in § 658.4(a) and then applies the site assessment criteria which are set forth in § 658.5 (b) and (c), the agency will assign to the site a combined score of up to 260 points, composed of up to 100 points for relative value and up to 160 points for the site assessment. With this score the agency will be able to identify the effect of its programs on farmland, and make a determination as to the suitability of the site for protection as farmland. Once this score is computed, USDA recommends: (1) Sites with the highest combined scores be regarded as most suitable for protection under these criteria and sites with the lowest scores, as least suitable. (2) Sites receiving a total score of less than 160 need not be given further consideration for protection and no additional sites need to be evaluated. (3) Sites receiving scores totaling 160 or more be given increasingly higher levels of consideration for protection. (4) When making decisions on proposed actions for sites receiving scores totaling 160 or more, agency personnel consider: (i) Use of land that is not farmland or use of existing structures; (ii) Alternative sites, locations and designs that would serve the proposed purpose but convert either fewer acres of farmland or other farmland that has a lower relative value; (iii) Special siting requirements of the proposed project and the extent to which an alternative site fails to satisfy the special siting requirements as well as the originally selected site. (d) Federal agencies may elect to assign the site assessment criteria relative weightings other than those shown in § 658.5 (b) and (c). If an agency elects to do so, USDA recommends that the agency adopt its alternative weighting system (1) through rulemaking in consultation with USDA, and (2) as a system to be used uniformly throughout the agency. USDA recommends that the weightings stated in § 658.5 (b) and (c) be used until an agency issues a final rule to change the weightings. (e) It is advisable that evaluations and analyses of prospective farmland conversion impacts be made early in the planning process before a site or design is selected, and that, where possible, agencies make the FPPA evaluations part of the National Environmental Policy Act (NEPA) process. Under the agency's own NEPA regulations, some categories of projects may be excluded from NEPA which may still be covered under the FPPA. Section 1540(c)(4) of the Act exempts projects that were beyond the planning stage and were in either the active design or construction state on the effective date of the Act. Section 1547(b) exempts acquisition or use of farmland for national defense purposes. There are no other exemptions of projects by category in the Act. (f) Numerous States and units of local government are developing and adopting Land Evaluation and Site Assessment (LESA) systems to evaluate the productivity of agricultural land and its suitability for conversion to nonagricultural use. Therefore, States and units of local government may have already performed an evaluation using criteria similar to those contained in this rule applicable to Federal agencies. USDA recommends that where sites are to be evaluated within a jurisdiction having a State or local LESA system that has been approved by the governing body of such jurisdiction and has been placed on the NRCS State conservationist's list as one which meets the purpose of the FPPA in balance with other public policy objectives, Federal agencies use that system to make the evaluation. (g) To meet reporting requirements of section 1546 of the Act, 7 U.S.C. 4207, and for data collection purposes, after the agency has made a final decision on a project in which one or more of the alternative sites contain farmland subject to the FPPA, the agency is requested to return a copy of the Form AD-1006, which indicates the final decision of the agency, to the NRCS field office. (h) Once a Federal agency has performed an analysis under the FPPA for the conversion of a site, that agency's, or a second Federal agency's determination with regard to additional assistance or actions on the same site do not require additional redundant FPPA analysis." 7:7:6.1.3.6.27.0.1.5,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.5 Criteria.,NRCS,,,,"This section states the criteria required by section 1541(a) of the Act, 7 U.S.C. 4202(a). The criteria were developed by the Secretary of Agriculture in cooperation with other Federal agencies. They are in two parts, (1) the land evaluation criterion, relative value, for which NRCS will provide the rating or score, and (2) the site assessment criteria, for which each Federal agency must develop its own ratings or scores. The criteria are as follows: (a) Land Evaluation Criterion—Relative Value. The land evaluation criterion is based on information from several sources including national cooperative soil surveys or other acceptable soil surveys, NRCS field office technical guides, soil potential ratings or soil productivity ratings, land capability classifications, and important farmland determinations. Based on this information, groups of soils within a local government's jurisdiction will be evaluated and assigned a score between 0 to 100, representing the relative value, for agricultural production, of the farmland to be converted by the project compared to other farmland in the same local government jurisdiction, This score will be the Relative Value Rating on Form AD 1006. (b) Site Assessment Criteria. Federal agencies are to use the following criteria to assess the suitability of each proposed site or design alternative for protection as farmland along with the score from the land evaluation criterion described in § 658.5(a). Each criterion will be given a score on a scale of 0 to the maximum points shown. Conditions suggesting top, intermediate and bottom scores are indicated for each criterion. The agency would make scoring decisions in the context of each proposed site or alternative action by examining the site, the surrounding area, and the programs and policies of the State or local unit of government in which the site is located. Where one given location has more than one design alternative, each design should be considered as an alternative site. The site assessment criteria are: (1) How much land is in nonurban use within a radius of 1.0 mile from where the project is intended? More than 90 percent—15 points 90 to 20 percent—14 to 1 point(s) Less than 20 percent—0 points More than 90 percent—15 points 90 to 20 percent—14 to 1 point(s) Less than 20 percent—0 points (2) How much of the perimeter of the site borders on land in nonurban use? More than 90 percent—10 points 90 to 20 percent—9 to 1 point(s) Less than 20 percent—0 points More than 90 percent—10 points 90 to 20 percent—9 to 1 point(s) Less than 20 percent—0 points (3) How much of the site has been farmed (managed for a scheduled harvest or timber activity) more than 5 of the last 10 years? More than 90 percent—20 points 90 to 20 percent—19 to 1 points(s) Less than 20 percent—0 points More than 90 percent—20 points 90 to 20 percent—19 to 1 points(s) Less than 20 percent—0 points (4) Is the site subject to State or unit of local government policies or programs to protect farmland or covered by private programs to protect farmland? Site is protected—20 points Site is not protected—0 points Site is protected—20 points Site is not protected—0 points (5) How close is the site to an urban built-up area? The site is 2 miles or more from an urban built-up area—15 points The site is more than 1 mile but less than 2 miles from an urban built-up area—10 points The site is less than 1 mile from, but is not adjacent to an urban built-up area—5 points The site is adjacent to an urban built-up area—0 points The site is 2 miles or more from an urban built-up area—15 points The site is more than 1 mile but less than 2 miles from an urban built-up area—10 points The site is less than 1 mile from, but is not adjacent to an urban built-up area—5 points The site is adjacent to an urban built-up area—0 points (6) How close is the site to water lines, sewer lines and/or other local facilities and services whose capacities and design would promote nonagricultural use? None of the services exist nearer than 3 miles from the site—15 points Some of the services exist more than 1 but less than 3 miles from the site—10 points All of the services exist within 1/2 mile of the site—0 points None of the services exist nearer than 3 miles from the site—15 points Some of the services exist more than 1 but less than 3 miles from the site—10 points All of the services exist within 1/2 mile of the site—0 points (7) Is the farm unit(s) containing the site (before the project) as large as the average-size farming unit in the county? (Average farm sizes in each county are available from the NRCS field offices in each State. Data are from the latest available Census of Agriculture, Acreage of Farm Units in Operation with $1,000 or more in sales.) As large or larger—10 points Below average—deduct 1 point for each 5 percent below the average, down to 0 points if 50 percent or more below average—9 to 0 points As large or larger—10 points Below average—deduct 1 point for each 5 percent below the average, down to 0 points if 50 percent or more below average—9 to 0 points (8) If this site is chosen for the project, how much of the remaining land on the farm will become non-farmable because of interference with land patterns? Acreage equal to more than 25 percent of acres directly converted by the project—10 points Acreage equal to between 25 and 5 percent of the acres directly converted by the project—9 to 1 point(s) Acreage equal to less than 5 percent of the acres directly converted by the project—0 points Acreage equal to more than 25 percent of acres directly converted by the project—10 points Acreage equal to between 25 and 5 percent of the acres directly converted by the project—9 to 1 point(s) Acreage equal to less than 5 percent of the acres directly converted by the project—0 points (9) Does the site have available adequate supply of farm support services and markets, i.e., farm suppliers, equipment dealers, processing and storage facilities and farmer's markets? All required services are available—5 points Some required services are available—4 to 1 point(s) No required services are available—0 points All required services are available—5 points Some required services are available—4 to 1 point(s) No required services are available—0 points (10) Does the site have substantial and well-maintained on-farm investments such as barns, other storage buildings, fruit trees and vines, field terraces, drainage, irrigation, waterways, or other soil and water conservation measures? High amount of on-farm investment—20 points Moderate amount of on-farm investment—19 to 1 point(s) No on-farm investment—0 points High amount of on-farm investment—20 points Moderate amount of on-farm investment—19 to 1 point(s) No on-farm investment—0 points (11) Would the project at this site, by converting farmland to nonagricultural use, reduce the demand for farm support services so as to jeopardize the continued existence of these support services and thus, the viability of the farms remaining in the area? Substantial reduction in demand for support services if the site is converted—10 points Some reduction in demand for support services if the site is converted—9 to 1 point(s) No significant reduction in demand for support services if the site is converted—0 points Substantial reduction in demand for support services if the site is converted—10 points Some reduction in demand for support services if the site is converted—9 to 1 point(s) No significant reduction in demand for support services if the site is converted—0 points (12) Is the kind and intensity of the proposed use of the site sufficiently incompatible with agriculture that it is likely to contribute to the eventual conversion of surrounding farmland to nonagricultural use? Proposed project is incompatible with existing agricultural use of surrounding farmland—10 points Proposed project is tolerable to existing agricultural use of surrounding farmland—9 to 1 point(s) Proposed project is fully compatible with existing agricultural use of surrounding farmland—0 points Proposed project is incompatible with existing agricultural use of surrounding farmland—10 points Proposed project is tolerable to existing agricultural use of surrounding farmland—9 to 1 point(s) Proposed project is fully compatible with existing agricultural use of surrounding farmland—0 points (c) Corridor-type Site Assessment Criteria. The following criteria are to be used for projects that have a linear or corridor-type site configuration connecting two distant points, and crossing several different tracts of land. These include utility lines, highways, railroads, stream improvements, and flood control systems. Federal agencies are to assess the suitability of each corridor-type site or design alternative for protection as farmland along with the land evaluation information described in § 658.4(a). All criteria for corridor-type sites will be scored as shown in § 658.5(b) for other sites, except as noted below: (1) Criteria 5 and 6 will not be considered. (2) Criterion 8 will be scored on a scale of 0 to 25 points, and criterion 11 will be scored on a scale of 0 to 25 points." 7:7:6.1.3.6.27.0.1.6,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.6 Technical assistance.,NRCS,,,,"(a) Section 1543 of the Act, 7 U.S.C. 4204 states, “The Secretary is encouraged to provide technical assistance to any State or unit of local government, or any nonprofit organization, as determined by the Secretary, that desires to develop programs or policies to limit the conversion of productive farmland to nonagricultural uses.” In § 2.62, of 7 CFR part 2, subtitle A, NRCS is delegated leadership responsibility within USDA for the activities treated in this part. (b) In providing assistance to States, local units of government, and nonprofit organizations, USDA will make available maps and other soils information from the national cooperative soil survey through NRCS field offices. (c) Additional assistance, within available resources, may be obtained from local offices of other USDA agencies. The Agricultural Stabilization and Conservation Service and the Forest Service can provide aerial photographs, crop history data, and related information. A reasonable fee may be charged. In many States, the Cooperative Extension Service can provide help in understanding and identifying farmland protection issues and problems, resolving conflicts, developing alternatives, deciding on appropriate actions, and implementing those decisions. (d) Officials of State agencies, local units of government, nonprofit organizations, or regional, area, State-level, or field offices of Federal agencies may obtain assistance by contacting the office of the NRCS State conservationist. A list of Natural Resources Conservation Service State office locations appears in appendix A, § 661.6 of this title. If further assistance is needed, requests should be made to the Assistant Secretary for Natural Resources and Environment, Office of the Secretary, Department of Agriculture, Washington, DC 20250." 7:7:6.1.3.6.27.0.1.7,7,Agriculture,VI,F,658,PART 658—FARMLAND PROTECTION POLICY ACT,,,,§ 658.7 USDA assistance with Federal agencies' reviews of policies and procedures.,NRCS,,,"[49 FR 27724, July 5, 1984, as amended at 59 FR 31118, June 17, 1994]","(a) Section 1542(a) of the Act, 7 U.S.C. 4203, states, “Each department, agency, independent commission or other unit of the Federal Government, with the assistance of the Department of Agriculture, shall review current provisions of law, administrative rules and regulations, and policies and procedures applicable to it to determine whether any provision thereof will prevent such unit of the Federal Government from taking appropriate action to comply fully with the provisions of this subtitle.” (b) Section 1542(b) of the Act, 7 U.S.C. 4203, requires, as appropriate, each department, agency, independent commission, or other unit of the Federal Government, with the assistance of the Department of Agriculture, to develop proposals for action to bring its programs, authorities, and administrative activities into conformity with the purpose and policy of the Act. (c) USDA will provide certain assistance to other Federal agencies for the purposes specified in section 1542 of the Act, 7 U.S.C. 4203. If a Federal agency identifies or suggests changes in laws, administrative rules and regulations, policies, or procedures that may affect the agency's compliance with the Act, USDA can advise the agency of the probable effects of the changes on the protection of farmland. To request this assistance, officials of Federal agencies should correspond with the Chief, Natural Resources Conservation Service, P.O. Box 2890, Washington, DC 20013. (d) To meet the reporting requirements of section 1546 of the Act, 7 U.S.C. 4207, and for data collection purposes, each Federal agency is requested to report to the Chief of the Natural Resources Conservation Service by November 15th of each year on progress made during the prior fiscal year to implement sections 1542 (a) and (b) of the Act, 7 U.S.C. 4203 (a) and (b). Until an agency fully implements those sections, the agency should continue to make the annual report, but may omit the report upon full implementation. However, an agency is requested to file an annual report for any future year in which the agency has substantially changed its process for compliance with the Act."