[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Rules and Regulations]
[Pages 53786-53834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21139]
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Part IV
Department of Labor
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Employment and Training Administration
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20 CFR Part 641
Senior Community Service Employment Program; Final Rule
Federal Register / Vol. 75 , No. 169 / Wednesday, September 1, 2010 /
Rules and Regulations
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 641
RIN 1205-AB48 and RIN 1205-AB47
Senior Community Service Employment Program; Final Rule
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) issues this final rule to implement
changes in the Senior Community Service Employment Program (SCSEP)
resulting from the 2006 Amendments to title V of the Older Americans
Act, and to clarify various policies. These regulations provide
administrative and programmatic guidance and requirements for the
implementation of the SCSEP.
The Department issued an interim final rule (IFR) implementing
changes in the SCSEP performance accountability regulations. We issued
a notice of proposed rulemaking (NPRM) proposing changes to the
remainder of the SCSEP regulations on August 14, 2008. This final rule
takes into consideration comments received on the IFR and the NPRM.
DATES: Effective date: This final rule is effective October 1, 2010.
FOR FURTHER INFORMATION CONTACT: Judith Gilbert, Team Leader, Division
of Adult Services, Office of Workforce Investment, U.S. Department of
Labor, 200 Constitution Avenue, NW., Room S-4209, Washington, DC 20210;
telephone (202) 693-3046 (this is not a toll-free number).
Individuals with hearing or speech impairments may access the
telephone number above via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
The preamble to this final rule is organized as follows:
I. Background--provides a brief description of the development of
the rule.
II. Summary of the Comments--provides an overview of the comments
received.
III. Section-by-Section Review--discusses comments on the SCSEP
regulations.
IV. Administrative Information--sets forth the applicable regulatory
requirements.
I. Background
The Older Americans Act (OAA) Amendments of 2006, Public Law 109-
365 (2006 OAA) were signed into law on October 17, 2006. This law
amended the statute authorizing the SCSEP and necessitates changes to
the SCSEP regulations. The 2006 OAA required regulations that address
performance measures by July 1, 2007. To meet this deadline, the
Department promulgated an Interim Final Rule on June 29, 2007. 72 FR
35832. We issued an NPRM on August 14, 2008, to propose changes to the
remainder of the SCSEP regulations in light of the 2006 OAA. 73 FR
47770. We invited comments on both the IFR and the NPRM, and thoroughly
evaluated those comments in the process of developing this final rule.
The SCSEP, authorized by title V of the OAA, is the only federally-
sponsored employment and training program targeted specifically to low-
income older individuals who want to enter or re-enter the workforce.
Participants must be unemployed, 55 years of age or older, and have
incomes no more than 125 percent of the Federal poverty level. The
program offers participants community service assignments and training
in public and non-profit agencies. The dual goals of the program are to
promote useful opportunities in community service activities and to
also move SCSEP participants into unsubsidized employment, where
appropriate, so that they can achieve economic self-sufficiency. In the
2006 OAA, Congress expressed its sense of the benefits of the SCSEP,
stating, ``placing older individuals in community service positions
strengthens the ability of the individuals to become self-sufficient,
provides much-needed support to organizations that benefit from
increased civic engagement, and strengthens the communities that are
served by such organizations.'' OAA Sec. 516(2).
Although some of these regulations remain unchanged from the 2004
SCSEP final rule, this final rule does include certain significant
changes to the program. Perhaps most notably, the new 48-month
limitation on participation (OAA Sec. 518(a)(3)(B); Sec. 641.570 of
this part), and the increase in available funds for training and
supportive services (OAA Sec. 502(c)(6)(C); Sec. 641.874 of this
part).
The 2006 OAA also increases the accountability of national grantees
by clearly requiring a competitive process for grant awards. This final
rule implements the statute's requirement that the national SCSEP
grants be re-competed regularly, generally every four years. OAA Sec.
514(a); Sec. 641.490(a) of this part. This final rule also implements
the statute's requirement that a State compete its SCSEP grant if the
current State grantee fails to meet its core performance goals for
three consecutive years. OAA Sec. 513(d)(3)(B)(iii); Sec. 641.490 of
this part.
In addition, the 2006 OAA establishes new funding opportunities for
pilot, demonstration, and evaluation projects (OAA Sec. 502(e); Sec.
641.600-640 of this part), expands the priority-for-service categories
(OAA Sec. 518(b); Sec. 641.520 of this part), and modifies how the
program determines income eligibility (OAA Sec. 518(a)(3)(A); Sec.
641.510 of this part).
Coordination between the SCSEP and the programs under the Workforce
Investment Act of 1998 (WIA), 29 U.S.C. 2801 et seq., continues to be
an important objective of the 2006 OAA. With the enactment of WIA in
1998, the SCSEP became a required partner in the workforce investment
system. 29 U.S.C. 2841(b)(1)(B)(vi). In 2000, Congress amended the
SCSEP to require coordination with the WIA One-Stop delivery system
(Pub. L. 106-501, Sec. 505(c)(1)), including reciprocal use of
assessment mechanisms and Individual Employment Plans (Pub. L. 106-501,
Sec. 502(b)(4)). In 2006, Congress continued both the requirement to
coordinate at OAA Sec. 505(c)(1) and the reciprocal use of assessments
at OAA Sec. 502(b)(3)(B). The underlying notion of the One-Stop
delivery system is the coordination of programs, services, and
governance structures, so that the customer has access to a seamless
system of workforce investment services.
Consistent with current SCSEP practice, both WIA and the 2006 OAA
require any grantee operating a SCSEP project in a local area to
negotiate a Memorandum of Understanding (MOU) with the Local Workforce
Investment Board. WIA Sec. 121; OAA Sec. 511(b); see also OAA Sec.
502(b)(1)(O). The MOU must detail the SCSEP project's involvement in
the One-Stop delivery system. In particular, SCSEP grantees and sub-
recipients must make arrangements to provide their participants,
eligible individuals the grantees are unable to serve, as well as
SCSEP-ineligible individuals, with access to services available in the
One-Stop centers. OAA Sec. Sec. 510, 511; Sec. Sec. 641.210, 641.220,
and 641.230 of this part.
II. Summary of the Comments
We have carefully reviewed all of the comments received in response
to both the IFR and to the NPRM. We received 1,505 comments during the
comment periods, of which 364 were unique, 959 were duplicates or
``form'' letters, and one was a petition with 182 signatures. The
commenters fell into a variety of
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categories that reflect the broad range of constituencies for the SCSEP
program, including State and national grantees, program non-profit host
agencies, area agencies on aging, WIA providers, and program
participants.
A number of commenters requested additional time to review and
submit comments on the changes proposed in the NPRM. Many of these
commenters requested an additional 60 days to determine the impact on
SCSEP stakeholders and participants. Several commenters mentioned that
many who will be impacted by the proposed changes are not yet even
aware of them. Others mentioned that they have had insufficient time to
contact host agencies and obtain their input. One commenter pointed out
that the SCSEP system is a diverse and complex network of agencies, and
said that insufficient time had been allowed to seek input from this
network. One commenter said additional time was required to evaluate
the impact of the recent economic downturn on SCSEP participants. A few
others suggested that the Department put the proposed regulations aside
and work collaboratively with the grantee community and with the
Administration on Aging to draft new regulations.
We reviewed these requests and concluded that they presented no
novel or difficult issues justifying an extension of the comment period
or a withdrawal of the proposed rule In this case, the Department
provided 60 days for notice and comment. We believe the time allotted
was more than sufficient to review this regulation given that most of
the rule simply reflects changes required by the 2006 OAA, or is a
continuation of policies that were published in the 2004 Final Rule.
Accordingly, the Department did not extend the comment period.
The more substantive comments touched on almost every section of
the proposed regulation. These comments are discussed in Section III
below. In addition, the Department has made technical changes to the
regulatory text for clarity and consistency. Provisions that were not
the subject of a comment or that were not revised for technical reasons
have been adopted as proposed and are not discussed in Section III.
III. Section-by-Section Review
In this section, we discuss the comments, our responses to them and
any changes to the regulations that we made as a result of comments. In
the course of reviewing the NPRM, we have made some technical or
grammatical changes to the regulatory text, which are not intended to
change the meaning or intent of the regulatory provisions. Generally,
we do not discuss these types of changes in this section.
Subpart A--Purpose and Definitions
What is the SCSEP? (Sec. 641.110)
This section of the final rule describes the SCSEP as it is defined
by the 2006 OAA. We received several comments on this provision. Those
commenters expressed concern about using the term ``employment'' in the
phrase ``community service employment assignment'' as referenced in
Sec. Sec. 641.110 and 641.120 of the rule. A few commenters found that
adding the term ``places undue confusion on both grantees and
participants.'' As a result, these commenters recommended that the
regulation only refer to ``employment'' in the context of unsubsidized
employment. Other commenters stated that changing the name would
reverse grantee efforts to promote SCSEP as a training program rather
than an employment program.
The Department accepts this comment. The regulation has been
revised to use the term ``community service assignment'' throughout.
The term ``community service employment'' in the rule is consistent
with the term as it is defined in the 2006 OAA at Sec. 518(a)(2). To
remedy any potential confusion, the Department notes that the terms
``community service assignment'' and ``community service employment
assignment'' are the same in that they both represent part-time,
temporary job training through a work experience that is paid with
grant funds. Therefore, the Department recommends that grantees
continue to clarify the nature of the community service assignment with
participants, which should alleviate any potential confusion.
One final comment came from a program participant who stated that
the program should allow for more than part-time hours so that
participants are able to further develop and improve their skills. We
are unable to accommodate the participant's request, because the OAA at
Sec. 518(a)(2) defines ``community service employment'' as ``part-
time, temporary employment.'' We are pleased to receive comments from
our program participants, including this commenter, and note that
developing and improving skills does not have to end with SCSEP. There
are other no-cost training resources available to seniors (including,
in some cases, through the One-Stop delivery system) that we hope
program participants utilize.
What are the purposes of the SCSEP? (Sec. 641.120)
This section of the rule outlines the purpose of the SCSEP. We
received a significant number of comments on this section. A majority
of the commenters expressed concern that the Department is minimizing
the community service aspects of the program and placing a higher
priority on the unsubsidized placement goal in this regulation. Many of
the commenters stated that the NPRM does not conform to the 2006 OAA
because they perceived the Department as elevating the importance of
unsubsidized employment at the expense of community service. Several
commenters referenced the intent of Congress when it passed the
legislation. Those commenters referenced section 516 of the 2006 OAA,
which provides:
It is the sense of Congress that--
(1) The older American community service employment program
described in this title was established with the intent of placing
older individuals in community service positions and providing job
training; and
(2) placing older individuals in community service positions
strengthens the ability of the individuals to become self-sufficient,
provides much-needed support to organizations that benefit from
increased civic engagement and strengthens the communities that are
served by such organizations.
Those commenters relied on the placement of the words ``community
service'' before ``job training'' to make the case that Congress
intended for community service to have a higher priority than job
training. Further, some of these commenters asserted that ``self-
sufficient'' in this context implies emotional and other types of self-
sufficiency, and not just economic self-sufficiency. In support of this
position, the commenters describe the importance of placing an older
individual into a community service assignment as a means of improving
the person's sense of financial as well as emotional and social well-
being, while providing a useful and needed service in the community.
Therefore, these commenters found that the regulations ignore the value
of community service both to the participant and to the community at
large. A few commenters stressed the importance of working with the
non-profit sector because they rely on the program participants when
they do not have enough funds to hire staff for their organizations.
One commenter commended the Department for stressing the importance of
the
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program's goal to foster economic self-sufficiency.
In addition, some commenters focused on other language in the 2006
OAA. In addition to Sec. 516, these commenters referenced Sec.
502(a), ``Establishment of Program'' and Sec. 518(a), which defines
``community service employment.'' These commenters stated that these
provisions ``reinforce[] the primary purpose of community service
employment, along with its dual purpose of placing workers into
unsubsidized employment.'' One of the commenters noted that the
Department misinterpreted the 2006 OAA when it attempted to ``meld
together'' four disparate provisions ``to support an exclusive focus on
job placement'' in the proposed rule.
The Department appreciates the commenters' concern about the
perceived changes in the program. However, the Department finds that
the dual purposes of the program--community service and appropriate
employment objectives for participants--with its related performance
goals, are not inconsistent. We fully embrace these dual purposes of
the SCSEP as envisioned by the Congress. We recognize the importance of
the community service aspect of the SCSEP. But we do not think that the
regulation should overemphasize either aspect of the program. We have,
therefore, written this regulation to strike an appropriate balance
between community service and unsubsidized employment. Therefore, we
have not changed this section.
What definitions apply to this part? (Sec. 641.140)
This section provides specific or contextual definitions for the
terms used in this part. We received numerous comments on this section
with suggestions on how to better clarify, amend, or define the
following ten (10) definitions: ``co-enrollment,'' ``employment,''
``equitable distribution report,'' ``host agency,'' ``individual
employment plan,'' ``other participant costs,'' ``state plan,'' ``sub-
recipient,'' ``supportive services,'' and ``unemployed.'' In addition,
commenters asked the Department to add definitions for ``community
service employment'' and ``job ready.''
As indicated in the preamble to the proposed rule, the definition
of ``co-enrollment'' was eliminated because it related to private
sector 502(e) projects which are no longer authorized. This definition
was specific to the 502(e) projects and had no bearing on SCSEP
participants co-enrolling into other federally funded programs. Upon
further reflection, however, the Department realized that although this
definition is no longer applicable to the 502(e) projects from the 2004
regulation, it is still applicable to define the status of participants
who are enrolled in WIA or other employment and training programs since
SCSEP is a mandatory partner in the One-Stop system. Therefore, we have
reinstated this definition with some changes to reflect that the
participants must be enrolled in those other programs to be considered
co-enrolled.
Commenters suggested two substantial changes to the definition of
``equitable distribution report.'' First, the commenters suggest the
Department allow grantees to use other reputable and reliable
population data in order to determine the optimum number of participant
positions for equitable distribution purposes. The Department
understands the limits of census data when determining equitable
distribution of positions, given that Census data is updated only every
10 years. The Department also agrees that more timely information would
help the grantees make better decisions for program efficiencies (i.e.,
equitable distribution of SCSEP positions), which would allow more
eligible individuals to participate in the program. Furthermore, by
relaxing the limitations on grantees on the data they may use for
equitable distribution of positions, grantees will be able to respond
to major changes in their programs, such as in the case of a natural
disaster or other unforeseen demographic shifts. Therefore, the
Department agrees to allow the use of other data for equitable
distribution purposes, as long as that information is from a reliable
source, comparable in quality to the Census data, and grantees document
the source of the information.
Other commenters took issue with the change of words in the
definition from ``counties'' to ``jurisdiction.'' We made this change
to make the definition more inclusive of potentially underserved
incorporated cities. One commenter specifically suggested that the
Department reverse the change of wording, and edit the definition to
include the term ``incorporated cities.'' The Department accepts these
commenters' suggestions and has expanded the definition of ``equitable
distribution report'' to include these suggestions.
One commenter expressed concern with the addition of the word
``training'' within the definition of ``host agency.'' The commenter
felt that this term added to the confusion participants experience when
they accept a community service assignment. Although the Department
appreciates the sentiments of this commenter, we disagree. We believe
that the added term ``training'' helps to underscore the fact that the
community service assignment provides an opportunity to train SCSEP
participants for unsubsidized employment. Congress indicates in Sec.
502(a)(1) of the 2006 OAA, that the SCSEP is designed to ``[i]ncrease
the number of persons who may enjoy the benefits of unsubsidized
employment in both the public and private sectors.'' Further in Sec.
516 of the 2006 OAA, Congress indicates that the SCSEP program ``was
established with the intent of placing older individuals in community
service positions and providing job training.'' Thus, the Department
has decided to retain the term ``training'' in the definition of ``host
agency.''
We received several comments on the definition of ``individual
employment plan or IEP.'' One commenter requested that the Department
include the term ``mandatory'' in place of the term ``appropriate'' to
describe the employment goal included in the IEP. The Department agrees
that one of the end goals of an IEP should be unsubsidized employment
for many participants; however, making this a mandatory function of the
IEP runs counter to the statutory language in Sec. 502(b)(1)(N)(ii) of
the 2006 OAA, which provides that the grantee ``will provide training
and employment counseling to eligible individuals based on strategies
that identify appropriate employment objectives * * * developed as a
result of [an] assessment and service strategy.'' Thus, the use of the
word ``appropriate'' further underscores the need to identify a
strategy in the IEP that is tailored to the needs of each participant.
Additionally, commenters stated that the Department did not include
community service in the definition of IEP. These commenters suggested
the Department change the term IEP to ``individual service employment
program'' or ISEP. Other suggestions included ``ISS'' for Individual
Service Strategy and ``ITP'' for Individual Training Plan. There is no
doubt that the community service assignment is an important aspect of
the IEP, since it provides a work environment in which to obtain needed
job skills. The goal of the IEP is to plot the participant's training
plan that will lead to an appropriate employment objective, which
includes more than just community service. Read together, paragraphs
(i) and (ii) of Sec. 502(b)(1)(N) focus on a strategy aimed at
employment, and thus the IEP is appropriate. However, there is nothing
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in the definition of IEP or elsewhere that prevents grantees from
including a variety of other services and strategies not directly
related to the employment goal as part of the IEP. For the reasons
provided, the Department therefore finds this change unnecessary and
did not alter this definition. However, in response to these comments
we did add language to the definition to make it clear that, while the
first IEP must contain an employment goal, later IEPs need not, if
employment is not a feasible outcome for a participant.
Two commenters found that the term ``other participant costs''
contained much the same list of activities defined under ``supportive
services.'' These commenters are correct. The Department has elected to
keep both definitions because the definition of ``other participant
costs'' contains a variety of activities in addition to those listed in
the definition of ``supportive services.'' In addition, we have
clarified the definition of ``severely limited employment prospects''
by substituting the words ``substantial likelihood'' for the words
``substantially higher likelihood.''
One commenter noted that the definition of ``sub-recipient,''
caused general confusion by changing from the previously defined term,
``subgrantee.'' However, the Department was clear about why it changed
the various definitions and the definition of ``sub-recipient'' in
particular in the preamble to the proposed rule. The Department
explained that the previous term, ``subgrantee,'' failed to take other
recipients into account that may have grant management
responsibilities. The term ``sub-recipient,'' therefore, is inclusive
of subgrants as well as other types of funding awards. For this reason,
the Department did not make any changes to this definition.
One commenter noted that the cost of incidentals was not included
in the proposed definition of ``supportive services,'' even though
incidentals are the most widely used supportive service. Although the
Department used the definition in the OAA at Sec. 518(a)(7), we have
now modified the definition to more fully reflect the language on
supportive services found in section 502(c)(6)(A)(iv).
We received a few comments on the definition of ``unemployed.'' One
commenter disagreed with the Department's interpretation and found that
the definition unnecessarily complicates a grantee's ability to make
eligibility decisions. This commenter further stated that use of the
words the ``occasional employment'' works against older individuals and
particularly those who reside in rural areas who take part-time jobs.
This definition tracks the statutory language, and it is sufficiently
clear. Therefore, we have not changed the definition.
We also received recommendations from commenters to add two
definitions to this section, and we have adopted both. An overwhelming
number of commenters suggested that the Department add the term
``community service employment'' to this regulation. The term
``community service employment'' is included in Sec. 518(a)(2) of the
2006 OAA and reads as follows:
The term ``community service employment'' means part-time,
temporary employment paid with grant funds in projects described in
section 502(b)(1)(D), through which eligible individuals are engaged
in community service and receive work experience and job skills that
can lead to unsubsidized employment.
The other definition we adopted in this final rule is ``job ready''
which pertains to the rule that prohibits the enrollment of job ready
participants in Sec. Sec. 641.512 and 641.535(c). The term ``job
ready'' has been discussed in training and in conversations with
grantees when the Department has provided technical assistance. The
Department has generally meant the term to apply to an individual who
requires no more than just job club or job search assistance to be
employed. The Department discussed its policy in the 2004 regulations
at 69 FR 19014 at 19031, 19032, and 19038, Apr. 9, 2004. To reiterate
the Department's policy as announced in 2004, the purpose of the
program is to ``assure that grantees concentrate their efforts and
limited funds on providing community service work assignments to those
older [individuals] who are most in need'' as opposed to those who are
job ready. 69 FR 19014 at 19031. Therefore, a simple definition of
``job ready'' is now provided. It refers to ``individuals who do not
require further education or training to perform work that is available
in his or her labor market.'' Thus, it may include an individual who is
already employed, even if only part-time, or was recently unemployed
but has a skill set to fill the jobs available in his or her area; or
who has received sufficient training from SCSEP or some other
employment and training program to be able to perform work that is
available in the labor market.
Subpart B--Coordination With the Workforce Investment Act
What is the relationship between the SCSEP and the Workforce Investment
Act? (Sec. 641.200)
This section provides that SCSEP grantees are required to follow
all applicable rules under WIA and its regulations. The WIA operational
requirements generally do not apply to SCSEP operations. As required
partners under WIA, grantees are obligated to be familiar with the WIA
requirements when they are acting as a WIA/One Stop delivery system
partner. The only proposed changes made in this section are to clarify
that sub-recipients (and not just grantees) are included in the
requirement to follow all applicable WIA rules and regulations, and to
make certain technical corrections to the citations.
A number of commenters objected to the requirement that SCSEP
follow all applicable rules under WIA and its regulations. The
commenters cited various problems and experiences they perceive WIA has
in serving older workers, and argued that SCSEP is a different type of
program than WIA and should therefore not be required to comply with
its rules, which they believe are burdensome on SCSEP grantees. Several
commenters said that it is unclear which WIA rules and regulations are
applicable to SCSEP and which are not. Several commenters asked that
the requirement to follow applicable WIA rules be removed. Since both
the OAA and WIA require SCSEP to be a One-Stop partner, we cannot make
the suggested change.
These commenters also mentioned that WIA performance measures
create a disincentive to serving older workers, and cited as evidence
findings of an April 2008 Government Accountability Office report
entitled ``Most One-Stop Career Centers Are Taking Multiple Actions to
Link Employers and Older Workers.'' One commenter said the onus seems
to be on SCSEP to initiate collaborative relationships with WIA.
Another commenter suggested releasing a Training and Employment
Guidance Letter (TEGL) to highlight the importance of coordination
between WIA and SCSEP.
We appreciate the commenters' concerns about ways to improve SCSEP-
WIA coordination but none of the comments received addressed the
specific changes to this section proposed by the NPRM. The comments
appear to reflect a concern that the coordination requirements of the
2006 OAA and WIA will have the effect of diluting or undercutting the
focus and
[[Page 53790]]
mission of the SCSEP. As we stated in response to similar comments in
the preamble to the 2004 Final Rule, we do not intend the regulations
to convey this message. 69 FR 19017-19019. WIA envisions a coordinated
workforce development system in which a variety of programs work more
closely together to make access to workforce development services
easier and more efficient. WIA includes a number of programs that serve
special populations to be required partners and is very careful to
assure that program boundaries are respected. None of the WIA
requirements on SCSEP grantees have changed from those that applied in
2004, so we have not changed the SCSEP regulations that govern SCSEP-
WIA coordination. The Department intends that the regulations will
enable grantees and sub-recipients to concentrate better on the core
missions of the SCSEP, providing community service assignments to hard-
to-serve older individuals. The Department intends that the One-Stop
delivery system be used to provide services both to older individuals
who are not eligible for the SCSEP and to those who are eligible but
need the intensive services that the SCSEP is unable to provide. The
kinds of partnerships that the regulations envision will enable SCSEP
grantees and sub-recipients to focus more of their efforts on the core
population that the SCSEP is intended to serve. We did, however, add
language to make it clear that the requirements of the section apply to
SCSEP grantees and sub-recipients when they are acting in their
capacities of required One-Stop partners.
What services, in addition to the applicable core services, must SCSEP
grantees and sub-recipients provide through the One-Stop delivery
system? (Sec. 641.210)
This section requires SCSEP grantees and sub-recipients to make
arrangements to provide their participants, eligible individuals the
grantees and sub-recipients are unable to serve, as well as SCSEP
ineligible individuals, with access to other services available at One-
Stop centers. We received comments on the second clarification made to
this provision that SCSEP grantees and sub-recipients must also make
arrangements through the One-Stop delivery system to provide eligible
and ineligible individuals with referrals to WIA intensive and training
services.
Several commenters objected to this requirement and asked that it
be removed, while others noted problems with the requirement. One
commenter said that it is not always feasible to make referrals to WIA
intensive or training services because many participants live long
distances from One-Stop centers and do not have transportation to
access services. Another commenter noted the absence of One-Stop
centers in rural areas. Another commenter said that even if referrals
of older individuals for WIA services are made, the WIA program tends
not to serve them. Still another commenter said that the One-Stop
delivery system provides limited or no bi-lingual programs that target
older workers and in many instances are not located in proximity to
Hispanic and minority neighborhoods. Finally, a commenter said that the
2006 OAA does not require SCSEP to provide core services through the
WIA One-Stop delivery system, but requires potential participants to be
registered with One-Stop centers.
The Department acknowledges that access and referral to WIA
services in rural areas may present particular challenges, as do
addressing the special needs of older workers who are limited-English
proficient. To address these challenges, the Department encourages
coordination with other organizations, in addition to One-Stop centers,
that may be more appropriate. This provision reminds grantees and sub-
recipients that they are required to be part of the One-Stop delivery
system and to participate when appropriate in providing access and
referral to the other services that the One-Stop partners offer.
Grantees may also decide to provide core services outside the One-Stop
Career Centers.
Does title I of WIA require the SCSEP to use OAA funds for individuals
who are not eligible for SCSEP services or for services that are not
authorized under the OAA? (Sec. 641.220)
This section states that even in the One-Stop center environment,
SCSEP projects are limited to serving SCSEP-eligible individuals with
title V grant funds. The local Workforce Investment Board and the One-
Stop partners, including SCSEP, should negotiate in the Memorandum of
Understanding (MOU) arrangements for referral of individuals to WIA who
are not eligible for SCSEP.
A single comment on this section suggested including language that
if a Local Workforce Investment Board is a SCSEP sub-grantee, then no
MOU is necessary because the contract between the grantee and sub-
grantee already stipulates arrangements for administration of the
SCSEP.
The Department disagrees that an MOU is not necessary when the
local board is a SCSEP sub-grantee, although we acknowledge that this
situation adds a degree of complexity to the relationship. As required
of all partner relationships with the One-Stop delivery system, the
requirement to have an MOU is statutory and therefore, still necessary.
The relationship the local board would have as a sub-recipient only
mandates services to participants under the grant agreement but does
not ensure that there is a written policy for how services would be
coordinated with the One-Stop center. Therefore, we did not make any
change to this section.
Must the individual assessment conducted by the SCSEP grantee and the
assessment performed by the One-Stop delivery system be accepted for
use by either entity to determine the individual's need for services in
the SCSEP and adult programs under title I-B of WIA? (Sec. 641.230)
The only proposed changes the Department made to this section were
of a technical nature. We received two comments recommending the
Department modify the section to include Aging Disability Resource
Centers or other organizations that perform assessments in addition to
WIA, to assist with the data validation requirements.
This section merely reflects the language of the 2006 OAA on the
acceptance of each others' assessments by the SCSEP and One-Stop
delivery system. The Department believes the SCSEP program will be
better served if the regulations do not specify what other
organizations perform assessments. The Department emphasizes that
grantees are responsible for determining whether assessments performed
by other organizations are sufficient for the grantee's and the
participant's needs.
Subpart C--The State Plan
We received a large number of comments on this subpart, although a
few were outside the scope of this rulemaking because they related to
subpart G, which had a separate comment period from the proposed rule.
Most of the comments were related to the 4-year strategy in the State
Plan, although others discussed participation in developing the State
Plan, community service needs, modifications to the State Plan, and
equitable distribution. We received a few comments related to the cost
and resources needed to complete the State Plan, which are addressed in
the
[[Page 53791]]
Administrative Section of this final rule under Section D, Unfunded
Mandates. We also received several comments that generally discussed
the State Plan requirements or discussed the need for greater
coordination with aging programs, which the Department has decided to
address in this subpart on the State Plan requirements.
What is the State Plan? (Sec. 641.300)
This section describes the purpose and function of the State Plan.
We made a number of changes to this section to reflect the new
provision in the 2006 OAA, which requires State grantees to submit a
four-year strategy to the Department.
A few commenters asked the Department to consider allowing the
State grantees to combine the State SCSEP strategic plan with the State
Unit on Aging strategic plan to further the goals and efforts of its
SCSEP program. Some of those commenters specifically justified this
request by stating that the Department allows the State grantees to
submit the State Plan as a part of the WIA Unified Plan, but since
SCSEP is an OAA program, submitting the State Plan with the other OAA
programs should also be acceptable.
Although we appreciate the logic of these comments, it is not
possible for the State Plans to be submitted with the other OAA
strategic plans. According to 20 U.S.C. 9271, ``a State may develop and
submit to the appropriate Secretaries a State unified plan for 2 or
more of the activities or programs'' provided in a specific list, and
the only part of OAA listed is Title V. Therefore, 20 U.S.C. 9271 does
not authorize States to include a unified plan that includes OAA
activities or programs that are authorized by a section of OAA other
than Title V. Such programs are governed by their own planning
requirements. Furthermore, SCSEP is unique in that it is the only
program under the OAA that is administered by the Department of Labor.
Section 503 of the 2006 OAA specifically requires each State to submit
a State Plan to the Secretary of Labor to be eligible for grant funding
under this program. The Department shares the State Plans with the
Administration on Aging in an effort to coordinate with them on older
American policies. However, if they so desire, we do not prevent State
grantees from also submitting their SCSEP strategic plan with their OAA
strategic plan.
Many commenters suggested that the Department develop regulations
that require SCSEP grantees to coordinate with other programs under the
2006 OAA, such as State units and area agencies on aging, and with
other Federal programs such as Foster Grandparents, Senior Companions,
Vocational Rehabilitation and several others. A few even requested that
the Administration on Aging and other SCSEP providers be involved in
writing the regulations. These commenters did not submit their comments
on any particular section of the regulation and, in fact, some
commenters were ``disappointed'' because they found the regulations
``silent'' on this issue.
The regulations are not ``silent'' on the coordination requirement
with other Federal agencies, and especially the other aging programs.
There are several provisions in this regulation that require
coordination with aging and other resources. The first is in Sec.
641.315, which requires the State grantees to seek the advice and
recommendation of representatives from State and area agencies on
aging, social service organizations, and community-based organizations
in Sec. 641.315(a), and permits the State grantee to obtain the advice
and recommendation of other interested organizations and individuals in
Sec. 641.315(b). In addition, Sec. 641.302(i) requires the States to
plan actions that coordinate activities of SCSEP grantees with other
public and private entities and programs that provide services to older
Americans. That the Department did not mention a specific social
service or other program by name does not exclude it from being a
worthy organization for collaboration. Given the large number of
comments that addressed this particular concern, the Department hopes
that grantees will now understand the importance of the State planning
requirements that grantees will make a genuine effort to include those
organizations during State planning meetings. The Department expects
grantees to work with any and as many organizations as will help
achieve the purpose of the program. The Department emphasizes that the
grantees do not need explicit permission in the regulations to work
with these organizations. Finally, at the Federal level, the Department
will continue to coordinate with the Administration on Aging on State
planning and other major policy concerns under the MOU that exists
between the two Federal agencies.
What is the four-year strategy? (Sec. 641.302)
This section outlines the requirements for the four-year strategy.
We received many comments on this section, largely in opposition to the
various requirements. Two comments were of a more general nature.
One commenter was not in favor of the four-year strategy because he
felt that ``[p]lanning beyond funding periods exceed[ed] the parameters
of the grantee'' particularly in light of the requirements to resubmit
the plans for modification. As discussed below, the State grantee is
responsible for the higher-level oversight of activities in the State
required by Sec. 503 of the 2006 OAA. As a practical matter, however,
a strategy is the pre-planning for what the program will accomplish
over a period of time based on a forecast of events and not a mere
short-term snapshot of activities or actual workload action items. The
reality is that the State program operators provide continuity for the
program, while other organizations may be transient. Therefore, the
State grantee is in the best position to develop a thoughtful long-term
plan for how activities will be provided statewide.
The other general commenter stated that, unlike their WIA program,
they do not have an economist or the funds to hire an economist to
provide the information that is required for a four-year strategy.
Therefore, this commenter argues that the ``[i]nformation submitted by
the State SCSEP [grantees] are assumptions and not factual.''
The Department appreciates the desire to be as precise as possible,
but it does not believe that an economist is needed to develop the
four-year strategy for this program. It is true that it is important to
have certain data, such as information on the growth of the eligible
population; however, much of this information can already be found on-
line from the Bureau of Labor Statistics or other resources, such as
from the State workforce agency, which manages SCSEP in a growing
number of States. One of the requirements of the four-year strategy is
to describe the planned actions to coordinate with other programs,
including WIA. The Department suggests that State grantees that are not
workforce agencies coordinate with their workforce agencies first to
find out what information is already available. Other information
requirements are grantee-dependent, such as equitable distribution,
which requires the type of collaboration with the national grantees
discussed in Sec. Sec. 641.300 and 641.365.
Several commenters suggested that the State Plan requirements go
beyond what Congress intended in Sec. 503 of the 2006 OAA, and found
many of the requirements duplicative of other Department requirements
and policies. As an example, these commenters cited Sec. 641.302(f)
because a ``performance system and sanctions system is already
[[Page 53792]]
in place.'' These commenters also noted that the regulations at Sec.
641.302(a)(3), (c), and (d) overlapped with certain grant application
requirements.
At the outset, the Department would like to point out that the
State Plan is ``statewide.'' That is to say, it is designed to cover
all program activities that will occur in the State, both those
operated by the State and those operated by national grantees. It is
for that reason that the State grantees, which have this oversight
responsibility, are required to seek the advice and consultation of
other organizations in the State, including the national grantees. To
that extent, there are no other vehicles in the program that would
provide this higher level of thoughtful planning for the betterment of
program services in the State. As previously noted, a strategy is the
pre-planning for what the program will accomplish over a period of time
based on a forecast of events. The main reason for a State Plan is the
recognition that the State grantees are in the best position to forge
relationships that cross programs, communities, and organization silos.
The best way for any State to provide services to its citizens is by
working with all of the relevant partners to lead the State in a
direction that will produce positive outcomes overall. Such
coordination requires strategic planning. Therefore, a State's
individual grant application, even if duplicative to some extent,
represents the more immediate actions the State plans to take, which is
only one small part of the overall strategy for providing services in
the State.
We received a few comments on Sec. 641.302(a) on equitable
distribution and the requirement to address priority individuals,
comments on Sec. 641.302(f) on continuous increase in performance, and
one comment on Sec. 641.302(g) on coordination with WIA. With regard
to Sec. 641.302(a)(1), one commenter argued that, given the limited
ability of the State to alter positions between the national grantees
and the State, creating ``a long range strategy beyond the scope of the
Older Americans Act * * * reauthorization increases paper work without
measurable benefits to program participants.'' Another commenter
mentioned that this paragraph ``exclude[d] any mention of national
grantees and the key role they play in the distribution process.'' This
commenter requested that the Department rewrite the section to say:
``Moves positions from over-served to under-served locations within the
State by working collaboratively with national grantees through a
participatory process.''
In response to the first commenter, we disagree that a long range
strategy increases paperwork without measurable benefit to program
participants because of the limited ability of the State to alter
positions. The four-year State Plan guides the annual adjustments that
occur with the annual Equitable Distribution report, which itself
insures positions are moved from over-served to under-served locations.
This process helps ensure that positions are distributed in the most
appropriate and least disruptive manner to participants and also to
grantees. The 4-year plan outlines the principles for determining the
need for moving positions and when ``swaps'' will occur. As to the
point about the State's limited ability to alter positions, the
language in Sec. 641.365(f) gives the State the ability to influence
the movement of positions. (``All grantees are required to coordinate
any proposed changes in position distribution with the other grantees
in the State, including the State project director, before submitting
the proposed changes to the Department for approval. The request for
the Department's approval must include the comments of the State
project director, which the Department will consider in making its
decision.'') The Department intends to give significant weight to the
State project director's comments in deciding whether to approve any
proposed changes in position distribution.
As to the second commenter, their concern about the exclusion of
any mention of national grantees is addressed in Sec. Sec. 641.360 and
641.365 on equitable distribution. As provided in those sections, the
State grantees are responsible for submitting an equitable distribution
report at the beginning of each fiscal year and that the report is the
result of consultations with all the grantees (including the national
grantees) in the State to discuss the location of their authorized
positions. In addition to showing where the positions are currently
located, the equitable distribution report reflects an agreement among
the grantees for how positions will gradually shift over time to either
align with changes in the population either through movement of the
positions to underserved areas by the grantees, or through ``swaps.''
Those consultations by their nature already require grantees to do some
forecasting about where positions should be located. Therefore, the
four-year strategy is consistent with the goals and current practices
for equitable distribution. When these provisions are read together, it
is clear that the Department expects the national grantees to have a
significant role in the equitable distribution process. Therefore,
particularly since Sec. 641.302(a)(1) specifically refers to Sec.
641.365, the Department does not believe the regulation provision needs
to be revised as suggested.
We received comments about Sec. 641.302(f) of the proposed rule.
One commenter stated that because the Department sets the minimum
levels of performance each year, the States have minimal input in
determining the performance levels and are not consulted when they are
established. Another commenter found that the regulation provision, as
written, implied that State grantees were responsible for performance
of the national grantees. This commenter suggested that the Department
amend the provision to read: ``The State strategy, including input from
national grantees regarding their own performance strategies, for
continuous increase in the level of performance for entry into
unsubsidized employment, and to achieve at a minimum, the levels * *
*.''
In the Department's opinion, these commenters misunderstood the
purpose of that provision and the role of the State grantee in
shepherding the State Plan process. As noted in the preamble to the
proposed rule, the four-year strategy is a long-term strategy for
increasing the level of performance in the State. We further stated in
the NPRM preamble that ``[a]ll grantees should strive to continuously
improve their performance levels to assist enrollees in becoming self-
sufficient, make available opportunities for other individuals to
enroll in SCSEP, and better fulfill the objectives of the program.''
Therefore, the regulation does not make the State grantees responsible
for ensuring that every national grantee that operates in the State
meet its performance goal; rather, the State grantees are responsible
for planning a strategy in collaboration with the national grantees to
provide better services to participants overall, which will lead to
higher performance for the State as a whole. We believe the rule, which
requires in this section and Sec. 641.315 that the State Plan must be
developed in consultation with, among others, the national grantees in
the State, is clear on these purposes and does not need to be amended.
Some commenters took issue with Sec. 641.302(g) of the proposed
rule. A few commenters stated that the programs under WIA ``seem to
focus on the younger generation'' and full-time employment
opportunities, which makes it difficult to set employment expectations
for the older workers in
[[Page 53793]]
collaboration with WIA projects. Other commenters did not have an issue
with the language but echoed these sentiments. These commenters wanted
to know what the Department was doing to encourage similar
collaborative efforts with the WIA programs, however, rather than
leaving the onus on SCSEP to initiate partnering efforts.
We believe these commenters are reading the provision too narrowly.
The point of the coordination requirement is no different from the
expectations and requirements established in subpart B of this final
rule. The type and degree of coordination will vary depending on the
geographic location. This provision requires the State grantees to
develop a long-term strategic plan for how those activities will be
coordinated over a period of time for the benefit of the program. The
Department further notes that WIA grantees have a responsibility to
coordinate with the SCSEP program as well, but these regulations are
not intended to apply to WIA-funded recipients. For example, State
Workforce Investment Boards are required to develop linkages among One-
Stop Partner programs such as SCSEP in order to assure coordination and
avoid duplication of activities. 20 CFR 661.205(b)(1). For a more in
depth discussion on the coordination requirements, see the discussion
of subpart B of this final rule.
Finally, one commenter argued that Sec. 641.302(k) is ``overly
prescriptive'' in requiring the State to provide a long-term strategy
because it ``presumes the necessity for every state to make long-term
program design changes in order to improve services to participants and
communities.'' The commenter argued that instead, the State ``should
have the latitude to plan strategically, within the framework of the
OAA, for what works best * * *.'' There is nothing in Sec. 641.302(k)
that prevents a State from planning strategically for what works best.
Indeed, that is precisely what this provision assumes that the States
will do. This provision does not require change for change's sake,
rather, it requires that a State take a hard look at the SCSEP in the
State, determine whether changes in the program will improve it and
develop a plan to move toward those changes. Therefore, we disagree
that Sec. 641.302(k) is overly prescriptive, because as explained
above, we believe that long-term, 4-year planning will improve services
overall in the State.
May the Governor, or the highest government official, delegate
responsibility for developing and submitting the State Plan? (Sec.
641.310)
Although we did not receive any comments on this section, we made
technical amendments to this section by breaking it into paragraphs to
make it easier to read.
Who participates in developing the State Plan? (Sec. 641.315)
This section describes the required participants to the State
planning process. We received a few comments on this section.
One commenter stated that the requirement to seek the advice and
recommendation of representatives of the various organizations involved
too many people, and that it ``would take an entire year just to
coordinate those efforts.'' This commenter requested that the
Department limit the number of organizations required to provide input
to the development of the State Plan.
This part of the proposed rule did not change from the 2004
regulations. In addition, the list of organizations and individuals is
consistent with the Sec. 503(a)(2) of the 2006 OAA. The Department
commented on this issue in the 2004 regulations. At that time the
Department stated: ``[Although] obtaining information on coordination
may be a bit more complicated whe[n] there are several national
grantees in a State, we believe that if the Governor has set up a good
consultation process, obtaining the information should not be
difficult.'' 69 FR 19014, 19022, Apr. 9, 2004.
Other commenters found this section to be inadequate as written
because it does not address coordination requirements with aging
programs. Specifically, one commenter noted that the SCSEP regulation
should ``enforce and reflect section 503(b) of the 2006 OAA, requiring
coordination of SCSEP with other programs under the Older Americans
Act, such as state units and area agencies on aging, and with other
Federal programs such as Foster Grandparents, Senior Companions, and
Vocational Rehabilitation.'' We did not make any changes to these
sections because the regulation lists aging organizations in paragraphs
(1), (4), (5) and (7) and thus clearly requires coordination with aging
organizations.
Must all national grantees operating within a State participate in a
State planning process? (Sec. 641.320)
This provision explains that all national grantees are required to
participate in the State planning process with the exception of
grantees serving older American Indians or Pacific Island and Asian
Americans. One commenter disagreed with this provision and stated that
these entities should not be exempt from participation. As noted in the
regulation text at paragraph (b), however, that exclusion is mandated
by Congress at Sec. 503(a)(8) of the 2006 OAA. That being said, the
Department agrees that it would be helpful for these organizations to
participate in the development of the State Plan, which is designed to
improve services, and we believe they have done so in the past.
Therefore, as noted in the regulation provision, the Department will
continue to encourage these national grantees to participate in the
State Plan process.
How should the State Plan reflect community service needs? (Sec.
641.330)
We received one comment on this section; however, because the
substance of the comment was related to a lack of resources, it will be
addressed in the Administrative section of the preamble under Section
D, Unfunded Mandates.
How should the Governor, or the highest government official, address
the coordination of SCSEP services with activities funded under title I
of WIA? (Sec. 641.335)
We received several comments on this section. These commenters
found this section inadequate as drafted to address coordination
requirements with aging programs but failed to provide any specific
regulatory suggestions other than to draft more regulations. The
Department did not make any changes to these sections because, as
mentioned in the discussion of Sec. 641.315, the requirements to
coordinate with aging groups are clear.
How often must the Governor, or the highest government official, update
the State Plan? (Sec. 641.340)
This section discusses the situations when the State is required or
encouraged to update the State Plan. We received one comment on this
section. This commenter stated that requiring updates more frequently
than every two years as specified by the 2006 OAA, would convert a long
range strategy into an annual plan, which is the current requirement.
Although updates are not required more frequently than every two years,
they are encouraged and should be done when circumstances warrant, as
noted in Sec. 641.345. The State Plan process is not an exercise that
should be done as an item on a ``to do'' list. Rather, it is a
thoughtful instrument that is designed to lead the State forward to
achieve positive outcomes. In order for
[[Page 53794]]
any plan to be effective, it must align with current circumstances.
Over the course of two or four years, it is reasonable to think that
there could be some major shifts in policy, local or national economy,
employers, performance, or community social service organizations that
may alter the State's direction described in the State Plan. Therefore,
without monitoring and adjusting the State Plan, it would be easy for
the State Plan to become obsolete. Therefore, the Department did not
make any changes based on this comment. However, as a technical
amendment, we did divide the section into two paragraphs to make it
easier to read.
What are the requirements for modifying the State Plan? (Sec. 641.345)
We received several comments on this section. One commenter stated
that modifying the State Plan according to Sec. 641.345(b)(3) would
require grantees to modify the State Plan every year, which is contrary
to the four-year strategic planning document. This commenter stated
that almost every State and national grantee failed to meet at least
one goal, and because the Department requires grantees to submit a
performance improvement plan each year when one or more goal is not
met, that effectively results in annual modifications.
We appreciate this comment and upon further reflection have decided
to delete this provision from the final rule. Although the assertions
that most grantees fail to meet at least one goal each year and that
they are required to submit a performance improvement plan each year is
inaccurate, the Department does agree that the requirement is
unnecessary for continuous improvement. As a consequence, proposed
Sec. 641.345(b)(3) has been deleted and Sec. 641.345(b)(4) will be
renumbered as Sec. 641.345(b)(3).
Two other commenters reported contradictions: One found that
paragraphs (c) and (d) contradicted each other and the other found that
paragraph (d) contradicted OAA Sec. 503(a)(3). We do not find a
contradiction in either case.
Paragraph (c) requires the modified State Plan to be published for
public comment, while paragraph (d) allows the grantees to make
modifications to the plan without seeking the advice and recommendation
of those entities and individuals listed in Sec. 641.315. Paragraph
(d) addresses the development of the modification while paragraph (c)
addresses the post-development, pre-submission phase of the planning
process. However, it appears that some State grantees have used the
public comment period as the main mechanism for seeking the advice and
recommendation of those organizations and individuals, which is not the
intent of the statute. Section 503(a)(2) of the 2006 OAA requires State
grantees to seek the advice and recommendations of those organizations
and individuals while developing the plan. The public comment period
occurs after the State Plan is developed. Although it is a time
consuming process, as we have stated elsewhere in this preamble, the
State Plan process is not an item on a ``to do'' list. The State Plan
process requires the grantee to identify and assess the resources
available in the State, to engage the key members of organizations
providing those resources in the planning process, and to provide a
roadmap for how the State will reach overall projected outcomes.
Therefore, it is a critical document for helping the State provide
continuously improving services to as many eligible individuals
possible in that State. Thus, if the plan development or modification
processes are being run correctly, there is no contradiction in the
provisions on consultation and public comment.
The second commenter further stated that paragraph (d) negates the
role of the national grantees in the modification process. This
commenter recommended that the Department strike this provision and
replace it with a provision that reads: ``the Governor, or the highest
[S]tate official, must seek advice and recommendations from each
grantee operating a SCSEP within the State.''
The Department agrees with this comment and has modified the
language to require the Governor or the highest State official to
consult with the national grantees. In addition, given the commenter's
rationale, the Department also considered whether this provision should
be revised to require the full consultation of those entities listed at
Sec. 641.315 as well. The purpose of the State Plan is to draft a plan
that will improve services across the State and this provision relates
to major changes that will impact services to participants statewide,
which suggests the importance of full consultation even when modifying
the plan. On the other hand, we recognize that the State may need some
flexibility about which organizations it seeks advice from during the
modification planning process because the need for advice from
particular organizations may vary, depending on the event that gave
rise to the need for a modification. Therefore, while the Department
strongly encourages State grantees to seek the advice and
recommendation of each entity listed in Sec. 641.315 when or if
modifying the State Plan becomes necessary, we have decided not to
require it except for the national grantees in the state.
How does the State Plan relate to the equitable distribution report?
(Sec. 641.360)
This section describes the connection between the State Plan and
the equitable distribution report. The Department made one substantive
change to this section. The Department changed ``Census data'' to
``Census or other reliable data'' to be consistent with the changes
made to the definition of ``Equitable Distribution Report'' in Sec.
641.140.
A commenter stated that the State Plan should address competition
and the authorized positions that could change. That commenter further
argued that the Department should require a plan to involve State
grantees in the finalization of the authorized positions to avoid
disruptions, or the ability to make recommendations to better serve
areas proportionately.
We agree with these concerns and it is for that reason that the 4-
year strategy and the meetings on equitable distribution are so vitally
important to the program, as discussed in other sections of this final
rule. Further, Sec. 641.480 addresses the commenter's other concern
that States should have a role in determining where positions are
located during a competitive process. Since the commenter's concerns
are addressed in that provision, we did make any changes to this
section.
How must the equitable distribution provisions be reconciled with the
provision that disruptions to current participants should be avoided?
(Sec. 641.365)
This section describes the Department's policy on the movement of
positions for equitable distribution in the context of minimizing
disruptions to participants. One commenter supported the proposed
regulation because it included language that emphasized the
coordination of all grantees within the State. Another commenter
requested that the Department require national grantees to report to
the State when they move positions within the State, and wanted us to
allow the States to authorize these changes. This commenter felt that
this change would ensure that ``the maximum number of eligible
individuals will have an opportunity to participate in the program and
will allow States to demonstrate that they are making good
[[Page 53795]]
faith efforts to correct slot inequities and are on track to meet their
state plan goals.''
We appreciate the comment in support of this proposed section as
well as the sentiments of the commenter, who would like to see more
State authority over any position movement within the State. Section
641.365(d) requires that national grantees notify the State of any
position transfers before the transfers may be made. Not only are
national grantees required to participate in the equitable distribution
and State Plan processes, but they are also required to notify the
State before any positions are transferred within the State. Sec.
641.365(f). However, to ensure that national grantees coordinate with
the State grantee before submitting a request to the Department to move
positions, we are revising this section to require that the national
grantee's request to DOL include a recommendation from the State
grantee in which the affected positions are located and to indicate
that the Department will consider those comments in reviewing the
application. As a matter of practice, since the 2004 regulations, the
Department has looked for the State's comments on any position
relocation request from a national grantee and will continue to do so.
This revision conforms the regulation to our established practice and
ensures that the State's comment on the proposed transfer will be
considered by the Department in the decision making process. Approval
authority, however, will continue to remain with the Department
consistent with the 2006 OAA.
The Department recognizes that it may have been difficult to follow
this provision and, therefore, has divided the section into
subparagraphs to make it easier to read. The requirements discussed
above are now reflected in new Sec. Sec. 641.365(a)-(f). The
Department also made a few technical changes, which included changing
``Federal Project Officer'' to ``the Department'' to be more consistent
with the statutory language; and editing ``Census data'' to read
``Census or other reliable data'' to be consistent with the changes to
the definition of ``Equitable Distribution Report'' in Sec. 641.140.
Subpart D--Grant Application and Responsibility Review Requirements for
State and National SCSEP Grants
We received several comments on this subpart. Those comments were
related to State competition, the use of past performance for selecting
grantees, State involvement in the national competition, and the timing
of a national competition.
What entities are eligible to apply to the Department for funds to
administer SCSEP projects? (Sec. 641.400)
This section describes the entities that are eligible to apply for
SCSEP grants. We received one comment on this proposed section on the
funding to the State for conducting a competition. The commenter stated
that the regulations do not address the funding provided to the State
to conduct a competition. This commenter also stated that the
Department ``appear[ed] to define the State in two distinctly different
definitions.''
The Department does not provide additional funding for the States
to compete their grant program. States that compete their programs will
have plenty of advance notice that they will have to compete because it
takes a failure to meet performance standards for three consecutive
years to trigger the competition requirement. States therefore will
have time to plan for the possibility of competition and to set money
aside to fund it. The Department suggests that grantees work with their
Federal Project Officer to determine a sufficient amount for
administrative management of a competitive process for State grantees
that are required or desire to compete their programs.
In addition, we have amended Sec. 641.420(d) to cross reference
Sec. 641.460, which provides that relevant past participation will be
used as scoring criteria, as well as a factor for determining an
applicant's eligibility.
How will the Department examine the responsibility of eligible
entities? (Sec. 641.450)
We have amended this section to state that in reviewing records,
the Department may consider ``all relevant'' information including the
organization's history in ``managing'' other grants. These changes
merely reflect the Department's standard practice in reviewing
competitive grants.
What factors will the Department consider in selecting national
grantees? (Sec. 641.460)
This section describes the factors the Department will consider
when it competes the national grant funds. We received several comments
on this proposed section. One commenter stated that Sec. 641.460
appeared to be at odds with Sec. 514(c)(4) of the 2006 OAA because the
statutory language was intended ``to prevent selection bias where past
performance was meritorious.'' The commenter compared the OAA to the
NPRM language, in which the Department ``propose[d] to drop the
reference to past performance among the rating criteria [it] will
consider.'' That same commenter went on to request that the Department
propose more comprehensive regulations to address the interrelated
issues of past performance and the manner and timing of the competition
for SCSEP grants. The commenter based this argument on his
organization's experience with prior competitions and the 2006
Solicitation for Grant Applications. See 71 FR 10798, Mar. 2, 2006.
This commenter stated that his organization believed the statute only
provided the Department the authority to re-allocate positions from
grantees that failed to meet national performance goals. Another
commenter stated that written comments should be sought on this
provision from the Governor or designee of the State.
We do not agree that the statute only provides the Department the
authority to reallocate positions from grantees that failed to meet
national performance goals. While OAA Sec. 513(d)(2)(B)(iii) bars
grantees which have failed to meet their performance goals for four
consecutive years from participating in the next competition, we
interpret OAA Sec. 514(a)(1) to require an open competition; a
competition in which all funds and slots available to national grantees
are competed. As discussed in the preamble to the proposed rule, at 73
FR 47770, 47780, Aug. 14, 2008, the proposed change merely took past
performance out of the rating criteria in the Solicitation for Grant
Applications requirements because it is included already as an
eligibility criterion under Sec. 514(c)(4), as the commenters point
out. However, upon further consideration, we believe that using past
performance merely as an eligibility criterion is inadequate to give
effect to the Congressional requirement. Grantees that fail to meet
their aggregate level of performance for four consecutive years are
precluded by statute from participating in the competition. This would
still allow a grantee with totally unacceptable performance in the last
three years to compete. Therefore, we have concluded that consideration
of all relevant past performance should be part of the scoring
mechanism and of the awarding criteria. Considering all relevant
experience, and not just SCSEP experience, will protect against
selection bias. What constitutes relevant experience and the specific
weight given to past performance will be addressed in the Solicitation
for Grant Applications published in the Federal
[[Page 53796]]
Register or other appropriate instrument.
Finally, written comments from the Governor or highest elected
official are provided for under Sec. 641.480, which outlines the
process by which the Governor or highest elected official may
participate in the national competition process.
When will the Department compete SCSEP grant awards? (Sec. 641.490)
This section outlines the circumstances that govern the
Department's decision to compete the national grant funds. We received
one comment on this section.
The commenter expressed concern that having an additional grant
year for some grantees but not for all would create a complicated
competitive grant cycle. The commenter also thought that such a process
would remove the opportunity for new and incumbent organizations to
compete with all the national organizations and ``would only serve to
exacerbate the difficulties of SCSEP participant transition [from] one
provider to another.'' The commenter recommended that the Department
make a decision to hold a national SCSEP competition ``using the
national baseline for all organizations.''
The Department takes this comment to mean that a competition should
be for all available national grant positions and that the extension of
the grants for an additional year as permitted by Sec. 514(a)(2) of
the 2006 OAA, should be determined by how well all grantees are
performing at the end of the four-year period referenced in Sec.
514(a)(1).
Although we appreciate the commenter's concerns, we decline to
address this issue in a regulation, but will take it under advisement.
The 2006 OAA requires us to compete the program every four years but
permits us to grant a one-year extension to any national grantee that
has met its performance goals for each year of the four-year grant
period. Although we cannot extend the grants of grantees that have
failed to meet their expected levels of performance, the extension is
otherwise discretionary. It is discretionary in the sense that we could
decide to compete all of the grants after the fourth year, extend all
of the grants if all the national grantees have met their expected
levels of performance, or compete the funds of only those grantees that
have failed to meet their expected levels of performance. We will
decide how to structure the future competition after reviewing program
performance toward the end of the four-year period, and will make the
decision based on the best interests of the participants and our policy
of avoiding disruptions to the extent possible.
Subpart E--Services to Participants
Who is eligible to participate in the SCSEP? (Sec. 641.500)
This section describes the eligible population for participation in
the program. We received one comment on this section. That commenter
recommended the Department lower the age limit of participants to 50
with continued priority to those who meet the most-in-need
characteristics. We did not make this change because the requirement to
serve individuals age who are at least 55 years of age is statutory.
OAA Sec. 502(a)(1). For clarity, the Department has added the phrase
``at the option of the applicant'' to the sentence about treating a
person with a disability as a family of one at the end of this section.
This change is consistent with the intent of the statutory provision,
and conforms to the Department's long-standing interpretation of the
provision.
How is applicant income computed? (Sec. 641.507)
This section describes the procedures grantees must follow when
making income determinations for enrolling participants. Most of these
requirements were previously in administrative guidance and were
adopted with the 2006 OAA.
We received one comment on this section related to using either a
12-month period of income or a 6-month period of annualized income to
determine participant eligibility. This commenter stated that the
regulation appeared to require the grantee to use one or the other and
requested that the Department allow grantees the flexibility to use
whichever method was most favorable to the participant on a case-by-
case basis.
The Department previously stated that grantees should use which
method of calculating income is most favorable to the participant and
for that reason, the preamble to the proposed rule acknowledged that we
were adopting the procedures that were published in TEGL No. 12-06
(Dec. 28, 2006), which went into effect on January 1, 2007. See 73 FR
47770, 47781, Aug. 14, 2008. That section of the preamble specifically
allowed grantees to calculate income based on either 12 months or 6
months annualized. Further, in that section, the Department encouraged
grantees to ``choose the computation method that is most favorable to
each participant, on a case-by-case basis, for the broadest possible
inclusion of the eligible applicants.'' 73 FR at 47781. To reinforce
this interpretation, the Department is changing the language of the
regulation to remove the word ``encourages'' and to track the language
of TEGL 12-06, which requires the grantee to use whichever period is
more favorable to the participant.
What types of income are included and excluded for participant
eligibility determinations? (Sec. 641.510)
This section generally describes what does and does not constitute
income for purposes of determining participant eligibility. We received
a few comments on this section expressing agreement with the provision.
One of the commenters further stated that the regulation should
specifically reference other income exclusions, such as income from
training programs, SSI, Veterans benefits, and any other publicly
subsidized program where the goal is self-sufficiency.
The Department declines to make the suggested change to this
provision for the reasons stated in the preamble to the proposed rule
at 73 FR 47781-47782, Aug. 14, 2008. The Department encourages grantees
to read TEGL No. 12-06 (Dec. 28, 2007) for the most recent information
on excludable income. The Department also notes that that TEGL includes
the exclusions referenced by this commenter and is located on the SCSEP
Web site at http://www.doleta.gov/seniors under Grantee Information,
Technical Assistance. The income exclusions included in the regulation
were only those exclusions required in the 2006 OAA. The issue of
includable and excludable income is one that requires some measure of
flexibility for good program management. It is for that reason that the
details of the income requirements have always been in an
administrative guidance, as authorized by Sec. 641.510(c).
May grantees and sub-recipients enroll otherwise eligible job ready
individuals and place them directly into unsubsidized employment?
(Sec. 641.512)
This section prohibits grantees from enrolling job ready
individuals, who can be directly placed into unsubsidized employment,
as SCSEP participants. One commenter suggested the Department add a
definition or criteria for ``job ready,'' which would help the
providers determine the type of individual that is not eligible for
SCSEP services. The Department agrees and has included a definition of
``job ready'' in Sec. 641.140. As noted in that section of the
preamble, in general terms, it is an individual who requires no more
than
[[Page 53797]]
just job club or job search assistance to be employed. Therefore, the
definition of ``job ready,'' as now defined at Sec. 641.140, refers to
an individual who does not require further education or training to
perform work that is available in his or her labor market. For further
clarity, we have added the word ``job-ready'' to the text of Sec.
641.512 to describe those individuals ``who can be directly placed into
unsubsidized employment'' and thus cannot be enrolled in SCSEP but
should be directly referred to the One-Stop system.
How must grantees and sub-recipients recruit and select eligible
individuals for participation in the SCSEP? (Sec. 641.515)
This section describes the criteria grantees must use when
determining the eligibility of an individual to receive program
services. We received a few comments on this section specifically
related to proposed paragraph (b), on using the One-Stop delivery
system for recruiting participants.
One commenter acknowledged the essential relationship that must
exist between the One-Stop delivery system and the SCSEP. However, that
commenter further stated that transferring the responsibility of
recruitment and selection of all eligible participants to the One-Stop
appears duplicative and eliminates the role of SCSEP in participant
selection. Several other commenters stated that the provision is
inconsistent with Sec. 502(b)(1)(H). Those commenters reasoned that
the statutory language did not require grantees to use the One-Stop
delivery system to recruit or select eligible individuals because of
the use of ``will'' rather than ``must.'' They wanted the regulation to
reflect that there are other means to recruit and select participants.
We believe these commenters misinterpreted that section of the
statute and the proposed rule. In the context of OAA Sec. 502(b), the
Department interprets the use of the word ``will,'' to be synonymous
with the words ``shall,'' or ``must.'' Section 502(b)(1) requires the
Secretary not to fund programs unless she determines that the programs
``will'' do all of the things listed in paragraphs (A)-(R). In that
context, ``will'' means that the 18 activities listed in Sec.
502(b)(1) must be done for a program to be funded. That being said,
however, we do not believe the statute or the regulation implies a
requirement for an exclusive use of the One-Stop delivery system as the
means to recruit eligible participants, as required by Sec.
641.515(b). Rather, it is one method that grantees must use to recruit
eligible participants. Moreover, this requirement in the regulation is
not new to SCSEP; it appeared in the 2004 regulations at 20 CFR
641.515(b). Therefore, the Department's interpretation is consistent
with the 2006 OAA and the 2004 regulations and accompanying preamble
discussion at 69 FR 19014, at 19029.
What services must grantees and sub-recipients provide to participants?
(Sec. 641.535)
This section describes the types of services that are required,
permitted, and prohibited in the program. We received a few comments on
this section. One commenter requested language in proposed paragraph
(a)(1)(ii), to ensure grantees have the flexibility to determine when a
participant needed to be reassessed. The Department does not agree that
additional language is necessary. The regulation text, as written, as
well as the preamble discussion in the proposed rule, already allows
for such flexibility so long as participants are assessed upon entry,
and for a total of at least two times in a 12-month period.
In addition, two commenters stated that proposed Sec.
641.535(a)(9), as well as Sec. Sec. 641.540(f) and 641.565(a),
appeared to require projects to pay participants for time spent in such
training and orientation. In particular, one commenter stated that
orientation activities can occur as part of the initial assessment
process which may be before a community service assignment. The
commenter notes that under the proposed rule, such a participant would
not be required to receive wages, which appeared inconsistent with the
proposed Sec. 641.540(h), and therefore, disagreed with the proposed
change.
We do not read this provision as narrowly as this commenter.
Paragraph (a) of Sec. 641.535 specifically states: ``When individuals
are selected for participation in the SCSEP'' the grantee is
responsible for the activities listed at paragraphs (1) through (11) of
that section. Included on that list is paragraph (9) ``Providing
participants with wages and benefits for time spent in the community
service employment assignment, orientation, and training.'' The
Department believes that the operative words in this paragraph are
``selected for participation.'' The point of the regulation is that
when a person is formally enrolled in the program the enrollee must
receive paid services. Therefore, it is possible, as the commenter
described, that an individual may attend a general overview of the
program or participate in a general assessment for eligibility before
the individual is enrolled in the program. In that case, the
individual, who is not yet a SCSEP participant, is not required to be
paid SCSEP wages for attending that overview or assessment. However,
once a participant is enrolled in the program, which means the
individual has been found eligible, has been given a community service
assignment, and is receiving a service, paragraph (a)(9) requires that
the grantee must pay wages for time spent in orientation, training,
assessment, or in receiving any other service. This requirement applies
even if the participant has yet to start his or her assigned community
service assignment at the host agency.
Further, as one commenter noted, participants may continue to
receive self-development training outside of their participation in the
SCSEP as provided in Sec. 641.540(h). However, the regulation does not
require grantees to pay wages when the participants are participating
in training that they have selected and that is not identified in their
IEP.
Another commenter stated that proposed paragraph (b) allows the
Department to increase programmatic costs without funding and that,
``utilizing the administrative guidelines appears to circumvent the
rule making process.'' The Department disagrees with this commenter for
a number of reasons. Proposed paragraph (b) states that ``[t]he
Department may issue administrative guidance that clarifies the
requirements of paragraph (a).'' The Department is fully compliant with
the notice and comment procedures for rulemaking under the
Administrative Procedure Act (5 U.S.C. 551 et seq.). The administrative
guidance discussed in paragraph (b) will merely clarify the
requirements of paragraph (a) and is not intended to create new rules
or regulations. Such guidance would provide further explanation, as
necessary, of the meaning and parameters of the various activities
required by the regulation and functions as a type of technical
assistance to grantees that sometime struggle to understand how they
are expected to satisfy a regulation. The portion of the comment that
is related to increasing programmatic costs without funding is
addressed in the Administrative section of this preamble under Section
D, Unfunded Mandates. However we also note that rather than increase
programmatic costs, we anticipate that such guidance will actually
decrease programmatic costs.
We have also changed the language in paragraph (a)(3) by adding a
new subparagraph (iii) to clarify that the
[[Page 53798]]
requirement that an appropriate unsubsidized employment goal be part of
the IEP for all participants applies only for the first IEP.
Thereafter, if it becomes apparent that unsubsidized employment is not
feasible for the participant, the IEP should be adjusted to reflect
other appropriate goals for increased self-sufficiency, including the
transition to other services, as required by Sec. 641.570(a)(2). Since
it is possible that some SCSEP participants will not achieve
unsubsidized employment during or immediately following their
enrollment in SCSEP, grantees must have the flexibility to design an
IEP that will lead to maximum self-sufficiency for the participant and
an enhanced quality of life after participation in SCSEP has ended.
Finally, we have removed the citation in paragraph (a)(1) to the
2006 OAA, since OAA Sec. 502 does not specifically require a grantee
or sub-recipient to provide orientation to the SCSEP. However, it is
the Department's position that requiring the provision of orientation
is consistent with the purpose of title V. Orientation adds great value
to the participants' experience. Orientation is the ideal forum in
which to provide participants with important information on the
program; to address expectations and desired outcomes; and explain
participant's rights and obligations, grievance procedures, safety
issues, and any other information deemed necessary to ensure a positive
experience.
What types of training may grantees and sub-recipients provide to SCSEP
participants in addition to the training received at the community
service assignment? (Sec. 641.540)
The purpose of this section is to describe the types and the timing
of training services grantees may provide to participants. We received
several comments on this section about on-line training and the
Department's interpretation of training.
One commenter requested that the Department revise paragraph (b) to
be more consistent with the 2006 OAA. That commenter interpreted Sec.
502(c)(6)(A)(ii) of the 2006 OAA to allow training before or after an
unsubsidized placement.
We understand how a reader could interpret the provision to allow
training after a participant is placed in unsubsidized employment
because that provision may not be clear; however, we do not agree with
that interpretation. The relevant provision states: ``participant
training * * * which may be provided prior to or subsequent to
placement and which may be provided on the job, in a classroom setting,
or pursuant to other appropriate arrangements.'' We interpret the term
``placement'' here to mean a placement in a community service
assignment. We base our interpretation on the latter part of that
provision, which indicates that the training may be provided on the
job, in a classroom, or through other appropriate arrangements. In the
Department's opinion, the examples listed go hand-in-hand with the
types of training a grantee would provide while a participant is in a
community service assignment, given that the community service
assignment is an on-the-job type of training. The commenter's reading
is not only inconsistent with the SCSEP's policy on services to exited
participants, but is also inconsistent with the intent of the program
to help most-in-need, older individuals find employment.
Given the program's limited resources, it is important that
grantees use grant funds to help current participants achieve self-
sufficiency. Grantees have a responsibility to provide training for the
participants that will make them job ready. In appropriate cases, the
grantees have an obligation to provide or assist participants to obtain
supportive services to make sure the participant keeps that job, as the
commenter notes. We do not, however, define supportive services to
include training for a participant once he or she has exited the
program. Although there is government support for incumbent worker
training in WIA and TAA, SCSEP's funds cannot be used to provide
training after unsubsidized employment has been attained. SCSEP's goal
is to help participants become job-ready through community service and
approved training; therefore, training may occur during enrollment but
not after completion of the program. We have revised this provision to
clarify that training may be provided ``before or during'' a community
service assignment.
Other comments were about on-line training. One commenter expressed
support for the approval to use on-line instruction for training as
discussed in the preamble to the proposed rule at 73 FR 47770, 47784,
Aug. 14, 2008. Another commenter questioned how the Department expected
grantees to calculate the participant's time toward on-line training
for wage purposes and who would validate the time spent in this
activity.
The Department does not expect on-line training to be handled any
differently than any other training. On-line training is not new to
SCSEP; it is not required, but is one of several options for how
training may be provided. It has long been recognized as an approved
training activity, although not expressly mentioned in the regulations.
Grantees that have questions about how to implement on-line training
should contact their Federal Project Officer for technical assistance.
Another commenter requested that the Department add the language
``and any other costs deemed necessary'' to the end of Sec.
641.540(e). We decline to make this suggested change. The language
follows the statutory language at 502(c)(6)(A)(ii) of the 2006 OAA and
is sufficiently inclusive of all costs the Department considers part of
training. Any allowable cost associated with training that is not
included in Sec. 641.540(e) will fall within the wages and other
benefits listed in Sec. 502(c)(6)(A)(i) of the 2006 OAA and
participant supportive services costs which are addressed in Sec.
641.540(g). Making the suggested change would likely lead to
unnecessary confusion over whether the ``other costs'' associated with
training fall within Sec. 641.540(e) or Sec. 641.540(g). Such
confusion would be especially problematic because the statute excludes
the cost of activities listed in Sec. 641.540(e) from its general rule
that 75% of costs go to wages, while the statute includes costs listed
in Sec. 641.540(g) within the ``75% of grant funds go to wages'' rule.
OAA Sec. 502(c)(6)(B)(i).
We make one technical change in paragraph (a) to clarify that the
grantee ``may'' pay for appropriate skill training, in addition to that
provided through the community service assignment, ``that is realistic
and consistent with the participant's IEP, that makes the most
effective use of the participant's skills and talents, and that
prepares them for unsubsidized employment.'' The prior mandatory
language, ``must,'' was meant to apply to the criteria that have to be
met before the grantee may pay for such skill training. It was not
meant to require the grantee to pay for such training for all
participants. Grantees are encouraged to arrange or provide for such
training when appropriate, but given the limited funds available for
this purpose, they are not required to provide or pay for training when
it is not appropriate.
What supportive services may grantees and sub-recipients provide to
participants? (Sec. 641.545)
This section describes the types of supportive services grantees
may provide to participants. We received a few comments on this section
about the
[[Page 53799]]
proposed rule language that limits supportive services to those
services that support an employment goal. Those commenters asserted
that there are times when a participant may need services in order to
be able to participate in the SCSEP, and therefore, providing those
services should not be tied specifically to an employment goal. One
other commenter requested that the Department add ``temporary shelter''
to the list of supportive services.
The regulation as drafted is consistent with the historical
practice of providing supportive services in the program and
specifically refers to supportive services ``that are necessary to
enable an individual to successfully participate in a SCSEP project.''
The regulation's language is consistent with the comments about using
supportive services to assist participants during their enrollment in
the program. In the preamble discussion of 20 CFR 641.545 of the 2003
Notice of Proposed Rulemaking, the Department stated: ``Grantees/
subgrantees should seek to ensure that participants receive those
supportive services necessary for them to participate in the program
and to realize the goals set forth in their SCSEP IEPs.'' 68 FR 22520,
22529, Apr. 28, 2003. The Department's position was later restated in
the 2004 Final Rule preamble for 20 CFR 641.545:
To meet the needs of the seniors the SCSEP serves, grantees must
make every effort to provide them the supportive services they need
to be able to participate in their community service assignments.
The Department recognizes that SCSEP grantees will not be able to
provide all needed or desirable supportive services with grant funds
* * *. But the Department expects grantees and subgrantees to make
every reasonable effort to provide participants with the supportive
services provided for in their IEPs. 69 FR 19014, 19032, Apr. 9,
2004.
We believe the commenters' concerns arise from the requirement in
Sec. 641.535(a)(6) for the supportive services to be consistent with
the participant's IEP. Commenters seem to interpret that requirement to
mean that grantees may not provide supportive services during a
participant's community service assignment. The fact that the IEP, and
particularly the initial IEP, is tied to an employment goal does not
mean that the IEP is limited to only those services that advance the
employment goal. The IEP may and should assess and consider all of the
services the participant needs to successfully participate in SCSEP,
and should address supportive services that may be required before
assignment to community service, during assignment, and during the
first 12 months of unsubsidized employment.
For all these reasons, we find no inconsistency between the rule
and the way the commenters want to provide supportive services and thus
have not changed the final rule.
On the issue of temporary shelter, we agree with the commenter.
Accordingly, we are revising the regulatory text to be more inclusive
by saying ``housing, including temporary shelter.''
We have also changed the language of paragraph (a) to reinforce the
idea that grantees must assess participants' need for supportive
services and must assist participants in meeting those needs and
grantees may directly pay for or arrange for supportive services as
necessary. This change reconciles Sec. 641.545(a) with Sec.
641.535(a)(2) and (a)(6), and clarifies that, while paying for
supportive services directly is optional, grantees must assess
participants' supportive services needs and must make every effort to
help participants to meet the needs so identified.
What responsibilities do grantees and sub-recipients have to place
participants in unsubsidized employment? (Sec. 641.550)
This provision identifies the steps that grantees must take to
assist participants to obtain unsubsidized employment. We received two
comments about the emphasis on unsubsidized placements. The first
commenter found the proposed rule's increased emphasis on placement in
unsubsidized employment in conflict with self-directed job searches
which, when appropriate, should ``be an acceptable alternative for
promoting placement in unsubsidized employment.''
The Department does not construe this change in emphasis to
restrict the grantees from providing this type of assistance when it is
appropriate. The grantees are still required to assess participants and
to ensure they are following their IEP. If a grantee or sub-recipient
determines that self-directed job searches are a reasonable method for
seeking unsubsidized employment for certain participants, the grantee
or sub-recipient may encourage or assist in such efforts in place of
more intensive placement assistance, but they must still document it in
the IEP and follow-up with the participant. In some cases, grantees may
need to use a combination of methods to help participants locate and
apply for unsubsidized employment. The regulation was not meant to
prescribe how grantees may help participants find employment but rather
to make it clear that they are expected to work with participants to
help them find unsubsidized employment.
Another commenter disliked the changes from ``reasonable'' effort
to ``every reasonable effort'' as it relates to a grantee's
responsibility to place participants in unsubsidized employment. The
commenter argued that a participant could claim that every effort was
not provided to help him or her achieve unsubsidized placement. Thus,
the commenter, argued, the participant could wait for the perfect
unsubsidized placement and refuse the other opportunities. Therefore,
the commenter concluded that ``[r]easonable should be the standard.''
We agree that the language of Sec. 641.550 could be read as
imposing an obligation on grantees to provide unsubsidized employment
for all participants, even those for whom unsubsidized employment is
not a goal in their IEP, and could be interpreted as overstating the
extent of reasonable effort required. Moreover, helping participants
find unsubsidized employment is not required or possible until
participants become job-ready. Therefore, consistent with the change in
the language to Sec. 641.535(a)(3), we agree with the recommendation.
We have eliminated the requirement to ``make every reasonable effort''
and section 641.550 now provides that the obligation to help
participants achieve unsubsidized employment only applies to those
participants who have unsubsidized employment as a goal.
What policies govern the provision of wages and benefits to
participants? (Sec. 641.565)
This section provides the requirements for wages and benefits that
participants may receive. This section was updated from the 2004
regulations to reflect new statutory provisions. The Department
received several comments on this section, largely related to
compensation for Federal holidays. One commenter, however, noted that
the acronym ``WIA'' was missing before the word intensive services in
proposed paragraph (a)(1)(ii). The Department appreciates this comment
and made the change to the regulation so it is now consistent with the
rule as we described it in the preamble to the proposed rule.
One commenter noted that the limitation in proposed paragraph
(b)(ii)(A) that the results of a physical examination be provided only
to the participant hindered the grantee's ability to meet the
Department's data validation requirements for determining disability if
they were unable to require the physical examination results. The
[[Page 53800]]
commenter misunderstands the data validation requirement. Grantees
merely need to document that a physical was offered. That can easily be
accomplished without having the results of the physical. (If the offer
is declined, grantees must obtain a written waiver from the
participant.)
Furthermore, grantees should not use the physical examination
results to document disability for the most-in-need performance
requirement. The certification of the attending physician or official
documentation of a disability is sufficient. To the extent that a
participant declines to provide that information, the grantee will not
be able to take credit for it. However, participants have an incentive
to provide that information because documentation is required if a
participant claims family of one status for eligibility purposes. To
avoid any confusion about the use of the results of the physical and to
clarify that the physical itself is a fringe benefit meant solely for
the benefit of the participant, we have deleted the last sentence of
subparagraph (b)(1)(ii)(A), which stated that the participant could
provide the grantee a copy of the physical examination results. There
are circumstances under which a grantee may request documentation of a
disability or may even require all participants assigned to a
particular community service position to take a physical examination.
For example, documentation is required for family of one status, as
well as where a participant claims an accommodation. A physical also
can be required of all participants who are assigned to community
service positions that require certain physical capability. However,
those circumstances are entirely unrelated to the physical examination
that must be offered to the participant as a fringe benefit under the
statute.
The remainder of the comments related to the requirement that
grantees provide compensation for participants when the scheduled
workday in the program falls on a Federal holiday for the host agency.
Almost all of these commenters requested that the Department allow
flexibility in the regulation text to allow participants to make up the
time. One commenter specifically requested that the language in the
regulation more closely track the language of the 2006 OAA, which
provides for ``employer'' closure for Federal holidays. Another
commenter stated that having the flexibility to allow participants to
make up the hours posed concerns when program policies could vary from
grantee to grantee. This commenter was concerned that in one instance,
a program may pay the participant for the Federal holiday and in
another, the program may require the participant to make up the hours.
This commenter also raised a concern about adjusting the timesheets and
the difficulties it would cause for validating community service hours.
The commenter did not address how the adjustment of timesheets would be
a problem. Other commenters approved of the flexibility described in
the preamble of the NPRM that allows the participants to make up the
time rather than pay them for a day off. They believe it helps to
distinguish the participants from being considered employees of the
host agency.
The Department appreciates these commenters' concerns, which
reflect a desire to maintain the participants' status as ``trainees''
rather than ``employees'' at the host agency. Upon further reflection,
we find that the NPRM's regulation text provision of only two
categories of participant benefits (required and prohibited) failed to
reflect the flexibility the Department intended to provide for Federal
holiday leave and sick leave. For both of these benefits, as indicated
in the preamble to the NPRM, ``(t)he Department broadly interprets the
word `compensation' * * * to allow for a variety of practices * * * The
intent of the Department here is to allow flexibility in administering
the SCSEP * * *'' Unlike the other benefits listed in the NPRM
regulation text as ``required,'' the NPRM preamble noted that Federal
holiday and sick leave benefits need not be paid in cash but must be
provided in some fashion. Accordingly we have amended the regulation to
clearly indicate that Federal holiday leave and sick leave ``may be
paid or in the form of rescheduled work time.''
These modifications and clarifications address the concern of
perceived inequity mentioned by one commenter. It is not uncommon for
programs to offer different services and benefits. We have written
these regulations to permit each grantee to have the maximum available
flexibility in the design of its benefit programs, as long as each
grantee consistently applies the rules to all of its program
participants as required in Sec. 641.565(b)(1). We also do not see any
issues with validating timesheets for program accuracy or data
validation purposes. The timesheets are always based on the actual
hours the participant spends in a community service assignment at the
host agency. To the extent a participant makes up hours at the host
agency, it will be reflected in the total number of hours the
participant worked at the host agency in his or her assignment.
Finally, we interpret the word ``employer'' as meaning a ``host
agency'' since that is the only context in which this provision would
apply. Therefore, the Department has not made the change the commenter
requested.
Is there a time limit for participation in the program? (Sec. 641.570)
The Department received a large number of comments about this
section. The NPRM implemented the 48-month limitation on individual
participation in the program as required by Sec. 518(a)(3)(B) of the
2006 OAA. Paragraph (c) of this section addressed the average
participation cap created by Sec. 502(b)(1)(C) of the 2006 OAA.
Paragraphs (d), (e), and (f) further implemented these limits on
program participation.
The majority of comments on this section pertain to paragraph (b).
The statute provides for increased periods of participation for
individuals who meet one of the criteria listed in the statute. As
explained in the NPRM, the Department proposed to implement the
extension as a one-time, one-year extension to ensure that SCSEP
participation is not indefinitely extended, thus preventing other
eligible individuals from benefiting from the SCSEP, and to be
generally consistent with the possible extension of the average
participation cap which extends up to a maximum of only nine additional
months.
Most commenters asserted that the limit on the extension of the
individual participation limit to one-time and one-year ``is both
contrary to Congressional intent and counterproductive to assisting the
most vulnerable older adults.'' The commenters noted that Congress did
not place an absolute time limit on individual participation. The
commenters also argued that limiting the potential extension in this
way is unnecessary to reduce the number of long-term SCSEP participants
because there are several other program features, such as the
performance measurement system, that effectively achieve that goal. The
commenters also contended that restricting the extension to one-year,
one-time would result in involuntary terminations from the program for
older adults who are benefiting from the SCSEP and may be unable to
find any other meaningful employment and training assistance from other
programs. One commenter requested that the Department delay the
implementation of this provision in order to consult with other Federal
and State agencies on alternative programs
[[Page 53801]]
and resources for terminated participants. A few comments, including
those from participants, noted that the time limit could be more costly
to the government in the long-run and would create a financial hardship
on participants who are on the verge of obtaining employment. A few
commenters agreed generally with time limits in the program but
disagreed with applying it to all participants.
After considering these comments, the Department has decided not to
impose the proposed one-time, one-year restriction on the increased
period of individual participation. We agree that Congress could have
included an absolute limit on SCSEP participation in the 2006 OAA, but
did not do so. We also are sympathetic to the assertion that grantees
are in the best position to manage their programs to satisfy the
various aspects of the 2006 OAA and this final rule, some of which
impose other limitations on participation. Therefore, we agree that
grantees require the flexibility to determine the needs of individuals,
which necessarily means that some individuals may be in the program
longer provided they meet one of the waiver factors listed in Sec.
641.570(b), and will continue to receive services consistent with their
IEP. As noted in paragraph (e), the Department will issue
administrative guidance that describes the process for grantees to
request increased periods of individual participation. We expect that
grantees will make their determinations for requesting extensions for
individual participants who meet the eligibility factors in a fair and
equitable manner and in accordance with applicable civil rights laws.
This process developed in the administrative guidance will reflect this
expectation.
Given that the average participation in the program is
approximately two years and that there are other requirements designed
to limit participation in the program, we agree that it is not
necessary to retain this requirement. However, as some commenters
pointed out, grantees are cautioned that they are nevertheless
responsible for satisfying the average participation cap described in
paragraph (c) of this section as well as the expected levels of
performance for the core performance measures.
In addition, we received a number of comments on the 27 month cap
in paragraph (c). One commenter requested that the Department edit this
regulation provision to more accurately reflect the law as written.
Thus, this commenter requested that we revise the rule to read: ``each
grantee must comply with an average participation cap for eligible
individuals (in the aggregate) of 27 months.'' Other commenters
requested that the grantees be consulted on the method used to
determine the 27 month average participation cap. One commenter asked
for clarification on whether the 27 month cap, like the 48 month time
limit, was intended to be consecutive or not.
The Department does not agree that the language in the proposed
rule paragraph (c) requires additional clarification. The Department
opted to draft the language in this way to make it more reader-
friendly. We do not believe there are any inconsistencies between the
regulatory provision and the 2006 OAA, and therefore, did not make any
changes to this section. Finally, the Department will work with
grantees to implement the participation limits.
May a grantee or sub-recipient establish a limit on the amount of time
its participants may spend at each host agency? (Sec. 641.575)
This section authorizes grantees to adopt a policy under which
participants are rotated among community service assignments. We
received several comments on this section. One commenter stated that
moving participants around from host agency to host agency every 12
months has a negative impact on the program and considered it to be an
arbitrary rule. This commenter further claimed that this provision did
not consider the needs of the workers (participants). Other commenters
echoed this concern in one way or another, mostly opposing the
provision because they find it disruptive to the host agency when a
participant leaves and then they are understaffed.
The Department appreciates these commenters' concerns; however, the
rule does not require a grantee to adopt a rotation policy. Rather, it
allows grantees to implement a rotation policy when the grantee
believes it will make the program more effective and help program
participants achieve economic self-sufficiency consistent with their
IEP. This provision has been helpful to an increasing number of grantee
organizations over the years, who find it difficult to persuade host
agencies that they should not expect the SCSEP to augment their
workforce. More importantly, grantee rotation policies have allowed
participants to acquire more job skills, which increase their
opportunities to find unsubsidized employment. However, we do agree
that rotation of participants among host agencies may be disruptive and
counter-productive if the participant is still effectively acquiring
needed skills at his or her assignment. Therefore, we are revising the
regulation to provide that no rotation policy will be approved that
does not require an individualized determination that rotation is in
the best interest of the participant and will further the acquisition
of skills listed in the IEP.
Is there a limit on community service assignment hours? (Sec. 641.577)
We received a significant number of comments on this section. In
the NPRM, the Department proposed a limit of 1,300 hours per year on
participants' community service hours. The proposed limit is similar to
a previous 1,300 hours per year limit on all participant paid hours.
Several commenters criticized the proposed 1,300 hour limit as
``another example of an unnecessary restriction on a SCSEP grantee's
capacity to meet the needs of individual participants and to respond to
local conditions.'' Although commenters acknowledged that participation
in SCSEP is part-time, they asserted that the proposed 1,300 hour limit
``sets an arbitrary cap on participation'' and ``disregards the * * *
particular needs of a community (such as responding to a natural
disaster).'' The commenters further asserted that although the 1,300
hours is still a good benchmark, the restriction limits their ability
to address the backgrounds, life challenges and other circumstances
that make providing services to each participant a unique experience.
Still other commenters found that a majority of participants work less
than 1,100 hours because their higher State minimum wage prevents them
from overspending their budget. One commenter stated that if
participant staff are not allowed to exceed the 20-25 hours per week,
the grantees' performance measures will suffer.
The Department has considered these comments and has decided to
eliminate the 1,300 hour limit, as suggested by the commenters. We
agree that the grantees need the flexibility to respond to downturns in
the economy or natural disasters, for example. Therefore, we have
changed this provision to read that the 1,300-hour requirement is not
required but is still a benchmark and good practice that the Department
strongly encourages grantees to follow. This language is consistent
with the Department's position on this issue published in the preamble
to the 2004 Final Rule, at 69 FR 19014, 19036, Apr. 9, 2004. The
statute defines ``community service employment'' as ``part-time'' work
and grantees must ensure that community service assignments are part-
time positions. In addition, the
[[Page 53802]]
Department cautions grantees about allowing participant staff to exceed
the part-time requirements, which is not permitted.
Under what circumstances may a grantee or sub-recipient terminate a
participant? (Sec. 641.580)
This section describes a variety of circumstances in which a
participant may or must be terminated from the program and the
procedures by which terminations must be accomplished. We received
several comments on this section. One commenter asked for an
explanation of what ``knowingly'' means in paragraph (a). The common
legal definition of ``knowingly'' is ``[w]ith knowledge; consciously;
intelligently; willfully; intelligently.'' Black's Law Dictionary 4th
Ed. (1957) West Publishing. The Department recommends a common-sense
application of this definition. For example, if a participant provided
false information in order to meet the eligibility requirements for the
program and either knew or should have known that the information was
false, then such provision was done ``knowingly.''
We received two comments on paragraph (e) of this proposed section
which deals with terminations when a participant has refused a
reasonable number of job offers or referrals. One commenter requested
that the Department add language to paragraph (e) allowing the grantee
to terminate the participant for refusal to accept a reasonable number
of job searches or job offers. The other commenter reminded the
Department that in some cases, local, State, or Federal law and/or
agency policy requires immediate termination for cause as described in
the proposed rule at paragraph (e).
As to the first comment, the Department does not believe the
commenter's proposed language is necessary. Paragraph (e) already
states that if a participant refuses to accept a reasonable number of
job offers or referrals to unsubsidized employment, the grantee may
terminate the participant. The only word that appears to be different
between the comment and the regulation is the word ``searches.'' It is
the Department's opinion that ``job searches'' are included as part of
the ``job referral'' process. Therefore, the Department did not make
this change in the regulation.
The commenter that disagreed with ``for cause terminations 30 days
after written notice'' may have confused this provision with another
paragraph in this section. Paragraphs (a) and (d) did not contain the
30-day termination requirement that is found in paragraphs (b), (c),
and (e) of this final rule. However, upon reconsideration, we believe
that paragraphs (a) and (d) should also require 30 days notice before a
termination for cause may be effective. Notice allows a participant
time to contest the grantee's determination and to offer factors in
mitigation. Notice is inherent in fundamental notions of fairness and
is arguably more necessary in cases of alleged misconduct than in cases
where a participant was mistakenly determined eligible. We already
require notice in the case of terminations under paragraph (e), which
is a type of termination for cause. We see no reason not to expand the
notice to all cause terminations.
We note that the requirement for 30 days notice before termination
does not require the grantee to permit a participant to remain assigned
to the host agency where the offense is alleged to have occurred. In
those cases where a statute or regulation requires the immediate
removal of a participant for certain specified offenses, the grantee
may remove the participant from the host agency and may assign the
participant to another host agency (including the local project office)
or to no host agency, depending on the circumstance, during the notice
period.
We have made an additional change in the notice language in
paragraphs (a), (d) and (e) to provide that the termination after
notice is not required if additional facts or evidence shows that the
basis for the termination is incorrect. The original intent of this
provision was that termination could not be effected until 30 days had
elapsed, not that termination was always required once 30 days had
elapsed. Indeed, the notice requirement would be rendered largely
meaningless if the grantee were required to terminate the participant
at the end of the notice period regardless of what information the
participant might have produced in the interval. We thus have added
language to paragraphs (a)-(e) to make it clear that a grantee is not
required to terminate a participant if the evidence shows that the
grounds for termination were incorrect. We remind grantees, however,
that if a participant has finally been determined to be ineligible
(after being given 30 days to provide evidence of eligibility), the
grantee must terminate the participant.
Another commenter questioned how the organization would know when a
participant receives a written notice of termination as suggested by
paragraphs (b), (c), and (e). This commenter requested that the
language in the proposed rule only require grantees to provide written
notice explaining the reasons for termination when the termination is
the result of an adverse action.
Again, we believe the commenter is misreading the intention of
these regulatory provisions. Each of these situations represents
circumstances where a termination is necessary. However, the Department
has made a change to the regulation to clarify the notice requirement.
The purpose of the notice requirement is that the participant would be
terminated in 30 days after either the day notice was provided to the
participant in person, or the day the grantee mailed the termination
notice. Given the propensity for confusion with the current language,
the Department has revised paragraphs (b), (c), and (e) to read ``and
may terminate the participant 30 days after it has provided the
participant with written notice.''
Another commenter criticized the termination process as
``indicative of micromanagement.'' This commenter further expressed
disagreement with the single national approach to termination because
it limited the discretion of grantees and sub-recipients.
In response, the Department notes that there are certain
requirements to which grantees must adhere to in order to receive
Federal funds. Uniform policies are necessary in some cases for a
program of national scope to ensure all participants are treated in a
fair and consistent manner. The issue of termination is one of those
necessary policies. Grantees may not continue to spend grant funds on
ineligible participants. The rule does allow for some flexibility, such
as determining what constitutes cause for termination, which we
recognize may vary among grantee organizations. Grantees also have
flexibility to determine whether they want to terminate participants
for failure to accept a reasonable number of job offers or referrals
and, if they do, what constitutes a reasonable number.
One final commenter raised the issue of termination in the context
of the performance measures and how terminations impact a grantee's
ability to meet the performance measures. This comment is outside the
scope of this rulemaking as it does not relate to the proposed rule.
What is the employment status of SCSEP participants? (Sec. 641.585)
This section discusses the employment status of program
participants given that they receive work experience training. The
Department received one comment on this section. This commenter
requested
[[Page 53803]]
a ruling on the responsibility of the grantees and sub-recipients to
conduct background checks on SCSEP applicants as part of the
application process if they are not employees of the grantee or sub-
recipient.
Although this comment is outside the scope of this rulemaking, the
Department will reiterate its policy here. Grantees may take the
responsibility of providing background checks before placing
participants in community service assignments, provided that the
background check is conducted because of the requirements of a specific
community service assignment, rather than based on a particular
participant, and is consistently applied to all applicants considered
for that position. We stress that background checks are relevant to the
assignment of participants to particular host agency positions only and
cannot be used as a basis for denying eligibility. In addition,
grantees should be careful to comply with EEOC and any state or local
rules regarding the use of background checks.
Subpart F--Pilot, Demonstration, and Evaluation Projects
What is the purpose of the pilot, demonstration, and evaluation
projects authorized under Sec. 502(e) of the OAA? (Sec. 641.600)
This section describes the purpose of the new provisions
implementing Sec. 502(e) of the 2006 OAA. The Department received one
comment that asked the Department to clarify whether On-the-Job
Experience (OJE) projects would continue under the new section and
whether the Department plans to introduce new pilot projects or expand
and improve existing projects.
The Department is pleased that grantees have found the OJE program
useful and will take that under advisement as we explore how best to
exercise this new flexible authority, as we noted in the preamble to
the NPRM. See 73 FR 47770, 47789, Aug. 14, 2008.
Should pilot, demonstration, and evaluation project entities coordinate
with SCSEP grantees and sub-recipients, including area agencies on
aging? (Sec. 641.640)
This section provides that the Department will collaborate with
appropriate aging organizations when developing projects under this
section and grantees of these projects must also consult with
appropriate organizations. We received several comments related to this
section. The comments mostly suggested that Sec. 641.640, in concert
with Sec. Sec. 641.315 and 641.335, were inadequate to address the
type of coordination that should occur between SCSEP and other aging
programs. One commenter stated that the regulation should be written to
``requir[e] coordination of SCSEP with other programs under the Older
Americans Act, such as state units and area agencies on aging, and with
other Federal programs.'' Another commenter ``suggest[ed] that the
regulations reflect additional coordination requirements with
disability networks, in order to better incorporate person-centered
planning, Americans with Disability Act compliance, and independent
living philosophy concepts into the provision of services.'' Yet
another commenter expressed a concern about where the funding for these
projects would come from given that the revised funding allocations
appear to decrease services to participants. That commenter cited
recent Department actions to reserve $5,000,000 for program support
activities under the Secretary's discretionary authority.
Section 641.640 has been written to follow the statutory language,
with the addition of a clarification that SCSEP grantees and sub-
grantees are among the entities that must be consulted with. To be more
prescriptive in this section would limit the Department's and the
grantees' ability to use the flexibility granted by the statute.
Finally, comments about the possible effect of funding for the pilot,
demonstration and evaluation projects on the funding of the ``regular''
program are outside the scope of this rulemaking.
Subpart G--Performance Accountability
On June 29, 2007, the Department published an IFR that implemented
changes in the SCSEP performance measurement system in light of the
OAA. This section discusses comments on the performance measurement
system.
The OAA requires the SCSEP to track six \1\ core indicators of
performance \2\ (also called ``core performance indicators,'' or just
``core indicators''): (1) Hours (in the aggregate) of community service
employment; (2) entry into unsubsidized employment; (3) retention in
unsubsidized employment for six months; (4) earnings; (5) the number of
eligible individuals served; and (6) most-in-need (the number of
barriers per participant as listed in subsection (a)(3)(B)(ii) or
(b)(2) of Sec. 518 of the OAA. Core indicators are subject to goal-
setting and corrective action. The statute also requires two additional
indicators of performance (also called ``additional performance
indicators,'' or just ``additional indicators''): Retention in
unsubsidized employment for one year; and satisfaction of participants,
employers, and host agencies with their experiences and the services
provided. Additional indicators are not subject to goal-setting and
corrective action. The OAA gives the Department the authority to add
other additional indicators that it determines to be appropriate to
evaluate services and performance, but we are not adding any other
additional indicators at this time.
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\1\ Section 513(b)(1) of the 2006 OAA lists, ``[t]he number of
eligible individuals served, including the number of participating
individuals described in subsection (a)(3)(B)(ii) or (b)(2) of
section 518,'' on performance, as a single core indicator. However,
as discussed in the IFR, 72 FR 35836, June 29, 2007, the Department
chose to divide it into two separate indicators--number of eligible
individuals served, and number of most-in-need participants.
\2\ We use the terms ``indicator'' and ``measure''
interchangeably throughout this rule.
---------------------------------------------------------------------------
Under authority of the IFR, grantees have been using the common
measures definitions for the three core indicators addressing
unsubsidized employment. We received a number of comments raising
concerns about whether the common measures are an appropriate way to
measure participation in SCSEP. Changes in the core indicator
definitions at this point will muddle the data we have collected for
three program years using the existing definitions. The Department
wants to have a consistent body of data over a multiyear period through
which to be able to evaluate both the overall performance of the SCSEP,
and the utility of the performance indicators. In addition, any changes
would not be fully implemented until PY 2011.
As a result, the Department has concluded that to change the
definitions of the core indicators at this time would create a
significant administrative burden for grantees, which would outweigh
any benefit of changing those definitions. With reauthorization of the
SCSEP also on the horizon for 2011, it would be difficult to conduct
evaluations of the program and collect data for doing so if the
definitions were changed at this late stage. Moreover, a change in the
measures at this late date would deprive the grantees of valuable
baseline data that they are using for program management and
improvement. The Department intends to maintain the existing
definitions for the three core indicators on unsubsidized employment,
under which grantees have been working for three years already.
Overview of Comments Received on Subpart G
The Department received eleven comments in response to the
[[Page 53804]]
performance accountability IFR. Some commenters urged changes to
particular performance measures and/or asked specific questions about
one or more of the measures. Such comments commonly expressed the view
that the SCSEP is unique among workforce programs primarily because of
its community service element, and therefore use of the common measures
is neither appropriate nor desirable.
A second theme common to several of the comments is that an
emphasis on performance accountability may lead to unintended
consequences. In this view, SCSEP grantees and sub-recipients may feel
pressure to serve individuals who are relatively easy to place in
unsubsidized employment to meet performance goals. Such a focus, it was
argued, would thwart a consistent tenet of the SCSEP, reflected in the
2006 OAA, that the program should prioritize individuals with multiple
barriers to employment. Further, several commenters expressed concern
that this pressure to attain good performance outcomes could result in
fewer minorities being served by the SCSEP.
Because the definition of the most-in-need indicator changed
significantly from the 2004 SCSEP final rule, the Department treated
the 2007 Program Year as a baseline year for that indicator and did not
set sanctionable goals for the most-in-need measure. Some commenters
thought that the 2007 Program Year should be treated as a baseline year
for all indicators; that is, they thought no goals should be set for
any of the core indicators for the Program Year 2007.
Other commenters expressed concern with one or more of the
indicators. One commenter requested that the Department decrease the
number of core indicators and increase the number of additional
indicators. A few commenters urged the Department to develop the
remainder of the regulations before finalizing the performance
accountability requirements. Finally, some commenters supported the
creation of an interagency group to provide input on the SCSEP
regulations.
We will discuss all of the comments below, beginning with the
comments that broadly address the performance measurement system
overall.
Broad Comments on the Performance Measurement System Overall
A few commenters urged the Department to develop the remainder of
the regulations before finalizing the performance accountability
requirements. Some commenters requested that we convene meetings on the
performance measurement regulations before finalizing them. Several
commenters supported the creation of an interagency group to provide
input on the SCSEP regulations.
We agree with the commenters who urged the Department to develop
the remainder of the regulations before finalizing the performance
accountability requirements. To that end, we published an NPRM on
August 14, 2008, that addressed all aspects of the SCSEP regulations
other than performance measures. We were able to carefully consider the
comments from both the IFR and the NPRM before proceeding with this
final rule.
We also received some comments requesting that we convene meetings
with grantees and other interested parties as we developed final
regulations on the performance measurement system. We considered this
suggestion but chose not to adopt it. All interested persons were
invited to participate in the regulatory process by submitting comments
on the IFR and the NPRM, and we considered those comments very
seriously as we developed this rule.
In the IFR, we stated that we had ``implemented an interagency
group to oversee the strategy for implement[ing]'' the performance
measurement system required by the 2006 OAA. 72 FR 35845, June 29,
2007. Some commenters interpreted this to mean that the Department had
convened a group that included the Administration on Aging, and those
commenters applauded such efforts. In fact, the group to which we were
referring was comprised of representatives from different agencies
within the Department. Nevertheless, we acknowledge that several
commenters urged greater coordination between the Department and the
Administration on Aging. The 2006 OAA already requires the SCSEP to
coordinate with area agencies on aging at the local level, and the
Department endeavors to mirror that coordination at the national level.
However, it is clear from these comments that some in the SCSEP network
think that we have not done enough coordinating at the Federal level.
We appreciate that even closer coordination may aid the SCSEP overall
and its participants in particular. To that end, we will pursue
strengthening our relationship with the Administration on Aging as we
move forward.
We now respond to the comments on the IFR that pertain to
particular regulatory sections within subpart G.
What performance measures/indicators apply to SCSEP grantees? (Sec.
641.700)
Several commenters criticized the performance measurement system
implemented in the IFR generally, and the common measures in
particular. Some of the commenters asserted that the SCSEP is unique
among workforce programs primarily because of its community service
element, and that use of the common measures is therefore neither
appropriate nor desirable for the SCSEP. Other commenters maintained
that an emphasis on performance accountability may lead to unintended,
adverse consequences. These commenters argued that, in an effort to
achieve the expected levels of performance for the core indicators,
SCSEP grantees and sub-recipients may feel pressure to serve
individuals who are relatively easy to place in unsubsidized
employment. This incentive to ``cream'' from applicants contravenes a
consistent and central theme of the SCSEP, reflected in the 2006 OAA,
that the program serves individuals with barriers to employment. Of
particular concern to some commenters was that a focus on performance
outcomes would result in a reduction of services to disadvantaged and
minority older adults.
In the IFR, as well as the NPRM, the Department specifically
requested that the public submit comments addressing concerns that the
performance measurement system implemented by the IFR compromises the
ability of grantees to serve minority individuals. We particularly
appreciate the comments we received on that topic.
The Department does not, however, view the performance measurement
system required by the 2006 OAA and implemented in the IFR as
inappropriate or undesirable for the SCSEP, or as adverse to the
SCSEP's traditional focus on serving persons with barriers to
employment or minority individuals. We hold a different view from the
commenters who argued that this performance measurement system will
lead to a reduction in services to persons with barriers to employment,
including minority individuals. We will address these points in turn.
The Department fully acknowledges that community service is
integral to the SCSEP. Congress gave voice to the importance of this
aspect of the SCSEP in its ``[s]ense of the Congress'' provision in the
2006 OAA: ``placing older individuals in community service positions
strengthens the ability of the individuals to become self-sufficient,
provides much-needed support to organizations that benefit from
[[Page 53805]]
increased civic engagement, and strengthens the communities that are
served by such organizations.'' OAA Sec. 516(2). We also acknowledge
that the 2006 OAA's requirement that grantees spend a minimum of 65-75
percent of their funds on participant wages and benefits is a unique
program feature, and one that clearly assists persons with otherwise
low incomes. Providing an opportunity for low-income older adults in
need of job training to work at community service organizations that
need operational support is a ``win-win'' situation.
Some commenters asserted that the SCSEP should not align with other
workforce programs in its use of common measures because the SCSEP
retains this unique community service element, and that the common
measures are limited in providing full evidence of the SCSEP's
performance. We also received comments noting that initially there were
plans for common performance measures to be applied across a wide array
of Federal agencies and programs. These commenters suggest that the
scope of the common measures has been reduced to ``[F]ederal job
training and employment programs that share similar goals'' (emphasis
omitted), and that the SCSEP does not share sufficiently similar goals
with other Federal job training and employment programs to make the
common measures appropriate.
Other commenters claimed that Congress ``overwhelmingly rejected''
a focus by the SCSEP on unsubsidized employment outcomes. These
commenters argued that the Department is contravening Congressional
intent by requiring performance measures that focus on unsubsidized
employment outcomes.
Congress made both community service and its potential to lead to
unsubsidized employment important goals. Congress required the use of
specified core indicators in the 2006 OAA, including the entry into
employment, retention in employment for six months, and earnings
indicators. Along with providing valuable community service, then, the
SCSEP is a training program for low-income persons who have not been
able to obtain employment on their own. Congress was well aware of the
unique nature of the SCSEP, and could have chosen separate outcome
measures unique to the SCSEP as it did in the 2000 Amendments to the
OAA. Instead, it specifically mandated that the program report on
certain core indicators, three of which measure employment outcomes;
therefore, the Department must implement those indicators as stated in
the 2006 OAA to achieve the dual purpose of ensuring community service
opportunities, but also making unsubsidized employment possible where
appropriate for exiting SCSEP participants. Furthermore, the language
Congress used in the 2006 OAA to mandate the implementation of the
three core indicators on employment outcomes mirrored the common
measures. It therefore seemed sensible to define these three core
indicators using common measures definitions.
The 2006 OAA requires the Department to implement the three core
indicators on employment outcomes. This requires us to gather
consistent data on program performance to inform reauthorization.
Without a body of consistent performance data over a reasonable number
of years, we will not be able to determine whether those indicators as
defined are or are not effective performance measures. In addition,
grantees would be deprived of meaningful baseline data for making
improvements in services, which is the primary purpose behind
measurement. As discussed above, therefore, the administrative burden
of changing these definitions would outweigh the policy value of
changing them before a good body of consistent data has been gathered
to inform the program reauthorization anticipated in 2011. This is
particularly so since the Department anticipates proposing another
SCSEP additional indicator for volunteer work performed after exit from
the program, which would further reinforce the Department's support for
community service and volunteer work.
In addition, several commenters asserted that the common measures
are limited in providing full evidence of the SCSEP's performance, and
we agree. The common measures do not accurately portray the entirety of
the SCSEP program or its successes. These three core measures, which
currently use common measures definitions (entry, six-month retention,
and earnings), relate most closely to the SCSEP's goal of unsubsidized
employment. However, Congress also required three other core measures
(number of persons served, most-in-need, and community service), and
they relate most closely to the community service goal of the SCSEP.
Accordingly, we acknowledge that the common measures do not ``tell the
whole SCSEP story.'' However, we remain convinced that in light of the
need to gather data for reauthorization and our consideration of
another additional indicator, for now these definitions are most
sensibly kept as a method to capture important data on the success of
participants in meeting the goals deemed appropriate for their personal
circumstances, as laid out in their IEPs.
We turn now to the commenters' argument that implementing the
performance measurement system described in the IFR will lead to a
reduction in services to persons with barriers to employment, including
minority individuals. Some of these commenters asserted that the
introduction of common measures in other workforce programs has led to
a decrease in the number of low-income participants and participants
with barriers to employment in those programs. These commenters claim
that such programs have selected participants based on the
participants' potential to achieve positive indicator outcomes. They
contend that, faced with the same common measures, SCSEP program
operators will ``cream'' by selecting those participants who are
easiest to serve. In this view, persons with barriers to employment,
including minority individuals, will be disfavored by SCSEP program
operators. Some commenters asserted that ``creaming'' is contrary to
Congressional intent, because in the 2006 OAA Congress intended the
SCSEP to serve low-income persons and persons with other barriers to
employment. Several commenters cited a study of WIA indicating that,
following the introduction of common measures in WIA, there was a
decline in the number of WIA participants with low incomes or who had
barriers to employment, and suggested that implementing the common
measures in the SCSEP would lead to similar results.
For reasons discussed already, the Department will continue to
implement the core indicators of performance. We take the commenters'
argument to be effectively limited to the core indicators, as
additional indicators of performance are not subject to sanctionable
goal-setting. The Department is required to implement the indicators
mandated in the 2006 OAA; we disagree that such indicators will lead to
``creaming,'' or a reduction in SCSEP services to low-income
individuals or individuals with barriers to employment. We agree with
the commenters' assertion that Congress clearly intended for the SCSEP
to serve low-income individuals and to prioritize persons most-in-need.
Moreover, Congress designed the SCSEP to have two goals--community
service and an appropriate employment objective for participants whose
experience in the SCSEP may lead to unsubsidized employment. But it is
not possible for SCSEP program operators to reduce the numbers of low-
income
[[Page 53806]]
participants in the SCSEP because, unlike WIA, only low-income persons
are eligible for the SCSEP. Regardless of the population
characteristics of other workforce programs, the SCSEP is specifically
designed to serve lower income older persons with barriers to
employment. The 2006 OAA requires program operators to prioritize
persons who have barriers to employment such as those who have a
disability, low employment prospects, or limited English proficiency.
Moreover, SCSEP has a counter-balance to any creaming that the
employment indicators might engender because another of the core
indicators measures, the average number of most-in-need characteristics
per participant. The Department's view is that the SCSEP performance
measurement system will not disfavor people with barriers to employment
when one of the measures is designed to give effect to the statute's
requirement that program operators prioritize those most in need of
SCSEP services. In fact, studies for PY 2006 and PY 2007 show that
minorities are served by SCSEP in greater proportions than their
incidence in the population and have employment outcomes no different
from those of non-minority participants.
Finally, one commenter requested that the Department switch several
of the core indicators to become additional indicators. We are bound by
the 2006 OAA to implement the core and additional indicators of
performance required in the statute; we do not have the discretion to
reclassify core indicators as additional indicators.
How are the performance indicators defined? (Sec. 641.710)
In this section the Department defines each of the indicators. A
few commenters suggested that the Department use data available from
unemployment insurance wage records to capture data for such indicators
as entry, retention, and earnings. Some commenters stated that it can
be difficult to obtain this data from employers and exited
participants.
The Department agrees that unemployment insurance wage records are
a potentially advantageous method of collecting performance data, and
we are actively pursuing the use of such records by the SCSEP. For the
reasons already stated, however, we have decided to retain the
performance indicator definitions in their current form.
Entry Into Unsubsidized Employment
One commenter disagreed with the existing definition of entry into
unsubsidized employment as each participant who is employed during the
first quarter after the exit quarter. The traditional SCSEP entry
indicator treated as entered employment any participant who worked 30
days within the 90 days following their program exit. This commenter
argued that the current definition will make it harder to count an
exited participant as having entered employment because of the later
qualifying period (the first 90 days after exit versus the quarter
following the exit quarter).
It is clear that using this definition over the past six years has
not resulted in fewer exited participants being counted as having
entered unsubsidized employment. While the qualifying period under the
current definition occurs later in time than the qualifying period
under the traditional SCSEP entry measure, the former SCSEP entry
indicator required 30 days of employment, but this definition does not
specify an employment period. A participant could be employed for
significantly fewer than 30 days during the relevant quarter, and that
person would be counted as having entered unsubsidized employment under
the existing definition of entry. In this way, the existing definition
actually makes it more likely that an exited participant will be
counted as a positive entry outcome. Indeed, during each of the three
years when outcomes for both the SCSEP placement measure and the
existing entry indicator were reported, the average entry outcome under
the existing definition was higher than the average SCSEP placement
outcome.
Retention in Unsubsidized Employment for Six Months
We received one comment proposing that we revert to the former,
SCSEP-specific retention indicator, which measured retention for six
months at 180 days after program exit. The current definition measures
retention for six months based on employment in the second and third
quarters after the exit quarter. This commenter asserted that the
longer qualifying period for this indicator increases the difficulty of
obtaining the information.
We do not question the commenter's assertion that it can sometimes
be difficult to obtain this retention information. Nevertheless,
grantees and sub-recipients have been submitting data using the current
definition since the first quarter of Program Year 2005, although as an
additional rather than a core indicator in the early years. We are
confident that grantees and sub-recipients will be able to continue
obtaining those data in the future. Also, as noted previously, we are
actively pursuing the use of unemployment insurance wage records; these
records would provide significant retention data.
Earnings
We received one comment on the definition of the earnings
indicator. This commenter urged the use of a simpler indicator that
captured wages at the time of program exit rather than the current
indicator definition which averages the earnings received during the
second and third quarters after the exit quarter. However, this always
has been a core indicator and the current definition is that used by
all of ETA. The commenter also asked a few questions about the
description of the earnings indicator in TEGL 17-05. This commenter
asked whether the term ``exited participants'' refers to all exited
participants, or only those who achieved unsubsidized employment. If
the term ``exited participants'' refers to all exited participants, the
commenter wondered whether that would dilute the average earnings
figure.
The term, ``exited participants,'' refers to the pool of
individuals who satisfy the six months retention indicator, not the
entire pool of persons who left the SCSEP for a variety of reasons
during the relevant quarter. As implemented, the three core indicators
may be viewed as building upon each other. To arrive at the entry
outcome, one considers how many persons, of the total number who exited
the SCSEP during the relevant exit quarter, were employed during the
first quarter after the exit quarter. To arrive at the retention in six
months outcome, one considers how many persons, of those who satisfied
the entry indicator, were employed during the second and third quarters
after the exit quarter. To arrive at the earnings outcome, one
considers what was earned by those persons who were included the six
months retention indicator.
The previous earnings measures counted the earnings of exiters who
achieved entered employment, whether or not they were employed in the
reporting period, and that did have the effect of distorting the
outcomes of the measure. By including those who were not employed in
the earnings measure, it was difficult to determine how much those who
were employed were actually earning. Under this final rule, however,
only the wages of exiters who entered employment and who were employed
during both quarters of the reporting period are included in the
earnings measure.
[[Page 53807]]
Most-in-Need
We received several comments about the definition of most-in-need.
The ``most-in-need'' population is based on the fifth core indicator in
2006 OAA Sec. 513(b): ``the number of eligible individuals served,
including the number of participating individuals described in
subsection (a)(3)(B)(ii) or (b)(2) of section 518.'' One commenter
advocated reducing and simplifying the list of most-in-need
characteristics. The regulatory definition cannot be reduced or
simplified any more than it already is, because it is taken directly
from the statute.
Several commenters were distressed that the revised definition of
most-in-need ``no longer includes any reference to racial minority
status.'' Another commenter took issue with the characteristic, ``has
failed to find employment after utilizing services provided under title
I of [WIA].'' This commenter asserted that most SCSEP participants are
not even considered for services under title I of WIA, and proposed
that instead the characteristic should be, ``[w]ere not considered for
services under [t]itle I of WIA and/or failed to find employment after
utilizing services under [t]itle I of WIA.''
The 2006 OAA omitted the characteristic of ``greatest social need''
from the list of characteristics that comprise the ``most-in-need''
indicator. OAA Sec. Sec. 513(b)(1)(E), 518(a)(3)(B)(ii), and
518(b)(2). Whatever the relative merits of considering other groups to
be most in need, Congress defined most in need with great specificity,
and we have no authority to change the statutory definition.
The 2006 OAA does require the Department to annually report to
Congress on the levels of participation and performance outcomes of
minority individuals by grantees, by service area and in the aggregate.
OAA Sec. 515. The analyses conducted for both PY 2006 and PY 2007
indicate that minorities are served in greater numbers than their
incidence in the population and that minorities achieve employment
outcomes equal to those of non-minorities. Therefore, we have not
changed the definition of the most-in-need indicator.
Retention for One Year
We received one comment on the definition of retention for one
year. In the IFR, we defined this indicator to align with the WIA one-
year retention indicator, which measures retention at the end of the
fourth quarter after the exit quarter. This commenter recommended that
we instead capture retention data at 360 days following program exit.
The Department has considered this comment but has decided to
retain the definition of retention for one-year as published in the IFR
for the reasons already stated.
Satisfaction of the Participants, Employers, and Host Agencies With
Their Experiences and the Services Provided
We received one comment on this indicator. The commenter asserted
that sub-recipients should not have to be involved in gathering data
for this indicator, including mailing cover letters to encourage survey
participation.
The Department already provides very substantial assistance in
obtaining the data for this indicator. We request that program
operators--whether a grantee or a sub-recipient--deliver the employer
survey, which we supply, and which ideally is done in person. For the
participant and host agency surveys, we create the survey instrument as
well as a cover letter explaining the survey and requesting its
completion; draw the samples of those who will be asked to complete the
survey; and mail it to those persons. We ask program operators to mail
pre-survey letters to those participants selected to complete the
survey to request cooperation with the survey, and we provide the pre-
survey letter text and the mailing list. We have considered the
commenter's request and have decided not to make any changes to the
customer satisfaction survey process at this time. Given the
substantial amount of the burden that we already shoulder, we ask very
little of grantees, sub-recipients and host agencies. The work we ask
them to perform is work that we cannot do and that we need grantees,
sub-recipients, and host agencies to manage.
How will the Department and grantees initially determine and then
adjust expected levels of performance for the core performance
measures? (Sec. 641.720)
We received several comments about the expected levels of
performance that were set for Program Year 2007. In general, such
concerns must be raised during the process of setting the expected
levels of performance and are not appropriate for the regulatory
comment process as they relate to the specifics of each grantee's
situation. We will, however, respond to those aspects of these comments
that have general applicability.
One commenter asserted that the statutorily-mandated minimum
expected level of performance for the entry indicator would be
difficult for sub-grantees to achieve using the current definition of
entry. The Department does not have the discretion to set the expected
levels of performance below those required by statute. Further, we hold
grantees accountable for achieving the expected levels of performance,
but we do not set goals at the sub-recipient level. Having said that,
we do conduct training sessions that are open to all program operators
and offer technical assistance to both grantees and sub-recipients that
are experiencing difficulty in any aspect of program administration.
Finally, we note that the nationally-averaged outcome for the entry
indicator at the end of Program Year 2007 was 52.4 percent, greatly in
excess of the statutorily-mandated goal. Only three individual grantees
with adequate data to permit accurate measurement failed to meet at
least 80% of their negotiated goal, and 62 grantees exceeded 100% of
their negotiated goal.
Other commenters suggested that the expected levels of performance
for the entry and earnings indicators for Program Year 2007 were too
high. These commenters noted that the median expected level of
performance for the entry indicator was higher than the statutory
minimum. They also asserted that the earnings and entry indicator
levels were set so high that program operators would be encouraged to
``cream,'' which would lead to fewer minority participants.
Although the Sec. 513(a)(2)(E)(ii) of the statute sets a minimum
percentage for the entry indicator, it is in fact merely a minimum, and
the Department has the authority to set expected levels of performance
above that minimum. The Department bases a grantee's expected levels of
performance in part on the prior performance of the grantee. The
statute requires that the expected levels of performance for the core
indicators be designed to promote continuous improvement in
performance. OAA Sec. 513(a)(2)(B). And, as we explained in the IFR,
the Department has consistently established a performance level higher
than the minimum required by statute for many grantees, and expects to
continue to do so.
In response to the assertion that the expected levels of
performance are set so high that the Department is encouraging
``creaming,'' we disagree. As noted, a grantee's expected levels of
performance for a new program year are based in part on the prior
performance of the grantee, so sudden large increases in performance
goals generally do not occur. The expected levels of performance are
designed to promote
[[Page 53808]]
continuous improvement; however, the Department also takes into account
such factors as unemployment rates, relative poverty levels, and
whether the grantee is serving a disproportionate share of most-in-need
individuals. Negotiating expected levels of performance is a data-
driven process; when a grantee presents the Department with relevant
data, we take that into consideration when setting the performance
goals. Also, expected levels of performance may be adjusted during the
Program Year if circumstances warrant. See Sec. 641.720(b).
The Department is making three technical corrections to this
section of the regulations none of which are intended to change the
meaning of the section. First, we are removing the word ``baseline''
from the first sentence of paragraph (a)(1). The word was mistakenly
included in this paragraph in the IFR; the expected level of
performance initially proposed by the Department is more commonly
called a goal or target, not a baseline. Second, we are adding the word
``a'' at the beginning of the third sentence in paragraph (a)(3); it
was inadvertently omitted from the IFR. Finally, we updated the
citation format in paragraph (a)(2).
How will the Department assist grantees in the transition to the new
core performance indicators? (Sec. 641.730)
In paragraph (a) of this section, the Department explained that we
would be providing technical assistance to help certain grantees meet
the expected levels of performance for the core indicators in Program
Year 2007. Technical assistance was provided to those grantees whose
performance outcomes during Program Year 2006 did not achieve the
levels expected during Program Year 2007. In paragraph (b) of this
section we created an exception from sanctionable goal-setting for
Program Year 2007 for the most-in-need measure because the 2006 OAA so
changed the list of most-in-need characteristics that we determined
that a year was needed to gather baseline data before meaningful goals
could be established. Some commenters thought that Program Year 2007
should have been treated as a baseline year for all of the indicators;
they suggested that no sanctionable goals should have been set for
Program Year 2007.
Five of the indicators now classified as ``core'' are indicators
that the SCSEP was already using before the IFR (i.e., hours of
community service, number of individuals served, entry into employment,
six-month retention in employment, and earnings), although some of
these had been classified as additional measures previously. The most-
in-need indicator was the only indicator that changed so significantly
that we determined that we did not have sufficient data to set
meaningful goals. Therefore, goals were set for the other core
indicators for Program Year 2007.
Subpart H--Administrative Requirements
We received several comments on this section about non-Federal
share, participant wages and fringe benefits, and performance reporting
requirements.
How must SCSEP program income be used? (Sec. 641.806)
We have inserted clarifying language in paragraph (b) of this
section to provide for a distinction in the expenditure of program
income for grantees with continuing relationships with the Department
of Labor and allow program income to be expended for 1 additional
program year.
What non-Federal share (matching) requirements apply to the use of
SCSEP funds? (Sec. 641.809)
This section describes the requirements grantees have to contribute
a 10 percent match to the program. We received one comment on this
section of the proposed rule that disagreed with the provision that
prohibits grantees from requiring sub-recipients to contribute
financially to the program to meet their match requirement. This
commenter stated that he believed that a financial investment from a
sub-recipient encourages ownership and responsibility for the program.
This commenter suggested that a State's inability to require a sub-
recipient to provide a 10 percent match shifts all the responsibility
to the State grantee and reduces the commitment of the sub-recipient to
meet performance goals.
Although the Department appreciates this concern, this requirement
was added in the 2004 regulations to prevent abuses in the program
where some grantees permitted only those organizations with cash
contributions to be sub-recipients. The fact remains that the grantees
are the organizations responsible for program operations and services
as evidenced by the grant agreement with the Department. Further, the
Department does not believe this limitation is onerous to meet. As
provided in Sec. 641.809(d), the match may be cash, in-kind, or a
combination of the two. Program data indicates that with this
flexibility, most grantees tend to exceed the match requirement for the
program. Also, paragraph (e) of this section allows sub-recipients to
voluntarily provide a contribution to the program.
What minimum expenditure levels are required for participant wages and
benefits? (Sec. 641.873)
This section outlines the financial requirements for wages and
fringe benefits and expressly adds the new statutory provisions that
permit grantees to reduce the 75 percent requirement to 65 percent for
the wages and fringe benefits cost category. We received one comment on
this section. This commenter expressed concern with the change that in
the past required 75 percent of grant funds to be spent on participant
wages and fringe benefits (PWFB) based on final expenditures to now
being 75 percent of the grant funds. This commenter noted that there
was no change from the 2000 OAA to the 2006 OAA and the Department did
not provide a rationale in the proposed rule to justify this change.
The commenter noted that ``[t]rying to reach the goal based on the
award amount changes the emphasis from using resources to effectively
benefit the program to just incurring PWFB cost to meet the goal.''
The commenter is correct that the OAA did not change the language
at Sec. 502(c)(6)(B)(i) from the 2000 Amendments to the 2006
Amendments. The Department made the change in the proposed rule to more
closely follow the statutory language, which requires ``75 percent of
the grant funds [be used] to pay for wages, benefits, and other
costs.'' However, the Department has reconsidered its position and has
decided not to depart from its established practice of measuring
compliance with this requirement for the grantee as a whole, at the
conclusion of the grant, based upon the total amount expended.
Accordingly, we are withdrawing the proposed revision to the
regulation, and are retaining the existing text of Sec. 641.873(b).
How will compliance with cost limitations and minimum expenditure
levels be determined? (Sec. 641.876)
For clarity, we changed the first word in the title for this
section. It originally asked ``When will compliance with cost
limitations and minimum expenditure levels be determined?'' Because the
content of the section does not actually discuss a time period but
instead the method of determining compliance, we replaced ``When'' with
``How.''
What are the financial and performance reporting requirements for
recipients? (Sec. 641.879)
This section describes the financial and reporting requirements
that grantees
[[Page 53809]]
must submit to the Department. We received one comment on this section
that argued that the financial and performance reporting requirements
conflict with Sec. 514(f) of the 2006 OAA. This commenter cited this
section of the statute, which states the Secretary of Labor may not
promulgate rules or regulations that would significantly compromise the
ability of the grantees to serve their target population of minority
older individuals. The commenter suggested the Department add the
following language in a new Sec. 641.879(i): ``Collection and
validation of data should in no way compromise the ability of grantees
to serve the targeted population of most-in-need individuals, and
significant attention should be paid to the unintended consequences
that documentation may cause for minority older individuals,
particularly those with specific language and culture limitations.''
The Department agrees that the collection and validation of data
should not compromise the ability of grantees to serve the target
population. Although it may take more time to obtain the required
information due to language barriers, the statute requires that we
collect a variety of information on program performance, including
information on the populations and subpopulations served. This is
information that grantees must collect and have on file for program
management and auditing purposes anyway. Although collecting
information may be a burden, it is a required part of program
management and is necessary to show that the program meets its
statutory goals effectively.
Furthermore, the Department monitors services to minorities
closely, as required by the 2006 OAA. According to PY 2006 and PY 2007
data, minorities are served by SCSEP in substantially greater numbers
than their incidence in the population and show no differences in
employment outcomes from non-minority participants. Therefore, there is
no evidence that minorities are underserved in the program. Given that
this commenter did not provide more specific information on how she
believed minorities would be affected, we are not persuaded that any
such injury would occur from these regulations to diminish services to
this population.
We are, however, making technical changes in paragraphs (b), (d)
and (e) to clarify that SPARQ is the vehicle by which all grantees must
report information on participants, host agencies, and employers,
including demographic and performance information. All grantees are
required to report the required information in a format specified by
the Department. We have also clarified that grantees may be required to
report additional demographic and performance information through means
other than SPARQ if required by the Department.
Subpart I--Grievance Procedures and Appeals Process
What grievance procedures must grantees make available to applicants,
employees, and participants? (Sec. 641.910)
This section describes the grievance procedures that must be in
place for grantees and that those grantees must have in place for
program participants. We received one comment on this section. That
commenter stated that he found the Department's requirement to submit a
copy of the grantee's appeal process with the grant application
micromanaging.
As a recipient of Federal funds, however, there are certain
requirements that grantees must adhere to in order to receive those
funds. See Sec. Sec. 641.420 and 430. Prior program experience has
indicated that the grantees do not always have the most up-to-date
policies, and sometimes, do not have policies on file at all. This
requirement ensures that grantees are meeting their obligation without
the Department having to go to each program office to check for these
documents.
IV. Administrative Information
A. Regulatory Flexibility Analysis, Executive Order 13272, Small
Business Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605(b) of the RFA allows
an agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Section 601 of the RFA defines
small entities to include small businesses, small organizations,
including not-for-profit organizations, and small governmental
jurisdictions.
There are approximately 970 SCSEP grantees and sub-recipients. Of
these, more than 50 are States, State agencies, or territories and are
not small entities as defined by the RFA. The vast majority of the rest
are non-profit organizations, many of which may be categorized as small
entities for RFA purposes. The Department does not have a precise
number of small entities that may be impacted by this rulemaking, but
it requested comments on the possible impact of the rule in the NPRM.
The Department did not receive any comments on this section.
Although there may be a substantial number of small entities
impacted by this rulemaking, the Department has determined that the
economic impact of this final rule is not significant because these
regulations will not result in any additional costs to grantees and
sub-recipients. The SCSEP is designed so that SCSEP funds cover the
vast majority of the costs of implementing this program. Subpart H of
this final rule provides detailed information to grantees on what costs
are proper program expenditures, how to properly categorize those
costs, etc. The SCSEP statute does require a 10 percent non-Federal
match (see Sec. 641.809); however, the 10 percent match requirement
has been in effect in previous SCSEP regulations and, therefore, does
not constitute a new economic burden on grantees. Furthermore, the
Department's allowance of in-kind contributions in lieu of monetary
payments significantly moderates the economic impact of the match
requirement. Accordingly, the Department certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities.
The Department has also determined that this rule is not a ``major
rule'' for purposes of the Small Business Regulatory Enforcement
Fairness Act (SBREFA), Public Law 104-121 (1996) (codified in scattered
sections at 5 U.S.C.). SBREFA requires agencies to take certain actions
when a ``major rule'' is promulgated. 5 U.S.C. 801. SBREFA defines a
``major rule'' as one that will have an annual effect on the economy of
$100,000,000 or more; that will result in a major increase in costs or
prices for, among other things, State or local government agencies; or
that will significantly and adversely affect the business climate,
including competition, employment, investment, and innovation. 5 U.S.C.
804(2).
This final rule will not significantly or adversely affect the
business climate. First, the rule will not create a significant impact
on the business climate at all because, as discussed above, SCSEP
grantees are governmental jurisdictions and not-for-profit enterprises.
Moreover, any secondary impact of the program on the business community
would not be adverse. To the contrary, the SCSEP functions to assist
the business community by training older Americans to participate in
the workforce.
[[Page 53810]]
This final rule will also not result in a major increase in costs
or prices for States or local government agencies. The SCSEP has no
impact on prices, and as discussed above, the only costs that could
potentially be borne by governmental jurisdictions are limited to the
10 percent matching share. Finally, this final rule will not have an
annual effect on the economy of $100,000,000 or more.
Therefore, because none of the definitions of ``major rule'' apply
in this instance, we determine that this final rule is not a ``major
rule'' for SBREFA purposes.
B. Executive Order 12866
Executive Order 12866 requires that for each ``significant
regulatory action'' taken by the Department, the Department conduct an
assessment of the regulatory action and provide OMB with the regulation
and the requisite assessment prior to publishing the regulation. A
significant regulatory action is defined to include an action that will
have an annual effect on the economy of $100 million or more, as well
as an action that raises a novel legal or policy issue.
As discussed in the SBREFA analysis above, this final rule will not
have an annual effect on the economy of $100,000,000 or more. However,
the rule does raise novel policy issues concerning implementing the
2006 OAA in the SCSEP. The key policy changes being implemented include
the introduction of a 48-month limit on participation, institution of a
regular competition for national grants, and an increase in the
proportion of grant funds that can be used for participant training and
supportive services. Therefore, the Department has submitted this final
rule to the OMB.
C. Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise the collection of information, including publishing
a summary of the collection of information and a brief description of
the need for and proposed use of the information. 44 U.S.C. 3507.
Because the 2006 OAA necessitated changes in many of the SCSEP
forms used by grantees before the effective date of the Act, in July
2007 the Department submitted to OMB for review and approval in
accordance with Sec. 3507(d) of the PRA a modification to the SCSEP
information collection requirements. The four-year strategy newly
required by the 2006 OAA (see Sec. 641.302) was accounted for in that
PRA submission. The SCSEP PRA submission was assigned OMB control
number 1205-0040 and was approved by OMB in October 2007. The approval
expires October 31, 2010. This final rule neither introduces new nor
revises any existing information collection requirements.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4, 2
U.S.C. 1501 et seq.) requires an agency to ``prepare a written
statement'' providing specific information before ``promulgating any
final rule for which a general notice of proposed rulemaking was
published.'' The Department has done this and, as required by 2 U.S.C.
1523(b), it includes a summary of the statement. For purposes of the
UMRA, this final rule does not include any Federal mandate that may
result in increased expenditure by State, local, and tribal governments
in the aggregate of more than $100 million, or increased expenditures
by the private sector of more than $100 million. We did, however,
receive some comments on the costs of the rule, to which we respond
here.
We received several comments on this section from State agencies
related to the responsibilities in the State Plan requirements at
subpart C of this rule, State competition requirements, and
administrative guidance related to required services to participants.
The programmatic aspects of these comments are discussed in the related
sections of the preamble. This section is limited to a discussion that
addresses the impact of this rule as an unfunded mandate.
One commenter generally noted that its jurisdiction was neither
financially nor functionally prepared to take on this added workload.
Several States specifically stated that the Department was imposing
additional requirements on State grantees without providing additional
funding. A few commenters stated that they did not have funds to hire
an economist to provide the data required for the State four-year
strategy as provided in the State WIA program; and one commenter said
that it did not have the funds to obtain the data to meet the
requirement that State grantees identify the types of community
services that are needed and their location statewide. Some commenters
requested that the Department provide additional resources to help
States develop a comprehensive four-year State Plan. Another commenter
protested that the Department did not provide funding for States to
conduct a competition if, under Sec. 641.400, the State fails to meet
its expected levels of performance for the core indicators for three
consecutive years. That same commenter also stated that the requirement
in Sec. 641.535(b) (additional guidance) has the potential to increase
program costs without providing funding to cover such requirements.
The Department disagrees that any of these requirements impose an
unfunded mandate. The requirements in this final rule are funded by
SCSEP grant funds and fall under the category of either administrative
costs or programmatic costs. Section 502(c)(3) allows grantees to
request an increase in administrative costs from 13.5 percent to 15
percent, if the grantee demonstrates that such increase is necessary to
carry out the program. There are several States that take advantage of
this provision by submitting applications meeting the criteria listed
in Sec. 641.870. We have no evidence that the additional
administrative funds they receive are insufficient to oversee sub-
recipient operations and perform the requirements of subpart B for
State Planning. Further, to the extent that the Department has always
expected grantees to take the State planning process seriously and
formulate a projection for how services would be provided, the
requirements in this final rule are not new. They are merely more
descriptive and now in regulations where before the requirements were
listed in a Training and Employment Guidance Letter (TEGL No. 16-07):
http://www.doleta.gov/Seniors/pdf/TEGL16-07.pdf.
Finally, the catch-all provision in Sec. 641.535 that informs
grantees that they may be expected to provide services to participants
according to administrative guidelines does not impose more
responsibilities that require additional grant funds. The
administrative guidance discussed in that section relates to further
explanation or clarification for how the services listed in that
section or in the 2006 OAA can be carried out. For example, past
guidance has provided the Federal poverty levels which are adjusted
each year. This guidance is important because it provides the framework
for determining participant eligibility in the program. Other past
guidance has allowed grantees the option of providing On-the-Job
Experience or OJE training and established the parameters for using
that training option.
Department-issued guidance is designed to inform the grantees about
ways to serve participants within program parameters and do not rise to
[[Page 53811]]
the level of creating an unfunded mandate for the program. To avoid
ambiguity, we changed the regulatory text in Sec. 641.535(b) to
reflect that further guidance may be issued to clarify existing
requirements. The Department may also from time-to-time request that
grantees provide certain information to program participants, such as
information about Earned Income Tax Credit program services. We have
found that as a general matter, grantees are eager to provide
information to the participants when it is in the participants' best
interest, and do so willingly. Furthermore, although carrying out the
obligations of the statute and regulations may require careful
management, the duties imposed by the regulations flow from the
specific requirements of the statute as well as the Congressional
purposes expressed in the statute. Although the regulations may provide
more specifics on how those duties and purposes are to be carried out,
the regulations do not do anything more than flesh out the requirements
on how to properly implement and manage the SCSEP. Therefore, for the
reasons described above, the Department believes that the requirements
of this final rule do not impose any unfunded mandates.
E. Executive Order 13132
The Department has reviewed this final rule in accordance with
Executive Order 13132 on federalism and has determined that the Final
Rule does not have ``policies that have federalism implications.'' As
explained at Sec. 1(a) of the Order, `` `Policies that have federalism
implications' refers to regulations, legislative comments or proposed
legislation, and other policy statements or actions that have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' This
rule does not ``have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government'' because the requirements in this final rule flow directly
from the 2006 OAA. Whatever federalism implications these regulations
have on the States is merely indirect. Moreover, these grants are, by
definition, voluntary. States are not required to take the grant funds
if they do not approve of the conditions attached to the funds.
Therefore, the rule does not have a ``substantial direct effect'' on
the States, nor will it alter the relationship, power, or
responsibilities between the Federal and State governments. The
relationship, power, or responsibilities were already established in
the authorizing legislation.
Finally, the Department received no comments on this provision.
Accordingly, we conclude that this rule does not have federalism
implications for the purposes of Executive Order 13132.
F. Executive Order 13045
Executive Order 13045 concerns the protection of children from
environmental health risks and safety risks. This final rule addresses
the SCSEP, a program for older Americans, and has no impact on safety
or health risks to children.
G. Executive Order 13175
Executive Order 13175 addresses the unique relationship between the
Federal Government and Indian tribal governments. The order requires
Federal agencies to take certain actions when regulations have ``tribal
implications.'' Required actions include consulting with tribal
governments prior to promulgating a regulation with tribal implications
and preparing a tribal impact statement. The Order defines regulations
as having ``tribal implications'' when they have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The Department has reviewed this final rule and concludes that it
does not have tribal implications. Although tribes are sub-recipients
of national SCSEP grant funds, this final rule will not have a
substantial direct effect on those tribes, because, as outlined in the
Regulatory Flexibility section of the preamble, there are no new costs
associated with implementing this final rule. This regulation does not
affect the relationship between the Federal Government and the tribes,
nor does it affect the distribution of power and responsibilities
between the Federal Government and tribal governments. These grants
are, by definition, voluntary and tribes are not required to take the
grant funds if they do not approve of the conditions attached to the
funds.
Finally, the Department received no comments on this issue.
Accordingly, we conclude that this rule does not have tribal
implications for the purposes of Executive Order 13175.
H. Environmental Impact Assessment
The Department has reviewed this final rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 CFR part 1500), and the Department's NEPA
procedures (29 CFR part 11). The rule will not have a significant
impact on the quality of the human environment, and, thus, the
Department has not prepared an environmental assessment or an
environmental impact statement.
I. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681), requires the Department to assess the impact of this rule on
family well-being. A rule that is determined to have a negative effect
on families must be supported with an adequate rationale.
The Department has assessed this final rule and determines that it
will not have a negative effect on families. Indeed, we believe the
SCSEP strengthens families by providing job training and support
services to low-income older Americans.
J. Executive Order 12630
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, is not relevant to this
Final Rule because the rule does not involve implementation of a policy
with takings implications.
K. Executive Order 12988
This final rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The Department has written the regulation so
as to minimize litigation and provide a clear legal standard for
affected conduct, and has carefully reviewed it to eliminate drafting
errors and ambiguities.
L. Executive Order 13211
This final rule is not subject to Executive Order 13211 because the
rule will not have a significant adverse effect on the supply,
distribution, or use of energy.
M. Plain Language
The Department drafted this rule in plain language.
[[Page 53812]]
List of Subjects in 20 CFR Part 641
Aged, Employment, Government contracts, Grant programs--Labor,
Reporting and recordkeeping requirements.
0
For the reasons discussed in the preamble, the Department of Labor
amends 20 CFR part 641 as follows:
PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE
EMPLOYMENT PROGRAM
Subpart A--Purpose and Definitions
Sec.
641.100 What does this part cover?
641.110 What is the SCSEP?
641.120 What are the purposes of the SCSEP?
641.130 What is the scope of this part?
641.140 What definitions apply to this part?
Subpart B--Coordination With the Workforce Investment Act
641.200 What is the relationship between the SCSEP and the Workforce
Investment Act?
641.210 What services, in addition to the applicable core services,
must SCSEP grantees and sub-recipients provide through the One-Stop
delivery system?
641.220 Does title I of WIA require the SCSEP to use OAA funds for
individuals who are not eligible for SCSEP services or for services
that are not authorized under the OAA?
641.230 Must the individual assessment conducted by the SCSEP
grantee or sub-recipient and the assessment performed by the One-
Stop delivery system be accepted for use by either entity to
determine the individual's need for services in the SCSEP and adult
programs under title I-B of WIA?
641.240 Are SCSEP participants eligible for intensive and training
services under title I of WIA?
Subpart C--The State Plan
641.300 What is the State Plan?
641.302 What is a four-year strategy?
641.305 Who is responsible for developing and submitting the State
Plan?
641.310 May the Governor, or the highest government official,
delegate responsibility for developing and submitting the State
Plan?
641.315 Who participates in developing the State Plan?
641.320 Must all national grantees operating within a State
participate in the State planning process?
641.325 What information must be provided in the State Plan?
641.330 How should the State Plan reflect community service needs?
641.335 How should the Governor, or the highest government official,
address the coordination of SCSEP services with activities funded
under title I of WIA?
641.340 How often must the Governor, or the highest government
official, update the State Plan?
641.345 What are the requirements for modifying the State Plan?
641.350 How should public comments be solicited and collected?
641.355 Who may comment on the State Plan?
641.360 How does the State Plan relate to the equitable distribution
report?
641.365 How must the equitable distribution provisions be reconciled
with the provision that disruptions to current participants should
be avoided?
Subpart D--Grant Application and Responsibility Review Requirements for
State and National SCSEP Grants
641.400 What entities are eligible to apply to the Department for
funds to administer SCSEP projects?
641.410 How does an eligible entity apply?
641.420 What are the eligibility criteria that each applicant must
meet?
641.430 What are the responsibility conditions that an applicant
must meet?
641.440 Are there responsibility conditions that alone will
disqualify an applicant?
641.450 How will the Department examine the responsibility of
eligible entities?
641.460 What factors will the Department consider in selecting
national grantees?
641.465 Under what circumstances may the Department reject an
application?
641.470 What happens if an applicant's application is rejected?
641.480 May the Governor, or the highest government official, make
recommendations to the Department on national grant applications?
641.490 When will the Department compete SCSEP grant awards?
641.495 When must a State compete its SCSEP award?
Subpart E--Services to Participants
641.500 Who is eligible to participate in the SCSEP?
641.505 When is eligibility determined?
641.507 How is applicant income computed?
641.510 What types of income are included and excluded for
participant eligibility determinations?
641.512 May grantees and sub-recipients enroll otherwise eligible
job ready individuals and place them directly into unsubsidized
employment?
641.515 How must grantees and sub-recipients recruit and select
eligible individuals for participation in the SCSEP?
641.520 Are there any priorities that grantees and sub-recipients
must use in selecting eligible individuals for participation in the
SCSEP?
641.535 What services must grantees and sub-recipients provide to
participants?
641.540 What types of training may grantees and sub-recipients
provide to SCSEP participants in addition to the training received
at the community service assignment?
641.545 What supportive services may grantees and sub-recipients
provide to participants?
641.550 What responsibility do grantees and sub-recipients have to
place participants in unsubsidized employment?
641.565 What policies govern the provision of wages and benefits to
participants?
641.570 Is there a time limit for participation in the program?
641.575 May a grantee or sub-recipient establish a limit on the
amount of time its participants may spend at a host agency?
641.577 Is there a limit on community service assignment hours?
641.580 Under what circumstances may a grantee or sub-recipient
terminate a participant?
641.585 What is the employment status of SCSEP participants?
Subpart F--Pilot, Demonstration, and Evaluation Projects
641.600 What is the purpose of the pilot, demonstration, and
evaluation projects authorized under Sec. 502(e) of the OAA?
641.610 How are pilot, demonstration, and evaluation projects
administered?
641.620 How may an organization apply for pilot, demonstration, and
evaluation project funding?
641.630 What pilot, demonstration, and evaluation project activities
are allowable under Sec. 502(e)?
641.640 Should pilot, demonstration, and evaluation project entities
coordinate with SCSEP grantees and sub-recipients, including area
agencies on aging?
Subpart G--Performance Accountability
641.700 What performance measures/indicators apply to SCSEP
grantees?
641.710 How are the performance indicators defined?
641.720 How will the Department and grantees initially determine and
then adjust expected levels of performance for the core performance
measures?
641.730 How will the Department assist grantees in the transition to
the new core performance indicators?
641.740 How will the Department determine whether a grantee fails,
meets, or exceeds the expected levels of performance for the core
indicators and what will be the consequences of failing to meet
expected levels of performance?
641.750 Will there be performance-related incentives?
Subpart H--Administrative Requirements
641.800 What uniform administrative requirements apply to the use of
SCSEP funds?
641.803 What is program income?
641.806 How must SCSEP program income be used?
641.809 What non-Federal share (matching) requirements apply to the
use of SCSEP funds?
641.812 What is the period of availability of SCSEP funds?
641.815 May the period of availability be extended?
641.821 What audit requirements apply to the use of SCSEP funds?
641.824 What lobbying requirements apply to the use of SCSEP funds?
[[Page 53813]]
641.827 What general nondiscrimination requirements apply to the use
of SCSEP funds?
641.833 What policies govern political patronage?
641.836 What policies govern political activities?
641.839 What policies govern union organizing activities?
641.841 What policies govern nepotism?
641.844 What maintenance of effort requirements apply to the use of
SCSEP funds?
641.847 What uniform allowable cost requirements apply to the use of
SCSEP funds?
641.850 Are there other specific allowable and unallowable cost
requirements for the SCSEP?
641.853 How are costs classified?
641.856 What functions and activities constitute administrative
costs?
641.859 What other special rules govern the classification of costs
as administrative costs or programmatic activity costs?
641.861 Must SCSEP recipients provide funding for the administrative
costs of sub-recipients?
641.864 What functions and activities constitute programmatic
activity costs?
641.867 What are the limitations on the amount of SCSEP
administrative costs?
641.870 Under what circumstances may the administrative cost
limitation be increased?
641.873 What minimum expenditure levels are required for participant
wages and benefits?
641.874 What conditions apply to a SCSEP grantee request to use
additional funds for training and supportive service costs?
641.876 When will compliance with cost limitations and minimum
expenditure levels be determined?
641.879 What are the financial and performance reporting
requirements for recipients?
641.881 What are the SCSEP recipient's responsibilities relating to
awards to sub-recipients?
641.884 What are the grant closeout procedures?
Subpart I--Grievance Procedures and Appeals Process
641.900 What appeal process is available to an applicant that does
not receive a grant?
641.910 What grievance procedures must grantees make available to
applicants, employees, and participants?
641.920 What actions of the Department may a grantee appeal and what
procedures apply to those appeals?
641.930 Is there an alternative dispute resolution process that may
be used in place of an OALJ hearing?
Authority: 42 U.S.C. 3056 et seq.; Pub. L. 109-365.
Subpart A--Purpose and Definitions
Sec. 641.100 What does this part cover?
Part 641 contains the Department of Labor's regulations for the
Senior Community Service Employment Program (SCSEP), authorized under
title V of the Older Americans Act (OAA), 42 U.S.C. 3056 et seq., as
amended by the Older Americans Act Amendments of 2006, Public Law 109-
365. This part and other pertinent regulations set forth the
regulations applicable to the SCSEP.
(a) Subpart A of this part contains introductory provisions and
definitions that apply to this part.
(b) Subpart B of this part describes the required relationship
between the OAA and the Workforce Investment Act of 1998 (WIA), 29
U.S.C. 2801 et seq. These provisions discuss the coordinated efforts to
provide services through the integration of the SCSEP within the One-
Stop delivery system.
(c) Subpart C of this part sets forth the requirements for the
State Plan, such as the four-year strategy, required coordination
efforts, public comments, and equitable distribution.
(d) Subpart D of this part establishes grant planning and
application requirements, including grantee eligibility and
responsibility review provisions that apply to the Department's award
of SCSEP funds for State and national grants.
(e) Subpart E of this part details SCSEP participant services.
(f) Subpart F of this part provides the rules for pilot,
demonstration, and evaluation projects.
(g) Subpart G of this part outlines the performance accountability
requirements. This subpart establishes requirements for performance
measures, defines such measures, and establishes corrective actions for
failure to meet core performance measures.
(h) Subpart H of this part sets forth the administrative
requirements for SCSEP funds.
(i) Subpart I of this part describes the grievance and appeals
processes and requirements.
Sec. 641.110 What is the SCSEP?
The Senior Community Service Employment Program (SCSEP) is a
program administered by the Department of Labor that serves unemployed
low-income persons who are 55 years of age and older and who have poor
employment prospects by training them in part-time community service
assignments and by assisting them in developing skills and experience
to facilitate their transition to unsubsidized employment.
Sec. 641.120 What are the purposes of the SCSEP?
The purposes of the SCSEP are to foster individual economic self-
sufficiency and promote useful part-time opportunities in community
service assignments for unemployed low-income persons who are 55 years
of age or older, particularly persons who have poor employment
prospects, and to increase the number of older persons who may enjoy
the benefits of unsubsidized employment in both the public and private
sectors. (OAA Sec. 502(a)(1)).
Sec. 641.130 What is the scope of this part?
The regulations in this part address the requirements that apply to
the SCSEP. More detailed policies and procedures are contained in
administrative guidelines issued by the Department. Throughout this
part, phrases such as, ``according to instructions (procedures) issued
by the Department'' or ``additional guidance will be provided through
administrative issuance'' refer to the documents issued under the
Secretary's authority to administer the SCSEP, such as Training and
Employment Guidance Letters (TEGLs), Training and Employment Notices
(TENs), previously issued SCSEP Older Worker Bulletins that are still
in effect, technical assistance guides, and other SCSEP guidance.
Sec. 641.140 What definitions apply to this part?
The following definitions apply to this part:
Additional indicators mean retention in unsubsidized employment for
one year; satisfaction of participants, employers and their host
agencies with their experiences and the services provided; and any
other indicators of performance that the Secretary determines to be
appropriate to evaluate services and performance. (OAA Sec.
513(b)(2)).
At risk for homelessness means an individual is likely to become
homeless and the individual lacks the resources and support networks
needed to obtain housing.
Authorized position level means the number of SCSEP enrollment
opportunities that can be supported for a 12-month period based on the
average national unit cost. The authorized position level is derived by
dividing the total amount of funds appropriated for a Program Year by
the national average unit cost per participant for that Program Year as
determined by the Department. The national average unit cost includes
all costs of administration, other participant costs, and participant
wage and benefit costs as defined in Sec. 506(g) of the OAA.
Co-enrollment applies to any individual who meets the
qualifications for SCSEP participation and is also
[[Page 53814]]
enrolled as a participant in WIA or another employment and training
program, as provided in the Individual Employment Plan.
Community service means:
(1) Social, health, welfare, and educational services (including
literacy tutoring), legal and other counseling services and assistance,
including tax counseling and assistance and financial counseling, and
library, recreational, and other similar services;
(2) Conservation, maintenance, or restoration of natural resources;
(3) Community betterment or beautification;
(4) Antipollution and environmental quality efforts;
(5) Weatherization activities;
(6) Economic development; and
(7) Other such services essential and necessary to the community as
the Secretary determines by rule to be appropriate. (OAA Sec.
518(a)(1)).
Community service assignment means part-time, temporary employment
paid with grant funds in projects at host agencies through which
eligible individuals are engaged in community service and receive work
experience and job skills that can lead to unsubsidized employment.
(OAA Sec. 518(a)(2)).
Core indicators means hours (in the aggregate) of community service
employment; entry into unsubsidized employment; retention in
unsubsidized employment for six months; earnings; the number of
eligible individuals served; and most-in-need (the number of
individuals described in Sec. 518 (a)(3)(B)(ii) or (b)(2) of the OAA).
(OAA Sec. 513(b)(1)).
Core Services means those services described in Sec. 134(d)(2) of
WIA.
Department or DOL means the United States Department of Labor,
including its agencies and organizational units.
Disability means a disability attributable to a mental or physical
impairment, or a combination of mental and physical impairments, that
results in substantial functional limitations in one or more of the
following areas of major life activity:
(1) Self-care;
(2) Receptive and expressive language;
(3) Learning;
(4) Mobility;
(5) Self-direction;
(6) Capacity for independent living;
(7) Economic self-sufficiency;
(8) Cognitive functioning; and
(9) Emotional adjustment.
(42 U.S.C. 3002(13)).
Equitable distribution report means a report based on the latest
available Census or other reliable data, which lists the optimum number
of participant positions in each designated area in the State, and the
number of authorized participant positions each grantee serves in that
area, taking into account the needs of underserved counties and
incorporated cities as necessary. This report provides a basis for
improving the distribution of SCSEP positions.
Frail means an individual 55 years of age or older who is
determined to be functionally impaired because the individual--
(1)(i) Is unable to perform at least two activities of daily living
without substantial human assistance, including verbal reminding,
physical cueing, or supervision; or
(ii) At the option of the State, is unable to perform at least
three such activities without such assistance; or
(2) Due to a cognitive or other mental impairment, requires
substantial supervision because the individual behaves in a manner that
poses a serious health or safety hazard to the individual or to another
individual. (42 U.S.C. 3002(22)).
Grant period means the time period between the effective date of
the grant award and the ending date of the award, which includes any
modifications extending the period of performance, whether by the
Department's exercise of options contained in the grant agreement or
otherwise. This is also referred to as ``project period'' or ``award
period.''
Grantee means an entity receiving financial assistance directly
from the Department to carry out SCSEP activities. The grantee is the
legal entity that receives the award and is legally responsible for
carrying out the SCSEP, even if only a particular component of the
entity is designated in the grant award document. Grantees include
public and nonprofit private agencies and organizations, agencies of a
State, tribal organizations, and Territories, that receive SCSEP grants
from the Department. (OAA Sec. Sec. 502(b)(1), 506(a)(2)). As used
here, ``grantee'' includes ``grantee'' as defined in 29 CFR 97.3 and
``recipient'' as defined in 29 CFR 95.2(gg).
Greatest economic need means the need resulting from an income
level at or below the poverty guidelines established by the Department
of Health and Human Services and approved by the Office of Management
and Budget (OMB). (42 U.S.C. 3002(23)).
Greatest social need means the need caused by non-economic factors,
which include: Physical and mental disabilities; language barriers; and
cultural, social, or geographical isolation, including isolation caused
by racial or ethnic status, which restricts the ability of an
individual to perform normal daily tasks or threatens the capacity of
the individual to live independently. (42 U.S.C. 3002(24)).
Homeless includes:
(1) An individual who lacks a fixed, regular, and adequate
nighttime residence; and
(2) An individual who has a primary nighttime residence that is:
(i) A supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate shelters, and transitional housing for the mentally ill);
(ii) An institution that provides a temporary residence for
individuals intended to be institutionalized; or
(iii) A public or private place not designed for, or ordinarily
used as, regular sleeping accommodations for human beings. (42 U.S.C.
11302(a)).
Host agency means a public agency or a private nonprofit
organization exempt from taxation under Sec. 501(c)(3) of the Internal
Revenue Code of 1986 which provides a training work site and
supervision for one or more participants. Political parties cannot be
host agencies. A host agency may be a religious organization as long as
the projects in which participants are being trained do not involve the
construction, operation, or maintenance of any facility used or to be
used as a place for sectarian religious instruction or worship. (OAA
Sec. 502(b)(1)(D)).
Indian means a person who is a member of an Indian tribe. (42
U.S.C. 3002(26)).
Indian tribe means any tribe, band, nation, or other organized
group or community of Indians (including Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.)
which: (1) Is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians; or (2) is located on, or in proximity to, a Federal
or State reservation or Rancheria. (42 U.S.C. 3002(27)).
Individual employment plan (IEP) means a plan for a participant
that is based on an assessment of that participant conducted by the
grantee or sub-recipient, or a recent assessment or plan developed by
another employment and training program, and a related service
strategy. The IEP must include an appropriate employment goal (except
that after the first IEP, subsequent IEPs need not contain an
employment goal if such a goal is not feasible), objectives that lead
to the goal, a timeline for the achievement of the objectives; and be
[[Page 53815]]
jointly agreed upon with the participant. (OAA Sec. 502(b)(1)(N)).
Intensive services means those services authorized by Sec.
134(d)(3) of the Workforce Investment Act.
Jobs for Veterans Act means Public Law 107-288 (2002). Section 2(a)
of the Jobs for Veterans Act, codified at 38 U.S.C. 4215(a), provides a
priority of service for Department of Labor employment and training
programs for veterans, and certain spouses of veterans, who otherwise
meet the eligibility requirements for participation. Priority is
extended to veterans. Priority is also extended to the spouse of a
veteran who died of a service-connected disability; the spouse of a
member of the Armed Forces on active duty who has been listed for a
total of more than 90 days as missing in action, captured in the line
of duty by a hostile force, or forcibly detained by a foreign
government or power; the spouse of any veteran who has a total
disability resulting from a service-connected disability; and the
spouse of any veteran who died while a disability so evaluated was in
existence. (See Sec. 641.520(b)).
Job ready refers to individuals who do not require further
education or training to perform work that is available in their labor
market.
Limited English proficiency means individuals who do not speak
English as their primary language and who have a limited ability to
read, speak, write, or understand English.
Local Workforce Investment Area or local area means an area
designated by the Governor of a State under Sec. 116 of the Workforce
Investment Act.
Local Board means a Local Workforce Investment Board established
under Sec. 117 of the Workforce Investment Act.
Low employment prospects means the likelihood that an individual
will not obtain employment without the assistance of the SCSEP or
another workforce development program. Persons with low employment
prospects have a significant barrier to employment. Significant
barriers to employment may include but are not limited to: Lacking a
substantial employment history, basic skills, and/or English-language
proficiency; lacking a high school diploma or the equivalent; having a
disability; being homeless; or residing in socially and economically
isolated rural or urban areas where employment opportunities are
limited.
Low literacy skills means the individual computes or solves
problems, reads, writes, or speaks at or below the 8th grade level or
is unable to compute or solve problems, read, write, or speak at a
level necessary to function on the job, in the individual's family, or
in society.
Most-in-need means participants with one or more of the following
characteristics: Have a severe disability; are frail; are age 75 or
older; are age-eligible but not receiving benefits under title II of
the Social Security Act; reside in an area with persistent unemployment
and have severely limited employment prospects; have limited English
proficiency; have low literacy skills; have a disability; reside in a
rural area; are veterans; have low employment prospects; have failed to
find employment after using services provided under title I of the
Workforce Investment Act of 1998 (29 U.S.C. 2801 et seq.); or are
homeless or at risk for homelessness. (OAA Sec. 513(b)(1)(E)).
National grantee means a public or non-profit private agency or
organization, or Tribal organization, that receives a grant under title
V of the OAA (42 U.S.C. 3056 et seq.) to administer a SCSEP project.
(See OAA Sec. 506(g)(5)).
OAA means the Older Americans Act, 42 U.S.C. 3001 et seq., as
amended.
One-Stop Center means the One-Stop Center system in a WIA local
area which must include a comprehensive One-Stop Center through which
One-Stop partners provide applicable core services and which provides
access to other programs and services carried out by the One-Stop
partners. (See WIA Sec. 134(c)(2)).
One-Stop delivery system means a system under which employment and
training programs, services, and activities are available through a
network of eligible One-Stop partners, which assures that information
about and access to core services is available regardless of where the
individuals initially enter the workforce investment system. (See WIA
Sec. 134(c)(2)).
One-Stop partner means an entity described in Sec. 121(b)(1) of
the Workforce Investment Act, i.e., required partners, or an entity
described in Sec. 121(b)(2) of the Workforce Investment Act, i.e.,
additional partners.
Other participant (enrollee) costs means the costs of participant
training, including the payment of reasonable costs to instructors,
classroom rental, training supplies, materials, equipment, and tuition,
and which may be provided before or during a community service
assignment, in a classroom setting, or under other appropriate
arrangements; job placement assistance, including job development and
job search assistance; participant supportive services to enable a
participant to successfully participate in a project, including the
payment of reasonable costs of transportation, health care and medical
services, special job-related or personal counseling, incidentals (such
as work shoes, badges, uniforms, eyeglasses, and tools), child and
adult care, temporary shelter, and follow-up services; and outreach,
recruitment and selection, intake orientation, and assessments. (OAA
Sec. 502(c)(6)(A)(ii)-(v)).
Pacific Island and Asian Americans means Americans having origins
in any of the original peoples of the Far East, Southeast Asia, the
Indian Subcontinent, or the Pacific Islands. (OAA Sec. 518(a)(5)).
Participant means an individual who is determined to be eligible
for the SCSEP, is given a community service assignment, and is
receiving any service funded by the program as described in subpart E.
Persistent unemployment means that the annual average unemployment
rate for a county or city is more than 20 percent higher than the
national average for two out of the last three years.
Poor employment prospects means the significant likelihood that an
individual will not obtain employment without the assistance of the
SCSEP or another workforce development program. Persons with poor
employment prospects have a significant barrier to employment;
significant barriers to employment include but are not limited to:
lacking a substantial employment history, basic skills, and/or English-
language proficiency; lacking a high school diploma or the equivalent;
having a disability; being homeless; or residing in socially and
economically isolated rural or urban areas where employment
opportunities are limited.
Program operator means a grantee or sub-recipient that receives
SCSEP funds from a SCSEP grantee or a higher-tier SCSEP sub-recipient
and performs the following activities for all its participants:
Eligibility determination, participant assessment, and development of
and placement into community service assignments.
Program Year means the one-year period beginning on July 1 and
ending on June 30.
Project means an undertaking by a grantee or sub-recipient in
accordance with a grant or contract agreement that provides service to
communities and training and employment opportunities to eligible
individuals.
Recipient means grantee. As used here, ``recipient'' includes
``recipient'' as defined in 29 CFR 95.2(gg) and ``grantee'' as defined
in 29 CFR 97.3.
Residence means an individual's declared dwelling place or address
as
[[Page 53816]]
demonstrated by appropriate documentation.
Rural means an area not designated as a metropolitan statistical
area by the Census Bureau; segments within metropolitan counties
identified by codes 4 through 10 in the Rural Urban Commuting Area
(RUCA) system; and RUCA codes 2 and 3 for census tracts that are larger
than 400 square miles and have population density of less than 30
people per square mile.
SCSEP means the Senior Community Service Employment Program
authorized under title V of the OAA.
Secretary means the Secretary of the U.S. Department of Labor.
Service area means the geographic area served by a local SCSEP
project in accordance with a grant agreement.
Severe disability means a severe, chronic disability attributable
to mental or physical impairment, or a combination of mental and
physical impairments, that--
(1) Is likely to continue indefinitely; and
(2) Results in substantial functional limitation in 3 or more of
the following areas of major life activity:
(i) Self-care;
(ii) Receptive and expressive language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction;
(vi) Capacity for independent living;
(vii) Economic self-sufficiency.
(42 U.S.C. 3002(48)).
Severely limited employment prospects means the substantial
likelihood that an individual will not obtain employment without the
assistance of the SCSEP or another workforce development program.
Persons with severely limited employment prospects have more than one
significant barrier to employment; significant barriers to employment
may include but are not limited to: Lacking a substantial employment
history, basic skills, and/or English-language proficiency; lacking a
high school diploma or the equivalent; having a disability; being
homeless; or residing in socially and economically isolated rural or
urban areas where employment opportunities are limited.
State Board means a State Workforce Investment Board established
under WIA Sec. 111.
State grantee means the entity designated by the Governor, or the
highest government official, to enter into a grant with the Department
to administer a State or Territory SCSEP project under the OAA. Except
as applied to funding distributions under Sec. 506 of the OAA, this
definition applies to the 50 States, Puerto Rico, the District of
Columbia and the following Territories: Guam, American Samoa, U.S.
Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
State Plan means a plan that the Governor, or the highest
government official, of a State must submit to the Secretary that
outlines a four-year strategy, and describes the planning and
implementation process, for the statewide provision of community
service employment and other authorized activities for eligible
individuals under SCSEP. (See Sec. 641.300).
Sub-recipient means the legal entity to which a sub-award of
financial assistance is made by the grantee (or by a higher-tier sub-
recipient), and that is accountable to the grantee for the use of the
funds provided. As used here, ``sub-recipient'' includes ``sub-
grantee'' as defined in 29 CFR 97.3 and ``sub-recipient'' as defined in
29 CFR 95.2(kk).
Supportive services means services, such as transportation, health
and medical services, special job-related or personal counseling,
incidentals (such as work shoes, badges, uniforms, eye-glasses, and
tools), child and adult care, housing, including temporary shelter,
follow up services, and needs-related payments, which are necessary to
enable an individual to participate in activities authorized under the
SCSEP. (OAA Sec. 502(c)(6)(A)(iv) and 518(a)(7)).
Title V of the OAA means 42 U.S.C. 3056 et seq., as amended.
Training services means those services authorized by WIA Sec.
134(d)(4).
Tribal organization means the recognized governing body of any
Indian tribe, or any legally established organization of Indians which
is controlled, sanctioned, or chartered by such governing body. (42
U.S.C. 3002(54)).
Unemployed means an individual who is without a job and who wants
and is available for work, including an individual who may have
occasional employment that does not result in a constant source of
income. (OAA 518(a)(8)).
Veteran means an individual who is a ``covered person'' for
purposes of the Jobs for Veterans Act, 38 U.S.C. 4215(a)(1).
Workforce Investment Act (WIA) means the Workforce Investment Act
of 1998 (Pub. L. 105-220 (Aug. 7, 1998)), 29 U.S.C. 2801 et seq., as
amended.
Workforce Investment Act (WIA) regulations means regulations at 20
CFR part 652, subpart D and parts 660-671.
Subpart B--Coordination With the Workforce Investment Act
Sec. 641.200 What is the relationship between the SCSEP and the
Workforce Investment Act?
The SCSEP is a required partner under the Workforce Investment Act.
As such, it is a part of the One-Stop delivery system. When acting in
their capacity as WIA partners, SCSEP grantees and sub-recipients are
required to follow all applicable rules under WIA and its regulations.
(29 U.S.C. 2841(b)(1)(B)(vi) and 20 CFR 662.200 through 662.280).
Sec. 641.210 What services, in addition to the applicable core
services, must SCSEP grantees and sub-recipients provide through the
One-Stop delivery system?
In addition to providing core services, as defined at 20 CFR
662.240 of the WIA regulations, SCSEP grantees and sub-recipients must
make arrangements through the One-Stop delivery system to provide
eligible and ineligible individuals with referrals to WIA intensive and
training services and access to other activities and programs carried
out by other One-Stop partners.
Sec. 641.220 Does title I of WIA require the SCSEP to use OAA funds
for individuals who are not eligible for SCSEP services or for services
that are not authorized under the OAA?
No, SCSEP requirements continue to apply. Title V resources may not
be used to serve individuals who are not SCSEP-eligible. The Workforce
Investment Act creates a seamless service delivery system for
individuals seeking workforce development services by linking the One-
Stop partners in the One-Stop delivery system. Although the overall
effect is to provide universal access to core services, SCSEP resources
may only be used to provide services that are authorized and provided
under the SCSEP to eligible individuals. Note, however, that one
allowable SCSEP cost is a SCSEP project's proportionate share of One-
Stop costs. See Sec. 641.850(d). Title V funds can be used to pay
wages to SCSEP participants receiving intensive and training services
under title I of WIA provided that the SCSEP participants have each
received a community service assignment. All other individuals who are
in need of the services provided under the SCSEP, but who do not meet
the eligibility criteria to enroll in the SCSEP, should be referred to
or enrolled in WIA or other appropriate partner programs. WIA Sec.
121(b)(1). These arrangements should be negotiated in the Memorandum of
Understanding (MOU), which is an agreement developed and executed
[[Page 53817]]
between the Local Workforce Investment Board, with the agreement of the
chief local elected official, and the One-Stop partners relating to the
operation of the One-Stop delivery system in the local area. The MOU is
further described in the WIA regulations at 20 CFR Sec. Sec. 662.300
and 662.310.
Sec. 641.230 Must the individual assessment conducted by the SCSEP
grantee or sub-recipient and the assessment performed by the One-Stop
delivery system be accepted for use by either entity to determine the
individual's need for services in the SCSEP and adult programs under
title I-B of WIA?
Yes, Sec. 502(b)(3) of the OAA provides that an assessment or IEP
completed by the SCSEP satisfies any condition for an assessment,
service strategy, or IEP completed at the One-Stop and vice-versa. (OAA
Sec. 502(b)(3)). These reciprocal arrangements and the contents of the
SCSEP IEP and WIA IEP should be negotiated in the MOU.
Sec. 641.240 Are SCSEP participants eligible for intensive and
training services under title I of WIA?
(a) Although SCSEP participants are not automatically eligible for
intensive and training services under title I of WIA, local boards may
deem SCSEP participants, either individually or as a group, as
satisfying the requirements for receiving adult intensive and training
services under title I of WIA.
(b) SCSEP participants who have been assessed and for whom an IEP
has been developed have received an intensive service under 20 CFR
663.240(a) of the WIA regulations. In order to enhance skill
development related to the IEP, it may be necessary to provide training
beyond the community service assignment to enable participants to meet
their unsubsidized employment objectives. The SCSEP grantee or sub-
recipient, the host agency, the WIA program, or another One-Stop
partner may provide training as appropriate and as negotiated in the
MOU. (See Sec. 641.540 for a further discussion of training for SCSEP
participants.)
Subpart C--The State Plan
Sec. 641.300 What is the State Plan?
The State Plan is a plan, submitted by the Governor, or the highest
government official, in each State, as an independent document or as
part of the WIA Unified Plan, that outlines a four-year strategy for
the statewide provision of community service employment and other
authorized activities for eligible individuals under the SCSEP as
described in Sec. 641.302. The State Plan also describes the planning
and implementation process for SCSEP services in the State, taking into
account the relative distribution of eligible individuals and
employment opportunities within the State. The State Plan is intended
to foster coordination among the various SCSEP grantees and sub-
recipients operating within the State and to facilitate the efforts of
stakeholders, including State and local boards under WIA, to work
collaboratively through a participatory process to accomplish the
SCSEP's goals. (OAA Sec. 503(a)(1)). The State Plan provisions are
listed in Sec. 641.325.
Sec. 641.302 What is a four-year strategy?
The State Plan must outline a four-year strategy for the statewide
provision of community service employment and other authorized
activities for eligible individuals under the SCSEP program. (OAA Sec.
503(a)(1)). The four-year strategy must specifically address the
following:
(a) The State's long-term strategy for achieving an equitable
distribution of SCSEP positions within the State that:
(1) Moves positions from over-served to underserved locations
within the State, under Sec. 641.365;
(2) Equitably serves rural and urban areas; and
(3) Serves individuals afforded priority for service, pursuant to
Sec. 641.520;
(b) The State's long-term strategy for avoiding disruptions to the
program when new Census or other reliable data become available, or
when there is over-enrollment for any other reason;
(c) The State's long-term strategy for serving minority older
individuals under SCSEP;
(d) Long-term projections for job growth in industries and
occupations in the State that may provide employment opportunities for
older workers, and how those relate to the types of unsubsidized jobs
for which SCSEP participants will be trained, and the types of skill
training to be provided;
(e) The State's long-term strategy for engaging employers to
develop and promote opportunities for the placement of SCSEP
participants in unsubsidized employment;
(f) The State's strategy for continuous improvement in the level of
performance for entry into unsubsidized employment, and to achieve, at
a minimum, the levels specified in Sec. 513(a)(2)(E)(ii) of the OAA;
(g) Planned actions to coordinate activities of SCSEP grantees with
the activities being carried out in the State under title I of WIA,
including plans for using the WIA One-Stop delivery system and its
partners to serve individuals aged 55 and older;
(h) Planned actions to coordinate activities of SCSEP grantees with
the activities being carried out in the State under other titles of the
OAA;
(i) Planned actions to coordinate the SCSEP with other public and
private entities and programs that provide services to older Americans,
such as community and faith-based organizations, transportation
programs, and programs for those with special needs or disabilities;
(j) Planned actions to coordinate the SCSEP with other labor market
and job training initiatives; and
(k) The State's long-term strategy to improve SCSEP services,
including planned longer-term changes to the design of the program
within the State, and planned changes in the use of SCSEP grantees and
program operators to better achieve the goals of the program; this may
include recommendations to the Department, as appropriate.
Sec. 641.305 Who is responsible for developing and submitting the
State Plan?
The Governor, or the highest governmental official, of each State
is responsible for developing and submitting the State Plan to the
Department.
Sec. 641.310 May the Governor, or the highest government official,
delegate responsibility for developing and submitting the State Plan?
(a) Yes, the Governor, or the highest governmental official of each
State, may delegate responsibility for developing and submitting the
State Plan, provided that any such delegation is consistent with State
law and regulations.
(b) To delegate responsibility, the Governor, or the highest
government official, must submit to the Department a signed statement
indicating the individual and/or organization that will be submitting
the State Plan on his or her behalf.
Sec. 641.315 Who participates in developing the State Plan?
(a) In developing the State Plan the Governor, or the highest
government official, must seek the advice and recommendations of
representatives from:
(1) The State and area agencies on aging;
(2) State and local boards under the Workforce Investment Act
(WIA);
(3) Public and private nonprofit agencies and organizations
providing employment services, including each grantee operating a SCSEP
project within the State, except as provided in Sec. 641.320(b);
[[Page 53818]]
(4) Social service organizations providing services to older
individuals;
(5) Grantees under title III of the OAA;
(6) Affected communities;
(7) Unemployed older individuals;
(8) Community-based organizations serving older individuals;
(9) Business organizations; and
(10) Labor organizations.
(b) The Governor, or the highest government official, may also
obtain the advice and recommendations of other interested organizations
and individuals, including SCSEP program participants, in developing
the State Plan. (OAA Sec. 503(a)(2)).
Sec. 641.320 Must all national grantees operating within a State
participate in the State planning process?
(a) The eligibility provision at OAA Sec. 514(c)(6) requires
national grantees to coordinate activities with other organizations at
the State and local levels. Therefore, except as provided in paragraph
(b) of this section, any national grantee that does not participate in
the State planning process may be deemed ineligible to receive SCSEP
funds in the following Program Year.
(b) National grantees serving older American Indians, or Pacific
Island and Asian Americans, with funds reserved under OAA Sec.
506(a)(3), are exempted from the requirement to participate in the
State planning processes under Sec. 503(a)(8) of the OAA. Although
these national grantees may choose not to participate in the State
planning process, the Department encourages their participation. Only
those grantees using reserved funds are exempt; if a grantee is awarded
one grant with reserved funds and another grant with non-reserved
funds, the grantee is required under paragraph (a) of this section to
participate in the State planning process for purposes of the non-
reserved funds grant.
Sec. 641.325 What information must be provided in the State Plan?
The Department issues instructions detailing the information that
must be provided in the State Plan. At a minimum, the State Plan must
include the State's four-year strategy, as described in Sec. 641.302,
and information on the following:
(a) The ratio of eligible individuals in each service area to the
total eligible population in the State;
(b) The relative distribution of:
(1) Eligible individuals residing in urban and rural areas within
the State;
(2) Eligible individuals who have the greatest economic need;
(3) Eligible individuals who are minorities;
(4) Eligible individuals who are limited English proficient; and
(5) Eligible individuals who have the greatest social need;
(c) The current and projected employment opportunities in the State
(such as by providing information available under Sec. 15 of the
Wagner-Peyser Act (29 U.S.C. 491-2) by occupation), and the types of
skills possessed by eligible individuals;
(d) The localities and populations for which projects of the type
authorized by title V are most needed;
(e) Actions taken and/or planned to coordinate activities of SCSEP
grantees in the State with activities carried out in the State under
title I of WIA;
(f) A description of the process used to obtain advice and
recommendations on the State Plan from representatives of organizations
and individuals listed in Sec. 641.315, and advice and recommendations
on steps to coordinate SCSEP services with activities funded under
title I of WIA from representatives of organizations listed in Sec.
641.335;
(g) A description of the State's procedures and time line for
ensuring an open and inclusive planning process that provides
meaningful opportunity for public comment as required by Sec. 641.350;
(h) Public comments received, and a summary of the comments;
(i) A description of the steps taken to avoid disruptions to the
greatest extent possible as provided in Sec. 641.365; and
(j) Such other information as the Department may require in the
State Plan instructions. (OAA Sec. 503(a)).
Sec. 641.330 How should the State Plan reflect community service
needs?
The Governor, or the highest government official, must ensure that
the State Plan identifies the types of community services that are
needed and the places where these services are most needed. The State
Plan should specifically identify the needs and locations of those
individuals most in need of community services and the groups working
to meet their needs. (OAA Sec. 503(a)(4)(E)).
Sec. 641.335 How should the Governor, or the highest government
official, address the coordination of SCSEP services with activities
funded under title I of WIA?
The Governor, or the highest government official, must seek the
advice and recommendations from representatives of the State and area
agencies on aging in the State and the State and local boards
established under title I of WIA. (OAA Sec. 503(a)(2)). The State Plan
must describe the steps that are being taken to coordinate SCSEP
activities within the State with activities being carried out under
title I of WIA. (OAA Sec. 503(a)(4)(F)). The State Plan must describe
the steps being taken to ensure that the SCSEP is an active partner in
each One-Stop delivery system and the steps that will be taken to
encourage and improve coordination with the One-Stop delivery system.
Sec. 641.340 How often must the Governor, or the highest government
official, update the State Plan?
(a) Under instructions issued by the Department, the Governor, or
the highest government official, must review the State Plan and submit
an update to the State Plan to the Secretary for consideration and
approval not less often than every two years. OAA Sec. 503(a)(1).
States are encouraged to review their State Plan more frequently than
every two years, however, and make modifications as circumstances
warrant, under Sec. 641.345.
(b) Before development of the update to the State Plan, the
Governor, or the highest government official, must seek the advice and
recommendations of the individuals and organizations identified in
Sec. 641.315 about what, if any, changes are needed, and must publish
the State Plan, showing the changes, for public comment. OAA Sec.
section 503(a)(2), 503(a)(3).
Sec. 641.345 What are the requirements for modifying the State Plan?
(a) Modifications may be submitted anytime circumstances warrant.
(b) Modifications to the State Plan are required when:
(1) There are changes in Federal or State law or policy that
substantially change the assumptions upon which the State Plan is
based;
(2) There are significant changes in the State's vision, four-year
strategy, policies, performance indicators, or organizational
responsibilities; or
(3) There is a change in a grantee or grantees.
(c) Modifications to the State Plan are subject to the same public
comment requirements that apply to the development of the State Plan
under Sec. 641.350.
(d) States are not required to seek the advice and recommendations
of the individuals and organizations identified in Sec. 641.315 when
modifying the State Plan, except that States must seek the advice and
recommendations of any national grantees operating in the State. While
not required, states are strongly encouraged to seek the advice and
recommendation of the relevant entities listed in Sec. 641.315 when or
if modifying the State Plan becomes necessary.
[[Page 53819]]
(e) The Department will issue additional instructions for the
procedures that must be followed when requesting modifications to the
State Plan.
Sec. 641.350 How should public comments be solicited and collected?
The Governor, or the highest government official, should follow
established State procedures to solicit and collect public comments.
The State Plan must include a description of the State's procedures and
schedule for ensuring an open and inclusive planning process that
provides meaningful opportunity for public comment.
Sec. 641.355 Who may comment on the State Plan?
Any individual or organization may comment on the Plan.
Sec. 641.360 How does the State Plan relate to the equitable
distribution report?
The two documents address some of the same areas, but are prepared
at different points in time. The equitable distribution report is
prepared by State grantees at the beginning of each fiscal year and
provides a ``snapshot'' of the actual distribution of all of the
authorized positions within the State, grantee-by-grantee, and the
optimum number of participant positions in each designated area based
on the latest available Census or other reliable data. The State Plan
is prepared by the Governor, or the highest government official, and
covers many areas in addition to equitable distribution, as discussed
in Sec. 641.325, and sets forth a proposed plan for distribution of
authorized positions in the State. Any distribution or redistribution
of positions made as a result of a State Plan proposal will be
reflected in the next equitable distribution report, which then forms
the basis for the proposed distribution in the next State Plan update.
This process is iterative in that it moves the authorized positions
from overserved areas to underserved areas over a period of time.
Sec. 641.365 How must the equitable distribution provisions be
reconciled with the provision that disruptions to current participants
should be avoided?
(a) Governors, or highest government officials, must describe in
the State Plan the steps that are being taken to comply with the
statutory requirement to avoid disruptions in the provision of services
for participants. (OAA Sec. 503(a)(6)).
(b) When there is new Census or other reliable data indicating that
there has been a shift in the location of the eligible population or
when there is over-enrollment for any other reason, the Department
recommends a gradual shift in positions as they become vacant to areas
where there has been an increase in the eligible population.
(c) The Department does not define disruptions to mean that
participants are entitled to remain in a subsidized community service
assignment indefinitely. As discussed in Sec. 641.570, there is a time
limit on SCSEP participation, thus permitting positions to be
transferred over time.
(d) Grantees and sub-recipients must not transfer positions from
one geographic area to another without first notifying the State agency
responsible for preparing the State Plan and equitable distribution
report.
(e) Grantees must submit, in writing, any proposed changes in
distribution that occur after submission of the equitable distribution
report to the Department for approval.
(f) All grantees are required to coordinate any proposed changes in
position distribution with the other grantees in the State, including
the State project director, before submitting the proposed changes to
the Department for approval. The request for the Department's approval
must include the comments of the State project director, which the
Department will consider in making its decision.
Subpart D--Grant Application and Responsibility Review Requirements
for State and National SCSEP Grants
Sec. 641.400 What entities are eligible to apply to the Department
for funds to administer SCSEP projects?
(a) National Grants. Entities eligible to apply for national grants
include nonprofit organizations, Federal public agencies, and tribal
organizations. These entities must provide information to establish
that they are capable of administering a multi-State program, as
required by the Secretary. State and local agencies may not apply for
these funds.
(b) State Grants.
(1) Section 506(e) of the OAA requires the Department to award each
State a grant to provide SCSEP services. Governors, or highest
government officials, designate an individual State agency as the
organization to administer SCSEP funds.
(2) If the State fails to meet its expected levels of performance
for the core indicators for three consecutive years, it is not eligible
to designate an agency to administer SCSEP funds in the following year.
Instead, the State must conduct a competition to select an organization
as the grantee of the funds allotted to the State under Sec. 506(e).
Public and nonprofit private agencies and organizations, State agencies
other than the previously designated, failed agency, and tribal
organizations, are eligible to be selected as a grantee for the funds.
Other States may not be selected as a grantee for this funding.
Sec. 641.410 How does an eligible entity apply?
(a) General. An eligible entity must follow the application
guidelines issued by the Department. The Department will issue
application guidelines announcing the availability of national funds
and State funds, whether they are awarded on a competitive or
noncompetitive basis. The guidelines will contain application due
dates, application instructions, evaluation criteria, and other
necessary information.
(b) National Grant Applicants. All applicants for SCSEP national
grant funds, except for applications for grants proposing to serve
older Indians and Pacific Island and Asian Americans with funds
reserved under OAA Sec. 506(a)(3), must submit their applications to
the Governor, or the highest government official, of each State in
which projects are proposed so that he or she has a reasonable
opportunity to make the recommendations described in Sec. 641.480,
before submitting the application to the Department. (OAA Sec.
503(a)(5)).
(c) State Applicants. A State that submits a Unified Plan under
Sec. 501 of WIA may include the State's SCSEP grant application in its
Unified Plan. Any State that submits a SCSEP grant application as part
of its WIA Unified Plan must address all of the application
requirements as published in the Department's instructions. Sections
641.300 through 641.365 address State Plans and modifications.
Sec. 641.420 What are the eligibility criteria that each applicant
must meet?
To be eligible to receive SCSEP funds, each applicant must
demonstrate:
(a) An ability to administer a program that serves the greatest
number of eligible participants, giving particular consideration to
individuals with greatest economic need, individuals with greatest
social need, and individuals described in Sec. 641.570(b) or Sec.
641.520(a)(2) through (a)(8).
(b) An ability to administer a program that provides employment in
community service assignments for eligible individuals in communities
in which they reside, or in nearby communities, that will contribute to
the general welfare of the community;
[[Page 53820]]
(c) An ability to administer a program that moves eligible
participants into unsubsidized employment;
(d) Where the applicant has previously received a SCSEP grant, the
applicant's prior performance in meeting SCSEP core measures of
performance and addressing SCSEP additional measures of performance;
and where the applicant has not received a SCSEP grant, the applicant's
prior performance under other Federal or State programs; relevant past
performance will also be used for scoring criterion and will be set
forth more fully in the Solicitation for Grant Applications (see Sec.
641.460);
(e) An ability to move participants with multiple barriers to
employment, including individuals described in Sec. 641.570(b) or
Sec. 641.520(a)(2) through (a)(8), into unsubsidized employment;
(f) An ability to coordinate activities with other organizations at
the State and local levels, including the One-Stop delivery system;
(g) An ability to properly manage the program, as reflected in its
plan for fiscal management of the SCSEP;
(h) An ability to administer a project that provides community
service;
(i) An ability to minimize program disruption for current
participants and in community services provided if there is a change in
project sponsor and/or location, and its plan for minimizing
disruptions;
(j) Any additional criteria that the Department deems appropriate
to minimize disruptions for current participants. (OAA Sec. 514(c)).
Sec. 641.430 What are the responsibility conditions that an applicant
must meet?
Subject to Sec. 641.440, each applicant must meet the listed
responsibility ``tests'' by not having committed the following acts:
(a) The Department has been unable to recover a debt from the
applicant, whether incurred by the applicant or by one of its sub-
recipients, or the applicant has failed to comply with a debt repayment
plan to which it agreed. In this context, a debt is established by
final agency action, followed by three demand letters to the applicant,
without payment in full by the applicant.
(b) Established fraud or criminal activity of a significant nature
within the applicant's organization.
(c) Serious administrative deficiencies identified by the
Department, such as failure to maintain a financial management system
as required by Federal regulations.
(d) Willful obstruction of the auditing or monitoring process.
(e) Failure to provide services to applicants as agreed to in a
current or recent grant or to meet applicable core performance measures
or address other applicable indicators of performance.
(f) Failure to correct deficiencies brought to the grantee's
attention in writing as a result of monitoring activities, reviews,
assessments, or other activities.
(g) Failure to return a grant closeout package or outstanding
advances within 90 days after the grant expiration date or receipt of
closeout package, whichever is later, unless an extension has been
requested and granted.
(h) Failure to submit required reports.
(i) Failure to properly report and dispose of Government property
as instructed by the Department.
(j) Failure to have maintained effective cash management or cost
controls resulting in excess cash on hand.
(k) Failure to ensure that a sub-recipient complies with applicable
audit requirements, including OMB Circular A-133 and the audit
requirements specified at Sec. 641.821.
(l) Failure to audit a sub-recipient within the period required
under Sec. 641.821.
(m) Final disallowed costs in excess of five percent of the grant
or contract award if, in the judgment of the Grant Officer, the
disallowances are egregious findings.
(n) Failure to establish a mechanism to resolve a sub-recipient's
audit in a timely fashion. (OAA Sec. 514(d)(4)).
Sec. 641.440 Are there responsibility conditions that alone will
disqualify an applicant?
(a) Yes, an applicant may be disqualified if
(1) Either of the first two responsibility tests, a or b, listed in
Sec. 641.430 is not met, or
(2) The applicant substantially, or persistently for two or more
consecutive years, fails one of the other responsibility tests listed
in Sec. 641.430.
(b) The second responsibility test addresses ``fraud or criminal
activity of a significant nature.'' The Department will determine the
existence of significant fraud or criminal activity which typically
will include willful or grossly negligent disregard for the use or
handling of, or other fiduciary duties concerning, Federal funding,
where the grantee has no effective systems, checks, or safeguards to
detect or prevent fraud or criminal activity. Additionally, significant
fraud or criminal activity will typically include coordinated patterns
or behaviors that pervade a grantee's administration or are committed
by the higher levels of a grantee's management or authority. The
Department will determine whether ``fraud or criminal activity of a
significant nature'' has occurred on a case-by-case basis, regardless
of what party identifies the alleged fraud or criminal activity.
Sec. 641.450 How will the Department examine the responsibility of
eligible entities?
The Department will review available records to assess each
applicant's overall fiscal and administrative ability to manage Federal
funds. The Department's responsibility review may consider all relevant
information, including the organization's history of managing other
grants awarded by the Department or by other Federal agencies. (OAA
Sec. 514(d)(1) and (d)(2)).
Sec. 641.460 What factors will the Department consider in selecting
national grantees?
The Department will select national grantees from among applicants
that are able to meet the eligibility and responsibility review
criteria at Sec. 514 of the OAA. (Section 641.420 contains the
eligibility criteria and Sec. Sec. 641.430 and 641.440 contain the
responsibility criteria.) The Department also will take the rating
criteria described in the Solicitation for Grant Applications or other
instrument into consideration. These rating criteria will include
relevant past performance.
Sec. 641.465 Under what circumstances may the Department reject an
application?
(a) The Department may question any proposed project component of
an application if it believes that the component will not serve the
purposes of the SCSEP. The Department may reject the application if the
applicant does not submit or negotiate an acceptable alternative.
(b) The Department may reject any application that the Grant
Officer determines unacceptable based on the content of the
application, rating score, past performance, fiscal management, or any
other factor the Grant Officer believes serves the best interest of the
program, including the application's comparative rating in a
competition.
Sec. 641.470 What happens if an applicant's application is rejected?
(a) Any entity whose application is rejected in whole or in part
will be informed that it has not been selected. The non-selected entity
may request an explanation of the Department's basis for its rejection.
If requested, the Department will provide the entity with feedback on
its proposal. The non-selected entity may follow the procedures in
Sec. 641.900.
[[Page 53821]]
(b) Incumbent grantees will not have an opportunity to obtain
technical assistance provided by the Department under OAA Sec.
513(d)(2)(B)(i) to cure, in an open competition, any deficiency in a
proposal because that will create inequity in favor of incumbents. Nor,
during an open competition, will the Department provide assistance to
any applicant to improve its application.
(c) If the Administrative Law Judge (ALJ) rules, under Sec.
641.900, that the organization should have been selected, in whole or
in part, the matter must be remanded to the Grant Officer. The Grant
Officer must, within 10 working days, determine whether the
organization continues to meet the requirements of this part, and
whether the positions which are the subject of the ALJ's decision will
be awarded, in whole or in part, to the organization and the timing of
the award. In making this determination, the Grant Officer must take
into account disruption to participants, disruption to grantees, and
the operational needs of the SCSEP.
(d) In the event that the Grant Officer determines that it is not
feasible to award any positions to the appealing applicant, the
applicant will be awarded its bid preparation costs, or a pro rata
share of those costs if the Grant Officer's finding applies to only a
portion of the funds that would be awarded. If positions are awarded to
the appealing applicant, that applicant is not entitled to the full
grant amount but will only receive the funds remaining in the grant
that have not been expended by the current grantee through its
operation of the grant and its subsequent closeout. The available
remedy in a SCSEP non-selection appeal is neither retroactive nor
immediately effective selection; rather it is the potential to be
selected as a SCSEP grantee as quickly as administratively feasible in
the future, for the remainder of the grant cycle.
(e) In the event that any party notifies the Grant Officer that it
is not satisfied with the Grant Officer's decision, the Grant Officer
must return the decision to the ALJ for review.
(f) Any organization selected and/or funded as a SCSEP grantee is
subject to having its positions reduced or to being removed as a SCSEP
grantee if an ALJ decision so orders. The Grant Officer provides
instructions on transition and closeout to both the newly designated
grantee and to the grantee whose positions are affected or which is
being removed. All parties must agree to the provisions of this
paragraph as a condition of being a SCSEP grantee.
Sec. 641.480 May the Governor, or the highest government official,
make recommendations to the Department on national grant applications?
(a) Yes, in accordance with Sec. 641.410(b), each Governor, or
highest government official, will have a reasonable opportunity to make
comments on any application to operate a SCSEP project located in the
Governor's, or the highest government official's, State before the
Department makes a final decision on a grant award. The Governor's, or
the highest government official's, comments should be directed to the
Department and may include the anticipated effect of the proposal on
the overall distribution of program positions within the State;
recommendations for redistribution of positions to underserved areas as
vacancies occur in previously encumbered positions in other areas; and
recommendations for distributing any new positions that may become
available as a result of an increase in funding for the State. The
Governor's, or the highest government official's, recommendations
should be consistent with the State Plan. (OAA Sec. 503(a)(5)).
(b) The Governor, or the highest government official, has the
option of making the authorized recommendations on all applications or
only on those applications proposed for award following the rating
process. It is incumbent on each Governor, or the highest government
official, to inform the Department of his or her intent to review the
applications before or after the rating process.
Sec. 641.490 When will the Department compete SCSEP grant awards?
(a)(1) The Department will hold a full and open competition for
national grants every four years. (OAA Sec. 514(a)(1)).
(2) If a national grantee meets the expected level of performance
for each of the core indicators for each of the four years, the
Department may provide an additional one-year grant to the national
grantee. (OAA Sec. 514(a)(2)).
Sec. 641.495 When must a State compete its SCSEP award?
If a State grantee fails to meet its expected levels of performance
for three consecutive Program Years, the State must hold a full and
open competition, under such conditions as the Secretary may provide,
for the State SCSEP funds for the full Program Year following the
determination of consecutive failure. (OAA Sec. 513(d)(3)(B)(iii)).
The incumbent (failed) grantee is not eligible to compete. Other states
are also not eligible to compete for these funds. Sec. 641.400(b)(2).
Subpart E--Services to Participants
Sec. 641.500 Who is eligible to participate in the SCSEP?
Anyone who is at least 55 years old, unemployed (as defined in
Sec. 641.140), and who is a member of a family with an income that is
not more than 125 percent of the family income levels prepared by the
Department of Health and Human Services and approved by OMB (Federal
poverty guidelines) is eligible to participate in the SCSEP. (OAA Sec.
518(a)(3), (8)). A person with a disability may be treated as a
``family of one'' for income eligibility determination purposes at the
option of the applicant.
Sec. 641.505 When is eligibility determined?
Initial eligibility is determined at the time individuals apply to
participate in the SCSEP. Once individuals become SCSEP participants,
the grantee or sub-recipient is responsible for verifying their
continued eligibility at least once every 12 months. Grantees and sub-
recipients may also verify an individual's eligibility as circumstances
require, including instances when enrollment is delayed.
Sec. 641.507 How is applicant income computed?
An applicant's income is computed by calculating the includable
income received by the applicant during the 12-month period ending on
the date an individual submits an application to participate in the
SCSEP, or the annualized income for the 6-month period ending on the
application date. The Department requires grantees to use whichever
method is more favorable to the individual. (OAA Sec. 518(a)(4)).
Sec. 641.510 What types of income are included and excluded for
participant eligibility determinations?
(a) With certain exceptions, the Department will use the definition
of income from the U.S. Census Bureau's Current Population Survey (CPS)
as the standard for determining SCSEP applicant income eligibility.
(b) Any income that is unemployment compensation, a benefit
received under title XVI of the Social Security Act (42 U.S.C. 1381 et
seq.), a payment made to or on behalf of veterans or former members of
the Armed Forces under the laws administered by the Secretary of
Veterans Affairs, or 25 percent of a benefit received under title II of
the Social Security Act (42 U.S.C. 401 et seq.), must be excluded from
SCSEP income eligibility determinations. (OAA Sec. 518(a)(3)(A)).
(c) The Department has issued administrative guidance on income
[[Page 53822]]
inclusions and exclusions and procedures for determining SCSEP income
eligibility. This guidance may be updated periodically.
Sec. 641.512 May grantees and sub-recipients enroll otherwise
eligible job ready individuals and place them directly into
unsubsidized employment?
No, grantees and sub-recipients may not enroll as SCSEP
participants job-ready individuals who can be directly placed into
unsubsidized employment. Such individuals should be referred to an
employment provider, such as the One-Stop Center for job placement
assistance under WIA or another employment program.
Sec. 641.515 How must grantees and sub-recipients recruit and select
eligible individuals for participation in the SCSEP?
(a) Grantees and sub-recipients must develop methods of recruitment
and selection that assure that the maximum number of eligible
individuals have an opportunity to participate in the program. To the
extent feasible, grantees and sub-recipients should seek to enroll
minority and Indian eligible individuals, eligible individuals with
limited English proficiency, and eligible individuals with greatest
economic need, at least in proportion to their numbers in the area,
taking into consideration their rates of poverty and unemployment. (OAA
Sec. 502(b)(1)(M)).
(b) Grantees and sub-recipients must use the One-Stop delivery
system as one method in the recruitment and selection of eligible
individuals to ensure that the maximum number of eligible individuals
have an opportunity to participate in the project. (OAA Sec.
502(b)(1)(H)).
(c) States may enter into agreements among themselves to permit
cross-border enrollment of eligible participants. Such agreements
should cover both State and national grantee positions and must be
submitted to the Department for approval in the grant application or a
modification of the grant.
Sec. 641.520 Are there any priorities that grantees and sub-
recipients must use in selecting eligible individuals for participation
in the SCSEP?
(a) Yes, in selecting eligible individuals for participation in the
SCSEP, priority must be given to individuals who have one or more of
the following characteristics:
(1) Are 65 years of age or older;
(2) Have a disability;
(3) Have limited English proficiency or low literacy skills;
(4) Reside in a rural area;
(5) Are veterans (or, in some cases, spouses of veterans) for
purposes of Sec. 2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a)
as set forth in paragraph (b) of this section;
(6) Have low employment prospects;
(7) Have failed to find employment after using services provided
through the One-Stop delivery system; or
(8) Are homeless or are at risk for homelessness.
(OAA Sec. 518(b)).
(b) Section 2(a) of the Jobs for Veterans Act creates a priority
for service for veterans (and, in some cases, spouses of veterans) who
otherwise meet the program eligibility criteria for the SCSEP. 38
U.S.C. 4215(a). Priority is extended to veterans. Priority is also
extended to the spouse of a veteran who died of a service-connected
disability; the spouse of a member of the Armed Forces on active duty
who has been listed for a total of more than 90 days as missing in
action, captured in the line of duty by a hostile force, or forcibly
detained by a foreign government or power; the spouse of any veteran
who has a total disability resulting from a service-connected
disability; and the spouse of any veteran who died while a disability
so evaluated was in existence.
(c) Grantees and sub-recipients must apply these priorities in the
following order:
(1) Persons who qualify as a veteran or qualified spouse under
Sec. 2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a), and who
possess at least one of the other priority characteristics;
(2) Persons who qualify as a veteran or qualified spouse under
Sec. 2(a) of the Jobs for Veterans Act, 38 U.S.C. 4215(a), who do not
possess any other of the priority characteristics;
(3) Persons who do not qualify as a veteran or qualified spouse
under Sec. 2(a) of the Jobs for Veterans Act (non-veterans), and who
possess at least one of the other priority characteristics.
Sec. 641.535 What services must grantees and sub-recipients provide
to participants?
(a) When individuals are selected for participation in the SCSEP,
the grantee or sub-recipient is responsible for:
(1) Providing orientation to the SCSEP, including information on
project goals and objectives, community service assignments, training
opportunities, available supportive services, the availability of a
free physical examination, participant rights and responsibilities, and
permitted and prohibited political activities;
(2) (i) Assessing participants' work history, skills and interests,
talents, physical capabilities, aptitudes, needs for supportive
services, occupational preferences, training needs, potential for
performing community service assignments, and potential for transition
to unsubsidized employment;
(ii) Performing an initial assessment upon program entry, unless an
assessment has already been performed under title I of WIA as provided
in Sec. 641.230. Subsequent assessments may be made as necessary, but
must be made no less frequently than two times during a twelve month
period (including the initial assessment);
(3)(i) Using the information gathered during the initial assessment
to develop an IEP that includes an appropriate employment goal for each
participant, except that if an assessment has already been performed
and an IEP developed under title I of WIA, the WIA assessment and IEP
will satisfy the requirement for a SCSEP assessment and IEP as provided
in Sec. 641.230;
(ii) Updating the IEP as necessary to reflect information gathered
during the subsequent participant assessments (OAA Sec. 502(b)(1)(N));
(iii) The initial IEP should include an appropriate employment goal
for each participant. Thereafter, if the grantee determines that the
participant is not likely to obtain unsubsidized employment, the IEP
must reflect other approaches to help the participant achieve self-
sufficiency, including the transition to other services or programs.
(4) Placing participants in appropriate community service
assignments in the community in which they reside, or in a nearby
community (OAA Sec. 502(b)(1)(B));
(5) Providing or arranging for training identified in participants'
IEPs and consistent with the SCSEP's goal of unsubsidized employment
(OAA Sec. 502(a)(1), 502(b)(1)(B), 502(b)(1)(I), 502(b)(1)(N)(ii));
(6) Assisting participants in obtaining needed supportive services
identified in their IEPs (OAA Sec. 502(b)(1)(N));
(7) Providing appropriate services for participants, or referring
participants to appropriate services, through the One-Stop delivery
system established under WIA (OAA Sec. 502(b)(1)(O));
(8) Providing counseling on participants' progress in meeting the
goals and objectives identified in their IEPs, and in meeting their
supportive service needs (OAA Sec. 502(b)(1)(N)(iii));
(9) Providing participants with wages and benefits for time spent
in the community service assignment, orientation, and training (OAA
Sec. 502(b)(1)(I), 502(b)(1)(J), 502(c)(6)(A)(i)) (see also Sec. Sec.
641.565 and 641.540(f), addressing wages and benefits);
(10) Ensuring that participants have safe and healthy working
conditions at
[[Page 53823]]
their community service employment worksites (OAA Sec. 502(b)(1)(J));
(11) Assisting participants in obtaining unsubsidized employment,
including providing or arranging for employment counseling in support
of their IEPs;
(b) The Department may issue administrative guidance that clarifies
the requirements of paragraph (a).
(c) Grantees may not use SCSEP funds for job ready individuals who
only need job search assistance or job referral services. Grantees may
provide job search assistance and job club activities to participants
who are enrolled in the SCSEP and are assigned to community service
assignments. (See also Sec. 641.512).
Sec. 641.540 What types of training may grantees and sub-recipients
provide to SCSEP participants in addition to the training received at a
community service assignment?
(a) In addition to the training provided in a community service
assignment, grantees and sub-recipients may arrange skill training
provided that it:
(1) Is realistic and consistent with the participants' IEP;
(2) Makes the most effective use of the participant's skills and
talents; and
(3) Prepares the participant for unsubsidized employment.
(b) Training may be provided before or during a community service
assignment.
(c) Training may be in the form of lectures, seminars, classroom
instruction, individual instruction, online instruction, on-the-job
experiences. Training may be provided by the grantee or through other
arrangements, including but not limited to, arrangements with other
workforce development programs such as WIA. (OAA Sec.
502(c)(6)(A)(ii)).
(d) Grantees and sub-recipients are encouraged to obtain training
through locally available resources, including host agencies, at no
cost or reduced cost to the SCSEP.
(e) Grantees and sub-recipients may pay for participant training,
including the payment of reasonable costs of instructors, classroom
rental, training supplies, materials, equipment, and tuition. (OAA
Sec. 502(c)(6)(A)(ii)).
(f) Participants must be paid wages while in training, as described
in Sec. 641.565(a). (OAA Sec. 502(b)(1)(I)).
(g) As provided in Sec. 641.545, grantees and sub-recipients may
pay for costs associated with supportive services, such as
transportation, necessary to participate in training. (OAA Sec.
502(b)(1)(L)).
(h) Nothing in this section prevents or limits participants from
engaging in self-development training available through other sources,
at their own expense, during hours when not performing their community
service assignments.
Sec. 641.545 What supportive services may grantees and sub-recipients
provide to participants?
(a) Grantees and sub-recipients are required to assess all
participants' need for supportive services and to make every effort to
assist participants in obtaining needed supportive services. Grantees
and sub-recipients may provide directly or arrange for supportive
services that are necessary to enable an individual to successfully
participate in a SCSEP project, including but not limited to payment of
reasonable costs of transportation; health and medical services;
special job-related or personal counseling; incidentals such as work
shoes, badges, uniforms, eyeglasses, and tools; dependent care;
housing, including temporary shelter; needs-related payments; and
follow-up services. (OAA Sec. Sec. 502(c)(6)(A)(iv), 518(a)(7)).
(b) To the extent practicable, the grantee or sub-recipient should
arrange for the payment of these expenses from other resources.
(c) Grantees and sub-recipients are encouraged to contact placed
participants throughout the first 12 months following placement to
determine if they have the necessary supportive services to remain in
the job and to provide or arrange to provide such services if feasible.
Sec. 641.550 What responsibility do grantees and sub-recipients have
to place participants in unsubsidized employment?
For those participants whose IEPs include a goal of unsubsidized
employment, grantees and sub-recipients are responsible for working
with participants to ensure that the participants are receiving
services and taking actions designed to help them achieve this goal.
Grantees and sub-recipients must contact private and public employers
directly or through the One-Stop delivery system to develop or identify
suitable unsubsidized employment opportunities. They must also
encourage host agencies to assist participants in their transition to
unsubsidized employment, including unsubsidized employment with the
host agency.
Sec. 641.565 What policies govern the provision of wages and benefits
to participants?
(a) Wages.
(1)(i) Grantees and sub-recipients must pay participants the
highest applicable required wage for time spent in orientation,
training, and community service assignments.
(ii) SCSEP participants may be paid the highest applicable required
wage while receiving WIA intensive services.
(2) The highest applicable required wage is either the minimum wage
applicable under the Fair Labor Standards Act of 1938; the State or
local minimum wage for the most nearly comparable covered employment;
or the prevailing rate of pay for persons employed in similar public
occupations by the same employer.
(3) Grantees and sub-recipients must make any adjustments to
minimum wage rates payable to participants as may be required by
Federal, State, or local statute during the grant term.
(b) Benefits.
(1) Required benefits. Except as provided in paragraph (b)(2) of
this section, grantees and sub-recipients must ensure that participants
receive such benefits as are required by law.
(i) Grantees and sub-recipients must provide benefits uniformly to
all participants within a project or subproject, unless the Department
agrees to waive this provision due to a determination that such a
waiver is in the best interests of applicants, participants, and
project administration.
(ii) Grantees and sub-recipients must offer participants the
opportunity to receive physical examinations annually.
(A) Physical examinations are a benefit, and not an eligibility
criterion. The examining physician must provide, to the participant
only, a written report of the results of the examination.
(B) Participants may choose not to accept the physical examination.
In that case, the grantee or sub-recipient must document this refusal,
through a signed statement, within 60 workdays after commencement of
the community service assignment. Each year thereafter, grantees and
sub-recipients must offer the physical examination and document the
offer and any participant's refusal.
(C) Grantees and sub-recipients may use SCSEP funds to pay the
costs of physical examinations.
(iii) When participants are not covered by the State workers'
compensation law, the grantee or sub-recipient must provide
participants with workers' compensation benefits equal to those
provided by law for covered employment. OAA Sec. 504(b).
(iv) If required by State law, grantees/sub-recipients must provide
unemployment compensation coverage for participants.
[[Page 53824]]
(v) Grantees and sub-recipients must provide compensation for
scheduled work hours during which a host agency's business is closed
for a Federal holiday, which may be paid or in the form of rescheduled
work time.
(vi) Grantees and sub-recipients must provide necessary sick leave
that is not part of an accumulated sick leave program, which may be
paid or in the form of rescheduled work time.
(2) Prohibited wage and benefits costs.
(i) Participants may not carry over allowable benefits from one
Program Year to the next;
(ii) Grantees and sub-recipients may not provide payment or
otherwise compensate participants for unused benefits such as sick
leave or holidays;
(iii) Grantees and sub-recipients may not use SCSEP funds to cover
costs associated with the following participant benefits:
(A) Retirement. Grantees and sub-recipients may not use SCSEP funds
to provide contributions into a retirement system or plan, or to pay
the cost of pension benefits for program participants.
(B) Annual leave.
(C) Accumulated sick leave.
(D) Bonuses.
(OAA Sec. 502(c)(6)(A)(i)).
Sec. 641.570 Is there a time limit for participation in the program?
(a) Individual time limit. (1) Eligible individuals may participate
in the program for a maximum duration of 48 months in the aggregate
(whether or not consecutive), from the later of July 1, 2007, or the
date of the individual's enrollment in the program.
(2) At the time of enrollment, the grantee or sub-recipient must
inform the participant of this time limit and the possible extension
available under paragraph (b) of this section, and the grantee or sub-
recipient must provide for a system to transition participants to
unsubsidized employment or other assistance before the maximum
enrollment duration has expired. Provisions for transition must be
reflected in the participant's IEP.
(3) If requested by a grantee or sub-recipient, the Department will
authorize an extension for individuals who meet the criteria in
paragraph (b) of this section. Notwithstanding any individual
extensions granted, grantees and sub-recipients must ensure that
projects do not exceed the overall average participation cap for all
participants, as described in paragraph (c) of this section.
(b) Increased periods of individual participation. If requested by
a grantee, the Department will authorize increased periods of
participation for individuals who:
(1) Have a severe disability;
(2) Are frail or are age 75 or older;
(3) Meet the eligibility requirements related to age for, but do
not receive, benefits under title II of the Social Security Act (42
U.S.C. 401 et seq.);
(4) Live in an area with persistent unemployment and are
individuals with severely limited employment prospects; or
(5) Have limited English proficiency or low literacy skills.
(c) Average grantee participation cap. (1) Notwithstanding any
individual extension authorized under paragraph (b) of this section,
each grantee must manage its SCSEP project in such a way that the
grantee does not exceed an average participation cap for all
participants of 27 months (in the aggregate).
(2) A grantee may request, and the Department may authorize, an
extended average participation period of up to 36 months (in the
aggregate) for a particular project area in a given Program Year if the
Department determines that extenuating circumstances exist to justify
an extension, due to one more of the following factors:
(i) High rates of unemployment or of poverty or of participation in
the program of block grants to States for temporary assistance for
needy families established under part A of title IV of the Social
Security Act, in the areas served by a grantee, relative to other areas
of the State involved or the Nation;
(ii) Significant downturns in the economy of an area served by the
grantee or in the national economy;
(iii) Significant numbers or proportions of participants with one
or more barriers to employment, including ``most-in-need'' individuals
described in Sec. 641.710(a)(6), served by a grantee relative to such
numbers or proportions for grantees serving other areas of the State or
Nation;
(iv) Changes in Federal, State, or local minimum wage requirements;
or
(v) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
(3) For purposes of the average participation cap, each grantee
will be considered to be one project.
(d) Authorized break in participation. On occasion a participant
takes an authorized break in participation from the program, such as a
formal leave of absence necessitated by personal circumstances or a
break caused because a suitable community service assignment is not
available. Such an authorized break, if taken under a formal grantee
policy allowing such breaks and formally entered into the SCSEP
Performance and Results Quarterly Performance Reporting (SPARQ) system,
will not count toward the individual time limit described in paragraph
(a) or the average participation cap described in paragraph (c) of this
section.
(e) Administrative guidance. The Department will issue
administrative guidance detailing the process by which a grantee may
request increased periods of individual participation, and the process
by which a grantee may request an extension of the average
participation cap. The process will require that the determination of
individual participant extension requests is made in a fair and
equitable manner.
(f) Grantee authority. Grantees may limit the time of participation
for individuals to less than the 48 months described in paragraph (a)
of this section, if the grantee uniformly applies the lower
participation limit, and if the grantee submits a description of the
lower participation limit policy in its grant application or
modification of the grant and the Department approves the policy. (OAA
Sec. Sec. 502(b)(1)(C), 518(a)(3)(B)).
Sec. 641.575 May a grantee or sub-recipient establish a limit on the
amount of time its participants may spend at a host agency?
Yes, grantees and sub-recipients may establish limits on the amount
of time that participants spend at a particular host agency, and are
encouraged to rotate participants among different host agencies, or to
different assignments within the same host agency, as such rotations
may increase participants' skills development and employment
opportunities. Such limits must be established in the grant agreement
or modification of the grant, and approved by the Department. The
Department will not approve any limit that does not require an
individualized determination that rotation is in the best interest of
the participant and will further the acquisition of skills listed in
the IEP. Host agency rotations have no effect on either the individual
participation limit or the average participation cap.
Sec. 641.577 Is there a limit on community service assignment hours?
While there is no specific limit on the number of hours that may be
worked in a community service assignment, a community service
assignment must be a part-time position. However, the Department
strongly encourages grantees to use 1,300 hours as a
[[Page 53825]]
benchmark and good practice for monitoring community service hours.
Sec. 641.580 Under what circumstances may a grantee or sub-recipient
terminate a participant?
(a) If, at any time, a grantee or sub-recipient determines that a
participant was incorrectly declared eligible as a result of false
information knowingly given by that individual, the grantee or sub-
recipient must give the participant immediate written notice explaining
the reason(s) for termination and may terminate the participant 30 days
after it has provided the participant with written notice.
(b) If, during eligibility verification under Sec. 641.505, a
grantee or sub-recipient finds a participant to be no longer eligible
for enrollment, the grantee or sub-recipient must give the participant
written notice explaining the reason(s) for termination and may
terminate the participant 30 days after it has provided the participant
with written notice.
(c) If, at any time, the grantee or sub-recipient determines that
it incorrectly determined a participant to be eligible for the program
through no fault of the participant, the grantee or sub-recipient must
give the participant immediate written notice explaining the reason(s)
for termination and may terminate the participant 30 days after it has
provided the participant with written notice.
(d) A grantee or sub-recipient may terminate a participant for
cause. Grantees must include their policies concerning for-cause
terminations in the grant application and obtain the Department's
approval. The grantee or sub-recipient must give the participant
written notice explaining the reason(s) for termination and may
terminate the participant 30 days after it has provided the participant
with written notice.
(e) A grantee or sub-recipient may terminate a participant if the
participant refuses to accept a reasonable number of job offers or
referrals to unsubsidized employment consistent with the IEP and there
are no extenuating circumstances that would hinder the participant from
moving to unsubsidized employment. The grantee or sub-recipient must
give the participant written notice explaining the reason(s) for
termination and may terminate the participant 30 days after it has
provided the participant with written notice.
(f) When a grantee or sub-recipient makes an unfavorable
determination of enrollment eligibility under paragraph (b) or (c) of
this section, it should refer the individual to other potential sources
of assistance, such as the One-Stop delivery system. When a grantee or
sub-recipient terminates a participant under paragraph (d) or (e) of
this section, it may refer the individual to other potential sources of
assistance, such as the One-Stop delivery system.
(g) Grantees and sub-recipients must provide each participant at
the time of enrollment with a written copy of its policies for
terminating a participant for cause or otherwise, and must verbally
review those policies with each participant.
(h) Any termination, as described in paragraphs (a) through (e) of
this section, must be consistent with administrative guidelines issued
by the Department and the termination notice must inform the
participant of the grantee's grievance procedure, and the termination
must be subject to the applicable grievance procedures described in
Sec. 641.910.
(i) Participants may not be terminated from the program solely on
the basis of their age. Grantees and sub-recipients may not impose an
upper age limit for participation in the SCSEP.
Sec. 641.585 What is the employment status of SCSEP participants?
(a) Participants are not considered Federal employees solely as a
result of their participation in the SCSEP. (OAA Sec. 504(a)).
(b) Grantees must determine whether or not a participant qualifies
as an employee of the grantee, sub-recipient, local project, or host
agency, under applicable law. Responsibility for this determination
rests with the grantee even when a Federal agency is a grantee or host
agency.
Subpart F--Pilot, Demonstration, and Evaluation Projects
Sec. 641.600 What is the purpose of the pilot, demonstration, and
evaluation projects authorized under Sec. 502(e) of the OAA?
The purpose of the pilot, demonstration, and evaluation projects
authorized under Sec. 502(e) of the OAA is to develop and implement
techniques and approaches, and to demonstrate the effectiveness of
these techniques and approaches, in addressing the employment and
training needs of individuals eligible for SCSEP.
Sec. 641.610 How are pilot, demonstration, and evaluation projects
administered?
The Department may enter into agreements with States, public
agencies, nonprofit private organizations, or private business
concerns, as may be necessary, to conduct pilot, demonstration, and
evaluation projects.
Sec. 641.620 How may an organization apply for pilot, demonstration,
and evaluation project funding?
Organizations applying for pilot, demonstration, and evaluation
project funding must follow the instructions issued by the Department.
Instructions for these unique funding opportunities are published in
TEGLs available at http://www.doleta.gov/Seniors.
Sec. 641.630 What pilot, demonstration, and evaluation project
activities are allowable under Sec. 502(e)?
Allowable pilot, demonstration and evaluation projects include:
(a) Activities linking businesses and eligible individuals,
including activities providing assistance to participants transitioning
from subsidized activities to private sector employment;
(b) Demonstration projects and pilot projects designed to:
(1) Attract more eligible individuals into the labor force;
(2) Improve the provision of services to eligible individuals under
One-Stop delivery systems established under title I of WIA;
(3) Enhance the technological skills of eligible individuals; and
(4) Provide incentives to SCSEP grantees for exemplary performance
and incentives to businesses to promote their participation in the
SCSEP;
(c) Demonstration projects and pilot projects, as described in
paragraph (b) of this section, for workers who are older individuals
(but targeted to eligible individuals) only if such demonstration
projects and pilot projects are designed to assist in developing and
implementing techniques and approaches in addressing the employment and
training needs of eligible individuals;
(d) Provision of training and technical assistance to support a
SCSEP project;
(e) Dissemination of best practices relating to employment of
eligible individuals; and
(f) Evaluation of SCSEP activities.
Sec. 641.640 Should pilot, demonstration, and evaluation project
entities coordinate with SCSEP grantees and sub-recipients, including
area agencies on aging?
(a) To the extent practicable, the Department will provide an
opportunity, before the development of a demonstration or pilot
project, for the appropriate area agency on aging and SCSEP grantees
and sub-grantees to submit comments on the project in order to ensure
coordination of SCSEP activities with activities carried out under this
subpart.
(b) To the extent practicable, entities carrying out pilot,
demonstration, and evaluation projects must consult with
[[Page 53826]]
appropriate area agencies on aging, SCSEP grantees and sub-grantees,
and other appropriate agencies and entities to promote coordination of
SCSEP and pilot, demonstration, and evaluation activities. (OAA Sec.
502(e)).
Subpart G--Performance Accountability
Sec. 641.700 What performance measures/indicators apply to SCSEP
grantees?
(a) Indicators of performance. There are currently eight
performance measures, of which six are core indicators and two are
additional indicators. Core indicators (defined in Sec. 641.710) are
subject to goal-setting and corrective action (described in Sec.
641.720); that is, performance level goals for each core indicator must
be agreed upon between the Department and each grantee before the start
of each program year, and if a grantee fails to meet the performance
level goals for the core indicators, that grantee is subject to
corrective action. Additional indicators (defined in Sec. 641.710) are
not subject to goal-setting and are, therefore, also not subject to
corrective action.
(b) Core Indicators. Section 513(b)(1) of the 2006 OAA establishes
the following core indicators of performance:
(1) Hours (in the aggregate) of community service employment;
(2) Entry into unsubsidized employment;
(3) Retention in unsubsidized employment for six months;
(4) Earnings;
(5) The number of eligible individuals served; and
(6) The number of most-in-need individuals served (the number of
participating individuals described in Sec. 518(a)(3)(B)(ii) or (b)(2)
of the OAA).
(c) Additional indicators. Section 513(b)(2) of the 2006 OAA
establishes the following additional indicators of performance:
(1) Retention in unsubsidized employment for one year; and
(2) Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided.
(3) Any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance.
(d) Affected entities. The core indicators of performance and
additional indicators of performance are applicable to each grantee
without regard to whether the grantee operates the program directly or
through sub-contracts, sub-grants, or agreements with other entities.
Grantees must assure that their sub-grantees and lower-tier sub-
grantees are collecting and reporting program data.
(e) Required evaluation and reporting. An agreement to be evaluated
on the core indicators of performance and to report information on the
additional indicators of performance is a requirement for application
for, and is a condition of, all SCSEP grants.
Sec. 641.710 How are the performance indicators defined?
(a) The core indicators are defined as follows:
(1) ``Hours of community service employment'' is defined as the
total number of hours of community service provided by SCSEP
participants divided by the number of hours of community service funded
by the grantee's grant, after adjusting for differences in minimum wage
among the States and areas. Paid training hours are excluded from this
measure.
(2) ``Entry into unsubsidized employment'' is defined by the
formula: Of those who are not employed at the date of participation:
The number of participants who are employed in the first quarter after
the exit quarter divided by the number of adult participants who exit
during the quarter.
(3) ``Retention in unsubsidized employment for six months'' is
defined by the formula: Of those who are employed in the first quarter
after the exit quarter: The number of adult participants who are
employed in both the second and third quarters after the exit quarter
divided by the number of adult participants who exit during the
quarter.
(4) ``Earnings'' is defined by the formula: Of those participants
who are employed in the first, second and third quarters after the exit
quarter: Total earnings in the second quarter plus total earnings in
the third quarter after the exit quarter divided by the number of
participants who exit during the quarter.
(5) ``The number of eligible individuals served'' is defined as the
total number of participants served divided by a grantee's authorized
number of positions, after adjusting for differences in minimum wage
among the States and areas.
(6) ``Most-in-need'' or the number of participating individuals
described in Sec. 518(a)(3)(B)(ii) or (b)(2) is defined by counting
the total number of the following characteristics for all participants
and dividing by the number of participants served. Participants are
characterized as most-in-need if they:
(i) Have a severe disability;
(ii) Are frail;
(iii) Are age 75 or older;
(iv) Meet the eligibility requirements related to age for, but do
not receive, benefits under title II of the Social Security Act (42
U.S.C. 401 et seq.);
(v) Live in an area with persistent unemployment and are
individuals with severely limited employment prospects;
(vi) Have limited English proficiency;
(vii) Have low literacy skills;
(viii) Have a disability;
(ix) Reside in a rural area;
(x) Are veterans;
(xi) Have low employment prospects;
(xii) Have failed to find employment after utilizing services
provided under title I of the Workforce Investment Act of 1998 (29
U.S.C. 2801 et seq.); or
(xiii) Are homeless or at risk for homelessness.
(b) The additional indicators are defined as follows:
(1) ``Retention in unsubsidized employment for 1 year'' is defined
by the formula: Of those who are employed in the first quarter after
the exit quarter: The number of participants who are employed in the
fourth quarter after the exit quarter divided by the number of
participants who exit during the quarter.
(2) ``Satisfaction of the participants, employers, and their host
agencies with their experiences and the services provided'' is defined
as the results of customer satisfaction surveys administered to each of
these three customer groups. The Department will prescribe the content
of the surveys.
Sec. 641.720 How will the Department and grantees initially determine
and then adjust expected levels of performance for the core performance
measures?
(a) Initial agreement. Before the beginning of each Program Year,
the Department and each grantee will undertake to agree upon expected
levels of performance for each core indicator, except as provided in
paragraph (b) of Sec. 641.730.
(1) As a first step in this process, the Department proposes a
performance level for each core indicator, taking into account any
statutory performance requirements, the need to promote continuous
improvement in the program overall and in each grantee, the grantee's
past performance, and the statutory adjustment factors articulated in
paragraph (b) of this section.
(2) A grantee may request a revision to the Department's initial
performance level goal determination. The request must be based on data
that supports the revision request. The data supplied by the grantee at
this stage may concern the statutory adjustment factors articulated in
paragraph (b) of this section, but is not limited to those factors; it
is permissible for a grantee to supply data
[[Page 53827]]
on ``other appropriate factors as determined by the Secretary.'' (OAA
Sec. 513(a)(2)(C)).
(3) The Department may revise the performance level goal in
response to the data provided. The Department then sets the expected
levels of performance for the core indicators. At this point, agreement
is reached by the parties and funds may be awarded. If a grantee does
not agree with the offered expected level of performance, agreement is
not reached and no funds may be awarded. A grantee may submit comments
to the Department about the grantee's satisfaction with the expected
levels of performance.
(4) Funds may not be awarded under the grant until such agreement
is reached.
(5) At the conclusion of performance level negotiations with all
grantees, the Department will make available for public review the
final negotiated expected levels of performance for each grantee,
including any comments submitted by the grantee about the grantee's
satisfaction with the negotiated levels.
(6) The minimum percentage for the expected level of performance
for the entry into unsubsidized employment core indicator is:
(i) 21 percent for Program Year 2007;
(ii) 22 percent for Program Year 2008;
(iii) 23 percent for Program Year 2009;
(iv) 24 percent for Program Year 2010; and
(v) 25 percent for Program Year 2011.
(b) Adjustment during the Program Year. After the Department and
grantees reach agreement on the core indicator levels, those levels may
only be revised in response to a request from a grantee based on data
supporting one or more of the following statutory adjustment factors:
(1) High rates of unemployment or of poverty or of participation in
the program of block grants to States for temporary assistance for
needy families established under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.), in the areas served by a grantee,
relative to other areas of the State involved or Nation.
(2) Significant downturns in the economy of the areas served by the
grantee or in the national economy.
(3) Significant numbers or proportions of participants with one or
more barriers to employment, including individuals described in Sec.
518(a)(3)(B)(ii) or (b)(2) of the 2006 OAA (most-in-need), served by a
grantee relative to such numbers or proportions for grantees serving
other areas of the State or Nation.
(4) Changes in Federal, State, or local minimum wage requirements.
(5) Limited economies of scale for the provision of community
service employment and other authorized activities in the areas served
by the grantee.
Sec. 641.730 How will the Department assist grantees in the
transition to the new core performance indicators?
(a) General transition provision. As soon as practicable after July
1, 2007, the Department will determine if a SCSEP grantee has, for
Program Year 2006, met the expected levels of performance for the
Program Year 2007. If the Department determines that the grantee failed
to meet Program Year 2007 goals in Program Year 2006, the Department
will provide technical assistance to help the grantee meet those
expected levels of performance in Program Year 2007.
(b) Exception for most-in-need for Program Year 2007. Because the
2006 OAA Amendments expanded the list of most-in-need characteristics,
neither the Department nor the grantees have sufficient data to set a
goal for measuring performance. Accordingly, Program Year 2007 will be
treated as a baseline year for the most-in-need indicator so that the
grantees and the Department may collect sufficient data to set a
meaningful goal for this measure for Program Year 2008.
Sec. 641.740 How will the Department determine whether a grantee
fails, meets, or exceeds the expected levels of performance for the
core indicators and what will be the consequences of failing to meet
expected levels of performance?
(a) Aggregate calculation of performance. Not later than 120 days
after the end of each Program Year, the Department will determine if a
national grantee has met the expected levels of performance (including
any adjustments to such levels) by aggregating the grantee's core
indicators. The aggregate is calculated by combining the percentage of
goal achieved on each of the individual core indicators to obtain an
average score. A grantee will fail to meet its performance measures
when it is does not meet 80 percent of the agreed-upon level of
performance for the aggregate of all the core indicators. Performance
in the range of 80 to 100 percent constitutes meeting the level for the
core performance measures. Performance in excess of 100 percent
constitutes exceeding the level for the core performance measures.
(b) Consequences--
(1) National grantees. (i) If the Department determines that a
national grantee fails to meet the expected levels of performance in a
Program Year, the Department, after each year of such failure, will
provide technical assistance and will require such grantee to submit a
corrective action plan not later than 160 days after the end of the
Program Year.
(ii) The corrective action plan must detail the steps the grantee
will take to meet the expected levels of performance in the next
Program Year.
(iii) Any national grantee that has failed to meet the expected
levels of performance for 4 consecutive years (beginning with Program
Year 2007) will not be allowed to compete in the subsequent grant
competition, but may compete in the next grant competition after that
subsequent competition.
(2) State Grantees. (i) If the Department determines that a State
fails to meet the expected levels of performance, the Department, after
each year of such failure, will provide technical assistance and will
require the State to submit a corrective action plan not later than 160
days after the end of the Program Year.
(ii) The corrective action plan must detail the steps the State
will take to meet the expected levels of performance in the next
Program Year.
(iii) If the Department determines that the State fails to meet the
expected levels of performance for 3 consecutive Program Years
(beginning with Program Year 2007), the Department will require the
State to conduct a competition to award the funds allotted to the State
under Sec. 506(e) of the OAA for the first full Program Year following
the Department's determination. The new grantee will be responsible for
administering the SCSEP in the State and will be subject to the same
requirements and responsibilities as had been the State grantee.
(c) Evaluation. The Department will annually evaluate, publish and
make available for public review, information on the actual performance
of each grantee with respect to the levels achieved for each of the
core indicators of performance, compared to the expected levels of
performance, and the actual performance of each grantee with respect to
the levels achieved for each of the additional indicators of
performance. The results of the Department's annual evaluation will be
reported to Congress.
Sec. 641.750 Will there be performance-related incentives?
The Department is authorized by Sec. Sec. 502(e)(2)(B)(iv) and
517(c)(1) of the 2006 OAA to use recaptured SCSEP funds to provide
incentive awards. The Department will exercise this authority at its
discretion.
[[Page 53828]]
Subpart H--Administrative Requirements
Sec. 641.800 What uniform administrative requirements apply to the
use of SCSEP funds?
(a) SCSEP recipients and sub-recipients must follow the uniform
administrative requirements and allowable cost requirements that apply
to their type of organization. (OAA Sec. 503(f)(2)).
(b) Governments, State, local, and Indian tribal organizations that
receive SCSEP funds under grants or cooperative agreements must follow
the common rule implementing OMB Circular A-102, ``Grants and
Cooperative Agreements with State and Local Governments'' (10/07/1994)
(further amended 08/29/1997), codified at 29 CFR part 97.
(c) Nonprofit and commercial organizations, institutions of higher
education, hospitals, other nonprofit organizations, and commercial
organizations that receive SCSEP funds under grants or cooperative
agreements must follow the common rule implementing OMB Circular A-110,
codified at 29 CFR part 95.
Sec. 641.803 What is program income?
Program income, as described in 29 CFR 97.25 (State and local
governments) and 29 CFR 95.2(bb) (non-profit and commercial
organizations), is income earned by the recipient or sub-recipient
during the grant period that is directly generated by an allowable
activity supported by grant funds or earned as a result of the award of
grant funds. Program income includes income earned from license fees
and royalties for copyrighted material, patents, patent applications,
trademarks, and inventions produced under an award. (See 29 CFR
95.24(e) (non-profit and commercial organizations) and 29 CFR 97.25(e)
(State and local governments)). Costs of generating SCSEP program
income may be deducted from gross income received by SCSEP recipients
and sub-recipients to determine SCSEP program income earned or
generated provided these costs have not been charged to the SCSEP.
Sec. 641.806 How must SCSEP program income be used?
(a) SCSEP recipients that earn or generate program income during
the grant period must add the program income to the Federal and non-
Federal funds committed to the SCSEP and must use it to further the
purposes of the program and in accordance with the terms and conditions
of the grant award. Program income may only be spent during the grant
period in which it was earned (except as provided for in paragraph
(b)), as provided in 29 CFR 95.24(a) (non-profit and commercial
organizations) or 29 CFR 97.25(g) (2) (State and local governments), as
applicable.
(b)(1) Except as provided for in paragraph (b)(2), recipients that
continue to receive a SCSEP grant from the Department must spend
program income earned from SCSEP-funded activities in the Program Year
in which the earned income was received.
(b)(2) Any program income remaining at the end of the Program Year
in which it was earned will remain available for expenditure in the
subsequent Program Year only. Any program income remaining after the
second Program Year must be remitted to the Department.
(c) Recipients that do not continue to receive a SCSEP grant from
the Department must remit unexpended program income earned during the
grant period from SCSEP funded activities to the Department at the end
of the grant period. These recipients have no obligation to the
Department for program income earned after the end of the grant period.
Sec. 641.809 What non-Federal share (matching) requirements apply to
the use of SCSEP funds?
(a) The Department will pay no more than 90 percent of the total
cost of activities carried out under a SCSEP grant. (OAA sec.
502(c)(1)).
(b) All SCSEP recipients, including Federal agencies if there is no
statutory exemption, must provide or ensure that at least 10 percent of
the total cost of activities carried out under a SCSEP grant (non-
Federal share of costs) consists of allowable costs paid for with non-
Federal funds, except as provided in paragraphs (e) and (f) of this
section.
(c) Recipients must determine the non-Federal share of costs in
accordance with 29 CFR 97.24 for governmental units, or 29 CFR 95.23
for nonprofit and commercial organizations.
(d) The non-Federal share of costs may be provided in cash, or in-
kind, or a combination of the two. (OAA Sec. 502(c)(2)).
(e) A recipient may not require a sub-recipient or host agency to
provide non-Federal resources for the use of the SCSEP project as a
condition of entering into a sub-recipient or host agency relationship.
This does not preclude a sub-recipient or host agency from voluntarily
contributing non-Federal resources for the use of the SCSEP project.
(f) The Department may pay all of the costs of activities in an
emergency or disaster project or a project in an economically
distressed area. (OAA Sec. 502(c)(1)(B)).
Sec. 641.812 What is the period of availability of SCSEP funds?
(a) Except as provided in Sec. 641.815, recipients must expend
SCSEP funds during the Program Year for which they are awarded (July 1-
June 30). (OAA Sec. 517(b)).
(b) SCSEP recipients must ensure that no sub-agreement provides for
the expenditure of any SCSEP funds before the start of the grant year,
or after the end of the grant period, except as provided in Sec.
641.815.
Sec. 641.815 May the period of availability be extended?
SCSEP recipients may request in writing, and the Department may
grant, an extension of the period during which SCSEP funds may be
obligated or expended. SCSEP recipients requesting an extension must
justify that an extension is necessary. (OAA Sec. 517(b)). The
Department will notify recipients in writing of the approval or
disapproval of any such requests.
Sec. 641.821 What audit requirements apply to the use of SCSEP funds?
(a) Recipients and sub-recipients receiving Federal awards of SCSEP
funds must follow the audit requirements in paragraphs (b) and (c) of
this section that apply to their type of organization. As used here,
Federal awards of SCSEP funds include Federal financial assistance and
Federal cost-reimbursement contracts received directly from the
Department or indirectly under awards by SCSEP recipients or higher-
tier sub-recipients. (OAA Sec. 503(f)(2)).
(b) All governmental and nonprofit organizations that are
recipients or sub-recipients must follow the audit requirements of OMB
Circular A-133. These requirements are codified at 29 CFR parts 96 and
99 and referenced in 29 CFR 97.26 for governmental organizations and in
29 CFR 95.26 for institutions of higher education, hospitals, and other
nonprofit organizations.
(c) (1) The Department is responsible for audits of SCSEP
recipients that are commercial organizations.
(2) Commercial organizations that are sub-recipients under the
SCSEP and that expend more than the minimum level specified in OMB
Circular A-133 ($500,000, for fiscal years ending after December 31,
2003) must have either an organization-wide audit or a program-specific
financial and compliance audit
[[Page 53829]]
conducted in accordance with OMB Circular A-133.
Sec. 641.824 What lobbying requirements apply to the use of SCSEP
funds?
SCSEP recipients and sub-recipients must comply with the
restrictions on lobbying codified in the Department's regulations at 29
CFR part 93. (Also refer to Sec. 641.850(c), ``Lobbying costs.'')
Sec. 641.827 What general nondiscrimination requirements apply to the
use of SCSEP funds?
(a) SCSEP recipients, sub-recipients, and host agencies are
required to comply with the nondiscrimination provisions codified in
the Department's regulations at 29 CFR parts 31 and 32 and the
provisions on the equal treatment of religious organizations at 29 CFR
part 2 subpart D.
(b) Recipients and sub-recipients of SCSEP funds are required to
comply with the nondiscrimination provisions codified in the
Department's regulations at 29 CFR part 37 if:
(1) The recipient:
(i) Is a One-Stop partner listed in Sec. 121(b) of WIA, and
(ii) Operates programs and activities that are part of the One-Stop
delivery system established under WIA; or
(2) The recipient otherwise satisfies the definition of
``recipient'' in 29 CFR 37.4.
(c) Recipients must ensure that participants are provided
informational materials relating to age discrimination and/or their
rights under the Age Discrimination in Employment Act of 1975 that are
distributed to recipients by the Department as required by Sec.
503(b)(3) of the OAA.
(d) Questions about or complaints alleging a violation of the
nondiscrimination requirements cited in this section may be directed or
mailed to the Director, Civil Rights Center, U.S. Department of Labor,
Room N-4123, 200 Constitution Avenue, NW., Washington, DC, 20210, for
processing. (See Sec. 641.910(d)).
(e) The specification of any right or protection against
discrimination in paragraphs (a) through (d) of this section must not
be interpreted to exclude or diminish any other right or protection
against discrimination in connection with a SCSEP project that may be
available to any participant, applicant for participation, or other
individual under any applicable Federal, State, or local laws
prohibiting discrimination, or their implementing regulations.
Sec. 641.833 What policies govern political patronage?
(a) A recipient or sub-recipient must not select, reject, promote,
or terminate an individual based on political services provided by the
individual or on the individual's political affiliations or beliefs. In
addition, as provided in Sec. 641.827(b), certain recipients and sub-
recipients of SCSEP funds are required to comply with WIA
nondiscrimination regulations in 29 CFR part 37. These regulations
prohibit discrimination on the basis of political affiliation or
belief.
(b) A recipient or sub-recipient must not provide, or refuse to
provide, funds to any sub-recipient, host agency, or other entity based
on political affiliation.
(c) SCSEP recipients must ensure that every entity that receives
SCSEP funds through the recipient is applying the policies stated in
paragraphs (a) and (b) of this section.
Sec. 641.836 What policies govern political activities?
(a) No project under title V of the OAA may involve political
activities. SCSEP recipients must ensure compliance with the
requirements and prohibitions involving political activities described
in paragraphs (b) and (c) of this section.
(b) State and local employees involved in the administration of
SCSEP activities may not engage in political activities prohibited
under the Hatch Act (5 U.S.C. chapter 15), including:
(1) Seeking partisan elective office;
(2) Using official authority or influence for the purpose of
affecting elections, nominations for office, or fund-raising for
political purposes. (5 U.S.C. 1502).
(c) SCSEP recipients must provide all persons associated with SCSEP
activities with a written explanation of allowable and unallowable
political activities under the Hatch Act. A notice explaining these
allowable and unallowable political activities must be posted in every
workplace in which SCSEP activities are conducted. The Department will
provide the form and content of the notice and explanatory material by
administrative issuance. (OAA Sec. 502(b)(l)(P)).
(d) SCSEP recipients must ensure that:
(1) No SCSEP participants or staff persons engage in partisan or
nonpartisan political activities during hours for which they are being
paid with SCSEP funds.
(2) No participants or staff persons engage in partisan political
activities in which such participants or staff persons represent
themselves as spokespersons for the SCSEP.
(3) No participants are employed or out-stationed in the offices of
a Member of Congress, a State or local legislator, or on the staff of
any legislative committee.
(4) No participants are employed or out-stationed in the immediate
offices of any elected chief executive officer of a State or unit of
general government, except that:
(i) Units of local government may serve as host agencies for
participants, provided that their assignments are non-political; and
(ii) While assignments may place participants in such offices, such
assignments actually must be concerned with program and service
activities and not in any way involved in political functions.
(5) No participants are assigned to perform political activities in
the offices of other elected officials. Placement of participants in
such offices in non-political assignments is permissible, however,
provided that:
(i) SCSEP recipients develop safeguards to ensure that participants
placed in these assignments are not involved in political activities;
and
(ii) These safeguards are described in the grant agreement and are
approved by the Department and are subject to review and monitoring by
the SCSEP recipient and by the Department.
Sec. 641.839 What policies govern union organizing activities?
Recipients must ensure that SCSEP funds are not used in any way to
assist, promote, or deter union organizing.
Sec. 641.841 What policies govern nepotism?
(a) SCSEP recipients must ensure that no recipient or sub-recipient
hires, and no host agency serves as a worksite for, a person who works
in a SCSEP community service assignment if a member of that person's
immediate family is engaged in a decision-making capacity (whether
compensated or not) for that project, subproject, recipient, sub-
recipient, or host agency. The Department may exempt worksites on
Native American reservations and in rural areas from this requirement
provided that adequate justification can be documented, such as that no
other persons are eligible and available for participation in the
program.
(b) To the extent that an applicable State or local legal nepotism
requirement is more restrictive than this provision, SCSEP recipients
must ensure that the more restrictive requirement is followed.
(c) For purposes of this section, ``immediate family'' means wife,
husband, son, daughter, mother, father, brother, sister, son-in-law,
daughter-in-law, mother- in-law, father-in-law, brother-in-law, sister-
in-law, aunt,
[[Page 53830]]
uncle, niece, nephew, stepparent, stepchild, grandparent, or
grandchild.
Sec. 641.844 What maintenance of effort requirements apply to the use
of SCSEP funds?
(a) A community service assignment for a participant under title V
of the OAA is permissible only when specific maintenance of effort
requirements are met.
(b) Each project funded under title V:
(1) Must not reduce the number of employment opportunities or
vacancies that would otherwise be available to individuals not
participating in the program;
(2) Must not displace currently employed workers (including partial
displacement, such as a reduction in the hours of non-overtime work,
wages, or employment benefits);
(3) Must not impair existing contracts or result in the
substitution of Federal funds for other funds in connection with work
that would otherwise be performed; and
(4) Must not employ or continue to employ any eligible individual
to perform the same work or substantially the same work as that
performed by any other individual who is on layoff. (OAA Sec.
502(b)(1)(G)).
Sec. 641.847 What uniform allowable cost requirements apply to the
use of SCSEP funds?
(a) General. Unless specified otherwise in this part or the grant
agreement, recipients and sub-recipients must follow the uniform
allowable cost requirements that apply to their type of organization.
For example, a local government sub-recipient receiving SCSEP funds
from a nonprofit organization must use the allowable cost requirements
for governmental organizations in OMB Circular A-87. The Department's
regulations at 29 CFR 95.27 (non-profit and commercial organizations)
and 29 CFR 97.22 (State and local governments) identify the Federal
principles for determining allowable costs that each kind of
organization must follow. The applicable Federal principles for each
kind of organization are described in paragraphs (b)(1) through (b)(5)
of this section. (OAA Sec. 503(f)(2)).
(b) Allowable costs/cost principles.
(1) Allowable costs for State, local, and Indian tribal government
organizations must be determined under OMB Circular A-87, ``Cost
Principles for State, Local and Indian Tribal Governments.''
(2) Allowable costs for nonprofit organizations must be determined
under OMB Circular A-122, ``Cost Principles for Non-Profit
Organizations.''
(3) Allowable costs for institutions of higher education must be
determined under OMB Circular A-21, ``Cost Principles for Educational
Institutions.''
(4) Allowable costs for hospitals must be determined in accordance
with appendix E of 45 CFR part 74, ``Principles for Determining Costs
Applicable to Research and Development Under Grants and Contracts with
Hospitals.''
(5) Allowable costs for commercial organizations and those
nonprofit organizations listed in Attachment C to OMB Circular A-122
must be determined under the provisions of the Federal Acquisition
Regulation (FAR), at 48 CFR part 31.
Sec. 641.850 Are there other specific allowable and unallowable cost
requirements for the SCSEP?
(a) Yes, in addition to the generally applicable cost principles in
Sec. 641.847(b), the cost principles in paragraphs (b) through (g) of
this section apply to SCSEP grants.
(b) Claims against the Government. For all types of entities, legal
expenses for the prosecution of claims against the Federal Government,
including appeals to an Administrative Law Judge, are unallowable.
(c) Lobbying costs. In addition to the prohibition contained in 29
CFR part 93, SCSEP funds must not be used to pay any salaries or
expenses related to any activity designed to influence legislation or
appropriations pending before the Congress of the United States or any
State legislature. (See Sec. 641.824).
(d) One-Stop Costs. Costs of participating as a required partner in
the One-Stop delivery system established in accordance with Sec.
134(c) of the WIA are allowable, provided that SCSEP services and
funding are provided in accordance with the MOU required by the WIA and
OAA Sec. 502(b)(1)(O), and costs are determined in accordance with the
applicable cost principles. The costs of services provided by the
SCSEP, including those provided by participants/enrollees, may comprise
a portion or the total of a SCSEP project's proportionate share of One-
Stop costs.
(e) Building repairs and acquisition costs. Except as provided in
this paragraph and as an exception to the allowable cost principles in
Sec. 641.847(b), no SCSEP funds may be used for the purchase,
construction, or renovation of any building except for the labor
involved in:
(1) Minor remodeling of a public building necessary to make it
suitable for use for project purposes;
(2) Minor repair and rehabilitation of publicly used facilities for
the general benefit of the community; and
(3) Repair and rehabilitation by participants of housing occupied
by persons with low incomes who are declared eligible for such services
by authorized local agencies.
(f) Accessibility and reasonable accommodation. Recipients and sub-
recipients may use SCSEP funds to meet their obligations under Sec.
504 of the Rehabilitation Act of 1973, as amended, and the Americans
with Disabilities Act of 1990, as amended, and any other applicable
Federal disability nondiscrimination laws, to provide physical and
programmatic accessibility and reasonable accommodation/modifications
for, and effective communications with, individuals with disabilities.
(29 U.S.C. 794).
(g) Participants' benefit costs. Recipients and sub-recipients may
use SCSEP funds for participant benefit costs only under the conditions
set forth in Sec. 641.565.
Sec. 641.853 How are costs classified?
(a) All costs must be classified as ``administrative costs'' or
``programmatic activity costs.'' (OAA Sec. 502(c)(6)).
(b) Recipients and sub-recipients must assign participants' wage
and benefit costs and other participant (enrollee) costs such as
supportive services to the programmatic activity cost category. (See
Sec. 641.864). When a participant's community service assignment
involves functions whose costs are normally classified as
administrative costs, compensation provided to the participants must be
charged as programmatic activity costs instead of administrative costs,
since participant wage and benefit costs are always charged to the
programmatic activity cost category.
Sec. 641.856 What functions and activities constitute administrative
costs?
(a) Administrative costs are that allocable portion of necessary
and reasonable allowable costs of recipients and program operators that
are associated with those specific functions identified in paragraph
(b) of this section and that are not related to the direct provision of
programmatic activities specified in Sec. 641.864. These costs may be
both personnel and non-personnel and both direct and indirect costs.
(b) Administrative costs are the costs associated with:
(1) Performing general administrative and coordination functions,
including:
(i) Accounting, budgeting, financial, and cash management
functions;
[[Page 53831]]
(ii) Procurement and purchasing functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of findings arising from audits,
reviews, investigations, and incident reports;
(vii) Audit functions;
(viii) General legal services functions;
(ix) Developing systems and procedures, including information
systems, required for these administrative functions;
(x) Preparing administrative reports; and
(xi) Other activities necessary for general administration of
government funds and associated programs.
(2) Oversight and monitoring responsibilities related to
administrative functions;
(3) Costs of goods and services used for administrative functions
of the program, including goods and services such as rental or purchase
of equipment, utilities, office supplies, postage, and rental and
maintenance of office space;
(4) Travel costs incurred for official business in carrying out
administrative activities or the overall management of the program;
(5) Costs of information systems related to administrative
functions (for example, personnel, procurement, purchasing, property
management, accounting, and payroll systems) including the purchase,
systems development, and operating costs of such systems and;
(6) Costs of technical assistance, professional organization
membership dues, and evaluating results obtained by the project
involved against stated objectives.
(OAA Sec. 502(c)(4)).
Sec. 641.859 What other special rules govern the classification of
costs as administrative costs or programmatic activity costs?
(a) Recipients and sub-recipients must comply with the special
rules for classifying costs as administrative costs or programmatic
activity costs set forth in paragraphs (b) through (e) of this section.
(b)(1) Costs of awards by recipients and program operators that are
solely for the performance of their own administrative functions are
classified as administrative costs.
(2) Costs incurred by recipients and program operators for
administrative functions listed in Sec. 641.856(b) are classified as
administrative costs.
(3) Costs incurred by vendors and sub-recipients performing the
administrative functions of recipients and program operators are
classified as administrative costs. (See 29 CFR 99.210 for a discussion
of factors differentiating sub-recipients from vendors.)
(4) Except as provided in paragraph (b)(3) of this section, all
costs incurred by all vendors, and only those sub-recipients below
program operators, are classified as programmatic activity costs. (See
29 CFR 99.210 for a discussion of factors differentiating sub-
recipients from vendors.)
(c) Personnel and related non-personnel costs of staff who perform
both administrative functions specified in Sec. 641.856(b) and
programmatic services or activities must be allocated as administrative
or programmatic activity costs to the benefiting cost objectives/
categories based on documented distributions of actual time worked or
other equitable cost allocation methods.
(d) The allocable share of indirect or overhead costs charged to
the SCSEP grant are to be allocated to the administrative and
programmatic activity cost categories in the same proportion as the
costs in the overhead or indirect cost pool are classified as
programmatic activity or administrative costs.
(e) Costs of the following information systems including the
purchase, systems development and operating (e.g., data entry) costs
are charged to the programmatic activity cost category:
(1) Tracking or monitoring of participant and performance
information;
(2) Employment statistics information, including job listing
information, job skills information, and demand occupation information;
and
(3) Local area performance information.
Sec. 641.861 Must SCSEP recipients provide funding for the
administrative costs of sub-recipients?
(a) Recipients and sub-recipients must obtain funding for
administrative costs to the extent practicable from non-Federal
sources. (OAA Sec. 502(c)(5)).
(b) SCSEP recipients must ensure that sufficient funding is
provided for the administrative activities of sub-recipients that
receive SCSEP funding through the recipient. Each SCSEP recipient must
describe in its grant application the methodology used to ensure that
sub-recipients receive sufficient funding for their administrative
activities. (OAA Sec. 502(b)(1)(R)).
Sec. 641.864 What functions and activities constitute programmatic
activity costs?
Programmatic activity costs include, but are not limited to, the
costs of the following functions:
(a) Participant wages, such benefits as are required by law (such
as workers' compensation or unemployment compensation), the costs of
physical examinations, compensation for scheduled work hours during
which a host agency is closed for a Federal holiday, and necessary sick
leave that is not part of an accumulated sick leave program, except
that no amounts provided under the grant may be used to pay the cost of
pension benefits, annual leave, accumulated sick leave, or bonuses, as
described in Sec. 641.565;
(b) Outreach, recruitment and selection, intake, orientation,
assessment, and preparation and updating of IEPs;
(c) Participant training, as described in Sec. 641.540, which may
be provided before commencing or during a community service assignment,
and which may be provided at a host agency, in a classroom setting, or
using other appropriate arrangements, which may include reasonable
costs of instructors' salaries, classroom space, training supplies,
materials, equipment, and tuition;
(d) Subject to the restrictions in Sec. 641.535(c), job placement
assistance, including job development and job search assistance, job
fairs, job clubs, and job referrals; and
(e) Participant supportive services, to enable an individual to
successfully participate in a SCSEP project, as described in Sec.
641.545.
(OAA Sec. 502(c)(6)(A)).
Sec. 641.867 What are the limitations on the amount of SCSEP
administrative costs?
(a) Except as provided in paragraph (b), no more than 13.5 percent
of the SCSEP funds received for a Program Year may be used for
administrative costs.
(b) The Department may increase the amount available for
administrative costs to not more than 15 percent, in accordance with
Sec. 641.870.
(OAA Sec. 502(c)(3)).
Sec. 641.870 Under what circumstances may the administrative cost
limitation be increased?
(a) SCSEP recipients may request that the Department increase the
amount available for administrative costs. The Department may honor the
request if:
(1) The Department determines that it is necessary to carry out the
project; and
(2) The recipient demonstrates that:
(i) Major administrative cost increases are being incurred in
necessary program components, such as liability insurance, payments for
workers' compensation for staff, costs associated with achieving
unsubsidized placement goals, and
[[Page 53832]]
other operation requirements imposed by the Department;
(ii) The number of community service assignment positions in the
project or the number of minority eligible individuals participating in
the project will decline if the amount available for paying the cost of
administration is not increased; or
(iii) The size of the project is so small that the amount of
administrative costs incurred to carry out the project necessarily
exceeds 13.5 percent of the grant amount.
(OAA Sec. 502(c)(3)).
(b) A request by a recipient or prospective recipient for an
increase in the amount available for administrative costs may be
submitted as part of the grant application or as a separate submission
at any time after the grant award.
Sec. 641.873 What minimum expenditure levels are required for
participant wages and benefits?
(a) Except as provided in Sec. 641.874 or in paragraph (c) of this
section, not less than 75 percent of the SCSEP funds provided under a
grant from the Department must be used to pay for wages and benefits of
participants as described in Sec. 641.864(a). (OAA Sec.
502(c)(6)(B)).
(b) A SCSEP recipient is in compliance with this provision if at
least 75 percent of the total expenditure of SCSEP funds provided to
the recipient was for wages and benefits, even if one or more sub-
recipients did not expend at least 75 percent of their SCSEP sub-
recipient award for wages and benefits.
(c) A SCSEP grantee may submit to the Department a request for
approval to use not less than 65 percent of the grant funds to pay
wages and benefits under Sec. 641.874.
Sec. 641.874 What conditions apply to a SCSEP grantee request to use
additional funds for training and supportive service costs?
(a) A grantee may submit to the Department a request for approval--
(1) To use not less than 65 percent of the grant funds to pay the
wages and benefits described in Sec. 641.864(a);
(2) To use the percentage of grant funds specified in Sec. 641.867
to pay for administrative costs as described in Sec. 641.856;
(3) To use the 10 percent of grant funds that would otherwise be
devoted to wages and benefits under Sec. 641.873 to provide
participant training (as described in Sec. 641.540(e)) and participant
supportive services to enable participants to successfully participate
in a SCSEP project (as described in Sec. 641.545), in which case the
grantee must provide (from the funds described in this paragraph) the
wages for those individual participants who are receiving training from
the funds described in this paragraph, but may not use the funds
described in this paragraph to pay for any administrative costs; and
(4) To use the remaining grant funds to provide participant
training, job placement assistance, participant supportive services,
and outreach, recruitment and selection, intake, orientation and
assessment.
(b) In submitting the request the grantee must include in the
request--
(1) A description of the activities for which the grantee will
spend the grant funds described in paragraphs (a)(3) and (a)(4) of this
section;
(2) An explanation documenting how the provision of such activities
will improve the effectiveness of the project, including an explanation
of whether any displacement of eligible individuals or elimination of
positions for such individuals will occur, information on the number of
such individuals to be displaced and of such positions to be
eliminated, and an explanation of how the activities will improve
employment outcomes for the individuals served, based on the assessment
conducted under Sec. 641.535(a)(2); and
(3) A proposed budget and work plan for the activities, including a
detailed description of how the funds will be spent on the activities
described in paragraphs (a)(3) and (a)(4) of this section.
(c)(1) If a grantee wishes to amend an existing grant agreement to
use additional funds for training and supportive service costs, the
grantee must submit such a request not later than 90 days before the
proposed date of implementation contained in the request. Not later
than 30 days before the proposed date of implementation, the Department
will approve, approve as modified, or reject the request, on the basis
of the information included in the request.
(2) If a grantee submits a request to use additional funds for
training and supportive service costs in the grant application, the
request will be accepted and processed as a part of the grant review
process.
(d) Grantees may apply this provision to individual sub-recipients
but need not provide this opportunity to all their sub-recipients.
Sec. 641.876 How will compliance with cost limitations and minimum
expenditure levels be determined?
The Department will determine compliance by examining expenditures
of SCSEP funds. The cost limitations and minimum expenditure level
requirements must be met at the time all such funds have been expended
or the period of availability of such funds has expired, whichever
comes first.
Sec. 641.879 What are the financial and performance reporting
requirements for recipients?
(a) In accordance with 29 CFR 97.41 (State and local governments)
or 29 CFR 95.52 (non-profit and commercial organizations), each SCSEP
recipient must submit a SCSEP Financial Status Report (FSR, ETA Form
9130) in electronic format to the Department via the Internet within 45
days after the ending of each quarter of the Program Year. Each SCSEP
recipient must also submit a final closeout FSR to the Department via
the Internet within 90 days after the end of the grant period. The
Department will provide instructions for the preparation of this
report. (OAA Sec. 503(f)(3)).
(1) Financial data must be reported on an accrual basis, and
cumulatively by funding year of appropriation. Financial data may also
be required on specific program activities as required by the
Department.
(2) If the SCSEP recipient's accounting records are not normally
kept on the accrual basis of accounting, the SCSEP recipient must
develop accrual information through an analysis of the documentation on
hand.
(b) In accordance with 29 CFR 97.40 (State and local governments)
or 29 CFR 95.51 (non-profit and commercial organizations), each SCSEP
recipient must submit updated data on participants (including data on
demographic characteristics and data regarding the performance
measures), host agencies, and employers in an electronic format
specified by the Department via the Internet within 30 days after the
end of each of the first three quarters of the Program Year, on the
last day of the fourth quarter of the Program Year, and within 90 days
after the last day of the Program Year. Recipients wishing to correct
data errors or omissions for their final Program Year report must do so
within 90 days after the end of the Program Year. The Department will
generate SCSEP Quarterly Progress Reports (QPRs), as well as the final
QPR, as soon as possible after receipt of the data. (OAA Sec.
503(f)(3)).
[[Page 53833]]
(c) Each State agency receiving title V funds must annually submit
an equitable distribution report of SCSEP positions by all recipients
in the State. The Department will provide instructions for the
preparation of this report. (OAA Sec. 508).
(d) In addition to the data required to be submitted under
paragraph (b) of this section, each SCSEP recipient may be required to
collect data and submit reports on the performance measures. See
subpart G. The Department will provide instructions detailing these
measures and how recipients must prepare this report.
(e) In addition to the data required to be submitted under
paragraph (b) of this section, each SCSEP recipient may be required to
collect data and submit reports about the demographic characteristics
of program participants. The Department will provide instructions
detailing these measures and how recipients must prepare these reports.
(f) Federal agencies that receive and use SCSEP funds under
interagency agreements must submit project financial and progress
reports in accordance with this section. Federal recipients must
maintain the necessary records that support required reports according
to instructions provided by the Department. (OAA Sec. 503(f)(3)).
(g) Recipients may be required to maintain records that contain any
other information that the Department determines to be appropriate in
support of any other reports that the Department may require. (OAA
Sec. 503(f)(3)).
(h) Grantees submitting reports that cannot be validated or
verified as accurately counting and reporting activities in accordance
with the reporting instructions may be treated as failing to submit
reports, which may result in failing one of the responsibility tests
outlined in Sec. 641.430 and OAA Sec. 514(d).
Sec. 641.881 What are the SCSEP recipient's responsibilities relating
to awards to sub-recipients?
(a) Recipients are responsible for ensuring that all awards to sub-
recipients are conducted in a manner to provide, to the maximum extent
practicable, full and open competition in accordance with the
procurement procedures in 29 CFR 95.43 (non-profit and commercial
organizations) and 29 CFR 97.36 (State and local governments).
(b) The SCSEP recipient is responsible for all grant activities,
including the performance of SCSEP activities by sub-recipients, and
ensuring that sub-recipients comply with the OAA and this part. (See
also OAA Sec. 514(d) and Sec. 641.430 of this part on responsibility
tests).
(c) Recipients must follow their own procedures for allocating
funds to other entities. The Department will not grant funds to another
entity on the recipient's behalf.
(d)(1) National grantees that receive grants to provide services in
an area where a substantial population of individuals with barriers to
employment exists must, in selecting sub-recipients, give special
consideration to organizations (including former national grant
recipients) with demonstrated expertise in serving such individuals.
(OAA Sec. 514(e)(2)).
(2) For purposes of this section, the term ``individuals with
barriers to employment'' means minority individuals, Indian
individuals, individuals with greatest economic need, and most-in-need
individuals. (OAA Sec. 514(e)(1)).
Sec. 641.884 What are the grant closeout procedures?
SCSEP recipients must follow the grant closeout procedures at 29
CFR 97.50 (State and local governments) or 29 CFR 95.71 (non-profit and
government organizations), as appropriate. The Department will issue
supplementary closeout instructions to OAA title V recipients as
necessary.
Subpart I--Grievance Procedures and Appeals Process
Sec. 641.900 What appeal process is available to an applicant that
does not receive a multi-year grant?
(a) An applicant for financial assistance under title V of the OAA
that is dissatisfied because it was not awarded financial assistance in
whole or in part may request that the Grant Officer provide an
explanation for not awarding financial assistance to that applicant.
The request must be filed within 10 days of the date of notification
indicating that financial assistance would not be awarded. The Grant
Officer must provide the protesting applicant with feedback concerning
its proposal within 21 days of the protest. Applicants may appeal to
the U.S. Department of Labor, Office of Administrative Law Judges
(OALJ), within 21 days of the date of the Grant Officer's feedback on
the proposal, or within 21 days of the Grant Officer's notification
that financial assistance would not be awarded if the applicant does
not request feedback on its proposal. The appeal may be for a part or
the whole of the denied funding. This appeal will not in any way
interfere with the Department's decisions to fund other organizations
to provide services during the appeal period.
(b) Failure to file an appeal within the 21 days provided in
paragraph (a) of this section constitutes a waiver of the right to a
hearing.
(c) A request for a hearing under this section must state
specifically those issues in the Grant Officer's notification upon
which review is requested. Those provisions of the Grant Officer's
notification not specified for review are considered resolved and not
subject to further review.
(d) A request for a hearing must be transmitted by certified mail,
return receipt requested, to the Chief Administrative Law Judge, U.S.
Department of Labor, Suite 400 North, 800 K Street, NW., Washington, DC
20001, with one copy to the Departmental official who issued the
determination.
(e) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in whole or in part, has filed a petition for review with the
Administrative Review Board (ARB) (established under Secretary's Order
No. 2-96, published at 61 FR 19978, May 3, 1996), specifically
identifying the procedure, fact, law, or policy to which exception is
taken. The mailing address for the ARB is 200 Constitution Ave., NW.,
Room N5404, Washington, DC 20210. The Department will deem any
exception not specifically urged to have been waived. A copy of the
petition for review must be sent to the grant officer at that time. If,
within 30 days of the filing of the petition for review, the ARB does
not notify the parties that the case has been accepted for review, then
the decision of the ALJ constitutes final agency action. Any case
accepted by the ARB must be decided within 180 days of acceptance. If
not so decided, the decision of the ALJ constitutes final agency
action.
(f) The Rules of Practice and Procedures for Administrative
Hearings Before the Office of Administrative Law Judges, at 29 CFR part
18, govern the conduct of hearings under this section, except that:
(1) The appeal is not considered a complaint; and
(2) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of 29 CFR part 18, will not apply to any hearing
conducted under this section. However, rules designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination will be applied when the ALJ
conducting the hearing considers them reasonably necessary. The
certified copy
[[Page 53834]]
of the administrative file transmitted to the ALJ by the official
issuing the notification not to award financial assistance must be part
of the evidentiary record of the case and need not be moved into
evidence.
(g) The ALJ should render a written decision no later than 90 days
after the closing of the record.
(h) The remedies available are provided in Sec. 641.470.
Sec. 641.910 What grievance procedures must grantees make available
to applicants, employees, and participants?
(a) Each grantee must establish, and describe in the grant
agreement, grievance procedures for resolving complaints, other than
those described by paragraph (d) of this section, arising between the
grantee, employees of the grantee, sub-recipients, and applicants or
participants.
(b) The Department will not review final determinations made under
paragraph (a) of this section, except to determine whether the
grantee's grievance procedures were followed, and according to
paragraph (c) of this section.
(c) Allegations of violations of Federal law, other than those
described in paragraph (d) of this section, which are not resolved
within 60 days under the grantee's procedures, may be filed with the
Chief, Division of Adult Services, Employment and Training
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210. Allegations determined to be substantial and
credible will be investigated and addressed.
(d) Questions about, or complaints alleging a violation of, the
nondiscrimination requirements of title VI of the Civil Rights Act of
1964, Sec. 504 of the Rehabilitation Act of 1973, Sec. 188 of the
Workforce Investment Act of 1998 (WIA), or their implementing
regulations, may be directed or mailed to the Director, Civil Rights
Center, U.S. Department of Labor, Room N-4123, 200 Constitution Avenue,
NW., Washington, DC 20210. In the alternative, complaints alleging
violations of WIA Sec. 188 may be filed initially at the grantee
level. See 29 CFR 37.71, 37.76. In such cases, the grantee must use
complaint processing procedures meeting the requirements of 29 CFR
37.70 through 37.80 to resolve the complaint.
Sec. 641.920 What actions of the Department may a grantee appeal and
what procedures apply to those appeals?
(a) Appeals from a final disallowance of costs as a result of an
audit must be made under 29 CFR 96.63.
(b) Appeals of suspension or termination actions taken on the
grounds of discrimination are processed under 29 CFR 31 or 29 CFR 37,
as appropriate.
(c) Protests and appeals of decisions not to award a grant, in
whole or in part, will be handled under Sec. 641.900.
(d) Upon a grantee's receipt of the Department's final
determination relating to costs (except final disallowance of costs as
a result of an audit, as described in paragraph (a) of this section),
payment, suspension or termination, or the imposition of sanctions, the
grantee may appeal the final determination to the Department's Office
of Administrative Law Judges, as follows:
(1) Within 21 days of receipt of the Department's final
determination, the grantee may transmit by certified mail, return
receipt requested, a request for a hearing to the Chief Administrative
Law Judge, United States Department of Labor, Suite 400 North, 800 K
Street, NW., Washington, DC 20001 with a copy to the Department
official who signed the final determination.
(2) The request for hearing must be accompanied by a copy of the
final determination, and must state specifically those issues of the
determination upon which review is requested. Those provisions of the
determination not specified for review, or the entire determination
when no hearing has been requested within the 21 days, are considered
resolved and not subject to further review.
(3) The Rules of Practice and Procedures for Administrative
Hearings Before the Office of Administrative Law Judges, at 29 CFR part
18, govern the conduct of hearings under this section, except that:
(i) The appeal is not considered as a complaint; and
(ii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of 29 CFR part 18, will not apply to any hearing
conducted under this section. However, rules designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination will be applied when the
Administrative Law Judge conducting the hearing considers them
reasonably necessary. The certified copy of the administrative file
transmitted to the Administrative Law Judge by the official issuing the
final determination must be part of the evidentiary record of the case
and need not be moved into evidence.
(4) The Administrative Law Judge should render a written decision
no later than 90 days after the closing of the record. In ordering
relief, the ALJ may exercise the full authority of the Secretary under
the OAA.
(5) The decision of the ALJ constitutes final agency action unless,
within 21 days of the decision, a party dissatisfied with the ALJ's
decision, in whole or in part, has filed a petition for review with the
ARB (established under Secretary's Order No. 2-96), specifically
identifying the procedure, fact, law, or policy to which exception is
taken. The mailing address for the ARB is 200 Constitution Ave., NW.,
Room N5404, Washington, DC 20210. The Department will deem any
exception not specifically argued to have been waived. A copy of the
petition for review must be sent to the grant officer at that time. If,
within 30 days of the filing of the petition for review, the ARB does
not notify the parties that the case has been accepted for review, then
the decision of the ALJ constitutes final agency action. Any case
accepted by the ARB must be decided within 180 days of acceptance. If
not so decided, the decision of the ALJ constitutes final agency
action.
Sec. 641.930 Is there an alternative dispute resolution process that
may be used in place of an OALJ hearing?
(a) Parties to a complaint that has been filed according to the
requirements of Sec. 641.920 (a), (c), and (d) may choose to waive
their rights to an administrative hearing before the OALJ. Instead,
they may choose to transfer the settlement of their dispute to an
individual acceptable to all parties who will conduct an informal
review of the stipulated facts and render a decision in accordance with
applicable law. A written decision must be issued within 60 days after
submission of the matter for informal review.
(b) Unless the parties agree in writing to extend the period, the
waiver of the right to request a hearing before the OALJ will
automatically be revoked if a settlement has not been reached or a
decision has not been issued within the 60 days provided in paragraph
(a) of this section.
(c) The decision rendered under this informal review process will
be treated as the final agency decision.
Signed at Washington, DC, this 19th day of August 2010.
Jane Oates,
Assistant Secretary, Employment and Training Administration.
[FR Doc. 2010-21139 Filed 8-31-10; 8:45 am]
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