[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Proposed Rules]
[Page 47769-47815]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14au08-19]
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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; Notice of Proposed
Rulemaking; Proposed Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 641
RIN 1205-AB48
Senior Community Service Employment Program; Notice of Proposed
Rulemaking
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice of proposed rulemaking with request for comments.
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SUMMARY: The Employment and Training Administration of the Department
of Labor (Department) is issuing this Notice of Proposed Rulemaking
(NPRM) to propose changes in the Senior Community Service Employment
Program resulting from the 2006 Amendments to title V of the Older
Americans Act, and to clarify various policies. Key proposed changes
include the introduction of a 48-month limit on participation, regular
competition for national grants, and an available increase in the
proportion of grant funds that can be used for participant training and
supportive services. Comments on this proposed rule are welcome
according to the dates listed below.
DATES: Interested persons are invited to submit comments on this
proposed rule. To ensure consideration, comments must be received on or
before October 14, 2008. Comments received after that date will be
considered to the extent possible. Comments should be limited to the
proposed changes and additions to the current regulations, all of which
are discussed in the preamble to this NPRM, or to other changes to the
current regulations which flow from the 2006 Amendments.
ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB48, by either of the following methods:
Federal e-Rulemaking Portal: www.regulations.gov. Follow
the Web site instructions for submitting comments.
Mail and hand delivery/courier: Written comments, disk,
and CD-Rom submissions may be mailed to Thomas M. Dowd, Administrator,
Office of Policy Development and Research, U.S. Department of Labor,
200 Constitution Avenue, NW., Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with RIN 1205-AB48.
Please be advised that the Department will post all comments
received on www.regulations.gov without making any change to the
comments, or redacting any information. The www.regulations.gov Web
site is the Federal e-rulemaking portal and all comments posted there
are available and accessible to the public. Therefore, the Department
recommends that commenters safeguard any personal information such as
Social Security Numbers, personal addresses, telephone numbers, and e-
mail addresses included in their comments as such may become easily
available to the public via the www.regulations.gov Web site. It is the
responsibility of the commenter to safeguard his or her information.
Also, please note that due to security concerns, postal mail
delivery in Washington, DC, may be delayed. Therefore, the Department
encourages the public to submit comments via the Internet as indicated
above.
Docket: The Department will make all the comments it receives
available for public inspection during normal business hours at the
above address. If you need assistance to review the comments, the
Department will provide you with appropriate aids such as readers or
print magnifiers. The Department will make copies of the rule
available, upon request, in large print and electronic file on computer
disk. The Department will consider providing the rule in other formats
upon request. To schedule an appointment to review the comments and/or
obtain the rule in an alternative format, contact the Office of Policy
Development and Research at (202) 693-3700 (not a toll-free number).
You may also contact this office at the address listed above.
FOR FURTHER INFORMATION CONTACT: Sherril Hurd, Acting Team Leader,
Regulations Unit, Office of Policy Development and Research, U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-5641,
Washington, DC 20210; telephone (202) 693-3700 (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 proposed rule is
organized as follows:
I. Background--Provides a Brief Description of the Development of
the Proposed Rule
II. Section-By-Section Review of the Proposed Rule--Summarizes and
Discusses Proposed Changes to the Senior Community Service
Employment Program (SCSEP) Regulations
III. Administrative Information--Sets Forth the Applicable
Regulatory Requirements
I. Background
On October 17, 2006, President Bush signed the Older Americans Act
(OAA) Amendments of 2006, Public Law 109-365 (2006 OAA). This law
amended the statute authorizing SCSEP and necessitates changes to the
SCSEP regulations. The Department's Employment and Training
Administration (ETA) promulgated an IFR on June 29, 2007 that
implemented changes in the SCSEP performance measurement system
required by the 2006 OAA. This proposed rule proposes to implement the
remainder of the changes in the SCSEP necessitated by the 2006 OAA, and
to clarify various program policies.
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 training at community service employment
assignments in public and non-profit agencies. The goals of the program
are to move SCSEP participants into unsubsidized employment so that
they can achieve economic self-sufficiency, and to promote useful
opportunities in community service activities. 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 section 516(2).
Many of the policy initiatives contained in the 2000 OAA, Public
Law 106-501, and reflected in the 2004 SCSEP final rule, 69 FR 19014,
Apr. 19, 2004, are maintained in the 2006 OAA and this proposed rule.
Other policies are amplified. Most notably, there is a greater emphasis
on placing individuals in unsubsidized employment, as evidenced by the
new 48-month limitation on participation in the SCSEP (OAA sec.
518(a)(3)(B); Sec. 641.570 of this part); the new limitations on
benefits (OAA sec. 502(c)(6)(A)(i); Sec. 641.565 of this part); and
the increase in available funds for training and supportive services to
prepare participants for the unsubsidized workforce (OAA sec.
502(c)(6)(C); Sec. 641.874 of this part). A focus on the transition of
participants
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into unsubsidized employment allows more eligible individuals to be
served by the SCSEP and thus to potentially benefit from employment
opportunities and income gains.
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)). 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 section 121; OAA section 511(b); see also OAA
section 502(b)(1)(O). The MOU must detail the SCSEP project's
involvement in the One-Stop Delivery System. In particular, SCSEP
grantees/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 secs. 510, 511; Sec. Sec. 641.210,
641.220 of this part.
Because the SCSEP is a required partner under WIA, SCSEP grantees
and sub-recipients must ensure that they are familiar with WIA's
statutory and regulatory provisions. Congress is considering
legislation to reauthorize WIA, and reauthorization may bring changes
to the law. SCSEP grantees and sub-recipients must ensure that they
keep current on any changes in WIA law that could impact their program.
The 2006 OAA also increases the accountability of grantees by
clearly requiring a competitive process for grant awards. This proposed
rule implements the statute's requirement that the national SCSEP
grants be re-competed regularly, generally every four years. OAA
section 514(a); Sec. 641.490(a) of this part. This proposed 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(b) 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(3)(A); Sec.
641.510 of this part).
To the extent that the 2006 OAA does not change the 2000 OAA, these
proposed regulations do not change the statutory interpretations or
policy positions that supported the current regulations. The SCSEP is
an established program; we do not propose to begin anew with this
proposed rule but rather build upon the regulatory framework that has
developed over the years. The proposed changes, mostly necessitated by
statutory revisions, are discussed further in the next section of the
preamble.
The Department notes that it will continue to use the name ``Senior
Community Service Employment Program'' for this program, although the
OAA refers to it in various terms.
The Department solicits comments on this proposed rule. For ease of
reading, the Department is publishing the full regulatory text for
subparts B-F, H and I. The regulatory text that was amended in the IFR,
which includes all of subpart G and some definitions in subpart A, is
not reprinted here. With the exception of Sec. 641.140 (definitions),
the regulatory text herein includes the proposed changes as well as the
several provisions that are unchanged. We are not reprinting unchanged
definitions. The Department solicits comments on the proposed changes
in this notice. We particularly invite comments, in accordance with the
requirements of section 514(f) of the 2006 OAA, addressing any concerns
that these proposed regulations significantly compromise the ability of
grantees to serve their targeted populations of minority older
individuals, in areas where substantial populations of minority
individuals reside.
II. Section-by-Section Review of the Proposed Rule
This proposed rule amends subparts A-F, H, and I of part 641 of
Title 20 of the Code of Federal Regulations. It proposes changes
required by the 2006 OAA, and proposes to clarify various policies. The
Department previously promulgated an IFR, 72 FR 35832, June 29, 2007,
which addressed changes in the SCSEP performance measurement system
required by the 2006 OAA. The IFR revised subpart G, which addresses
performance accountability, and added several definitions to, and
revised certain definitions within, subpart A that relate to the
performance measures. The amendments that were contained in the IFR are
not repeated here.
The Department proposes to make two changes that affect many of the
subparts. We now refer to sub-recipients along with grantees where the
responsibility or requirement being discussed applies to not just the
grantees, but their sub-recipients as well. We also change from the
term ``community service assignment'' to ``community service employment
assignment'' throughout this part to be consistent with a similar
change in the language of the statute (see, e.g., OAA section
502(b)(1)(A)), and to emphasize the SCSEP's goal of employment in
addition to community service (OAA sec. 502(a)(1)). By including
``employment'' in the phrase ``community service employment
assignment,'' the Department does not mean that participants have a
right to long-term employment under the SCSEP, however. The SCSEP
provides temporary, subsidized, part-time employment assignments to
prepare older workers for unsubsidized employment as well as to provide
valuable community services.
Subpart A--Purpose and Definitions
What Does This Part Cover? (Sec. 641.100)
Section 641.100 provides an overview of each subpart of the SCSEP
regulations. As reflected in paragraph (c) the Department proposes to
change the name of the State Plan, and to include a reference to the
Plan's four-year strategy, both in accordance with the 2006 OAA and as
further described in the preamble for subpart C, below. We propose to
add a phrase to the description of subpart D to clarify that subpart D
contains provisions relating to the grant application and
responsibility review requirements for ``the Department's award of
SCSEP funds for State and National grants.'' Subpart D does not apply
to the pilot, demonstration, and evaluation grants described in subpart
F. As is the case in the current regulations, proposed subpart F
contains its own provision about applying for those grants (see Sec.
641.620).
The Department proposes to revise paragraph (f) of the overview to
indicate that subpart F provides the rules for pilot, demonstration,
and evaluation projects as provided at section 502(e) of
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the 2006 OAA. These projects replace the private sector training
projects that were authorized under section 502(e) of the 2000 OAA,
Public Law 106-501. In paragraph (g) we propose to replace the
reference to sanctions with a reference to corrective actions for
failure to meet core performance measures, to mirror the language of
the 2006 OAA (see, e.g., OAA section 513(d)). Finally, in paragraph
(h), we describe subpart H as concerning the administrative
requirements for SCSEP ``funds'' rather than SCSEP ``grants'' because
many of the requirements contained in subpart H are not limited to
grantees.
What Is the SCSEP? (Sec. 641.110)
This section briefly describes the SCSEP. We propose to add the
word ``unemployed'' to the description of individuals served to more
thoroughly describe the program. In the past, grantees and applicants/
participants have asked whether a person has to be unemployed to be
eligible for the SCSEP. Unemployed is--and has been--an eligibility
requirement. Also, whereas in the current regulations the program
description speaks of ``placing'' participants in ``community service
positions,'' the Department now proposes to state that the SCSEP
``trains'' participants in ``community service employment
assignments.'' And, whereas the current regulations state that the
SCSEP serves participants by ``assisting them to transition to
unsubsidized employment,'' we propose to clarify that the SCSEP serves
participants by ``assisting them in developing skills and experience to
facilitate their transition to unsubsidized employment.'' We propose
this change to provide more specificity about the services the SCSEP
provides and how these services advance the goal of unsubsidized
employment.
What Are the Purposes of the SCSEP? (Sec. 641.120)
This section describes the purposes of the SCSEP, and is based on
the statement establishing the program in section 502(a)(1) of the OAA.
The Department proposes to revise this section in accordance with
changes in the 2006 OAA, which rearranges the ordering of the purposes.
In the 2006 OAA, ``foster[ing] individual economic self-sufficiency''
is listed first among the purposes of the SCSEP; fostering and
promoting useful community service activities was listed first in the
2000 OAA. We propose to amend our description accordingly. The
Department interprets the placement of this purpose at the front of the
list of purposes as consistent with an increased focus on placing
participants in unsubsidized employment.
We also propose to alter the statement of the goal concerning
community service. The current regulations state that a purpose of the
SCSEP is to ``foster and promote useful part-time opportunities in
community service activities.'' We propose to change this to: ``Promote
useful part-time opportunities in community service employment
assignments.'' We omit the word ``foster'' from this phrase to be
consistent with the language of the statute. Our use of the term
community service employment assignment was discussed above, and is
changed consistently in the rest of this proposed rule.
What Is the Scope of This Part? (Sec. 641.130)
The proposed change in this section concerns administrative
issuances. The current regulations indicate that administrative
guidance and information will be provided via ``SCSEP Bulletins,
technical assistance guides, and other SCSEP directives.'' We propose
to revise this section to reflect the current ETA advisory system. We
now issue administrative guidance and information for the SCSEP through
Training and Employment Guidance Letters (TEGLs), Training and
Employment Notices (TENs), technical assistance guides, and other SCSEP
guidance. The Department no longer uses Older Worker Bulletins to issue
administrative guidance; however, previously issued Bulletins that have
not been rescinded, and have not been superseded by the 2006 OAA, are
still in effect. All valid administrative issuances, as well as an
abundance of other program information, may be viewed at the SCSEP Web
site, http://www.doleta.gov/seniors.
What Definitions Apply to This Part? (Sec. 641.140)
The Department proposes to amend several SCSEP definitions.
New Definitions
We propose to add the following five definitions:
Pacific Island and Asian Americans: The Department adds the
definition of Pacific Island and Asian Americans that appears in
section 518(a)(5) of the 2006 OAA.
Program operator: We move the definition of ``first tier sub-
recipient'' from Sec. 641.856 to the definitions section, rename it
``program operators,'' and expand it to make clear that it applies to
all entities that operate a SCSEP program, not just to those entities
that receive their funds directly from the grantee. Our intent is to
clarify that all entities operating a SCSEP program, and not just those
one tier down from direct SCSEP grantees, must adhere to program laws
and regulations such as the requirement to track, record, and report
administrative costs, and must limit those costs to comply with the
administrative costs cap.
Secretary: We clarify that Secretary means the Secretary of the
Department of Labor.
Supportive services: Section 518(a)(7) of the 2006 OAA defines
supportive services and we adopt the statutory definition here.
Unemployed: We adopt the definition from section 518(a)(8) of the
2006 OAA.
Revised Definitions
We propose to revise the following definitions:
Authorized position level: We remove the sentence that appears at
the end of the definition in the current regulations, which states that
the authorized position level is calculated by dividing a grantee's
total award by the national unit cost, because it is repetitive of
other language in the definition.
Community service: We revise the definition of community service to
align more precisely with the statutory definition. We omit the opening
phrase, ``includes, but is not limited to,'' and replace it with a
provision at the end of the definition allowing the Secretary to
include in the definition other services by rule as appropriate. In
addition, we have included a lettered listing of the 2006 OAA's
grouping of services.
Equitable distribution report: In the phrase, ``taking the needs of
underserved counties into account,'' we replace the word ``counties''
with ``jurisdictions'' to be inclusive of entities other than counties,
such as incorporated cities, which may also be underserved.
Grantee: We alter the list of possible entities that may serve as
grantees to more closely follow the language of the 2006 OAA at section
502(b)(1). Accordingly, whereas the current regulations list both
``States'' and ``agencies of a State government'' as possible grantees,
we now list only ``State agencies.'' Also, the 2006 OAA dropped
language indicating that political subdivisions of a State, or a
combination of such political subdivisions, could serve as a grantee;
we therefore delete such language from this definition. We also modify
the definition of grantee to eliminate the reference to section 502(e)
grantees, since private sector training projects are
[[Page 47773]]
no longer authorized, and to make technical corrections.
Greatest economic need: We update the citation for this definition.
Greatest social need: We alter the definition of greatest social
need to make technical corrections and to update the statutory
citation.
Host agency: The Department revises the definition of host agency
three ways. First, we insert the word ``training'' before ``work site''
to underscore that the community service employment assignment is a
venue for training SCSEP participants. We also create a stand-alone
sentence stating that political parties cannot be host agencies, for
clarity. Concerning political parties, we note that we interpret
section 502(b)(1)(D) of the 2006 OAA as containing a misplaced ending
parenthesis. As political parties are not covered by section 501(c)(3)
of the Internal Revenue Code, we consider that the final parenthesis
should appear after the word ``parties.'' Our interpretation here
simply maintains the same understanding of host agencies as existed
under the 2000 OAA--political parties cannot be host agencies, and non-
profit agencies that are 501(c)(3) may be host agencies. Finally, we
include the word ``sectarian'' before ``religious'' to more closely
adhere to the language of the OAA.
Indian: We update the citation.
Indian tribe: We insert a citation to the Alaska Native Claims
Settlement Act in the definition of Indian tribe, as is done in the
statutory definition. We also update the citation.
Individual Employment Plan or IEP: We modify the definition of
Individual Employment Plan by moving to the beginning of the definition
the statement that the IEP is based on an assessment of the
participant, because that fact is fundamental to the development of an
IEP. We have added language to acknowledge that a recent assessment or
IEP prepared by another employment and training program may be used in
lieu of one prepared by the grantee or sub-recipient, reflecting
language in the statute and in Sec. 641.230, related to an assessment
or IEP completed by the One-Stop delivery system. We delete the
language concerning the ``appropriate sequence of services'' and add
language referring to ``a related service strategy,'' reflecting
language that has been added to the 2006 OAA. We add the word
``appropriate'' before ``employment goal'' to indicate that the
employment goal should be one that reflects the assessment of the
skills, talents, and training needs of the individual, and may need to
be modified over time. We replace the phrase, ``achievement of
objectives,'' with the phrase, ``objectives that lead to the goal,''
for increased clarity. We have added ``a timeline for the achievement
of the objectives'' because we believe it is useful for the IEP to
include target timeframes for the achievement of the identified
objectives. We also make grammatical changes.
Jobs for Veterans Act: We revise the definition of the Jobs for
Veterans Act to clarify that the Jobs for Veterans Act is a distinct
statute from the priority of service provision in the OAA, although we
use the definition of veteran contained in the Jobs for Veterans Act to
determine which participants qualify for the veterans' priority for
service (Sec. 641.520). We also modify the description of which
participants qualify for the veterans' preference to more closely
follow the language of the Jobs for Veterans Act.
OAA: We revise the definition of the Older Americans Act (OAA) to
account for all amendments.
Other participant (enrollee) costs: We revise the definition of
other participant (enrollee) costs to make certain technical
corrections, we replace the phrase ``supportive services to assist''
with ``supportive services to enable,'' to track the language of the
statute, and we clarify that training costs may be incurred prior to
commencing or concurrent with a community service employment
assignment.
Participant: We revise the definition of participant to clarify
that an individual must be given a community service employment
assignment to be considered a SCSEP participant, though the person need
not have begun that assignment to be considered a SCSEP participant.
This change makes it possible for participants to get paid their hourly
wage for time spent on activities such as orientation and training
before they begin working at their community service employment
assignment.
Poor employment prospects: The phrase ``poor employment prospects''
appeared in the 2000 OAA and the Department defines it in the 2004
SCSEP final rule. The Department used the definition of poor employment
prospects in the current regulations as the basis for developing this
revised definition which provides that a person with poor employment
prospects is one who has a significant barrier to employment. The
barriers listed in the definition are mainly the same characteristics
that appear in this definition in the current regulations, but with
minor changes to reduce redundancy. The Department interprets the 2006
OAA's term ``poor employment prospects'' to have the same meaning as
the similar phrase which also appears in the 2006 OAA, ``low employment
prospects.'' Thus, the same definition is used for the term low
employment prospects, which is also part of this section, but was
published in the Senior Community Service Employment Program;
Performance Accountability IFR at 72 FR 35832, Jun. 29, 2007.
Program Year: We alter the definition of Program Year to remove the
statutory reference which no longer exists and to add the word ``on''
before ``July 1.'' The substance of the definition is not affected by
these changes.
Project: We revise the definition of project for increased
readability, to remove the unnecessary phrase, ``in a particular
location within a State,'' and to make technical corrections. We also
change the phrase, ``community service'' to ``service to communities''
in light of the Sense of Congress provision at section 516 of the 2006
OAA which indicates that one benefit of SCSEP projects is their impact
on communities.
Recipient: We make technical corrections to the definition of
recipient.
Service area: We revise the definition of service area by adding
the clarifying phrase, ``in accordance with a grant agreement,'' for
increased accuracy.
State grantee: We revise the definition of State grantee by adding
the phrase, ``or the highest government official,'' after the word
``Governor,'' to account for those governmental jurisdictions that
receive State SCSEP grants but do not have a Governor.
State Plan: We revise the definition of State Plan to specify that
the State Plan now includes a four-year strategy for, and describes the
planning and implementation process for, the statewide provision of
SCSEP services, in accordance with section 503(a)(1) of the 2006 OAA.
Sub-recipient: Although in the current regulations the Department
treats the terms sub-grantee and sub-recipient as synonymous, we now
clarify that sub-recipient is the preferred term to use when referring
to entities that receive SCSEP funds from grantees. Not all entities
that receive SCSEP funds from grantees do so pursuant to a grant; in
some cases the mechanism is a contract. Because the term sub-recipient
is inclusive of both sub-grantees and sub-contractors, we do not
provide separate definitions for these terms. The definition of sub-
recipient that we employ is largely the same as the definition of sub-
grantee that appears in the current regulations; we deleted one phrase
referring to subcontracts because the definition now includes all
varieties of sub-awards.
[[Page 47774]]
Title V of the OAA: We revise the definition of title V of the OAA
to account for all amendments.
Tribal organization: We update the citation.
Workforce Investment Act (WIA): We clarify in the definition of the
Workforce Investment Act that references to this law include any and
all amendments, and we make technical corrections to the citations.
Deleted Definitions
The Department proposes to omit several definitions that appear in
the current regulations. First, we remove definitions of ``placement
into public or private unsubsidized employment'' and ``retention in
public or private unsubsidized employment'' because those performance
measures no longer exist. They were replaced in the IFR by the common
measures entry and six-months retention indicators. We also eliminate
the definition of co-enrollment because it related to private sector
502(e) projects which are no longer authorized. We eliminate the
definition of State workforce agency because that phrase no longer
appears in this rule. Finally, we remove the definition of sub-grantee
and replace it with the more technically accurate term: ``sub-
recipient.''
Unchanged Definitions
Definitions that remain unchanged are not reprinted.
The Department added and amended some SCSEP definitions related to
performance accountability in the SCSEP; Performance Accountability;
IFR, 72 FR 35832, Jun. 29, 2007. Those new and amended definitions do
not appear in this proposed rule, and comments on those amendments were
sought in the IFR.
Subpart B--Coordination With the Workforce Investment Act
This subpart covers those provisions of the OAA that require
coordination with WIA. Please note that WIA contains additional
provisions that are relevant to the SCSEP. The 2006 OAA requires
changes to Sec. 641.240 of this part. In addition, the Department
proposes several clarifying changes to the regulatory text.
What Is the Relationship Between the SCSEP and the Workforce Investment
Act? (Sec. 641.200)
The only proposed changes we make in this section are to clarify
that sub-recipients (and not just grantees) are included in the
requirement to follow all WIA rules and regulations, and to make
certain technical corrections to the citations.
What Services, in Addition to the Applicable Core Services, Must SCSEP
Grantees/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/sub-recipients are unable to serve, as well as SCSEP
ineligible individuals, with access to other services available at the
One-Stop Career Center. There is no change to this section other than
two proposed clarifications. First, the Department clarifies that core
services are those defined in the WIA regulations at Sec. 662.240 of
this title. Second, we also clarify that, in addition to providing
eligible and ineligible individuals with access to other activities and
programs carried out by other One-Stop partners as is provided in the
current regulations, SCSEP grantees/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. As a required One-Stop partner, and in light of the statutory
language in both WIA and title V of the 2006 OAA on the cross-use of
individual assessments, it is desirable that SCSEP grantees and sub-
recipients make appropriate referrals to the One-Stop system for
intensive and training services.
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 Career Center
environment, SCSEP projects are limited to serving SCSEP-eligible
individuals.
As discussed in the preamble section addressing SCSEP definitions
(Sec. 641.140), the Department is proposing to revise the definition
of participant to clarify that an individual must be given a community
service employment assignment, though the person need not have begun
that assignment, to be considered a SCSEP participant. Because of this
proposed modification, we change the language, ``are functioning in a
community service assignment,'' which had qualified the word
participants, to ``have each received a community service employment
assignment.'' We also propose to add language clarifying what an MOU
is, and propose to cross-reference the WIA regulatory provisions that
relate to the MOU.
Must the Individual Assessment Conducted by the SCSEP Grantee/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?
(Sec. 641.230)
The only proposed changes the Department makes to this section are
technical ones. We add the word ``sub-recipient'' to the heading for
clarity. We also change the citation to the OAA to reflect the 2006
Amendments, and move the citation to after the first sentence, as the
first sentence contains the provision located in the cited statutory
section.
Are SCSEP Participants Eligible for Intensive and Training Services
Under Title I of WIA? (Sec. 641.240)
This section addresses the eligibility of SCSEP participants for
intensive and training services under title I of WIA. Under the OAA,
SCSEP participants are not automatically eligible to receive intensive
and training services under WIA, however Local Boards have the
authority to deem SCSEP participants eligible to receive intensive and
training services under title I of WIA. We note that WIA eligibility is
not based on income except in the adult program when a local area
determines that its funds are insufficient and provides priority to
low-income individuals. Rather, WIA eligibility is based on the need
for and utility of intensive and training services to obtain
employment.
The Department proposes to revise paragraph (a) by removing the
opening word ``yes'' since it could be read to imply that SCSEP
participants are automatically eligible for intensive and training
services under title I of WIA, even though the subsequent text states
the contrary.
In paragraph (b) the Department proposes to make several changes.
First, the current regulations state that, ``SCSEP participants who
have been assessed through a SCSEP IEP have received an intensive
service.'' An assessment is used in developing an IEP, but assessments
are not accomplished through an IEP. Accordingly, to clarify the
distinct roles of the assessment and the IEP, the phrase is proposed to
read, ``SCSEP participants who have been assessed and for whom an IEP
has been developed have received an intensive service.''
Also in paragraph (b), we propose to revise the sentence addressing
SCSEP
[[Page 47775]]
participants and training. Whereas the current regulations state,
``SCSEP participants who seek unsubsidized employment as part of their
SCSEP IEP, may require training to meet their objectives,'' the
proposed rule instead says, ``[i]n order to enhance skill development
related to the IEP, it may be necessary to provide training beyond the
community service employment assignment to enable the participant to
meet their unsubsidized employment objectives.'' We propose this change
to reinforce the role of the IEP, because unsubsidized employment is a
goal for all of the SCSEP, not just certain participants, and to
clarify that the training under discussion here is training other than
that accomplished via the community service employment assignment. We
also propose to add a reference to Sec. 641.540, the section of these
regulations that addresses participant training in depth.
The Department proposes to delete what is paragraph (c) in the
current regulations; the Department determined this paragraph conflicts
with other relevant regulatory provisions. Paragraph (c) states that
community service employment assignments are analogous to work
experience activities or intensive services under WIA. This paragraph
could create confusion with paragraph (a) of this section, which
correctly states that SCSEP participants are not automatically eligible
for WIA intensive and training services. Whether or not a community
service employment assignment is considered to be an intensive service,
a SCSEP participant must still meet the other WIA eligibility
requirements to be eligible for training services.
The Department also proposes to delete what is paragraph (d) in the
current regulations because the subject of that paragraph is thoroughly
covered in subpart E. Paragraph (d) indicates that SCSEP participants
may be paid while receiving intensive or training services. An
explanation of participant wages appears in Sec. 641.565 of these
regulations.
Subpart C--The State Plan
The Department proposes to change the title of this subpart to
reflect a change in the name of the State Plan in the 2006 OAA from the
prior term, the ``State Senior Employment Services Coordination Plan.''
This subpart of the regulations implements the new provisions in
section 503 of the 2006 OAA, which direct the Governor, or the highest
government official, of each State to submit a State Plan that contains
a four-year strategy, and require that the State Plan be updated at
least every two years. As reflected in these proposed regulations, the
State Plan now has a broader role than merely coordination.
Comments are welcome on requirements for the four-year strategy, as
well as other changes affecting the State Plan that are identified in
this preamble or other changes to the current regulations which flow
from the 2006 Amendments.
What Is the State Plan? (Sec. 641.300)
This section describes the State Plan and emphasizes that it is
intended to foster collaboration among SCSEP stakeholders. As noted
above, the Department proposes to change the name of the State Plan to
reflect the 2006 OAA. We also propose to add language reflecting the
new requirement that the State Plan outline a four-year strategy for
the statewide provision of community service and other authorized
activities for eligible individuals under the SCSEP. The four-year
strategy is one component of the State Plan; Sec. 641.325 of these
proposed regulations specifies additional information required in the
State Plan.
What Is a Four-Year Strategy? (Sec. 641.302)
The 2006 OAA requires that States include a four-year strategy in
the State Plan; in this proposed section, the Department explains what
States must include in their four-year strategy. The four-year strategy
is only one component of the State Plan; other elements are discussed
in Sec. 641.325 of these regulations. The 2006 OAA does not elaborate
on the contents of the four-year strategy, but grants the Secretary
authority to determine what provisions should be in the State Plan,
consistent with title V. These proposed regulations specify what States
must include in the four-year strategy.
The Department views the four-year strategy as an opportunity for
the State to take a longer-term view of the SCSEP in the State,
including its role in workforce development, given projected changes in
the State's demographics (particularly the number of older workers),
economy, and labor market. In preparing the four-year strategy, the
State should address the role of SCSEP vis-[aacute]-vis other workforce
programs and initiatives as well as other programs serving older
workers, and how the State and SCSEP grantees can utilize these other
programs to maximize the services available to the SCSEP-eligible
population. The four-year strategy also should be used by the State to
examine and, as appropriate, plan longer-term changes to the design of
the program within the State, such as changes in the utilization of
SCSEP grantees and program operators to better achieve the goals of the
program.
To achieve the objectives described above, the Department proposes
to require that the four-year strategy include the following specific
elements. First, it must explain the State's long-term plan for
achieving an equitable distribution of SCSEP positions within the State
(the equitable distribution report, discussed in Sec. Sec. 641.360 and
641.365, addresses this for the short-term). This information is
required as part of the State Plan (see Sec. 641.325), but the State
should address equitable distribution over a longer period in its four-
year strategy. The strategy must specifically address how, over the
four-year period, the State intends to: (1) Move positions from over-
served to underserved locations within the State, pursuant to Sec.
641.365 of these regulations; (2) equitably serve rural and urban
areas; and (3) serve individuals afforded priority for community
service employment and other authorized activities, pursuant to Sec.
641.520 of these regulations. Second, a related provision requires that
the State explain its long-term strategy for avoiding disruptions to
the program when new Census data that affects the distribution of SCSEP
positions across the State becomes available, or when there is over-
enrollment for any other reason. This information is included in the
State Plan for the short-term, but the State should plan over a longer
term for avoidance of disruptions when new Census data become available
or there is over-enrollment.
Third, the four-year strategy must provide the State's long-term
plan for serving minority older individuals under the SCSEP. Section
515 of the 2006 OAA requires a report on services to minority
individuals, and this element in the four-year strategy reinforces the
law's focus on minority individuals and will provide information that
may be used in the report. Fourth, the strategy must provide 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 participants
will be trained, and the types of skill training to be provided. The
2006 OAA added to the State Plan provisions the current and projected
employment opportunities in the State, and it makes sense to look at
this, in relation to the types of skill training provided to
participants, not only in the
[[Page 47776]]
short-term, but over the longer-term encompassed by the four-year
strategy.
Fifth, the four-year strategy must explain how the State plans to
work with employers in the State to develop and promote opportunities
for placement of SCSEP participants in unsubsidized employment. Working
with employers to develop opportunities for placement of SCSEP
participants in unsubsidized employment is an essential element of the
program and necessary to achieve participation limits, so States should
address this in their four-year strategy.
Sixth, the four-year strategy must provide the long-term strategy
for increasing the level of performance for entry into unsubsidized
employment by SCSEP participants. Specifically, the strategy must
demonstrate how the State will achieve the minimum levels of
performance required by section 513(a)(2)(E)(ii) of the OAA and Sec.
641.720(a)(6) of the SCSEP regulations (published in the IFR), which
set forth the minimum percentage for the expected level of performance
for entry into unsubsidized employment for each of fiscal years 2007-
2011. The expected level of performance on this core indicator
increases over this time period, from 21 percent in fiscal year 2007,
to 25 percent in fiscal year 2011. The Department recognizes that these
are minimum levels and that some grantees already perform well above
these minimum levels. All 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.
Seventh, the four-year strategy must indicate how the SCSEP
activities of grantees will be coordinated with a number of other
programs, initiatives, and entities. The State Plan must address
coordination with WIA, but States should plan over a longer term to
improve coordination with a variety of other programs, initiatives, and
entities. These include: (1) Planned actions to coordinate with
activities being carried out in the State under title I of WIA,
including plans for utilizing the WIA One-Stop Delivery System and its
partners to serve individuals aged 55 and older; (2) planned actions to
coordinate with activities being carried out in the State under other
titles of the OAA; (3) planned actions to coordinate with other public
and private entities and programs that provide services to older
Americans in the State (such as community and faith-based
organizations, transportation programs, and programs for those with
special needs or disabilities); and (4) planned actions to coordinate
with other labor market and job training initiatives. These initiatives
currently include the President's High Growth Job Training Initiative,
Community-Based Job Training Grants, and the Workforce Innovation in
Regional Economic Development (WIRED) Initiative.
Eighth, the State should explain its long-term strategy to improve
SCSEP services, and may include recommendations to the Department, as
appropriate. This is derived from current State Plan Instructions
(Older Worker Bulletin 01-04), which specify that the State Plan may
include recommendations to the Secretary of Labor on actions to be
taken by SCSEP grantees in the State to improve SCSEP services. The
recommendations may include such topics as the location of positions,
the types of community services, the time required to make changes in
the distribution of positions, and the types of participants to be
enrolled.
Who Is Responsible for Developing and Submitting the State Plan? (Sec.
641.305)
The only change we propose to this section is to add the phrase,
``or the highest government official,'' after the word ``Governor'', to
be inclusive of all jurisdictions that submit State Plans.
May the Governor, or the Highest Government Official, Delegate
Responsibility for Developing and Submitting the State Plan? (Sec.
641.310)
The only proposed change to this provision is to add in the heading
the phrase, ``or the highest government official,'' after the word,
``Governor,'' to be inclusive of jurisdictions where the head of the
government is not a Governor.
Who Participates in Developing the State Plan? (Sec. 641.315)
This provision lists the individuals and organizations from whom
the Governor, or the highest government official, is required to seek
advice and recommendations related to the State Plan, in accordance
with section 503(a)(2) of the OAA. The 2006 OAA changes the task of the
Governor (or highest government official) from ``obtaining'' the advice
and recommendations of these entities to ``seeking'' advice and
recommendations. The Department therefore proposes to revise this
section to use the word ``seek.'' We interpret this to mean that the
Governor (or highest government official) must make a good faith effort
to obtain advice and recommendations from the listed individuals and
organizations, whether or not each of these chooses to submit its
views. We also propose to replace the phrase ``underserved older
individuals'' with ``unemployed older individuals,'' in accordance with
the same change in the 2006 OAA.
Must All National Grantees Operating Within a State Participate in the
State Planning Process? (Sec. 641.320)
Section 503(a)(2) of the OAA requires the Governor, or the highest
government official, to seek the advice and recommendations of a number
of different parties concerning SCSEP services in the State. Although
that particular section of the OAA does not require national grantees
to participate in the State Plan process, section 514(c)(6) of the OAA
establishes that when selecting national grantees, the Department must
consider an applicant's ability to coordinate their activities with
other organizations at the State and local levels. The State Plan is
the process by which SCSEP services are coordinated at the State level;
accordingly, section 514(c)(6) effectively requires national grantees
to participate in the State planning process. To clarify the source of
this requirement, the Department proposes to omit the language
referring to OAA section 503(a)(2) from paragraph (a) of this section.
We have also updated the remaining citation in paragraph (a) to account
for where this provision is located in the 2006 OAA.
Paragraph (b) concerns exemptions from the requirement in paragraph
(a); we propose several changes to this paragraph. The 2004 SCSEP final
rule exempts national grantees serving older American Indians from the
State planning process, based on section 503(a)(8) of the 2000 OAA,
although the Department encourages their participation. The proposed
regulation adds grantees serving older Pacific Island and Asian
Americans to the grantee exemption from the requirement to participate
in the State planning process, consistent with section 503(a)(8) of the
2006 OAA. However, the Department continues to encourage exempted
grantees to participate in the State planning process in the areas in
which they operate. Also in paragraph (b), we propose to change the
phrase, ``are exempted from participating in the planning
requirements'' to ``are exempted from the requirement to participate in
the State planning processes,'' for clarity.
The Department proposes to clarify in paragraph (b) that the
exemption from the requirement to participate in the
[[Page 47777]]
State planning process applies to grantees using funds specifically
reserved for projects serving older American Indians and older Pacific
Island and Asian Americans under OAA section 506(a)(3); this
clarification is consistent with section 503(a)(8) of the 2006 OAA. We
also propose to add new language concerning a grantee using both
reserved and non-reserved funds. All grantees of non-reserved SCSEP
funds, including grantees that have also received reserved funds, are
required to participate in the State planning process per paragraph
(a). Having applied for and accepted non-reserved funds, grantees
become subject to the same coordination requirements as all other
recipients of non-reserved funds. Accordingly, if a grantee that
receives reserved funds under one grant is also awarded a non-reserved
funds grant, the grantee is required to participate in the State
planning process for purposes of the non-reserved funds grant.
Finally, we propose to delete from paragraph (b) the statement that
if an exempt grantee chooses not to participate in the State planning
process it is required to describe its plan for serving its
constituency in its grant application. This is redundant because all
grant applications require applicants to describe such plans,
regardless of past participation in the State planning process. We also
make certain grammatical improvements.
What Information Must Be Provided in the State Plan? (Sec. 641.325)
This section lists the minimum requirements of the State Plan,
consistent with section 503(a)(4) of the OAA. In the opening sentences
of the proposed section we add a requirement that the State Plan
include the State's four-year strategy, as required by section
503(a)(1) of the 2006 OAA and as described in Sec. 641.302.
Paragraph (a) remains unchanged. In paragraph (b), we propose to
add a requirement that the State Plan provide information on the
relative distribution of eligible individuals who are limited English
proficient as required by 2006 OAA section 503 (a)(4)(C)(iii). In
paragraph (c), we propose to replace the requirement to identify and
address ``the employment situations and the types of skills possessed
by eligible individuals,'' which appears in the current regulations,
with a new requirement stemming from a revised section 503(a)(4)(D) of
the 2006 OAA, that the plan provide information on the current and
projected employment opportunities in the State (such as by providing
employment statistics available under section 15 of the Wagner-Peyser
Act (29 U.S.C. 491-2) by occupation) and the type of skills possessed
by local eligible individuals. State labor market information is
available through the following link to America's Career Information
Network: http://www.acinet.org/acinet/crl/
library.aspx?PostVal=10&CATID=52. We propose to make these changes in
accordance with the same changes in the 2006 OAA.
Paragraph (d) currently requires a description of the localities
and populations for which community service projects in the State are
most needed. We propose to change this paragraph by removing the words,
``community service'' before the word ``projects'' to follow the same
change in section 503(a)(4)(E) the 2006 OAA.
We propose a slight modification to paragraph (e). Instead of
requiring that the State Plan include actions taken ``or'' planned
concerning coordination with WIA, we require the Plan to include
actions taken ``and/or'' planned to capture actions already taken in
addition to those being planned.
What appears as paragraph (f) in the current regulations is moved
to paragraph (g), and we propose a new paragraph (f), which would
require that the State Plan describe the process used to seek advice
and recommendations on the State Plan from representatives of
organizations and individuals listed in Sec. 641.315, and the process
used to seek 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. Since the
2006 OAA requires that advice and recommendations be sought from
representatives of these organizations and individuals, the Department
believes it is reasonable for the State Plan to describe how this input
was obtained.
Proposed paragraph (g) mirrors what is paragraph (f) in the current
regulations, and requires the State Plan to describe the planning
process, including opportunities for public comment. The only change to
this paragraph is that we propose to add a reference to Sec. 641.350,
which requires the State to solicit public comments.
There is no change to the text of what appears as paragraph (g) in
the current regulations, although it appears as paragraph (h) here. The
paragraph that is labeled (h) in the current regulations is labeled
paragraph (i) here; the only change is that the reference to Sec.
641.365 has been taken out of parentheses. Finally, the text that
appears as paragraph (i) in the current regulations is repeated
verbatim here although it is now labeled paragraph (j).
How Should the State Plan Reflect Community Service Needs? (Sec.
641.330)
There is no change to this provision.
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)
The only proposed change to this provision is to add in the heading
the phrase, ``or the highest government official,'' after the word,
``Governor,'' to be inclusive of jurisdictions where the head of the
government is not a Governor.
How Often Must the Governor, or the Highest Government Official, Update
the State Plan? (Sec. 641.340)
The Department proposes to reword the heading question for this
section because the former heading assumed an annual review of the
State Plan, which is no longer required under the 2006 OAA, and to
include the phrase, ``or the highest government official,'' to be
inclusive of jurisdictions for which the head of the government is not
a Governor. Instead, the 2006 OAA requires that the State Plan be
reviewed, updated, and submitted to the Secretary not less often than
every two years. The Department revises the proposed section to reflect
the new requirement. We encourage States to review their State Plan
more frequently than every two years, and make necessary adjustments
and submit modifications as circumstances warrant. The Department
intends for the State Plan to be a living document that will guide the
strategic and ongoing operations of the SCSEP within the State. Prior
to submitting an update of the State Plan to the Department the
Governor, or 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 publish the
State Plan, showing the changes, for public comment.
We also propose to add cites to corresponding statutory provisions.
What Are the Requirements for Modifying the State Plan? (Sec. 641.345)
The Department proposes a new paragraph (a) to distinguish State
Plan updates from State Plan modifications; the remaining paragraphs
have been re-designated. Whereas States are required to update their
State Plan not less often than every two years, modifications may be
submitted anytime circumstances
[[Page 47778]]
warrant. Both updates and modifications require an opportunity for the
public to comment on the State Plan, but only in the event of a State
Plan update (Sec. 641.340) are States required to seek the advice and
comment of the individuals and organizations identified in Sec.
641.315.
Paragraph (b), which is labeled paragraph (a) in the current
regulations, addresses what circumstances require a modification to the
State Plan. The only changes we propose in paragraph (b) are changing
the word ``strategies'' to ``four-year strategy,'' and adding the word
``significant'' before the word ``changes.'' We propose the latter
change to clarify that trivial changes do not warrant a modification to
the State Plan.
In paragraph (c) we state that modifications to the State Plan must
be open for public comment. We propose to delete a reference to Sec.
641.325 from this paragraph because that section merely lists the
required contents of the State Plan. We propose to leave intact the
reference to Sec. 641.350 which addresses soliciting public comment on
the State Plan. In paragraph (d) we clarify that States need not seek
the advice and recommendations of the individuals and organizations
identified in Sec. 641.315 when modifying the State Plan.
Paragraph (e), which appears as paragraph (c) in the current
regulations, remains unchanged.
How Should Public Comments Be Solicited and Collected? (Sec. 641.350)
There is no change to this provision.
Who May Comment on the State Plan? (Sec. 641.355)
There is no change to this provision.
How Does the State Plan Relate to the Equitable Distribution Report?
(Sec. 641.360)
The equitable distribution report shows where SCSEP positions are
located throughout a State on a grantee-by-grantee basis and is
required by section 508 of the OAA. State grantees are responsible for
preparing the report at the beginning of each fiscal year. SCSEP
grantees use the equitable distribution report to improve on the
distribution of SCSEP positions within the State. The information
contained in the equitable distribution report is used in preparing the
State Plan; however, the State Plan requires additional information.
This section is substantively the same as in the current regulations,
but the Department proposes to change the reference to the State Plan
to reflect the statutory requirement, new to the 2006 OAA, that the
Plan be updated and sent to the Secretary not less often than every two
years, whereas in the current regulations we reference annual State
Plans. The Department also proposes to remove redundant language
concerning the role of the equitable distribution report.
How Must the Equitable Distribution Provisions Be Reconciled With the
Provision That Disruptions to Current Participants Should Be Avoided?
(Sec. 641.365)
This section is largely the same as in the current regulations, but
since the 2006 OAA places time limits on participation in the SCSEP,
the Department proposes to revise this section to provide a cross-
reference to Sec. 641.570 of these regulations, where the new time
limit is addressed. We propose to remove the reference to Sec. 641.575
because limits set on the amount of time a participant spends in a
particular community service employment assignment do not affect the
distribution of SCSEP positions. We also propose to rephrase the first
sentence, concerning avoiding disruptions in services, for greater
clarity. Finally, we make several grammatical and technical
corrections.
Subpart D--Grant Application and Responsibility Review Requirements for
State and National SCSEP Grants
This subpart covers the grant application, eligibility, and award
requirements for all SCSEP grants under section 506 of the 2006 OAA,
which describes distribution of assistance to State and national
grantees. The Department proposes to change the title of this subpart
to clarify that this subpart applies to National and State grants, but
not the pilot, demonstration, and evaluation grants described in
subpart F.
The proposed changes in this subpart support an increased emphasis
on the grantees' accountability for results in order to achieve
enhanced program performance. This subpart describes organizations
eligible to apply for SCSEP grants, application requirements,
eligibility criteria, responsibility reviews, and how the Department
will select grantees. Comments are welcome on the new and revised grant
application, eligibility, and award requirements that are discussed in
this preamble or other changes to this subpart which flow from the 2006
OAA.
What Entities Are Eligible To Apply to the Department for Funds To
Administer SCSEP Projects? (Sec. 641.400)
The Department proposes to delete ``community service'' from the
heading question of this section to be consistent with the rest of
these regulations which generally refer simply to ``SCSEP projects.''
Section 502(b)(1) of the 2006 OAA authorizes the Secretary to make
grants to public and nonprofit private agencies and organizations,
agencies of a State, and tribal organizations, to administer SCSEP
projects. This section is the corresponding regulatory provision.
The Department proposes no changes to paragraph (a). In the current
regulations, paragraph (b) specifies the eligible entities that can
apply for national grant funds in a State if the national grantee
consistently fails to meet State performance measures. The Department
proposes to delete paragraph (b) because under the 2006 OAA, national
grantees are held accountable only for their national goals.
The Department proposes a few changes to former paragraph (c),
which is now labeled paragraph (b), concerning State grants. First, we
divide the paragraph into two parts. Proposed paragraph (b)(1)
addresses the general statutory requirement that the Department award a
SCSEP grant to each State. We propose to change the phrase, ``enter
into agreements with each State,'' to, ``award each State a grant,''
for clarity. Also, whereas the current regulations provide that States
can use individual State agencies, political subdivisions of a State, a
combination of political subdivisions, or a national grantee operating
in the State to administer SCSEP funds, the proposed paragraph provides
that a State may designate only an individual State agency. We propose
to delete the options concerning political subdivisions of a State to
follow the same change in section 502(b)(1) of the 2006 OAA. We propose
to delete the option of a national grantee operating in a State partly
because, to date, all State grantees have been State agencies, and
partly because in the event of the competition contemplated by
paragraph (b)(2), all nonprofit private agencies and organizations are
eligible to compete.
Proposed paragraph (b)(2) provides that a State must compete for
its SCSEP State grant funds in the event that the designated State
grantee fails to meet the expected levels of performance for the core
performance measures for three consecutive years. We propose to change
what appears as the third sentence of paragraph (b) in the current
regulations to the active voice for readability. We also propose to
alter the statutory reference so that we now refer to the section of
the statute that establishes State grant funding rather
[[Page 47779]]
than the statutory section that requires that a State's funds being
competed after repeated failure to meet performance measures.
Finally, the Department proposes to add that the designated entity
that failed to meet core performance measures for three consecutive
years is not eligible to compete for SCSEP funds for the first full
Program Year following the determination of the third year of
consecutive failure. We add this sentence to ensure that the State
competition acts as a consequence for repeated failure to perform. A
similar provision governs national grantees; a national grantee that
fails to meet the expected levels of performance for four consecutive
years is ineligible to compete in the grant competition following the
fourth year of consecutive failure (OAA sec. 513(d)(2)(B)(iii)).
How Does an Eligible Entity Apply? (Sec. 641.410)
This section directs interested applicants, including States, to
follow instructions issued by the Department to apply for a SCSEP
grant. National grants are competed, and the Department generally
publishes application guidelines in Solicitations for Grant
Applications (SGA) in the Federal Register. The Department usually
issues instructions for State grants, which are not competed, in
administrative guidance.
In paragraph (a), the Department proposes to add ``evaluation
criteria'' to the list of what is included in the application
guidelines because these criteria will be set forth in the SGA for
national funds and may change over time. We also propose to change the
phrase, ``State and national SCSEP funds,'' to ``national funds, and
State funds,'' because, under the 2006 OAA, those types of funds are
awarded differently (competitively versus noncompetitively) and on a
different timetable (annually for State versus multi-year for
national). We also propose to delete what is the last sentence of
paragraph (a) in the current regulations, because it redundantly
provides that applications are to be submitted in accordance with
Departmental instructions.
Paragraph (b) implements OAA section 503(a)(5), which requires
national grant applicants to provide their applications to the
Governor, or the highest government official, of the State in which
projects are proposed so that the Governor (or the highest government
official) may make recommendations relating to position distribution.
Grantees have generally provided Governors (or the highest government
official) with executive summaries of their application; the Department
will continue to consider such practice as fulfilling this requirement.
The current regulations exempt Indian organizations from this
requirement because they are exempt from State planning. The Department
proposes to continue this exemption policy, again because it is
consistent with the exemption from State planning under OAA section
503(a)(8). We propose to add organizations serving Pacific Island and
Asian Americans to the exemption because the 2006 OAA also exempted
those organizations from State planning. We propose to clarify that
this exemption from submitting national grant applications to the
Governor, or the highest government official, applies to Indian and
Pacific Island and Asian American organizations seeking funding
reserved under OAA section 506(a)(3). While it remains the policy of
the Department that these organizations are not required to submit
their applications to the Governor (or the highest government
official), we nevertheless encourage such entities to submit their
applications to the Governor(s) in the State(s) they propose to serve
so that the Governor(s) may better plan the activities in their
State(s). We also note that if a grantee that is awarded a grant with
reserved funds chooses to compete for other, non-reserved SCSEP funds,
such a grantee would be required to submit its non-reserved fund grant
application to the Governor (or the highest government official).
We also propose to add a phrase connecting the submission required
in this paragraph to the Governor's (or the highest government
official's) review, which is described in Sec. 641.480 of these
regulations.
In paragraph (c), the Department proposes to delete the phrase,
``community service project'' from between the words ``SCSEP'' and
``grant application'' to be consistent with the rest of these
regulations which merely refer to ``SCSEP grants'' or ``SCSEP grant
applications.'' We also propose to expand the cross-reference to State
Plan requirements so that readers are directed to the entirety of
subpart C.
What Are the Eligibility Criteria That Each Applicant Must Meet? (Sec.
641.420)
The Department proposes to move the former Sec. 641.420, which
addresses what factors we consider in selecting grantees, to Sec.
641.460, so that it follows all the provisions relating to grant
application requirements, and we renumber the remaining sections
accordingly.
This renumbered section, which is Sec. 641.430 in the current
regulations, describes the eligibility criteria for SCSEP grant
applicants. The Department proposes to update language in paragraph
(a), specifying that applicants must demonstrate an ability to
administer a program that serves the greatest number of eligible
participants and most-in-need individuals, to reflect the language of
section 514(c)(1) of the 2006 OAA. Paragraphs (b) and (c) remain the
same.
The Department proposes to add a new paragraph (d) relating to the
applicant's past performance to conform with section 514(c)(4) of the
2006 OAA, and to re-designate the remaining paragraphs accordingly. For
applicants that have previously received a SCSEP grant, this criterion
addresses the applicant's prior performance in meeting SCSEP core and
additional measures of performance. For applicants who have not
received a SCSEP grant in the past, this addresses the applicant's
prior performance under other Federal or State programs. The Department
proposes to add a phrase in paragraph (e) (which is paragraph (d) in
the current regulations) specifying that grantees must be able to move
most-in-need individuals into unsubsidized employment, to reflect the
eligibility criterion specified in section 514(c)(5) of the 2006 OAA.
In paragraph (f), the Department proposes to add the word
``activities'' to clarify the focus of coordination at the State and
local levels, in accordance with the same change in section 514(c)(6)
of the 2006 OAA. We propose one change in paragraph (g), which is
paragraph (f) in the current regulations. We propose to replace the
word, ``including'' with the phrase, ``as reflected in,'' for clarity.
The Department also proposes to add a new paragraph (h), requiring that
grantees be able to administer a project that provides community
service to be considered eligible, in order to be consistent with
section 514(c)(8) of the 2006 OAA. The Department proposes to add the
phrase ``and in community services provided'' in paragraph (i) when
describing a grantee's ability to minimize disruption, in accordance
with section 514(c)(9) of the 2006 OAA. In paragraph (j) (formerly
paragraph (h)), we propose to replace ``Secretary of Labor'' with
``Department'' to be consistent with the rest of these regulations.
[[Page 47780]]
What Are the Responsibility Conditions That an Applicant Must Meet?
(Sec. 641.430)
This section contains the responsibility review provisions codified
in section 514(d) of the 2006 OAA. The Department proposes to add an
opening phrase, ``[s]ubject to Sec. 641.440,'' because that section
addresses responsibility conditions that, alone, will disqualify a
grant applicant. Also in the opening sentence, we propose to replace
the phrase ``any of the acts of misfeasance or malfeasance described in
Sec. 641.440(a)-(n) of this section'' with the simpler, ``any of the
following acts,'' because paragraphs (a) through (n) comprise the
entirety of this section and all are acts of either misfeasance or
malfeasance.
In paragraph (a) the Department proposes to replace the word ``sub-
grantee'' with ``sub-recipient'' for consistency throughout this
proposed rule and with the description of sub-recipients in the Office
of Management and Budget (OMB) Circular A-133. Accordingly, we delete
the term ``sub-contractors'' from this paragraph because the term sub-
recipients includes both sub-grantees and sub-contractors. In paragraph
(e), the Department proposes to change the phrase, ``meet applicable
performance measures,'' to ``meet applicable core performance measures
or address other applicable indicators of performance'' to reflect the
same change in section 514(d)(4)(E) of the 2006 OAA. In paragraph (k),
we propose to delete the reference to 20 CFR 667.200(b) because SCSEP
grantees/sub-recipients are not required to follow the audit
requirements in that regulation. The audit requirements for the SCSEP
are located in Sec. 641.821, which is properly referenced in paragraph
(k).
We also propose several grammatical and clarifying changes.
Are There Responsibility Conditions That Alone Will Disqualify an
Applicant? (Sec. 641.440)
The Department proposes to combine into paragraph (a) what are
paragraphs (a) and (b) in the current regulations for increased
clarity. In what is now paragraph (b), the Department proposes to
clarify that we will determine the existence of significant fraud or
criminal activity. We also propose to revise the language concerning
handling Federal funds to be grammatically correct. The Department
proposes to revise the last sentence on fraud or criminal activity
determination for readability and to again clarify that the Department
makes that determination.
How Will the Department Examine the Responsibility of Eligible
Entities? (Sec. 641.450)
The Department proposes to remove the words ``conduct a'' and
``of'' from the phrase ``conduct a review of available records,'' for
readability.
What Factors Will the Department Consider in Selecting National
Grantees? (Sec. 641.460)
The Department proposes to move the former Sec. 641.420, which
addresses what factors we consider in selecting grantees, to Sec.
641.460, so that it follows all the provisions relating to grant
application requirements, and we renumber the remaining sections
accordingly. Also, we propose to add the word, ``national,'' to the
heading of this section because the Department only executes
competitions for national grants. Although a State grant must be
competed if the designated State agency fails to achieve its core
performance levels for three consecutive years, it is the State rather
than the Department that carries out such a competition.
This section describes the criteria to be used for the selection of
national SCSEP grantees. The Department proposes to drop the
conditional language ``if there is a full and open competition''
because the 2006 OAA requires a regular competition for national
grants. The Department also proposes to drop the reference to past
performance among the rating criteria the Department will consider, and
instead adds a new criterion relating to past performance in the
section on eligibility criteria (Sec. 641.420). The Department makes
this change in accordance with the 2006 Amendments to section 514(c)(4)
of the OAA. We also propose to clarify in the second sentence that the
sections to which we refer are sections of these regulations, to avoid
any possible confusion with sections of the OAA.
Under What Circumstances May the Department Reject an Application?
(Sec. 641.465)
The only change we propose to make to this section is removing the
word ``program'' after ``the SCSEP'' because the ``P'' in the acronym
SCSEP stands for program.
What Happens If an Applicant's Application Is Rejected? (Sec. 641.470)
The Department proposes to revise this section to accurately
reflect the process currently used by the Department for applications
that are not funded. Under the current process, non-selected entities
that request an explanation are provided with feedback on the
shortcomings of their proposal. We also propose to include a reference
in paragraph (a) to Sec. 641.900, which addresses the appeal process
available to a rejected applicant. We propose to reword paragraph (b)
to clarify that incumbent grantees are not to receive any technical
assistance related to any new application/proposal which they are
submitting or planning to submit for a possible new award. Any
technical assistance that incumbent grantees receive must relate to
activities and/or performance under the existing grant.
The Department proposes to revise what appears as paragraph (c) in
the current regulations in several ways. First, we propose to divide it
into three paragraphs, now lettered (c), (d), and (f), for clarity. We
also revise the text of what is paragraph (c) so that proposed
paragraphs (c) and (d) accurately reflect and clarify the possible
remedies on appeal. We propose to include another reference to Sec.
641.900 in proposed paragraph (c). In paragraphs (c) and (d) we propose
to change the word ``slot'' to ``position'' to be consistent with the
use of the term ``position'' in the rest of these regulations.
The Department proposes to add a new paragraph (e) to clarify that
if a party is not satisfied with the Grant Officer's decision about
whether the organization continues to meet the requirements of this
part, whether positions will be awarded to the organization, and the
timing of the award, the Grant Officer must return the decision to the
Administrative Law Judge for review. We propose to re-designate the
remaining paragraph, which appears as paragraph (d) in the current
regulations, as paragraph (f).
We also propose grammatical and clarifying changes.
May the Governor, or the Highest Government Official, Make
Recommendations to the Department on National Grant Applications?
(Sec. 641.480)
This section explains the Governor's, or the highest government
official's, statutory authority under section 503(a)(5) of the OAA to
make recommendations to the Department on grant applications before
funds are awarded. We propose to add the word ``national'' to the
heading because this section is limited in application to national
grants. We propose to add to paragraph (a) a reference to Sec.
641.410(b); that is the regulatory provision that requires national
grant applicants to submit their application to the Governor, or the
highest government official, of each State in which projects are
proposed. We also propose to add a
[[Page 47781]]
citation to the OAA. In paragraph (b), the Department proposes to drop
the reference to the Governor making recommendations under
noncompetitive conditions because national grants will now be competed
on a regular basis.
When Will the Department Compete SCSEP Grant Awards? (Sec. 641.490)
This section outlines the circumstances under which there must be a
competition for SCSEP funds. The Department proposes to divide
paragraph (a) into two subparagraphs. In paragraph (a)(1), we propose
to reflect the statutory requirement that the Department will generally
hold a competition for national grants every four years. We also
propose to state that we will publish a Solicitation for Grant
Applications in the Federal Register. In paragraph (a)(2) we propose to
add a sentence indicating that the statute gives the Department the
authority to provide an additional one-year grant to national grantees.
The Department makes these changes to paragraph (a) in accordance with
section 514(a) of the 2006 OAA; we propose to add specific statutory
cites to both subparagraphs of paragraph (a).
The Department proposes to revise paragraph (b) to specify that
when a State grantee fails to meet its expected levels of performance
for the core indicators for three consecutive Program Years, the State
must hold a full and open competition for the SCSEP funds allotted to
the State. We propose this change in accordance with section
513(d)(3)(B)(iii) of the 2006 OAA, and propose to add a cite to this
paragraph.
When Must a State Compete Its SCSEP Award? (Sec. 641.495)
The Department proposes a new section to address the competition
that is required if a State grantee fails to meet its expected core
levels of performance for three consecutive Program Years. Performance
measures were discussed in the IFR, 72 FR 35832, June 29, 2007.
Subpart E--Services to Participants
This subpart covers services to SCSEP participants. The Department
here proposes to implement new provisions in the 2006 OAA relating to
income eligibility, priorities in enrollment of participants, changes
in benefit policies, and time limits for program participation. We also
address the types of services that participants may receive, procedures
concerning termination from the program, and the grantee's
responsibilities relating to participants. Comments are welcome on the
proposed changes to subpart E described in this preamble or on other
changes to subpart E which flow from the 2006 Amendments.
Who Is Eligible To Participate in the SCSEP? (Sec. 641.500)
This provision establishes the statutorily defined eligibility
criteria. The Department proposes to move what was paragraph (b) of
this section, concerning cross-border agreements, to Sec. 641.515 of
these regulations, which addresses participant recruitment and
selection, because cross-border agreements are more relevant to
participant recruitment than they are to participant eligibility. We
propose to revise the remaining paragraph, which is paragraph (a) in
the current regulations, to add the requirement that age- and income-
eligible individuals must also be unemployed, as required by section
502(a)(1) of the 2006 OAA. In the current regulations, the requirement
that the applicant be unemployed is only referenced in the regulations
at Sec. 641.120, relating to program purpose; the Department
subsequently issued administrative guidance clarifying that being
unemployed was an eligibility criterion (TEGL No. 13-04). We interpret
section 502(a)(1) of the 2006 OAA as treating unemployment as a SCSEP
eligibility criterion. Such an interpretation is consistent with the
training purpose of this program, and is also consistent with the
policy expressed in Sec. 641.512 of these regulations that job-ready
individuals cannot be enrolled in the SCSEP but should be referred to
an employment provider. Moreover, including unemployment as an
eligibility criterion is consistent with the role of the SCSEP as
serving seniors who are most in need of employment and training
services. We also propose to add the word, ``Federal,'' to clarify that
the poverty guidelines we refer to are Federal poverty guidelines.
When Is Eligibility Determined? (Sec. 641.505)
This section states that initial eligibility is determined at the
time of an individual's application. After the initial eligibility
determination, grantees/sub-recipients are responsible for verifying
the eligibility of participants at least once every 12 months, and may
do so more frequently as circumstances require.
The Department proposes to add the phrase, ``including instances
when enrollment is delayed,'' to the last sentence of this section.
Many grantees/sub-recipients maintain waiting lists and considerable
time may pass from the time of initial eligibility determination to the
time when a SCSEP position becomes available. Accordingly, we indicate
through this additional phrase that delayed enrollment is one example
of a circumstance when it may be appropriate to verify continued
eligibility of an individual.
How Is Applicant Income Computed? (Sec. 641.507)
This proposed new section discusses computing income eligibility.
We propose to move the section that is numbered Sec. 641.507 in the
current regulations, which addresses what types of participant income
are included and excluded to Sec. 641.510.
Section 518(a)(4) of the 2006 OAA delineates the procedure for
calculating participant income. The Department implemented these
procedures effective January 1, 2007, when it issued TEGL No. 12-06. We
now propose to establish the same procedures in this section. Grantees
may calculate income based on the income received during the 12 months
prior to application, or may annualize the income received during the 6
months prior to application. (Program guidance prior to TEGL No. 12-06
limited the calculation time period to the 6 months prior to
application, annualized.) The Department encourages 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 eligible
applicants.
What Types of Income Are Included and Excluded for Participant
Eligibility Determinations? (Sec. 641.510)
The Department proposes to delete the heading and content of what
appears as Sec. 641.510 in the current regulations, which addresses
terminating a participant who becomes income ineligible, because
terminations are fully addressed in Sec. 641.580. The content of what
is Sec. 641.510 in the current regulations is covered in Sec.
641.580(b) of this proposed rule.
The section addressing what types of income are included and
excluded is numbered Sec. 641.507 in the current regulations. We
propose to move this heading to Sec. 641.510 so that it may follow the
section on computing income.
The Department proposes to revise the substance of this section to
include the 2006 OAA's requirements relating to income eligibility
determinations and to refer to the administrative guidance that
provides a complete explanation of SCSEP participant income eligibility
determination procedures.
[[Page 47782]]
Section 518(a)(3)(A) of the 2006 OAA excludes four sources of
income from SCSEP income eligibility determinations. The Department
issued administrative guidance in TEGL No. 12-06, which implemented
these exclusions effective January 1, 2007. The Department implemented
these exclusions prior to the effective date of the 2006 OAA (July 1,
2007) in order to alleviate the difficulties grantees and sub-
recipients have encountered in recruiting sufficient numbers of
eligible individuals under the prior income eligibility guidelines.
In general, the Department utilizes definitions from the U.S.
Census Bureau's Current Population Survey (CPS) to define income for
the purposes of SCSEP income eligibility. However, in addition to the
statutory exclusions noted above, TEGL No. 12-06 carries forward
additional exceptions to the CPS definitions of income for purposes of
SCSEP income eligibility determinations from guidance in effect prior
to the 2006 OAA. The additional exceptions are based on the recognition
that these income sources (e.g., child support, public assistance,
income from employment and training programs) rise out of some state of
dependency or are intended to encourage individuals drawing benefits to
return to work and should not disqualify otherwise needy individuals.
TEGL No. 12-06 is available on the SCSEP Web site, http://
www.doleta.gov/seniors, under the Grantee Information, Technical
Assistance link.
May Grantees/Sub-Recipients Enroll Otherwise Eligible Individuals and
Place Them Directly Into Unsubsidized Employment? (Sec. 641.512)
The 2006 OAA and the Department encourage grantees/sub-recipients
to work with those participants who are the most difficult to place,
rather than those ready for immediate job placement, to provide them
with the services necessary to develop the skills needed for job
placement. The Department proposes to move and substantially revise
what is Sec. 641.560 in the current regulations and replace it with
proposed Sec. 641.512. We propose to change the heading from Sec.
641.560 to clarify that the subject of this section is not participants
but potential participants. We propose to move this provision to
641.512 so that it appears with more closely-related topics such as
eligibility, recruitment, and selection.
In the current regulations, Sec. 641.560 encourages grantees not
to enroll individuals who can be placed directly into unsubsidized
employment. Proposed Sec. 651.512 forbids grantees to enroll job-ready
individuals, instead encouraging grantees to refer them to an
employment provider such as the One-Stop Center for job placement
assistance under WIA. In this way, the SCSEP can use its limited
dollars to serve those who need the training the SCSEP provides, while
individuals who do not need training can be served by an entity such as
the One-Stop Career Center.
How Must Grantees/Sub-Recipients Recruit and Select Eligible
Individuals for Participation in the SCSEP? (Sec. 641.515)
This section addresses recruitment and selection methods, including
use of the One-Stop Delivery System, to ensure that the maximum number
of eligible individuals have an opportunity to participate in the
SCSEP.
In the current regulations, paragraph (a) includes a list of
persons (such as minority individuals and limited English speakers)
whom grantees should seek to enroll in the SCSEP. The list derived from
OAA section 502(b)(1)(M), which was amended in the 2006 OAA.
Accordingly, the Department proposes to revise the list in paragraph
(a) to reflect the amended statutory language.
In paragraph (b), we propose to delete the sentence concerning
listing community service opportunities with the State Workforce Agency
because the corresponding statutory language was omitted from section
502(b)(1)(H) in the 2006 OAA.
Paragraph (c), concerning cross-border agreements, is new to this
section. In the current regulations this paragraph appears in Sec.
641.500, which addresses eligibility. The Department proposes to move
this paragraph because cross-border agreements are more relevant to
participant recruitment than they are to participant eligibility. We
propose to specify that grantees entering into cross-border agreements
must submit such agreements to the Department ``for approval'' to
reflect current practice. Also in paragraph (c), the Department
proposes to replace the word ``slot'' with ``position'' to be
consistent with the rest of this part. Finally we propose to replace
the word, ``between,'' with, ``among,'' to allow for cross-border
agreements involving more than two states.
Are There Any Priorities That Grantees/Sub-Recipients Must Use in
Selecting Eligible Individuals for Participation in the SCSEP? (Sec.
641.520)
In paragraph (a) of this section, the Department proposes to list
the new statutory selection priorities identified in section 518(b) of
the 2006 OAA. In paragraph (b), we interpret the priority for veterans
as we did in the current regulations, such that the veterans' priority
is afforded to individuals meeting the requirements of section 2(a) of
the Jobs for Veterans Act (JVA), Public Law 107-288 (2002), which
includes certain spouses of veterans.
In paragraph (c), we propose to specify an order for applying the
priorities. The order has changed from what appears in the current
regulations because the statutory priorities have changed. The proposed
ordering of priorities incorporates the dual statutory priorities
contained in the JVA and the OAA and is consistent with Departmental
guidance on that topic (TEGL No. 5-03, available on the Department's
Web site). Like other programs, veterans who also possess other of the
OAA priority characteristics receive the highest preference. Because
veteran status is a priority in both the OAA and the JVA, veterans
without other of the OAA priority characteristics would be next in
order of priority, followed by non-veterans with OAA priority
characteristics.
Are There Any Other Groups of Individuals Who Should Be Given Special
Consideration When Selecting SCSEP Participants? (Sec. 641.525 in the
Current Regulations)
The Department proposes to delete the section that appears as
641.525 in the current regulations because the statutory provision upon
which it is based, OAA section 502(b)(1)(M), is addressed in Sec.
641.515(a).
Must the Grantee/Subgrantee Always Select Priority or Preference
Individuals? (Sec. 641.530 in the Current Regulations)
The Department proposes to delete the section that appears as
641.530 in the current regulations, because according to section 518(b)
of the 2006 OAA, a priority individual must always be chosen over a
non-priority individual, when a choice must be made. We note that some
grantees have ample program openings, so that all eligible individuals
may be served. However, if there is only one opening and two eligible
individuals apply, one of whom is a priority individual, the 2006 OAA
requires that the priority individual be given the program position.
What Services Must Grantees/Sub-Recipients Provide to Participants?
(Sec. 641.535)
This section sets forth those services that grantees/sub-recipients
must provide to all SCSEP participants. Grantees are encouraged to
utilize the
[[Page 47783]]
WIA system to assist in accomplishing the responsibilities outlined in
this section.
Paragraph (a)(2) of this section describes the grantees'/sub-
recipient's responsibility for assessing participants. The Department
proposes to divide this paragraph into two subparts, the first
addressing what should be assessed, and the second addressing the
frequency of assessments. The sentence that now appears in proposed
paragraph (a)(2)(i) is the first portion of paragraph (a)(2) in the
current regulations. In proposed paragraph (a)(2)(ii) we revise the
language that appears as the remaining portion of paragraph (a)(2) in
the current regulations. We propose to state that the various
assessment functions described in paragraph (a)(2)(i) of this section
must be done initially upon program entry, and then subsequently as
necessary, but at least two times a year. The initial assessment may
count as one of the two that are required in the first year. This
clarification is consistent with the expectation that unsubsidized
employment is a goal for SCSEP, and all participants should be
periodically assessed to check their progress toward transitioning to
unsubsidized employment.
We propose several changes to paragraph (a)(3) of this section,
which concerns IEPs. First, we propose to divide this paragraph into
two subparagraphs to clearly delineate grantee/sub-recipient
responsibilities related to the IEP. We propose to add the phrase,
``that includes an appropriate employment goal,'' after, ``develop an
IEP,'' in paragraph (a)(3)(i) because unsubsidized employment is a goal
for all of the SCSEP, and every IEP should be oriented toward that
eventual goal. We propose to remove the reference to Sec. 641.260 that
appears in the current regulations; such a section does not exist in
the current regulations nor is it in the proposed regulation. Instead,
Sec. 641.230 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, so we add a reference to
that section in paragraph (a)(3)(i). We propose to add the word,
``initial,'' before the word, ``assessment'' in paragraph (a)(3)(i) to
distinguish this assessment from subsequent assessments. Additionally,
the Department proposes to change the wording in both subparagraphs of
paragraph (a)(3) to refer to an individual participant and an IEP
rather than using the plural ``participants'' and ``IEPs;'' we propose
these changes to clarify that an IEP must be developed for each
participant individually. We also propose to add the words ``assessment
and'' between ``WIA'' and ``IEP'' to clarify that assessments and IEPs
are distinct; an assessment is used to develop an IEP. Finally, in
proposed paragraph (a)(3)(ii), which addresses updating the IEP, we
make one change from the language that appears as the last portion of
paragraph (a)(3) in the current regulations. We propose to add the
word, ``subsequent'' before ``participant assessments'' to distinguish
these assessments from the initial assessment.
With regard to the assessments and IEPs discussed in paragraphs
(a)(2) and (a)(3), we note that section 502(b)(1)(N) of the 2006 OAA
requires that grantees/sub-recipients prepare an assessment of
participants' skills, talents, and needs for services, and a ``related
service strategy.'' The Department has determined that preparation of
the IEP fulfills the requirement for a related service strategy.
In paragraph (a)(4) of this section we propose to change the word
``activity'' to ``assignment'' to be consistent with the term
``community service employment assignment'' used throughout this
proposed rule.
Paragraph (a)(5) broadly addresses the training services that
grantees/sub-recipients must provide to participants. (Section 641.540
addresses the specific types of training that may be provided.) In the
current regulations there are two paragraphs concerning training:
Paragraph (a)(5) addresses training specific to the community service
employment assignment and paragraph (a)(6) addresses other training
identified in participants' IEP. The Department proposes to merge those
two paragraphs into a single paragraph because all training, whether or
not initially provided specific to a community service assignment, must
be consistent with a participant's IEP and should move the participant
toward the goal of unsubsidized employment. Indeed, we consider the IEP
to drive all services provided to participants, including training
services. The remaining paragraphs have been renumbered accordingly.
We note that it is still permissible to provide training that
enables a participant to successfully fulfill the duties of his or her
community service employment assignment. However, such training is
acceptable only so long as it is consistent with the IEP. Further, all
training must contribute to the eventual goal of unsubsidized
employment. Clearly, IEPs and training needs will vary greatly among
participants. Nevertheless, the course charted in the IEP should be
pointed in the direction of unsubsidized employment, and any training
provided should advance the participant further along in that same
direction.
Paragraph (a)(6), which appears as paragraph (a)(7) in the current
regulations, remains unchanged. Proposed paragraphs (a)(7) and (a)(8)
of this section appear in the current regulations, but are located at
paragraphs (a)(12) and (a)(13). We propose to move them to paragraphs
(a)(7) and (a)(8) to give a better sense of time order in the
grantee's/sub-recipient's responsibilities. In paragraph (a)(7), the
Department proposes to add the phrase ``or referring participants to
appropriate services'' to more closely follow the statute and to
indicate that, in addition to providing services directly or through
WIA partner programs, SCSEP grantees/sub-recipients can use the One-
Stop Centers to access the services of other service providers in the
community.
In paragraph (a)(9) of this section, the Department proposes to
change the term ``fringe benefits'' to ``benefits.'' We propose to
delete the word ``fringe'' from the phrase ``fringe benefits''
throughout this proposed rule, to reinforce the notion that the SCSEP
is a temporary training program as opposed to a more permanent
employment situation, and to correspond to the same change in section
502(c)(6)(A) of the 2006 OAA. The Department also proposes to specify
in paragraph (a)(9) that participants must receive a wage while in
training, to conform to the 2006 OAA at sections 502(b)(1)(I),
502(b)(1)(J), and 502(c)(6)(A), as well as during orientation. Lastly,
we propose to add to this paragraph a reference to the specific
regulation sections that address wages and benefits.
The paragraphs that appear as (a)(9) and (a)(11) in the current
regulations remain unchanged but appear here as paragraphs (a)(10) and
(a)(11). The Department proposes to delete what is paragraph (a)(10) in
the current regulations. That paragraph requires grantees to verify
participant income at least once every 12 months and is repetitive of
Sec. 641.505. We also propose to delete what is paragraph (a)(14) in
the current regulations, which discusses following up with participants
to determine their need for supportive services after placement into
unsubsidized employment, for two reasons. First, Sec. 641.545 already
permits grantees to provide or arrange for supportive services after
placement into unsubsidized employment. Second, the paragraph's
placement in the current
[[Page 47784]]
regulations in this section meant that grantees/sub-recipients were
required to follow up with participants to determine if they needed
supportive services. Although the Department strongly encourages
follow-up with participants to support them in their unsubsidized
employment, it is not required. (OAA sec. 502(c)(6)(A)(iv)).
We also propose to delete what is paragraph (a)(15) in the current
regulations. That paragraph requires grantees/sub-recipients to follow
up with former participants to determine whether that person was still
employed. Although grantees/sub-recipients are still required to obtain
retention data, it is not necessarily done by contacting the
participant, nor is that a service provided to the participant, which
is the subject of this section.
Paragraph (b) of this section remains unchanged. Paragraph (c) of
this section states that grantees may not use SCSEP funds for
individuals who only need job search assistance or job referral
services. We propose to add to this paragraph a parenthetical reference
to Sec. 641.512, which provides that grantees cannot enroll job-ready
participants, but must refer them to an employment provider such as the
One-Stop Center for job placement assistance.
Finally, we propose several grammatical and technical corrections
in this section.
What Types of Training May Grantees/Sub-Recipients Provide to SCSEP
Participants in Addition to the Training Received at the Community
Service Employment Assignment? (Sec. 641.540)
This section addresses the many forms that SCSEP training may take.
Training received at the community service employment assignment is not
within the scope of this section, however. The Department proposes to
rephrase the heading accordingly, for clarity. For the same reason, we
also propose to delete what appears in the current regulations as the
last sentence of paragraph (a) of this section.
Paragraph (a) provides the conceptual framework for training. The
Department proposes to add the phrase ``and that prepares them for
unsubsidized employment'' to this paragraph because SCSEP training
should advance the participant toward the goal of unsubsidized
employment.
In paragraph (b), the Department proposes to replace training
``before or after placement in'' with ``prior to beginning or
concurrent with'' a community service employment assignment. This
change is consistent with statutory language at section
502(c)(6)(A)(ii) of the 2006 OAA, and clarifies that training may take
place as soon as a participant has been assigned to a community service
employment assignment even if the participant has not yet begun working
at that assignment.
Since the current regulations were published, online training has
become more common. In many cases quality training can be obtained in
an online environment that allows individuals with transportation
difficulties access to training. Therefore, the Department proposes to
add ``online instruction'' to the list of the types of training
allowable in paragraph (c) to clarify that such instruction is an
allowable use of training funds.
The Department proposes to remove the following sentence which
appears as paragraph (d) of this section in the current regulations:
``Grantees and sub-recipients are encouraged to place a major emphasis
on training available through on-the-job experience.'' The Department
proposes this change because secs. 502(b)(1)(I) and 502(c)(6)(A)(ii) of
the 2006 OAA emphasize the importance of all types of training in the
SCSEP, not only on-the-job training. What is paragraph (e) in the
current regulations becomes proposed paragraph (d) and is unchanged.
The Department proposes to split what is paragraph (f) in the
current regulations into two paragraphs. The first portion, addressing
paying for training, becomes paragraph (e). We revise the language in
paragraph (e) to mirror the language at section 502(c)(6)(A)(ii) of the
2006 OAA. The second portion, addressing wages during training, stands
alone as the new paragraph (f). The Department also proposes to change
the new paragraph (f), to state that participants ``must'' be paid
wages while in training, to be consistent with the amended statute.
(OAA sec. 502(b)(1)(I)). We also propose to add a reference to the
paragraph of the proposed rule that describes participants' wages.
The Department proposes to broaden paragraph (g) to address
supportive services generally, whereas the subject of this paragraph in
the current regulations is, ``travel and room and board.'' We propose
this change to conform with section 502(b)(1)(L) of the OAA. The
Department encourages grantees and sub-recipients to seek outside
sources of assistance to help provide supportive services to
participants. We continue to say that a grantee/sub-recipient ``may''
pay for the costs of supportive services for two reasons: first,
because we encourage grantees/sub-recipients to obtain supportive
services from sources other than the grant whenever possible and
second, because a grantee/sub-recipient is not required to provide
supportive services when it determines that the supportive services
would be too expensive, are not available, or would not be necessary to
enable the participant to participate in the program. When a grantee/
sub-recipient decides to approve supportive services, however, it must
either pay for or obtain the services.
Paragraph (h) explains that in addition to training paid for by the
SCSEP, participants may obtain training on their own, if they wish. We
propose to clarify that any such training would be at the participant's
own expense.
What Supportive Services May Grantees/Sub-Recipients Provide to
Participants? (Sec. 641.545)
This section addresses the supportive services that grantees/sub-
recipients may provide to participants. In paragraph (a), the
Department proposes to replace ``supportive services to assist
participants'' with ``supportive services that are necessary to enable
an individual'' to successfully participate in SCSEP projects, to
conform to language in secs. 502(c)(6)(A)(iv) and 518(a)(7) of the 2006
OAA. The Department interprets this revision in statutory language
concerning the purpose of supportive services to be somewhat more
prescriptive. That is, the supportive services that are appropriately
provided by the SCSEP are those that are necessary to make it possible
for an individual to participate in the SCSEP--not just any supportive
service that would assist an individual to participate in the program.
Indeed, we view the new language as conveying a tighter requirement
that the supportive services be more directly related to the eventual
employment goal.
At the same time, we also propose to change ``child and adult
care'' to ``dependent care,'' ``temporary shelter'' to ``housing,'' and
add needs-related payments, as examples of supportive services. These
revisions are consistent with the language in OAA section 518(a)(7),
and are chosen to be as inclusive as possible of all allowable
supportive services. Therefore, while we interpret the purpose of SCSEP
supportive services to be slightly narrower than in the past, the scope
of available supportive services is slightly more expansive. We also
propose to add to this paragraph a citation to the provision of the
2006 OAA that defines supportive services. Paragraph (b) remains
unchanged.
We propose to add a paragraph (c) to this section, and move to it a
revised
[[Page 47785]]
version of what appears in Sec. 641.555(a) in the current regulations.
Section 641.555(a) requires grantees to contact participants during the
first six months following placement to determine their need for
supportive services. In the proposed paragraph (c), the Department
proposes to change ``must'' to ``are encouraged to,'' to clarify that
there is no statutory requirement that grantees/sub-recipients follow-
up with participants after they have been placed in unsubsidized
employment. The statute allows such follow-up, however, and the
Department strongly encourages it. Also in paragraph (c), the
Department proposes to extend the time period during which grantees/
sub-recipients may contact placed participants from 6 months to 12
months. We propose this change because one of the new additional SCSEP
indicators of performance is retention in employment at one year;
grantees/sub-recipients should be authorized to support placed
participants in maintaining their employment throughout this one-year
timeframe. The Department also proposes to change the word ``during''
to ``throughout'' in describing the 12 month period, to clarify that
the Department prefers that grantees/sub-recipients not wait until 12
months have passed to contact a placed participant. Instead, we
encourage grantees/sub-recipients to contact placed participants as
often as necessary to ensure that they have the needed supportive
services to maintain unsubsidized employment. SCSEP grantees/sub-
recipients may utilize other organizations, including One-Stop
partners, to contact the placed participants on behalf of the SCSEP, to
determine if supportive services are necessary. SCSEP grantees/sub-
recipients are authorized to pay for or arrange for necessary
supportive services during this twelve month period.
What Responsibility Do Grantees/Sub-Recipients Have To Place
Participants in Unsubsidized Employment? (Sec. 641.550)
This section outlines grantees'/sub-recipients' responsibility to
place participants in unsubsidized employment. The Department proposes
to change ``should'' to ``must,'' and ``reasonable efforts'' to ``every
effort,'' in the proposed clause ``grantees and sub-recipients must
make every effort to place participants into unsubsidized employment.''
We propose these changes to strengthen the emphasis on placement in
unsubsidized employment, consistent with the 2006 OAA. The Department
proposes to remove the phrase ``in accordance with each participant's
IEP,'' which appears in the first sentence of this section in the
current regulations, and the phrase that appears in the second
sentence, ``whose IEPs include an unsubsidized employment placement
goal,'' to emphasize that a goal for all of the SCSEP is to move
participants into unsubsidized employment. Similarly, the Department
proposes to remove the phrase ``as many as possible'' in the first
sentence to again emphasize that unsubsidized employment is a goal for
the SCSEP. Finally, the Department proposes to add the phrase ``and
because the SCSEP limits the amount of time a participant can remain in
the program'' to the first sentence because the 2006 OAA establishes a
time limit for SCSEP participation that reinforces the responsibility
to place participants in unsubsidized employment. (OAA sec.
518(a)(3)(B)).
What Responsibility Do Grantees Have to Participants Who Have Been
Placed in Unsubsidized Employment? (Sec. 641.555 in the Current
Regulations)
The Department proposes to remove this section from the
regulations.
We propose to move what is paragraph (a) of this section,
addressing grantees contacting placed participants to determine their
need for supportive services, to Sec. 641.545(c). Paragraph (b) of
this section requires grantees to contact participants to obtain
retention data. Paragraph (c) of this section states that subparts G
and H of this part may include follow-up requirements. We propose to
remove paragraphs (b) and (c) because grantees are not required to
contact former participants to obtain retention data; retention
information is generally obtained through other means.
May Grantees Place Participants Directly Into Unsubsidized Employment?
(Sec. 641.560 in the Current Regulations)
In the current regulations, this section encourages grantees not to
enroll individuals who could be placed directly into unsubsidized
employment. The Department proposes to remove this section; this topic
is now addressed in a new Sec. 641.512 in this part.
What Policies Govern the Provision of Wages and Benefits to
Participants? (Sec. 641.565)
The Department proposes significant substantive changes to this
section required by revisions in section 502(c)(6)(A)(i) of the 2006
OAA. The Department also proposes to change the formatting of this
section to outline form, rather than paragraphs containing multiple
sentences, for clarity.
Paragraph (a) of this section addresses participant wages. In
paragraph (a)(1)(i) we propose to delete the phrase ``required by the
grantee/subgrantee'' after the word ``training'' because the 2006 OAA
requires participants to be paid for all time spent in training. OAA
section 502(b)(1)(I). Also, the SCSEP no longer uses the term
``required training.'' Although the program may in the past have
considered training called for in the IEP to be ``necessary'' or
``required'' training, those terms are no longer employed. Indeed,
under these proposed regulations all training provided by the SCSEP
should be identified in the IEP. We also propose to remove the words
``work in'' before ``community service employment assignments'' because
they are not needed in the amended language. We also propose to change
``minimum'' to ``required'' in the phrase, ``highest applicable
required wage,'' because the prevailing rate of pay is not a minimum
wage.
In proposed paragraph (a)(1)(ii) the Department states that
grantees may pay participants for time spent on WIA intensive services.
This policy is not new; it is stated in Sec. 641.240(d) in the current
regulations. However, we propose to move the provision so that it
appears here, in the provision relating to wages.
Paragraph (a)(2) addresses the highest applicable required wage,
and is essentially unchanged from the current regulations. The only
change is to again change the word, ``minimum'' to ``required,'' in the
phrase ``highest applicable required wage'' because the prevailing rate
of pay is not a minimum wage.
In paragraph (a)(3), the Department proposes to add language to
clarify the grantee's/sub-recipient's responsibility to make any
necessary adjustments in minimum wage rates during the course of the
grant term, should such a change be required by Federal, State, or
local statute. Grantees are responsible for managing their funds well
and enrolling only as many participants as they have the capacity to
serve. In determining how many participants to enroll, grantees should
make reasonable efforts to anticipate any likely adjustments in the
minimum wage rates that may be required during the grant term.
Paragraph (b) of this section addresses benefits. The Department
proposes to change the term ``Fringe Benefits'' to ``Benefits'' in the
heading and remove ``fringe'' from the subheadings and in the text of
the regulations. As discussed above, we propose this change throughout
this part to reinforce the notion that the SCSEP is a temporary
[[Page 47786]]
training program as opposed to a more permanent employment situation,
and to adhere to the same change in section 502(c)(6)(A) of the 2006
OAA.
The Department proposes to organize paragraph (b) to distinguish
two categories of participant benefits: required and prohibited. These
categories clearly communicate to grantees and sub-recipients both
obligations and proscriptions. This organization is also consistent
with language in the 2006 OAA. In the 2000 OAA, section 502(c)(6)(A)(i)
merely described ``enrollee wages and fringe benefits (including
physical examinations),'' but in the 2006 OAA the same section was
expanded to mention various required and prohibited benefits.
Proposed paragraph (b)(1) addresses required benefits. Grantees/
sub-recipients must provide such benefits as are required by law.
Grantees should determine which benefits are required by law in their
area(s) and should submit that information as part of their grant
application.
Proposed paragraph (b)(1)(i) remains unchanged; in this paragraph
we state that grantees/sub-recipients must provide benefits uniformly
to all participants within a project or subproject. Proposed paragraph
(b)(1)(ii) also remains unchanged, and provides that participants must
be offered the opportunity to receive a physical examination annually.
Proposed paragraphs (b)(1)(ii)(A) and (b)(1)(ii)(B), which further
address physical examinations, also remain unchanged. We propose a new
paragraph (b)(1)(ii)(C) in which we state that SCSEP funds may be used
to pay the costs of the physical examinations. Some grantees and sub-
recipients are able to obtain physical examinations at no cost, or
locate other sources of assistance to pay for the examinations. The
Department encourages this sort of leveraging of community resources.
Nevertheless paying for the physical examinations with grant funds is
an allowable SCSEP cost.
Proposed paragraph (b)(1)(iii) addresses workers' compensation law;
this paragraph is unchanged from the current regulations. Proposed
paragraph (b)(1)(iv) concerns unemployment compensation. If State law
requires grantees/sub-recipients to provide unemployment compensation
coverage, then clearly it would be a required benefit under the SCSEP.
For that reason, and to be consistent with the treatment of
unemployment compensation coverage by the 2006 OAA as a required
benefit, we propose to move and revise the regulatory provision
addressing unemployment compensation to this paragraph. In the current
regulations this provision is located at paragraph (b)(4) of this
section, and is phrased in the negative (``[u]nless required by law,
grantees may not * * *''). We propose to place this provision at
paragraph (b)(1)(iv) and state that if it is required by State law,
then grantees/sub-recipients must provide unemployment compensation
coverage. We note that where not required by State law, unemployment
compensation coverage is not an allowable benefit.
The Department proposes to add a requirement at paragraph
(b)(1)(v), in accordance with section 502(c)(6)(A)(i) of the 2006 OAA,
requiring grantees and sub-recipients to provide compensation for
scheduled work hours during which an employer's business is closed for
a Federal holiday. For the limited purpose of implementing this
provision, the Department proposes to interpret the word ``employer''
in section 502(c)(6)(A)(i) of the 2006 OAA to mean host agency. This
interpretation will promote uniform treatment of SCSEP participants at
the same host agency, regardless of which entity is the program
operator.
The Department broadly interprets the word ``compensation'' in this
context to allow for a variety of practices. Grantees/sub-recipients
may compensate participants for scheduled work hours during which a
host agency is closed for a Federal holiday by methods such as paying
for the time a participant would have worked had it not been a Federal
holiday (essentially a paid day off), or allowing a participant to make
up the missed work hours on other days. Other methods of compensation
may be allowable, but must be discussed in the grant application.
Whatever the method of compensation offered, the compensation must be
used within a reasonable period of time, and within the Program Year.
Grantees and sub-recipients may develop policies that require the use
of offered compensation sooner, for example, within a pay period; such
policies must be described in the grant application.
The intent of the Department here is to allow flexibility in
administering the SCSEP but prevent any carry-over of benefits from one
Program Year to the next. For example, if a host agency is closed for
Memorial Day, then a participant assigned to that host agency must be
compensated for that Federal holiday. The participant may be paid.
Alternatively, the participant may be allowed to work extra hours on
other days to make up the missed time, but those extra hours must be
worked before the Program Year ends on June 30, if not before. Because
no benefits may be carried over to the next Program Year, if a
participant is provided an opportunity to make up the time but is
unable to do so by June 30, the participant may be paid for the time.
In paragraph (b)(1)(vi) the Department proposes that grantees and
sub-recipients are required to provide necessary sick leave that is not
part of an accumulated sick leave program, again in accordance with
section 502(c)(6)(A)(i) of the 2006 OAA. The statute does not specify
whether this sick leave must be paid or unpaid. Accordingly, the
Department interprets the statute to allow either option, but requires
grantees to explain their sick leave policy in their grant application.
Necessary sick leave must be administered uniformly for all
participants.
The Department interprets the word ``accumulate'' as meaning any
storing of unused sick leave. Thus while it would be permissible for a
grantee to have a policy allowing, say, six days of sick leave over the
course of a Program Year, it would not be permissible for participants
to ``earn'' a day of sick leave every two months and store the unused
days. By way of another example, it would be permissible for a grantee
to allow each participant one day a month of sick leave, as long as
unused sick days did not store, or accumulate. We understand the sick
leave contemplated by the statute to be sick leave that is either used
or zeroed out at the end of the period provided in the grantee's leave
policy but at least at the end of the Program Year (e.g., if the
grantee's policy provides for one day of sick leave a month, the sick
leave would be zeroed out at the end of the month; if the grantee's
policy provides for 12 days of sick leave a year, the unused sick leave
would be zeroed out at the end of the year). Again, grantees must
explain their method of administering this required benefit in their
grant application.
The Department proposes to consolidate the provisions addressing
prohibited benefits into a new paragraph (b)(2) (in the current
regulations benefit restrictions appear in paragraphs (b)(3) and
(b)(4)) and expand the prohibitions in light of the 2006 OAA. Section
502(c)(6)(A)(i) of the 2006 OAA prohibits grantees from using SCSEP
funds to pay the cost of pension benefits, annual leave, accumulated
sick leave, and bonuses. Again, the Department's intent concerning
these restrictions is to make compensation and benefits for SCSEP more
consistent
[[Page 47787]]
with compensation and benefits received by participants in other time-
limited training programs, rather than those in permanent employment
situations. This is consistent with an increased emphasis on the goal
of placing SCSEP participants in unsubsidized employment.
The Department also proposes to prohibit the carry over of
allowable benefits from one Program Year to the next. This policy is
not new to the SCSEP. It was promulgated in TEGL No. 29-04, dated April
18, 2005, and is designed to encourage participant self-sufficiency by
discouraging participants from staying in the SCSEP indefinitely, thus
preventing participation by other SCSEP-eligible individuals. We also
propose to prohibit the payout of any unused benefits such as sick
leave. This policy is consistent with the 2006 OAA's prohibition on
paying the cost of accumulated sick leave, and supports the view of the
SCSEP as a training program rather than a long-term employment
situation.
The Department interprets section 502(c)(6)(A)(i) of the 2006 OAA
as articulating which benefits are required, and which benefits are
prohibited; no benefits other than the required benefits are allowable.
Grantees/sub-recipients may not offer additional benefits to SCSEP
participants. This interpretation of the statute is consistent with the
Department's vision of the SCSEP as a temporary training opportunity.
Is There a Time Limit for Participation in the Program? (Sec. 641.570)
Section 518(a)(3)(B) of the 2006 OAA establishes a new time limit
of 48 months for participation in the SCSEP, unless the Department
authorizes an increased period of participation for particular
participants. The 2006 OAA (sec. 502(b)(1)(c)) also requires SCSEP
projects to manage their program such that the average participation
period for all a project's participants is not greater than 27 months,
unless an extension has been granted. The Department proposes to
completely revise Sec. 641.570 to reflect these statutory changes.
In the proposed paragraph (a), the Department describes the 48-
month time limit required by section 518(a)(3)(B) of the 2006 OAA, and
refers readers to paragraph (b) of this section which addresses
increased periods of participation for certain individuals, as well as
paragraph (c) of this section, which addresses the average
participation cap. In paragraph (a) the Department requires grantees/
sub-recipients to inform new participants of the time limit and
possible extension at enrollment. However, grantees/sub-recipients
should also notify current participants immediately, if they have not
already done so, because the time limit began on July 1, 2007 for all
participants enrolled as of that date.
The Department proposes a new paragraph (b) to provide the rules
for requesting an exception to the 48-month participation limit for
certain individuals. Section 518(a)(3)(B)(ii) of the 2006 OAA allows
grantees to request to increase the period of participation for
individuals who: have a severe disability; are frail or are age 75 or
older; meet the eligibility requirements related to age for, but do not
receive, benefits under title II of the Social Security Act; live in an
area with persistent unemployment and have severely limited employment
prospects; or have limited English proficiency or low literacy skills.
The Department will authorize an increased period of participation up
to an additional 12 months for any participant who meets one or more of
these criteria. Each participant is eligible for one extension. The
Department is proposing to implement the statutory extension as a one-
per-participant, maximum one-year extension to ensure that
participation is not indefinitely extended, thus preventing other
eligible individuals from benefiting from the SCSEP. The 2006 OAA
allows the average participation cap to be extended for an additional
nine months (see Sec. 641.570(c)(2)). The Department reasoned that if
the average cap could only be extended by nine months, then the
individual period of participation should not be increased beyond a
year to limit the risk of exceeding the average participation cap.
The Department proposes a new paragraph (c) to implement the
average participation cap set by section 502(b)(1)(C) of the 2006 OAA.
Each SCSEP project must manage the participation period for its
enrollees such that the average participation cap for all participants
in the project does not exceed 27 months, or 36 months under the
extension available in Sec. 641.570(c)(2). The Department has
determined that for the purposes of this paragraph, each SCSEP grantee
(whether State or national) will be considered to have one project.
That is, the average participation cap will be applied to the single,
over-arching project, not to each local project independently. This is
consistent with subpart G of this part, in which grantees are
responsible for managing their various projects to achieve the expected
levels of performance for the grant as a whole. This approach also
affords grantees discretion to manage their sub-recipients and/or
individual projects in whatever way best suits their circumstances, to
realize the average participation cap.
The average participation cap must be achieved notwithstanding any
individual extensions authorized pursuant to paragraph (b) of this
section. That is, even if certain participants are allowed to remain in
the program more than 48 months, each project must nevertheless satisfy
the average participation cap for the project as a whole.
A grantee may request an extended period of average participation,
if the grantee demonstrates in a request to the Department the
existence of extenuating circumstances relating to the factors
enumerated in section 513(a)(2)(D) of the 2006 OAA and listed in
paragraph (c)(2) of this section. The Department may authorize an
extended average period of not more than 36 months for a specific
project area for a particular Program Year. OAA section
502(b)(1)(C)(ii).
Proposed paragraph (d) addresses the circumstance of an authorized
break in participation. Some grantees have developed policies for
authorized breaks in participation, to address situations such as when
a suitable community service employment assignment is not available, or
when a participant must take a leave of absence to attend to a loved
one or for medical reasons. Such policies must be in writing and must
be included in the grant application. The Department does not consider
authorized breaks in participation, if taken pursuant to an approved
grantee policy and entered into the SCSEP Performance and Results
Quarterly Performance Reporting (SPARQ) system, to count against the
individual participation limit or the average participation cap.
We propose to add a new paragraph (e), stating that we will issue
administrative guidance detailing the processes by which a grantee may
request an increased period of participation pursuant to paragraph (b)
and by which a grantee may request an extended average participation
cap pursuant to paragraph (c)(2).
Finally, in proposed paragraph (f), the Department provides
grantees the authority to limit individual participation to a time
period less than the 48 months required by statute and described in
paragraph (a) of this section. To set a lower individual participation
limit, grantees must specify and describe their proposed participation
limit in their grant application. In addition, only lower participation
limits that are uniformly
[[Page 47788]]
applied to all participants are acceptable.
May a Grantee/Sub-Recipient Establish a Limit on the Amount of Time Its
Participants May Spend at Each Host Agency? (Sec. 641.575)
Consistent with the current regulations, the Department allows
grantees to establish time limits on host agency assignments. In the
proposed rule, however, we add a phrase to the first sentence of this
section to encourage rotations among different host agencies, or among
different assignments within the same host agency, as such rotations
may increase participants' skills development and employment
opportunities. The Department also proposes to change the second
sentence to clarify that rotations should be consistent with, though
not necessarily reflected in (as is the language used in the current
regulations), the participants' IEPs. Finally, we note in this proposed
section that neither the individual participation limit nor the average
participation cap is impacted by host agency rotations. That is, a new
host agency assignment does not ``re-start the clock'' for purposes of
the individual participation limit or the average participation cap.
The Department encourages grantees that establish time limits to
discuss this aspect of the program with participants, at least during
orientation and preferably more often than that. Early and ongoing
communication concerning host agency rotations is likely to decrease
participants' anxieties about changing assignments.
Is There a Limit on Community Service Employment Assignment Hours?
(Sec. 641.577)
This proposed new section limits the number of community service
employment assignment hours to 1,300 per Program Year. Though this
provision represents a change from the current regulations, a similar
provision appeared in the 1995 final rule. In the 1995 rule, all paid
time, including time spent on activities such as orientation and
training, was limited to 1,300 hours per year. In the proposed rule,
only hours spent at the community service employment assignment are
subject to the 1,300-hour limit. This difference is meaningful because,
consistent with the 2006 OAA and other aspects of this proposed rule,
the proposed 1,300-hour limit does not discourage participant training.
The Department wants to consistently encourage grantees and
participants to utilize available resources to obtain training that
will enhance participants' skills and employability. At the same time,
the Department wants to make sure that the 1,300-hour limit does not
significantly reduce the needed community services that participants
provide, or the participants' opportunity to earn needed wages.
Further, a limit of 1,300 hours per year reinforces that SCSEP is
meant to provide temporary, part-time community service employment
assignments. It is our experience that most SCSEP grantees comply with
the purpose of providing temporary, part-time employment assignments.
The annual limit of 1,300 hours is well above the average hours worked
per year by SCSEP participants, which is 20 hours a week for 52 weeks,
or 1,040 hours. The proposed limitation will eliminate full-time and/or
long-term assignments that are significantly above the hours worked by
the average participant. A limit on the number of hours worked per year
also promotes program efficiency by ensuring that grantees and sub-
recipients do not spend a disproportionate amount of funds on some
individual participants, limiting the participation of other eligible
individuals in the program.
Under What Circumstances May a Grantee/Sub-Recipient Terminate a
Participant? (Sec. 641.580)
This section addresses the various reasons for terminating a
participant and describes the basic terminations procedures. The
Department proposes several minor changes in this section to ensure
consistency in termination proceedings, including consistently
requiring that a grantee/sub-recipient ``must give the participant
written notice explaining the reason(s) for termination.'' The current
regulations use various phrasings to describe the written notice and do
not require written notice in every case of termination.
Grantees/sub-recipients may serve only those individuals who are
eligible for the SCSEP. Paragraphs (a), (b), and (c) of this section
address situations in which participants are found not to be eligible
for the program. In paragraph (a), describing termination based on
false information, the Department proposes to add the word
``knowingly'' to clarify that the situation addressed by this paragraph
is one where the participant knowingly furnished false information that
leads to an incorrect eligibility determination. In the alternative, if
a grantee/sub-recipient learns that a participant mistakenly provided
incorrect information that may impact eligibility, the grantee/sub-
recipient should verify the individual's eligibility. If the person is
actually not eligible for the SCSEP, the grantee/sub-recipient must
terminate the individual pursuant to Sec. 641.580(b).
The Department proposes various changes in paragraph (b). This
paragraph provides that if, during verification of eligibility, a
grantee/sub-recipient determines that a participant is no longer
eligible, the participant must be terminated. The ``must terminate'' in
this paragraph is a change from the current regulations which allow
that grantees ``may terminate'' such a participant. We propose this
change because the SCSEP cannot serve ineligible individuals. The
Department also proposes to broaden this paragraph to apply to
eligibility issues in general, and not merely income eligibility as in
the current regulations.
We propose to add the phrase, ``under Sec. 641.505'' after the
words ``eligibility verification,'' to refer to the section of this
part that addresses when eligibility must be verified. We also propose
to delete the word ``annual,'' because verification must be done at
least once every twelve months but may also occur as circumstances
require (see Sec. 641.505). Finally, we clarify that the written
notice of termination must be given to the participant within thirty
days of the ineligibility determination. This is consistent with the
content of what is Sec. 641.510 in the current regulations; paragraph
(b) of this section is silent on the timing of the notice in the
current regulations.
The only change we propose to paragraph (c) is to add the words
``for termination'' after the word, ``reason(s),'' for clarity.
In paragraph (d), describing terminations for cause, the Department
proposes to replace the phrase ``the proposed reasons for such
terminations'' with ``their policies concerning for-cause
terminations'' when describing what grantees must include in their
grant applications, for clarity. We also propose to replace the word,
``discuss,'' with ``include,'' concerning submitting information on
for-cause termination policies in the grant application, for clarity.
The Department proposes to remove from paragraph (d) the discussion
about communicating termination policies to participants, and proposes
to create a new paragraph (g) to address that topic; the remaining
paragraphs are re-lettered accordingly.
In paragraph (e), the Department proposes to add the requirement
that grantees/sub-recipients must provide participants with written
notice when they are terminated for repeated refusals to accept a job
offer, so that the
[[Page 47789]]
termination is clearly communicated to the participant and in order to
be consistent with the requirements for other terminations described in
this section. We also propose to add that the termination must occur 30
days after the participant receives the written notice; this is
consistent with other termination procedures in this section.
Proposed paragraph (f) provides that when an unfavorable
eligibility determination is made pursuant to paragraphs (b) and (c),
the grantee/sub-recipient should refer the terminated individual to
other possible assistance sources such as the One-Stop Delivery System,
and when a grantee/sub-recipient terminates a participant under
paragraphs (d) and (e), it may refer the individual to other potential
sources of assistance. The Department proposes to remove the redundant
phrase ``it must give the individual a reason for termination'' from
this paragraph because that requirement is now stated in each paragraph
on termination. Also, we propose to delete the phrase, ``when
feasible,'' because the Department determined that qualification was
not necessary. Finally in paragraph (e), we propose to delete the
reference to paragraph (a) because we determined that grantees and sub-
recipients have no obligation to offer further assistance to an
individual that knowingly provided false eligibility information.
In proposed paragraph (g) we rephrase the material that appears in
paragraph (d) of this section in the current regulations, concerning
communicating termination policies to participants. We propose to
require grantees and sub-recipients to furnish a written copy of their
termination policies to participants at enrollment, and to verbally
review those policies with participants.
The Department proposes a technical correction to paragraph (h); we
replace ``through (f)'' with ``through (e)'' when describing the
paragraphs on terminations. Proposed paragraph (i) remains unchanged
from what appears as paragraph (h) in the current regulations.
What Is the Employment Status of SCSEP Participants? (Sec. 641.585)
In the current regulations, Sec. Sec. 641.585 and 641.590 address
different aspects of the employment status of participants. The
Department proposes to combine those two sections into a revised Sec.
641.585; we propose to change the heading of the section accordingly.
In proposed paragraph (a), we state that SCSEP participants are not
considered Federal employees solely due to their participation in the
SCSEP; this statement is derived directly from section 504(a) of the
2006 OAA. The same notion is expressed in paragraph (a) of this section
in the current regulations, although in different words (``[n]o,
participants are not Federal employees'').
Proposed paragraph (b) contains the substance of what is Sec.
641.590 in the current regulations. In the current regulations, we
state that ``[g]rantees must determine if a participant is an employee
of the grantee, local project, or host agency as the definition of
`employee' varies depending on the laws defining an employer/employee
relationship.'' The first sentence of proposed paragraph (b) is a close
parallel: ``[g]rantees must determine whether or not a participant
qualifies as an employee of the grantee, sub-recipient, local project,
or host agency, under applicable law.'' We propose to add ``sub-
recipient'' to include all the possible employer entities. We propose
to use the phrase, ``qualifies as,'' rather than the word ``is,'' for
clarity. The phrase, ``under applicable law,'' is proposed to clearly
give grantees authority to consider whatever law is relevant to their
determination. We propose to change ``if'' to ``whether or not''
because a grantee may determine that participants are not employees of
any of the listed entities.
In the current regulations, paragraph (b) of Sec. 641.585 states
that ``if a Federal agency is a grantee or host agency, Sec. 641.590
applies.'' The Department proposes to keep the substance of that
statement but revise the wording. In the second sentence of proposed
paragraph (b) we state that the responsibility for making the
employment status determination rests with the grantee even if a
Federal agency is a grantee or host agency. That is, although SCSEP
participants are not considered Federal employees by virtue of their
participation in the SCSEP, whether a particular participant is a
Federal employee because that participant's grantee or host agency is a
Federal agency, is a matter to be determined by the grantee.
Are Participants Employees of the Grantee, the Local Project, and/or
the Host Agency? (Sec. 641.590 in the Current Regulations)
The Department proposes to delete the section that appears as
641.590 in the current regulations, because the subject of that
section--the employment status of participants--is now addressed in
Sec. 641.585.
Subpart F--Pilot, Demonstration, and Evaluation Projects
This subpart describes the opportunities for pilot, demonstration,
and evaluation projects that are authorized under section 502(e) of the
2006 OAA. The former subpart F described ``502(e) projects'' which
placed individuals in private sector job opportunities; the OAA now
authorizes different types of projects. The proposed regulatory
provisions largely reiterate the language in the 2006 OAA; however,
proposed Sec. 641.620 provides that additional guidance on
implementation of these new projects will be issued administratively.
The Department interprets section 502(e)(2)(C) of the 2006 OAA,
reiterated in Sec. 641.630(c) of these proposed regulations, to mean
that older individuals who are not SCSEP-eligible may participate in
pilot and demonstration projects, but such pilot and demonstration
projects must be designed to address the employment and training needs
of SCSEP-eligible individuals. For example, older individuals who are
not eligible for SCSEP may face challenges common to many older
workers--e.g., skills that need to be upgraded (such as technology-
related skills), disabilities or other health-related issues, lack of
flexible work arrangements, or perceived age discrimination. Projects
that propose to serve older individuals who are not eligible for the
SCSEP must demonstrate that successful outcomes in their projects can
result in strategies, models, or other tools or resources that can be
replicated for the benefit of SCSEP-eligible participants. The
Department will continue to explore how best to exercise this
additional flexibility regarding pilot, demonstration, or evaluation
projects.
Subpart G--Performance Accountability
Subpart G was published in an IFR, 72 FR 35832, June 29, 2007.
Subpart H--Administrative Requirements
Subpart H covers the administrative requirements that apply to all
SCSEP grants. For the most part, the proposed regulations remain the
same as the current regulations. However, the 2006 OAA necessitates
several changes to this subpart, and the addition of a new Sec.
641.874 setting forth conditions regarding a grantee's request to use
additional funds for training and supportive service costs. We welcome
comments on this new section and on other proposed changes to subpart H
that are discussed in this preamble or on
[[Page 47790]]
other changes to this subpart which flow from the 2006 Amendments.
What Uniform Administrative Requirements Apply to the Use of SCSEP
Funds? (Sec. 641.800)
There is no change to this provision.
What Is Program Income? (Sec. 641.803)
This section is substantively unchanged. The only change we propose
to make to this section is the addition of new parenthetical
descriptions of other regulations being referenced, and the revision of
the parenthetical descriptions that appear in the current regulations,
for clarity.
How Must SCSEP Program Income Be Used? (Sec. 641.806)
The program income provisions of this section address the
application of the Department's uniform administrative requirements to
SCSEP activities by indicating what types of income earned or generated
by recipients and sub-recipients are considered program income, how the
costs of producing program income are to be treated, and by directing
recipients to follow the addition method described in 29 CFR 95.24
(non-profit and commercial organizations) and 29 CFR 97.25 (State and
local governments) and add program income to Federal and non-Federal
resources provided for SCSEP activities. The Department proposes to add
a clarifying phrase to paragraph (a) to reflect the fact that program
income must be used during the grant period in which it was earned, to
be consistent with uniform administrative requirements. We also propose
to add to paragraph (a) parenthetical descriptions by the references to
other regulations, for clarity. We propose to clarify in paragraph (c)
that the recipient has no obligation to the Department for program
income earned after the end of the grant period. Finally, we propose
certain grammatical corrections to this section.
What Non-Federal Share (Matching) Requirements Apply to the Use of
SCSEP Funds? (Sec. 641.809)
This section sets forth the various matching fund requirements that
apply to recipients of SCSEP funds and clarifies previously ambiguous
language. We propose to add the phrase, ``allowable costs paid for
with'' to paragraph (b) to clarify that, to be counted toward the ten
percent non-Federal share, costs must be allowable. The regulatory
provisions cited in paragraph (c) provide information concerning
allowable costs.
The current regulations indicate that 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 relationship. In paragraph (e), we propose to clarify
that this does not preclude a sub-recipient or host agency from
voluntarily contributing non-Federal resources for the use of the SCSEP
project. Paragraph (f) in the current regulations states that the
Department may pay all the costs of private sector training projects
established in section 502(e); we delete this provision from the
proposed rule because section 502(e) now relates to pilot,
demonstration, and evaluation projects.
What Is the Period of Availability of SCSEP Funds? (Sec. 641.812)
This section details the period of availability of SCSEP funds and
is substantively unchanged. In the current regulations, paragraph (b)
states that SCSEP recipients must ensure that no sub-agreement provides
for the expenditure of any SCSEP funds before July 1, or after the end
of the grant period, except as provided in Sec. 641.815. We propose to
add a phrase to paragraph (b) to clarify that the July 1 at issue here
is July 1 of the grant year.
May the Period of Availability Be Extended? (Sec. 641.815)
There is no change to this provision.
What Happens to Funds That Are Unexpended at the End of the Program
Year? (Sec. 641.818 in the Current Regulations)
The Department proposes to delete the section that appears as
641.818 in the current regulations, because it relates to an internal
Department process and is therefore not relevant for the rule.
What Audit Requirements Apply to the Use of SCSEP Funds? (Sec.
641.821)
There is no change to this provision.
What Lobbying Requirements Apply to the Use of SCSEP Funds? (Sec.
641.824)
There is no change to this provision.
What General Nondiscrimination Requirements Apply to the Use of SCSEP
Funds? (Sec. 641.827)
In the current regulations, paragraph (b) of this section states
that recipients and sub-recipients of SCSEP funds must comply with the
Department's nondiscrimination requirements at 29 CFR part 37, for
SCSEP activities that are administered in conjunction with the One-Stop
Delivery System. We propose to add a phrase to paragraph (a) to clarify
that DOL regulations regarding the equal treatment of religious
organizations at 29 CFR part 2 subpart D also apply. We also propose,
in paragraph (b)(1)(ii), to abbreviate ``the Workforce Investment Act''
to ``WIA.''
What Policies Govern Political Patronage? (Sec. 641.833)
There is no substantive change to this provision. We propose in
paragraph (a) to abbreviate ``the Workforce Investment Act'' to
``WIA.'' We also propose to add the word, ``part'' before ``37'' to
accurately reference the regulation.
What Policies Govern Political Activities? (Sec. 641.836)
The Department proposes to make only a few grammatical changes to
this section.
What Policies Govern Union Organizing Activities? (Sec. 641.839)
There is no change to this provision.
What Policies Govern Nepotism? (Sec. 641.841)
We make no substantive changes to this section. In paragraph (a),
we propose to replace the word ``position,'' with ``assignment,'' so
that we use the term ``community service employment assignment,'' to be
consistent with the language used in the rest of this part. In the
second sentence of paragraph (a), we propose to move the phrase ``this
requirement from'' to later in the sentence and change it to, ``from
this requirement,'' for clarity.
What Maintenance of Effort Requirements Apply to the Use of SCSEP
Funds? (Sec. 641.844)
This section outlines the maintenance of effort responsibilities of
SCSEP recipients. Section 502(b)(1)(G) of the 2006 OAA consolidates and
amends the previous statutory sections on which this regulatory section
is based. Accordingly, we propose to revise this section to follow the
statutory changes.
First, the Department proposes to replace the former paragraph (a)
with a statement that a community service employment assignment is
permissible only when the maintenance of effort requirements are met.
Proposed paragraph (b) contains the specific maintenance of effort
requirements. The first requirement is that the community service
employment assignment must not reduce the number of job opportunities
or vacancies that would otherwise be available to non-SCSEP persons.
The 2006 OAA omits the prior statutory requirement, which is reflected
in Sec. 641.844(b)(1) of the
[[Page 47791]]
current regulations, that SCSEP projects must result in an increase in
employment opportunities in addition to those that would otherwise be
available. The next requirement is rephrased but is substantively the
same as appears in the 2000 OAA and current regulations: a SCSEP
project must not displace currently employed workers, including partial
displacements. The third listed requirement is that a SCSEP project
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. The only proposed change in this requirement is
that we drop the phrase, ``for service'' after the word ``contracts''
to be consistent with the language of the statute. The last
requirement, concerning a SCSEP participant not performing the same or
substantively the same work as a person on layoff, is substantively the
same as what appeared in the 2000 OAA and is in the current
regulations, but again is proposed to be slightly rephrased. Also, this
requirement in the current regulations uses the term, ``participant,''
which we propose to change to the term, ``eligible individual,'' to be
consistent with the language of the statute. We also propose to make a
few formatting corrections.
What Uniform Allowable Cost Requirements Apply to the Use of SCSEP
Funds? (Sec. 641.847)
This section is substantively unchanged. The only change the
Department proposes to make to this section is the addition of
parenthetical descriptions for referenced regulatory sections, for
clarity.
Are There Other Specific Allowable and Unallowable Cost Requirements
for the SCSEP? (Sec. 641.850)
The only proposed change to this section is found in paragraph (d),
which provides that one allowable SCSEP cost is a SCSEP project's
proportionate share of the costs of the local One-Stop Delivery System.
The Department proposes to add a sentence to this paragraph to clarify
that the cost of services provided, including such things as the wages
and benefits of a SCSEP participant placed at a One-Stop Career Center,
may constitute some or all of a SCSEP project's cost-sharing
contribution.
How Are Costs Classified? (Sec. 641.853)
This section discusses whether costs are classified as
administrative costs or programmatic activity costs and is
substantively unchanged. The Department proposes two minor changes to
this section. First, we propose to replace the term ``program costs,''
with the term ``programmatic activity costs'' to track a corresponding
change in section 502(c)(6) of the 2006 OAA. Second, we propose to
change the ``shall'' in the second sentence of paragraph (b) to
``must;'' ``must'' is a more appropriate word to use when requiring an
action in a regulation.
What Functions and Activities Constitute Administrative Costs? (Sec.
641.856)
This section discusses the functions and activities that constitute
administrative costs. To be consistent with the language of the 2006
OAA and the rest of this regulation, we propose to change the phrase,
``costs of administration,'' to ``administrative costs,'' in the
heading and throughout this section. Pursuant to section 502(c)(4) of
the 2006 OAA, we propose to add the following additional functions and
activities as administrative costs: preparing administrative reports;
other activities necessary for general administration of government
funds and associated programs; and the costs of technical assistance,
professional organization membership dues, and evaluating results
obtained by the project involved against stated objectives. We also
propose to delete the word, ``overall,'' from the phrase that appears
in the current regulations, ``overall general administrative and
coordination functions,'' to mirror the same change in section
502(c)(4)(A) of the 2006 OAA. Finally, the Department proposes to
remove paragraph (c), the definition of ``first-tier sub-recipient,''
because the term has been replaced with ``program operator'' and that
definition can be found in Sec. 641.140. We do not intend for these
changes to have a substantive effect on cost allocation.
What Other Special Rules Govern the Classification of Costs as
Administrative Costs or Programmatic Activity Costs? (Sec. 641.859)
To make it easier to operate SCSEP activities within the WIA One-
Stop Delivery System, the OAA imports the WIA cost classification
system into the SCSEP. Accordingly, the current regulations divide
costs into administrative costs and program costs (termed programmatic
activity costs in the SCSEP); the same categories are continued in the
proposed rule. As in other sections of these regulations, the
Department proposes to change the phrase, ``program costs'' to
``programmatic activity costs'' to be consistent with the OAA (see,
e.g., OAA sec. 502(c)(6)). We also propose to replace the phrase,
``first-tier sub-recipient,'' with ``program operator,'' as discussed
in the definitions section of this preamble (Sec. 641.140).
We propose a few changes to paragraph (b). First, we propose to
revise paragraph (b)(3) to state that the costs of sub-recipients and
vendors performing administrative functions on behalf of recipients and
program operators are classified as administrative costs. In the
current regulations, only vendors are mentioned in paragraph (b)(3). We
also propose to delete paragraph (b)(5) and combine its content into a
revised paragraph (b)(4) that states that, except pursuant to paragraph
(b)(3), costs incurred by all vendors, and only those sub-recipients
below program operators, are classified as programmatic activity costs.
In the current regulations, both (b)(4) and (b)(5) address activities
that are classified as programmatic activity costs. We propose to make
these changes to paragraph (b) for clarity, and to help ensure that
entities that carry out the program functions of the SCSEP have access
to administrative funds.
The only other change we propose to make to this section is in
paragraph (d). Paragraph (d) addresses overhead or indirect cost pools.
We clarify in the proposed paragraph (d) that that the allocable share
of indirect or overhead costs for administrative and programmatic costs
are to be in the same proportions as the actual costs for those
activities which are included in the overhead or indirect cost pool.
Because of reports that the language that appears in paragraph (d) in
the current regulations is confusing, we have rewritten the text in an
attempt at greater clarity; we do not intend to change the substance of
the policy, merely our explication of it.
Must SCSEP Recipients Provide Funding for the Administrative Costs of
Sub-Recipients? (Sec. 641.861)
There is no change to this section.
Section 502(b)(1)(R) of the 2006 OAA requires the Department to
consult with grantees concerning what amount of administrative cost
allocation is sufficient among recipients and sub-recipients. The
Department has determined that it will determine the appropriate
allocation on a grantee-by-grantee basis and that the process of grant
application, review, and acceptance will be used to carry out the
required consultation with each grantee. Grantees must include in their
grant application their plans for allocating administrative monies;
that is, grantees
[[Page 47792]]
must explain how much administrative money they intend to keep and how
much they will be delegating. The Department is able to evaluate and
respond to that information when it reviews the grant application. If
the Department concludes, for example, that a grantee is not allocating
sufficient administrative funds for sub-recipients, it could remand the
application for further consideration by the applicant. The grantee
could then respond with a revised allocation plan. The act of approving
the grant application constitutes the conclusion of the consultation
process.
What Functions and Activities Constitute Programmatic Activity Costs?
(Sec. 641.864)
The Department defines programmatic activity costs pursuant to the
new definition in section 502(c)(6)(A) of the OAA as amended in 2006.
Programmatic activity costs now include the costs of (1) wages and
benefits; (2) outreach, recruitment and selection, intake, orientation,
and assessment functions; (3) participant training; (4) job placement
assistance; and (5) participant supportive services.
We propose to revise paragraph (a) to track the wages and benefits
costs authorized by statute. These are wages paid to participants, 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 an employer's
business is closed for a Federal holiday, and necessary sick leave that
is not part of an accumulated sick leave program. As described in the
preamble discussion of Sec. 641.565(b), we interpret the latter
provision to prohibit any storing of sick leave.
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. Unlike the current regulations which permit
some of these benefits, the Department is bound by the statute to
prohibit the use of SCSEP funds for these purposes.
We propose a few changes to paragraph (c). First, we propose to add
a reference to Sec. 641.540, which addresses participant training.
Also, we propose to specify that participant training may be provided
prior to beginning or concurrent with a community service employment
assignment. We propose to replace the phrase ``on the job'' with ``at a
host agency,'' for increased clarity. The Department interprets the
phrase ``participant training'' to mean only those costs that are
directly related to participant training, and not activities such as
general staff development that relate to participant training only
indirectly or tangentially.
Finally, the Department proposes one change to paragraph (e). We
propose to insert the phrase, ``to enable an individual to successfully
participate in a SCSEP project,'' to mirror the language of section
502(c)(6)(A)(iv) of the 2006 OAA concerning what supportive services
are allowable.
What Are the Limitations on the Amount of SCSEP Administrative Costs?
(Sec. 641.867)
There is no change to this provision.
Under What Circumstances May the Administrative Cost Limitation Be
Increased? (Sec. 641.870)
This section continues the Department's previous practice, as is
described in the current regulations, of allowing increases in
administrative cost limits as permitted under section 502(c)(3) of the
OAA, if the recipient demonstrates that such an increase is necessary
to carry out the project and that major administrative cost increases
are being incurred in necessary program components. We propose to
clarify in the proposed rule that payments for workers' compensation
refers only to payments for staff; this is because workers'
compensation payments made on behalf of participants are classified as
programmatic activity costs.
Paragraph (a)(2)(iii) concerns projects that are so small that the
amount of administrative expenses incurred to carry out the project
necessarily exceeds 13.5 percent. We propose to make changes to the
wording of this paragraph in accordance with corresponding changes in
the language of the statute, but do not consider any of the changes
substantive. Whereas the 2000 OAA referred to administrative
``expenses,'' the 2006 OAA now uses the term ``costs.'' Also, the 2000
OAA used the phrase, ``13.5 percent of the amount for such project,''
and the 2006 OAA instead says, ``13.5 percent of the grant amount.''
What Minimum Expenditure Levels Are Required for Participant Wages and
Benefits? (Sec. 641.873)
As amended in 2006, section 502(c)(6)(B) of the OAA provides that
grantees generally must use not less than 75 percent of the grant funds
to pay participant wages and benefits. In paragraph (a) the Department
proposes to add a reference to Sec. 641.864(a), which addresses wage
and benefit programmatic activity costs. We propose to specify in
paragraph (b) that recipients must spend at least 75 percent of their
total award amount on such costs, not 75 percent of their total
expenditures, as is stated in the current regulations. In paragraph (c)
we note that a SCSEP grantee may request approval to use additional
funds for programmatic activity costs, pursuant to a new Sec. 641.874.
Finally, we propose to remove an obsolete reference to awards made
under the former section 502(e) of the OAA.
What Conditions Apply to a SCSEP Grantee Request To Use Additional
Funds for Training and Supportive Service Costs? (Sec. 641.874)
In this proposed section we implement a new provision at section
502(c)(6)(C) of the 2006 OAA, which allows a SCSEP grantee to submit to
the Department a request for approval to use up to 10 percent of grant
funds that would otherwise be devoted to wages and benefits under Sec.
641.873 to provide participant training and supportive services. This
new percentage (up to ten) is in addition to the 25 percent of funds
that are otherwise available for administrative costs to support
participant training, job placement assistance, participant supportive
services, outreach, recruitment, selection, intake, orientation, and
assessments; and thus reduces the minimum level for wages and benefits
to 65 percent.
Proposed paragraph (a) tracks section 502(c)(6)(C)(i) of the 2006
OAA. Proposed paragraph (a)(3) addresses acceptable uses of the
additional programmatic activity monies. Participant training is one
acceptable use of the money; supportive services is the other. The
Department interprets the phrase ``participant training'' to mean only
those costs that are directly related to participant training, and not
activities such as general staff development that relate to participant
training only indirectly or tangentially. Also, as we noted in the
preamble to Sec. 641.545, the language used in the 2006 OAA to
describe appropriate supportive services has changed to, ``supportive
services that are necessary to enable an individual'' to successfully
participate in a SCSEP project. This language is somewhat more
prescriptive than the language in the 2000 OAA, which stated that the
SCSEP could provide supportive services ``to assist an enrollee to
successfully participate in a [SCSEP] project.''
In proposed paragraph (b) we detail the requirements for submission
of a request to use additional funds for training and supportive
service costs;
[[Page 47793]]
these requirements track those set out in the statute (OAA sec.
502(c)(6)(C)(ii)).
Section 502(c)(6)(C)(iii) of the 2006 OAA requires that grantees
submit a request to use additional funds for training and supportive
service costs not later than 90 days before the proposed date of
implementation, and that the Department must act on the request no
later than 30 days before the proposed date of implementation. The
Department interprets these requirements as applying to requests to
modify an existing grant agreement. We do not consider these timing
requirements to apply to requests to use additional funds for training
and supportive service costs that are contained in grant applications.
Indeed, the practical reality of the SCSEP grant cycle is that grant
application instructions are generally not issued early enough for
grant applicants to be able to submit their applications 90 days before
the beginning of the Program Year (July 1), and may not be acted on 30
days prior to the start of the Program Year. Were the Department to
strictly enforce the 90 and 30 day deadlines, it would mean that
grantees would be unable to implement the requested use of additional
funds for programmatic activity costs until several weeks into the
Program Year. Such a delay in implementation would harm participants by
complicating the administrative management of the grant, by reducing
the amount of funds available for training and supportive service
costs, and by reducing the flexibility of grantees to use the funds as
Congress intended.
Accordingly, if a grantee wishes to change its grant agreement to
be able to use the additional moneys for training and supportive
services, it must submit the request not later than 90 days before, and
the Department will act on the request not later than 30 days before,
the proposed date of implementation. If a request to use additional
funds for training and supportive service costs is part of the grant
application, the request will be reviewed and approved as a part of the
normal grant approval process and will be implemented at the start of
the Program Year.
Finally, we propose to state in paragraph (d) that grantees may
apply this provision to individual sub-recipients but need not provide
this opportunity to all their sub-recipients.
When Will Compliance With Cost Limitations and Minimum Expenditure
Levels Be Determined? (Sec. 641.876)
There is no change to this provision.
What Are the Financial and Performance Reporting Requirements for
Recipients? (Sec. 641.879)
This section covers the reporting requirements that are authorized
by the 2006 OAA. We propose to remove a reference to reporting
requirements for section 502(e) private sector employment projects,
because reporting for all SCSEP recipients is now included in paragraph
(a). In addition, proposed paragraph (a) now addresses financial
reporting and proposed paragraph (b) addresses performance reporting,
which conforms to the ordering in the heading question for this
section. In the current regulations, paragraph (a) addresses
performance reporting and paragraph (b) addresses financial reporting.
The Department proposes to add to paragraphs (a) and (b)
parenthetical descriptions of the referenced regulatory sections. We
propose to change the form number referenced in paragraph (a) because
SCSEP grantees no longer use reporting form SF 269 for financial
reporting; ETA Form 9130 is now the proper financial reporting form.
And, whereas the former reporting instructions provided that financial
reports were due in 30 days, the reporting instructions for the new ETA
Form 9130 provides grantees with 45 days within which to submit each
quarterly report, including the report for the last quarter. Under the
ETA electronic reporting system, grantees are to mark their financial
report for the last quarter of the grant as final which opens the link
for a closeout final report which is due 90 days after the end of the
grant period of performance; we propose to add the word ``closeout'' in
the second sentence of paragraph (a) for clarity.
We propose to revise paragraph (b) to describe the current
performance reporting procedure. Although the current regulations
indicate that recipients must submit quarterly progress reports, those
reports are actually generated by the Department using participant data
that recipients submit electronically. Similarly, whereas the current
regulations stress timely submission of reports, the proposed language
emphasizes the timely submission of electronic participant data. We
propose to delete the sentence that indicates that if a grant period
ends on a date other than the last day of the Program Year, the final
report is due within 90 days after the ending date of the grant. The
Department collects data by Program Year, regardless of the grant
period. Proposed paragraph (c) remains unchanged.
The Department notes that section 502(c)(6)(D) of the 2006 OAA
requires each SCSEP grantee to annually prepare and submit to the
Department a report documenting the grantee's use of funds for
programmatic activities described in Sec. 641.864. Because the
financial and participant data already reported by grantees necessarily
includes information on how the grantee uses its funds, including any
funds for programmatic activities described in Sec. 641.864, the
Department interprets this new requirement as being fulfilled by the
reports required in paragraphs (a) and (b) of this section.
Proposed paragraph (d) addresses reporting on the performance
measures. We propose to revise the text of this paragraph slightly from
what appears as paragraph (e) in the current regulations. Instead of
requiring data and reports on, ``the program performance measures and
the common performance measures,'' the proposed text requires data and
reports on ``the performance measures,'' for simplicity and clarity. We
also propose to change the reference to the specific sections of these
regulations requiring performance measures, to a reference to subpart F
generally, as all of subpart F addresses performance measures.
Proposed paragraph (e) of this section states that grantees may be
required to collect and submit data on the demographic characteristics
of participants. The only proposed change to this provision, which
appears as paragraph (f) in the current regulations, is to change from
the singular, ``this report,'' to the plural, ``these reports,'' in the
second sentence, to be consistent with the plural ``reports'' in the
first sentence. Starting in 2007, in addition to prior uses, the
Department will also be using this data to prepare a report for
Congress on the levels of participation and performance outcomes of
minority individuals served by SCSEP, as required by section 515 of the
2006 OAA. The Department will not be requiring a new report from
grantees. However, the Department may request additional information as
part of the grant application process in order to complete its report
to Congress.
We also propose to make grammatical and technical corrections.
What Are the SCSEP Recipient's Responsibilities Relating to Awards to
Sub-Recipients? (Sec. 641.881)
This section specifies that the recipient is responsible for all
SCSEP activities performed with SCSEP funds and for ensuring that sub-
recipients comply with SCSEP requirements. We propose to change
paragraphs (a) and (b) to (b) and (c). We propose to add a new
paragraph (a) to state that recipients are
[[Page 47794]]
responsible for ensuring all sub-awards are made on the basis of full
and open competition to the maximum extent practicable in accordance
with procurement requirements in 29 CFR 95.43 (non-profit and
commercial organizations) and 29 CFR 97.36 (State and local
governments). These are uniform administrative requirements, applicable
to all Department grants.
The parenthetical at the end of paragraph (b) refers to the
statutory section on responsibility tests; we propose to add a
reference to the section of these regulations addressing the
responsibility tests, for clarity. Proposed paragraph (c), which
appears as paragraph (b) in the current regulations, remains unchanged.
We propose to add a new paragraph (d) to conform to the requirements of
section 514(e) of the 2006 OAA relating to the special consideration
that national grantees serving a service area where a substantial
population of individuals with barriers to employment exists must
afford in selecting sub-recipients. Section 514(e)(1) of the 2006 OAA
provides that for purposes of this section ``individuals with barriers
to employment'' means minority individuals, Indian individuals,
individuals with greatest economic need, and individuals who are most-
in-need. The term most-in-need is defined in the portion of Sec.
641.140 that was included in the IFR published at 72 FR 35832, Jun. 29,
2007.
What Are the Grant Closeout Procedures? (Sec. 641.884)
The Department proposes to add parenthetical descriptions for the
regulatory references provided. Otherwise there is no change to this
section.
Subpart I--Grievance Procedures and Appeals Process
Subpart I describes the grievance procedures required of grantees,
and the Department's appeal process for grant applicants and grantees.
With two exceptions these provisions are substantively identical to the
provisions in the current regulations.
What Appeal Process Is Available to an Applicant That Does Not Receive
a Grant? (Sec. 641.900)
This section describes the appeal process that is available to an
applicant that does not receive a grant. We propose to revise the text
of this section to more accurately reflect the current process actually
used by the Department for applications that are not funded. An
applicant may request feedback from the Department concerning a
decision not to award a grant to the applicant, but debriefings are no
longer provided. Under the current process, non-selected entities that
request an explanation are provided with feedback on the shortcomings
of their proposal. An applicant that wishes to appeal must file their
appeal within 21 days of either the notification that financial
assistance would not be awarded or the Grant Officer's feedback on the
proposal. Under the current regulations, an applicant is required to
request that the Grant Officer provide the reasons for not awarding
financial assistance in order to preserve the right to appeal. Under
this proposed section, an applicant may file an appeal within 21 days
of the notification that an award was not given; requesting an
explanation from the Grant Officer is not a necessary step to
preserving the right to appeal.
The Department also proposed to modify two timeframes. Under the
current regulations, the Grant Officer has 20 days within which to
provide a debriefing and a written decision explaining the reasons for
the decision. In the proposed section, the Grant Officer has 21 days to
provide feedback concerning the proposal. Under the current
regulations, a party dissatisfied with the decision of the
Administrative Law Judge has 20 days within which to file a petition
for review. We propose to change that timeframe to 21 days. We propose
these timeframe changes to be consistent with the 21-day timeframe used
in other circumstances in this section. We also propose to make
technical corrections.
What Grievance Procedures Must Grantees Make Available to Applicants,
Employees, and Participants? (Sec. 641.910)
Paragraph (c) of this section formerly required that any allegation
of a Federal law violation be filed with the Chief of the Division of
Older Worker Programs. Due to a reorganization within ETA, such an
allegation will now be filed with the Chief of the Division of Adult
Services. We also propose to make technical corrections to this
section.
What Actions of the Department May a Grantee Appeal and What Procedures
Apply to Those Appeals? (Sec. 941.920)
We propose to delete the sentence, ``[t]he Chief Administrative Law
Judge will designate an Administrative Law Judge to hear the appeal,''
from paragraph (d)(1) as it is unessential to these regulations. The
only other changes we propose in this section are technical
corrections.
Is There an Alternative Dispute Resolution Process That May Be Used in
Place of an OALJ Hearing? (Sec. 641.930)
The only changes we propose in this section are technical ones.
III. Administrative Information
Regulatory Flexibility Analysis, Executive Order 13272, Small Business
Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. chapter 6, requires
the Department to evaluate the economic impact of this proposed rule
with regard to small entities. The RFA defines small entities to
include small businesses, small organizations, including not-for-profit
organizations, and small governmental jurisdictions. The Department
must determine whether the rule imposes a significant economic impact
on a substantial number of such small entities.
First, the Department has determined that this NPRM does not affect
a substantial number of small entities. There are about 900 SCSEP
grantees, sub-recipients, and sub-sub-recipients. Of these, 50 are
States and are not small entities as defined by the RFA. The vast
majority of the rest are non-profit organizations that would be
categorized as small entities for RFA purposes. However, even if all of
the rest (850) are small non-profit organizations, that is simply not a
substantial number. Eight hundred and fifty is less than one percent of
the total number of non-profits in the country, which has been
estimated to be over 1 million. Accordingly, we conclude that this
proposes rule does not affect a substantial number of small entities.
The Department has also determined that the economic impact of this
proposed rule is not significant because these regulations will not
result in any additional costs to grantees. The SCSEP is designed such
that SCSEP funds cover the vast majority of the costs of implementing
this program. Subpart H of this proposed 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 ten percent non-Federal match (see Sec. 641.809); however,
the ten percent match requirement has been in effect in previous SCSEP
regulations and therefore does not constitute a new economic burden on
grantees. (We note that the Department allows in-kind contributions in
lieu of monetary payments, which significantly moderates the economic
impact of the match requirement.) Accordingly, the Department certifies
that this proposed
[[Page 47795]]
rule will not have a significant economic impact on a substantial
number of small entities. The Department welcomes comments on this RFA
certification.
We note that this analysis is also applicable under Executive Order
13272; for those purposes as well we certify that this proposed rule
does not impose 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), 5 U.S.C. chapter 8. SBREFA requires agencies to
take certain actions when a ``major rule'' is promulgated. 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 effect the business
climate.
This proposed rule will not significantly or adversely effect the
business climate. First, the proposed 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.
The proposed 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
ten percent matching share. Finally, this proposed 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 proposed rule is not a ``major
rule'' for SBREFA purposes.
Executive Order 12866
Executive Order 12866 requires that for each ``significant
regulatory action'' proposed by the Department, the Department conduct
an assessment of the proposed regulatory action and provide OMB with
the proposed 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 with regard to the SBREFA analysis, this proposed rule
will not have an annual effect on the economy of $100 million or more.
However, the rule does raise novel policy issues concerning
implementing the 2006 OAA in the SCSEP. The key policy changes that are
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 proposed rule to the OMB.
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.
Because the 2006 OAA necessitated changes in many of the SCSEP
forms used by grantees until now, in July 2007 the Department submitted
to OMB for review and approval in accordance with section 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.
The following proposed rule neither introduces new nor revises any
existing information collection requirements.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, this NPRM
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.
Executive Order 13132
The Department has reviewed this NPRM in accordance with Executive
Order 13132 regarding federalism and has determined that it does not
have ``federalism implications.'' The 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.'' While States
are SCSEP grantees, the requirements in this NPRM flow directly from
the 2006 OAA and thus do not constitute a ``substantial direct effect''
on the States, nor will it alter the relationship, power, or
responsibilities between the Federal and State governments.
Executive Order 13045
Executive Order 13045 concerns the protection of children from
environmental health risks and safety risks. This NPRM addresses the
SCSEP, a program for older Americans, and has no impact on safety or
health risks to children.
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 NPRM and concludes that it does
not have tribal implications. While tribes are sub-recipients of
national SCSEP grantees, this proposed 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 proposed 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.
Accordingly, we conclude that this rule does not have tribal
implications for the purposes of Executive Order 13175.
Environmental Impact Assessment
The Department has reviewed this NPRM in accordance with the
requirements of the National
[[Page 47796]]
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 NPRM 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.
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 affect
on families must be supported with an adequate rationale.
The Department has assessed this NPRM 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.
Executive Order 12630
This NPRM is not subject to Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
Executive Order 12988
This regulation has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The regulation has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
Executive Order 13211
This NPRM is not subject to Executive Order 13211, because it will
not have a significant adverse effect on the supply, distribution, or
use of energy.
Plain Language
The Department drafted this rule in plain language.
List of Subjects in 20 CFR Part 641
Aged, Employment, Government contracts, Grant programs--Labor,
Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Department of Labor
proposes to amend 20 CFR part 641 to read as follows:
PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE
EMPLOYMENT PROGRAM
1. The authority citation for part 641 continues to read as
follows:
Authority: 42 U.S.C. 3056 et seq.
Subpart A--[Amended]
2. Revise Sec. 641.100 to read as follows:
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
the 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 expressly
incorporated by reference, 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.
3. Revise Sec. 641.110 to read as follows:
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
employment assignments and by assisting them in developing skills and
experience to facilitate their transition to unsubsidized employment.
4. Revise Sec. 641.120 to read as follows:
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 employment 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)).
5. Revise Sec. 641.130 to read as follows:
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.
6. Amend Sec. 641.140 by:
a. Removing the definitions ``Co-enrollment,'' ``Placement into
public or private unsubsidized employment,'' ``Retention in public or
private unsubsidized employment,'' ``State Workforce Agency,'' and
``Subgrantee.''
b. Revising the definitions ``Authorized position level,''
``Community service,'' ``Equitable distribution report,'' ``Grantee,''
``Greatest economic need,'' ``Greatest
[[Page 47797]]
social need,'' ``Host agency,'' ``Indian,'' ``Indian tribe,''
``Individual employment plan or IEP,'' ``Jobs for Veterans Act,''
``OAA,'' ``Other participant (enrollee) costs,'' ``Participant,''
``Poor employment prospects,'' ``Program year,'' ``Project,''
``Recipient,'' ``Service area,'' ``State grantee,'' ``State Plan,''
``Sub-recipient,'' ``Title V of the OAA,'' ``Tribal organization,'' and
``Workforce Investment Act or WIA,'' to read as set forth below.
c. Adding in alphabetical order the definitions ``Pacific Island
and Asian Americans,'' ``Program operator,'' ``Secretary,''
``Supportive services,'' and ``Unemployed,'' as set forth below.
Sec. 641.140 What definitions apply to this part?
* * * * *
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 section 506(g) of the OAA.
Community service means:
(a) 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;
(b) Conservation, maintenance, or restoration of natural resources;
(c) Community betterment or beautification;
(d) Antipollution and environmental quality efforts;
(e) Weatherization activities;
(f) Economic development; and
(g) Other such services essential and necessary to the community as
the Secretary determines by rule to be appropriate. (OAA sec.
518(a)(1)).
* * * * *
Equitable distribution report means a report based on the latest
available Census 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 the needs of underserved jurisdictions into account. This report
provides a basis for improving the distribution of SCSEP positions.
* * * * *
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 secs. 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, that 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)).
* * * * *
Host agency means a public agency or a private nonprofit
organization exempt from taxation under section 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 or 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,
objectives that lead to the goal, a timeline for the achievement of the
objectives; and be jointly agreed upon with the participant. (OAA sec.
502(b)(1)(N)).
* * * * *
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)).
* * * * *
OAA means the Older Americans Act, 42 U.S.C. 3001 et seq., as
amended.
* * * * *
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 on the job, prior to or concurrent with a
community service employment 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,
[[Page 47798]]
intake orientation, and assessments. (OAA sec. 502(c)(6)(A)).
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 employment assignment, and
is receiving any service funded by the program as described in subpart
E.
* * * * *
Poor 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 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 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 employment 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.
* * * * *
Secretary means the Secretary of the Department of Labor.
Service area means the geographic area served by a local SCSEP
project in accordance with a grant agreement.
* * * * *
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 section 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 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 mean services, such as transportation, child
care, dependent care, housing, and needs-related payments that are
necessary to enable an individual to participate in activities
authorized under the SCSEP. (OAA sec. 518(a)(7)).
Title V of the OAA means 42 U.S.C. 3056 et seq., as amended.
* * * * *
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 sec. 518(a)(8)).
* * * * *
Workforce Investment Act or WIA means the Workforce Investment Act
of 1998 (Pub. L. 105-220 [Aug. 7, 1998]), 29 U.S.C. 2801 et seq., as
amended.
* * * * *
7. Revise subparts B through F of part 641 to read as follows:
Subpart B--Coordination With the Workforce Investment Act
Sec.
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/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/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?
[[Page 47799]]
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/sub-recipients enroll otherwise eligible
individuals and place them directly into unsubsidized employment?
641.515 How must grantees/sub-recipients recruit and select eligible
individuals for participation in the SCSEP?
641.520 Are there any priorities that grantees/sub-recipients must
use in selecting eligible individuals for participation in the
SCSEP?
641.535 What services must grantees/sub-recipients provide to
participants?
641.540 What types of training may grantees/sub-recipients provide
to SCSEP participants in addition to the training received at the
community service employment assignment?
641.545 What supportive services may grantees/sub-recipients provide
to participants?
641.550 What responsibility do grantees/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/sub-recipient establish a limit on the amount
of time its participants may spend at each host agency?
641.577 Is there a limit on community service employment assignment
hours?
641.580 Under what circumstances may a grantee/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 section 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 section 502(e)?
641.640 Should pilot, demonstration, and evaluation project entities
coordinate with SCSEP grantees/sub-recipients, including area
agencies on aging?
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. SCSEP grantees/
sub-recipients are required to follow all applicable rules under WIA
and its regulations. (29 U.S.C. 2841(b)(1)(B)(vi) and 29 CFR 662.200
through 662.280).
Sec. 641.210 What services, in addition to the applicable core
services, must SCSEP grantees/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/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 employment 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. (29 U.S.C. 2841(b)(1)). These arrangements should be
negotiated in the Memorandum of Understanding (MOU), which is an
agreement developed and executed 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 Sec. Sec. 662.300 and 662.310 of this title.
Sec. 641.230 Must the individual assessment conducted by the SCSEP
grantee/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, section 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 according to 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 employment assignment to enable
participants to meet their unsubsidized employment objectives. The
SCSEP grantee/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
[[Page 47800]]
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/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, pursuant to 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 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 strategy for continuous increase in the level of
performance for entry into unsubsidized employment, and to achieve, at
a minimum, the levels specified in section 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 utilizing 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 utilization of SCSEP
grantees and program operators so as 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?
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. 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 for in Sec. 641.320(b);
(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 section 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 section
506(a)(3), are exempted from the requirement to participate in the
State planning processes under section 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;
[[Page 47801]]
(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 section 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)(3)-(4), (6)).
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 section 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?
Pursuant to 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 section 503(a)(1).
States are encouraged to review their State Plan more frequently than
every two years, however, and make modifications as circumstances
warrant, pursuant to Sec. 641.345. Prior to 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 sections 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;
(3) The State has failed to meet performance goals and must submit
a corrective action plan; or
(4) There is a change in a grantee or grantees.
(c) Modifications to the State Plan are subject to the same public
review and 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.
(e) The Department will issue additional instructions for the
procedures that must be followed when requesting modifications to the
State Plan. (OAA sec. 503(a)(1)).
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 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 over-served 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?
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)). When there are new Census data
indicating that there has been a shift in the location of the eligible
population or when there is over-enrollment for any
[[Page 47802]]
other reason, the Department recommends a gradual shift that encourages
current participants in subsidized community service employment
assignments to move into unsubsidized employment to make positions
available for eligible individuals in the areas where there has been an
increase in the eligible population. The Department does not define
disruptions to mean that participants are entitled to remain in a
subsidized community service employment assignment indefinitely. As
discussed in Sec. 641.570, there is a time limit on SCSEP
participation, thus permitting positions to be transferred over time.
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. Grantees must submit, in writing, any proposed changes in
distribution that occur after submission of the equitable distribution
report to the Federal Project Officer for approval. All grantees are
strongly encouraged to coordinate any proposed changes in position
distribution with the other grantees in the State, including the State
project director, prior to submitting the proposed changes to their
Federal Project Officer for approval.
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 be capable of administering a multi-
State program. 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 section 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 organizations proposing to serve older Indians and
Pacific Island and Asian Americans with funds reserved under OAA
section 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 WIA
section 501 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 Plan applications 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 be able
to 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 for
eligible individuals in communities in which they reside, or in nearby
communities, that will contribute to the general welfare of the
community;
(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;
(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 each of the
listed responsibility ``tests'' by not having committed any of 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.
[[Page 47803]]
(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 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 focused at
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 any
available information, including the organization's history with regard
to the management of 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 section 514 of the OAA. (Section 641.420 contains the
eligibility criteria and Sec. 641.430 and Sec. 641.440 contain the
responsibility criteria.) The Department also will take the rating
criteria described in the Solicitation for Grant Application or other
instrument into consideration.
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 they have 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. See Sec. 641.900.
(b) Incumbent grantees will not have an opportunity to obtain
technical assistance provided by the Department under OAA section
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.
(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 an
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
[[Page 47804]]
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) As provided in a Solicitation for Grant Applications
published in the Federal Register, 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. (See 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.
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/sub-recipient is responsible for verifying their continued
eligibility at least once every 12 months. Grantees/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, whichever the grantee involved selects. (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
inclusions and exclusions and procedures for determining SCSEP income
eligibility. This guidance may be updated periodically.
Sec. 641.512 May grantees/sub-recipients enroll otherwise eligible
individuals and place them directly into unsubsidized employment?
No, grantees/sub-recipients may not enroll as SCSEP participants
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.
Sec. 641.515 How must grantees/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 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.
Sec. 641.520 Are there any priorities that grantees/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 section 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;
[[Page 47805]]
(7) Have failed to find employment after utilizing 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/sub-recipients must apply these priorities in the
following order:
(1) Persons who qualify as a veteran or qualified spouse under
section 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
section 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 section 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/sub-recipients provide to
participants?
(a) When individuals are selected for participation in the SCSEP,
the grantee/sub-recipient is responsible for:
(1) Providing orientation to the SCSEP, including information on
project goals and objectives, community service employment assignments,
training opportunities, available supportive services, the availability
of a free physical examination, participant rights and
responsibilities, and permitted and prohibited political activities
(OAA sec. 502);
(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 employment 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));
(4) Placing participants in appropriate community service
employment 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 secs. 502(a)(1), 502(b)(1)(B), 502(b)(1)(I), 502(b)(1)(N)(ii));
(6) Assisting participants in arranging for needed supportive
services identified in their SCSEP 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 employment assignment, orientation, and
training (OAA secs. 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 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) In addition to the services listed in paragraph (a) of this
section, grantees/sub-recipients must provide services to participants
according to administrative guidelines that may be issued by the
Department.
(c) Grantees may not use SCSEP funds for 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 employment
assignments. (See also Sec. 641.512).
Sec. 641.540 What types of training may grantees/sub-recipients
provide to SCSEP participants in addition to the training received at
the community service employment assignment?
(a) In addition to the training provided in a community service
employment assignment, grantees and sub-recipients must arrange skill
training that is realistic and consistent with the participants' IEP,
that makes the most effective use of their skills and talents, and that
prepares them for unsubsidized employment.
(b) Training may be provided prior to beginning or concurrent with
a community service employment assignment.
(c) Training may be in the form of lectures, seminars, classroom
instruction, individual instruction, online instruction, on-the-job
experiences, or 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/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/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) Grantees/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 employment assignments.
[[Page 47806]]
Sec. 641.545 What supportive services may grantees/sub-recipients
provide to participants?
(a) Grantees/sub-recipients may provide 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; needs-related payments; and follow-up services. (OAA secs.
502(c)(6)(A)(iv), 518(a)(7)).
(b) To the extent practicable, the grantee/sub-recipient should
provide for the payment of these expenses from other resources.
(c) Grantees/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.
Sec. 641.550 What responsibility do grantees/sub-recipients have to
place participants in unsubsidized employment?
Because one goal of the program is to foster economic self-
sufficiency, and because the SCSEP limits the amount of time a
participant can remain in the program, grantees and sub-recipients must
make every effort to place participants in unsubsidized employment.
Grantees/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/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/sub-recipients must pay participants the
highest applicable required wage for time spent in orientation,
training, and community service employment assignments.
(ii) SCSEP participants may be paid the highest applicable required
wage while receiving 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/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/sub-recipients must ensure
that participants receive such benefits as are required by law.
(i) Grantees/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/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 participants only,
a written report of the results of the examination. Participants may,
at their option, provide the grantee or sub-recipient with a copy of
the report.
(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 or other means, within 60 workdays after
commencement of the community service employment assignment. Each year
thereafter, grantees and sub-recipients must offer the physical
examination and document the offer and any participant's refusal.
(C) Grantees/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 section 504(b).
(iv) If required by State law, grantees/sub-recipients must provide
unemployment compensation coverage for participants.
(v) Grantees/sub-recipients must provide compensation for scheduled
work hours during which a host agency's business is closed for a
Federal holiday.
(vi) Grantees/sub-recipients must provide necessary sick leave,
whether paid or unpaid, that is not part of an accumulated sick leave
program.
(2) Prohibited wage and benefits costs.
(i) Participants may not carry over allowable benefits (including
sick leave) from one Program Year to the next;
(ii) Grantees/sub-recipients may not provide payment or otherwise
compensate participants for unused benefits such as sick leave or
holidays;
(iii) Grantees/sub-recipients may not use SCSEP funds to cover
costs associated with the following participant benefits:
(A) Retirement. Grantees/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/sub-recipient must
inform the participant of the time limit and the possible extension,
and the grantee/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) Pursuant to a request from a grantee/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/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. Pursuant to a
request by a grantee, the Department will authorize a one-time
increased period of participation up to an additional 12 months 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
[[Page 47807]]
(5) Have limited English proficiency or low literacy skills.
(c) Average participation cap. (1) Notwithstanding any individual
extension authorized pursuant to 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 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 Nation;
(ii) Significant downturns in the areas 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 grant 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 employment assignment
is not available. Such an authorized break, if taken pursuant to 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).
(e) Administrative guidance. The Department will issue
administrative guidance detailing the process by which a grantee may
request an increased period of participation for a participant(s), and
the process by which a grantee may request an extension of the average
participation cap.
(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. (OAA secs.
502(b)(1)(C), 518(a)(3)(B)).
Sec. 641.575 May a grantee/sub-recipient establish a limit on the
amount of time its participants may spend at each host agency?
Yes, grantees/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 are established in the grant agreement, as
approved by the Department, and must be consistent with the
participants' IEPs. Host agency rotations have no effect on either the
individual participation limit or the average participation cap (see
Sec. 641.570).
Sec. 641.577 Is there a limit on community service employment
assignment hours?
Yes. Each participant's community service employment assignment
must not exceed 1,300 hours during a Program Year. The 1,300 hours
includes all paid hours directly related to the community service
employment assignment, including any hours of scheduled work during a
Federal holiday and any hours of compensated or uncompensated leave.
Hours spent by a participant in SCSEP orientation and training do not
count toward the 1,300 hour limit.
Sec. 641.580 Under what circumstances may a grantee/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/sub-
recipient must give the participant immediate written notice explaining
the reason(s) for termination and immediately terminate the
participant.
(b) If, during eligibility verification under Sec. 641.505, a
grantee/sub-recipient finds a participant to be no longer eligible for
enrollment, the grantee/sub-recipient must give the participant written
notice explaining the reason(s) for termination within 30 days, and
must terminate the participant 30 days after the participant receives
the notice.
(c) If, at any time, the grantee/sub-recipient determines that it
incorrectly determined a participant to be eligible for the program
through no fault of the participant, the grantee/sub-recipient must
give the participant immediate written notice explaining the reason(s)
for termination and must terminate the participant 30 days after the
participant receives the notice.
(d) A grantee/sub-recipient may terminate a participant for cause.
In doing so, the grantee/sub-recipient must give the participant
written notice explaining the reason(s) for termination. Grantees must
include their policies concerning for-cause terminations in the grant
application.
(e) A grantee/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 SCSEP IEP and
there are no extenuating circumstances that would hinder the
participant from moving to unsubsidized employment. The grantee/sub-
recipient must give the participant written notice explaining the
reason(s) for termination and must terminate the participant 30 days
after the participant receives the notice.
(f) When a grantee/sub-recipient makes an unfavorable determination
of enrollment eligibility under paragraphs (b) and (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/sub-
recipient terminates a participant under paragraphs (d) and (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 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/sub-recipients may not impose an upper
age limit for participation in the SCSEP.
[[Page 47808]]
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 section 502(e) of the OAA?
The purpose of the pilot, demonstration, and evaluation projects
authorized under section 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.
Sec. 641.630 What pilot, demonstration, and evaluation project
activities are allowable under section 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/sub-recipients, including area
agencies on aging?
(a) To the extent practicable, the Department will provide an
opportunity, prior to the development of a demonstration or pilot
project, for the appropriate area agency on aging to submit comments on
such a 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 appropriate
area agencies on aging and with other appropriate agencies and entities
to promote coordination of SCSEP and pilot, demonstration, and
evaluation activities. (OAA sec. 502(e)).
8. Revise subparts H and I of part 641 to read as follows:
Subpart H--Administrative Requirements
Sec.
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?
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 costs of
administration?
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?
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
[[Page 47809]]
common rule implementing OMB Circular A-102, ``Grants and Cooperative
Agreements with State and Local Governments'' (10/07/1994) (further
amended 08/29/1977), 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 for the program,
during the grant period in which it was earned, 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) Recipients that continue to receive a SCSEP grant from the
Department must spend program income earned or generated from SCSEP-
funded activities after the end of the grant period for SCSEP purposes
in the Program Year it was received.
(c) Recipients that do not continue to receive a SCSEP grant from
the Department must remit unexpended program income earned or generated
during the grant period from SCSEP funded activities to the Department
after 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 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)).
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. 515(b)).
(b) SCSEP recipients must ensure that no sub-agreement provides for
the expenditure of any SCSEP funds before July 1 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. 515(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 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 regarding 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 section 121(b) of WIA, and
(ii) Operates programs and activities that are part of the One-Stop
Delivery System established under WIA; or
[[Page 47810]]
(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 pursuant to section
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 indicated 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 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 technically 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
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 employment 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
requirement regarding nepotism 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, 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 employment 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)).
[[Page 47811]]
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 (nonprofit 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 section
134(c) of the Workforce Investment Act of 1998 are allowable, provided
that SCSEP services and funding are provided in accordance with the MOU
required by the Workforce Investment Act and section 502(b)(1)(O) of
OAA, 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) Minor 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 section
504 of the Rehabilitation Act of 1973, as amended, and the Americans
with Disabilities Act of 1990, 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 employment
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;
(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;
[[Page 47812]]
(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 prior to commencing or concurrent with a community service
employment assignment, and which may be provided at a host agency, in a
classroom setting, or utilizing 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, including liability insurance, payments
for workers' compensation for staff, costs associated with achieving
unsubsidized placement goals, and other operation requirements imposed
by the Department;
(ii) The number of community service employment 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, 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)).
[[Page 47813]]
(b) A SCSEP recipient is in compliance with this provision if at
least 75 percent of the total award amount of SCSEP funds provided to
the recipient was spent 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 pursuant to 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 a participant 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
subsistence allowance described in Sec. 641.565(a) 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
concerning 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 concerning how the activities will
improve employment outcomes for individuals served, based on the
assessment conducted pursuant to Sec. 641.535(a)(2); and
(3) A proposed budget and work plan for the activities, including a
detailed description of the funds to 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 When 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.
(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, host agencies, and
employers in electronic format 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)).
(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) Each SCSEP recipient must collect data and submit reports
regarding the performance measures. See Subpart F. The Department will
provide instructions detailing these measures and how recipients must
prepare this report.
(e) 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
[[Page 47814]]
failing to submit reports, which may result in failing one of the
responsibility tests outlined in Sec. 641.430 and section 514(d) of
the OAA.
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 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 title V recipients as
necessary.XXX
Subpart I--Grievance Procedures and Appeals Process
Sec. 641.900 What appeal process is available to an applicant that
does not receive a grant?
(a) An applicant for financial assistance under title V of the OAA
that is dissatisfied because the Department has issued a notification
that it has not awarded financial assistance, in whole or in part, to
such applicant, 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 his proposal. The appeal may be for a part or
the whole of a denial of 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, or the entire notification when
no hearing has been requested within 21 days, 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 Department will deem any exception not specifically urged to
have been waived. A copy of the petition for review must be sent to the
opposing party at that time. Thereafter, the decision of the ALJ
constitutes final agency action unless the ARB, within 30 days of the
filing of the petition for review, notifies the parties that the case
has been accepted for review. 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, set forth at
29 CFR part 18, govern the conduct of hearings under this section,
except that:
(1) The appeal is not considered as 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 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.
(i) This section only applies to multi-year grant awards.
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.
[[Page 47815]]
(d) Questions about, or complaints alleging a violation of, the
nondiscrimination requirements of title VI of the Civil Rights Act of
1964, section 504 of the Rehabilitation Act of 1973, section 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 section 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, set forth 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 Department will deem any exception not specifically urged to
have been waived. A copy of the petition for review must be sent to the
opposing party at that time. Thereafter, the decision of the ALJ
constitutes final agency action unless the ARB, within 30 days of the
filing of the petition for review, notifies the parties that the case
has been accepted for review. 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 30th day of July 2008.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training Administration.
[FR Doc. E8-17802 Filed 8-13-08; 8:45 am]
BILLING CODE 4510-FN-P