E7-22298. AmeriCorps National Service Program

AGENCY:

Corporation for National and Community Service.

ACTION:

Proposed rule with request for comments.

SUMMARY:

The Corporation for National and Community Service (hereinafter, “the Corporation”) proposes to amend several provisions relating to the AmeriCorps national service program. The proposed amendments are technical edits to clarify certain provisions and are offered in response to feedback the Corporation has received since its 2005 AmeriCorps rulemaking.

DATES:

To be sure your comments are considered, they must reach the Corporation on or before January 18, 2008.

ADDRESSES:

You may mail or deliver your comments to Amy Borgstrom, Corporation for National and Community Service, 1201 New York Ave., NW., Washington, DC 20525. You may also send your comments by facsimile transmission to [phone], or send them electronically to [e-mail] or through the Federal government's one-stop rulemaking Web site at http://www.regulations.gov. Members of the public may review copies of all communications received on this rulemaking at the Corporation's Washington, DC headquarters.

FOR FURTHER INFORMATION CONTACT:

Amy Borgstrom, Docket Manager, Corporation for National and Community Service, [phone], TDD [phone]. Persons with visual impairments may request this rule in an alternate format.

SUPPLEMENTARY INFORMATION:

I. Invitation to Comment

We invite you to submit comments about these proposed regulations. To ensure that your comments have maximum value in helping us develop the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each comment addresses and to arrange your comments in the same order as the proposed regulations. During and after the comment period, you may inspect all public comments about these proposed regulations by contacting the Docket Manager listed in this notice.

For more information about comments, please visit our Web site at http://www.americorps.org/​rulemaking.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

II. Background

Under the National and Community Service Act of 1990, as amended (hereinafter “NCSA” or “the Act,” 42 U.S.C. 12501, et seq.), the Corporation makes grants to support community service through the AmeriCorps program. In addition, the Corporation, through the National Service Trust, provides educational awards to and certain interest payments on behalf of AmeriCorps participants who successfully complete a term of service in an approved national service position.

On May 20, 2003, the Corporation's Board of Directors (the Board) approved a report issued by the Board's Grant-making Task Force in which the Task Force recommended that the Corporation undertake efforts to streamline and improve our current grant-making processes. Among other actions, the Task Force recommended that the Corporation update the grant-making review and selection criteria, simplify the application process, evaluate the Corporation's grant requirements and assess whether requirements should and could be changed, and eliminate or streamline annual guidance.

On February 27, 2004, President Bush issued Executive Order 13331 aimed at making the national and community service program better able to engage Americans in volunteering, more responsive to State and local needs, more accountable and effective, and more accessible to community organizations, including faith-based organizations. The Executive Order directed the Corporation to review and modify its policies as necessary to accomplish these goals.

This rulemaking process is the second of two, originally initiated in 2004. The first rulemaking focused on sustainability and the limitation on the Federal share of program costs. The first rulemaking was completed in July, 2005 and became effective September, 2005. This rulemaking is intended chiefly to clarify several changes made in the first rulemaking, streamline and improve our current grant-making processes, strengthen accountability, and otherwise improve upon the operations of the AmeriCorps State and National program.

III. Proposed Rule

Definitions (§ 2510.20)

The proposed rule amends the definition of the term participant to acknowledge the frequently used term member as synonymous.

Prohibited Activities: Voter Registration (§ 2520.60)

In 1994, the Corporation issued regulations in part 2520 regarding prohibited activities for AmeriCorps members. In 2002, the Corporation strengthened the list of prohibited activities by adding items from sub-regulatory grant provisions. At that time, the Corporation inadvertently omitted the sub-regulatory prohibition on AmeriCorps members engaging in voter registration drives in rulemaking. Our proposed rule adds this longstanding prohibition to regulation.

Participant Evaluations (§ 2522.220)

The Corporation's regulations require that grantees conduct an end-of-term evaluation for each AmeriCorps participant. The purpose of this evaluation is to answer two questions: (1) Whether the participant is eligible to earn an education award; and (2) whether the participant is eligible to serve a second or additional term of service.

Whether a participant is eligible to earn an education award depends upon whether the participant completes the agreed-upon term of service. Under Section 146 of the Act, a participant is only eligible to earn an education award if the participant completed a term of service or was released for compelling personal circumstances as described in Section 139.

According to Section 138 of the Act, whether a participant is eligible to serve a second term of service depends upon whether the participant served “satisfactorily” in the first term of service. The Act directs the Corporation to issue regulations on the manner and criteria for determining whether a participant's service was satisfactory.

Presently, the Corporation's regulations state that, in assessing whether a participant's performance was satisfactory, the program must assess, among other things, whether the participant completed the required number of hours for the term of service and whether the participant satisfactorily completed assignments, tasks, and projects.

The Corporation did not intend to suggest that completion of service hours should be a factor in determining whether a participant served satisfactorily. The Corporation has long considered that those participants who are released for compelling personal circumstances may be eligible to serve a second term of service in an AmeriCorps program. Likewise, the Corporation has issued guidance in the annual AmeriCorps Grant Provisions that those participants who are released for cause, but who performed satisfactorily for the time they served, may also be eligible to serve a second term of service. The completion of service hours signifies whether the participant can earn an education award, not whether the participant served satisfactorily.

Our proposed rule amends the Corporation's regulations to clarify that those participants who are released for compelling personal circumstances, or who are released for cause but who receive a satisfactory performance review, may be eligible to serve a second term of service in AmeriCorps. To make this clear, in the proposed rule we have divided the end-of-term appraisal into two parts: (1) A determination of whether the participant earned an education award; and (2) a participant performance review to determined whether the participant served satisfactorily.

The participant performance review has been amended in the proposed rule to incorporate those participants who are released early. The performance review will assess, in addition to any criteria developed by the program, whether the participant has satisfactorily completed assignments, tasks, or projects, or, for those participants released from service early, whether the participant satisfactorily completed those assignments, tasks, or projects that the participant could reasonably have completed in the time the participant served.

For those participants who are released for cause, the reason for the release should be taken into account in determining whether the participant's term of service was satisfactory. A grantee should not conclude that a participant's term of service was satisfactory if the participant is released for cause unless the grantee determines that the reason for departure, while not within the regulatory criteria for compelling personal circumstances, is reasonable. For example, a participant who quits in order to go on vacation, or is released for bad behavior, should not be considered to have served satisfactorily regardless of how impressive the participant's service was up to that point.

Notably, individuals who were released for cause from the first term of service are required under our regulations to disclose this fact on any subsequent application for service with an AmeriCorps program. Consequently, the Corporation anticipates that programs will consider the facts surrounding the prior release when determining whether to select the individual for service.

The proposed rule would also change the language of the old rule so that the evaluation of the participant occurs “at the end” of the term of service, as opposed to “upon completion” of the term. By changing the language from “completion” to “end,” the Corporation intends that programs should evaluate all members, even those who do not technically complete the originally agreed-upon number of service hours.

Our current regulations require programs to conduct end-of-term and mid-term evaluations on AmeriCorps participants. Due to the fact that participants occasionally leave service early, either for cause or for compelling personal circumstances, the Corporation has determined that it is not always practicable or possible for a program to perform an official review of a participant's performance in the middle of the term. Our proposed rule would remove the requirement that programs conduct mid-term evaluations for those participants who leave AmeriCorps service early.

The Corporation also wishes to clarify its intent with regard to the documentation of mid-term evaluations. We require programs to engage in mid-term evaluations, but have not provided guidance as to the structure or content of these reviews. We expect programs to tailor mid-term evaluations to fit the particular needs of the individual program. Likewise, while we require that a program document that a mid-term evaluation occurred, there is no specific required format for this documentation. Rather, the grantee shall maintain documentation for each member that it has determined to be helpful to the program in conducting the end-of-term evaluation, whether that be a rating system, a narrative, notes from the evaluation interview, or other documentation.

Living Allowance Disbursement (§ 2522.245)

The Corporation is in the process of revising the AmeriCorps grant provisions and moving requirements with program-wide applicability to regulation or to the terms and conditions incorporated into individual grants. In the proposed rule, the requirement about how living allowances are to be treated and disbursed has been relocated from the grant provisions to regulation. There is no new requirement for how living allowances must be disbursed; only the location of the requirement has changed.

The intent of this regulation is to ensure that living allowances are distributed in a manner that fulfills their purpose. AmeriCorps participants are not employees of the programs with which they serve and the living allowance is not considered an hourly wage. Rather, the living allowance is intended to be a means to support participants' basic costs of living to ensure they are able to secure food, clothing, and shelter while performing national service. For this reason, it is important that programs not treat the living allowance as a wage, and not adjust the distribution of the living allowance based on the number of hours a participant serves during a given period of time. For example, a participant that serves for 50 hours one week and 25 the next should receive the same living allowance as if the participant had served 50 hours (or 25 hours) in both weeks. Generally, the living allowance must not increase or decrease but should remain steady just as a participant's living expenses are continuous. However, because the living allowance is intended to support a participant's cost of living, if the cost of food, housing, transportation, or other necessities in a particular area increases, the program may adjust the living allowance disbursement accordingly within the overall approved grant amount.

Just as the amount of the living allowance should not fluctuate, the frequency of distribution of the living allowance should be steady and reliable. Programs must provide living allowances at regular intervals, such as weekly or bi-weekly, so that a participant can have regular access to financial support.

The proposed rule would also codify the existing prohibition on the payment of “lump sums” to participants who complete their terms of service in shorter periods of time than originally anticipated. If a participant starts service later than other participants, the program may not pay the participant an additional sum to “make up” payments missed before the participant began. Likewise, if a participant completes the term of service ahead of schedule, the program may not pay the participant a lump sum equivalent to what the participant would have received.

Waiver of Living Allowance by a Participant (§ 2522.240(b)(5))

The Corporation's grant provisions have long provided that an AmeriCorps participant may waive all or part of the living allowance. Our proposed rule would add this provision to regulation. A participant who waives the living allowance may revoke the waiver at any time and may begin receiving a living allowance again prospective to that date. The participant may not receive any part of the living allowance attributable to the time period during which the living allowance was waived.

Applications for the Same Project (§ 2522.320)

Section 130(g) of the Act states that “the Corporation shall reject an application submitted under this section if a project proposed to be conducted using assistance requested by the applicant is already described in another application pending before the Corporation.”

The Corporation's existing regulations state that “the Corporation will reject an application for a project if an application for funding or educational awards for the same project is already pending before the Corporation.” 45 CFR 2522.320.

Our proposed rule would permit applicants to submit applications for the same project in separate, but overlapping, competitions, but only under specific conditions designed to prevent the project from receiving funding from two different sources. The proposed rule is intended to maximize the quality of programs in the AmeriCorps*State and National portfolio by giving applicants greater flexibility and autonomy in applying for the grant program best suited for their particular projects, while avoiding the same project receiving funding from two grants.

To ensure compliance, the proposed rule requires an applicant that submits multiple applications to the Corporation to identify any other pending application for the same project. By submitting multiple applications for the same project under this proposed rule, the applicant will be on notice that approval of one by the Corporation will be deemed a withdrawal by the applicant of any additional application for the same project.

To clarify the definition of “same project,” the proposed rule lists criteria by which we will determine whether proposed activities and identifying characteristics constitute the same or different projects. The Corporation may determine that two or more projects are sufficiently different based upon clear distinctions in one or more of the criteria considered. However, the criteria in the proposed rule are not exhaustive, as the Corporation may consider additional factors in determining a project's specific, identifiable activities.

For the purposes of determining whether two applications cover the same project, geographic location will be identified as narrowly as possible in order to specify the population served. For example, the operation of a homeless shelter in Brooklyn might—depending on the proposed activities and identifying characteristics—be considered a different project than the operation of a homeless shelter in the Bronx.

Performance Measures (§ 2522.620)

The Corporation proposes to remove the requirement that grantees report on end outcomes at the end of year three of each program. Grantees will continue to be required to submit at least one aligned set of performance measures in their applications. These aligned measures must include at least one output, an intermediate outcome, and an end outcome. Grantees will continue to be required to measure, analyze and report upon the outputs and the intermediate outcome. Under the proposal, however, the Corporation's national evaluation strategy will focus on measuring end outcomes. We are convinced that there is significant value in grantees articulating an end outcome for at least one performance measure, as it provides a valuable long-term context for their work. However, we do not believe it is a prudent investment of federal funds to support their measurement of these end outcomes, which often will not become evident until more than three years after the initial investment. Therefore, we are proposing to relieve grantees of the requirement to report end outcomes.

Civil Rights (§§ 2540.210 and 2540.215)

The Corporation requires all recipients of Corporation grants to abide by applicable federal non-discrimination laws, including relevant provisions of the national service legislation and implementing regulations. It is essential that all participants, staff, and beneficiaries of programs supported by Corporation grants are aware of their rights under these laws and of the availability of the Corporation's impartial discrimination complaint process.

Previously, the Corporation's civil rights notification requirements were included in the annual grant provisions. The proposed rule will relocate these requirements to regulation. There is no change in the requirements, only in the location of the requirements.

The proposed rule requires grantees to notify participants, staff, and beneficiaries of the civil rights requirements and complaint procedures by including this information in recruitment materials, member contracts, handbooks, manuals, pamphlets, and by posting it in conspicuous locations, as appropriate. Grantees should ensure that this information is accessible to those participants, staff, and beneficiaries who have limited English proficiency, or who are hearing or visually impaired by providing it in alternative formats when necessary.

Grantees may obtain sample notification language and other guidance on notification, the Corporation's discrimination complaint procedure, and other general information on prohibited discrimination by contacting the Office of Civil Rights and Inclusiveness, Corporation for National and Community Service, 1201 New York Ave., NW., Washington, DC 20525, by e-mail at [e-mail], or by calling [phone], [phone] (TTY).

Use of National Service Insignia (§§ 2540.500-560)

Currently, grant recipients and other entities engaged in providing national and community services in cooperation with the Corporation are approved to use the national service insignia in accordance with the terms and conditions of their agreements with the Corporation. The Corporation anticipates continuing to administer approvals to use the national insignia in this manner.

From time to time, however, the Corporation's insignia, including the AmeriCorps logo and other logos associated with the Corporation's programs, have been used without authorization, including by individuals and entities that have no relationship with the Corporation. In some cases, the unauthorized use was for commercial purposes and other purposes that would not have been approved by the Corporation. To better protect the image and integrity of the Corporation's programs, ensure compliance with government-wide rules against improper endorsement of non-Federal entities, and protect the public from possible deception, a new subpart E is proposed to be added to part 2540 of Title 45 of the Code of Federal Regulations. The proposed regulation would provide notice regarding the restrictions on using the Corporation's various insignia and of the possible civil and criminal penalties that may incur for unauthorized use of the insignia. Depending upon the nature of the violation, under section 425 of the Domestic Volunteer Service Act of 1973 (42 U.S.C. 5065) and 18 U.S.C. 506, 701, and 1017, enforcement of the restriction could result in an injunction on the unauthorized use, a monetary fine, or imprisonment.

Disqualification and Forfeiture Based on False or Misleading Statements (§§ 2540.600-670)

The Corporation proposes to add a new subpart F to part 2540 to address individuals who are admitted to a program or who receive program benefits on the basis of false or misleading statements. Occasionally, a member, volunteer, or participant in a Corporation-funded program is discovered to have been admitted to the program or accorded a benefit from the program on the basis of false or misleading statements. The proposed regulation provides a means for the Corporation to revoke the eligibility of a person for participation in or a benefit from a national service program if the person was admitted to a program or seeks a benefit from a program on the basis of a false or misleading statement which includes material omissions or false facts that, if known at the time of application or submission of a claim, would have resulted in a finding of ineligibility.

In most cases the criteria for qualification to participate in a program or eligibility for a program benefit are set out in the NCSA and DVSA, or related appropriations acts. If it is discovered that facts material to qualification to participate or eligibility for a benefit were false or misleading, the Corporation has an obligation to revoke the person's eligibility and refrain from providing a related benefit to that person. Additionally, the Corporation may be legally obligated to recover funds from the person if funds were received on the basis of a false or misleading statement.

The proposed regulation gives individuals suspected of making false or misleading statements the opportunity to respond under a two-tier review process before their eligibility is revoked. Where there are genuine material facts in dispute, a telephonic or face-to-face meeting may be included at the second level of review.

The intent of the regulation is to provide a mechanism for revoking the eligibility of individuals who make a false or materially misleading statement in connection with their application to or enrollment in a national service program and for forfeiting eligibility for a related benefit.

The action and procedures set out in the proposed regulation are intended to supplement, not replace, remedies against offending parties that are available under other laws. Depending upon the nature and scope of a false statement or misleading statement, other legal action may be taken against the offending party under the False Claims Act, Program Fraud and Civil Remedies Act of 1986, Suspension and Debarment regulations under 45 CFR part 2542, and other applicable laws and regulations.

Inspector General Access to Grantee Records (§ 2541.420)

Section 2541.420(e)(1) is amended to specifically add the Inspector General among the authorities having access to pertinent grantee records. While it has always been understood that the Office of the Inspector General is a component of the awarding agency, the rule is being amended to match the access to records language in § 2543.53, which specifically names the Inspector General among the authorities having access to grantee records.

State Commission Composition Requirements (§ 2550.50)

Section 178(d)(1) of the Act states that “the Chief Executive Officer of a State shall ensure, to the maximum extent practicable, that the membership for the State commission for the State is diverse with respect to race, ethnicity, age, gender, and disability characteristics. Not more than 50 percent of the voting members, plus one additional member, may be from the same political party.” Section 178(c)(5) of the Act states that “[t]he number of voting members of a State commission * * * who are officers or employees of the State may not exceed 25 percent * * * of the total membership of the State commission.”

Our proposed amendment to 45 CFR 2550.50 conforms the regulation to the specific language in the statute, including a clarification that the political affiliation provision applies only to voting members of the State commission.

State Plans (§ 2550)

Section 178(e) of the Act requires a State Commission to prepare and annually update a national service plan covering a three-year period. This Plan, previously referred to as a “Unified State Plan,” a “State Service Plan,” and, presently, a “State Plan,” is a document that sets forth the State's goals, priorities, and strategies for promoting national and community service. The Act specifies several components that must be present in the Plan, including the State's efforts to convene, collaborate, or otherwise coordinate with diverse national and community service groups and agencies to accomplish the State's national and community service goals.

The Act gives latitude to the Corporation to establish additional requirements for the contents of the State Plan. Over time, we have found that the State's submission of certain information is mutually beneficial. For example, to enhance communication and coordination between the Corporation and the State, it is useful for us to know how the State is utilizing statewide networks of national and community service groups to achieve its goals and priorities. In addition, the availability of such information serves as a resource for identifying best practices to be shared with other States. By including these elements with the description of a State Commission's duties we eliminated the need to publish state plan requirements as a separate part; therefore, we have stricken part 2513.

Section 2550.80 lists the duties of State entities. Our proposed rule conforms paragraph (a) of this section to the statutory list of the responsibilities of State entities with regard to preparation of a State Plan. In addition, our proposed rule amends this section to include the requirement, previously located in part 2513, that the State Plan incorporate the State's “goals, priorities, and strategies for promoting national and community service and strengthening its service infrastructure, including how Corporation-funded programs fit into the plan.” This groups together relevant information and consolidates the regulatory required components of the State Plans. Our proposed rule imposes no new requirements for the contents of the State Plan, while reserving the Corporation's right to request submission of the State Plan in its entirety, in summary, or in part.

The Corporation uses State Plans principally in understanding the State's national and community service goals, priorities, and strategies, not in making future funding or monitoring determinations, risk-based assessments, or State Standards process evaluations.

Summary of Redesignations

The proposed rule will change the location of a number of regulations. The following table is a guide to the current location of a provision and its new location under the proposed rule.

Current location	Proposed location
2520.65(a)(9)	2520.65(a)(10).
2522.240(b)(5)	2522.240(b)(6).
2550.80(a)(3)	2550(a)(4).

IV. Effective Dates

The Corporation intends to make any final rule based on this proposal effective no sooner than 30 days after the final rule is published in the Federal Register. We will include an implementation schedule in the final rule, based on the final rule's date of publication.

V. Significant Non-Regulatory Issues

The Corporation would like to use this opportunity to notify grantees and other interested parties of certain non-regulatory changes.

Timeframe for Requesting AmeriCorps*State Formula Allocations

Section 129(a) of the Act (42 U.S.C. 12581(a)) requires the Corporation to allocate one-third of its AmeriCorps grants appropriation to the States using a population-based formula. If a State does not request its full formula allocation, the Act directs the Corporation to make a reallotment of unrequested funds to other States and Indian tribes.

To date, we have permitted a State to request less than its full formula allocation in the first year, and access the balance of its allocation in the second year. Many States took advantage of this flexibility and requested their remaining allocation during the second year of availability. About two-thirds of the States do not request all of the formula funds made available to them in the first fiscal year. The specific States that do not request all of their funds vary from year to year, depending on the number of applications each state receives, the Corporation's maximum cost per member and whether there is a cap placed on member enrollment in the National Service Trust.

Beginning in FY 2008, the deadline for submission of the state's formula will be much earlier. Any unrequested funds remaining after the deadline will be reallocated to small states whose initial allocations are less than $500,000 and for other authorized purposes, as appropriate.

Regulatory Flexibility Act

The Corporation has determined that the regulatory action will not result in (1) An annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.) for major rules that are expected to have such results.

Other Impact Analyses

Under the Paperwork Reduction Act, information collection requirements which must be imposed as a result of this regulation have been reviewed by the Office of Management and Budget under OMB nos. 3045-0047, 3045-0117, and 3045-0099.

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

List of Subjects

45 CFR Part 2510

• Grant programs—social programs
• Volunteers

45 CFR Part 2513

• Grant programs—social programs
• Reporting and recordkeeping requirements
• Volunteers

45 CFR Part 2516

• Grants administration
• Grant programs—social programs

45 CFR Part 2517

• Grants administration
• Grant programs—social programs

45 CFR Part 2520

• Grant programs—social programs
• Volunteers

45 CFR Part 2521

• Grants administration
• Grant programs—social programs

45 CFR Part 2522

• Grants administration
• Grant programs—social programs
• Volunteers

45 CFR Part 2523

• Grant programs—social programs

45 CFR Part 2524

• Grant programs—social programs
• Technical assistance

45 CFR Part 2540

• Civil rights
• Fraud
• Grants administration
• Grant programs—social programs
• Trademarks—signs and symbols
• Trust
• Volunteers

45 CFR Part 2541

• Grant programs—social programs
• Reporting and recordkeeping requirements
• Investigations

45 CFR Part 2550

• Grants administration
• Grant programs—social programs

For the reasons stated in the preamble, under the authority 42 U.S.C. 12651d, the Corporation for National and Community Service proposes to amend chapter XXV, title 45 of the Code of Federal Regulations as follows:

PART 2510—OVERALL PURPOSES AND DEFINITIONS

1. The authority citation for part 2510 continues to read as follows:

Authority: 42 U.S.C. 12501, et seq.

2. Amend § 2510.20 by adding a new paragraph (3) to the definition of “participant” to read as follows:

§ 2510.20

Definitions.

* * * * *

Participant. * * *

(3) A participant may also be referred to by the term member.

* * * * *

PART 2513—[REMOVED AND RESERVED]

3. Remove and reserve part 2513.

PART 2516—SCHOOL-BASED SERVICE-LEARNING PROGRAMS

4. The authority citation for part 2516 is revised to read as follows:

Authority: 42 U.S.C. 12521-12551.

§ 2516.400

[Amended]

5. Amend § 2516.400 by removing the reference “part 2513” and replacing it with “§ 2550.80(a).”

§ 2516.410

[Amended]

6. Amend § 2516.410 (a)(1) by removing the reference “part 2513” and replacing it with “§ 2550.80(a).”

§ 2516.500

[Amended]

7. Amend § 2516.500 (a)(3)(i) by removing the reference “part 2513” and replacing it with “§ 2550.80(a).”

PART 2517—COMMUNITY-BASED SERVICE-LEARNING PROGRAMS

8. The authority citation for part 2517 is revised to read as follows:

Authority: 42 U.S.C. 12541-12547.

§ 2517.400

[Amended]

9. Amend § 2517.400 (a)(3) by removing the reference “part 2513” and replacing it with “§ 2550.80(a).”

§ 2517.500

[Amended]

10. Amend § 2517.500 (c)(3) by removing the reference to “part 2513” and replacing it with “§ 2550.80(a).”

PART 2520—GENERAL PROVISIONS: AMERICORPS SUBTITLE C PROGRAMS

11. The authority citation for part 2520 continues to read as follows:

Authority: 42 U.S.C. 12571-12595.

12. Amend § 2520.65 by redesignating paragraph (a)(9) as (a)(10) and adding a new paragraph (a)(9) to read as follows:

§ 2520.60

What activities are prohibited in AmeriCorps subtitle C programs?

(a) * * *

(9) Conducting a voter registration drive or using Corporation funds to conduct a voter registration drive;

* * * * *

PART 2521—ELIGIBLE AMERICORPS SUBTITLE C PROGRAM APPLICANTS AND TYPES OF GRANTS AVAILABLE FOR AWARD

13. The authority citation for part 2521 continues to read as follows:

Authority: 42 U.S.C. 12571-12595.

14. In § 2521.30, revise paragraph (a)(4) to read as follows:

§ 2521.30

How will AmeriCorps subtitle C program grants be awarded?

* * * * *

(a) * * *

(4) In making subgrants with funds awarded by formula or competition under paragraphs (a)(2) or (3) of this section, a State must ensure that a minimum of 50 percent of funds going to States will be used for programs that operate in the areas of need or on Federal or other public lands, and that place a priority on recruiting participants who are residents in high need areas, or on Federal or other public lands. The Corporation may waive this requirement for an individual State if at least 50 percent of the total amount of assistance to all States will be used for such programs.

* * * * *

PART 2522—AMERICORPS PARTICIPANTS, PROGRAMS, AND APPLICANTS

15. The authority citation for part 2522 continues to read as follows:

Authority: 42 U.S.C. 12571-12595.

16. Amend § 2522.220 by:

a. Revising the introductory text of paragraph

(a); and

b. Revising paragraph (d).

The revisions will read as follows:

§ 2522.220

What are the required terms of service for AmeriCorps participants, and may they serve more than one term?

(a) Term of Service. A term of service may be defined as:

* * * * *

(d) Participant performance review. For the purposes of determining a participant's eligibility for an educational award as described in § 2522.240(a) and eligibility to serve a second or additional term of service as described in paragraph (c) of this section, each AmeriCorps grantee is responsible for conducting a mid-term and end-of-term performance evaluation. A mid-term performance evaluation is not required for a participant who is released early from completing a term of service. The end-of-term performance evaluation should consist of:

(1) A determination of whether the participant:

(i) Completed the required number of hours described in paragraph (a) of this section, making the participant eligible for an educational award as described in § 2522.240(a);

(ii) Was released from service for compelling personal circumstances, making the participant eligible for a pro-rated educational award as described in § 2522.230(a)(2); or

(iii) Was released from service for cause, making the participant ineligible to receive an educational award for that term of service as described in § 2522.230(b)(3); and

(2) A participant performance review which will assess whether the participant:

(i) Has satisfactorily completed assignments, tasks, or projects, or, for those participants released from service early, whether the participant satisfactorily completed those assignments, tasks, or projects that the participant could reasonably have completed in the time the participant served; and

(ii) Has met any other performance criteria which had been clearly communicated both orally and in writing at the beginning of the term of service.

* * * * *

17. Amend § 2522.230 by adding a new paragraph (b)(6) to read as follows:

§ 2522.230

Under what circumstances may AmeriCorps participants be released from completing a term of service, and what are the consequences?

* * * * *

(b) * * *

(6) An individual's eligibility for a second term of service in AmeriCorps will not be affected by release for cause from a prior term of service so long as the individual received a satisfactory end-of-term performance review as described in § 2522.240(d)(2) for the period served in the first term.

* * * * *

18. Amend § 2522.240 by:

a. Revising the heading of paragraph (b)(4);

b. Redesignating paragraph (b)(5) as (b)(6); and

c. Adding a new paragraph (b)(5). The revisions and additions will read as follows:

§ 2522.240

What financial benefits do AmeriCorps participants serving in approved AmeriCorps positions receive?

* * * * *

(b) * * *

(4) Waiver or reduction of living allowance for programs. * * *

(5) Waiver or reduction of living allowance by participants. A participant may waive all or part of the receipt of a living allowance. The participant may revoke this waiver at any time during the participant's term of service. If the participant revokes the living allowance waiver, the participant may begin receiving his or her living allowance prospective to the date of the revocation; a participant may not receive any portion of the living allowance that may have accrued during the waiver period.

* * * * *

19. Add a new § 2522.245 to read as follows:

§ 2522.245

How are living allowances disbursed?

A living allowance is not a wage and programs may not pay living allowances on an hourly basis. Programs must distribute the living allowance at regular intervals and in regular increments, and may increase living allowance payments only on the basis of increased living expenses such as food, housing, or transportation. Living allowance payments may only be made to a participant during the participant's term of service and must cease when the participant concludes the term of service. Programs may not provide a lump sum payment to a participant who completes the originally agreed-upon term of service in a shorter period of time.

20. Revise § 2522.320 to read as follows:

§ 2522.320

Under what conditions may I submit more than one application for the same project?

You may submit more than one application for the same project only if:

(a) You submit the applications in separate competitions (i.e., National Direct, State, Education Award Program); and

(b) You disclose in each application that there is another application for the same project pending before the Corporation.

21. Add new §§ 2522.330 and 2522.340 to subpart C to read as follows:

§ 2522.330

What happens to additional applications for the same project if the Corporation approves one application?

If the Corporation approves one application for a project, you will be deemed to have withdrawn any other application (or part thereof) for the same project.

§ 2522.340

How will I know if two projects are the same?

In determining whether two projects are the same, the Corporation will consider, among other characteristics:

(a) The objectives and priorities of the project;

(b) The nature of the service provided;

(c) The program staff, participants, and volunteers involved;

(d) The geographic location in which the service is provided;

(e) The population served; and

(f) The proposed community partnerships.

22. Amend § 2522.620 by revising paragraph (c) to read as follows:

§ 2522.620

How do I report my performance measures to the Corporation?

* * * * *

(c) At a minimum you are required to report on outputs at the end of year one and outputs and intermediate outcomes at the end of years two and three. We encourage you to exceed these minimum requirements.

PART 2523—AGREEMENTS WITH OTHER FEDERAL AGENCIES FOR THE PROVISION OF AMERICORPS PROGRAM ASSISTANCE

23. The authority citation for part 2523 is revised to read as follows:

Authority: 42 U.S.C. 12571-12595.

24. Amend § 2523.90 by removing the reference “§ 2522.240(b)(5)” and replacing it with “§ 2522.240(b)(6).”

PART 2524—AMERICORPS TECHNICAL ASSISTANCE AND OTHER SPECIAL GRANTS

25. The authority citation for part 2524 is revised to read as follows:

Authority: 42 U.S.C. 12571-12595.

§ 2524.30

[Amended]

26. Amend § 2524.30 (b)(4) by removing the reference “2522.240(b)(5)” and replacing it with “2522.240(b)(6).”

PART 2540—GENERAL ADMINISTRATIVE PROVISIONS

27. The authority citation for part 2540 is revised to read as follows:

Authority: E.O. 13331, 69 FR 9911; 18 U.S.C. 506, 701, 1017; 42 U.S.C. 12653; 42 U.S.C. 5065.

28. Amend § 2540.210 by adding a new paragraph (d) to read as follows:

§ 2540.210

What provisions exist to ensure that Corporation-supported programs do not discriminate in the selection of participants and staff?

* * * * *

(d) Grantees must notify all program participants, staff, applicants, and beneficiaries of:

(1) Their rights under applicable federal nondiscrimination laws, including relevant provisions of the national service legislation and implementing regulations; and

(2) The procedure for filing a discrimination complaint with the Corporation's Office of Civil Rights and Inclusiveness.

29. Add a new § 2540.215 to read as follows:

§ 2540.215

What should a program participant, staff members, or beneficiary do if the individual believes he or she has been subject to illegal discrimination?

A program participant, staff member, or beneficiary who believes that he or she has been subject to illegal discrimination should contact the Corporation's Office of Civil Rights and Inclusiveness, which offers an impartial discrimination complaint resolution process. Participation in a discrimination complaint resolution process is protected activity; a grantee is prohibited from retaliating against an individual for making a complaint or participating in any manner in an investigation, proceeding, or hearing.

30. Add a new Subpart E (consisting of §§ 2540.500 through 2540.560) to read as follows:

Subpart E—Restrictions on Use of National Service Insignia

2540.500

What definition applies to this subpart?

2540.510

What are the restrictions on using national service insignia?

2540.520

What are the consequences for unauthorized use of the Corporation's national service insignia?

2540.530

Are there instances where an insignia may be used without getting the approval of the Corporation?

2540.540

Who has authority to approve use of national service insignia?

2540.550

Is there an expiration date on approvals for use of national service insignia?

2540.560

How do I renew authority to use a national service insignia?

Subpart E—Restrictions on Use of National Service Insignia

§ 2540.500

What definition applies to this subpart?

National Service Insignia. For this subpart, national service insignia means the former and current seal, logos, names, or symbols of the Corporation's programs, products, or services, including those for AmeriCorps, VISTA, Learn and Serve America, Senior Corps, Foster Grandparents, the Senior Companion Program, the Retired and Senior Volunteer Program, the National Civilian Community Corps, and any other program or project that the Corporation administers.

§ 2540.510

What are the restrictions on using national service insignia?

The national service insignia are owned by the Corporation and only may be used as authorized. The national service insignia may not be used by non-federal entities for fundraising purposes or in a manner that suggests Corporation endorsement.

§ 2540.520

What are the consequences for unauthorized use of the Corporation's national service insignia?

Any person who uses the national service insignia without authorization may be subject to legal action for trademark infringement, enjoined from continued use, and, for certain types of unauthorized uses, other civil or criminal penalties may apply.

§ 2540.530

Are there instances where an insignia may be used without getting the approval of the Corporation?

All uses of the national service insignia require the written approval of the Corporation.

§ 2540.540

Who has authority to approve use of national service insignia?

Approval for limited uses may be provided through the terms of a written grant or other agreement. All other uses must be approved in writing by the director of the Corporation's Office of Public Affairs, or his or her designee.

§ 2540.550

Is there an expiration date on approvals for use of national service insignia?

The approval to use a national service insignia will expire as determined in writing by the director of the Office of Public Affairs, or his or her designee. However, the authority to use an insignia may be revoked at any time if the Corporation determines that the use involved is injurious to the image of the Corporation or if there is a failure to comply with the terms and conditions of the authorization.

§ 2540.560

How do I renew authority to use a national service insignia?

Requests for renewed authority to use an insignia must follow the procedures for initial approval as set out in § 2540.540.

31. Add a new Subpart F (consisting of §§ 2540.600 through 2540.670) to read as follows:

Subpart F—False or Misleading Statements

2540.600

What definitions apply to this subpart?

2540.610

What are the consequences of making a false or misleading statement?

2540.620

What are my rights if the Corporation determines that I have made a false or misleading statement?

2540.630

What information must I provide to contest a proposed action?

2540.640

When will the reviewing official make a decision on the proposed action?

2540.650

How may I contest a reviewing official's decision to uphold the proposed action?

2540.660

If the final decision determines that I received a financial benefit improperly, will I be required to repay that benefit?

2540.670

Will my qualification to participate or eligibility for benefits be suspended during the review process?

Subpart F—False or Misleading Statements

§ 2540.600

What definitions apply to this subpart?

You. For this subpart, you refers to a participant in a national service program.

§ 2540.610

What are the consequences of making a false or misleading statement?

If it is determined that you made a false or misleading statement in connection with your eligibility for a benefit from, or qualification to participate in, a Corporation-funded program, it may result in the revocation of the qualification or forfeiture of the benefit. Revocation and forfeiture under this part is in addition to any other remedy available to the Federal Government under the law against persons who make false or misleading statements in connection with a federally-funded program.

§ 2540.620

What are my rights if the Corporation determines that I have made a false or misleading statement?

If the Corporation determines that you have made a false or misleading statement in connection with your eligibility for a benefit from, or qualification to participate in, a Corporation-funded program, you will be hand delivered a written notice, or sent a written notice to your last known street address or e-mail address or that of your identified counsel at least 15 days before any proposed action is taken. The notice will include the facts surrounding the determination and the action the Corporation proposes to take. The notice will also identify the reviewing official in your case and provide other pertinent information. You will be allowed to show good cause as to why forfeiture, revocation, the denial of a benefit, or other action should not be implemented. You will be given 10 calendar days to submit written materials in opposition to the proposed action.

§ 2540.630

What information must I provide to contest a proposed action?

Your written response must include specific facts that contradict the statements made in the notice of proposed action. A general statement of denial is insufficient to raise a dispute over the facts material to the proposed action. Your response should also include copies of any documents that support your argument.

§ 2540.640

When will the reviewing official make a decision on the proposed action?

The reviewing official will issue a decision within 45 days of receipt of your response.

§ 2540.650

How may I contest a reviewing official's decision to uphold the proposed action?

If the Corporation's reviewing official concludes that the proposed action, in full or in part, should still be implemented, you will have an opportunity to request an additional proceeding. A Corporation program director or designee will conduct a review of the complete record, including such additional relevant documents you submit. If deemed appropriate, such as where there are material facts in genuine dispute, the program director or designee may conduct a telephonic or in person meeting. If a meeting is conducted, it will be recorded and you will be provided a copy of the recording. The program director or designee will issue a decision within 30 days of the conclusion of the review of the record or meeting. The decision of the program director or designee is final and cannot be appealed further within the agency.

§ 2540.660

If the final decision determines that I received a financial benefit improperly, will I be required to repay that benefit?

If it is determined that you received a financial benefit improperly, you may be required to reimburse the program for that benefit.

§ 2540.670

Will my qualification to participate or eligibility for benefits be suspended during the review process?

If the reviewing official determines that, based on the information available, there is a reasonable likelihood that you will be determined disqualified or ineligible, your qualification or eligibility may be suspended, pending issuance of a final decision, to protect the public interest.

PART 2541—UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS

32. The authority citation for part 2541 continues to read as follows:

Authority: 42 U.S.C. 4950, et seq. and 12501, et seq.

33. Revise § 2541.420(e)(1) to read as follows:

§ 2541.420

Retention and access requirements for records.

* * * * *

(e) Access to records—(1) Records of grantees and subgrantees. The awarding agency, the Inspector General, and the Comptroller General of the United States, or any of their authorized representatives, shall have the right of access to any pertinent books, documents, papers, or other records of grantees and subgrantees which are pertinent to the grant, in order to make audits, examinations, excerpts, and transcripts.

* * * * *

PART 2550—REQUIREMENTS AND GENERAL PROVISIONS FOR STATE COMMISSIONS AND ALTERNATIVE ADMINISTRATIVE ENTITIES

34. The authority citation for part 2550 continues to read as follows:

Authority: 42 U.S.C. 12638.

35. Amend § 2550.50 by revising paragraph (e) to read as follows:

§ 2550.50

What are the composition requirements and other requirements, restrictions or guidelines for State Commissions?

* * * * *

(e) Other composition requirements. To the extent practicable, the chief executive officer of a State shall ensure that the membership for the State commission is diverse with respect to race, ethnicity, age, gender, and disability characteristics. Not more than 50 percent plus one of the voting members of a State commission may be from the same political party. In addition, the number of voting members of a State commission who are officers or employees of the State may not exceed 25% of the total membership of that State commission.

* * * * *

36. Amend § 2550.80 by revising paragraph (a) to read as follows:

§ 2550.80

What are the duties of the State entities?

* * * * *

(a) Development of a three-year, comprehensive national and community service plan and establishment of State priorities. The State entity must develop and annually update a Statewide plan for national service covering a three year period that is consistent with the Corporation's broad goals of meeting human, educational, environmental, and public safety needs and meets the following minimum requirements:

(1) The plan must be developed through an open and public process (such as through regional forums or hearings) that provides for the maximum participation and input from a broad cross-section of individuals and organizations, including national service programs within the State, community-based agencies, organizations with a demonstrated record of providing educational, public safety, human, or environmental services, residents of the State, including youth and other prospective participants, State Educational Agencies, traditional service organizations, labor unions, and other interested members of the public.

(2) The plan must ensure outreach to diverse, broad-based community organizations that serve underrepresented populations by creating State networks and registries or by utilizing existing ones.

(3) The plan must set forth the State's goals, priorities, and strategies for promoting national and community service and strengthening its service infrastructure, including how Corporation-funded programs fit into the plan.

(4) The plan may contain such other information as the State commission considers appropriate and must contain such other information as the Corporation may require.

(5) The plan must be submitted, in its entirety, in summary, or in part, to the Corporation upon request.

* * * * *

37. Add a new § 2550.85 to read as follows:

§ 2550.85

How will the State Plan be assessed?

The Corporation will assess the quality of your State Plan as evidenced by:

(a) The development and quality of realistic goals and objectives for moving service ahead in the State;

(b) The extent to which proposed strategies can reasonably be expected to accomplish stated goals; and

(c) The extent of input in the development of the State plan from a broad cross-section of individuals and organizations as required by § 2550.80(a)(1).

Dated: November 8, 2007.

Frank R. Trinity,

General Counsel.