[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Rules and Regulations]
[Pages 26574-26592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11949]
[[Page 26573]]
_______________________________________________________________________
Part IV
Department of Labor
_______________________________________________________________________
Employment and Training Administration
_______________________________________________________________________
20 CFR Part 641
29 CFR Part 89
Senior Community Service Employment Program; Final Rule
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules
and Regulations
[[Page 26574]]
DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 641
Office of the Secretary
29 CFR Part 89
RIN 1205-AA29
Senior Community Service Employment Program
AGENCY: Employment and Training Administration and Office of the
Secretary, Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (DOL) is amending the regulations for the Senior
Community Service Employment Program (SCSEP) to implement the Older
American Act Amendments of 1984, 1987, and 1992 and to make clarifying
changes. This regulation provides administrative and programmatic
guidance and requirements for the implementation of the SCSEP.
EFFECTIVE DATE: June 30, 1995
FOR FURTHER INFORMATION CONTACT: Mr. Charles L. Atkinson, Chief,
Division of Older Worker Programs. Telephone: (202) 219-4778 (this is
not a toll-free number). Copies of this final rule are available in the
following formats: electronic file on computer disk and audio tape.
They may be obtained at the above office.
SUPPLEMENTARY INFORMATION:
A. Background
As authorized by title V of the Older Americans Act (OAA), as
amended (42 U.S.C. 3056, et seq.), the Senior Community Service
Employment Program (SCSEP) fosters and promotes useful part-time
opportunities in community service activities for persons with low
incomes who are fifty-five years old or older. The Employment and
Training Administration (ETA) of the Department of Labor (DOL or
Department) administers the program by means of grant agreements with
eligible organizations, such as governmental entities and certain
public and private non-profit agencies and organizations. Pursuant to
the OAA, the Department in 1973 established the SCSEP.
The SCSEP regulations were last revised in 1976: 29 CFR part 89, 41
FR 9006 (March 2, 1976). The SCSEP legislation has been amended by the
following laws since the last revision of the regulation: Pub. L. 95-
478, section 105 (October 18, 1978); Pub. L. 97-115, section 12
(December 29, 1981); Pub. L. 98-459, sections 501-05 (October 9, 1984);
Pub. L. 100-175, sections 161-66 (December 7, 1987); and Pub. L. 102-
375, sections 502-11 (September 30, 1992) and Pub. L. 103-171 (December
2, l993). On April 26, 1994, the Department published a notice of
proposed rule making governing the SCSEP in the Federal Register (59 FR
21875) for the purpose of soliciting public comments. The comments made
in response to the April 26, 1994, Federal Register proposed rule have
been considered in drafting this final rule. Also implemented are the
1987 and 1992 amendments contained in Pub. L. 100-175 (December 7,
1987) and Pub. L. 102-375 (September 30, 1992). This document issues
the final rule to conform to the OAA and to make technical changes
based on the Department's experience in administering the SCSEP.
B. Procedural Matters
This final rule is not classified as a ``major rule'' under
Executive Order 12866 concerning Federal regulations because it is not
likely to result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in cost 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 the ability of
United States-based enterprises to compete in domestic or export
markets. Accordingly, no regulatory impact analysis is required.
The Department of Labor has certified to the Chief Counsel for
Advocacy, Small Business Administration, that pursuant to the
Regulatory Flexibility Act at 5 U.S.C. 605(b), the final rule would not
have a significant economic impact on a substantial number of small
entities. No significant economic impact would be imposed on such
entities by the final rule.
Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act, information collection
requirements which must be imposed as a result of the final rule are
being submitted separately to the Office of Management and Budget.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalogue of Federal Domestic
Assistance at No. 17.235 ``Senior Community Service Employment
Program.''
List of Subjects in 20 CFR Part 641
Allotment, Allocation, Coordination, Dual eligibility, Cooperative
relationships, Assessment, Eligibility, Individual development plan,
Over-enrollment, Training, and Administrative requirements.
Format of Final Rule
29 CFR part 89 is redesignated as 20 CFR part 641.
Major Changes
A total of twenty-eight comments were received in response to the
proposed rule. Sources of comments received by the close of the comment
period were as follows: National SCSEP grantees (5); State units on
aging (9); area agencies on aging (4); community-based organizations
(3); public interest group (1); Federal agencies (2),; and State Job
Service (2). In addition, two responses were received after the comment
period from county officials, which were also considered.
Based on the comments the Department has received, the majority
reflect approval of the regulations; however, one public interest group
was displeased with the Department's policy regarding unsubsidized
employment. The comments addressed thirty different sections of the
regulations with the bulk of the comments addressing nine sections. A
number of the comments extended beyond the regulations to pose
operational questions. Each of the comments and the respective
regulatory sections are addressed below.
Sec. 641.101 Scope and purpose.
Consistent with changes made in response to comments on
Sec. 641.301 of this part regarding the purpose of the program, this
section has been reworded to acknowledge that SCSEP provides community
service and promotes transition to unsubsidized employment.
Sec. 641.102 Definitions.
There were a total of fifteen comments that dealt with ten
definitions.
There were three identical comments on ``authorized position''. The
thrust of the comments was to request that the regulation include a
required annual adjustment by the Department concerning the value of
each position. Because Congressional action controls the appropriations
levels which, in turn, determine the amount of funds available for
authorized positions, this unit cost concern will continue to be dealt
with on an administrative basis. Therefore, [[Page 26575]] no change is
made to this regulatory provision.
There were two similar comments on the ``dual eligibility''
definition which requested the Department update the proposed
regulations by including Section 204(d) of the Job Training Partnership
Act (JTPA) so that the regulations will reflect the JTPA amendment to
the OAA. The language at Sec. 641.102 is amended to reflect coverage of
both sections 203 and 204(d) by adding a citation to Title II-A.
One commenter requested that the Department alter the terminology
throughout to use the term ``grantee or subgrantee'' rather than
``recipient or subrecipient''. As a result of this comment, the
definitions for ``recipient and subrecipient'' are replaced by the term
``grantee or subgrantee'' and these terms are used throughout the
regulations.
Three commenters requested the Department to revise the definition
of ``enrollee'' in order to: acknowledge the services provided by
grantees, overcome potential misunderstandings vis-a-vis JTPA, and
address the employee aspect of the enrollee. The Department
acknowledges the need to incorporate additional information regarding
grantee-performed services so a more accurate picture of the services
will be provided. However, the Department does not think that changing
the definition will accomplish this objective. Therefore, the goal of
more accurately reflecting the services will be addressed
administratively via reporting changes, if there is sufficient demand
to do so. Suggestions for reporting changes that would more accurately
reflect what is being accomplished at the project level are welcomed.
The Department has clarified the enrollee/trainee relationship with
JTPA through the issuance of an administrative directive. Furthermore,
the JTPA regulations now clarify this relationship.
The status of an enrollee as an employee is a complex concern that
cannot be addressed easily. While the authorizing legislation is silent
on this matter, for the last two years Congressional intent regarding
the enrollee role has clearly been expressed in the following
appropriations report language: ``they [enrollees] are not employees of
the U.S. Department of Labor, or State or national sponsors
administering the Senior Community Service Program.'' It is likely that
the report language will continue to be used and grantees and
subgrantees can cite the reports when corresponding with other Federal
and State agencies. However, since the appropriations language applies
only to the period of the appropriations, since report language is not
binding and since these regulations apply solely to the OAA, the report
language cannot bind non-Department of Labor regulatory agencies. No
useful propose would be served by incorporating the report language in
the regulations. Consistent with the comments received on Sec. 641.310
which recommended the deletion of the word ``employment'' from the term
``community service employment assignment'', this word is deleted in
the definition of the term ``enrollee'' to avoid misunderstandings
between enrollees and staff.
There was one comment that requested the definition of ``host
agency'' be altered to add the word ``exclusively'' after the word
``used'' and before the phrase ``as a place for sectarian religious
instruction; and substitute the word ``training'' for ``work'' site.
Neither suggestion is incorporated into the definition since the
suggested changes may create further problems of interpretation rather
than clarify the definition. The addition of the word ``exclusively''
as it applies to sectarian religious instruction would extend the
definition beyond its present intent and the use of the word
``training'' instead of ``job'' site would establish an emphasis beyond
community service.
Two commenters requested relief from the requirement to calculate
an applicant's income using either the preceding six-month or twelve-
month period as it applies to the definition of ``low income'' because
they believe elimination of this requirement would permit the grantee
or subgrantee to deal with homeless persons or other emergencies more
expediently. The Department believes that such a change would be
inconsistent with eligibility determinations for other employment and
training programs and create additional linkage problems; therefore,
this change is not incorporated. However, as a result of reviewing this
definition, it was noted that there was no reference to the family's
income. This shortcoming is corrected by adding the phrase ``of the
family'' after the word ``income''.
There were three comments on the definition of ``poor employment
prospects'' which addressed various aspects of this term. Two of the
commenters wanted additional language that would include individuals
living in rural and urban areas. Since the proposed definition
permitted additional categories to be identified and persons living in
isolated areas have special problems in finding employment, this term
is amended by adding the phrase, ``or residing in socially and
economically isolated rural or urban areas where employment
opportunities are limited.''. The remaining comment pointed out the
health problems of older Americans which may prevent them from
performing many jobs. It is true that some older Americans do have
health problems which would prevent them from being employed, but the
objective of the program is to obtain employment for all individuals
who are enrolled; therefore, no change is made to establish any
limitations.
There was a proposal to add a new definition of ``similar public
occupations'' to address possible misunderstandings on enrollee wages.
The addition of such a term may create confusion with the ``maintenance
of effort'' requirements found in Sec. 641.325, rather than solving a
possible misunderstanding on enrollee wages. No position should be
established which in any way would indicate maintenance of effort
violations. Positions established under SCSEP should be designed
specifically for the enrollee and not represent ongoing duties that
have previously been performed by staff of the host agency.
Finally, there was a recommendation to expand the definition of
``residence'' to include the word, ``address'' so as to be able to work
with homeless individuals more easily. Although the present definition
does not preclude working with the homeless, the phrase ``or address''
is added to overcome possible limiting interpretations.
Sec. 641.201 Allocation of funds.
There were two comments regarding language changes to paragraph (c)
of this section, which were: (1) To drop the phrase, ``and the amount
allotted to each project''; and (2) to add the phrase, ``or a project
sponsor designated by the Department''. As a result of these requests,
both changes are made. The suggested deletion more correctly states the
current practice of not requiring the amount allotted to be identified.
The suggestion to add the language on the project sponsor acknowledges
the option available to Governors to relinquish the State share of the
allocations to national grants.
Sec. 641.205 Responsibility review.
There were three comments on this section. Two of the comments
sought relief from the 90-day requirement for the submission of the
final closeout documents in paragraph (c)(5). This requirement is part
of the administrative requirements for closeouts applicable to all DOL
programs which are contained [[Page 26576]] at 29 CFR 95.71 or 29 CFR
97.50, as appropriate; therefore, no change is made to this paragraph.
However, if additional time is needed to prepare the closeout
documents, waivers can be provided administratively. The third comment
suggested strengthening this section by adding several new
``responsibility'' provisions from the Federal Acquisition Regulation
which deal with contracts. This is a grant program, and the present set
of provisions contained in this section provide sufficient authority to
ensure that grantees are responsible entities. Clarifications are
provided for paragraphs (a) and (c)(9). The phrase ``included in (b)
and (c) below'' is added to ensure the reader understands that the 13
responsibility tests consist of both paragraphs. The word ``have'' is
deleted along with the ``ed'' from the word ``maintained'' in paragraph
(c)(9) to maintain parallel sentence structure.
Sec. 641.207 Negotiation.
The phrase ``planned occupational categories of SCSEP'' is removed
and the phrase ``community service'' is substituted to overcome any
misunderstandings in paragraph (b)(1) about the intent of this
paragraph.
Sec. 641.301 Grant operations.
There was one comment relating to the purpose of the program. The
comment recommended expanding the task of the grantees to include the
development of appropriate training, as well as work assignments. Since
the grantees already explore the training needs of the individual as
part of the assessment, this expanded language is unnecessary. The
legislatively-mandated purpose of the program is community service.
This suggested addition may confuse project operators rather than
clarify; therefore, it is not adopted. The word ``dual'' is substituted
for the word ``primary'' in paragraph (b) to acknowledge that there is
more than one program purpose and the phrase, ``and to provide useful
community service'' is deleted since ``community service'' is already
used in the same sentence. As noted in the comments addressed in
Sec. 641.310 and acknowledged in the definition of enrollee, the word
``employment'' is deleted in paragraph (b) to prevent confusion between
the enrollees and the staff about whether the enrollee is assigned to a
community service position or a job. The phrase ``and will promote
unsubsidized employment opportunities'' is added the last sentence in
paragraph (b) consistent with the change to the word ``dual'' above.
Sec. 641.302 Grantee responsibilities.
There were a total of eight comments which addressed three separate
areas of this section. Four of the comments questioned the need to
provide documentation on an individual's eligibility for the program.
While this concern is valid, the need to ensure that only eligible
persons are served outweighs this concern. The operating guidance on
documentation will be widely circulated for comment prior to the
implementation of this provision. The remaining four comments sought
language clarifications. The commenters asked the DOL to clarify that
wages are to be paid for community service. As a result of the request,
the word ``remit'' in the opening paragraph is substituted for the word
``provide'' and the phrase ``for community service assignments and
provide'' is added while the phrase ``skill acquisition or'' is
deleted. One commenter suggested the regulations directly quote the OAA
rather than paraphrasing it in paragraph (a)(3) to clearly state the
legislative intent of whom is to be served. For consistency, a portion
of the language from section 502(b)(1)(M) of the OAA is quoted rather
than paraphrased. Lastly, a commenter suggested that a specific number
of monitoring trips be inserted in paragraph (b). Rather than establish
a regulatory numerical requirement for monitoring visits for grantees,
that concern will continue to be dealt with administratively.
Sec. 641.303 Cooperative relationships.
In order to avoid any potential confusion regarding local
consultations, the specific wording from 502(d)(1) of the OAA is
inserted in paragraph (b)(5).
Sec. 641.304 Recruitment and selection of enrollees.
There were five comments on this section. Three of the commenters
asked that the requirement for listing vacancies with the Job Service
be altered to a requirement to notify the Job Service of vacancies so
there is no confusion about the intent. Another commenter wanted all
private sector jobs listed with the Job Service. The remaining
commenter did not want to be hindered by having to notify the Job
Service. The language is altered by omitting the phrase ``listing of
vacancies with'' and inserting in its place the term, ``notifying'' and
adding the phrase ``when vacancies occur'' in the first paragraph of
this section. This is to notify the Job Service of SCSEP vacancies only
when they occur since SCSEP grantees cannot control internal State
employment security agencies' procedures to list positions.
Sec. 641.305 Enrollment eligibility.
There were a total of eleven comments on this section. In addition,
in order to clarify eligibility, a change is made to paragraph (a)(2)
to clarify that re-enrollment is appropriate when an enrollee leaves
the SCSEP or unsubsidized employment through no fault of the enrollee,
for example, if the enrollee becomes ill. Two commenters asked that
section 204(d)(2)(A) of the JTPA be cited to reflect consistency with
the technical amendments to the OAA. As a result of the 1994 technical
amendments to the OAA which impact on the JTPA, paragraph (d)(2) of
this section is altered to broaden the reference to include a citation
to Title II-A of the JTPA so it is clear that it applies to both
section 203 and 204(d). Two commenters asked that the regulations
acknowledge that the enrollment eligibility requirements could be
changed by other Federal laws. Paragraph (c) of this section is altered
by adding the phrase ``unless required by Federal law''. In paragraph
(b)(2), one commenter identified an incorrect citation to Sec. 641.103
which is corrected to read Sec. 641.102. Also in paragraph (b)(2), a
second sentence is added to permit disabled persons to be considered as
a family of one for income eligibility purposes. Two commenters asked
that the twelve-month recertification requirement be dropped. It is the
Department's intent that re-certifications be conducted every twelve
months if an enrollee continues in the program; therefore, the
requirement is retained. One commenter expressed concern about the
eligibility documentation requirement previously addressed under
Sec. 641.302(c), Grantee responsibility, above. As previously
indicated, specific administrative requirements will be widely
circulated for comment in order to limit, to the extent possible,
burdens being placed on grantees. One commenter asked for a
clarification on the meaning of the term ``permanent address''. To
overcome any limiting reference, the word ``permanent'' is removed from
the definition for residence, as previously noted.
Sec. 641.306 Enrollment priorities.
There were five comments relating to this section. Two commenters
indicated support for the changes. One commenter pointed out a
grammatical error in paragraph (a)(3) which is amended to read ``seek''
rather than ``seeks''. There were two requests for clarification of
paragraph (a)(3) regarding who may return to the program. In response,
individuals may potentially return to the program if they are not at
fault in [[Page 26577]] losing their unsubsidized job or if they have
become ill and are forced to leave their unsubsidized employment.
Paragraph (a)(3) is amended to reflect this clarification with the
addition of the phrase, ``through no fault of their own''. The
provision on vacant positions in paragraph (c) is clarified by adding
the sentence ``[T]he priorities do not apply to the experimental
private sector projects.'' to prevent any misunderstanding about the
non-application of enrollment priorities to the experimental project
positions that are authorized in Sec. 641.326. Also, the phrase
``community service'' is added before the word ``position'' to be
consistent with the addition of the new sentence. Also, in this
paragraph, the word ``and'' replaces the word ``but'' to more clearly
state the intent.
Sec. 641.308 Orientation.
Paragraph (a) of this section is amended by adding language to
acknowledge that orientation cannot always be conducted prior to the
commencement of a community service assignment. The word ``for''
replaces the word ``to'' in paragraph (a) to improve readability.
Paragraph (b) is amended by substituting the word ``an'' for the word
``the'', and adding the phrase, ``similar to the one'', for clarity.
Paragraph (c) is amended to read ``[T]he grantee or subgrantee shall
ensure that host agencies provide adequate supervision and adequate
orientation and instruction regarding, among, other things, job duties
and safe working procedures''.
Sec. 641.309 Assessment and reassessment.
There were six comments on this section requesting clarifications
of paragraphs (a), (b), (d), (e), and (g). Paragraph (a) is revised by
inserting the phrase, ``and community service objectives'' in addition
to ``employment'' and ``training'' to ensure that the community service
aspect of the program is highlighted. The phrase ``for each
individual'' is shifted to the end of the sentence so it is clear that
it applies to both the assignment and objectives. A new paragraph (b)
is added to address the assessment of physical capabilities and the
remaining paragraphs are renumbered (c)-(h). An assessment of physical
ability is a pre-employment medical inquiry and, therefore, must
conform to the prescriptions of Section 504 of the Rehabilitation Act
of 1973, as amended (section 504), the Americans with Disabilities Act
of 1990 (ADA) and their respective implementing regulations. See, e.g.,
29 CFR 32.15, the section of the Department's section 504 regulations
that addresses pre-employment inquiries. Prior to the offer of a
particular community service assignment, disability-related inquiries
may not be made. Generally, the assessment of physical ability is
limited to an inquiry as to whether the enrollee is capable, with or
without a reasonable accommodation, of performing the functions of the
job (essential and/or marginal). Enrollees may also be asked to
describe or demonstrate how they would perform these functions. Once a
bona fide community service assignment offer has been made, medical
inquiries, including medical examinations, may be made. However, these
inquiries are subject to section 504 of the Rehabilitation Act, the
ADA, and their implementing regulations. For example, with respect to
medical examinations, 29 CFR 32.15 provides that the examination must
be a routine part of the host agency's selection process for the job in
question and must be performed by a physician qualified to make
functional assessments. If a particular medical test is a prerequisite
to placement into a community service assignment, including a medical
test that is required by a local ordinance or State law, it is
recommended that it be conducted at the same time as the physical
examination described in paragraph (b)(4) of this section.
The former paragraph (b) (now paragraph (c)) is not altered to
incorporate suggested language on other appropriate employment and
training opportunities since this is a community service program. In
the new paragraph (e) (formerly paragraph (d)), the acronym ``IDP''
replaces the phrase, ``service strategy'', in order to avoid confusion
with the term, ``individual service strategy'', used under JTPA. Also
the phrase ``program year'' is deleted from the new paragraph (e) and
replaced by the phrase ``a 12-month period'' to overcome situations
where an enrollee may be in the program for only brief periods. In the
new paragraph (f), (formerly paragraph (e)) the phrase ``upon
completion of the review'' is deleted to ensure that grantees
understand that alternative assignments may be permitted at any point
while working with an enrollee. The new paragraph (h) (formerly
paragraph (g)) is amended by adding language to clarify that the
phrase, ``recent assessment'' means an assessment done within the last
year.
Sec. 641.310 Community service assignments.
There were five comments on this section. Two commenters requested
the deletion of the word ``employment'' from the title, the text of
this section and elsewhere in the final rule. The word ``employment''
is removed from the title and this section, as well as elsewhere in the
final rule, to emphasize that the community service assignment does not
constitute an enrollee's job. The term ``community service assignment''
is used throughout the regulation. In a similar manner, the word
``placed'' is substituted for the word ``employed'' in paragraph (a)(1)
in order to ensure parallel construction. One commenter requested that
the phrase ``as soon as possible'' in Sec. 641.310(a) be deleted since
it is not always possible to refer an enrollee to a community service
assignment. This provision is retained since this is consistent with
the Department's intent that there be no lengthy delays in enrollment
after receipt of orientation. Two commenters requested clarifying the
provision in Sec. 641.310(a)(1) by stating that project sponsors may
provide enrollees with opportunities to assist in the administration of
the SCSEP. This change is incorporated into paragraph (a)(1) in lieu of
the last two sentences of the paragraph since the revised sentence more
accurately communicates Departmental policy. The phrase, ``if
appropriate according to the IDP'' is added to ensure consistency with
Sec. 641.308. The last two sentences of paragraph (a)(1) are deleted.
The 1300 hour provision in paragraph (b) is also retained. The second
sentence in paragraph (b)(2) is moved to become the second sentence in
paragraph (b)(3) since both paragraphs refer to periods of less than 20
hours. There were two comments on Sec. 641.310(d). There was one
suggestion to permit the use of SCSEP funds for reasonable
accommodations. This suggestion is incorporated into Sec. 641.403 since
that section deals with allowable costs, but it is recognized that due
to limited availability of administrative funds, it may not be
practical to do this except in limited situations. There also was a
suggestion that Sec. 641.310(d) be amended by inserting a sentence on
work place conditions to address ergonomically sound conditions to
prevent repetitive motion injuries such as carpal tunnel syndrome. This
suggestion is not adopted since the comment is limited primarily to
office occupations and the work place is much broader for the title V
program. However, a bulletin will be issued on the broader issue of
workplace safety and sound ergonomic design concerns as suggested by
the commenter. [[Page 26578]]
Sec. 641.311 Enrollee wages and fringe benefits.
There were eleven comments on this section. Five addressed concerns
regarding the use of physical examinations given in order to assess an
enrollee's physical ability and need for any supportive service(s). The
assessment of an enrollee's physical ability and the physical
examination provided to enrollees as a program benefit are two separate
activities. As a result, assessment of an enrollee's physical ability
is moved to Sec. 641.309 in order to group all activities on assessment
in a single section. Since physical examinations are a fringe benefit,
they are addressed in this section. Therefore, paragraph (b)(3) is
amended to reflect this change and it is numbered as (i) for the
examination and (ii) for the waiver.
Paragraph (b)(3) of this section addresses the physical examination
that is provided to enrollees as a fringe benefit. The physical
examination must be offered within 60 working days after commencement
of the community service assignment instead of before the first day of
compensated participation. It is not an eligibility criterion, nor
should the results of the examination be taken into consideration when
determining a community service assignment. The physician who conducts
the examination should only give a copy directly to the enrollee rather
than to program staff. An enrollee should not have to request a copy,
as suggested by one commenter. One commenter indicated that the impact
of the physical examinations upon the administrative budget category
needs to be considered. Since the regulation is changed to authorize
charging the cost of the physical examination to the enrollee wages and
fringe cost category, the regulations provide additional flexibility,
rather than limiting flexibility, and no further change is made.
Another commenter suggested SCSEP funds could be used to insure
reasonable accommodation for participants at the host agency. As
indicated above, such expenditures will be deemed allowable, within
funding limitations.
The Department was also asked to consider additional regulatory
changes that would exempt the SCSEP program from payment of
unemployment compensation taxes to States. In addition, the Department
was asked to substitute the phrase ``host work site'' for the word
``employer'' at Sec. 641.311 (a)(3) and include a new definition at
Sec. 641.102 for similar public occupations. Neither of these
suggestions are implemented for two reasons. First, with regard to
unemployment compensation, these regulations cannot alter the federal
or State unemployment compensation laws that regulate this area of
concern since such determinations must be made individually by State
employment security agencies. (Since the issuance of a directive on the
SCSEP by the Unemployment Insurance Service, the underlying question of
unemployment compensation legislation has been virtually eliminated).
Second, as indicated in response to the comments on definitions,
community service assignments for enrollees must be free from any
potential charges of non-maintenance of effort which could be inferred
by limiting the application of prevailing rates of pay to a single work
site of the host work site.
Finally, a typographical error on the word ``waiver'' is corrected
in paragraph (b)(2).
Sec. 641.312 Enrollee supportive services.
There were ten comments received that dealt with the need to
clarify the unallowability of enrollee transportation costs. Two of
these expressed a concern, that the unallowability of such costs would
be a hardship for host agencies. Another commenter wanted the option to
pay transportation costs eliminated since it could serve as a
disincentive to enrollees seeking unsubsidized employment. The
remaining seven commenters requested a clarification of the regulations
to make it clear that SCSEP funds can be used to pay for enrollee
travel when they are working in a SCSEP administrative capacity. Since
section 502(b)(1)(L) of the OAA only authorizes the payment of
necessary transportation costs of eligible individuals which may be
incurred in the employment in any project funded under this title, the
Department amends Sec. 641.312(5)(ii) to read ``[G]rant funds may not
be expended to support the transportation costs of host agencies or
programs funded other than under title V of the OAA, except where
provided by federal law''. Because federal appropriations law prevents
funds from one grant being used to defray the expenses incurred under a
separate grant, this provision clarifies that SCSEP funds cannot be
used for certain host-agency travel costs which are to be met under
another federal grant or local program. However, enrollee travel to and
from the work site, in selected cases, is necessary in isolated
settings where no transportation is available and that option is
retained. There was one comment received that suggested the regulations
should require grantees and subgrantees to make reasonable
accommodations for enrollees with disabilities at host agencies. The
Department fully supports efforts to accommodate individuals with
disabilities. However, in order to protect the limited funds available
for this program, the regulation requires that the expenditure be made
with ``administrative'' funds to the extent that funding permits.
Sec. 641.313 Training.
There were a total of ten comments on this section. As suggested by
two commenters, the ``prior to and in preparation for actual community
service assignment'' phrase in paragraph (a) is removed since training
before commencement of a community service assignment is not always
practical or possible. In addition, paragraph (a) is amended by adding
language that states a grantee is to provide ``or arrange for training
that is specific to an enrollee's community service assignment''. Three
of the commenters requested an increase in training hours. Paragraph
(b) is amended to now provide up to 500 hours of training for enrollees
``per grant year'' and the word ``orientation'' is deleted to overcome
potential confusion with Sec. 641.308, Orientation. Also, as suggested
by a commenter, the original paragraph (c) is deleted since it is a
duplication of paragraph (a) and the remaining paragraphs are
renumbered to (c)-(h). The new paragraph (f) (formerly paragraph (g))
is prefaced by deleting the phrase, ``at no cost to the project'' and
adding the phrase, ``whenever possible'' to acknowledge it is not
always possible. In addition this paragraph is amended by deleting the
phrase, ``at no cost to title V'' to more clearly state the intent of
the OAA. There were two comments dealing with training costs under
SCSEP. Since it is not encouraged for grantees and subgrantees to use
SCSEP funds for training, due to the limited funding available,
paragraph (f) is amended to read that grantees and subgrantees shall
seek training ``whenever possible at reduced or no costs to title V''.
Paragraph (g) is amended to remove the ``al'' from the word ``self-
development'' to improve the readability. Two commenters suggested
rewording paragraph (h) to more positively state this provision. The
Department agrees with the suggestion and paragraph (h) is amended to
read: ``Joint programming, including co-enrollment, when appropriate,
between title V programs and programs authorized under the Job Training
Partnership Act, the Community Services Block Grant Act, or the Carl D.
Perkins Act is strongly encouraged''. [[Page 26579]]
Sec. 641.314 Placement into unsubsidized employment.
There were three comments on this section. Two of those comments
dealt with an unsubsidized employment goal of the program. The first
commenter raised a question about whether the increased emphasis on the
unsubsidized employment goal would detract from the original intention
of the SCSEP being a community service program. The second commenter
suggested that individual goals be established for each grantee
depending upon specific local situations. Since the unsubsidized
employment goal remains unchanged and continues as a goal, rather than
a firm requirement, it is retained as a single measure. The other
comment sought a change on enrollee placement ``follow-up'', set forth
in paragraph (d), that would reduce the follow-up time frame to one
month from the current 90 days as a means to reinforce successful
placement of the former enrollee. This suggestion is an excellent
operational procedure and would assist grantees in working with
employers by identifying enrollee employment-related problems, as well
as areas where the grantee can better assist the employer.
Nevertheless, the Department is not including such a numerical
requirement in the regulations since a one-month follow-up requirement
may not be possible in all instances. Paragraph (b) is revised to
insert the word ``project's'' before the word ``annual'' to clarify
that the goal applies to the total grant period as opposed to a monthly
or quarterly requirement. Also, the phrase, ``within the project year''
is deleted from paragraph (b) to prevent a misinterpretation.
Sec. 641.315 Maximum duration of enrollment.
There were nine comments on this section with seven supporting this
provision. However, one commenter requested that this section be
omitted since, in the commenter's opinion, it is contrary to the
original goals of the program. The Department thinks that since this
section will provide grantees with additional flexibility, it is in the
best interest of the program to retain this provision. To prevent
misinterpretation, another commenter suggested the following language
be added to this section: ``Time limits on enrollment shall be
reasonable and IDP's shall provide for transition to unsubsidized
employment or other assistance before the maximum enrollment duration
has expired.'' This change is incorporated since it is the intent of
the regulations to retain a customer focus which should be consistent
with the enrollee's IDP.
Sec. 641.316 Individual development plan-related terminations.
Eight comments were received on this section with seven supporting
the provision. The remaining comment expressed concerns about
implementation of the IDP requirement that will have to be addressed
once the regulations are effective. This comment deals with issues
beyond the scope of the regulations which will be addressed in an
administrative issuance. As with the other administrative issuances,
the Department plans to widely circulate drafts for comment prior to
issuing operational guidance.
Sec. 641.317 Status of enrollees.
Four commenters requested clarification of the employment status of
enrollees when they are working at community service assignments. They
suggested that in addition to enrollees not being considered federal
employees, they should also not be considered employees of the grantees
or their subgrantees. As explained earlier, in the definitions section,
the Department would like to clarify this through regulations since it
would overcome many misunderstandings and would also eliminate the need
for administrative interpretations regarding employee/enrollee status
by various governmental units. However, without specific language in
the program legislation, regulatory guidance binding on other agencies
administering other statutes cannot be issued in these regulations.
Also, the language used by the appropriations committee for the past
two years in the passage of these appropriations bills has the effect
of implementing these suggestions on a year-to-year basis. Of course,
subsequent authorizing legislation could statutorily clarify employee/
enrollee employment status.
Sec. 641.318 Over-enrollment.
There was one comment received regarding this section. It suggested
substituting the word ``temporary'' for ``short-term'' to overcome any
misunderstandings on the intent of the term. The Department agrees and
this section is amended to reflect this clarification. The citation in
paragraph (b)(2) is corrected to read section 502(b)(1)(P) instead of
502(b)(1)(O).
Sec. 641.321 Political activities.
Paragraph (a)(1) is amended by substituting the phrase ``they are''
for the phrase ``enrollee is'' since this provision applies to both
enrollees and staff, as stated at the beginning of this provision.
Paragraph (b)(1) is amended by substituting ``Special Counsel (OSC)''
for ``Personnel Management (OSC)'' to clarify which office has current
responsibility for interpreting the Hatch Act; the U.S. Office of the
Special Counsel (OSC) is located at 1730 M Street, NW., Suite 300,
Washington, DC 20036-4505. Paragraph (b)(2) is amended by substituting
the word ``have'' for the phrase, ``be submitted for approval to'' to
overcome any potential misunderstandings about the need to seek
individual approvals of the notice to be displayed and provided to the
enrollees.
Sec. 641.323 Nepotism.
There was one comment requesting the Department extend the waiver
provision set forth in paragraph (a) to isolated rural areas. The
Department thinks that rural areas are similar enough in population
density to Native American reservations to justify extending the
provision to rural areas; thus, this provision is added to paragraph
(a). Also, paragraph (a) is amended by inserting the phrase, ``who
works'' to clarify the person referenced in this paragraph. The phrase,
``the total service population is 2,000 or less and is isolated, or
where there is a history of dependence on public assistance'' is
deleted since these factors do not apply directly to the SCSEP program.
Sec. 641.324 Enrollee and applicant complaint resolution.
There was one comment questioning whether this section applied to
host agencies. This section does not apply to host agencies. Because
this is not a consideration requiring regulatory guidance, there is no
change to the regulations.
Sec. 641.326 Experimental private sector training projects.
Paragraph (g) is amended by substituting a citation to title II-A
of the JTPA for the old citation to section 204(d). Paragraph (h) is
amended by adding the word ``national'' before the word ``grantee'' to
ensure that it is understood that this provision applies only to
national grantees; and by deleting the word ``formulas'' to eliminate
any possible misunderstandings on the distribution of the State
allocation for experimental private sector training projects. A new
paragraph (i) is added to acknowledge that non-federal matching is not
required specifically for projects under this section.
Sec. 641.402 Administrative requirements.
Paragraph (a) is amended by providing the present citation for the
Department's administrative requirements. The former citation was
[[Page 26580]] 41 CFR part 29-70 and the present citation is 29 CFR
part 95.
Sec. 641.403 Allowable costs.
There were three comments on this section. Two identified incorrect
citations. The paragraph addressing ``allowable fringe benefits costs''
is incorrectly cited as ``(d)(3)''. This paragraph is amended to
reflect that the proper citation is paragraph (e). Under the same
paragraph, the term ``workers'' is substituted for the term
``workman's'' in order to use the correct term. The remaining comment
expresses a concern that listing fringe benefits deemed allowable in
paragraph (e) might result in enrollee disincentives to leave the
program for unsubsidized employment. The listing does not establish
enrollee entitlements. However, it is the Department's judgment that it
is more helpful than it is harmful to list the types of allowable
fringe benefits; therefore, this listing is retained. Paragraphs
(b)(2)(iii) and (4) are amended by deleting the phrase ``as not subject
to OMB Circular A-122'' to eliminate potential misinterpretations of
this confusing phrase. A new Sec. 641.403(d)(4) is added to provide
that grantee funds may be used to provide physical and programmatic
accessibility and reasonable accommodation, as required by section 504
of the Rehabilitation Act of 1973, as amended, and the Americans with
Disabilities Act of 1990.
Sec. 641.404 Classification of cost.
There were three comments on this section. One commenter questioned
permitting enrollees to perform administrative functions, since these
are not reflected in the administrative costs. The Department is
retaining the provision permitting the use of enrollees to perform
administrative functions. It has been a longstanding practice for
grantees to maximize the number of enrollees by exposing them to
administrative functions. This has been a win-win practice for both the
grantee and the enrollees. To acknowledge existing policy, new language
is added in Sec. 641.310(a)(1) of the regulations to reflect that the
use of enrollees to perform administrative functions is an allowable
activity.
Another commenter requested that those training costs incurred to
train sub-grantees not be counted against the administrative cost
category. Since such expenditures cannot be applied against another
cost category, the current provision is retained. The last comment
sought inclusion of enrollee training costs as an enrollee wage and
fringe benefit. Since the program is focused on community service,
enrollee training outside of SCSEP is sought only when appropriate to
meet the needs of the enrollee. Paragraph (b) is amended by inserting
the phrase, ``including hours of'' before the word ``training'' to
clarify that this phrase applies to both community service and
training. Paragraph (c)(6) is amended to add the phase ``such as
tuition'' to ensure that there is no misunderstanding regarding the use
of the word ``training'', as used under paragraph (b).
Sec. 641.405 Limitations on federal funds.
The citation in paragraph (a) is corrected to read (b) instead of
(6). Also, in this paragraph, the phrase ``and periods during which
limitation'' is deleted since this phrase was intended as transitional
language intended to apply to the 1985 draft proposed regulations and
does not currently apply. In paragraph (b)(1), the word ``grant'' is
altered to read ``project'', consistent with the legislative language.
The sole comment received was on paragraph (b)(2) of this section. The
commenter pointed out that the ``75 percent rule'' regarding
expenditure of funds on enrollee wages and fringe benefits limited the
flexibility to utilize resources for the section 502(e) experimental
programs. The 75 percent limitation is retained since the basic program
objective is to put as much of the funds as possible into the hands of
the enrollee rather than divert funds to administrative functions.
Sec. 641.406 Administrative cost waiver.
The word ``and'' is substituted for the word ``the'' in the last
sentence of the initial paragraph since there is a series of items. To
improve reading of the regulation, the initial three sections are
designated as paragraph (a) and the remaining information on waivers is
designated as paragraph (b). Therefore, paragraphs (a)-(e) are
renumbered as (1)-(5).
Sec. 641.407 Non-federal share of project costs.
This section is amended to provide the present citation for the
calculation of the non-federal share. The regulations now are found at
29 CFR 97.24 or 29 CFR 95.23 instead of 41 CFR 29-70.206 (1984). In
addition, this section is revised to assign each item on the list of
exceptions to the matching requirement to a separately designated
clause. Also the reference to the 502(e) projects is moved to
Sec. 641.326(i) so all items on this topic are in a single section.
Sec. 641.408 Budget changes.
This section is amended to provide the present citation for
revision of budget and program plans. The present cite at 29 CFR 95.25,
Revision of budget and program plans, is added and the previous cite at
41 CFR 29-70.211 (1984), Modifications and Budget Revisions Procedure,
is deleted.
Sec. 641.409 Grantee fiscal and performance reporting requirements.
There were two comments on this section. One commenter suggested
clarifying language at paragraph (c) in order to acknowledge that
several Governors currently provide their State funding to national
grantees for operation of the SCSEP program. The Department agrees with
this clarification and amends paragraph (c) by adding ``or another
project sponsor designated by the Department''. The second commenter
asked if the Cash Transaction Report referred to in paragraph (b)(3)
was necessary. Based on a review of other methods for obtaining
information for draw downs of funds, the Department thinks that
existing reports will suffice. Therefore, this report is discontinued
upon the effective date of these regulations. Paragraphs (a) and (b)
are amended to provide the new citation for reporting requirements and
waivers for late reports are acknowledged, consistent with present
practice. The present citations for paragraph (a) can be found at 29
CFR 95.91 and the previous citation of 41 CFR 29-70.209 3 (1984) is
deleted. The present citation for paragraph (b) can be found at 29 CFR
95.52 and the previous cites of 41 CFR-29 70.207 2(a) (1984) and 41 CFR
29-70.208 (1984) are deleted.
Sec. 641.410 Subgrant agreements.
Paragraph (c) is amended to provide the present citation for
grantee procurement. The present citation can be found at 29 CFR 95.40
through 95.48 and the previous citation of 41 CFR 29-70.216 (1984) is
deleted.
Sec. 641.411 Program income.
This section is amended to provide the present citation for program
income. The present citation can be found at 29 CFR 95.24 and the
previous citation of 41 CFR 29-70.205 (1984) is deleted.
Sec. 641.414 Grant closeout procedures.
This section is amended to provide the present citation for grant
closeout procedures. The present citation can be found at 29 CFR 97.50
or 29 CFR 95.71, as appropriate, and the previous citation of CFR part
97 is deleted.
[[Page 26581]]
Other
There were other comments that did not fall within any section.
They are as follows:
1. Residential Health Positions. It was suggested that priority in
the distribution of eligible slots be given to individuals in
residential health care facilities. Since there is no legislative basis
for providing such a priority, in the interest in local flexibility, we
have chosen not to adopt an additional priority.
2. Administrative Costs. It was pointed out by two commenters that
the 13.5 percent administrative cost limitation has remained static,
while additional administrative responsibilities have been added.
Congress recognized the administrative burdens they were creating in
the passage of the 1992 amendments. The House report acknowledged that
if additional administrative requirements, such as assessment and
coordination, forced grantees to seek a waiver from the 13.5 percent
level to the 15 percent ceiling, such a request should be accommodated.
3. Paperwork Reduction Act. A question was raised about why the
older worker programs cannot use the same administrative forms as other
employment and training programs. The regulations mandate the
submission of necessary information. However, they do not mandate any
particular forms. Since the Department encourages closer cooperation
and coordination between programs within a State, such an approach
within a State represents a goal the Department supports.
4. Social Security Eligibility. A suggestion was made that SCSEP
income should not count in calculating eligibility for Supplemental
Security Income under the Social Security program. Since the SCSEP
regulations cannot impact on the legislation of other programs, this
suggestion is not incorporated into these regulations.
5. Eligibility Criteria. A suggestion was made that the
Department's guidelines on the SCSEP program's eligibility criteria
need to be updated. The Department concurs with this observation and
commits itself to issuing updated guidelines to replace an existing
bulletin. Since these criteria are of an administrative nature, they
are not incorporated into the regulations.
6. Congressional Intent. One comment was received which questioned
the Department's implementation of the 1992 amendments' emphasis on
placing individuals in unsubsidized employment. The unsubsidized
employment goal of the program has remained the same for the last nine
years and these regulations do not alter this goal. Furthermore, the
program can only serve a small percentage of all persons who
potentially qualify for the program. Without turnover of the enrollees,
no additional persons could be served beyond those currently enrolled.
On a practical basis, many of those individuals who are served by the
program need more than 20 hours a week of employment at the minimum
wage to maintain themselves. Therefore, the modest placement goal
encouraging projects to seek unsubsidized positions for such
participants is retained. This option must be available to serve
individuals who require unsubsidized employment.
List of Subjects 20 CFR Part 641
Aged, employment and grant programs--Labor.
20 CFR Part 89
Aged, employment and grant programs--Labor.
Final Rule
Under the Secretary's authority, 5 U.S.C. 301 and Reorganization
Plan No. 14 of 1950, 5 U.S.C. appendix, 29 CFR part 89 is redesignated
as 20 CFR part 641 and revised to read as follows:
PART 641--SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM
Subpart A--Introductory Provisions
641.101 Scope and purpose.
641.102 Definitions.
Subpart B--Grant Planning and Application Procedures
641.201 Allocation and allotment of title V funds.
641.202 Eligibility for title V funds.
641.203 Soliciting applications for title V funds.
641.204 Grant application requirements.
641.205 Responsibility review.
641.206 Grant application review.
641.207 Negotiation.
641.208 Rejection of grant application or project components.
641.209 Award of funds.
Subpart C--Grant Operations
641.301 General.
641.302 Grantee responsibilities.
641.303 Cooperative relationships.
641.304 Recruitment and selection of enrollees.
641.305 Enrollment eligibility.
641.306 Enrollment priorities.
641.307 [Reserved]
641.308 Orientation.
641.309 Assessment and reassessment of enrollees.
641.310 Community service assignments.
641.311 Enrollee wages and fringe benefits.
641.312 Enrollee supportive services.
641.313 Training.
641.314 Placement into unsubsidized employment.
641.315 Maximum duration of enrollment.
641.316 Individual development plan-related terminations.
641.317 Status of enrollees.
641.318 Over-enrollment.
641.319 [Reserved]
641.320 Political patronage.
641.321 Political activities.
641.322 Unionization.
641.323 Nepotism.
641.324 Enrollee and applicant complaint resolution.
641.325 Maintenance of effort.
641.326 Experimental private sector training projects.
Subpart D--Administrative Standards and Procedures for Grantees and
Limitations on Federal Funds
641.401 General.
641.402 Administrative requirements.
641.403 Allowable costs.
641.404 Classification of costs.
641.405 Limitations on federal funds.
641.406 Administrative cost waiver.
641.407 Non-federal share of project costs.
641.408 Budget changes.
641.409 Grantee fiscal and performance reporting requirements.
641.410 Subgrant agreements.
641.411 Program income accountability.
641.412 Equipment.
641.413 Audits.
641.414 Grant closeout procedures.
641.415 Department of Labor appeals procedures for grantees.
Subpart E--Interagency Agreements
641.501 Administration.
Subpart F--Assessment and Evaluation
641.601 General.
641.602 Limitation.
Authority: 42 U.S.C. 3056(b)(2).
Subpart A--Introductory Provisions
Sec. 641.101 Scope and purpose.
Part 641 contains the regulations of the Department of Labor for
the Senior Community Service Employment Program (SCSEP) under title V
of the OAA. The dual purposes of a SCSEP project are to provide useful
part-time community service assignments for persons with low incomes
who are 55 years old or older while promoting transition to
unsubsidized employment. This part, and other pertinent regulations
expressly incorporated by reference, set forth all regulations
applicable to the SCSEP.
Sec. 641.102 Definitions.
The following definitions apply to this part:
OAA means the Older Americans Act of 1965, as amended (42 U.S.C.
3001 et seq.).
Area agency on aging means an area agency on aging designated under
section 305(a)(2)(A) of the OAA or a [[Page 26582]] State agency
performing the functions of an area agency on aging under section
305(b)(5) of the OAA.
Authorized position means an enrollment opportunity during a
program year. The number of authorized positions is derived by dividing
the total amount of funds appropriated during a program year by the
national average unit cost per enrollee for that program year as
determined by the Department. The national average unit cost includes
all administration costs, other enrollee costs, and enrollee wage and
fringe benefit costs. An allotment of the total dollars for the grantee
is divided by the national unit cost to determine the total number of
authorized positions for each grant agreement.
Community service means social, health, welfare, and educational
services (particularly literacy tutoring); legal assistance, and other
counseling services, including tax counseling and assistance and
financial counseling; library, recreational, day care and other similar
services; conservation, maintenance, or restoration of natural
resources; community betterment or beautification; pollution control
and environmental quality efforts; weatherization activities; and
includes inter-generational projects; but is not limited to the above.
It excludes building and highway construction (except that which
normally is performed by the project sponsor) and work which primarily
benefits private, profitmaking organizations. [Section 507(2) of the
OAA.]
Department and DOL mean the United States Department of Labor,
including its agencies and organizational units.
Disability means a physical or mental impairment of an individual
that substantially limits one or more major life activities; a record
of such impairment; or being regarded as having such an impairment. [29
CFR parts 32 and 34.]
Dual eligibility means individuals eligible under title V who are
enrolled in a joint program established under a written financial or
non-financial agreement to jointly operate programs with JTPA are
deemed to satisfy the requirements of all JTPA programs funded under
Title II-A of the JTPA.
Eligible individual means a person who is 55 years of age, or
older, and who has a low income as defined in this section. [Section
507(1) of the OAA.]
Eligible organization means an organization which is legally
capable of receiving and using Federal funds under the OAA and entering
into a grant or other agreement with the Department to carry out the
provisions of title V of the OAA. [Section 502(b)(1) of the OAA.]
Employment and training program(s) means publicly funded efforts
designed to offer employment, training and/or placement services which
enhance an individual's employability. The term is used in this part to
include, but is not limited to, the JTPA or similar legislation and
State or local programs of a similar nature.
Enrollee means an individual who is eligible, receives services,
and is paid wages for engaging in community service assignments under a
project.
Grantee means an eligible organization which has entered into a
grant agreement with the Department under this part.
Greatest economic need means the need resulting from an income
level at or below the poverty line based on guidelines provided by the
Department.
Greatest social need, as defined at section 102(a)(30) of the OAA,
means the need caused by noneconomic factors which include:
(1) Physical and mental disabilities;
(2) Language barriers; and
(3) Cultural, social, or geographical isolation, including
isolation caused by racial or ethnic status.
Host agency means a public agency or a private non-profit
organization, other than a political party or any facility used or to
be used as a place for sectarian religious instruction or worship,
exempt from taxation under the provisions of section 501(c)(3) of the
Internal Revenue Code of 1986, which provides a work site and
supervision for an enrollee.
Individual development plan means a plan for an enrollee which
shall include an employment goal, achievement objectives, and
appropriate sequence of services for the enrollee based on an
assessment conducted by the grantee or subgrantee and jointly agreed
upon by the enrollee.
JTPA means the Job Training Partnership Act (29 U.S.C. 1501 et
seq.).
Low income means an income of the family which, during the
preceding six months on an annualized basis or the actual income during
the preceding 12 months, whichever is more beneficial to the applicant,
is not more than 125 percent of the poverty levels established and
periodically updated by the U.S. Department of Health and Human
Services. In addition, an individual who receives, or is a member of a
family which receives, regular cash welfare payments shall be deemed to
have a low income for purposes of this part.
Poor employment prospects means the unlikelihood of an otherwise
eligible individual obtaining employment without the assistance of this
or other employment and training programs. Persons with poor employment
prospects include, but are not limited to, those without a substantial
employment history, basic skills, English-language proficiency, or
displaced homemakers, school dropouts, disabled veterans, homeless or
residing in socially and economically isolated rural or urban areas
where employment opportunities are limited.
Program year means the one-year period covered by a grant agreement
beginning July 1 and ending on June 30.
Project means an undertaking by a grantee or subgrantee, pursuant
to a grant agreement between the Department and the grantee, which
provides for community service opportunities for eligible individuals
and the delivery of associated services.
Reallocation means a redistribution of funds by a grantee.
Reallotment means the redistribution of allotted title V funds by
the Department from one State to another State(s) or from one grantee
to another grantee.
Residence means an individual's declared dwelling place or address.
No requirement pertaining to length of residency prior to enrollment
shall be imposed.
SCSEP means the Senior Community Service Employment Program as
authorized under title V of the OAA.
State agency on aging means the sole agency designated by the
State, in accordance with regulations of the Assistant Secretary on
Aging, pursuant to section 305(a)(1) of the 0AA.
Subgrantee means the legal entity to which a subgrant is awarded by
a grantee and which is accountable to the grantee (or higher tier
subgrantee) for the use of the funds provided.
Title V of the OAA means 42 U.S.C. 3056 et seq.
Subpart B--Grant Planning and Application Procedures
Sec. 641.201 Allotment and allocation of title V funds.
(a) Allotment. The Secretary shall allot funds for projects in each
State in accordance with the distribution requirements contained in
section 506(a) of the OAA.
(b) Within-State apportionment. The amount allotted for projects
within a State shall be apportioned among areas within the State in an
equitable manner, taking into consideration:
(1) The proportion which eligible individuals in each such area
bears to the total number of such persons, respectively, in that State;
[[Page 26583]]
(2) The relative distribution of such individuals residing in rural
and urban areas within the State; and
(3) The relative distribution of such individuals who are
individuals with the greatest economic need, such individuals who are
minority individuals, and such individuals with greatest social need.
(c) Annual report of funds allocated by state. The State agency for
each State receiving funds or a sponsor designated by the Department
shall report at the beginning of each fiscal year on such State's
status relative to section 506(c) of the OAA. Each State's report shall
include names and geographic locations of all projects receiving title
V funds for projects in the State. All grantees and subgrantees
operating in a State shall provide information necessary to compile the
report. [Section 506(d) of the OAA.]
Sec. 641.202 Eligibility for title V funds.
Agencies and organizations eligible to receive title V funds shall
be those specified in sections 502(b) and 506(a) of the OAA.
Sec. 641.203 Soliciting applications for title V funds.
The Department may solicit or request organizations to submit
applications for funds.
Sec. 641.204 Grant application requirements.
(a) Schedules. The Department shall establish, by administrative
directive, schedules for submittal of grant preapplications and
applications; the contents of grant applications, including goals and
objectives; amounts of grants; and grant budget and narrative formats.
(b) Intergovernmental reviews. Grant applicants shall comply with
the requirements of the Department's regulation, at 29 CFR part 17,
which implements the intergovernmental review of Department programs
and activities. A Preapplication for Federal Assistance form (SF-424)
filed as a result of the intergovernment review system shall contain an
attachment which, at a minimum, lists the proposed number of authorized
community service positions in each county, or other appropriate
jurisdiction within the affected State. Whenever a national
organization or other program grantee or subgrantee proposes to conduct
projects within a planning and service area in a State, such
organization or program grantee is responsible for sharing their
applications with area agencies on aging and other SCSEP sponsors in
the area prior to the award of the funds in accord with guidelines
issued by the Department.
(c) Subgrants. A grant applicant planning to award funds by
subgrant shall:
(1) Outline the nature and extent of the planned use of such funds;
and
(2) Assure that in the event that a subgrant agreement is canceled
in whole or in part, the grantee will provide continuity of services to
enrollees.
Sec. 641.205 Responsibility review.
(a) In order to enter into and continue a grant relationship with
DOL, an organization (applicant) shall be responsible. To determine
responsibility, DOL conducts a preaward review of all grant applicants.
As part of this review, DOL applies 13 basic responsibility tests to
each applicant, included in paragraphs (b) and (c) of this section.
(b) If a grant applicant fails either of the following two
responsibility tests, it shall not be designated as a grantee:
(1) The Department's efforts to recover debts from the applicant
(for which three demand letters have been sent) established by final
Department action have been unsuccessful, or the applicant has failed
to comply with an approved repayment plan.
(2) Fraud or criminal activity has been determined to exist within
the organization.
(c) Eleven additional basic responsibility tests are applied to
each grant applicant. Failure to meet any one of these tests does not
establish that the applicant is not responsible, unless the failure is
substantial or persistent. These tests are as follows:
(1) Serious administrative deficiencies have been identified, such
as failure to maintain a financial management system as required by
Federal regulations.
(2) Willful obstruction of the monitoring process.
(3) Failure to meet performance requirements.
(4) Failure to correct deficiencies brought to the grantee's
attention in writing as a result of monitoring activities, reviews,
assessments, etc.
(5) Failure to submit correct grant closeout documents within 90
days after expiration of the grant, unless an extension has been
requested and granted.
(6) Failure to return outstanding cash advances within 90 days of
the expiration date of the grant, unless an extension has been
requested and granted, or the funds have been authorized to be retained
for use on other grants.
(7) Failure to submit correct required reports by established due
dates.
(8) Failure to properly report and dispose of government property
as instructed by DOL.
(9) Failure to maintain cost controls resulting in excess cash on
hand.
(10) Failure to timely comply with the audit requirements of 29 CFR
part 96.
(11) Final disallowed costs in excess of five percent of the grant
award.
Sec. 641.206 Grant application review.
(a) The Department shall review each timely grant application
submitted by an eligible organization.
(b) In reviewing and considering an application, the Department
shall determine the following:
(1) The availability of funds for the proposed grant;
(2) Whether the application is in accordance with the Department's
instructions;
(3) Whether the application complies with the requirements of the
OAA and this part;
(4) Whether the application offers the best prospect of serving
appropriate geographic areas; and
(5) Whether the application demonstrates the effective use of
funds.
Sec. 641.207 Negotiation.
(a) The Department may negotiate with an eligible organization to
arrive at a grant agreement if the application generally meets
requirements set forth in this part.
(b) The subjects of negotiation may include, but are not limited
to, the following:
(1) Project components, including community service assignments and
geographic locations of authorized positions;
(2) Subproject(s), if any;
(3) Funding level, including all budget line items; and
(4) Performance goals.
Sec. 641.208 Rejection of grant application or project components.
(a) The Department may question any proposed project component if
it believes that the component will not serve the purposes of the OAA;
if negotiation does not produce a mutually acceptable conclusion, it
may reject this grant application.
(b) If the Department rejects an application, as set forth in
paragraph (a) of this section, the Department may solicit applications
from other eligible organizations in order to arrive at a grant
agreement.
(c) When an application is not approved, the Department shall
notify the applicant within a reasonable time in writing and state the
reason(s) for rejection. [[Page 26584]]
(d) Rejection of a proposal or application is a final Departmental
action which is not subject to further administrative review. Rejection
will not affect future consideration of the applicant for other
projects as long as the organization meets the eligibility criteria.
Sec. 641.209 Award of funds.
When the applicant is a unit of State government or a public or
private non-profit organization, the award of funds to a grantee shall
be accomplished through the execution of a grant agreement prepared by
the Department. When the applicant is a unit of the Federal Government,
other than the Department, the award of funds shall be accomplished
through an interagency agreement.
Subpart C--Grant Operations
Sec. 641.301 General.
(a) This subpart establishes basic grant operation standards and
procedures to be followed by all organizations receiving title V funds
for the purpose of operating SCSEP grant agreements and projects.
(b) The dual purposes of an SCSEP project are to provide useful
part-time community service assignments for persons with low incomes
who are 55 years old or older while promoting transition to
unsubsidized employment. Grantees and subgrantees shall develop
appropriate work assignments for eligible individuals which will result
in the provision of community services as defined in sections 502(b)
and 507(2) of the OAA, and Sec. 641.102 and will promote unsubsidized
employment opportunities.
Sec. 641.302 Grantee responsibilities.
The grantee shall remit to eligible individuals wages, for
community service assignments, and provide skill enhancement
opportunities, periodic physical examinations, personal and employment-
related counseling, assistance in transition to unsubsidized employment
where feasible, and other benefits as approved by the Department.
(a) grantees are responsible for:
(1) Following and enforcing the requirements set forth in the OAA
and this part;
(2) Implementing and carrying out projects in accordance with the
provisions of the grant agreement; and
(3) Assuring that, to the extent feasible, such projects will serve
the needs of minority, limited English-speaking, and Indian eligible
individuals, and eligible individuals who have the greatest economic
need, at least in proportion to their numbers in the State, and take
into consideration their rates of poverty and unemployment based on the
best available information.
(b) The grantee periodically shall monitor the performance of
grant-supported activities to assure that project goals are being
achieved and that the requirements of the OAA and this part are being
met.
(c) The grantee or subgrantee shall obtain and record the personal
information necessary for a proper determination of eligibility for
each individual and maintain documentation supporting the eligibility
of enrollees.
(d) Each grantee or subgrantee shall make efforts to provide
equitable services among substantial segments of the population
eligible for participation in SCSEP. Such efforts shall include, but
not be limited to: outreach efforts to broaden the composition of the
pool of those considered for participation, to include members of both
sexes, various race/ethnic groups and individuals with disabilities.
Sec. 641.303 Cooperative relationships.
(a) Each grantee or subgrantee shall, to the maximum extent
feasible, cooperate with other agencies, including agencies conducting
programs under the JTPA, to provide services to elderly persons, to
persons with low incomes, and with agencies providing employment and
training services.
(b) The cooperation described in paragraph (a) of this section
shall include, but not be limited to:
(1) Selection of community service assignment occupational
categories, work assignments, and host agencies to provide a variety of
community service opportunities for enrollees and to produce a variety
of federally funded services which respond to the community's total
needs and initiatives.
(2) Establishment of cooperative relations with the State agency on
aging designated under section 305(a)(1) of the OAA and with area
agencies on aging designated under section 305(a)(2) of the OAA for the
purpose of obtaining services as authorized under titles III, IV, and
VI of the OAA to increase the likelihood of receipt of unsubsidized
employment opportunities and supportive services that are available.
Existing services provided under the authority of section 321(a) of the
OAA shall be used first by grantee or subgrantee.
(3) Establishment of cooperative relations with other employment
and training organizations including the State and local JTPA and the
Carl D. Perkins Act programs to insure that project enrollees can
benefit from such cooperative activities as dual eligibility, shared
assessments, training and referral.
(4) Establishment of cooperative relations with State employment
security agencies to insure that enrollees are made aware of services
available from these agencies.
(c) Whenever a national organization or other program sponsor
conducts a project within a planning and service area in a State, such
an organization or program sponsor shall conduct such a project in
consultation with the area agency on aging of the planning and service
area and shall submit to the State agency and the area agency on aging
a description of such project to be conducted in the State including
the location of the project, 30 days prior to undertaking the project,
for review and comment to assure efficient and effective coordination
of programs under this part.
Sec. 641.304 Recruitment and selection of enrollees.
Grantees and subgrantees shall use methods of recruitment and
selection (including notifying the State employment security agency
when vacancies occur) which will assure that the maximum number of
eligible individuals will have an opportunity to participate in the
program. Recruitment efforts shall be designed, to the extent feasible,
to assure equitable distribution of services to groups described in
Sec. 641.302(e). [Section 502(b)(1)(H) of the OAA.]
Sec. 641.305 Enrollment eligibility.
(a) General. Eligibility criteria set forth in this section apply
to all SCSEP applicants and enrollees, including the following
individuals:
(1) Each individual seeking initial enrollment;
(2) Each individual seeking reenrollment after termination from the
SCSEP because of loss of unsubsidized employment through no fault of
their own, including illness; and
(3) Each enrollee seeking recertification for continued enrollment.
(b) Eligibility criteria. To be eligible for initial enrollment,
each individual shall meet the following criteria for age, income, and
place of residence:
(1) Age. Each individual shall be no less than 55 years of age. No
person whose age is 55 years or more shall be determined ineligible
because of age, and no upper age limit shall be imposed for initial or
continued enrollment. [Section 502 of the OAA.]
(2) Income. The income of the family of which the individual is a
member [[Page 26585]] shall not exceed the low-income standards defined
in Sec. 641.102 and issued by the Department. In addition, a disabled
person may be treated as a ``family of one'' for income eligibility
purposes.
(3) Residence. Each individual, upon initial enrollment, shall
reside in the State in which the project is authorized.
(c) No additional eligibility requirement. Grantees and subgrantees
shall not impose any additional condition or requirement for enrollment
eligibility unless required by Federal law.
(d) Dual Eligibility. Individuals eligible under title V of the OAA
who are enrolled in a joint program established under a written
financial or non-financial agreement to jointly operate programs with
JTPA shall be deemed to satisfy the requirements of JTPA Title II-A.
(e) Special responsibilities of the grantees and subgrantee(s)
relating to eligibility.
(1) Each grantee or subgrantee shall recertify the income of each
enrollee under its grant or subgrant, respectively, once each project
year, according to the schedule set forth in the grant agreement and
shall maintain documentation to support the recertification. Enrollees
found to be ineligible for continued enrollment because of income shall
be given, by the grantee or subgrantee, a written notice of termination
and shall be terminated 30 days after the notice. No enrollee shall
participate in a community service position for more than 12 months
without having his or her income recertified.
(2) If, at any time, the grantee or a subgrantee determines that an
enrollee was incorrectly declared eligible as a direct result of false
information given by that individual, the individual shall be given a
written notice explaining the reason or reasons for the determination
and shall be terminated immediately.
(3) If, at any time, the grantee or subgrantee determines that an
enrollee was incorrectly declared eligible through no fault of the
enrollee, the grantee or subgrantee shall give the enrollee immediate
written notice explaining the reason or reasons for termination, and
the enrollee shall be terminated 30 days after the notice.
(4) When a grantee or subgrantee makes an unfavorable determination
on continued eligibility, it shall explain in writing to the enrollee
the reason(s) for the determination and shall provide notice of the
right of appeal in accordance with the required procedures set forth in
Sec. 641.324.
(5) When a grantee or subgrantee terminates an enrollee for cause,
it shall inform the enrollee, in writing, of the reason(s) for
termination and of the right of appeal in accordance with the required
procedures set forth in Sec. 641.324.
(6) When a grantee or subgrantee makes an unfavorable determination
of enrollment eligibility pursuant to paragraph (e) (1) or (3) of this
section, it should assure that the individual is given a reason for
non-enrollment and, when feasible, should refer the individual to other
potential sources of assistance.
Sec. 641.306 Enrollment priorities.
(a) As set forth in sections 502(b)(1)(M) and 507(1) of the OAA,
enrollment priorities for filling all positions shall be as follows:
(1) Eligible individuals with the greatest economic need;
(2) Eligible individuals who are 60 years old or older; and
(3) Eligible individuals who seek re-enrollment following
termination of an unsubsidized job through no fault of their own or due
to illness, provided that re-enrollment is sought within one year of
termination.
(b) Within all enrollment priorities, those persons with poor
employment prospects shall be given preference.
(c) Enrollment priorities established in this section shall apply
to all vacant community service positions, but shall not be interpreted
to require the termination of any eligible enrollee. The priorities do
not apply to the experimental private sector projects authorized by
section 502(e) of the OAA.
Sec. 641.307 [Reserved]
Sec. 641.308 Orientation.
(a) Enrollee. The grantee or subgrantee shall provide orientation
to eligible individuals who are enrolled as soon as practicable after a
determination of eligibility. The orientation shall provide, as
appropriate, information related to: project objectives; community
service assignments; training; supportive services; responsibilities,
rights, and duties of the enrollee; permitted and prohibited political
activities; plans for transition to unsubsidized employment and a
discussion of safe working conditions at the host agencies.
(b) Host agency. The grantee or a subgrantee shall provide to those
individuals who will supervise enrollees at the host agencies, an
orientation similar to the one described in paragraph (a) of this
section. This is to assure that enrollees will receive adequate
supervision and opportunities for transitioning to the host agency
staff or other unsubsidized employment.
(c) Supervision. The grantee or subgrantee shall ensure that host
agencies provide adequate supervision, adequate orientation and
instruction regarding, among other things, job duties and safe working
procedures.
Sec. 641.309 Assessment and reassessment of enrollees.
(a) General. The grantee or subgrantee shall assess each enrollee
under the grant or subgrant, respectively, to determine the most
suitable community service assignment and to identify appropriate
employment, training, and community service objectives for each
individual. The assessment shall be made in partnership with the new
enrollee and should consider the individual's preference of
occupational category, work history, skills, interests, talents,
physical capabilities, need for supportive services, aptitudes,
potential for performing proposed community service assignment duties,
and potential for transition to unsubsidized employment.
(b) Assessment of physical capabilities. The assessment of each
enrollee shall take into consideration his or her physical
capabilities. Assessments of physical ability shall be consistent with
section 504 of the Rehabilitation Act of 1973, as amended (section
504), and the Americans with Disabilities Act of 1990 (ADA).
(c) Assignment. The grantee or subgrantee shall seek a community
service assignment which will permit the most effective use of each
enrollee's skills, interests, and aptitudes.
(d) Individual development plans. The grantee and subgrantee shall
use the assessment or reassessment as a basis for developing or
amending an individual development plan (IDP). The IDP shall be
developed in partnership with the enrollee to reflect the needs of the
enrollee as indicated by the assessment, as well as the expressed
interests and desires of the enrollee.
(e) Review of IDP plan. The grantee and subgrantee shall review the
IDP at least once in a 12 month period for the following purposes: to
evaluate the progress of each enrollee in meeting the objectives of the
IDP; to determine each enrollee's potential for transition to
unsubsidized employment; to determine the appropriateness of each
enrollee's current community service assignment; and to review progress
made toward meeting their training and employment objectives.
[[Page 26586]]
(f) Alternative assignment. The sponsor may develop an alternative
assignment for an enrollee, when feasible, should there be one of the
following determinations:
(1) That a different community service assignment will provide
greater opportunity for the use of an enrollee's skills and aptitudes;
(2) That an alternative assignment will provide work experience
which will enhance the potential for unsubsidized employment; or
(3) That an alternative assignment will otherwise serve the best
interests of the enrollee.
(g) Minimum requirements. The assessments and reassessments
required by this section shall meet minimum requirements issued by the
Department on assessment, and subsequent determinations are to be
recorded in the enrollee's IDP, to become a part of each enrollee's
permanent record.
(h) Recent assessments. Assessments of an enrollee, prepared by
another employment or training program (such as a program under the
JTPA or the Carl D. Perkins Vocational and Applied Technology Act) may
be substituted for one prepared by the grantee or subgrantee if the
training program prepared the assessment within the last year prior to
applying for SCSEP. [section 502(b)(1)(M) of the OAA.]
Sec. 641.310 Community service assignments.
(a) Assignment to community service. After the completion of an
enrollee's orientation and initial training, if any, the grantee or
subgrantee shall refer the enrollee, as soon as possible, to a useful
part-time community service assignment, if appropriate, according to
the IDP.
(1) Each enrollee shall be placed in a community service assignment
which contributes to the general welfare of the community and provides
services related to publicly-owned and operated facilities and
projects, or projects sponsored by organizations other than political
parties, exempt from taxation under the provisions of section 501(c)(3)
of the Internal Revenue Code of 1986. Project sponsors may provide
enrollees with opportunities to assist in the administration of the
SCSEP.
(2) The enrollee shall not be assigned to work involving the
construction, operation, or maintenance of any facility used or to be
used as a place for sectarian religious instruction or worship, or to
work which primarily benefits private, profit-making organizations.
[Sections 502(b)(1)(A), (C), and (D) and 507(2) of the OAA.]
(b) Hours of community service assignments.
(1) Each enrollee's community service assignment shall not exceed
1,300 hours during a 12-month period specified in the grantee's
agreement. The 1,300 hours includes paid hours of orientation,
training, sick leave, and vacation and hours of enrollment provided by
all grantees and subgrantees. No enrollee shall be paid for more than
1,300 hours in any 12-month period. [Section 508(a)(2) of the OAA.]
(2) The grantee or subgrantee shall not require an enrollee to
participate more than 20 hours during one week; however, hours may be
extended with the consent of the enrollee.
(3) The grantee or subgrantee shall not offer an enrollee an
average of fewer than 20 hours of paid participation per week. Shorter
periods may be authorized by the grant agreement, in writing by the
Department, or by written agreement between an enrollee and a grantee
or subgrantee. [Section 508(a)(2) of the OAA.]
(4) The grantee or subgrantee shall, to the extent possible, ensure
that the enrollee works during normal business hours, if the enrollee
so desires.
(c) Location. The enrollee shall be employed at work sites in or
near the community where the enrollee resides. [Section 502(b)(1)(B) of
the OAA.]
(d) Working conditions for enrollees. Enrollees shall not be
permitted to work in a building or surroundings or under conditions
which are unsanitary, hazardous, or dangerous to the enrollees' health
or safety. The grantee or subgrantee shall make periodic visits to the
enrollees' work site(s) to assure that the working conditions and
treatment of the enrollee are consistent with the OAA and this part.
[Section 502(b)(1)(J) of the OAA.]
Sec. 641.311 Enrollee wages and fringe benefits.
(a) Wages. Upon engaging in part-time community service
assignments, including orientation and training in preparation for
community service assignments, each enrollee shall receive wages at a
rate no less than the highest applicable rate:
(1) The minimum wage which would be applicable to the enrollee
under the Fair Labor Standards Act of 1938;
(2) The State or local minimum wage for the most nearly comparable
covered employment; or
(3) The prevailing rates of pay for persons employed in similar
public occupations by the same employer.
(b) Fringe benefits.
(1) The grantee or subgrantee shall ensure that enrollees receive
all fringe benefits required by law.
(2) Within a project or subproject, fringe benefits shall be
provided uniformly to all enrollees, unless the Department agrees to
waive this provision due to a determination that such a waiver is in
the best interests of applicants, enrollees, and the project
administration.
(3) Physical examination.
(i) Each enrollee shall be offered the opportunity to take a
physical examination annually. A physical is a fringe benefit, and is
not an eligibility criterion. The examining physician shall provide, to
the enrollee only, a written report of the results of the examination.
The enrollee may, at his or her option, provide the grantee or
subgrantee a copy of the report. The results of the physical
examination shall not be taken into consideration in determining
placement into a community service assignment.
(ii) An enrollee may refuse the physical examination offered. In
such a case, the grantee or subgrantee should document this refusal,
through a signed waiver or other means, within 60 work days after
commencement of the community service assignment. Thereafter, grantees
or subgrantees shall document an enrollee's refusal of the annual
physical examination.
(c) Retirement. Expenditures of grant funds for contributions into
a retirement system or plan are prohibited, unless the grantee has
documentation on hand showing that:
(1) The costs are allowable under the appropriate cost principles
indicated at Sec. 641.403(b); and
(2) Such contributions bear a reasonable relationship to the cost
of providing such benefits to enrollees because:
(i) the benefits vest at the time contributions are made on behalf
of the enrollees; or
(ii) the charges to SCSEP funds are for contributions on behalf of
enrollees to a ``defined benefit'' type of plan which do not exceed the
amounts reasonably necessary to provide the specified benefit to
enrollees, as determined under a separate actuarial determination.
(d) Workers' compensation. Where an enrollee is not covered by the
State workers' compensation law, the grantee or subgrantee shall
provide the enrollee with workers' compensation benefits equal to that
provided by law for covered employment. [Section 504(b) of the OAA.]
(e) Unemployment compensation. The grantee is authorized to pay the
cost of unemployment insurance for covered [[Page 26587]] enrollees,
where required by law. [Section 502(b)(1)(O) of the OAA.]
Sec. 641.312 Enrollee supportive services.
(a) The grantee or subgrantee shall provide supportive services
designed to assist the enrollee in participating successfully in
community service assignments and, where appropriate, to prepare and
assist the enrollee in obtaining unsubsidized employment. To the extent
feasible, the grantee or subgrantee shall utilize supportive services
available from other titles of the OAA, particularly those administered
by area agencies on aging and other funding sources.
(b) Supportive services may include, but need not be limited to,
all or some of the following:
(1) Counseling or instruction designed to assist the enrollee to
participate successfully in community service assignments or to obtain
unsubsidized employment.
(2) Counseling designed to assist the enrollee personally in areas
such as health, nutrition, social security benefits, Medicare benefits,
and retirement laws.
(3) Incidentals, including, but not limited to: work shoes, badges,
uniforms, safety glasses, eyeglasses, and hand tools, may be provided
if necessary for successful participation in community service
assignments and if not available from other sources.
(4) Periodic meetings on topics of general interest, including
matters related to health, job seeking skills, safety, and consumer
affairs.
(5) Enrollee transportation.
(i) Enrollee transportation may be paid if transportation from
other sources at no cost to the project is unavailable and such
unavailability is documented. When authorized in the grant agreement,
transportation may be provided for enrollees from home to work, to
training or to supportive services. [Section 502(b)(1)(L) of the OAA.]
(ii) Grant funds may not be expended to support the transportation
costs of host agencies or programs funded by other than title V of the
OAA, except where provided by Federal law.
Sec. 641.313 Training.
(a) The grantee or subgrantee shall provide or arrange for training
specific to an enrollee's community service assignment. Training may be
provided through lectures, seminars, classroom instruction, individual
instruction or other arrangements including, but not limited to,
arrangements with employment and training programs. The grantee or the
subgrantee is encouraged to obtain such services through locally
available resources, including employment and training programs, as
defined in Sec. 641.103, and through host agencies, at no cost or
reduced cost to the project. [Section 502(b)(1)(I) of the OAA.]
(b) Training shall consist of up to 500 hours per grant year and
shall be consistent with the enrollee's IDP. Such training may cover
all aspects of training; e.g., skill, job search, etc. Enrollees shall
not be enrolled solely for the purpose of receiving job search and job
referral services. Waivers for additional hours of training will be
considered on an exception basis.
(c) In addition to training in preparation for community service
assignments, as described in this section, a grantee or subgrantee is
encouraged to arrange for, or directly provide, skills-training
opportunities beyond the SCSEP community service training activities
which will permit the enrollee to acquire or improve skills, including
literacy training, applicable in community service assignment or for
unsubsidized employment.
(d) A grantee or subgrantee, to the extent feasible, shall arrange
skill-training for the enrollee which is realistic and consistent with
his or her IDP. A grantee or subgrantee shall place major emphasis on
the training available through on-the-job experience at SCSEP work
sites, thereby retaining the community service focus of the SCSEP.
(e) An enrollee engaging in skills-related training, as described
in paragraphs (c) and (d) of this section, may be reimbursed for the
documented travel costs and room and board necessary to engage in such
training. [Section 502(b)(1)(I) of the OAA.]
(f) Whenever possible a grantee or subgrantee shall seek to obtain
all training for enrollees reduced or no cost to title V from such
sources as the JTPA and the Carl D. Perkins Vocational and Applied
Technology Education Act. Where training is not available from other
sources, title V funds may be used for training.
(g) Nothing in this section shall be interpreted to prevent or
limit an enrollee from engaging in self-development training available
from sources other than title V of the OAA during hours other than
hours of community service assignment.
(h) Joint programming, including co-enrollment when appropriate,
between title V programs and programs authorized by the Job Training
Partnership Act, the Community Services Block Grant Act, or the Carl D.
Perkins Act is strongly encouraged.
Sec. 641.314 Placement into unsubsidized employment.
(a) In order to ensure that the maximum number of eligible
individuals have an opportunity to participate in community service
assignments, the grantee or subgrantee shall employ reasonable means to
place each enrollee into unsubsidized employment.
(b) To encourage the placement of the enrollee into an unsubsidized
job, the Department has established a goal of placing into unsubsidized
employment the number of enrollees which equals at least 20 percent of
the project's annual authorized positions. Whenever this goal is not
achieved, the grantee shall develop and submit a plan of action for
addressing this shortfall.
(c) The grantee or subgrantee may contact private and public
employers directly or through the State employment security agencies to
develop or identify suitable unsubsidized employment opportunities; and
should encourage host agencies to employ enrollees in their regular
work forces.
(d) The grantee or subgrantee shall follow-up on each enrollee who
is placed into unsubsidized employment and shall document such follow-
up at least once within 3 months of unsubsidized placement.
Sec. 641.315 Maximum duration of enrollment.
A maximum duration of enrollment may be established by the grantee
in the grant agreement, when authorized by the Department. Time limits
on enrollment shall be reasonable and IDPs shall provide for transition
to unsubsidized employment or other assistance before the maximum
enrollment duration has expired.
Sec. 641.316 Individual development plan-related terminations.
When an enrollee refuses to accept a reasonable number of referrals
or job offers to unsubsidized employment consistent with his or her IDP
and there are no extenuating circumstances, the enrollee may be
terminated from the SCSEP. Such a termination shall be consistent with
administrative guidelines issued by the Department and the termination
shall be subject to the applicable appeal rights and procedures
described in Sec. 641.324.
Sec. 641.317 Status of enrollees.
Enrollees who are employed in any project funded under the OAA are
not deemed to be Federal employees as a result of such employment.
[Section 504(a) of the OAA.] [[Page 26588]]
Sec. 641.318 Over-enrollment.
Should attrition or funding adjustments prevent a portion of
project funds from being fully utilized, the grantee may use those
funds during the period of the agreement to over-enroll additional
eligible individuals. The number over-enrolled may not exceed 20
percent of the total number of authorized positions established under
the grant agreement without the written approval of the Department.
Payments to or on behalf of enrollees in such positions shall not
exceed the amount of the unused funds available. Each individual
enrolled in such a position shall be informed in writing that the
assignment is temporary in nature and may be terminated. The grantee
shall first seek to maintain full enrollment in authorized positions
and shall seek to schedule all enrollments and terminations to avoid
excessive terminations at the end of the grant period.
Sec. 6541.319 [Reserved]
Sec. 641.320 Political patronage.
(a) No grantee may select, reject, promote, or terminate an
individual based on that individual's political affiliations or
beliefs. The selection or advancement of enrollees as a reward for
political services, or as a form of political patronage, is prohibited.
(b) There shall be no selection of subgrantees or host agencies
based on political affiliation.
Sec. 641.321 Political activities.
(a) General. No project under title V of the OAA or this part may
involve political activities.
(1) No enrollee or staff person may be permitted to engage in
partisan or nonpartisan political activities during hours for which
they are paid with SCSEP funds.
(2) No enrollee or staff person, at any time, may be permitted to
engage in partisan political activities in which such enrollee or staff
person represents himself or herself as a spokesperson of the SCSEP
program.
(3) No enrollee may be employed or out-stationed in the office of a
Member of Congress, a State or local legislator, or on any staff of a
legislative committee.
(4) No enrollee may be employed or out-stationed in the immediate
office of any elected chief executive officer(s) of a State or unit of
general government, except that:
(i) Units of local government may serve as host-agencies for
enrollees in such positions, provided that such assignments are
nonpolitical; and
(ii) Where assignments are technically in such offices, such
assignments actually are program activities not in any way involved in
political functions.
(5) No enrollee may be assigned to perform political activities in
the offices of other elected officials. However, placement of enrollees
in such nonpolitical assignments within the offices of such elected
officials is permissible, provided that grantees develop safeguards to
ensure that enrollees placed in these assignments are not involved in
political activities. These safeguards shall be described in the grant
agreement and shall be subject to review and monitoring by the grantee
and the Department.
(b) Hatch Act.
(1) State and local employees governed by 5 U.S.C. chapter 15 shall
comply with the Hatch Act provisions as interpreted and applied by the
Office of the Special Counsel.
(2) Each project subject to 5 U.S.C. chapter 15 shall display a
notice and shall make available to each person associated with such
project a written explanation, clarifying the law with respect to
allowable and unallowable political activities under 5 U.S.C. chapter
15 which are applicable to the project and each category of individuals
associated with such project. This notice, which shall have the
approval of the Department, shall contain the telephone number and
address of the DOL Inspector General. [Section 502(b)(1)(P) of the
OAA.] Enforcement of the Hatch Act shall be as provided at 5 U.S.C.
chapter 15.
Sec. 641.322 Unionization.
No funds provided under title V of the OAA or this part may be used
in any way to assist, promote, or deter union organizing.
Sec. 641.323 Nepotism.
(a) No grantee or subgrantee may hire, and no host agency may be a
work site for a person who works in an administrative capacity, staff
position, or community service position funded under title V of the OAA
or this part if a member of that person's immediate family is engaged
in a decision-making capacity (whether compensated or not) for that
project, subproject, grantee, subgrantee or host agency. This provision
may be waived by the Department at work sites on Native American
reservations and rural areas provided that adequate justification can
be documented, such as that no other persons are eligible for
participation.
(b) To the extent that an applicable State or local legal
requirement regarding nepotism is more restrictive than this provision,
that requirement shall be followed.
(c) For purposes of this section:
(1) 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, and grandchild.
(2) Engaged in an administrative capacity includes those persons
who, in the administration of projects, or host agencies, have
responsibility for, or authority over those with responsibility for,
the selection of enrollees from among eligible applicants.
Sec. 641.324 Enrollee and applicant complaint resolution.
(a) Each grantee shall establish and describe in the grant
agreement procedures for resolving complaints, other than those
described by paragraph (c) of this section, arising between the grantee
and an enrollee.
(b) Allegations of violations of federal law, other than those
described in paragraph (c) of this section, which cannot be resolved
within 60 days as a result of the grantee's procedures, may be filed
with the Chief, Division of Older Worker Programs, Employment and
Training Administration, U.S. Department of Labor, Washington, DC
20210.
(c) Grantees that do not receive any funds under the JTPA shall
process complaints of discrimination in accordance with 29 CFR parts 31
and 32. Grantees that receive any funds under JTPA shall process
complaints of discrimination in accordance with 29 CFR part 34.
(d) Except for complaints described in paragraphs (b) and (c) of
this section, the Department shall limit its review to determining
whether the grantee's appeal procedures were followed.
Sec. 641.325 Maintenance of effort.
(a) Employment of an enrollee funded under title V of the OAA or
this part shall be only in addition to budgeted employment which would
otherwise be funded by the grantee, subgrantee and the host agency(ies)
without assistance under the OAA. [Section 502(b)(1)(F) of the OAA.]
(b) Each project funded under title V of the OAA or this part:
(1) Should result in an increase in employment opportunities in
addition to those which would otherwise be available;
(2) Shall not result in the displacement of currently employed
workers, including partial displacement such as a reduction in hours of
non- [[Page 26589]] overtime work, wages, or employment benefits;
(3) Shall not impair existing contracts for service or result in
the substitution of Federal funds for other funds in connection with
work that would otherwise be performed;
(4) Shall not substitute project jobs for existing federally-
assisted jobs; and
(5) Shall not employ or continue to employ any enrollee to perform
work which is the same or substantially the same as that performed by
any other person who is on layoff. [Section 502(b)(1)(G) of the OAA.]
Sec. 641.326 Experimental private sector training projects.
(a) The Department may authorize a grantee to develop an
experimental job training project(s) designed to provide second career
training and the placement of eligible individuals in employment
opportunities with private business concerns. [Section 502(e) of the
OAA.]
(b) Experimental project agreements for training may be with
States, public agencies, non-profit private organizations, and private
business concerns.
(c) The geographic location of these projects shall be determined
by the Department to insure an equitable distribution of such projects.
(d) To the extent feasible, experimental projects shall emphasize
second-career training, and innovative work modes, including those with
reduced physical exertion, and placement into growth industries and
jobs reflecting new technologies.
(e) The Department shall establish by administrative guidelines the
application schedule, content, format, allocation levels and reporting
requirements for experimental projects.
(f) Current title V eligibility standards shall be used for
experimental projects unless the Department permits, in writing, the
use of another approved income index.
(g) Projects funded under section 502(e) of the OAA shall seek to
be coordinated with projects carried out under title II-A of the JTPA
to the extent feasible.
(h) National grantees shall distribute funds for experimental
projects in accordance with the State allocation in their title V
grant.
(i) A grantee may exclude a project, permitted under section 502(e)
of the OAA, from meeting the non-federal share requirement set forth in
Sec. 641.407; however, this exclusion does not relieve the grantee from
the matching requirement, under Sec. 641.407, which applies to the
entire grant.
Subpart D--Administrative Standards and Procedures for Grantees and
Limitations on Federal Funds
Sec. 641.401 General.
This subpart establishes limitations on title V funds to be used
for community service activities and describes, or incorporates by
reference, requirements for the administration of grants by the SCSEP
grantee.
Sec. 641.402 Administrative requirements.
(a) Except as otherwise provided in this part, title V funds shall
be administered in accordance with, and subject to, the Department's
regulations at 29 CFR parts 31, 32, 34, 93, 96, and 98. In addition,
projects and activities administered by State, local or Indian tribal
governments are also subject to the Department's administrative
requirements regulations at 29 CFR part 97; projects and activities
administered by institutions of higher education, hospitals, or other
non-profit organizations are subject to the Department's administrative
requirements regulations at 29 CFR part 95. Grantees of title V funds
shall be subject to any revisions of any implementing regulations cited
in this paragraph (a) on the effective date of such revisions.
(b) The administration of interagency agreements set forth in
subpart E of this part is not subject to paragraph (a) of this section.
Sec. 641.403 Allowable costs.
(a) General. The allowability of costs shall be determined in
accordance with the cost principles indicated in paragraph (b) of this
section, except as otherwise provided in this part.
(b) Applicable Cost Principles.
(1) The cost principles set forth in paragraphs (b)(1) through (4)
of this section apply to the organization incurring the costs:
(i) OMB Circular A-87--State, local or Indian tribal government;
(ii) OMB Circular A-122--Private, non-profit organization other
than:
(A) Institutions of higher education;
(B) Hospitals; or
(C) Other organizations named in OMB Circular A-122 (see sections
4.a. (Definitions) and 5 (Exclusions) of OMB Circular A-122);
(iii) OMB Circular A-21--Educational institution; or
(iv) 48 CFR part 31, subpart 31.2--Commercial organization (for-
profit organization, other than a hospital or other organizations named
in OMB Circular A-122).
(2) The OMB Circulars are available by writing to the Office of
Management and Budget, Office of Administration, Publications Unit,
Room G-236, New Executive Office Building, Washington, DC 20503, or by
calling 202-395-7332.
(c) Lobbying costs. In addition to the prohibition contained in 29
CFR part 93 and in accordance with limitations on the use of
appropriated funds in Department of Labor Appropriation Acts, title V
funds shall 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.
(d) Building repairs and acquisition costs. No federal grant funds
provided to a grantee or subgrantee under title V of the OAA or this
part may be expended directly or indirectly for the purchase, erection,
or repair of any building except for the labor involved in:
(1) Minor remodeling of a public building necessary to make it
suitable for use by project administrators;
(2) Minor repair and rehabilitation of publicly used facilities for
the general benefit of the community; and
(3) Minor repair and rehabilitation by enrollees of housing
occupied by persons with low incomes who are declared eligible for such
services by authorized local agencies.
(4) Accessibility and Reasonable Accommodation. Funds may be used
to meet a grantee or subgrantee's obligations to provide physical and
programmatic accessibility and reasonable accommodation as required by
section 504 of the Rehabilitation Act of 1973, as amended, and the
Americans with Disabilities Act of 1990.
(e) Allowable fringe benefit costs. The cost of the following
fringe benefits are allowable: initial and annual physical assessments,
annual leave, sick leave, holidays, health insurance, social security,
worker's compensation and any other fringe benefits approved in the
grant agreement and permitted by the appropriate Federal cost
principles found in OMB Circulars A-87 and A-122, except as limited for
retirement costs by Sec. 641.311(c).
Sec. 641.404 Classification of costs.
All costs must be charged to one of the following three cost
categories:
(a) Administration. The cost category of Administration shall
include, but need not be limited to, the direct and indirect costs of
providing:
(1) Administration, management, and direction of a program or
project;
(2) Reports on evaluation, management, community benefits, and
other aspects of project activity;
(3) Assistance of an advisory council, if any; [[Page 26590]]
(4) Accounting and management information systems;
(5) Training and technical assistance for grantee or subgrantee
staff;
(6) Bonding; and
(7) Audits.
(b) Enrollee wages and fringe benefits. The cost category of
Enrollee Wages and Fringe Benefits shall include wages paid to
enrollees for hours of community service assignments, as described in
Sec. 641.311, including hours of training related to a community
service assignment, and the costs of fringe benefits provided in
accordance with Sec. 641.311.
(c) Other enrollee costs. The cost category of Other enrollee costs
shall include all costs of functions, services, and benefits not
categorized as administration or enrollee wages and fringe benefits.
Other enrollee costs shall include, but shall not be limited to, the
direct and indirect costs of providing:
(1) Recruitment and selection of eligible enrollees as provided in
Secs. 641.304 and 641.305;
(2) Orientation of enrollees and host agencies as provided in
Sec. 641.308;
(3) Assessment of enrollees for participation in community service
assignments and evaluation of enrollees for continued participation or
transition to unsubsidized employment as provided in Sec. 641.309;
(4) Development of appropriate community service assignments as
provided in Sec. 641.310;
(5) Supportive services for enrollees, including transportation, as
provided in Sec. 641.312;
(6) Training for enrollees, including tuition; and
(7) Development of unsubsidized employment opportunities for
enrollees as provided in Sec. 641.314.
(d) Cost reductions. Grantees may lower administration costs or
other enrollee costs by assigning enrollees to activities which
normally would be charged to either of these cost categories. In such
instances, the costs of enrollees' wages and fringe benefits shall be
charged to the cost category of enrollee wages and fringe benefits.
[Section 502(b)(1)(A) of the OAA.]
Sec. 641.405 Limitations on federal funds.
(a) The limitations on federal funds set forth in this section
shall apply to SCSEP funds allotted to grantees for community service
activities. Cost categories, limitations, and periods during which
different limitations shall apply are set forth in paragraph (b) of
this section.
(b) The cost categories and the limitations which apply to them
shall be:
(1) Administration. The amount of federal funds expended for the
cost of administration during the program year shall be no more than
13.5 percent of the grant. The Department may increase the amount
available for the cost of administration to no more than 15 percent of
the project in accordance with section 502(c)(3) of the OAA.
(2) Enrollee wages and fringe benefits. The amount of federal funds
budgeted for enrollee wages and fringe benefits shall be no less than
75 percent of the grant.
Sec. 641.406 Administrative cost waiver.
(a) Based upon information submitted by a public or private
nonprofit agency or organization with which the Department has or
proposes to have an agreement, as set forth under section 502(b) of the
OAA, the Department may waive Sec. 641.405(b)(1) and increase the
amount available for paying the costs of administration to an amount
not to exceed 15 percent of the proposed federal costs of the grant.
Each waiver shall be in writing. The Department shall administer this
section in accordance with section 502(c)(3) (A) and (B) of the OAA.
(b) The waiver may be provided to grantees that demonstrate and
document reasonable and necessary:
(1) Major administrative cost increases;
(2) Operational requirements imposed by the Department;
(3) Increased costs associated with unsubsidized placement;
(4) Increased costs of providing specialized services to minority
groups; and
(5) The minimum amount necessary to administer the grant relative
to the available funds.
Sec. 641.407 Non-federal share of project costs.
The non-federal share of costs may be in cash or in-kind, or a
combination of the two, and shall be calculated in accordance with 29
CFR 97.24 or 29 CFR 95.23, as appropriate. The Department shall pay not
more than 90 percent of the cost of any project which is the subject of
an agreement entered into under the OAA, except that the Department is
authorized to pay all of the costs of any such project which is:
(a) An emergency or disaster project;
(b) A project located in an economically depressed area as
determined by the Secretary of Labor in consultation with the Secretary
of Commerce and the Director of the Office of Community Services of the
Department of Health and Human Services;
(c) A project which is exempted by law; or
(d) A project serving an Indian reservation that can demonstrate it
cannot provide adequate non-federal resources. [Sections 502(c) and
502(e) of the OAA.]
Sec. 641.408 Budget changes.
As an exception to 29 CFR 97.30(c)(1), Budget changes, 29 CFR
95.25, Revision of budget and program plans, the movement of Enrollee
wages and fringe benefits to any other budget category shall not be
permitted without prior written approval of the awarding agency. The
Department shall not approve any budget change which would result in
non-compliance with Sec. 641.405(b)(2).
Sec. 641.409 Grantee fiscal and performance reporting requirements.
(a) In accordance with 29 CFR 97.40 or 29 CFR 95.51, as
appropriate, each grantee shall submit a Senior Community Service
Employment Program Quarterly Progress Report (QPR). This report shall
be prepared to coincide with the ending dates for Federal fiscal year
quarters and shall be submitted to the Department no later than 30 days
after the end of the quarterly reporting period unless a waiver is
provided. If the grant period ends on a date other than the last day of
a federal fiscal year quarter, the last quarterly report covering the
entire grant period shall be submitted no later than 30 days after the
ending date unless a waiver is provided. The Department shall provide
instructions for the preparation of this report.
(b) In accordance with 29 CFR 97.41 or 29 CFR 95.52, as
appropriate, the following financial reporting requirements apply to
title V grants:
(1) An SF-269, Financial Status Report (FSR), shall be submitted to
the Department within 30 days after the ending of each quarter of the
program year unless a waiver is provided. A final FSR shall be
submitted within 90 days after the end of the grant unless a waiver is
provided.
(2) All FSR's shall be prepared on an accrual basis.
(c) In accordance with Departmental instructions, an equitable
distribution report of SCSEP positions by all grantees in each State
shall be submitted annually by the State agency receiving title V funds
or another project sponsor designated by the Department. (Approved
under the Office of Management and Budget Control No. 1205-0040)
[[Page 26591]]
Sec. 641.410 Subgrant agreements.
(a) The grantee is responsible for the performance of all
activities implemented under subgrant agreements and for compliance by
the subgrantee with the OAA and this part.
(b) No subgrant or other subagreement may provide for any
expenditure of funds beyond the ending date of the grant agreement.
(c) For purposes of this part, procurement, as described in 29 CFR
part 97 and 29 CFR 95.40 through 95.48, does not include the award or
administration of subgrant agreements.
Sec. 641.411 Program income accountability.
Any of the methods described at 29 CFR 97.25 or 29 CFR 95.24, as
appropriate, may be used to account for program income.
Sec. 641.412 Equipment.
Equipment purchased by a State grantee with title V funds prior to
July 1, 1989, shall be subject to 29 CFR 97.32.
Sec. 641.413 Audits.
Each grantee is responsible for complying with the Single Audit Act
of 1984 (31 U.S.C. 7501 et seq.) and 29 CFR part 96, the Department of
Labor regulation which implements Office of Management and Budget
Circular A-128, ``Audits of State and Local Governments''; or OMB
Circular 133, ``Audits of Institutions of Higher Education and Other
Nonprofit Institutions'', as appropriate.
Sec. 641.414 Grant closeout procedures.
Grantees shall follow the grant closeout procedures at 29 CFR 97.50
or 29 CFR 95.71, as appropriate. As necessary, the Department shall
issue supplementary closeout instructions for all title V grantees.
Sec. 641.415 Department of Labor appeals procedures for grantees.
(a) This section sets forth the procedures by which the grantee may
appeal a SCSEP final determination by the Department relating to costs,
payments, notices of suspension, and notices of termination other than
those resulting from an audit. Appeals of suspensions and terminations
for discrimination shall be processed under 29 CFR part 31, 32, or 34,
as appropriate.
(b) Appeals from a final disallowance of cost as a result of an
audit shall be made pursuant to 29 CFR part 96, subpart 96.6.
(c) Upon a grantee's receipt of the Department's final
determination relating to costs (except final disallowance of cost as a
result of an audit), payments, suspension or termination, 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, 800 K Street, NW., room
400 N, Washington, DC 20001 with a copy to the Department official who
signed the final determination. The Chief Administrative Law Judge
shall designate an administrative law judge to hear the appeal.
(2) The request for hearing shall be accompanied by a copy of the
final determination, if issued, and shall 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, shall be 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, shall govern the conduct of hearings under this
section, except that:
(i) The appeal shall not be considered a complaint; and
(ii) Technical rules of evidence, such as the Federal Rules of
Evidence and subpart B of 29 CFR part 18, shall not apply to any
hearing conducted pursuant to this section. However, rules designed to
assure production of the most credible evidence available and to
subject testimony to test by cross-examination shall be applied where
reasonably necessary by the administrative law judge conducting the
hearing. The certified copy of the administrative file transmitted to
the administrative law judge by the official issuing the final
determination shall 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.
(5) The decision of the administrative law judge shall constitute
final action by the Secretary of Labor unless, within 21 days after
receipt of the decision of the administrative law judge, a party
dissatisfied with the decision, or any part thereof, has filed
exceptions with the Secretary of Labor specifically identifying the
procedures, fact, law, or policy to which exception is taken. Any
exception not specifically urged shall be deemed to have been waived.
Thereafter, the decision of the administrative law judge shall become
the decision of the Secretary unless the Secretary of Labor, within 30
days of such filing, has notified the parties that the case has been
accepted for review.
(6) Any case accepted for review by the Secretary of Labor shall be
decided within 180 days of such acceptance. If not so decided, the
decision of the administrative law judge shall become the final
decision of the Secretary of Labor.
Subpart E--Interagency Agreements
Sec. 641.501 Administration.
(a) Federal establishments other than the Department of Labor which
receive and use funds under title V of the OAA or this part shall
submit to DOL project fiscal and progress reports as described in
Sec. 641.409.
(b) Non-DOL federal establishments which receive and use funds
under title V shall maintain the standard records on individual
enrollees and enrollee activities, in accordance with this part.
(c) The Department may provide title V funds to another federal
agency by a non-expenditure transfer authorization or by payments on an
advance or reimbursement basis.
(d) In aspects of project administration other than those described
in paragraphs (a) and (b) of this section, federal establishments which
receive and use funds under title V of the OAA may use their normal
administrative procedures.
Subpart F--Assessment and Evaluation
Sec. 641.601 General.
The Department shall assess each grantee and subgrantee to
determine whether it is carrying out the purposes and provisions of
title V of the OAA and this part in accordance with the OAA, this part
and the grant or other agreements. The Department also shall evaluate
the overall program conducted under title V of the OAA or this part to
aid in the administration of the SCSEP. The Department and individuals
designated by the Department may make site visits and conduct such
other monitoring activities as determined by SCSEP needs.
Sec. 641.602 Limitation.
In arranging for the assessment of a grantee, or the evaluation of
a subgrantee, or the evaluation of the overall program under title V of
the OAA or this part, the Department shall not use any individual,
institution, or [[Page 26592]] organization associated with any project
under title V of the OAA.
Signed at Washington, DC, this 5th day of May, 1995.
Robert B. Reich,
Secretary of Labor.
[FR Doc. 95-11949 Filed 5-16-95; 8:45 am]
BILLING CODE 4510-30-P
