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[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4654-4661]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1324]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 641

RIN 1205-AB60

Senior Community Service Employment Program; Final Rule, 
Additional Indicator on Volunteer Work

AGENCY: Employment and Training Administration, Labor.

ACTION: Final rule.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) issues this final rule to implement an 
additional indicator for volunteer work in the Senior Community Service 
Employment Program (SCSEP). Specifically, this rule amends our 
regulations regarding Performance Accountability for title V of the 
Older Americans Act (OAA) and corresponding definitions. These 
regulations provide administrative and programmatic guidance and 
requirements for the implementation of the SCSEP.

DATES: Effective date: This final rule is effective March 1, 2012. The 
information collection requirements contained in this rule have been 
submitted to OMB for approval; however, that approval is pending. Upon 
OMB concluding its review, the Department will publish a subsequent 
notice to announce OMB's action on the request and when the information 
collections will take effect.

FOR FURTHER INFORMATION CONTACT: Judith Gilbert, Team Leader, Division 
of National Programs, Tools and Technical Assistance, Office of 
Workforce Investment, U.S. Department of Labor, 200 Constitution Avenue 
NW., Room S-4209, Washington, DC 20210; telephone (202) 693-3046 (this 
is not a toll-free number). Individuals with hearing or speech 
impairments may access the telephone number above via TTY by calling 
the toll-free Federal Information Relay Service at 1-(800)-877-8339.

SUPPLEMENTARY INFORMATION: The preamble to this Final Rule is organized 
as follows:

I. Background--provides a brief description of the development of 
the final rule.
II. Summary of the Comments--provides an overview of the comments 
received.
III. Section-by-Section Review--summarizes and discusses changes to 
the SCSEP regulations.
IV. Administrative Information--sets forth the applicable regulatory 
requirements.

I. Background

    The SCSEP, authorized by title V of the OAA, is the only Federally-
sponsored employment and training program targeted specifically to low-
income older individuals who want to enter or re-enter the workforce. 
Participants must be unemployed and 55 years of age or older and have 
incomes at no more than 125 percent of the Federal poverty level. The 
program offers participants training at community service assignments 
in public and non-profit agencies. The dual goals of the program are to 
promote useful opportunities in community service activities and to 
also move SCSEP participants into unsubsidized employment, where 
appropriate, so that they can achieve economic self-sufficiency. The 
Older Americans Act Amendments of 2006, Public Law 109-365 (2006 OAA), 
amended the statute authorizing the SCSEP and necessitated changes to 
the SCSEP regulations in 20 CFR part 641. A final rule promulgating 
such changes was published on September 1, 2010. 75 FR 53786. 
Previously, an interim final rule (IFR) on performance measures was

[[Page 4655]]

published on June 29, 2007, and a notice of proposed rulemaking (NPRM) 
was published on August 14, 2008. This statute requires the Department 
to issue definitions of any indicator of performance through 
regulation. OAA Sec.  513(b)(3).
    As established in the SCSEP Final Rule published September 1, 2010, 
there are eight performance measures, of which six are core indicators 
and two are additional indicators. 20 CFR 641.700(b) and (c). The OAA 
requires the grantees and the Secretary of Labor to ``reach agreement 
on the expected level of performance'' for the six core indicators, but 
has no such requirement for the additional indicators. OAA Sec.  
513(a)(2)(C).
    In comments on the SCSEP IFR of June 29, 2007, and the SCSEP NPRM 
of August 14, 2008, several commenters expressed concern that the 
proposed measures were not appropriate to the SCSEP because they placed 
an undue emphasis on employment outcomes and did not adequately reflect 
the importance of community service. Grantees who commented said that 
they felt the SCSEP performance measurement system did not adequately 
value community service and that there was too much emphasis on 
employment outcomes.
    Although in the SCSEP Final Rule published on September 1, 2010, we 
declined ``at this time'' to adopt any additional indicators beyond 
those required by statute, after due consideration, the Department has 
decided that the benefits of adopting an additional indicator of 
volunteer work outweigh the additional burden of collecting the data 
for the indicator. Under its authority in OAA Sec.  513(b)(2)(C) to add 
additional indicators of performance, the Department solicited comments 
on an additional performance indicator for volunteer work by publishing 
the SCSEP NPRM on an Additional Indicator for Volunteer Work, on 
November 23, 2010. 75 FR 71514. The additional indicator outlined in 
the NPRM proposes volunteer work as a way to provide additional 
information and emphasis on the community service goal of SCSEP. The 
summary of the comments from that NPRM follows.

II. Summary of the Comments

    We received 113 comments on the NPRM from State and local 
governmental entities, non-profit organizations that host or help to 
place participants, academic professionals in the field of gerontology 
and several private citizens. Overall, comments on the NPRM were 
extremely supportive of the NPRM, stating that the NPRM clearly 
supports Congressional intent as reflected in the statement of purpose 
and the dual goals of SCSEP.
    The main reason cited by most commenters for supporting the 
additional indicator was the large and rapidly growing body of research 
about the important benefits of volunteer work for the elderly and the 
positive impact their volunteer work has on the larger community. 
Specifically, several commenters, including a director of a multi-year 
research project on older adult civic engagement, cited a report from 
the Corporation for National and Community Service, ``* * * `The Health 
Benefits of Volunteering: A Review of Recent Research,' [which] 
documents that those who volunteer have lower mortality rates, greater 
functional ability, and lower rates of depression later in life than 
those who do not volunteer.'' Commenters also noted that volunteerism 
is more likely to occur where people are invited to volunteer, or where 
volunteer options are presented to them, therefore improving the pool 
of trained, active volunteers in communities across the country. 
Finally, according to the comments, ``* * * [R]esearch consistently 
shows that older volunteers in particular benefit greatly from improved 
physical well-being, enhanced self-esteem, and a greater sense of 
personal accomplishment.'' This assertion is supported by the research 
cited above.\1\
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    \1\ See generally, The Health Benefits of Volunteering, A Review 
of Recent Research, The Corporation for National and Community 
Service, 2007, available at: http://www.nationalservice.gov/about/role_impact/performance_research.asp#HBR.
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    Three comments were submitted that opposed the proposed additional 
indicator. These commenters voiced strong opposition to the additional 
indicator, suggesting that the focus of SCSEP should be on the 
unsubsidized employment goal alone, rather than a shared emphasis with 
community service. These commenters also were concerned that 
volunteerism would discourage employers from hiring participants when 
they could continue to volunteer. However, the purpose of this 
regulation is not to create an either/or situation, where we encourage 
volunteer work over employment or vice versa. Rather, the point is to 
ask grantees and/or sub-grantees to make a good faith effort to account 
for any participants who choose to volunteer post-SCSEP entry, 
regardless of whether they also have found unsubsidized employment. The 
information culled from this additional indicator will provide further 
information on both the impact of the SCSEP on the individual SCSEP 
participants, and the impact of the SCSEP on local communities through 
an increase in volunteerism by both current and former SCSEP 
participants.
    Finally, a few other commenters were concerned about whether ``a 
measure of volunteerism as a program outcome may be misinterpreted by 
policy makers'' because other ``successful programs administered by the 
Corporation for National and Community Service are being operated at a 
considerably lower unit cost.'' Essentially, these commenters are 
concerned that the SCSEP budget will suffer because, in their view, the 
reason for existing support from lawmakers is based entirely on SCSEP's 
``outstanding record of placing the hardest to serve older workers in 
employment and providing paid community service opportunities to those 
enrolled.'' The Department understands this concern and agrees that an 
important connection exists between SCSEP's outstanding record of 
placement and its continued funding by Congress. However, as discussed 
above, the OAA laid out dual goals for the SCSEP: unsubsidized 
employment and community service. It is appropriate to consider the 
success of the program in achieving both of these goals. Consequently, 
the Department believes that this volunteerism indicator will reinforce 
the value of the community service aspect of SCSEP.
    The Department acknowledged in the September 1, 2010 Final Rule 
that unsubsidized employment is not a suitable or appropriate outcome 
for every SCSEP participant, and that while our participants are low-
income and in need of financial support, being employed may not be an 
appropriate or achievable outcome for every individual participant. 
Rather, because community service is an equally important goal of 
SCSEP, as envisioned by Congress in the OAA, the Department is 
following Congress' lead by collecting information about how 
participation in SCSEP community service leads to continued service to 
the community after participants exit SCSEP. DOL finds this information 
valuable not only for those individuals for whom unsubsidized 
employment post-SCSEP is not an appropriate or achievable outcome, but 
also for those who do obtain unsubsidized employment. We are not 
collecting information only for those who volunteer after exit without 
having a job; rather, we are collecting information regardless of 
whether the participant also has found unsubsidized employment.
    We discuss the more specific substantive comments received on the

[[Page 4656]]

NPRM in Section III below. Section III does not include discussion of 
those provisions that were not the subject of a comment, or that were 
not revised for technical reasons. We have adopted such provisions as 
proposed, without further discussion.

III. Section-by-Section Review

    In this section, we discuss the comments on specific provisions of 
the proposed regulation, our responses to them and any changes to the 
regulations that we made as a result of the comments.

Subpart A--Purpose and Definitions

What definitions apply to this subpart? (Sec.  641.140)
    Section 641.140 of the SCSEP regulations provides definitions for 
the SCSEP, including definitions relevant to the SCSEP performance 
measures and indicators. The NPRM proposed to amend the definitions in 
Sec.  641.140 to accommodate a new additional indicator in Sec.  
641.710. The NPRM proposed to add ``entry into volunteer work'' to the 
definition of ``additional indicators.'' The existing regulations 
provide that the only additional indicators are the two required by the 
statute: (1) retention in unsubsidized employment for 1 year; and (2) 
the satisfaction of participants, employers and their host agencies 
with their experiences and the services provided. The term ``additional 
indicators'' now would include three indicators.
    This Final Rule amends the proposed rule to add a new definition of 
``volunteer work'' to Sec.  641.140 for clarity and uniformity, so that 
all grantees understand and use the same definition, all seniors are 
treated the same, and all data we receive are comparable from grantee 
to grantee. The original language of this definition in the NPRM 
referred only to ``a public agency of a State, local government or 
intergovernmental agency, or for a charity or similar nonprofit 
organization.'' One commenter suggested that we add specific language 
recognizing that volunteer work can occur in faith- or community-based 
organizations, since they also provide significant community service 
opportunities. We agree. Although the proposed definition was not 
intended to exclude volunteer work with faith- or community-based 
organizations, for the sake of clarity we have amended the definition 
to include faith- or community-based organizations as among those 
entities for which volunteer work may be performed.
    Upon further reflection, for data collection purposes, we also have 
broadened the language of the definition to make clear that it includes 
informal volunteer work that an individual performs on his or her own 
and not through an organization. An example would be a woman who 
invites neighborhood girls to her home after school for sewing classes. 
This type of informal volunteering is fairly common and is as likely to 
have positive effects on those who volunteer as is a volunteer activity 
conducted through non-profit organizations. This informal volunteer 
work does not include service performed for a member of the 
individual's own family or of the individual's own household since the 
self-interest of the individual makes it impossible to determine 
whether it is being performed with the intent to help others, which is 
the essence of volunteer work. Because the circumstances under which 
participants may enter into informal volunteer activities may vary 
widely, we will not count such activities in the performance indicator. 
But we are interested in capturing the positive impact on participants 
who enter into informal volunteer activities, so we will collect 
information about such volunteer activities. Therefore, these type of 
informal volunteer activities will not be included in the calculation 
of the ``entry into volunteer indicator'' under Sec.  641.140. The 
Department will collect and share information about the informal 
volunteer work for information purposes only.
    In another change, we have deleted the portion of the definition 
that reads: ``[v]olunteer work does not include work a former 
participant performs that is similar or identical to work the former 
participant performed for compensation for the organization.'' From a 
reading of the comments, it is apparent that this language was 
confusing, and detracted from our primary goal of creating a definition 
of ``volunteer'' that is consonant with that concept as it is applied 
under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., a 
statute that is administered and enforced by the Department's Wage and 
Hour Division. SCSEP has always prohibited participants from 
volunteering at the host agency at which they are performing their 
community service assignment. This deletion is meant to clarify that 
this prohibition does not extend to volunteering at the host agency 
after exit from the program, nor does it prohibit a former SCSEP 
participant from using the skills learned in a SCSEP placement when 
later volunteering for another organization.
    The definition, as revised, now reads that volunteer work means 
``(1) for purposes of Sec.  641.140 of this part, activities or work 
that former participants perform for a public agency of a State, local 
government or intergovernmental agency, or for a charity or not-for-
profit organization, including faith-based or community-based 
organizations, for civic, charitable, or humanitarian reasons, and 
without promise, expectation, or receipt of compensation; (2) for 
informational reporting purposes, volunteer work also can include 
similar activities that a former participant performs on his or her own 
that are not conducted through a formal organization or agency as long 
as those activities are not performed for a member of the former 
participant's family or of the individual's own household. These types 
of volunteer activities will not be included in the calculation of the 
``entry into volunteer work'' indicator under Sec.  641.140.'' This 
definition closely follows the concept of a volunteer as it is used 
under the FLSA, which recognizes the generosity and public benefit of 
volunteering. Encouraging volunteerism, however, must be balanced with 
the fundamental purpose of the FLSA, which is to prevent covered 
employers from gaining an unfair competitive advantage through payment 
of substandard wages. See Tony and Susan Alamo Found. v. Sec'y of 
Labor, 471 U.S. 290, 296 (1985).
    Grantees, sub-grantees and host agencies should be aware that the 
FLSA, and in particular its definitions of ``employee'' and ``employ,'' 
has been interpreted quite broadly to effectuate its remedial purposes. 
See, e.g., Alamo Found., 471 U.S. at 299. For example, the Department 
has consistently stated that individuals cannot volunteer for for-
profit entities, or volunteer in the business and commercial activities 
of a non-profit organization when those activities are covered by the 
FLSA. Likewise, so-called volunteer work that an individual performs 
for a former employer will be closely scrutinized to determine whether 
an employment relationship exists, particularly if the individual is 
performing the same services for which he or she was previously 
employed. See, e.g., 29 CFR 553.103.
    We recognize that the new indicator for entered volunteer work is 
based on self-report by former participants and that grantees are not 
in a position to monitor the conditions in the nonprofit organizations 
in which former participants perform volunteer work. However, grantees, 
sub-grantees, and nonprofit organizations should consult with their 
nearest Wage and Hour Division office if they have questions about 
whether activities performed by

[[Page 4657]]

current or former SCSEP participants constitute employment under the 
FLSA.
    Additional information on the FLSA definitions of ``employer,'' 
``employee,'' and ``employ'' is available in the Wage and Hour's Field 
Operations Handbook Chapter 10 (http://www.dol.gov/whd/FOH/FOH_Ch10.pdf). For information on finding local Wage and Hour Division 
offices, please visit: http://www.dol.gov/whd.

Subpart G--Performance Accountability

What performance measures/indicators apply to SCSEP grantees? (Sec.  
641.700)
    20 CFR 641.700 separates SCSEP indicators into two categories: core 
and additional. The NPRM proposed to amend Sec.  641.700(a) to add a 
new additional indicator. Additional indicators are not subject to 
goal-setting and therefore are not subject to corrective action. 
However, the statute does mandate that the Department annually publish 
each grantee's performance on additional indicators. In addition, the 
NPRM also proposed to amend paragraph (c)(3), which currently only 
lists the additional indicators of employment retention and customer 
satisfaction, to reflect that the Secretary has designated entry into 
volunteer work as an additional indicator.
    DOL intends for the new indicator of ``entered volunteer work'' to 
parallel the ``entered employment'' measure, which grantees have been 
reporting since 2004. SCSEP grantees can capture much of the 
information required for this indicator at the time of exit and need 
only confirm the participant's engagement in volunteer work at any time 
during the quarter after the exit quarter, in the same way as grantees 
have long captured the data for entered employment at the first follow-
up after exit. We note that during this brief follow-up with former 
participants, grantees may also learn if the participants have obtained 
unsubsidized employment, of which the grantee was not previously aware, 
and for which placement the grantee also may obtain entered employment 
credit. Like the entered employment measure, which excludes 
participants who were employed at the time of enrollment, the new 
indicator excludes those who are engaged in volunteer work at the time 
of entry into the SCSEP. However, as is true with the entered 
employment measure, grantees will collect data on several aspects of 
the volunteer work, including whether the participant had been 
performing volunteer work at the time of entry into the SCSEP or during 
the community service assignment, and information about the type of 
volunteer work performed after exit, the setting in which it is 
performed, and the number of hours of volunteer work per week. DOL will 
collect data on these characteristics in the SCSEP data collection 
system so they can be used for analysis and additional reporting, but 
DOL will not use the data to measure the performance of the grantee. 
The actual measure itself will report only on the percent of 
participants who were not volunteering at the time of enrollment but 
are volunteering after exit.
    Several commenters suggested that the regulatory text be changed to 
delete ``entry into'' and substitute with ``new or continued 
participation in'' volunteer work. A number of commenters appeared to 
mistakenly interpret the exclusion of individuals already volunteering 
from the indicator as an exclusion from SCSEP eligibility and suggested 
we remove the restriction that participants cannot be engaged in 
volunteer activity upon enrollment in SCSEP. One commenter raised 
concerns about who might be excluded from the broad definition, asking, 
``Would everyone who volunteered at the time of entry into SCSEP be 
excluded regardless of type/extent of volunteerism?'' Another commenter 
said that ``[s]ince I have observed many seniors who volunteer while 
also doing paid work, I would recommend that you consider not imposing 
the restriction that SCSEP enrollees not be engaged in volunteering 
work before leaving the program.''
    In response to these comments, we are explaining in this preamble 
that the new indicator will have no impact on eligibility and 
explaining why the indicator does not count those who were volunteering 
before enrollment. As stated earlier, DOL will collect data about those 
individuals who were volunteering before SCSEP entry and will also 
share this data when it reports the additional indicator of entry into 
volunteer work, which does not include those who were volunteering 
prior to entry. The exclusion of participants who were doing volunteer 
work at the time of enrollment applies only to determining who is in 
the pool of participants counted in the additional indicator of entry 
into volunteer work. It has nothing to do with eligibility for SCSEP. 
The purpose of the new indicator is to determine what effect SCSEP 
participation has on former participants' desire to remain active and 
continue their community service through volunteer work. There is 
little value in collecting a simple count of SCSEP participants who 
volunteer after exit unless we know what their status was before 
enrollment. Without that information, we are merely reporting something 
about the individuals who enrolled, while not necessarily revealing the 
impact of SCSEP. Specifically, if we do not narrow the pool of 
participants to exclude those participants doing volunteer work already 
when they enrolled in SCSEP, then we are unable to correlate their 
volunteerism after SCSEP with their participation in SCSEP.
    The Department proposed this additional indicator to identify 
volunteer work initiated after enrollment so that we can define the 
impact that SCSEP has on the lives of participants, not only during but 
also after exit from the program. Therefore, individuals who reported 
having volunteered upon enrollment are not included in any way in the 
calculation of the volunteer work indicator. For these reasons, we do 
not want to include these individuals in the additional indicator.
    Some commenters who objected to the language about ``entry into'' 
volunteer work also misunderstood the purpose and effect of the new 
indicator. Grantees are required by the SCSEP Final Rule published on 
September 1, 2010 to assist participants in finding unsubsidized 
employment if that goal is feasible for them. The core measure of 
entered employment provides an additional incentive for grantees to 
provide this assistance and to claim credit for unsubsidized placements 
whenever possible. However, if unsubsidized employment is not feasible, 
or if participants are due to exit without having secured unsubsidized 
employment, grantees are obligated to assist participants in achieving 
other forms of self-sufficiency, which includes opportunities to 
continue or start volunteer work after the SCSEP participation ends. 
This volunteer service is not necessarily an alternative to employment; 
indeed, it may occur concurrently with unsubsidized employment. The new 
indicator merely captures volunteer service where it exists and reports 
it as an additional program outcome.
How are the performance indicators defined? (Sec.  641.710)
    The NPRM proposed to establish the new additional indicator in 
Sec.  641.710 by adding a new paragraph to (b)(3), which defines the 
``entry into volunteer work'' measure. This Final Rule adopts the 
additional indicator as proposed. As set forth above, DOL intends for 
the new indicator to parallel the existing core measure of entered 
employment, which SCSEP has been reporting since 2004. The denominator 
for the new indicator

[[Page 4658]]

consists of all participants who exit during a quarter, and the 
numerator consists of all those participants who are engaged in any 
volunteer work in the quarter after they exited. The indicator entirely 
excludes participants who were engaged in volunteer work at the time of 
entry into the SCSEP: such participants are neither in the denominator 
nor in the numerator. As explained above, DOL will collect and report 
the data for such individuals separately and not as an additional 
program outcome.
    In order to provide context for the new indicator and to make it 
more useful, grantees will enter into the SCSEP data system information 
on the characteristics of the volunteer work (as they currently do for 
the characteristics of unsubsidized employment), including the number 
of hours per week and whether participants were engaged in volunteer 
work at the time of entry into the SCSEP or during their community 
service assignment, so that it will be possible to determine which 
participants are newly engaged in volunteer work after exiting as a 
result of participating in the SCSEP and which are continuing to do 
volunteer work. Later in this preamble, the Paperwork Reduction Act 
(PRA) section sets forth the data elements that DOL will capture in 
conjunction with this new indicator.
    Several commenters suggested that volunteer work should be on the 
list of excluded exits for the Common Measures, described in Training 
and Employment Guidance Letter (TEGL) No. 17-05, so that it is not 
considered a negative exit but rather a neutral outcome, and so that it 
would keep documentation and follow-up required of sponsors to a 
minimum. Since the additional indicator supplements entered employment 
and is not an alternative to it, making volunteer service an additional 
exclusion under the Common Measures TEGL is not necessary. Whether an 
exiter who engages in volunteer work after exit qualifies for an 
exclusion under the TEGL is determined by the reason for the exit, not 
by how the participant chooses to spend her time after exit. The TEGL 
addresses only the core measure of entered employment and has nothing 
to do with the additional indicators.
    Other commenters said volunteer service should be measured in ways 
that parallel the other additional indicators, rather than the core 
indicators. For example, one commenter recommended that 
``[v]olunteering should be measured in a manner parallel to * * * 
`customer satisfaction' or `retention in unsubsidized employment for 1 
year' and should not parallel the measurement of a core indicator such 
as `entered employment.' '' One commenter expressed concern ``that in 
an attempt to `parallel' the entered employment measure, resulting data 
collection requirements will be unnecessarily burdensome when 
implemented.'' Another commenter suggested ``a more simplistic process 
that allows grantees to track participants 30 days after exit'' and 
that the Department should ``provide additional guidance on documenting 
such exits in SPARQ'' before publishing this Final Rule, as well as 
reduce paperwork ``by allowing grantees to utilize the same 
documentation for the `entered employment' performance measure as 
acceptable documentation for [v]olunteerism.'' Further, another 
commenter recommended that the indicator should include ``quantifying 
community satisfaction with the SCSEP volunteer and the number of hours 
that are donated to the community.''
    We understand the commenters' concerns, but those who suggest that 
we should follow the approach of the additional indicators rather than 
the core indicators overlook that the customer satisfaction measures 
employ a well defined and universally used definition (the American 
Customer Satisfaction Index, the ACSI) and that the indicator for 
retention at one year employs a definition that closely follows the 
common measures. Because grantees are familiar with the entered 
employment indicator as a useful and meaningful way to capture 
information about SCSEP participants, we believe that paralleling that 
indicator to capture the rate of volunteer work is the most effective 
means to evaluate both the impact of SCSEP on continuing service to the 
community and enhanced quality of life for participants.
    As one commenter suggested, the additional data collection that 
will accompany the new indicator will enable the Department to report 
the number of volunteer hours performed post-exit along with an 
estimate of their monetary value to the organizations and communities 
in which the service is performed, by multiplying the hours by the 
standard monetary value of volunteer work. Since the participant 
customer satisfaction survey already includes exiters in its sample, it 
may also be feasible to add a few additional questions to this survey 
in order to determine the satisfaction of exiters with their volunteer 
work and the impact of this volunteer work on their quality of life. We 
agree that such data would increase the value and usefulness of the 
indicator because DOL would be able to use this information to enhance 
the various reports and analyses of these issues that it routinely 
conducts.
    Some commenters also were concerned about the entry into volunteer 
work definition's impact on grantees, not simply of the data collection 
burden, but also in helping participants seeking post-SCSEP volunteer 
positions overcome barriers to service. Commenters stated that grantees 
would need training on volunteerism to better assist older adults, and 
that without training, ``it will be difficult to connect participants 
to opportunities well-suited and can be discouraging for some. Barriers 
to volunteerism exist just as they do in the SCSEP such as lack of 
transportation and location, working for free and not receiving a 
paycheck, conflicts in scheduling (much like those used for breaks in 
participation), care giving, costs associated with proper attire, and 
mismanagement of expectations of assigned tasks.'' The Department 
recognizes these concerns but notes that grantees already have an 
obligation under the SCSEP Final Rule published on September 1, 2010 to 
prepare and implement transition plans for participants who are exiting 
the program without having secured unsubsidized employment. 20 CFR 
641.570(a)(2). As part of the transition plan, grantees are expected to 
assess the participants' circumstances, including their degree of 
social engagement, and to assist participants in identifying volunteer 
activities that meet their needs and interests and that may serve to 
enhance their physical and emotional well-being. The Department already 
has provided considerable training and resources to the grantees on how 
to meet that obligation, and the Department intends to offer additional 
training and technical assistance as needed. The new additional 
indicator of entry into volunteer service provides a degree of credit 
to the grantees for doing this work, but it in no way imposes a new 
programmatic responsibility on them.

IV. Administrative Information

A. Regulatory Flexibility Analysis, Executive Order 13272, Small 
Business Regulatory Enforcement Fairness Act

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires 
agencies to prepare a regulatory flexibility analysis to determine 
whether a regulation will have a significant economic impact on a 
substantial number of small entities. Section 605(b) of the RFA allows 
an agency to certify a rule in lieu of preparing an analysis if the 
regulation is not expected to have a significant economic impact on a 
substantial number of small entities. Section 601 of

[[Page 4659]]

the RFA defines small entities to include small businesses, small 
organizations, including not-for-profit organizations, and small 
governmental jurisdictions. Section 601(4) defines a small organization 
as any not-for-profit enterprise that is independently owned and 
operated and not dominant in its field.
    SCSEP includes 74 grantees, and approximately 970 sub-recipients 
and sub-sub-recipients. More than 50 of the grantees are States, State 
agencies, or territories, and are not small entities as defined within 
the RFA. The vast majority of the rest are non-profit organizations, 
many of which may be categorized as small entities for RFA purposes. 
The Department does not have a precise number of small entities that 
may be impacted by this rulemaking.
    The Department has determined that the economic impact of this 
Final Rule is not likely to be significant for any of these small 
entities, because these regulations will result in negligible 
additional costs to grantees and sub-recipients. This Final Rule 
involving SCSEP performance measures will have only a minor information 
collection impact on a number of small entities. DOL has addressed this 
burden by submitting to the Office of Management and Budget (OMB) a 
request for approval for changes to three of the four reporting forms 
before submission of this Final Rule. DOL estimated the increase in 
paperwork burden to be 1000 hours. The SCSEP is designed so that SCSEP 
funds cover the vast majority of the costs of implementing this 
program, including the costs of reporting the volunteer work indicator. 
We reached a similar conclusion in our review of the August 14, 2008 
NPRM. At that time, the Department requested public comments on the 
potential economic impact that the rule may have on small entities and 
did not receive any comments on this question. For these reasons, the 
Department has determined and certifies that this Final Rule will not 
have a significant economic impact on a substantial number of small 
entities.
    OMB has also determined that this rule is not a ``major rule'' for 
purposes of the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), Public Law 104-121 (1996) (codified in scattered sections at 
5 U.S.C.). SBREFA requires agencies to take certain actions when a 
``major rule'' is promulgated. 5 U.S.C. 801. SBREFA defines a ``major 
rule'' as one that will have an annual effect on the economy of $100 
million or more; that will result in a major increase in costs or 
prices for, among other things, State or local government agencies; or 
that will significantly and adversely affect the business climate. 5 
U.S.C. 804(2).
    This Final Rule will not significantly or adversely affect the 
business climate. First, the rule will not create a significant impact 
on the business climate because, as discussed above, SCSEP grantees are 
governmental jurisdictions and not-for-profit enterprises. Moreover, 
any secondary impact of the program on the business community would not 
be adverse. To the contrary, we believe the SCSEP assists the business 
community by training older Americans to participate in the workforce 
and benefits the overall community by providing volunteer work 
opportunities.
    The Final Rule will also not result in a major increase in costs or 
prices for States or local government agencies. The SCSEP has no impact 
on prices. Finally, this Final Rule will not have an annual effect on 
the economy of $100 million or more.
    Therefore, because none of the definitions of ``major rule'' apply 
in this instance, this Final Rule is not a ``major rule'' for SBREFA 
purposes.

B. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    As stated in the SBREFA analysis, this Final Rule will not have an 
annual effect on the economy of $100 million or more. However, the rule 
does raise novel policy issues about implementing an additional 
performance indicator on volunteer work in the SCSEP. The key policy 
change reinforces the dual purpose of the SCSEP by counting those who 
begin performing volunteer work--or who perform volunteer work in lieu 
of or in addition to unsubsidized employment--after participating in 
SCSEP. Therefore, the Department has submitted this Final Rule to OMB.

C. Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 
U.S.C. 3501 et seq., include minimizing the paperwork burden on 
affected entities. The PRA requires certain actions before an agency 
can adopt or revise a collection of information, including publishing 
in the Federal Register a summary of the collection of information and 
a brief description of the need for and proposed use of the information 
and requesting public comments. 44 U.S.C. 3507.
    Because the 2006 OAA necessitated changes in many of the SCSEP 
forms used by grantees before the effective date of the Act, in July 
2007 the Department submitted to OMB for review and approval, in 
accordance with PRA Sec.  3507(d), a modification to the SCSEP 
information collection requirements. The four-year strategy newly 
required by the 2006 OAA (see Sec.  641.302) was accounted for in that 
PRA submission. OMB approved the SCSEP PRA submission (OMB control 
number 1205-0040) in October 2007 and again (without the added form and 
burden estimate for the volunteer work indicator) on April 18, 2011, 
extending the expiration date through April 30, 2014. For more 
information on this request, please visit: www.reginfo.gov. This Final 
Rule introduces new information collection requirements and thus 
requires a PRA submission.
    A Federal agency generally cannot conduct or sponsor a collection 
of information, and the public is generally not required to respond to 
an information collection, unless it is approved by the OMB under the 
PRA and displays a currently valid OMB Control Number. In addition, 
notwithstanding any other provisions of law, no person shall generally 
be subject to penalty for failing to comply with a collection of 
information if the collection of information does not display a valid 
OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
    The Department has submitted the information collection contained 
in this final rule for review under the PRA to the OMB, as part of a 
revision to Control Number 1205-0040; however, OMB has not yet 
completed its review. The Department will publish an additional Notice 
to announce OMB's action on the request and when the information 
collection requirements will take effect.
    Public Comments:
    In the NPRM stage, the Department requested comments on the burdens 
imposed by information collections contained in this rule. The 
Department received eleven comments expressing concern about the burden 
on grantees and/or sub-grantees to collect information about former 
participants' volunteer activities post-SCSEP. The Department shares 
this concern and intends to preserve a balance between the value of 
information gained from

[[Page 4660]]

this additional indicator and the burdens of extra data collection. 
This indicator is an additional indicator, not a core indicator, and 
thus has no goal-setting, no data validation, and no negative 
repercussions attached to it for the sponsors involved. This additional 
indicator is designed so that sponsors can obtain the required 
information during intake, at exit, and through brief and non-
burdensome follow-up efforts with participants after their SCSEP 
service. While the Department understands that sponsors may not be able 
to reach every participant after exit from the program, we find that 
the data obtained through low burden follow-up efforts will provide 
valuable information to justify the minimal increase in burden.
    While much of the information provided to OMB in support of the 
information collection request appears in this preamble, interested 
parties may obtain a copy of the full supporting statement by sending a 
written request to the mail address shown in the ADDRESSES section at 
the beginning of this preamble or by visiting the http://www.reginfo.gov/public/do/PRAMain Web site.

D. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4, 2 
U.S.C. 1501 et seq.) requires an agency to ``prepare a written 
statement'' providing specific information if the rulemaking ``is 
likely to result in promulgation of any rule that includes any Federal 
mandate that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more'' in any 1 year. Since the Department has determined 
that this Final Rule does not include any Federal mandate that may 
result in increased expenditure by State, local, and tribal 
governments, or by the private sector, of more than $100 million, it 
has not prepared the written statement under section 1532 of the UMRA.

E. Executive Order 13132

    The Department has reviewed this Final Rule in accordance with 
Executive Order 13132 on federalism, and has determined that the Final 
Rule does not have ``policies that have federalism implications.'' As 
explained at Sec.  1(a) of the Executive Order, `` `Policies that have 
federalism implications' refers to regulations, legislative comments or 
proposed legislation, and other policy statements or actions that have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' This 
rule does not have such ``substantial direct effects'' because it does 
not preempt any State law, nor interfere with functions essential to 
the State's separate and independent existence, nor impose any form or 
method of program administration on the States. In addition, this new 
measure is reasonably related to the purpose of the SCSEP program, 
which is a grant program that flows directly from the 2006 OAA, in 
which State participation is voluntary. Therefore, this Final Rule does 
not constitute a ``substantial direct effect'' on the States, nor will 
it alter the relationship, power, or responsibilities between the 
Federal and State governments; the relationship, power, or 
responsibilities were already established in the authorizing 
legislation.

F. Executive Order 13045

    Executive Order 13045 concerns the protection of children from 
environmental health risks and safety risks. This Final Rule addresses 
the SCSEP, a program for older Americans, and has no impact on safety 
or health risks to children.

G. Executive Order 13175

    Executive Order 13175 addresses the unique relationship between the 
Federal Government and Indian tribal governments. The order requires 
Federal agencies to take certain actions when regulations have ``tribal 
implications.'' Required actions include consulting with tribal 
governments before promulgating a regulation with tribal implications 
and preparing a tribal impact statement. The order defines regulations 
as having ``tribal implications'' when they have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.
    The Department has reviewed this Final Rule and concludes that it 
does not have tribal implications. Although tribes are sub-recipients 
of national SCSEP grant funds, this rule will not have a substantial 
direct effect on those tribes because, as outlined in the Regulatory 
Flexibility section of the preamble, there are only minor additional 
costs associated with implementing this Final Rule and these are 
covered by grant funds. This regulation does not affect the 
relationship between the Federal Government and the tribes, nor does it 
affect the distribution of power and responsibilities between the 
Federal Government and tribal governments.
    Accordingly, we conclude that this Final Rule does not have tribal 
implications for the purposes of Executive Order 13175.

H. Environmental Impact Assessment

    The Department has reviewed this Final Rule in accordance with the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (40 CFR part 1500), and the Department's NEPA 
procedures (29 CFR part 11). This Final Rule will not have a 
significant impact on the quality of the human environment, and thus 
the Department has not prepared an environmental assessment or an 
environmental impact statement.

I. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act, enacted as part of the Omnibus Consolidated and Emergency 
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 
2681), requires the Department to assess the impact of this Final Rule 
on family well-being. An agency that determines that the rule will have 
a negative affect on families must support the rule with an adequate 
rationale.
    The Department has assessed this Final Rule and determines that it 
will not have a negative effect on families. Indeed, we believe the 
SCSEP strengthens families by providing job training and support 
services to low-income older Americans.

J. Executive Order 12630

    Executive Order 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights, is not relevant to this 
Final Rule because the rule does not involve implementation of a policy 
with takings implications.

K. Executive Order 12988

    This Final Rule has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform, and will not unduly burden 
the Federal court system. The regulation has been written so as to 
minimize litigation and provide a clear legal standard for affected 
conduct, and has been reviewed carefully to eliminate drafting errors 
and ambiguities.

[[Page 4661]]

L. Executive Order 13211

    Executive Order 13211 is not relevant to this Final Rule because 
the rule will not have a significant adverse effect on the supply, 
distribution, or use of energy.

M. Plain Language

    The Department drafted this rule in plain language.

List of Subjects in 20 CFR Part 641

    Aged, Employment, Government contracts, Grant programs--Labor, 
Reporting and recordkeeping requirements.

    For the reasons discussed in the preamble, the Department of Labor 
amends 20 CFR part 641 as follows:

PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE 
EMPLOYMENT PROGRAM

0
1. The authority citation for part 641 continues to read as follows:

    Authority: 42 U.S.C. 3056 et seq.

0
2. Amend Sec.  641.140 by revising the definition of ``additional 
indicators'' and adding the definition of ``volunteer work'' to read as 
follows:

Sec.  641.140  What definitions apply to this part?

* * * * *
    Additional indicators mean retention in unsubsidized employment for 
1 year; satisfaction of participants, employers and their host agencies 
with their experiences and the services provided; entry into volunteer 
work; and any other indicators of performance that the Secretary 
determines to be appropriate to evaluate services and performance. (OAA 
Sec.  513(b)(2)).
* * * * *
    Volunteer work means:
    (1) For purposes of Sec.  641.140 of this part, activities or work 
that former participants perform for a public agency of a State, local 
government or intergovernmental agency, or for a charity or not-for-
profit organization, including faith-based or community-based 
organizations, for civic, charitable, or for humanitarian reasons, and 
without promise, expectation, or receipt of compensation;
    (2) For informational reporting purposes, volunteer work also can 
include similar activities that a former participant performs on his or 
her own that are not conducted through a formal organization or agency 
as long as those activities are not performed for a member of the 
former participant's family or of the individual's own household. These 
types of volunteer activities will not be included in the calculation 
of the ``entry into volunteer work'' indicator under Sec.  641.140.
* * * * *

0
3. Amend Sec.  641.700 by adding paragraph (c)(4) to read as follows:

Sec.  641.700  What performance measures/indicators apply to SCSEP 
grantees?

* * * * *
    (c) * * *
    (4) The Secretary has designated entry into volunteer work as an 
additional indicator.
* * * * *

0
4. Amend Sec.  641.710 by adding paragraph (b)(3) to read as follows:

Sec.  641.710  How are the performance indicators defined?

* * * * *
    (b) * * *
    (3) ``Entry into volunteer work'' is defined by the formula: Of 
those not engaged in volunteer work at the time of entry into the 
SCSEP, the number of such participants who perform volunteer work in 
the first quarter after the exit quarter, divided by the number of such 
participants who exit during the quarter.

    Signed at Washington, DC, this 18th day of January 2012.
Jane Oates,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2012-1324 Filed 1-30-12; 8:45 am]
BILLING CODE 4510-FN-P
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