26574 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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, Overenrollment, 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); communitybased 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.

§ 641.101 Scope and purpose.

Consistent with changes made in

response to comments on § 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.

§ 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,
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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 § 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 nonDepartment of Labor regulatory

agencies. No useful propose would be

served by incorporating the report

language in the regulations. Consistent

with the comments received on

§ 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 § 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.

§ 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.

§ 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
26576 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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.

§ 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.

§ 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 legislativelymandated 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 § 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.

§ 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.

§ 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).

§ 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.

§ 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 IIA 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 § 641.103 which is corrected

to read § 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 recertifications 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 § 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.

§ 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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 nonapplication of enrollment priorities to

the experimental project positions that

are authorized in § 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.

§ 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’’.

§ 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 preemployment 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.

§ 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

§ 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 § 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 § 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 § 641.310(d). There was

one suggestion to permit the use of

SCSEP funds for reasonable

accommodations. This suggestion is

incorporated into § 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 § 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.
26578 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

§ 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 § 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 § 641.311

(a)(3) and include a new definition at

§ 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 nonmaintenance 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).

§ 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

§ 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 hostagency 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.

§ 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 § 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’’.
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26579

§ 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.

§ 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.

§ 641.316 Individual development planrelated 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.

§ 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.

§ 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).

§ 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.

§ 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.

§ 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.

§ 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.

§ 641.402 Administrative requirements.

Paragraph (a) is amended by

providing the present citation for the

Department’s administrative

requirements. The former citation was
26580 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

41 CFR part 29–70 and the present

citation is 29 CFR part 95.

§ 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

§ 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.

§ 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 § 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).

§ 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.

§ 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).

§ 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 § 641.326(i) so all

items on this topic are in a single

section.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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 planrelated 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

§ 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.

§ 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
26582 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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

§ 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;
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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.]

§ 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.

§ 641.203 Soliciting applications for title V

funds.

The Department may solicit or request

organizations to submit applications for

funds.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.
26584 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

(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.

§ 641.209 Award of funds.

When the applicant is a unit of State

government or a public or private nonprofit 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

§ 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 § 641.102 and will

promote unsubsidized employment

opportunities.

§ 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 Englishspeaking, 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 grantsupported 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.

§ 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.

§ 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

§ 641.302(e). [Section 502(b)(1)(H) of the

OAA.]

§ 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26585

shall not exceed the low-income

standards defined in § 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 § 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

§ 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.

§ 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 reenrollment 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.

§ 641.307 [Reserved]

§ 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.

§ 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.
26586 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

(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.]

§ 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.]

§ 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

§ 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
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26587

enrollees, where required by law.

[Section 502(b)(1)(O) of the OAA.]

§ 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.

§ 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 § 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 skilltraining 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 skillsrelated 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 selfdevelopment training available from

sources other than title V of the OAA

during hours other than hours of

community service assignment.

(h) Joint programming, including coenrollment 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.

§ 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.

§ 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.

§ 641.316 Individual development planrelated 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 § 641.324.

§ 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.]
26588 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

§ 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.

§ 6541.319 [Reserved]

§ 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.

§ 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.

§ 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.

§ 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-inlaw, 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.

§ 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.

§ 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-
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 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.]

§ 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 § 641.407;

however, this exclusion does not relieve

the grantee from the matching

requirement, under § 641.407, which

applies to the entire grant.

Subpart D—Administrative Standards

and Procedures for Grantees and

Limitations on Federal Funds

§ 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.

§ 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.

§ 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 § 641.311(c).

§ 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;
26590 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

(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

§ 641.311, including hours of training

related to a community service

assignment, and the costs of fringe

benefits provided in accordance with

§ 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

§§ 641.304 and 641.305;

(2) Orientation of enrollees and host

agencies as provided in § 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 § 641.309;

(4) Development of appropriate

community service assignments as

provided in § 641.310;

(5) Supportive services for enrollees,

including transportation, as provided in

§ 641.312;

(6) Training for enrollees, including

tuition; and

(7) Development of unsubsidized

employment opportunities for enrollees

as provided in § 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.]

§ 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.

§ 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 § 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.

§ 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.]

§ 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

§ 641.405(b)(2).

§ 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)
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations 26591

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 crossexamination 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

§ 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 § 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

§ 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.

§ 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
26592 Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / Rules and Regulations

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