[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4654-4661]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1324]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 641
RIN 1205-AB60
Senior Community Service Employment Program; Final Rule,
Additional Indicator on Volunteer Work
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Employment and Training Administration (ETA) of the
Department of Labor (Department) issues this final rule to implement an
additional indicator for volunteer work in the Senior Community Service
Employment Program (SCSEP). Specifically, this rule amends our
regulations regarding Performance Accountability for title V of the
Older Americans Act (OAA) and corresponding definitions. These
regulations provide administrative and programmatic guidance and
requirements for the implementation of the SCSEP.
DATES: Effective date: This final rule is effective March 1, 2012. The
information collection requirements contained in this rule have been
submitted to OMB for approval; however, that approval is pending. Upon
OMB concluding its review, the Department will publish a subsequent
notice to announce OMB's action on the request and when the information
collections will take effect.
FOR FURTHER INFORMATION CONTACT: Judith Gilbert, Team Leader, Division
of National Programs, Tools and Technical Assistance, Office of
Workforce Investment, U.S. Department of Labor, 200 Constitution Avenue
NW., Room S-4209, Washington, DC 20210; telephone (202) 693-3046 (this
is not a toll-free number). Individuals with hearing or speech
impairments may access the telephone number above via TTY by calling
the toll-free Federal Information Relay Service at 1-(800)-877-8339.
SUPPLEMENTARY INFORMATION: The preamble to this Final Rule is organized
as follows:
I. Background--provides a brief description of the development of
the final rule.
II. Summary of the Comments--provides an overview of the comments
received.
III. Section-by-Section Review--summarizes and discusses changes to
the SCSEP regulations.
IV. Administrative Information--sets forth the applicable regulatory
requirements.
I. Background
The SCSEP, authorized by title V of the OAA, is the only Federally-
sponsored employment and training program targeted specifically to low-
income older individuals who want to enter or re-enter the workforce.
Participants must be unemployed and 55 years of age or older and have
incomes at no more than 125 percent of the Federal poverty level. The
program offers participants training at community service assignments
in public and non-profit agencies. The dual goals of the program are to
promote useful opportunities in community service activities and to
also move SCSEP participants into unsubsidized employment, where
appropriate, so that they can achieve economic self-sufficiency. The
Older Americans Act Amendments of 2006, Public Law 109-365 (2006 OAA),
amended the statute authorizing the SCSEP and necessitated changes to
the SCSEP regulations in 20 CFR part 641. A final rule promulgating
such changes was published on September 1, 2010. 75 FR 53786.
Previously, an interim final rule (IFR) on performance measures was
[[Page 4655]]
published on June 29, 2007, and a notice of proposed rulemaking (NPRM)
was published on August 14, 2008. This statute requires the Department
to issue definitions of any indicator of performance through
regulation. OAA Sec. 513(b)(3).
As established in the SCSEP Final Rule published September 1, 2010,
there are eight performance measures, of which six are core indicators
and two are additional indicators. 20 CFR 641.700(b) and (c). The OAA
requires the grantees and the Secretary of Labor to ``reach agreement
on the expected level of performance'' for the six core indicators, but
has no such requirement for the additional indicators. OAA Sec.
513(a)(2)(C).
In comments on the SCSEP IFR of June 29, 2007, and the SCSEP NPRM
of August 14, 2008, several commenters expressed concern that the
proposed measures were not appropriate to the SCSEP because they placed
an undue emphasis on employment outcomes and did not adequately reflect
the importance of community service. Grantees who commented said that
they felt the SCSEP performance measurement system did not adequately
value community service and that there was too much emphasis on
employment outcomes.
Although in the SCSEP Final Rule published on September 1, 2010, we
declined ``at this time'' to adopt any additional indicators beyond
those required by statute, after due consideration, the Department has
decided that the benefits of adopting an additional indicator of
volunteer work outweigh the additional burden of collecting the data
for the indicator. Under its authority in OAA Sec. 513(b)(2)(C) to add
additional indicators of performance, the Department solicited comments
on an additional performance indicator for volunteer work by publishing
the SCSEP NPRM on an Additional Indicator for Volunteer Work, on
November 23, 2010. 75 FR 71514. The additional indicator outlined in
the NPRM proposes volunteer work as a way to provide additional
information and emphasis on the community service goal of SCSEP. The
summary of the comments from that NPRM follows.
II. Summary of the Comments
We received 113 comments on the NPRM from State and local
governmental entities, non-profit organizations that host or help to
place participants, academic professionals in the field of gerontology
and several private citizens. Overall, comments on the NPRM were
extremely supportive of the NPRM, stating that the NPRM clearly
supports Congressional intent as reflected in the statement of purpose
and the dual goals of SCSEP.
The main reason cited by most commenters for supporting the
additional indicator was the large and rapidly growing body of research
about the important benefits of volunteer work for the elderly and the
positive impact their volunteer work has on the larger community.
Specifically, several commenters, including a director of a multi-year
research project on older adult civic engagement, cited a report from
the Corporation for National and Community Service, ``* * * `The Health
Benefits of Volunteering: A Review of Recent Research,' [which]
documents that those who volunteer have lower mortality rates, greater
functional ability, and lower rates of depression later in life than
those who do not volunteer.'' Commenters also noted that volunteerism
is more likely to occur where people are invited to volunteer, or where
volunteer options are presented to them, therefore improving the pool
of trained, active volunteers in communities across the country.
Finally, according to the comments, ``* * * [R]esearch consistently
shows that older volunteers in particular benefit greatly from improved
physical well-being, enhanced self-esteem, and a greater sense of
personal accomplishment.'' This assertion is supported by the research
cited above.\1\
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\1\ See generally, The Health Benefits of Volunteering, A Review
of Recent Research, The Corporation for National and Community
Service, 2007, available at: http://www.nationalservice.gov/about/role_impact/performance_research.asp#HBR.
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Three comments were submitted that opposed the proposed additional
indicator. These commenters voiced strong opposition to the additional
indicator, suggesting that the focus of SCSEP should be on the
unsubsidized employment goal alone, rather than a shared emphasis with
community service. These commenters also were concerned that
volunteerism would discourage employers from hiring participants when
they could continue to volunteer. However, the purpose of this
regulation is not to create an either/or situation, where we encourage
volunteer work over employment or vice versa. Rather, the point is to
ask grantees and/or sub-grantees to make a good faith effort to account
for any participants who choose to volunteer post-SCSEP entry,
regardless of whether they also have found unsubsidized employment. The
information culled from this additional indicator will provide further
information on both the impact of the SCSEP on the individual SCSEP
participants, and the impact of the SCSEP on local communities through
an increase in volunteerism by both current and former SCSEP
participants.
Finally, a few other commenters were concerned about whether ``a
measure of volunteerism as a program outcome may be misinterpreted by
policy makers'' because other ``successful programs administered by the
Corporation for National and Community Service are being operated at a
considerably lower unit cost.'' Essentially, these commenters are
concerned that the SCSEP budget will suffer because, in their view, the
reason for existing support from lawmakers is based entirely on SCSEP's
``outstanding record of placing the hardest to serve older workers in
employment and providing paid community service opportunities to those
enrolled.'' The Department understands this concern and agrees that an
important connection exists between SCSEP's outstanding record of
placement and its continued funding by Congress. However, as discussed
above, the OAA laid out dual goals for the SCSEP: unsubsidized
employment and community service. It is appropriate to consider the
success of the program in achieving both of these goals. Consequently,
the Department believes that this volunteerism indicator will reinforce
the value of the community service aspect of SCSEP.
The Department acknowledged in the September 1, 2010 Final Rule
that unsubsidized employment is not a suitable or appropriate outcome
for every SCSEP participant, and that while our participants are low-
income and in need of financial support, being employed may not be an
appropriate or achievable outcome for every individual participant.
Rather, because community service is an equally important goal of
SCSEP, as envisioned by Congress in the OAA, the Department is
following Congress' lead by collecting information about how
participation in SCSEP community service leads to continued service to
the community after participants exit SCSEP. DOL finds this information
valuable not only for those individuals for whom unsubsidized
employment post-SCSEP is not an appropriate or achievable outcome, but
also for those who do obtain unsubsidized employment. We are not
collecting information only for those who volunteer after exit without
having a job; rather, we are collecting information regardless of
whether the participant also has found unsubsidized employment.
We discuss the more specific substantive comments received on the
[[Page 4656]]
NPRM in Section III below. Section III does not include discussion of
those provisions that were not the subject of a comment, or that were
not revised for technical reasons. We have adopted such provisions as
proposed, without further discussion.
III. Section-by-Section Review
In this section, we discuss the comments on specific provisions of
the proposed regulation, our responses to them and any changes to the
regulations that we made as a result of the comments.
Subpart A--Purpose and Definitions
What definitions apply to this subpart? (Sec. 641.140)
Section 641.140 of the SCSEP regulations provides definitions for
the SCSEP, including definitions relevant to the SCSEP performance
measures and indicators. The NPRM proposed to amend the definitions in
Sec. 641.140 to accommodate a new additional indicator in Sec.
641.710. The NPRM proposed to add ``entry into volunteer work'' to the
definition of ``additional indicators.'' The existing regulations
provide that the only additional indicators are the two required by the
statute: (1) retention in unsubsidized employment for 1 year; and (2)
the satisfaction of participants, employers and their host agencies
with their experiences and the services provided. The term ``additional
indicators'' now would include three indicators.
This Final Rule amends the proposed rule to add a new definition of
``volunteer work'' to Sec. 641.140 for clarity and uniformity, so that
all grantees understand and use the same definition, all seniors are
treated the same, and all data we receive are comparable from grantee
to grantee. The original language of this definition in the NPRM
referred only to ``a public agency of a State, local government or
intergovernmental agency, or for a charity or similar nonprofit
organization.'' One commenter suggested that we add specific language
recognizing that volunteer work can occur in faith- or community-based
organizations, since they also provide significant community service
opportunities. We agree. Although the proposed definition was not
intended to exclude volunteer work with faith- or community-based
organizations, for the sake of clarity we have amended the definition
to include faith- or community-based organizations as among those
entities for which volunteer work may be performed.
Upon further reflection, for data collection purposes, we also have
broadened the language of the definition to make clear that it includes
informal volunteer work that an individual performs on his or her own
and not through an organization. An example would be a woman who
invites neighborhood girls to her home after school for sewing classes.
This type of informal volunteering is fairly common and is as likely to
have positive effects on those who volunteer as is a volunteer activity
conducted through non-profit organizations. This informal volunteer
work does not include service performed for a member of the
individual's own family or of the individual's own household since the
self-interest of the individual makes it impossible to determine
whether it is being performed with the intent to help others, which is
the essence of volunteer work. Because the circumstances under which
participants may enter into informal volunteer activities may vary
widely, we will not count such activities in the performance indicator.
But we are interested in capturing the positive impact on participants
who enter into informal volunteer activities, so we will collect
information about such volunteer activities. Therefore, these type of
informal volunteer activities will not be included in the calculation
of the ``entry into volunteer indicator'' under Sec. 641.140. The
Department will collect and share information about the informal
volunteer work for information purposes only.
In another change, we have deleted the portion of the definition
that reads: ``[v]olunteer work does not include work a former
participant performs that is similar or identical to work the former
participant performed for compensation for the organization.'' From a
reading of the comments, it is apparent that this language was
confusing, and detracted from our primary goal of creating a definition
of ``volunteer'' that is consonant with that concept as it is applied
under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., a
statute that is administered and enforced by the Department's Wage and
Hour Division. SCSEP has always prohibited participants from
volunteering at the host agency at which they are performing their
community service assignment. This deletion is meant to clarify that
this prohibition does not extend to volunteering at the host agency
after exit from the program, nor does it prohibit a former SCSEP
participant from using the skills learned in a SCSEP placement when
later volunteering for another organization.
The definition, as revised, now reads that volunteer work means
``(1) for purposes of Sec. 641.140 of this part, activities or work
that former participants perform for a public agency of a State, local
government or intergovernmental agency, or for a charity or not-for-
profit organization, including faith-based or community-based
organizations, for civic, charitable, or humanitarian reasons, and
without promise, expectation, or receipt of compensation; (2) for
informational reporting purposes, volunteer work also can include
similar activities that a former participant performs on his or her own
that are not conducted through a formal organization or agency as long
as those activities are not performed for a member of the former
participant's family or of the individual's own household. These types
of volunteer activities will not be included in the calculation of the
``entry into volunteer work'' indicator under Sec. 641.140.'' This
definition closely follows the concept of a volunteer as it is used
under the FLSA, which recognizes the generosity and public benefit of
volunteering. Encouraging volunteerism, however, must be balanced with
the fundamental purpose of the FLSA, which is to prevent covered
employers from gaining an unfair competitive advantage through payment
of substandard wages. See Tony and Susan Alamo Found. v. Sec'y of
Labor, 471 U.S. 290, 296 (1985).
Grantees, sub-grantees and host agencies should be aware that the
FLSA, and in particular its definitions of ``employee'' and ``employ,''
has been interpreted quite broadly to effectuate its remedial purposes.
See, e.g., Alamo Found., 471 U.S. at 299. For example, the Department
has consistently stated that individuals cannot volunteer for for-
profit entities, or volunteer in the business and commercial activities
of a non-profit organization when those activities are covered by the
FLSA. Likewise, so-called volunteer work that an individual performs
for a former employer will be closely scrutinized to determine whether
an employment relationship exists, particularly if the individual is
performing the same services for which he or she was previously
employed. See, e.g., 29 CFR 553.103.
We recognize that the new indicator for entered volunteer work is
based on self-report by former participants and that grantees are not
in a position to monitor the conditions in the nonprofit organizations
in which former participants perform volunteer work. However, grantees,
sub-grantees, and nonprofit organizations should consult with their
nearest Wage and Hour Division office if they have questions about
whether activities performed by
[[Page 4657]]
current or former SCSEP participants constitute employment under the
FLSA.
Additional information on the FLSA definitions of ``employer,''
``employee,'' and ``employ'' is available in the Wage and Hour's Field
Operations Handbook Chapter 10 (http://www.dol.gov/whd/FOH/FOH_Ch10.pdf). For information on finding local Wage and Hour Division
offices, please visit: http://www.dol.gov/whd.
Subpart G--Performance Accountability
What performance measures/indicators apply to SCSEP grantees? (Sec.
641.700)
20 CFR 641.700 separates SCSEP indicators into two categories: core
and additional. The NPRM proposed to amend Sec. 641.700(a) to add a
new additional indicator. Additional indicators are not subject to
goal-setting and therefore are not subject to corrective action.
However, the statute does mandate that the Department annually publish
each grantee's performance on additional indicators. In addition, the
NPRM also proposed to amend paragraph (c)(3), which currently only
lists the additional indicators of employment retention and customer
satisfaction, to reflect that the Secretary has designated entry into
volunteer work as an additional indicator.
DOL intends for the new indicator of ``entered volunteer work'' to
parallel the ``entered employment'' measure, which grantees have been
reporting since 2004. SCSEP grantees can capture much of the
information required for this indicator at the time of exit and need
only confirm the participant's engagement in volunteer work at any time
during the quarter after the exit quarter, in the same way as grantees
have long captured the data for entered employment at the first follow-
up after exit. We note that during this brief follow-up with former
participants, grantees may also learn if the participants have obtained
unsubsidized employment, of which the grantee was not previously aware,
and for which placement the grantee also may obtain entered employment
credit. Like the entered employment measure, which excludes
participants who were employed at the time of enrollment, the new
indicator excludes those who are engaged in volunteer work at the time
of entry into the SCSEP. However, as is true with the entered
employment measure, grantees will collect data on several aspects of
the volunteer work, including whether the participant had been
performing volunteer work at the time of entry into the SCSEP or during
the community service assignment, and information about the type of
volunteer work performed after exit, the setting in which it is
performed, and the number of hours of volunteer work per week. DOL will
collect data on these characteristics in the SCSEP data collection
system so they can be used for analysis and additional reporting, but
DOL will not use the data to measure the performance of the grantee.
The actual measure itself will report only on the percent of
participants who were not volunteering at the time of enrollment but
are volunteering after exit.
Several commenters suggested that the regulatory text be changed to
delete ``entry into'' and substitute with ``new or continued
participation in'' volunteer work. A number of commenters appeared to
mistakenly interpret the exclusion of individuals already volunteering
from the indicator as an exclusion from SCSEP eligibility and suggested
we remove the restriction that participants cannot be engaged in
volunteer activity upon enrollment in SCSEP. One commenter raised
concerns about who might be excluded from the broad definition, asking,
``Would everyone who volunteered at the time of entry into SCSEP be
excluded regardless of type/extent of volunteerism?'' Another commenter
said that ``[s]ince I have observed many seniors who volunteer while
also doing paid work, I would recommend that you consider not imposing
the restriction that SCSEP enrollees not be engaged in volunteering
work before leaving the program.''
In response to these comments, we are explaining in this preamble
that the new indicator will have no impact on eligibility and
explaining why the indicator does not count those who were volunteering
before enrollment. As stated earlier, DOL will collect data about those
individuals who were volunteering before SCSEP entry and will also
share this data when it reports the additional indicator of entry into
volunteer work, which does not include those who were volunteering
prior to entry. The exclusion of participants who were doing volunteer
work at the time of enrollment applies only to determining who is in
the pool of participants counted in the additional indicator of entry
into volunteer work. It has nothing to do with eligibility for SCSEP.
The purpose of the new indicator is to determine what effect SCSEP
participation has on former participants' desire to remain active and
continue their community service through volunteer work. There is
little value in collecting a simple count of SCSEP participants who
volunteer after exit unless we know what their status was before
enrollment. Without that information, we are merely reporting something
about the individuals who enrolled, while not necessarily revealing the
impact of SCSEP. Specifically, if we do not narrow the pool of
participants to exclude those participants doing volunteer work already
when they enrolled in SCSEP, then we are unable to correlate their
volunteerism after SCSEP with their participation in SCSEP.
The Department proposed this additional indicator to identify
volunteer work initiated after enrollment so that we can define the
impact that SCSEP has on the lives of participants, not only during but
also after exit from the program. Therefore, individuals who reported
having volunteered upon enrollment are not included in any way in the
calculation of the volunteer work indicator. For these reasons, we do
not want to include these individuals in the additional indicator.
Some commenters who objected to the language about ``entry into''
volunteer work also misunderstood the purpose and effect of the new
indicator. Grantees are required by the SCSEP Final Rule published on
September 1, 2010 to assist participants in finding unsubsidized
employment if that goal is feasible for them. The core measure of
entered employment provides an additional incentive for grantees to
provide this assistance and to claim credit for unsubsidized placements
whenever possible. However, if unsubsidized employment is not feasible,
or if participants are due to exit without having secured unsubsidized
employment, grantees are obligated to assist participants in achieving
other forms of self-sufficiency, which includes opportunities to
continue or start volunteer work after the SCSEP participation ends.
This volunteer service is not necessarily an alternative to employment;
indeed, it may occur concurrently with unsubsidized employment. The new
indicator merely captures volunteer service where it exists and reports
it as an additional program outcome.
How are the performance indicators defined? (Sec. 641.710)
The NPRM proposed to establish the new additional indicator in
Sec. 641.710 by adding a new paragraph to (b)(3), which defines the
``entry into volunteer work'' measure. This Final Rule adopts the
additional indicator as proposed. As set forth above, DOL intends for
the new indicator to parallel the existing core measure of entered
employment, which SCSEP has been reporting since 2004. The denominator
for the new indicator
[[Page 4658]]
consists of all participants who exit during a quarter, and the
numerator consists of all those participants who are engaged in any
volunteer work in the quarter after they exited. The indicator entirely
excludes participants who were engaged in volunteer work at the time of
entry into the SCSEP: such participants are neither in the denominator
nor in the numerator. As explained above, DOL will collect and report
the data for such individuals separately and not as an additional
program outcome.
In order to provide context for the new indicator and to make it
more useful, grantees will enter into the SCSEP data system information
on the characteristics of the volunteer work (as they currently do for
the characteristics of unsubsidized employment), including the number
of hours per week and whether participants were engaged in volunteer
work at the time of entry into the SCSEP or during their community
service assignment, so that it will be possible to determine which
participants are newly engaged in volunteer work after exiting as a
result of participating in the SCSEP and which are continuing to do
volunteer work. Later in this preamble, the Paperwork Reduction Act
(PRA) section sets forth the data elements that DOL will capture in
conjunction with this new indicator.
Several commenters suggested that volunteer work should be on the
list of excluded exits for the Common Measures, described in Training
and Employment Guidance Letter (TEGL) No. 17-05, so that it is not
considered a negative exit but rather a neutral outcome, and so that it
would keep documentation and follow-up required of sponsors to a
minimum. Since the additional indicator supplements entered employment
and is not an alternative to it, making volunteer service an additional
exclusion under the Common Measures TEGL is not necessary. Whether an
exiter who engages in volunteer work after exit qualifies for an
exclusion under the TEGL is determined by the reason for the exit, not
by how the participant chooses to spend her time after exit. The TEGL
addresses only the core measure of entered employment and has nothing
to do with the additional indicators.
Other commenters said volunteer service should be measured in ways
that parallel the other additional indicators, rather than the core
indicators. For example, one commenter recommended that
``[v]olunteering should be measured in a manner parallel to * * *
`customer satisfaction' or `retention in unsubsidized employment for 1
year' and should not parallel the measurement of a core indicator such
as `entered employment.' '' One commenter expressed concern ``that in
an attempt to `parallel' the entered employment measure, resulting data
collection requirements will be unnecessarily burdensome when
implemented.'' Another commenter suggested ``a more simplistic process
that allows grantees to track participants 30 days after exit'' and
that the Department should ``provide additional guidance on documenting
such exits in SPARQ'' before publishing this Final Rule, as well as
reduce paperwork ``by allowing grantees to utilize the same
documentation for the `entered employment' performance measure as
acceptable documentation for [v]olunteerism.'' Further, another
commenter recommended that the indicator should include ``quantifying
community satisfaction with the SCSEP volunteer and the number of hours
that are donated to the community.''
We understand the commenters' concerns, but those who suggest that
we should follow the approach of the additional indicators rather than
the core indicators overlook that the customer satisfaction measures
employ a well defined and universally used definition (the American
Customer Satisfaction Index, the ACSI) and that the indicator for
retention at one year employs a definition that closely follows the
common measures. Because grantees are familiar with the entered
employment indicator as a useful and meaningful way to capture
information about SCSEP participants, we believe that paralleling that
indicator to capture the rate of volunteer work is the most effective
means to evaluate both the impact of SCSEP on continuing service to the
community and enhanced quality of life for participants.
As one commenter suggested, the additional data collection that
will accompany the new indicator will enable the Department to report
the number of volunteer hours performed post-exit along with an
estimate of their monetary value to the organizations and communities
in which the service is performed, by multiplying the hours by the
standard monetary value of volunteer work. Since the participant
customer satisfaction survey already includes exiters in its sample, it
may also be feasible to add a few additional questions to this survey
in order to determine the satisfaction of exiters with their volunteer
work and the impact of this volunteer work on their quality of life. We
agree that such data would increase the value and usefulness of the
indicator because DOL would be able to use this information to enhance
the various reports and analyses of these issues that it routinely
conducts.
Some commenters also were concerned about the entry into volunteer
work definition's impact on grantees, not simply of the data collection
burden, but also in helping participants seeking post-SCSEP volunteer
positions overcome barriers to service. Commenters stated that grantees
would need training on volunteerism to better assist older adults, and
that without training, ``it will be difficult to connect participants
to opportunities well-suited and can be discouraging for some. Barriers
to volunteerism exist just as they do in the SCSEP such as lack of
transportation and location, working for free and not receiving a
paycheck, conflicts in scheduling (much like those used for breaks in
participation), care giving, costs associated with proper attire, and
mismanagement of expectations of assigned tasks.'' The Department
recognizes these concerns but notes that grantees already have an
obligation under the SCSEP Final Rule published on September 1, 2010 to
prepare and implement transition plans for participants who are exiting
the program without having secured unsubsidized employment. 20 CFR
641.570(a)(2). As part of the transition plan, grantees are expected to
assess the participants' circumstances, including their degree of
social engagement, and to assist participants in identifying volunteer
activities that meet their needs and interests and that may serve to
enhance their physical and emotional well-being. The Department already
has provided considerable training and resources to the grantees on how
to meet that obligation, and the Department intends to offer additional
training and technical assistance as needed. The new additional
indicator of entry into volunteer service provides a degree of credit
to the grantees for doing this work, but it in no way imposes a new
programmatic responsibility on them.
IV. Administrative Information
A. Regulatory Flexibility Analysis, Executive Order 13272, Small
Business Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605(b) of the RFA allows
an agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Section 601 of
[[Page 4659]]
the RFA defines small entities to include small businesses, small
organizations, including not-for-profit organizations, and small
governmental jurisdictions. Section 601(4) defines a small organization
as any not-for-profit enterprise that is independently owned and
operated and not dominant in its field.
SCSEP includes 74 grantees, and approximately 970 sub-recipients
and sub-sub-recipients. More than 50 of the grantees are States, State
agencies, or territories, and are not small entities as defined within
the RFA. The vast majority of the rest are non-profit organizations,
many of which may be categorized as small entities for RFA purposes.
The Department does not have a precise number of small entities that
may be impacted by this rulemaking.
The Department has determined that the economic impact of this
Final Rule is not likely to be significant for any of these small
entities, because these regulations will result in negligible
additional costs to grantees and sub-recipients. This Final Rule
involving SCSEP performance measures will have only a minor information
collection impact on a number of small entities. DOL has addressed this
burden by submitting to the Office of Management and Budget (OMB) a
request for approval for changes to three of the four reporting forms
before submission of this Final Rule. DOL estimated the increase in
paperwork burden to be 1000 hours. The SCSEP is designed so that SCSEP
funds cover the vast majority of the costs of implementing this
program, including the costs of reporting the volunteer work indicator.
We reached a similar conclusion in our review of the August 14, 2008
NPRM. At that time, the Department requested public comments on the
potential economic impact that the rule may have on small entities and
did not receive any comments on this question. For these reasons, the
Department has determined and certifies that this Final Rule will not
have a significant economic impact on a substantial number of small
entities.
OMB has also determined that this rule is not a ``major rule'' for
purposes of the Small Business Regulatory Enforcement Fairness Act
(SBREFA), Public Law 104-121 (1996) (codified in scattered sections at
5 U.S.C.). SBREFA requires agencies to take certain actions when a
``major rule'' is promulgated. 5 U.S.C. 801. SBREFA defines a ``major
rule'' as one that will have an annual effect on the economy of $100
million or more; that will result in a major increase in costs or
prices for, among other things, State or local government agencies; or
that will significantly and adversely affect the business climate. 5
U.S.C. 804(2).
This Final Rule will not significantly or adversely affect the
business climate. First, the rule will not create a significant impact
on the business climate because, as discussed above, SCSEP grantees are
governmental jurisdictions and not-for-profit enterprises. Moreover,
any secondary impact of the program on the business community would not
be adverse. To the contrary, we believe the SCSEP assists the business
community by training older Americans to participate in the workforce
and benefits the overall community by providing volunteer work
opportunities.
The Final Rule will also not result in a major increase in costs or
prices for States or local government agencies. The SCSEP has no impact
on prices. Finally, this Final Rule will not have an annual effect on
the economy of $100 million or more.
Therefore, because none of the definitions of ``major rule'' apply
in this instance, this Final Rule is not a ``major rule'' for SBREFA
purposes.
B. Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
As stated in the SBREFA analysis, this Final Rule will not have an
annual effect on the economy of $100 million or more. However, the rule
does raise novel policy issues about implementing an additional
performance indicator on volunteer work in the SCSEP. The key policy
change reinforces the dual purpose of the SCSEP by counting those who
begin performing volunteer work--or who perform volunteer work in lieu
of or in addition to unsubsidized employment--after participating in
SCSEP. Therefore, the Department has submitted this Final Rule to OMB.
C. Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
in the Federal Register a summary of the collection of information and
a brief description of the need for and proposed use of the information
and requesting public comments. 44 U.S.C. 3507.
Because the 2006 OAA necessitated changes in many of the SCSEP
forms used by grantees before the effective date of the Act, in July
2007 the Department submitted to OMB for review and approval, in
accordance with PRA Sec. 3507(d), a modification to the SCSEP
information collection requirements. The four-year strategy newly
required by the 2006 OAA (see Sec. 641.302) was accounted for in that
PRA submission. OMB approved the SCSEP PRA submission (OMB control
number 1205-0040) in October 2007 and again (without the added form and
burden estimate for the volunteer work indicator) on April 18, 2011,
extending the expiration date through April 30, 2014. For more
information on this request, please visit: www.reginfo.gov. This Final
Rule introduces new information collection requirements and thus
requires a PRA submission.
A Federal agency generally cannot conduct or sponsor a collection
of information, and the public is generally not required to respond to
an information collection, unless it is approved by the OMB under the
PRA and displays a currently valid OMB Control Number. In addition,
notwithstanding any other provisions of law, no person shall generally
be subject to penalty for failing to comply with a collection of
information if the collection of information does not display a valid
OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
The Department has submitted the information collection contained
in this final rule for review under the PRA to the OMB, as part of a
revision to Control Number 1205-0040; however, OMB has not yet
completed its review. The Department will publish an additional Notice
to announce OMB's action on the request and when the information
collection requirements will take effect.
Public Comments:
In the NPRM stage, the Department requested comments on the burdens
imposed by information collections contained in this rule. The
Department received eleven comments expressing concern about the burden
on grantees and/or sub-grantees to collect information about former
participants' volunteer activities post-SCSEP. The Department shares
this concern and intends to preserve a balance between the value of
information gained from
[[Page 4660]]
this additional indicator and the burdens of extra data collection.
This indicator is an additional indicator, not a core indicator, and
thus has no goal-setting, no data validation, and no negative
repercussions attached to it for the sponsors involved. This additional
indicator is designed so that sponsors can obtain the required
information during intake, at exit, and through brief and non-
burdensome follow-up efforts with participants after their SCSEP
service. While the Department understands that sponsors may not be able
to reach every participant after exit from the program, we find that
the data obtained through low burden follow-up efforts will provide
valuable information to justify the minimal increase in burden.
While much of the information provided to OMB in support of the
information collection request appears in this preamble, interested
parties may obtain a copy of the full supporting statement by sending a
written request to the mail address shown in the ADDRESSES section at
the beginning of this preamble or by visiting the http://www.reginfo.gov/public/do/PRAMain Web site.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4, 2
U.S.C. 1501 et seq.) requires an agency to ``prepare a written
statement'' providing specific information if the rulemaking ``is
likely to result in promulgation of any rule that includes any Federal
mandate that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more'' in any 1 year. Since the Department has determined
that this Final Rule does not include any Federal mandate that may
result in increased expenditure by State, local, and tribal
governments, or by the private sector, of more than $100 million, it
has not prepared the written statement under section 1532 of the UMRA.
E. Executive Order 13132
The Department has reviewed this Final Rule in accordance with
Executive Order 13132 on federalism, and has determined that the Final
Rule does not have ``policies that have federalism implications.'' As
explained at Sec. 1(a) of the Executive Order, `` `Policies that have
federalism implications' refers to regulations, legislative comments or
proposed legislation, and other policy statements or actions that have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.'' This
rule does not have such ``substantial direct effects'' because it does
not preempt any State law, nor interfere with functions essential to
the State's separate and independent existence, nor impose any form or
method of program administration on the States. In addition, this new
measure is reasonably related to the purpose of the SCSEP program,
which is a grant program that flows directly from the 2006 OAA, in
which State participation is voluntary. Therefore, this Final Rule does
not constitute a ``substantial direct effect'' on the States, nor will
it alter the relationship, power, or responsibilities between the
Federal and State governments; the relationship, power, or
responsibilities were already established in the authorizing
legislation.
F. Executive Order 13045
Executive Order 13045 concerns the protection of children from
environmental health risks and safety risks. This Final Rule addresses
the SCSEP, a program for older Americans, and has no impact on safety
or health risks to children.
G. Executive Order 13175
Executive Order 13175 addresses the unique relationship between the
Federal Government and Indian tribal governments. The order requires
Federal agencies to take certain actions when regulations have ``tribal
implications.'' Required actions include consulting with tribal
governments before promulgating a regulation with tribal implications
and preparing a tribal impact statement. The order defines regulations
as having ``tribal implications'' when they have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The Department has reviewed this Final Rule and concludes that it
does not have tribal implications. Although tribes are sub-recipients
of national SCSEP grant funds, this rule will not have a substantial
direct effect on those tribes because, as outlined in the Regulatory
Flexibility section of the preamble, there are only minor additional
costs associated with implementing this Final Rule and these are
covered by grant funds. This regulation does not affect the
relationship between the Federal Government and the tribes, nor does it
affect the distribution of power and responsibilities between the
Federal Government and tribal governments.
Accordingly, we conclude that this Final Rule does not have tribal
implications for the purposes of Executive Order 13175.
H. Environmental Impact Assessment
The Department has reviewed this Final Rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 CFR part 1500), and the Department's NEPA
procedures (29 CFR part 11). This Final Rule will not have a
significant impact on the quality of the human environment, and thus
the Department has not prepared an environmental assessment or an
environmental impact statement.
I. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681), requires the Department to assess the impact of this Final Rule
on family well-being. An agency that determines that the rule will have
a negative affect on families must support the rule with an adequate
rationale.
The Department has assessed this Final Rule and determines that it
will not have a negative effect on families. Indeed, we believe the
SCSEP strengthens families by providing job training and support
services to low-income older Americans.
J. Executive Order 12630
Executive Order 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, is not relevant to this
Final Rule because the rule does not involve implementation of a policy
with takings implications.
K. Executive Order 12988
This Final Rule has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The regulation has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
[[Page 4661]]
L. Executive Order 13211
Executive Order 13211 is not relevant to this Final Rule because
the rule will not have a significant adverse effect on the supply,
distribution, or use of energy.
M. Plain Language
The Department drafted this rule in plain language.
List of Subjects in 20 CFR Part 641
Aged, Employment, Government contracts, Grant programs--Labor,
Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Department of Labor
amends 20 CFR part 641 as follows:
PART 641--PROVISIONS GOVERNING THE SENIOR COMMUNITY SERVICE
EMPLOYMENT PROGRAM
0
1. The authority citation for part 641 continues to read as follows:
Authority: 42 U.S.C. 3056 et seq.
0
2. Amend Sec. 641.140 by revising the definition of ``additional
indicators'' and adding the definition of ``volunteer work'' to read as
follows:
Sec. 641.140 What definitions apply to this part?
* * * * *
Additional indicators mean retention in unsubsidized employment for
1 year; satisfaction of participants, employers and their host agencies
with their experiences and the services provided; entry into volunteer
work; and any other indicators of performance that the Secretary
determines to be appropriate to evaluate services and performance. (OAA
Sec. 513(b)(2)).
* * * * *
Volunteer work means:
(1) For purposes of Sec. 641.140 of this part, activities or work
that former participants perform for a public agency of a State, local
government or intergovernmental agency, or for a charity or not-for-
profit organization, including faith-based or community-based
organizations, for civic, charitable, or for humanitarian reasons, and
without promise, expectation, or receipt of compensation;
(2) For informational reporting purposes, volunteer work also can
include similar activities that a former participant performs on his or
her own that are not conducted through a formal organization or agency
as long as those activities are not performed for a member of the
former participant's family or of the individual's own household. These
types of volunteer activities will not be included in the calculation
of the ``entry into volunteer work'' indicator under Sec. 641.140.
* * * * *
0
3. Amend Sec. 641.700 by adding paragraph (c)(4) to read as follows:
Sec. 641.700 What performance measures/indicators apply to SCSEP
grantees?
* * * * *
(c) * * *
(4) The Secretary has designated entry into volunteer work as an
additional indicator.
* * * * *
0
4. Amend Sec. 641.710 by adding paragraph (b)(3) to read as follows:
Sec. 641.710 How are the performance indicators defined?
* * * * *
(b) * * *
(3) ``Entry into volunteer work'' is defined by the formula: Of
those not engaged in volunteer work at the time of entry into the
SCSEP, the number of such participants who perform volunteer work in
the first quarter after the exit quarter, divided by the number of such
participants who exit during the quarter.
Signed at Washington, DC, this 18th day of January 2012.
Jane Oates,
Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2012-1324 Filed 1-30-12; 8:45 am]
BILLING CODE 4510-FN-P