Senior Community Service Employment Program; Final Rule, 53786-53834 [2010-21139]

Agencies

• Employment and Training Administration
• DEPARTMENT OF LABOR

[Federal Register Volume 75, Number 169 (Wednesday, September 1, 2010)]
[Rules and Regulations]
[Pages 53786-53834]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21139]



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Part IV





Department of Labor





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Employment and Training Administration



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20 CFR Part 641



Senior Community Service Employment Program; Final Rule

Federal Register / Vol. 75 , No. 169 / Wednesday, September 1, 2010 / 
Rules and Regulations

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 641

RIN 1205-AB48 and RIN 1205-AB47


Senior Community Service Employment Program; Final Rule

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 
changes in the Senior Community Service Employment Program (SCSEP) 
resulting from the 2006 Amendments to title V of the Older Americans 
Act, and to clarify various policies. These regulations provide 
administrative and programmatic guidance and requirements for the 
implementation of the SCSEP.
    The Department issued an interim final rule (IFR) implementing 
changes in the SCSEP performance accountability regulations. We issued 
a notice of proposed rulemaking (NPRM) proposing changes to the 
remainder of the SCSEP regulations on August 14, 2008. This final rule 
takes into consideration comments received on the IFR and the NPRM.

DATES: Effective date: This final rule is effective October 1, 2010.

FOR FURTHER INFORMATION CONTACT: Judith Gilbert, Team Leader, Division 
of Adult Services, 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 rule.
II. Summary of the Comments--provides an overview of the comments 
received.
III. Section-by-Section Review--discusses comments on the SCSEP 
regulations.
IV. Administrative Information--sets forth the applicable regulatory 
requirements.

I. Background

    The Older Americans Act (OAA) Amendments of 2006, Public Law 109-
365 (2006 OAA) were signed into law on October 17, 2006. This law 
amended the statute authorizing the SCSEP and necessitates changes to 
the SCSEP regulations. The 2006 OAA required regulations that address 
performance measures by July 1, 2007. To meet this deadline, the 
Department promulgated an Interim Final Rule on June 29, 2007. 72 FR 
35832. We issued an NPRM on August 14, 2008, to propose changes to the 
remainder of the SCSEP regulations in light of the 2006 OAA. 73 FR 
47770. We invited comments on both the IFR and the NPRM, and thoroughly 
evaluated those comments in the process of developing this final rule.
    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, 55 years of age or older, and have 
incomes no more than 125 percent of the Federal poverty level. The 
program offers participants community service assignments and training 
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. In the 
2006 OAA, Congress expressed its sense of the benefits of the SCSEP, 
stating, ``placing older individuals in community service positions 
strengthens the ability of the individuals to become self-sufficient, 
provides much-needed support to organizations that benefit from 
increased civic engagement, and strengthens the communities that are 
served by such organizations.'' OAA Sec.  516(2).
    Although some of these regulations remain unchanged from the 2004 
SCSEP final rule, this final rule does include certain significant 
changes to the program. Perhaps most notably, the new 48-month 
limitation on participation (OAA Sec.  518(a)(3)(B); Sec.  641.570 of 
this part), and the increase in available funds for training and 
supportive services (OAA Sec.  502(c)(6)(C); Sec.  641.874 of this 
part).
    The 2006 OAA also increases the accountability of national grantees 
by clearly requiring a competitive process for grant awards. This final 
rule implements the statute's requirement that the national SCSEP 
grants be re-competed regularly, generally every four years. OAA Sec.  
514(a); Sec.  641.490(a) of this part. This final rule also implements 
the statute's requirement that a State compete its SCSEP grant if the 
current State grantee fails to meet its core performance goals for 
three consecutive years. OAA Sec.  513(d)(3)(B)(iii); Sec.  641.490 of 
this part.
    In addition, the 2006 OAA establishes new funding opportunities for 
pilot, demonstration, and evaluation projects (OAA Sec.  502(e); Sec.  
641.600-640 of this part), expands the priority-for-service categories 
(OAA Sec.  518(b); Sec.  641.520 of this part), and modifies how the 
program determines income eligibility (OAA Sec.  518(a)(3)(A); Sec.  
641.510 of this part).
    Coordination between the SCSEP and the programs under the Workforce 
Investment Act of 1998 (WIA), 29 U.S.C. 2801 et seq., continues to be 
an important objective of the 2006 OAA. With the enactment of WIA in 
1998, the SCSEP became a required partner in the workforce investment 
system. 29 U.S.C. 2841(b)(1)(B)(vi). In 2000, Congress amended the 
SCSEP to require coordination with the WIA One-Stop delivery system 
(Pub. L. 106-501, Sec.  505(c)(1)), including reciprocal use of 
assessment mechanisms and Individual Employment Plans (Pub. L. 106-501, 
Sec.  502(b)(4)). In 2006, Congress continued both the requirement to 
coordinate at OAA Sec.  505(c)(1) and the reciprocal use of assessments 
at OAA Sec.  502(b)(3)(B). The underlying notion of the One-Stop 
delivery system is the coordination of programs, services, and 
governance structures, so that the customer has access to a seamless 
system of workforce investment services.
    Consistent with current SCSEP practice, both WIA and the 2006 OAA 
require any grantee operating a SCSEP project in a local area to 
negotiate a Memorandum of Understanding (MOU) with the Local Workforce 
Investment Board. WIA Sec.  121; OAA Sec.  511(b); see also OAA Sec.  
502(b)(1)(O). The MOU must detail the SCSEP project's involvement in 
the One-Stop delivery system. In particular, SCSEP grantees and sub-
recipients must make arrangements to provide their participants, 
eligible individuals the grantees are unable to serve, as well as 
SCSEP-ineligible individuals, with access to services available in the 
One-Stop centers. OAA Sec. Sec.  510, 511; Sec. Sec.  641.210, 641.220, 
and 641.230 of this part.

II. Summary of the Comments

    We have carefully reviewed all of the comments received in response 
to both the IFR and to the NPRM. We received 1,505 comments during the 
comment periods, of which 364 were unique, 959 were duplicates or 
``form'' letters, and one was a petition with 182 signatures. The 
commenters fell into a variety of

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categories that reflect the broad range of constituencies for the SCSEP 
program, including State and national grantees, program non-profit host 
agencies, area agencies on aging, WIA providers, and program 
participants.
    A number of commenters requested additional time to review and 
submit comments on the changes proposed in the NPRM. Many of these 
commenters requested an additional 60 days to determine the impact on 
SCSEP stakeholders and participants. Several commenters mentioned that 
many who will be impacted by the proposed changes are not yet even 
aware of them. Others mentioned that they have had insufficient time to 
contact host agencies and obtain their input. One commenter pointed out 
that the SCSEP system is a diverse and complex network of agencies, and 
said that insufficient time had been allowed to seek input from this 
network. One commenter said additional time was required to evaluate 
the impact of the recent economic downturn on SCSEP participants. A few 
others suggested that the Department put the proposed regulations aside 
and work collaboratively with the grantee community and with the 
Administration on Aging to draft new regulations.
    We reviewed these requests and concluded that they presented no 
novel or difficult issues justifying an extension of the comment period 
or a withdrawal of the proposed rule In this case, the Department 
provided 60 days for notice and comment. We believe the time allotted 
was more than sufficient to review this regulation given that most of 
the rule simply reflects changes required by the 2006 OAA, or is a 
continuation of policies that were published in the 2004 Final Rule. 
Accordingly, the Department did not extend the comment period.
    The more substantive comments touched on almost every section of 
the proposed regulation. These comments are discussed in Section III 
below. In addition, the Department has made technical changes to the 
regulatory text for clarity and consistency. Provisions that were not 
the subject of a comment or that were not revised for technical reasons 
have been adopted as proposed and are not discussed in Section III.

III. Section-by-Section Review

    In this section, we discuss the comments, our responses to them and 
any changes to the regulations that we made as a result of comments. In 
the course of reviewing the NPRM, we have made some technical or 
grammatical changes to the regulatory text, which are not intended to 
change the meaning or intent of the regulatory provisions. Generally, 
we do not discuss these types of changes in this section.

Subpart A--Purpose and Definitions

What is the SCSEP? (Sec.  641.110)
    This section of the final rule describes the SCSEP as it is defined 
by the 2006 OAA. We received several comments on this provision. Those 
commenters expressed concern about using the term ``employment'' in the 
phrase ``community service employment assignment'' as referenced in 
Sec. Sec.  641.110 and 641.120 of the rule. A few commenters found that 
adding the term ``places undue confusion on both grantees and 
participants.'' As a result, these commenters recommended that the 
regulation only refer to ``employment'' in the context of unsubsidized 
employment. Other commenters stated that changing the name would 
reverse grantee efforts to promote SCSEP as a training program rather 
than an employment program.
    The Department accepts this comment. The regulation has been 
revised to use the term ``community service assignment'' throughout. 
The term ``community service employment'' in the rule is consistent 
with the term as it is defined in the 2006 OAA at Sec.  518(a)(2). To 
remedy any potential confusion, the Department notes that the terms 
``community service assignment'' and ``community service employment 
assignment'' are the same in that they both represent part-time, 
temporary job training through a work experience that is paid with 
grant funds. Therefore, the Department recommends that grantees 
continue to clarify the nature of the community service assignment with 
participants, which should alleviate any potential confusion.
    One final comment came from a program participant who stated that 
the program should allow for more than part-time hours so that 
participants are able to further develop and improve their skills. We 
are unable to accommodate the participant's request, because the OAA at 
Sec.  518(a)(2) defines ``community service employment'' as ``part-
time, temporary employment.'' We are pleased to receive comments from 
our program participants, including this commenter, and note that 
developing and improving skills does not have to end with SCSEP. There 
are other no-cost training resources available to seniors (including, 
in some cases, through the One-Stop delivery system) that we hope 
program participants utilize.
What are the purposes of the SCSEP? (Sec.  641.120)
    This section of the rule outlines the purpose of the SCSEP. We 
received a significant number of comments on this section. A majority 
of the commenters expressed concern that the Department is minimizing 
the community service aspects of the program and placing a higher 
priority on the unsubsidized placement goal in this regulation. Many of 
the commenters stated that the NPRM does not conform to the 2006 OAA 
because they perceived the Department as elevating the importance of 
unsubsidized employment at the expense of community service. Several 
commenters referenced the intent of Congress when it passed the 
legislation. Those commenters referenced section 516 of the 2006 OAA, 
which provides:
    It is the sense of Congress that--
    (1) The older American community service employment program 
described in this title was established with the intent of placing 
older individuals in community service positions and providing job 
training; and
    (2) placing older individuals in community service positions 
strengthens the ability of the individuals to become self-sufficient, 
provides much-needed support to organizations that benefit from 
increased civic engagement and strengthens the communities that are 
served by such organizations.

Those commenters relied on the placement of the words ``community 
service'' before ``job training'' to make the case that Congress 
intended for community service to have a higher priority than job 
training. Further, some of these commenters asserted that ``self-
sufficient'' in this context implies emotional and other types of self-
sufficiency, and not just economic self-sufficiency. In support of this 
position, the commenters describe the importance of placing an older 
individual into a community service assignment as a means of improving 
the person's sense of financial as well as emotional and social well-
being, while providing a useful and needed service in the community. 
Therefore, these commenters found that the regulations ignore the value 
of community service both to the participant and to the community at 
large. A few commenters stressed the importance of working with the 
non-profit sector because they rely on the program participants when 
they do not have enough funds to hire staff for their organizations. 
One commenter commended the Department for stressing the importance of 
the

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program's goal to foster economic self-sufficiency.
    In addition, some commenters focused on other language in the 2006 
OAA. In addition to Sec.  516, these commenters referenced Sec.  
502(a), ``Establishment of Program'' and Sec.  518(a), which defines 
``community service employment.'' These commenters stated that these 
provisions ``reinforce[] the primary purpose of community service 
employment, along with its dual purpose of placing workers into 
unsubsidized employment.'' One of the commenters noted that the 
Department misinterpreted the 2006 OAA when it attempted to ``meld 
together'' four disparate provisions ``to support an exclusive focus on 
job placement'' in the proposed rule.
    The Department appreciates the commenters' concern about the 
perceived changes in the program. However, the Department finds that 
the dual purposes of the program--community service and appropriate 
employment objectives for participants--with its related performance 
goals, are not inconsistent. We fully embrace these dual purposes of 
the SCSEP as envisioned by the Congress. We recognize the importance of 
the community service aspect of the SCSEP. But we do not think that the 
regulation should overemphasize either aspect of the program. We have, 
therefore, written this regulation to strike an appropriate balance 
between community service and unsubsidized employment. Therefore, we 
have not changed this section.
What definitions apply to this part? (Sec.  641.140)
    This section provides specific or contextual definitions for the 
terms used in this part. We received numerous comments on this section 
with suggestions on how to better clarify, amend, or define the 
following ten (10) definitions: ``co-enrollment,'' ``employment,'' 
``equitable distribution report,'' ``host agency,'' ``individual 
employment plan,'' ``other participant costs,'' ``state plan,'' ``sub-
recipient,'' ``supportive services,'' and ``unemployed.'' In addition, 
commenters asked the Department to add definitions for ``community 
service employment'' and ``job ready.''
    As indicated in the preamble to the proposed rule, the definition 
of ``co-enrollment'' was eliminated because it related to private 
sector 502(e) projects which are no longer authorized. This definition 
was specific to the 502(e) projects and had no bearing on SCSEP 
participants co-enrolling into other federally funded programs. Upon 
further reflection, however, the Department realized that although this 
definition is no longer applicable to the 502(e) projects from the 2004 
regulation, it is still applicable to define the status of participants 
who are enrolled in WIA or other employment and training programs since 
SCSEP is a mandatory partner in the One-Stop system. Therefore, we have 
reinstated this definition with some changes to reflect that the 
participants must be enrolled in those other programs to be considered 
co-enrolled.
    Commenters suggested two substantial changes to the definition of 
``equitable distribution report.'' First, the commenters suggest the 
Department allow grantees to use other reputable and reliable 
population data in order to determine the optimum number of participant 
positions for equitable distribution purposes. The Department 
understands the limits of census data when determining equitable 
distribution of positions, given that Census data is updated only every 
10 years. The Department also agrees that more timely information would 
help the grantees make better decisions for program efficiencies (i.e., 
equitable distribution of SCSEP positions), which would allow more 
eligible individuals to participate in the program. Furthermore, by 
relaxing the limitations on grantees on the data they may use for 
equitable distribution of positions, grantees will be able to respond 
to major changes in their programs, such as in the case of a natural 
disaster or other unforeseen demographic shifts. Therefore, the 
Department agrees to allow the use of other data for equitable 
distribution purposes, as long as that information is from a reliable 
source, comparable in quality to the Census data, and grantees document 
the source of the information.
    Other commenters took issue with the change of words in the 
definition from ``counties'' to ``jurisdiction.'' We made this change 
to make the definition more inclusive of potentially underserved 
incorporated cities. One commenter specifically suggested that the 
Department reverse the change of wording, and edit the definition to 
include the term ``incorporated cities.'' The Department accepts these 
commenters' suggestions and has expanded the definition of ``equitable 
distribution report'' to include these suggestions.
    One commenter expressed concern with the addition of the word 
``training'' within the definition of ``host agency.'' The commenter 
felt that this term added to the confusion participants experience when 
they accept a community service assignment. Although the Department 
appreciates the sentiments of this commenter, we disagree. We believe 
that the added term ``training'' helps to underscore the fact that the 
community service assignment provides an opportunity to train SCSEP 
participants for unsubsidized employment. Congress indicates in Sec.  
502(a)(1) of the 2006 OAA, that the SCSEP is designed to ``[i]ncrease 
the number of persons who may enjoy the benefits of unsubsidized 
employment in both the public and private sectors.'' Further in Sec.  
516 of the 2006 OAA, Congress indicates that the SCSEP program ``was 
established with the intent of placing older individuals in community 
service positions and providing job training.'' Thus, the Department 
has decided to retain the term ``training'' in the definition of ``host 
agency.''
    We received several comments on the definition of ``individual 
employment plan or IEP.'' One commenter requested that the Department 
include the term ``mandatory'' in place of the term ``appropriate'' to 
describe the employment goal included in the IEP. The Department agrees 
that one of the end goals of an IEP should be unsubsidized employment 
for many participants; however, making this a mandatory function of the 
IEP runs counter to the statutory language in Sec.  502(b)(1)(N)(ii) of 
the 2006 OAA, which provides that the grantee ``will provide training 
and employment counseling to eligible individuals based on strategies 
that identify appropriate employment objectives * * * developed as a 
result of [an] assessment and service strategy.'' Thus, the use of the 
word ``appropriate'' further underscores the need to identify a 
strategy in the IEP that is tailored to the needs of each participant.
    Additionally, commenters stated that the Department did not include 
community service in the definition of IEP. These commenters suggested 
the Department change the term IEP to ``individual service employment 
program'' or ISEP. Other suggestions included ``ISS'' for Individual 
Service Strategy and ``ITP'' for Individual Training Plan. There is no 
doubt that the community service assignment is an important aspect of 
the IEP, since it provides a work environment in which to obtain needed 
job skills. The goal of the IEP is to plot the participant's training 
plan that will lead to an appropriate employment objective, which 
includes more than just community service. Read together, paragraphs 
(i) and (ii) of Sec.  502(b)(1)(N) focus on a strategy aimed at 
employment, and thus the IEP is appropriate. However, there is nothing

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in the definition of IEP or elsewhere that prevents grantees from 
including a variety of other services and strategies not directly 
related to the employment goal as part of the IEP. For the reasons 
provided, the Department therefore finds this change unnecessary and 
did not alter this definition. However, in response to these comments 
we did add language to the definition to make it clear that, while the 
first IEP must contain an employment goal, later IEPs need not, if 
employment is not a feasible outcome for a participant.
    Two commenters found that the term ``other participant costs'' 
contained much the same list of activities defined under ``supportive 
services.'' These commenters are correct. The Department has elected to 
keep both definitions because the definition of ``other participant 
costs'' contains a variety of activities in addition to those listed in 
the definition of ``supportive services.'' In addition, we have 
clarified the definition of ``severely limited employment prospects'' 
by substituting the words ``substantial likelihood'' for the words 
``substantially higher likelihood.''
    One commenter noted that the definition of ``sub-recipient,'' 
caused general confusion by changing from the previously defined term, 
``subgrantee.'' However, the Department was clear about why it changed 
the various definitions and the definition of ``sub-recipient'' in 
particular in the preamble to the proposed rule. The Department 
explained that the previous term, ``subgrantee,'' failed to take other 
recipients into account that may have grant management 
responsibilities. The term ``sub-recipient,'' therefore, is inclusive 
of subgrants as well as other types of funding awards. For this reason, 
the Department did not make any changes to this definition.
    One commenter noted that the cost of incidentals was not included 
in the proposed definition of ``supportive services,'' even though 
incidentals are the most widely used supportive service. Although the 
Department used the definition in the OAA at Sec.  518(a)(7), we have 
now modified the definition to more fully reflect the language on 
supportive services found in section 502(c)(6)(A)(iv).
    We received a few comments on the definition of ``unemployed.'' One 
commenter disagreed with the Department's interpretation and found that 
the definition unnecessarily complicates a grantee's ability to make 
eligibility decisions. This commenter further stated that use of the 
words the ``occasional employment'' works against older individuals and 
particularly those who reside in rural areas who take part-time jobs. 
This definition tracks the statutory language, and it is sufficiently 
clear. Therefore, we have not changed the definition.
    We also received recommendations from commenters to add two 
definitions to this section, and we have adopted both. An overwhelming 
number of commenters suggested that the Department add the term 
``community service employment'' to this regulation. The term 
``community service employment'' is included in Sec.  518(a)(2) of the 
2006 OAA and reads as follows:

    The term ``community service employment'' means part-time, 
temporary employment paid with grant funds in projects described in 
section 502(b)(1)(D), through which eligible individuals are engaged 
in community service and receive work experience and job skills that 
can lead to unsubsidized employment.

    The other definition we adopted in this final rule is ``job ready'' 
which pertains to the rule that prohibits the enrollment of job ready 
participants in Sec. Sec.  641.512 and 641.535(c). The term ``job 
ready'' has been discussed in training and in conversations with 
grantees when the Department has provided technical assistance. The 
Department has generally meant the term to apply to an individual who 
requires no more than just job club or job search assistance to be 
employed. The Department discussed its policy in the 2004 regulations 
at 69 FR 19014 at 19031, 19032, and 19038, Apr. 9, 2004. To reiterate 
the Department's policy as announced in 2004, the purpose of the 
program is to ``assure that grantees concentrate their efforts and 
limited funds on providing community service work assignments to those 
older [individuals] who are most in need'' as opposed to those who are 
job ready. 69 FR 19014 at 19031. Therefore, a simple definition of 
``job ready'' is now provided. It refers to ``individuals who do not 
require further education or training to perform work that is available 
in his or her labor market.'' Thus, it may include an individual who is 
already employed, even if only part-time, or was recently unemployed 
but has a skill set to fill the jobs available in his or her area; or 
who has received sufficient training from SCSEP or some other 
employment and training program to be able to perform work that is 
available in the labor market.

Subpart B--Coordination With the Workforce Investment Act

What is the relationship between the SCSEP and the Workforce Investment 
Act? (Sec.  641.200)
    This section provides that SCSEP grantees are required to follow 
all applicable rules under WIA and its regulations. The WIA operational 
requirements generally do not apply to SCSEP operations. As required 
partners under WIA, grantees are obligated to be familiar with the WIA 
requirements when they are acting as a WIA/One Stop delivery system 
partner. The only proposed changes made in this section are to clarify 
that sub-recipients (and not just grantees) are included in the 
requirement to follow all applicable WIA rules and regulations, and to 
make certain technical corrections to the citations.
    A number of commenters objected to the requirement that SCSEP 
follow all applicable rules under WIA and its regulations. The 
commenters cited various problems and experiences they perceive WIA has 
in serving older workers, and argued that SCSEP is a different type of 
program than WIA and should therefore not be required to comply with 
its rules, which they believe are burdensome on SCSEP grantees. Several 
commenters said that it is unclear which WIA rules and regulations are 
applicable to SCSEP and which are not. Several commenters asked that 
the requirement to follow applicable WIA rules be removed. Since both 
the OAA and WIA require SCSEP to be a One-Stop partner, we cannot make 
the suggested change.
    These commenters also mentioned that WIA performance measures 
create a disincentive to serving older workers, and cited as evidence 
findings of an April 2008 Government Accountability Office report 
entitled ``Most One-Stop Career Centers Are Taking Multiple Actions to 
Link Employers and Older Workers.'' One commenter said the onus seems 
to be on SCSEP to initiate collaborative relationships with WIA. 
Another commenter suggested releasing a Training and Employment 
Guidance Letter (TEGL) to highlight the importance of coordination 
between WIA and SCSEP.
    We appreciate the commenters' concerns about ways to improve SCSEP-
WIA coordination but none of the comments received addressed the 
specific changes to this section proposed by the NPRM. The comments 
appear to reflect a concern that the coordination requirements of the 
2006 OAA and WIA will have the effect of diluting or undercutting the 
focus and

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mission of the SCSEP. As we stated in response to similar comments in 
the preamble to the 2004 Final Rule, we do not intend the regulations 
to convey this message. 69 FR 19017-19019. WIA envisions a coordinated 
workforce development system in which a variety of programs work more 
closely together to make access to workforce development services 
easier and more efficient. WIA includes a number of programs that serve 
special populations to be required partners and is very careful to 
assure that program boundaries are respected. None of the WIA 
requirements on SCSEP grantees have changed from those that applied in 
2004, so we have not changed the SCSEP regulations that govern SCSEP-
WIA coordination. The Department intends that the regulations will 
enable grantees and sub-recipients to concentrate better on the core 
missions of the SCSEP, providing community service assignments to hard-
to-serve older individuals. The Department intends that the One-Stop 
delivery system be used to provide services both to older individuals 
who are not eligible for the SCSEP and to those who are eligible but 
need the intensive services that the SCSEP is unable to provide. The 
kinds of partnerships that the regulations envision will enable SCSEP 
grantees and sub-recipients to focus more of their efforts on the core 
population that the SCSEP is intended to serve. We did, however, add 
language to make it clear that the requirements of the section apply to 
SCSEP grantees and sub-recipients when they are acting in their 
capacities of required One-Stop partners.
What services, in addition to the applicable core services, must SCSEP 
grantees and sub-recipients provide through the One-Stop delivery 
system? (Sec.  641.210)
    This section requires SCSEP grantees and sub-recipients to make 
arrangements to provide their participants, eligible individuals the 
grantees and sub-recipients are unable to serve, as well as SCSEP 
ineligible individuals, with access to other services available at One-
Stop centers. We received comments on the second clarification made to 
this provision that SCSEP grantees and sub-recipients must also make 
arrangements through the One-Stop delivery system to provide eligible 
and ineligible individuals with referrals to WIA intensive and training 
services.
    Several commenters objected to this requirement and asked that it 
be removed, while others noted problems with the requirement. One 
commenter said that it is not always feasible to make referrals to WIA 
intensive or training services because many participants live long 
distances from One-Stop centers and do not have transportation to 
access services. Another commenter noted the absence of One-Stop 
centers in rural areas. Another commenter said that even if referrals 
of older individuals for WIA services are made, the WIA program tends 
not to serve them. Still another commenter said that the One-Stop 
delivery system provides limited or no bi-lingual programs that target 
older workers and in many instances are not located in proximity to 
Hispanic and minority neighborhoods. Finally, a commenter said that the 
2006 OAA does not require SCSEP to provide core services through the 
WIA One-Stop delivery system, but requires potential participants to be 
registered with One-Stop centers.
    The Department acknowledges that access and referral to WIA 
services in rural areas may present particular challenges, as do 
addressing the special needs of older workers who are limited-English 
proficient. To address these challenges, the Department encourages 
coordination with other organizations, in addition to One-Stop centers, 
that may be more appropriate. This provision reminds grantees and sub-
recipients that they are required to be part of the One-Stop delivery 
system and to participate when appropriate in providing access and 
referral to the other services that the One-Stop partners offer. 
Grantees may also decide to provide core services outside the One-Stop 
Career Centers.
Does title I of WIA require the SCSEP to use OAA funds for individuals 
who are not eligible for SCSEP services or for services that are not 
authorized under the OAA? (Sec.  641.220)
    This section states that even in the One-Stop center environment, 
SCSEP projects are limited to serving SCSEP-eligible individuals with 
title V grant funds. The local Workforce Investment Board and the One-
Stop partners, including SCSEP, should negotiate in the Memorandum of 
Understanding (MOU) arrangements for referral of individuals to WIA who 
are not eligible for SCSEP.
    A single comment on this section suggested including language that 
if a Local Workforce Investment Board is a SCSEP sub-grantee, then no 
MOU is necessary because the contract between the grantee and sub-
grantee already stipulates arrangements for administration of the 
SCSEP.
    The Department disagrees that an MOU is not necessary when the 
local board is a SCSEP sub-grantee, although we acknowledge that this 
situation adds a degree of complexity to the relationship. As required 
of all partner relationships with the One-Stop delivery system, the 
requirement to have an MOU is statutory and therefore, still necessary. 
The relationship the local board would have as a sub-recipient only 
mandates services to participants under the grant agreement but does 
not ensure that there is a written policy for how services would be 
coordinated with the One-Stop center. Therefore, we did not make any 
change to this section.
Must the individual assessment conducted by the SCSEP grantee and the 
assessment performed by the One-Stop delivery system be accepted for 
use by either entity to determine the individual's need for services in 
the SCSEP and adult programs under title I-B of WIA? (Sec.  641.230)
    The only proposed changes the Department made to this section were 
of a technical nature. We received two comments recommending the 
Department modify the section to include Aging Disability Resource 
Centers or other organizations that perform assessments in addition to 
WIA, to assist with the data validation requirements.
    This section merely reflects the language of the 2006 OAA on the 
acceptance of each others' assessments by the SCSEP and One-Stop 
delivery system. The Department believes the SCSEP program will be 
better served if the regulations do not specify what other 
organizations perform assessments. The Department emphasizes that 
grantees are responsible for determining whether assessments performed 
by other organizations are sufficient for the grantee's and the 
participant's needs.

Subpart C--The State Plan

    We received a large number of comments on this subpart, although a 
few were outside the scope of this rulemaking because they related to 
subpart G, which had a separate comment period from the proposed rule. 
Most of the comments were related to the 4-year strategy in the State 
Plan, although others discussed participation in developing the State 
Plan, community service needs, modifications to the State Plan, and 
equitable distribution. We received a few comments related to the cost 
and resources needed to complete the State Plan, which are addressed in 
the

[[Page 53791]]

Administrative Section of this final rule under Section D, Unfunded 
Mandates. We also received several comments that generally discussed 
the State Plan requirements or discussed the need for greater 
coordination with aging programs, which the Department has decided to 
address in this subpart on the State Plan requirements.
What is the State Plan? (Sec.  641.300)
    This section describes the purpose and function of the State Plan. 
We made a number of changes to this section to reflect the new 
provision in the 2006 OAA, which requires State grantees to submit a 
four-year strategy to the Department.
    A few commenters asked the Department to consider allowing the 
State grantees to combine the State SCSEP strategic plan with the State 
Unit on Aging strategic plan to further the goals and efforts of its 
SCSEP program. Some of those commenters specifically justified this 
request by stating that the Department allows the State grantees to 
submit the State Plan as a part of the WIA Unified Plan, but since 
SCSEP is an OAA program, submitting the State Plan with the other OAA 
programs should also be acceptable.
    Although we appreciate the logic of these comments, it is not 
possible for the State Plans to be submitted with the other OAA 
strategic plans. According to 20 U.S.C. 9271, ``a State may develop and 
submit to the appropriate Secretaries a State unified plan for 2 or 
more of the activities or programs'' provided in a specific list, and 
the only part of OAA listed is Title V. Therefore, 20 U.S.C. 9271 does 
not authorize States to include a unified plan that includes OAA 
activities or programs that are authorized by a section of OAA other 
than Title V. Such programs are governed by their own planning 
requirements. Furthermore, SCSEP is unique in that it is the only 
program under the OAA that is administered by the Department of Labor. 
Section 503 of the 2006 OAA specifically requires each State to submit 
a State Plan to the Secretary of Labor to be eligible for grant funding 
under this program. The Department shares the State Plans with the 
Administration on Aging in an effort to coordinate with them on older 
American policies. However, if they so desire, we do not prevent State 
grantees from also submitting their SCSEP strategic plan with their OAA 
strategic plan.
    Many commenters suggested that the Department develop regulations 
that require SCSEP grantees to coordinate with other programs under the 
2006 OAA, such as State units and area agencies on aging, and with 
other Federal programs such as Foster Grandparents, Senior Companions, 
Vocational Rehabilitation and several others. A few even requested that 
the Administration on Aging and other SCSEP providers be involved in 
writing the regulations. These commenters did not submit their comments 
on any particular section of the regulation and, in fact, some 
commenters were ``disappointed'' because they found the regulations 
``silent'' on this issue.
    The regulations are not ``silent'' on the coordination requirement 
with other Federal agencies, and especially the other aging programs. 
There are several provisions in this regulation that require 
coordination with aging and other resources. The first is in Sec.  
641.315, which requires the State grantees to seek the advice and 
recommendation of representatives from State and area agencies on 
aging, social service organizations, and community-based organizations 
in Sec.  641.315(a), and permits the State grantee to obtain the advice 
and recommendation of other interested organizations and individuals in 
Sec.  641.315(b). In addition, Sec.  641.302(i) requires the States to 
plan actions that coordinate activities of SCSEP grantees with other 
public and private entities and programs that provide services to older 
Americans. That the Department did not mention a specific social 
service or other program by name does not exclude it from being a 
worthy organization for collaboration. Given the large number of 
comments that addressed this particular concern, the Department hopes 
that grantees will now understand the importance of the State planning 
requirements that grantees will make a genuine effort to include those 
organizations during State planning meetings. The Department expects 
grantees to work with any and as many organizations as will help 
achieve the purpose of the program. The Department emphasizes that the 
grantees do not need explicit permission in the regulations to work 
with these organizations. Finally, at the Federal level, the Department 
will continue to coordinate with the Administration on Aging on State 
planning and other major policy concerns under the MOU that exists 
between the two Federal agencies.
What is the four-year strategy? (Sec.  641.302)
    This section outlines the requirements for the four-year strategy. 
We received many comments on this section, largely in opposition to the 
various requirements. Two comments were of a more general nature.
    One commenter was not in favor of the four-year strategy because he 
felt that ``[p]lanning beyond funding periods exceed[ed] the parameters 
of the grantee'' particularly in light of the requirements to resubmit 
the plans for modification. As discussed below, the State grantee is 
responsible for the higher-level oversight of activities in the State 
required by Sec.  503 of the 2006 OAA. As a practical matter, however, 
a strategy is the pre-planning for what the program will accomplish 
over a period of time based on a forecast of events and not a mere 
short-term snapshot of activities or actual workload action items. The 
reality is that the State program operators provide continuity for the 
program, while other organizations may be transient. Therefore, the 
State grantee is in the best position to develop a thoughtful long-term 
plan for how activities will be provided statewide.
    The other general commenter stated that, unlike their WIA program, 
they do not have an economist or the funds to hire an economist to 
provide the information that is required for a four-year strategy. 
Therefore, this commenter argues that the ``[i]nformation submitted by 
the State SCSEP [grantees] are assumptions and not factual.''
    The Department appreciates the desire to be as precise as possible, 
but it does not believe that an economist is needed to develop the 
four-year strategy for this program. It is true that it is important to 
have certain data, such as information on the growth of the eligible 
population; however, much of this information can already be found on-
line from the Bureau of Labor Statistics or other resources, such as 
from the State workforce agency, which manages SCSEP in a growing 
number of States. One of the requirements of the four-year strategy is 
to describe the planned actions to coordinate with other programs, 
including WIA. The Department suggests that State grantees that are not 
workforce agencies coordinate with their workforce agencies first to 
find out what information is already available. Other information 
requirements are grantee-dependent, such as equitable distribution, 
which requires the type of collaboration with the national grantees 
discussed in Sec. Sec.  641.300 and 641.365.
    Several commenters suggested that the State Plan requirements go 
beyond what Congress intended in Sec.  503 of the 2006 OAA, and found 
many of the requirements duplicative of other Department requirements 
and policies. As an example, these commenters cited Sec.  641.302(f) 
because a ``performance system and sanctions system is already

[[Page 53792]]

in place.'' These commenters also noted that the regulations at Sec.  
641.302(a)(3), (c), and (d) overlapped with certain grant application 
requirements.
    At the outset, the Department would like to point out that the 
State Plan is ``statewide.'' That is to say, it is designed to cover 
all program activities that will occur in the State, both those 
operated by the State and those operated by national grantees. It is 
for that reason that the State grantees, which have this oversight 
responsibility, are required to seek the advice and consultation of 
other organizations in the State, including the national grantees. To 
that extent, there are no other vehicles in the program that would 
provide this higher level of thoughtful planning for the betterment of 
program services in the State. As previously noted, a strategy is the 
pre-planning for what the program will accomplish over a period of time 
based on a forecast of events. The main reason for a State Plan is the 
recognition that the State grantees are in the best position to forge 
relationships that cross programs, communities, and organization silos. 
The best way for any State to provide services to its citizens is by 
working with all of the relevant partners to lead the State in a 
direction that will produce positive outcomes overall. Such 
coordination requires strategic planning. Therefore, a State's 
individual grant application, even if duplicative to some extent, 
represents the more immediate actions the State plans to take, which is 
only one small part of the overall strategy for providing services in 
the State.
    We received a few comments on Sec.  641.302(a) on equitable 
distribution and the requirement to address priority individuals, 
comments on Sec.  641.302(f) on continuous increase in performance, and 
one comment on Sec.  641.302(g) on coordination with WIA. With regard 
to Sec.  641.302(a)(1), one commenter argued that, given the limited 
ability of the State to alter positions between the national grantees 
and the State, creating ``a long range strategy beyond the scope of the 
Older Americans Act * * * reauthorization increases paper work without 
measurable benefits to program participants.'' Another commenter 
mentioned that this paragraph ``exclude[d] any mention of national 
grantees and the key role they play in the distribution process.'' This 
commenter requested that the Department rewrite the section to say: 
``Moves positions from over-served to under-served locations within the 
State by working collaboratively with national grantees through a 
participatory process.''
    In response to the first commenter, we disagree that a long range 
strategy increases paperwork without measurable benefit to program 
participants because of the limited ability of the State to alter 
positions. The four-year State Plan guides the annual adjustments that 
occur with the annual Equitable Distribution report, which itself 
insures positions are moved from over-served to under-served locations. 
This process helps ensure that positions are distributed in the most 
appropriate and least disruptive manner to participants and also to 
grantees. The 4-year plan outlines the principles for determining the 
need for moving positions and when ``swaps'' will occur. As to the 
point about the State's limited ability to alter positions, the 
language in Sec.  641.365(f) gives the State the ability to influence 
the movement of positions. (``All grantees are required to coordinate 
any proposed changes in position distribution with the other grantees 
in the State, including the State project director, before submitting 
the proposed changes to the Department for approval. The request for 
the Department's approval must include the comments of the State 
project director, which the Department will consider in making its 
decision.'') The Department intends to give significant weight to the 
State project director's comments in deciding whether to approve any 
proposed changes in position distribution.
    As to the second commenter, their concern about the exclusion of 
any mention of national grantees is addressed in Sec. Sec.  641.360 and 
641.365 on equitable distribution. As provided in those sections, the 
State grantees are responsible for submitting an equitable distribution 
report at the beginning of each fiscal year and that the report is the 
result of consultations with all the grantees (including the national 
grantees) in the State to discuss the location of their authorized 
positions. In addition to showing where the positions are currently 
located, the equitable distribution report reflects an agreement among 
the grantees for how positions will gradually shift over time to either 
align with changes in the population either through movement of the 
positions to underserved areas by the grantees, or through ``swaps.'' 
Those consultations by their nature already require grantees to do some 
forecasting about where positions should be located. Therefore, the 
four-year strategy is consistent with the goals and current practices 
for equitable distribution. When these provisions are read together, it 
is clear that the Department expects the national grantees to have a 
significant role in the equitable distribution process. Therefore, 
particularly since Sec.  641.302(a)(1) specifically refers to Sec.  
641.365, the Department does not believe the regulation provision needs 
to be revised as suggested.
    We received comments about Sec.  641.302(f) of the proposed rule. 
One commenter stated that because the Department sets the minimum 
levels of performance each year, the States have minimal input in 
determining the performance levels and are not consulted when they are 
established. Another commenter found that the regulation provision, as 
written, implied that State grantees were responsible for performance 
of the national grantees. This commenter suggested that the Department 
amend the provision to read: ``The State strategy, including input from 
national grantees regarding their own performance strategies, for 
continuous increase in the level of performance for entry into 
unsubsidized employment, and to achieve at a minimum, the levels * * 
*.''
    In the Department's opinion, these commenters misunderstood the 
purpose of that provision and the role of the State grantee in 
shepherding the State Plan process. As noted in the preamble to the 
proposed rule, the four-year strategy is a long-term strategy for 
increasing the level of performance in the State. We further stated in 
the NPRM preamble that ``[a]ll grantees should strive to continuously 
improve their performance levels to assist enrollees in becoming self-
sufficient, make available opportunities for other individuals to 
enroll in SCSEP, and better fulfill the objectives of the program.'' 
Therefore, the regulation does not make the State grantees responsible 
for ensuring that every national grantee that operates in the State 
meet its performance goal; rather, the State grantees are responsible 
for planning a strategy in collaboration with the national grantees to 
provide better services to participants overall, which will lead to 
higher performance for the State as a whole. We believe the rule, which 
requires in this section and Sec.  641.315 that the State Plan must be 
developed in consultation with, among others, the national grantees in 
the State, is clear on these purposes and does not need to be amended.
    Some commenters took issue with Sec.  641.302(g) of the proposed 
rule. A few commenters stated that the programs under WIA ``seem to 
focus on the younger generation'' and full-time employment 
opportunities, which makes it difficult to set employment expectations 
for the older workers in

[[Page 53793]]

collaboration with WIA projects. Other commenters did not have an issue 
with the language but echoed these sentiments. These commenters wanted 
to know what the Department was doing to encourage similar 
collaborative efforts with the WIA programs, however, rather than 
leaving the onus on SCSEP to initiate partnering efforts.
    We believe these commenters are reading the provision too narrowly. 
The point of the coordination requirement is no different from the 
expectations and requirements established in subpart B of this final 
rule. The type and degree of coordination will vary depending on the 
geographic location. This provision requires the State grantees to 
develop a long-term strategic plan for how those activities will be 
coordinated over a period of time for the benefit of the program. The 
Department further notes that WIA grantees have a responsibility to 
coordinate with the SCSEP program as well, but these regulations are 
not intended to apply to WIA-funded recipients. For example, State 
Workforce Investment Boards are required to develop linkages among One-
Stop Partner programs such as SCSEP in order to assure coordination and 
avoid duplication of activities. 20 CFR 661.205(b)(1). For a more in 
depth discussion on the coordination requirements, see the discussion 
of subpart B of this final rule.
    Finally, one commenter argued that Sec.  641.302(k) is ``overly 
prescriptive'' in requiring the State to provide a long-term strategy 
because it ``presumes the necessity for every state to make long-term 
program design changes in order to improve services to participants and 
communities.'' The commenter argued that instead, the State ``should 
have the latitude to plan strategically, within the framework of the 
OAA, for what works best * * *.'' There is nothing in Sec.  641.302(k) 
that prevents a State from planning strategically for what works best. 
Indeed, that is precisely what this provision assumes that the States 
will do. This provision does not require change for change's sake, 
rather, it requires that a State take a hard look at the SCSEP in the 
State, determine whether changes in the program will improve it and 
develop a plan to move toward those changes. Therefore, we disagree 
that Sec.  641.302(k) is overly prescriptive, because as explained 
above, we believe that long-term, 4-year planning will improve services 
overall in the State.
May the Governor, or the highest government official, delegate 
responsibility for developing and submitting the State Plan? (Sec.  
641.310)
    Although we did not receive any comments on this section, we made 
technical amendments to this section by breaking it into paragraphs to 
make it easier to read.
Who participates in developing the State Plan? (Sec.  641.315)
    This section describes the required participants to the State 
planning process. We received a few comments on this section.
    One commenter stated that the requirement to seek the advice and 
recommendation of representatives of the various organizations involved 
too many people, and that it ``would take an entire year just to 
coordinate those efforts.'' This commenter requested that the 
Department limit the number of organizations required to provide input 
to the development of the State Plan.
    This part of the proposed rule did not change from the 2004 
regulations. In addition, the list of organizations and individuals is 
consistent with the Sec.  503(a)(2) of the 2006 OAA. The Department 
commented on this issue in the 2004 regulations. At that time the 
Department stated: ``[Although] obtaining information on coordination 
may be a bit more complicated whe[n] there are several national 
grantees in a State, we believe that if the Governor has set up a good 
consultation process, obtaining the information should not be 
difficult.'' 69 FR 19014, 19022, Apr. 9, 2004.
    Other commenters found this section to be inadequate as written 
because it does not address coordination requirements with aging 
programs. Specifically, one commenter noted that the SCSEP regulation 
should ``enforce and reflect section 503(b) of the 2006 OAA, requiring 
coordination of SCSEP with other programs under the Older Americans 
Act, such as state units and area agencies on aging, and with other 
Federal programs such as Foster Grandparents, Senior Companions, and 
Vocational Rehabilitation.'' We did not make any changes to these 
sections because the regulation lists aging organizations in paragraphs 
(1), (4), (5) and (7) and thus clearly requires coordination with aging 
organizations.
Must all national grantees operating within a State participate in a 
State planning process? (Sec.  641.320)
    This provision explains that all national grantees are required to 
participate in the State planning process with the exception of 
grantees serving older American Indians or Pacific Island and Asian 
Americans. One commenter disagreed with this provision and stated that 
these entities should not be exempt from participation. As noted in the 
regulation text at paragraph (b), however, that exclusion is mandated 
by Congress at Sec.  503(a)(8) of the 2006 OAA. That being said, the 
Department agrees that it would be helpful for these organizations to 
participate in the development of the State Plan, which is designed to 
improve services, and we believe they have done so in the past. 
Therefore, as noted in the regulation provision, the Department will 
continue to encourage these national grantees to participate in the 
State Plan process.
How should the State Plan reflect community service needs? (Sec.  
641.330)
    We received one comment on this section; however, because the 
substance of the comment was related to a lack of resources, it will be 
addressed in the Administrative section of the preamble under Section 
D, Unfunded Mandates.
How should the Governor, or the highest government official, address 
the coordination of SCSEP services with activities funded under title I 
of WIA? (Sec.  641.335)
    We received several comments on this section. These commenters 
found this section inadequate as drafted to address coordination 
requirements with aging programs but failed to provide any specific 
regulatory suggestions other than to draft more regulations. The 
Department did not make any changes to these sections because, as 
mentioned in the discussion of Sec.  641.315, the requirements to 
coordinate with aging groups are clear.
How often must the Governor, or the highest government official, update 
the State Plan? (Sec.  641.340)
    This section discusses the situations when the State is required or 
encouraged to update the State Plan. We received one comment on this 
section. This commenter stated that requiring updates more frequently 
than every two years as specified by the 2006 OAA, would convert a long 
range strategy into an annual plan, which is the current requirement. 
Although updates are not required more frequently than every two years, 
they are encouraged and should be done when circumstances warrant, as 
noted in Sec.  641.345. The State Plan process is not an exercise that 
should be done as an item on a ``to do'' list. Rather, it is a 
thoughtful instrument that is designed to lead the State forward to 
achieve positive outcomes. In order for

[[Page 53794]]

any plan to be effective, it must align with current circumstances. 
Over the course of two or four years, it is reasonable to think that 
there could be some major shifts in policy, local or national economy, 
employers, performance, or community social service organizations that 
may alter the State's direction described in the State Plan. Therefore, 
without monitoring and adjusting the State Plan, it would be easy for 
the State Plan to become obsolete. Therefore, the Department did not 
make any changes based on this comment. However, as a technical 
amendment, we did divide the section into two paragraphs to make it 
easier to read.
What are the requirements for modifying the State Plan? (Sec.  641.345)
    We received several comments on this section. One commenter stated 
that modifying the State Plan according to Sec.  641.345(b)(3) would 
require grantees to modify the State Plan every year, which is contrary 
to the four-year strategic planning document. This commenter stated 
that almost every State and national grantee failed to meet at least 
one goal, and because the Department requires grantees to submit a 
performance improvement plan each year when one or more goal is not 
met, that effectively results in annual modifications.
    We appreciate this comment and upon further reflection have decided 
to delete this provision from the final rule. Although the assertions 
that most grantees fail to meet at least one goal each year and that 
they are required to submit a performance improvement plan each year is 
inaccurate, the Department does agree that the requirement is 
unnecessary for continuous improvement. As a consequence, proposed 
Sec.  641.345(b)(3) has been deleted and Sec.  641.345(b)(4) will be 
renumbered as Sec.  641.345(b)(3).
    Two other commenters reported contradictions: One found that 
paragraphs (c) and (d) contradicted each other and the other found that 
paragraph (d) contradicted OAA Sec.  503(a)(3). We do not find a 
contradiction in either case.
    Paragraph (c) requires the modified State Plan to be published for 
public comment, while paragraph (d) allows the grantees to make 
modifications to the plan without seeking the advice and recommendation 
of those entities and individuals listed in Sec.  641.315. Paragraph 
(d) addresses the development of the modification while paragraph (c) 
addresses the post-development, pre-submission phase of the planning 
process. However, it appears that some State grantees have used the 
public comment period as the main mechanism for seeking the advice and 
recommendation of those organizations and individuals, which is not the 
intent of the statute. Section 503(a)(2) of the 2006 OAA requires State 
grantees to seek the advice and recommendations of those organizations 
and individuals while developing the plan. The public comment period 
occurs after the State Plan is developed. Although it is a time 
consuming process, as we have stated elsewhere in this preamble, the 
State Plan process is not an item on a ``to do'' list. The State Plan 
process requires the grantee to identify and assess the resources 
available in the State, to engage the key members of organizations 
providing those resources in the planning process, and to provide a 
roadmap for how the State will reach overall projected outcomes. 
Therefore, it is a critical document for helping the State provide 
continuously improving services to as many eligible individuals 
possible in that State. Thus, if the plan development or modification 
processes are being run correctly, there is no contradiction in the 
provisions on consultation and public comment.
    The second commenter further stated that paragraph (d) negates the 
role of the national grantees in the modification process. This 
commenter recommended that the Department strike this provision and 
replace it with a provision that reads: ``the Governor, or the highest 
[S]tate official, must seek advice and recommendations from each 
grantee operating a SCSEP within the State.''
    The Department agrees with this comment and has modified the 
language to require the Governor or the highest State official to 
consult with the national grantees. In addition, given the commenter's 
rationale, the Department also considered whether this provision should 
be revised to require the full consultation of those entities listed at 
Sec.  641.315 as well. The purpose of the State Plan is to draft a plan 
that will improve services across the State and this provision relates 
to major changes that will impact services to participants statewide, 
which suggests the importance of full consultation even when modifying 
the plan. On the other hand, we recognize that the State may need some 
flexibility about which organizations it seeks advice from during the 
modification