[Federal Register Volume 62, Number 241 (Tuesday, December 16, 1997)]
[Proposed Rules]
[Pages 65778-65780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32748]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1302

RIN 0970-AB52


Head Start Program

AGENCY: Administration on Children, Youth and Families (ACYF), 
Administration for Children and Families (ACF), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Administration on Children, Youth and Families is issuing 
this notice of proposed rulemaking to amend its procedures regarding 
replacement of Indian tribal grantees. The proposed change would add 
provisions to implement a new statutory provision that allows Indian 
tribes which are Head Start grantees to identify an agency, and request 
that the agency be designated by the Department as an alternative 
grantee, when the grantee is terminated or denied refunding.

DATES: In order to be considered, comments on this proposed rule must 
be received on or before February 17, 1998.

ADDRESSES: Please address comments to the Associate Commissioner, Head 
Start Bureau, Administration for Children, Youth and Families, P.O. Box 
1182, Washington, D.C. 20013. Beginning 14 days after close of the 
comment period, comments will be available for public inspection in 
Room 2217, 330 C Street, S.W., Washington, D.C. 20201, Monday through 
Friday between the hours of 9:00 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: Douglas Klafehn, Deputy Associate 
Commissioner, Head Start Bureau, Administration for Children, Youth and 
Families, P.O. Box 1182, Washington, D.C. 20013; (202) 205-8572.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

    Head Start is authorized under the Head Start Act (42 U.S.C. 9801 
et seq.). It is a national program providing comprehensive 
developmental services primarily to low-income preschool children, age 
three to the age of compulsory school attendance, and their families. 
In addition, Section 645A of the Head Start Act provides authority to 
fund programs for families with infants and toddlers, known as Early 
Head Start programs. To help enrolled children achieve their full 
potential, Head Start programs provide comprehensive health, 
nutritional, educational, social and other services. Additionally, Head 
Start programs are required to provide for the direct participation of 
the parents of enrolled children in the development, conduct, and 
direction of local programs. Parents also receive training and 
education to foster their understanding of and involvement in the 
development of their children. In fiscal year 1996, Head Start served 
752,000 children through a network of over 2,000 grantees and delegate 
agencies.
    While Head Start is intended to serve primarily children whose 
families have incomes at or below the poverty line, or who receive 
public assistance, the Head Start Act and implementing regulations 
permit up to 10 percent (and more for Indian tribes under certain 
circumstances) of the children in local programs to be from families 
who do not meet these low-income criteria. The Act also requires that a 
minimum of 10 percent of the enrollment opportunities in each program 
be made available to children with disabilities. Such children are 
expected to participate in the full range of Head Start services and 
activities with their non-disabled peers and to receive needed special 
education and related services.

II. Summary of the Proposed Regulation

    The authority for this Notice of Proposed Rulemaking (NPRM) is 
section 646 of the Head Start Act (42 U.S.C. 9841), as amended by 
Public Law 103-252, Title I of the Human Service Amendments of 1994. 
Section 646(e) directs the Secretary to specify a process by which an 
Indian tribe may identify an agency, and request that the agency 
identified be designated as the Head Start agency providing services to 
the tribe, if (a) financial assistance to the tribal grantee is 
terminated, and (b) the

[[Page 65779]]

tribe would otherwise be precluded from providing Head Start services 
to its members because of the termination. The Act specifies that the 
regulation must prohibit the designation as Head Start grantee of an 
agency that includes an employee who served on the administrative or 
program staff of the terminated agency when that employee was 
responsible for a deficiency that was the basis for the termination.
    The proposed rule:
     Adds a new definition for Indian tribe;
     Provides that an Indian tribe may identify an agency to 
serve as the alternative grantee at the time that it receives a notice 
of termination or a notice of denial of refunding;
     Allows the tribe to participate in the selection of the 
replacement grantee;
     Allows the tribe a second opportunity to identify an 
alternative agency if the Department finds the first agency identified 
by the tribe is not an eligible agency capable of operating a Head 
Start program. If the second agency identified by the tribe is not 
selected as a Head Start grantee, a replacement grantee will be 
designated under 45 CFR Part 1302.

III. Section by Section Discussion of the NPRM

Section 1302.2  Definitions

    We propose to add to this section a definition for the phrase 
``Indian tribe,'' which is the same definition that appears in Section 
637(10) (42 U.S.C. Sec. 9832(10)) of the Head Start Act.

Section 1302.30  Procedure for Identification of Alternative Agency

    Section 1302.30 outlines the procedures by which an Indian tribe 
may identify an agency to the Department as an alternative grantee and 
request that the agency be designated as a grantee in the event that 
the tribe has been terminated or denied refunding as Head Start 
grantee. While section 646(e)(1)(A) of the Head Start Act refers only 
to the ``termination'' of financial assistance, we have interpreted 
``termination'' in this section to mean either termination of a grant 
or denial of refunding of the grantee, as there is no substantive 
difference between these two actions in terms of their impact on a 
grantee's Head Start program.
    Section 1302.30(a) states that a grantee may take advantage of this 
procedure only if it was the sole agency that was receiving funding to 
provide Head Start services to the tribe, and if the members of the 
tribe would otherwise be precluded from receiving Head Start services 
because of the termination or denial of refunding. These basic 
qualifying criteria are found in Section 646(e)(1) of the Head Start 
Act.
    Under section 1302.30(b) of the proposed procedures the Department, 
if it moves to terminate or deny refunding to a tribal grantee, must 
notify the grantee that it may propose an alternative agency to the 
Department, in writing, within the time limits established for 
appealing the Department's decision to deny refunding or terminate the 
grant at 45 CFR Sec. 1303.14(c) and 45 CFR Sec. 1303.15(b)(2).
    If the Department finds that the alternative agency identified by 
the tribe is not an agency that is both eligible and capable of 
operating a Head Start program, the Department will, under section 
1302.30(b)(3), so notify the tribe, and the tribe will have another 
opportunity to identify an alternative agency and request the 
designation of that agency as the alternative agency. This must be done 
within 15 days of the Department's sending notification to the grantee 
that the agency identified is unsuitable. Section 1302.30(b)(4) 
specifies that if the Department finds this second agency also not 
capable of operating a Head Start program, a replacement grantee will 
be selected by the Department according to the regulations under 45 CFR 
part 1302. Funding of the grantee will continue during any appeal, as 
provided under section 1302.30(c). The steps outlined in this proposed 
regulation for designation of an alternative agency identified by the 
tribe will be carried out during the appeal process.
    Section 1302.30(d) provides that if the tribe does not identify an 
agency and request that it be appointed as alternative agency, the 
Department will seek a permanent replacement grantee under 45 CFR part 
1302.

Section 1302.31  Requirements of Alternative Agency

    The purpose of this section is to make clear that any agency 
designated by the Secretary to replace the grantee serving the Indian 
tribe must meet the minimum requirements for Head Start agencies as 
established by the Head Start Act. These are minimum requirements, 
which no agency designated a Head Start agency may fail to meet. 
However, merely satisfying these requirements does not qualify an 
agency to be a Head Start grantee. The Department will analyze the 
capabilities and experience of the agency identified by the tribe to 
determine whether that agency is capable of operating a Head Start 
program. This analysis will be guided by the criteria for agency 
designation found in section 641(d) of the Head Start Act and sections 
1302.10 (b) (1) to (5) and 1302.11 (a) to (c) of this Part.

Section 1302.32  Alternative Agency--Prohibition

    This section states that the tribe may not designate as an 
alternative agency an agency which includes an employee who served on 
the administrative or program staff of the Indian tribal grantee, and 
who was responsible for a deficiency that was the basis of the 
termination or denial of refunding described in section 1302.30. It 
also specifies that the Department, not the tribe, reserves the right 
to determine whether an employee was responsible for a deficiency 
within the meaning and context of this section.

IV. Impact Analysis

Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
proposed rule is consistent with these priorities and principles. This 
Notice of Proposed Rulemaking sets forth a process whereby an Indian 
tribe that is being terminated as a Head Start grantee may identify an 
alternative agency and request that the alternative agency be 
designated as the Head Start agency providing services to the tribe. 
The costs of implementing this rule are not significant.

Regulatory Flexibility Act of 1980

    The Regulatory Act (5 U.S.C. Ch. 6) requires the Federal Government 
to anticipate and reduce the impact of rules and paperwork requirements 
on small businesses. For each rule with a ``significant economic impact 
on a substantial number of small entities'' an analysis must be 
prepared describing the rule's impact on small entities. Small entities 
are defined by the Act to include small businesses, small non-profit 
organizations and small governmental entities. While these regulations 
would affect small entities, they would not affect a substantial 
number. For this reason, the Secretary certifies that this rule will 
not have a significant impact on substantial numbers of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all 
Departments are required to submit collections of information contained 
in proposed rules published for public comment in the

[[Page 65780]]

Federal Register to the Office of Management and Budget for review and 
approval. This NPRM does not contain collection of information as 
defined in the Paperwork Reduction Act and implementing regulations.

List of Subjects in 45 CFR Part 1302

    Education of disadvantaged, Grant programs--social programs, 
Selection of grantees.

(Catalog of Federal Domestic Assistance Program Number 93.600, 
Project Head Start)

    Dated: November 24, 1997.
Olivia A. Golden,
Assistant Secretary for Children and Families.

    For the reasons set forth in the Preamble, 45 CFR Part 1302 is 
proposed to be amended as follows:
    1. The Authority citation for Part 1302 continues to read as 
follows:

    Authority: 42 U.S.C. 9801 et seq.

PART 1302--POLICIES AND PROCEDURES FOR SELECTION, INITIAL FUNDING, 
AND REFUNDING OF HEAD START GRANTEES, AND FOR SELECTION OF 
REPLACEMENT GRANTEES

    2. Section 1302.2 is amended by adding a definition for ``Indian 
Tribe'' to read as follows:


Sec. 1302.2  Definitions.

* * * * *
    Indian tribe means any tribe, band, nation, pueblo, or other 
organized group or community of Indians, including any Native village 
described in section 3(c) of the Alaska Native Claims Settlement Act 
(43 U.S.C. 1602(c)) or established pursuant to such Act (43 U.S.C. 1601 
et seq.) that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
* * * * *
    3. A new Subpart D, containing new sections 1302.30, 1302.31, and 
1302.32, is added to read as follows:

Subpart D--Replacement of Indian Tribal Grantees


Sec. 1302.30  Procedure for identification of alternative agency.

    (a) An Indian tribe whose Head Start grant has been terminated, or 
which has been denied refunding as a Head Start grantee, may identify 
an agency and request the responsible HHS official to designate such 
agency as an alternative agency to provide Head Start services to the 
tribe if:
    (1) The tribe was the only agency that was receiving federal 
financial assistance to provide Head Start services to members of the 
tribe; and
    (2) The tribe would be otherwise precluded from providing such 
services to its members because of the termination or denial of 
refunding.
    (b)(1) The responsible HHS official, when notifying a tribal 
grantee of the intent to terminate financial assistance or deny its 
application for refunding, must notify the grantee that it may identify 
an agency and request that the agency serve as the alternative agency 
in the event that the grant is terminated or refunding denied.
    (2) The tribe must identify the alternate agency to the responsible 
HHS official, in writing, within the time for filing an appeal under 45 
CFR Part 1303.
    (3) The responsible HHS official will notify the tribe, in writing, 
whether the alternative agency proposed by the tribe is found to be 
eligible for Head Start funding and capable of operating a Head Start 
program. If the alternative agency identified by the tribe is not an 
eligible agency capable of operating a Head Start program, the tribe 
will have 15 days from the date of the sending of the notification to 
that effect from the responsible HHS official to identify another 
agency and request that the agency be designated. The responsible HHS 
official will notify the tribe in writing whether the second proposed 
alternate agency is found to be an eligible agency capable of operating 
the Head Start program.
    (4) If the tribe does not identify a suitable alternative agency, a 
replacement grantee will be designated under these regulations.
    (c) If the tribe appeals a termination of financial assistance or a 
denial of refunding, it will, consistent with the terms of 45 CFR Part 
1303, continue to be funded pending resolution of the appeal. However, 
the responsible HHS official and the grantee will proceed with the 
steps outlined in this regulation during the appeal process.
    (d) If the tribe does not identify an agency and request that the 
agency be appointed as the alternative agency, the responsible HHS 
official will seek a permanent replacement grantee under these 
regulations.


Sec. 1302.31  Requirements of alternative agency.

    The agency identified by the Indian tribe must establish that it 
meets all requirements established by the Head Start Act and these 
requirements for designation as a Head Start grantee and that it is 
capable of conducting a Head Start program. The responsible HHS 
official, in deciding whether to designate the proposed agency, will 
analyze the capacity and experience of the agency according to the 
criteria found in section 641(d) of the Head Start Act and 
Secs. 1302.10(b) (1) through (b)(5) and 1302.11 of this part.


Sec. 1302.32  Alternative agency--prohibition.

    (a) No agency will be designated as the alternative agency pursuant 
to this Subpart if the agency includes an employee who:
    (1) Served on the administrative or program staff of the Indian 
tribal grantee, and
    (2) Was responsible for a deficiency that:
    (i) Relates to the performance standards or financial management 
standards described in the Head Start Act; and
    (ii) Was the basis for the termination or denial of refunding 
described in Sec. 1302.30 of this part.
    (b) The responsible HHS official shall determine whether an 
employee was responsible for a deficiency within the meaning and 
context of this section.

[FR Doc. 97-32748 Filed 12-15-97; 8:45 am]
BILLING CODE 4184-01-P