[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Rules and Regulations]
[Pages 12652-12658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6710]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1305

RIN 0970 AB53


Head Start Program

AGENCY: Administration on Children, Youth and Families (ACYF), 
Administration for Children and Families (ACF), Department of Health 
and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: The Administration on Children, Youth and Families is amending 
the requirements on eligibility, recruitment, selection, enrollment and 
attendance in Head Start in six areas affecting Head Start programs 
serving specific populations. These amendments address new language in 
the Head Start Act of 1994 and add a new definition for Indian Tribe; 
amend the definition of migrant family; add the requirement that 
migrant programs give priority to children from families that relocate 
most frequently; expand the definition of a service area for Head Start 
programs operated by Indian Tribes to include near-reservation 
designations; expand the family income criteria for Indian grantees 
meeting certain conditions; and amend the enrollment and reenrollment 
criteria for children in Head Start and for children enrolled in an 
Early Head Start program.

EFFECTIVE DATE: This rule is effective April 15, 1998.

FOR FURTHER INFORMATION CONTACT: Douglas Klafehn, Deputy Associate 
Commissioner, Head Start Bureau, (202) 205-8572.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

    Head Start, as authorized under the Head Start Act (42 U.S.C. 9801 
et seq.), 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 for programs 
serving low-income pregnant women and families with infants and 
toddlers. Programs funded under this section are referred to 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 1997, Head Start served 
over 752,000 children through a network of 2,000 grantee and delegate 
agencies.
    While Head Start is designed primarily to serve children whose 
families have incomes at or below the poverty line or who receive 
public assistance, the Head Start regulations permit up to ten percent 
of the children in local programs to be from families who do not meet 
these low-income criteria. Additionally, as provided in this rule, 
Indian Tribes meeting certain conditions may enroll additional over-
income children above the ten percent limitation. The Act also requires 
that a minimum of ten percent of the enrollment opportunities in each 
program be made available to children with disabilities. These 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.

[[Page 12653]]

II. Purpose of the Final Rule

    The purpose of this rule is to implement the new provisions in 
sections 637, 640, 645 and 645A of the Head Start Act (42 U.S.C. 9801 
et seq.), as amended by Public Law 103-252, Title I of the Human 
Services Amendments of 1994.
    Section 637 contains a new definition for ``Indian Tribe'' which 
has been incorporated into this rule. It also contains a new definition 
for ``migrant Head Start program'' which impacts on the current 
definition of ``migrant family'' found at 45 CFR 1305.2(l). The 
definition of ``migrant family'' has been amended in this rule to 
include families who have changed their residence from one geographical 
area to another in the preceding two-year period for the purpose of 
engaging in agricultural work.
    Several technical amendments have also been made to this section. 
The definition of ``Head Start eligible'' at 45 CFR 1305.2(g) has been 
revised to state that Indian Tribes meeting the conditions specified in 
45 CFR 1305.4(b)(3) are exempted from the limitation that no more than 
ten percent of the enrolled children may be from families that exceed 
the low-income guidelines. Finally, the definition of ``Income'' at 45 
CFR 1305.2(i) has been revised to refer to the other sources of income 
contained in the definition of ``income'' in the U.S. Bureau of the 
Census, Current Population Reports, Series P-60-185, and as provided in 
the annual Family Income Guidelines issued by the Head Start Bureau.
    Section 641(b) expands the definition of a community to include 
Indians in any area designated as near-reservation. The expanded 
definition of a service area for Indian Tribal Head Start grantees has 
been incorporated into 45 CFR 1305.3(a) in this rule to permit Tribes 
to include in their service areas all or parts of areas designated as 
near-reservation by the Bureau of Indian Affairs (BIA). In order to 
provide similar flexibility to Tribes which do not have a BIA 
designation, but which face the same need to serve Indian children and 
families living near the reservation, the rule also provides that a 
Tribe, with the approval of the Tribe's governing council, may propose 
to define its service area to include near-reservation areas in which 
Indian people native to its reservation reside. Additionally, a new 
paragraph (b) has been added to this section to clarify that, except in 
situations where an expanded service area has been approved for a 
Tribe, a grantee's service area may not overlap with that of other Head 
Start grantees.
    Section 645(d) expands eligibility for participation in Head Start 
programs operated by Indian Tribes to permit them to enroll additional 
children, beyond ten percent, from families that exceed the income-
eligibility guidelines, when specific conditions are met. These 
conditions are that (1) all children from Indian and non-Indian 
families living in the Tribe's approved service area that meet the low-
income guidelines who wish to be enrolled in Head Start are served by 
the program, including children from income-eligible families living in 
near-reservation communities if those communities are approved as part 
of the Tribe's service area; (2) the Tribe does not use funds awarded 
to expand Head Start services for this purpose; and (3) the program 
predominantly serves children from families who meet the low-income 
criterion. ``Predominantly'' has been defined in this rule to mean at 
least 51 percent of the children enrolled in the Head Start program. 
Tribal Head Start programs meeting these conditions must annually set 
criteria that are approved by the Policy Council and the Tribal Council 
for selecting over-income children who would benefit from participation 
in the Head Start program. Changes have been made in 45 CFR 1305.4(b) 
in this rule to conform with these new provisions.
    Section 645(d) also requires that the Secretary specify, in 
regulation, the requirements contained in this section after 
consultation with Indian Tribes. Three meetings with members of the 
Indian community were held during 1995 to obtain input in developing 
this section of the rule.
    Section 640(k)(1) requires that the Secretary give priority to 
migrant Head Start programs that serve the children of migrant families 
whose work requires them to relocate most frequently. Accordingly, 
paragraph (b) under 45 CFR 1305.6, Selection process, has been expanded 
in this rule to include the requirement that migrant programs must give 
priority to children from families whose pursuit of agricultural work 
required them to relocate most frequently within the previous two-year 
period.
    The regulation at 45 CFR 1305.7(c), Enrollment and re-enrollment, 
currently states that, once a child has been found to be income-
eligible, he or she remains eligible for the current and succeeding 
enrollment year. This paragraph has been amended to address eligibility 
for infants and toddlers who are enrolled in an Early Head Start 
program funded under the authority of section 645A of the Head Start 
Act. In order to assure continuity of services once income eligibility 
has been determined, such children remain eligible while they are 
enrolled in Early Head Start. In addition, this paragraph has been 
amended to include specific reference to Section 645A(b)(7), which 
states that an agency which operates both a Head Start program and an 
Early Head Start program must ensure that children enrolled in Early 
Head Start and their families receive services through the age of 
mandatory school attendance of the child.
    Minor technical amendments have also been made in 45 CFR 1305.4(a) 
and 45 CFR 1305.6(c). The amendment to 45 CFR 1305.4(a) substitutes 
Early Head Start for Parent and Child Center programs as an example of 
an exception to the requirement that children served by Head Start 
programs must be at least three years old. The amendment to 45 CFR 
1305.6(c) references Early Head Start and Individualized Family Service 
Plans (IFSP) for infants and toddlers with disabilities. The IFSP is 
defined in 45 CFR 1304.3 of the revised Head Start Program Performance 
Standards.

III. Section-by-Section Discussion of the Final Rule

    The Notice of Proposed Rulemaking (NPRM) was published in the 
Federal Register (60 FR 54648) on October 25, 1995 with a 30 day 
comment period. Twenty-seven letters, containing approximately 85 
separate comments, were received. While most of the comments were 
supportive, a number expressed concerns about specific sections of the 
NPRM. We have carefully reviewed all of the comments received, and have 
modified some sections of the NPRM based upon these comments. The 
comments, and, as applicable, the rationale for making a change or 
keeping the language as used in the NPRM, are discussed below.

Section 1305.2: Definitions

    One comment was received, which supported the new definition of 
``Indian Tribe'' provided in paragraph (k). No changes were made in the 
definition.
    A few comments were received regarding the amended definition of 
``Migrant family'' in paragraph (m). One commenter supported the 
revision, stating that the change, along with the new requirement that 
priority be given to children from families whose agricultural work 
requires them to relocate most frequently, will improve the continuity 
of services to migrant families and children. Another commenter 
suggested that the definition of agricultural work be expanded beyond 
involvement in the production and harvesting of tree and field crops to

[[Page 12654]]

include subsistence activities such as fishing and hunting. We did not 
change the definition to incorporate this suggestion, however, because 
the language used conforms both with the description of agricultural 
work contained in the current definition of a migrant family provided 
at 45 CFR 1305.2(l) and with common usage of the term.

Section 1305.3: Determining Community Strengths and Needs

    A few respondents supported the expanded meaning of a service area 
for Head Start grantees that are Indian Tribes in paragraph (a) to 
include areas designated as near-reservation, stating that this change 
was long overdue and would help improve the continuity of education for 
Indian children, increase access to Tribal Head Start programs, and 
enable children to attain a greater appreciation of their heritage.
    Several commenters from Oklahoma requested clarification about how 
the term ``near-reservation'' would affect Indian Tribes in the State, 
as they reside on trust lands, not on reservations. We have not changed 
the language from the NPRM because we do not believe that such 
clarification is needed. Both the Senate and the House Reports on the 
Human Services Amendments of 1994 clearly state that this amendment ``* 
* * will also make it possible for federally recognized tribes which do 
not have reservations to provide Indian Head Start services, and to 
make it possible for consortia of small tribes on small reservations to 
provide Indian Head Start services to their children'' (Senate Report 
No. 251, 103rd Congress, 2nd Session, pp. 30-31; House Report No. 483, 
Part 1, 103rd Congress, 2nd Session, p. 46). Therefore, we believe that 
latitude can be used in interpreting the term ``reservation'' to 
include Indian trust lands and other such designations.
    Some of these commenters also questioned the effect that expanding 
Tribal service areas would have on non-Tribal Head Start programs which 
provide services in the same counties, and suggested that the term 
``near-reservation'' be limited to areas where no other Tribal or non-
Tribal Head Start program is providing services. Areas of concern 
included the confusion that exists regarding how Tribal service areas 
were determined, since they were funded after the non-Tribal programs 
were operative; the need for processes to resolve potential conflicts 
that might arise in instances where overlap exists between the Tribal 
and non-Tribal Head Start service areas; and the need to provide 
advanced notice and planning time to non-Tribal grantees whose existing 
service areas would be affected by this provision.
    While we appreciate the commenters' concerns, in this regard, we 
have not made any changes in the final rule. Limiting the definition of 
``near-reservation'' to an area not currently served by a Head Start 
program would clearly go against the intent of the Congress. The 
reports of both the Senate and the House of Representatives state that 
the amendment clarifies ``* * * that children living near the 
reservation should be included in the Indian programs' service area'' 
(Senate Report No. 251, 103rd Congress, 2nd Session, p. 30; House 
Report No. 483, Part 1, 103rd Congress, 2nd Session, p. 46). Moreover, 
when the near-reservation area is located within the service area of a 
non-Tribal grantee, this provision enables Tribal Head Start grantees 
to serve only a specific population of children--Tribal children who 
are native to the reservation and are living within the designated 
near-reservation area. Finally, we would fully expect, as this 
provision is exercised, that discussions and negotiations between the 
Tribal Head Start grantee and the non-Tribal grantee whose service area 
includes the non-reservation area to be designated would occur as a 
matter of course.
    One respondent expressed concern about the term ``native to the 
reservation,'' finding it not only vague, but also, if interpreted in 
its strictest sense, referring only to Indian people born on the 
reservation. The phrase ``socially, culturally and economically 
affiliated with the Tribe and its reservation'' was proposed as being 
more appropriate. While we understand the respondent's concern, we have 
not changed the language from the NPRM. The term ``native'' is commonly 
used to refer not only to the place of birth, but also to an 
association with a particular place or location and, as such, is 
appropriate within the context used in this regulation.
    However, we have made a few clarifying changes in section 1305.3 in 
order to make it consistent with the changes in section 
1305.4(b)(3)(ii).

Section 1305.4: Age of Children and Family Income Eligibility

    This section of the NPRM generated the most comments. A number of 
respondents supported the new provision amending the family income 
eligibility requirements for Head Start programs operated by Indian 
Tribes to permit them to enroll additional children, beyond ten 
percent, from families that exceed the low-income guidelines. 
Commenters stated that the change would assist Indian programs in 
maintaining their enrollment and in expanding their programs; that many 
Native American children are in need of Head Start services which 
emphasize their native cultures even though their family incomes may 
not be as low as those of other families; and that meeting income 
guidelines is an important, but not the only, factor impacting 
negatively on Indian children and families. Respondents also cited 
factors, such as fluctuating economies in many Tribal communities, 
which result in Head Start enrollment patterns varying greatly from 
year to year, as justifying the need for the change.
    Concerns were raised, however, regarding the condition in paragraph 
(b)(3)(i) that all children, both Indian and non-Indian, who are living 
on the reservation and whose families meet the low-income guidelines 
and wish them to be served by Head Start must be enrolled prior to 
increasing the number of over-income Indian children served above ten 
percent. Commenters stated that non-Indian families should not be 
served over Indian families, as Indian Head Start was established to 
serve Indian children; that the modification was designed to ensure 
that Tribal families would not be penalized for moving off welfare and 
going to work; and that income-eligible non-Indian families can be 
served by a non-Tribal Head Start program, while the only place for 
over-income Indian families is the Indian Head Start program. One 
respondent objected to the use of Indian set-aside funds to provide 
services to non-Indian children when Indian children who might benefit 
from Head Start are denied services simply because their family income 
is not considered to be at the poverty level; and pointed out that, on 
most reservations, Head Start is the only comprehensive early childhood 
program available.
    We did not change this condition for several reasons. First, this 
requirement is consistent with the language of section 645(d)(1)(B) of 
the Head Start Act of 1994, which states, as one of the conditions 
which must be met before enrolling over-income children in Tribal Head 
Start programs, that the Tribe ``enrolls as participants in the program 
all children in the community served by the tribe (including a 
community with a near-reservation designation, as defined by the Bureau 
of Indian Affairs) from families that meet the low-income criteria 
specified under subsection (a)(1)(A).'' Moreover, income-eligible non-
Indian children living on the reservation would not be eligible for the 
services provided by a non-Tribal Head

[[Page 12655]]

Start program because they reside within the service area of the Tribal 
Head Start program. Therefore, denying these children the opportunity 
to enroll in the Tribal program would preclude them from receiving Head 
Start services.
    In order to be consistent, and for the same reasons specified in 
the paragraph above, we have modified paragraph (b)(3)(ii) to clarify 
that, prior to serving over-income Indian children, Tribal grantees 
that include non-Reservation areas in their service area, in addition 
to serving income eligible Indian children, must serve non-Indian 
income eligible children, whose families wish to enroll them in Head 
Start, in those instances in which the non-Reservation area is not 
served by another, non-Tribal, Head Start program. (At the time that 
the Tribal grantee proposes to include the non-Reservation area in its 
service area, ACF will make it clear whether the Tribal grantee will be 
required to serve non-Indian income eligible children in an unserved 
non-Reservation area along with Indian children.) This requirement also 
parallels the language in section 645(d)(1)(B) of the Head Start Act; 
and, similar to income-eligible non-Indian children living on the 
reservation, these children would be deprived of the opportunity to 
participate in Head Start if the Tribal program did not enroll them, 
since that program would be the only Head Start program in the service 
area. The changes in wording from the NPRM at Secs. 1305.4(b)(3)(ii) 
and 1305.3(a) and (b) were done to provide greater clarity and 
consistency between these two sections.
    One commenter raised the concern that, due to factors such as the 
lack of space at Head Start centers located in small communities and 
the isolated location of family homes, it may not be feasible for a 
Tribal Head Start grantee to serve all of the income-eligible Indian 
children, resulting in vacant slots and the Tribe's inability to exceed 
the ten percent over-income guideline. Another respondent had the 
diametrically opposed concern that, on large reservations where Tribal 
lands and communities are not contiguous, and which have a large number 
of income-eligible non-Indian children who meet the on or near-
reservation status, a Tribe could conceivably find itself operating an 
Indian Head Start program with a majority of non-Indian children. We 
agree that, especially on ``checkerboard'' reservations, Tribes may not 
be serving all of the income-eligible children or may be serving a high 
percentage of non-Indian children. However, because Head Start is a 
means-based program, with family income and the age of the child being 
the primary determinants of eligibility, grantees must use the income 
guidelines established annually by the Office of Management and Budget 
as a principal basis for enrolling children in the program.
    Several respondents questioned what assurances would be in place to 
document that every income-eligible family was contacted prior to 
enrolling over-income children. Tribal grantees would be expected to 
carry out the recruitment procedures required under 45 CFR 1305.5 of 
this regulation, and recruitment practices would be reviewed and 
discussed as part of the on-site monitoring process.
    One respondent questioned the condition in paragraph (b)(3)(iii) 
that the Tribe must have the resources to enroll over-income children, 
and that no funds provided by the Department of Health and Human 
Services (HHS) to expand Head Start services may be used for this 
purpose, stating that the position appears to be inconsistent. If, on 
the one hand, HHS is acknowledging the need for greater participation 
by Indian children in Head Start, it would seem that the Department 
would also ensure that the children receive these services. 
Additionally, the respondent pointed out that Tribes which have 
developed a sound economic base predicated on gaming revenues would be 
at a distinct advantage, as they could afford to supplement their Head 
Start programs, while poorer Tribes would not have the resources to do 
so. As this condition was established by section 645(d)(3) of the Head 
Start Act of 1994, it cannot be amended or eliminated in the final 
rule. A minor edit was made for clarification purposes by adding the 
phrase ``from families whose incomes exceed the low-income 
guidelines.''
    Another respondent expressed concern about increasing income 
eligibility for up to 49 percent of the children enrolled in Indian 
Head Start programs, while non-Indian programs may enroll only ten 
percent, stating that many of the families on the program's waiting 
list are over the income guidelines by anywhere from $100 to $1,000. 
Several other commenters also advocated that the authorization to 
exceed the ten percent over-income limitation be extended to non-Tribal 
Head Start grantees, such as grantees which are currently serving all 
of the income-eligible children in their service areas and grantees 
located in small rural communities, especially when there are no other 
comparable services available for children in those communities. While 
we understand these concerns, this provision is legislatively-based 
and, therefore, cannot be extended to non-Tribal Head Start grantees.
    One respondent stated that Indian Tribes should not be limited to 
serving a certain percentage of low-income children but, rather, that 
decisions regarding participation in the local Head Start program 
should be made by the Tribal Head Start Policy Council and the Tribal 
Council. Two factors were cited as being relevant: first, this position 
would be consistent with the concept of Indian Self-Determination and 
would acknowledge Tribal sovereignty; and, secondly, it would address 
the primary issue that Head Start is so important for Tribal children, 
who, because they are raised on somewhat isolated reservation 
environments, need opportunities to increase their socialization skills 
regardless of family income.
    We have not made any change in the requirement that 51 percent of 
the children must be from families whose incomes are below the low-
income guidelines. Section 645(d)(1)(C) of the Head Start Act states, 
as one of the conditions that Tribal Head Start programs must meet in 
order to enroll over-income children beyond ten percent, that ``. . . 
the program predominantly serves children who meet the low-income 
criteria.'' We defined the term ``predominantly'' in the NPRM to mean 
at least 51 percent of the children enrolled in the program in order to 
give Tribes as much flexibility as possible. As described in the 
preamble to the NPRM, this position was strongly supported by the 
Tribal representatives who participated in the consultation sessions 
that were held in developing this regulation.

Section 1305.6: Selection Process

    A few respondents raised concerns about the new requirement in 
paragraph (b) that migrant programs must give priority to children from 
families whose pursuit of agricultural work required them to relocate 
most frequently within the previous two-year period. One commenter 
expressed the concern that the ``revolving door'' that could result is 
more likely to be detrimental to the overall quality of migrant Head 
Start programs than it is to benefit the very frequently moving 
children who would be given priority under the proposed rule; and 
suggested that grantees be directed to consider whether the overall 
effectiveness and quality of their programs can be maintained if the 
centers are filled with children who would be there for only very short 
periods of time.
    Another respondent requested guidance or clarification on the 
priority change; expressed the concern that children in an upstream 
migrant program are enrolled on a first come,

[[Page 12656]]

first served basis, with the pool of applicants in June being totally 
different from that in August or September, resulting, by September, in 
families who truly migrate frequently being left on the waiting list; 
and stated the assumption that the intent of the change is not to 
displace enrolled children with those who come along later but, rather, 
to apply the criterion as openings become available.
    In response to the concerns that were raised, we have made a minor 
change in the wording of 45 CFR 1305.6(b) from that in the NPRM and 
have added the word ``also'' (``Migrant programs must also give 
priority to children from families whose pursuit of agricultural work 
required them to relocate most frequently within the previous two-year 
period''). This change is designed to more clearly convey that the 
frequency of a family's move is not the only criterion to be considered 
when selecting the children and families to be served by a migrant Head 
Start program. Other factors, such as the family's income and the age 
of the child, as well as the recruitment priorities established by the 
program pursuant to the requirements of 1305.3(c)(6), should also be 
taken into account. We also wish to clarify that it is not the intent 
of this requirement that children already enrolled in a migrant program 
be displaced by children whose parents relocated more frequently within 
the previous two-year period. Rather, this priority, along with the 
other enrollment priorities, is to be exercised as openings become 
available in a program.

Section 1305.7 Enrollment and Re-enrollment.

    A number of commenters supported the amendment to paragraph (c) of 
this section in the NPRM, which extended the income eligibility of 
children enrolled in Early Head Start for the time that the child is 
enrolled in the Early Head Start program, but required that the 
family's income be reverified if the parents wished to enroll their 
child in a Head Start program serving children between the ages of 
three to compulsory school attendance and it had been two or more years 
since this had been done. Respondents stated that this amendment would 
enable families to be provided with an early, continuous, intensive and 
comprehensive child development program; that if, after a child reaches 
the age of three years, a family is over income, it would be preferable 
to provide the opportunity to participate in Head Start to another low-
income family; that the continuity of services that is afforded has 
proven beneficial for a significant number of families and provides a 
readily available population on which to focus Head Start recruitment 
and enrollment efforts; and that it would help ensure that children of 
the lowest income and children at risk would have the opportunity to 
fill Head Start slots when otherwise they might not have the chance to 
do so.
    One respondent stated that the proposed rule created a fair balance 
in terms of income eligibility for infant and toddlers, citing, among 
other reasons, that it would enable Early Head Start programs to track 
outcomes for participating children and their families, thereby 
enhancing the value of the findings from these demonstrations; that 
excluding families who experience some degree of economic success would 
be a disincentive for them to pursue such achievements; and that the 
limited alternatives for adequate and affordable day care in Early Head 
Start communities could affect a parent's ability to retain employment.
    Another respondent recommended that the verification of family 
income be required of all families transitioning from Early Head Start 
to Head Start, regardless of how many years since this was done, as it 
would provide a clear break from one program to the next; simplify the 
tracking of when individual families need to provide income 
verification information; and ensure that families who did not 
participate in Early Head Start, but rank high in terms of need, have 
an equal opportunity to enroll in Head Start.
    A number of commenters, however, expressed concerns about the 
recertification requirement, advocating that, once a child is certified 
for participation in Early Head Start, the certification should 
continue through Head Start until the age of enrollment in the public 
school system. Several of these commenters stated that income is only 
one criterion for eligibility, and that Early Head Start children and 
families have a continuing need for the services provided by Head 
Start. One respondent supportive of this position stated, based upon 
experience with the Comprehensive Child Development Program, that the 
level of intervention needed by families often intensifies as the 
families achieve employment. Similarly, another commenter stated that 
an array of issues seriously affects the achievement of wellness and 
self-sufficiency for families; that Head Start should be considered a 
program serving children from birth to age five; and that, if income is 
regarded as the only criterion for eligibility at mid-point in the 
program, a large number of very vulnerable families would immediately 
lose all of their needed support services. Other commenters expressed 
concerns that Early Head Start families found ineligible for Head 
Start, in addition to not receiving the continuity of services they 
need, would also have to seek day care services, which would be costly 
and would defeat the purpose of becoming self-sufficient; and that the 
removal of a child from Head Start for income reasons could have 
negative consequences on the child's psychological development, as the 
child could view his or her not being able to attend Head Start as a 
sign that he or she had failed in some way.
    Several respondents proposed alternative procedures for 
consideration if the income redetermination policy for Early Head Start 
families could not be waived. One commenter suggested that these 
families be given priority for the available ten percent over income 
enrollment in Head Start programs; and another recommended that 150 
percent of poverty be used as the criterion in order to acknowledge the 
vulnerability of families moving from dependency to self-sufficiency.
    Other respondents urged that the extended eligibility for infants 
and toddlers enrolled in Early Head Start should also be applied to 
infants and toddlers enrolled in migrant Head Start programs, as these 
children and families also need continuity of services and should not 
be treated differently.
    We have modified this section of the rule, primarily to clarify the 
eligibility of children enrolled in an Early Head Start program. In 
addition to the provision that children enrolled in Early Head Start 
remain eligible while they are in that program, we have added specific 
reference to Section 645A(b)(7) of the Head Start Act, which requires 
that an agency which operates both an Early Head Start program and a 
Head Start program must ensure that children and families receive 
services until the child reaches the age of mandatory school 
attendance. Regarding ensuring Head Start services, the phrase 
``whenever possible'' has been added to address situations where 
grantees simply do not have slots, in accordance with 45 CFR 1305.4(b), 
to accommodate all children leaving its Early Head Start program whose 
parents wish to enroll them in its Head Start program. The provision on 
reverification of family income when a child moves from a program 
serving infants and toddlers to a Head Start program serving children 
age three and older has been retained with minor edits made for 
clarity.

[[Page 12657]]

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 
rule is consistent with these priorities and principles. This final 
rule implements the new statutory requirements established in sections 
637, 640, 641, 645 and 645A of the Head Start Act (42 U.S.C. 9801 et 
seq.), as amended by Public Law 103-252, Title I of the Human Service 
Amendments. It adds a new definition for Indian Tribe and changes the 
definition of a migrant family to give priority to families that 
relocate most frequently. It also authorizes Head Start grantees that 
are Indian Tribes to include near-reservation areas when recruiting 
children for Head Start services and, under certain circumstances, to 
enroll additional children from families with incomes that exceed the 
low-income guidelines above the ten percent limitation. Finally, it 
clarifies the eligibility of children enrolled in an Early Head Start 
program receiving funds under the authority of section 645A of the Head 
Start Act.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. CH. 6) requires that the 
Federal government 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 this regulation would affect small entities, it would 
not affect a substantial number as we estimate that approximately 413 
small businesses will be affected. This number includes Head Start 
migrant programs, Indian tribal programs Early Head Start programs, and 
delegate agencies. The approximate number of Head Start programs are 
2000. For this reason, the Secretary certifies that this rule will not 
have a significant impact on a substantial number of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB) for review and approval any reporting or record-keeping 
requirement inherent in a proposed or final rule. This final rule does 
not contain any information collection or record keeping requirements.

List of Subjects in 45 CFR Part 1305

    Disabilities, Education of disadvantaged, Grant programs--social 
programs, Head Start enrollment, Preschool education.

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

    Dated: February 23, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.

    For the reasons set forth in the preamble, 45 CFR Part 1305 is 
amended to read as follows:

PART 1305--[AMENDED]

    1. The authority citation continues to read as follows:

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

    2. Section 1305.2 is amended by revising paragraphs (g) and (i); 
redesignating current paragraphs (k) through (r) as paragraphs (l) 
through (s); adding a new paragraph (k); and revising newly 
redesignated paragraph (m) to read as follows:


Sec. 1305.2  Definitions.

* * * * *
    (g) Head Start eligible means a child that meets the requirements 
for age and family income as established in this regulation or, if 
applicable, as established by grantees that meet the requirements of 
section 645(a)(2) of the Head Start Act. Up to ten percent of the 
children enrolled may be from families that exceed the low-income 
guidelines. Indian Tribes meeting the conditions specified in 45 CFR 
1305.4(b)(3) are excepted from this limitation.
* * * * *
    (i) Income means gross cash income and includes earned income, 
military income (including pay and allowances), veterans benefits, 
Social Security benefits, unemployment compensation, and public 
assistance benefits. Additional examples of gross cash income are 
listed in the definition of ``income'' which appears in U.S. Bureau of 
the Census, Current Population Reports, Series P-60-185.
* * * * *
    (k) 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.
* * * * *
    (m) Migrant family means, for purposes of Head Start eligibility, a 
family with children under the age of compulsory school attendance who 
changed their residence by moving from one geographic location to 
another, either intrastate or interstate, within the preceding two 
years for the purpose of engaging in agricultural work that involves 
the production and harvesting of tree and field crops and whose family 
income comes primarily from this activity.
* * * * *
    3. Section 1305.3 is amended by revising paragraph (a), 
redesignating current paragraphs (b) through (f) as paragraphs (c) 
through (g), and adding a new paragraph (b) to read as follows:


Sec. 1305.3  Determining community strengths and needs.

    (a) Each Early Head Start grantee and Head Start grantee must 
identify its proposed service area in its Head Start grant application 
and define it by county or sub-county area, such as a municipality, 
town or census tract or a federally-recognized Indian reservation. With 
regard to Indian Tribes, the service area may include areas designated 
as near-reservation by the Bureau of Indian Affairs (BIA) or, in the 
absence of such a designation, a Tribe may propose to define its 
service area to include nearby areas where Indian children and families 
native to the reservation reside, provided that the service area is 
approved by the Tribe's governing council. Where the service area of a 
Tribe includes a non-reservation area, and that area is also served by 
another Head Start grantee, the Tribe will be authorized to serve 
children from families native to the reservation residing in the non-
reservation area as well as children from families residing on the 
reservation.
    (b) The grantee's service area must be approved, in writing, by the 
responsible HHS official in order to assure that the service area is of 
reasonable size and, except in situations where a near-reservation 
designation or other expanded service area has been approved for a 
Tribe, does not overlap with that of other Head Start grantees.
* * * * *
    4. Section 1305.4 is amended by revising the last sentence of 
paragraph (a) and revising paragraph (b) to read as follows:

[[Page 12658]]

Sec. 1305.4  Age of children and family income eligibility.

    (a) * * * Examples of such exceptions are programs serving children 
of migrant families and Early Head Start programs.
    (b)(1) At least 90 percent of the children who are enrolled in each 
Head Start program must be from low-income families.
    (2) Except as provided in paragraph (b)(3) of this section, up to 
ten percent of the children who are enrolled may be children from 
families that exceed the low-income guidelines but who meet the 
criteria that the program has established for selecting such children 
and who would benefit from Head Start services.
    (3) A Head Start program operated by an Indian Tribe may enroll 
more than ten percent of its children from families whose incomes 
exceed the low-income guidelines when the following conditions are met:
    (i) All children from Indian and non-Indian families living on the 
reservation that meet the low-income guidelines who wish to be enrolled 
in Head Start are served by the program;
    (ii) All children from income-eligible Indian families native to 
the reservation living in non-reservation areas, approved as part of 
the Tribe's service area, who wish to be enrolled in Head Start are 
served by the program. In those instances in which the non-reservation 
area is not served by another Head Start program, the Tribe must serve 
all of the income-eligible Indian and non-Indian children whose 
families wish to enroll them in Head Start prior to serving over-income 
children.
    (iii) The Tribe has the resources within its Head Start grant or 
from other non-Federal sources to enroll children from families whose 
incomes exceed the low-income guidelines without using additional funds 
from HHS intended to expand Head Start services; and
    (iv) At least 51 percent of the children to be served by the 
program are from families that meet the income-eligibility guidelines.
    (4) Programs which meet the conditions of paragraph (b)(3) of this 
section must annually set criteria that are approved by the Policy 
Council and the Tribal Council for selecting over-income children who 
would benefit from such a program.
* * * * *
    5. Section 1305.6 is amended by revising paragraph (b) and the last 
sentence of paragraph (c) to read as follows:


Sec. 1305.6  Selection process.

* * * * *
    (b) In selecting the children and families to be served, the Head 
Start program must consider the income of eligible families, the age of 
the child, the availability of kindergarten or first grade to the 
child, and the extent to which a child or family meets the criteria 
that each program is required to establish in Sec. 1305.3(c)(6). 
Migrant programs must also give priority to children from families 
whose pursuit of agricultural work required them to relocate most 
frequently within the previous two-year period.
    (c) * * * An exception to this requirement will be granted only if 
the responsible HHS official determines, based on such supporting 
evidence he or she may require, that the grantee made a reasonable 
effort to comply with this requirement but was unable to do so because 
there was an insufficient number of children with disabilities in the 
recruitment area who wished to attend the program and for whom the 
program was an appropriate placement based on their Individual 
Education Plans (IEP) or Individualized Family Service Plans (IFSP), 
with services provided directly by Head Start or Early Head Start in 
conjunction with other providers.
* * * * *
    6. Section 1305.7 is amended by revising paragraph (c) to read as 
follows:


Sec. 1305.7  Enrollment and re-enrollment.

* * * * *
    (c) If a child has been found income eligible and is participating 
in a Head Start program, he or she remains income eligible through that 
enrollment year and the immediately succeeding enrollment year. 
Children who are enrolled in a program receiving funds under the 
authority of section 645A of the Head Start Act (programs for families 
with infants and toddlers, or Early Head Start) remain income eligible 
while they are participating in the program. When a child moves from a 
program serving infants and toddlers to a Head Start program serving 
children age three and older, the family income must be reverified. If 
one agency operates both an Early Head Start and a Head Start program, 
and the parents wish to enroll their child who has been enrolled in the 
agency's Early Head Start program, the agency must ensure, whenever 
possible, that the child receives Head Start services until enrolled in 
school.
[FR Doc. 98-6710 Filed 3-13-98; 8:45 am]
BILLING CODE 4184-01-P