[Federal Register Volume 71, Number 103 (Tuesday, May 30, 2006)]
[Proposed Rules]
[Pages 30645-30648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8222]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1310

RIN 0970-AC26


Head Start Program

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This notice of proposed rulemaking authorizes approval of 
annual waivers, under certain circumstances, from two provisions in the 
current Head Start transportation regulation (45 CFR part 1310): The 
requirement that each child be seated in a child restraint system while 
the vehicle is in motion, and the requirement that each bus have at 
least one bus monitor on board at all times. Waivers would be granted 
when the Head Start or Early Head Start grantee demonstrates that 
compliance with the requirement(s) for which the waiver is being sought 
will result in a significant disruption to the Head Start program or 
the Early Head Start program and that waiving the requirement(s) is in 
the best interest of the children involved. The proposed rules also 
would revise the definition of child restraint system in the 
regulation. The proposed change in the definition would remove the 
reference to weight which now conflicts with Federal Motor Vehicle 
Safety Standards.
    The regulation also is being amended to reflect new effective dates 
for Sec. Sec.  1310.12(a) and 1310.22(a) on the required use of school 
buses or allowable alternate vehicles and the required availability of 
such vehicles adapted for use of children with disabilities, as the 
result of enactment of Section 224 of Public Law 109-149.

DATES: In order to be considered, comments on this proposed rule must 
be received by July 31, 2006.

ADDRESSES: Please address comments to the Associate Commissioner, Head 
Start Bureau, Administration for Children, Youth and Families, Portals, 
Eighth Floor, 1250 Maryland Avenue SW., Washington, DC 20024. A copy of 
this regulation may be downloaded from http://www.regulation.gov. In 
addition, you may also transmit written comments electronically via the 
Internet at http://www.regulations.acf.hhs.gov. Comments will be 
available for public inspection at the Department's offices in Portals, 
8th Floor, 1250 Maryland Ave., SW., Washington, DC 20024, Monday 
through Friday 8:30 to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Craig Turner, Head Start Bureau, (202) 
205-8236. Deaf and hearing impaired individuals may call the Federal 
Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m. 
eastern time.

SUPPLEMENTARY INFORMATION:

Background

Waiver Authority

    On January 18, 2001, final Head Start transportation regulations 
were published in the Federal Register (66 FR 5296). These regulations, 
found at 45 CFR part 1310, contain several requirements designed to 
assure that Head Start children are safely transported to and from Head 
Start centers and apply to all Head Start and Early Head Start programs 
that provide transportation either directly, using program owned or 
leased vehicles, or through arrangements with private or public 
transportation providers, including local education agencies (LEAs). 
Different effective dates were included in the regulation for different 
requirements. The requirements that each vehicle used to transport 
children be equipped for use of child restraint systems and have a bus 
monitor was scheduled to become effective January 18, 2004.
    On January 16, 2004, the Department published an Interim Final Rule 
to amend the Head Start transportation regulation (69 FR 2513). The 
Interim Final Rule was published to extend the effective date of the 
child safety restraint and bus monitor requirements until June 21, 2004 
and to allow grantees an opportunity to request an additional extension 
of the effective date up to January 20, 2006, if they could demonstrate 
that this extension would be in the best interest of the children 
served.
    Through the authority provided in the Interim Final Rule, the 
Department granted over 500 extensions to the effective date of the 
regulation to January 20, 2006. Many of the grantees who applied for 
and received extensions described plans to come into compliance with 
the requirements by the January 20, 2006 deadline. Some of these 
grantees were in the process of purchasing child restraint systems 
which had been recently approved by the National Highway Traffic Safety 
Administration (NHTSA) for use in school buses without costly 
retrofitting. Others were in the process of hiring and training 
monitors, and purchasing compliant vehicles. However, some grantees, 
particularly those grantees participating in coordinated transportation 
arrangements, expressed no alternative but to discontinue 
transportation services to Head Start children.
    On December 30, 2005, the President signed Public Law 109-149 that 
included in Section 223 a provision that authorizes the Secretary of 
Health and Human Services to waive the requirements of regulations 
promulgated under the Head Start Act (42 U.S.C. 9831 et seq.), 
pertaining to child restraint systems or vehicle monitors if the Head 
Start or Early Head Start agency can demonstrate that compliance with 
such requirements will result in a significant disruption to the

[[Page 30646]]

program and that waiving the requirement is in the best interest of the 
children involved. This waiver authority extends until September 30, 
2006, or the date of the enactment of a statute that authorizes 
appropriations for fiscal year 2006 to carry out the Head Start Act, 
whichever date is earlier.
    These actions, the Interim Final Rule and the temporary extension 
provided by Public Law 109-149, were necessary to address the 
significant impact these transportation requirements were having on 
Head Start programs. Many Head Start agencies are local school systems 
that have agreed to provide free transportation services to enrolled 
Head Start children. Other agencies have arranged coordinated 
transportation services with local school districts, often receiving 
these services at no cost or reduced cost to the program. Integrating 
Head Start children into regular bus routes is often the most efficient 
and effective way to transport young children who may be widely 
dispersed over an agency's service area. In many of these collaborative 
arrangements Head Start children are picked up along with K-12 school 
children that live in the same neighborhood. In these situations, Head 
Start children often represent no more than a few pupils on a large 
school bus. The need to provide child restraint systems for these few 
Head Start children, the potential reduction in seating capacity 
related to the use of these systems, and multiple daily bus runs all 
combine to create significant obstacles for school systems and other 
agencies. The Department was more focused on those programs with 
dedicated buses; that is buses on which only Head Start children are 
transported.
    Of potentially greater impact is the requirement that each such bus 
have at least one monitor, irrespective of how few Head Start children 
might be on the bus. This could be prohibitively expensive if a 
monitor's salary is amortized among, for example, only three or four 
children. While many would support the argument that having a monitor 
on a bus filled with preschool age children would be appropriate, it is 
less clear that providing a monitor for three preschool age children is 
either appropriate or cost effective. In fact, the final rule published 
in 2001 included a discussion of alternatives for reducing the expense 
of providing monitors by having individual volunteers fill the role or 
by assigning bus monitor duties to individuals who are employed most of 
the time in filling other roles in the Head Start program. However, 
these alternatives are not practical when an agency other than a 
grantee is operating the bus.
    These rules propose a permanent solution to the issues addressed 
temporarily by the Interim Final Rule and Public Law 109-149.

Child Restraint System Definition and Applicability

    The 2001 Head Start transportation regulations also included a 
provision requiring that on vehicles equipped with such devices, each 
child weighing 50 pounds or less must be seated in a child safety 
restraint system, appropriate to the height and weight of the child. 
The Department defined child restraint system at 45 CFR 1310.3 to 
include devices for restraining, seating, or positioning children 
weighing 50 pounds or less which meet the requirements of the Federal 
Motor Vehicle Safety Standard 213, 49 CFR 571.213, issued by the 
National Highway Traffic Safety Administration (NHTSA). At the time, 
the Federal Motor Vehicle Safety Standard 213 (FMVSS) applied to 
systems for children weighing 50 pounds or less. In 2003, NHTSA amended 
FMVSS 213, establishing the current standard that applies to systems 
for children weighing 65 pounds (30 kilograms) or under. An additional 
increase of the weight has been proposed by NHTSA (see 70 FR 51720, 
August 31, 2005) for children weighing 80 pounds or under. We are 
proposing to change the definition of child restraint system in the 
regulations and the requirement for use of child restraint systems to 
reflect current NHTSA regulations with flexibility to address any 
future changes in the weight range covered by the NHTSA regulation.
    The proposed revision of the definition of child restraint system 
at 45 CFR 1310.2 will cover two categories of devices. The first 
category includes devices which meet the current definition of child 
restraint system, under the NHTSA regulation at 49 CFR 571.213. The 
second category in the proposed Head Start definition would include 
devices designed to restrain, seat, or position children, other than a 
Type I seat belt as defined at 49 CFR 571.209, for children not in the 
weight category currently established by 49 CFR 571.213. The second 
category would cover devices for children weighing more than the 
maximum weight covered under FMVSS 213. ACF believes that the vast 
majority of children enrolled in Head Start and Early Head Start are in 
the weight category covered by the existing NHTSA standard. According 
to Centers for Disease Control and Prevention data, 4.5 year old males 
in the 95th percentile for weight are less than 50 pounds. But because 
it is possible that children receiving Head Start or Early Head Start 
transportation services will weigh more than 65 pounds, the definition 
includes another category of devices suitable to the needs of these 
children.

Provisions of the Regulation

Section 1310.2--Waiver Authority and Effective Dates
    We propose to revise the waiver authority found in Sec.  1310.2(c) 
to expand the definition of ``good cause.'' Under the proposal, 
effective October 1, 2006, ``good cause'' for a waiver would exist when 
adherence to a requirement of the Head Start transportation regulation 
would create a safety hazard in the circumstances faced by the agency, 
or when compliance with requirements related to child restraint systems 
(Sec. Sec.  1310.11 and 1310.15(a)) or the use of bus monitors (Sec.  
1310.12(a)) would result in a significant disruption to the program and 
the grantee can demonstrate that waiving such requirements would be in 
the best interest of the children involved.
    The waiver authority currently provided in the regulation only 
applies when adherence to a requirement of this part would itself 
create a safety hazard in the circumstances faced by the agency. It 
further states that ``Under no circumstance will the cost of complying 
with one or more of the specific requirements of this part constitute 
good cause.'' The Department determined that the limited waiver 
authority provided under the regulation could not be applied to 
situations where agencies were coordinating services with local school 
districts and other transportation providers. The situations described 
by grantees in both their extension and waiver requests, while 
including collaboration and coordination with school systems as an 
important rationale, are based on cost, and therefore not covered under 
the current authority. The Department believes that expanding the 
definition of ``good cause'' is the best long-term solution to the 
concerns expressed by Congress, Head Start agencies, school districts, 
transit providers and the public in order to serve the best interests 
of children.
    Paragraph (b) would be revised to provide an effective date of 
October 1, 2006 for changes made by this proposed regulation.
    The Department also is proposing changing the effective date of 
Sec. Sec.  1310.12(a) and 1310.22(a) from January 18, 2006 to June 30, 
2006. The change is being made to reflect the

[[Page 30647]]

enactment of section 224 of Public Law 109-149, which provides Sec.  
1310.12(a) of title 45 of the Code of Federal Regulations (October 1, 
2004) shall not be effective until June 30, 2006, or 60 days after the 
date of the enactment of a statute that authorizes appropriations for 
fiscal year 2006 to carry out the Head Start Act, whichever date is 
earlier. Congress has not passed legislation authorizing a fiscal year 
2006 appropriation for the Head Start Act, so the Department is 
anticipating that Sec.  1310.12(a) will become effective on June 30, 
2006. If Congress acts before June 30, 2006, the final regulations will 
establish the date of enactment as the effective date for Sec.  
1310.12(a). The effective date for Sec.  1310.22(a) also is being 
changed because it applies to the school buses and allowable 
alternative vehicles that will be required to be used under Sec.  
1310.12(a) and now is also listed as being effective on January 18, 
2006. The text of Sec. Sec.  1310.12(a) and 1310.22(a) are also being 
amended to reflect the proposed effective date of June 30, 2006.
Section 1310.12 Required Use of School Buses or Allowable Alternate 
Vehicles and Section 1310.22 Children With Disabilities
    As indicated, we are proposing to amend paragraph (a) of Sec. Sec.  
1310.12 and 1310.22 to replace the January 18, 2006 effective date with 
June 30, 2006. These changes are needed to reflect the delayed 
effective date provided by section 224 of Public Law 109-149.

Definition and Requirements for Use of Child Restraint Systems

    We also propose to update and modify the definition and requirement 
for use of child restraint systems.
Section 1310.3--Definitions
    Under Sec.  1310.3, child restraint systems are currently defined 
as any device designed to restrain, seat, or position children who 
weigh 50 pounds or less which meets the requirements of Federal Motor 
Vehicle Safety Standard No. 213, Child Restraint Systems, 49 CFR 
571.213. NHTSA raised the weight threshold required for approved 
restraint systems and is considering raising it yet again. In addition, 
discussions with NHTSA indicate it would be advisable to include a 
formal reference to the exclusion of Type I lap belts for small 
children. Therefore, we propose to update the definition by removing 
the weight requirement in order to stay current with FMVSS 49 CFR 
571.213, and to exclude Type I lap belts as defined at 49 CFR 571.209. 
The new definition would read, ``Child Restraint System means any 
device designed to restrain, seat, or position children that meets the 
current requirements of Federal Motor Vehicle Safety Standard No. 213, 
Child Restraint Systems, 49 CFR 571.213, for children in the weight 
category established under the regulation, or any device designed to 
restrain, seat, or position children, other than a Type I seat belt as 
defined at 49 CFR 571.209, for children not in the weight category 
currently established by 49 CFR 571.213.''
Section 1310.15--Operation of Vehicles
    Section 1310.15(a) of the regulation currently states that each 
agency providing transportation services must ensure that, ``On a 
vehicle equipped for use of such devices, any child weighing 50 pounds 
or less is seated in a child restraint system appropriate to the height 
and weight of the child while the vehicle is in motion.'' As discussed 
earlier, the definition of the child restraint system must be updated 
to reflect FMVSS standards. We propose to remove the poundage reference 
to include those few Head Start and Early Head Start children who are 
over 50 pounds in the requirement for the use of child restraint 
systems to coincide with the change in the definition.
    We also propose to revise the language to clarify that the 
regulation applies only to Head Start and Early Head Start enrolled 
children. In coordinated transportation arrangements, questions have 
been raised regarding the applicability of this requirement to other 
children on the bus.
    Under the proposal, the language would require that any child 
enrolled in a Head Start or Early Head Start program is seated in a 
child restraint system appropriate to the child's height and weight 
while the vehicle is in motion.

Paperwork Reduction Act

    This notice of proposed rulemaking contains information collection 
requirements in Sec.  1310.2. This summary includes the estimated costs 
and assumptions for the paperwork requirements related to this proposed 
rule. A copy of this information collection request is available on our 
Web site at http://regulation.acf.hhs.gov and also can be obtained in 
hardcopy by contacting Craig Turner at the Head Start Bureau, (202) 
205-8236. These paperwork requirements have been submitted to the 
Office of Management and Budget for review under number 0970-0260 as 
required by 44 U.S.C. 3507(a)(1)(c) of the Paperwork Reduction Act of 
1995, as amended. Respondents are not required to respond to any 
collection of information unless it displays a current valid OMB 
control number.
    The Head Start Bureau estimates that the proposed rule would create 
275 burden hours annually. Table 1 summarizes burden hours by grantee. 
We estimate 1 hour of paperwork burden for each Head Start grantee 
requesting a transportation waiver. The waiver request would include 
basic information to identify the grantee, the nature of the 
transportation services provided and the children affected and a 
justification for the waiver. We estimate receiving no more than 275 
requests resulting in a total burden of 275 hours. We will utilize a 
Web-based waiver request process, so expect no additional overhead in 
the management of the relatively small number of applications 
anticipated.

              Table 1.--Total Burden Hours of Proposed Rule
        [Summary of All Burden Hours, by Provision, for Grantees]
------------------------------------------------------------------------
                                                            Annualized
                        Provision                          burden hours
------------------------------------------------------------------------
1310.2..................................................             275
                                                         ---------------
    Total...............................................             275
------------------------------------------------------------------------

    New information collection requirements are imposed by Sec.  1310.2 
of these regulations. Section 1310.2 authorizes the responsible HHS 
official to approve waiver requests related to the use of child 
restraint systems and bus monitors when the grantee provides 
information documenting that such a waiver will result in a significant 
disruption to the program and the agency demonstrates that waiving such 
requirements is in the best interest of the children involved, as set 
out in guidance provided by HHS.
    HHS is working with OMB to obtain approval of the associated burden 
in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)) before the effective date of the proposed rule. Comments on 
this proposed information collection should be directed to Robert 
Sargis, ACF Reports Clearance Officer, by e-mailing http://regulations.acf.hhs.gov or faxing (202) 401-5701. HHS will provide 
notification regarding that approval and the procedures necessary to 
submit an application for extension at http://regulations.acf.hhs.gov 
or by contacting Robert Sargis at 202-690-7275 or by faxing 202-401-
5701.

[[Page 30648]]

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), and enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
result in a significant impact on a substantial number of small 
entities. The regulation provides flexibility and clarity in meeting 
the Head Start transportation requirements while ensuring child safety.

Regulatory Impact Analysis

    Executive Order 12866 requires that regulations be revised 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.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act requires that a 
covered agency prepare a budgetary impact statement before promulgating 
a rule that includes any Federal mandate that may result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year. The 
Department has determined that this rule would not impose a mandate 
that will result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million in any one year.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulation may affect family well being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing seven criteria specified in the law. These 
regulations will not have an impact on family well being as defined in 
the legislation.

Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
Federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the States, or on the distribution 
of powers and responsibilities among the various levels of 
government.'' This rule does not have Federalism implications for State 
or local governments as defined in the Executive Order.

List of Subjects in 45 CFR Part 1310

    Head Start, Reporting and recordkeeping requirements, 
Transportation.

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

Wade F. Horn,
Assistant Secretary for Children and Families.
    Dated: May 4, 2006.
Michael O. Leavitt,
Secretary of Health and Human Services.

    For the reasons discussed above, title 45 CFR chapter XIII is 
proposed to be amended as follows:

PART 1310--HEAD START TRANSPORTATION

    1. The authority citation for part 1310 continues to read as 
follows:

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

    2. Revise paragraphs (b) and (c) of Sec.  1310.2 to read as 
follows:


Sec.  1310.2  Applicability.

* * * * *
    (b) This paragraph and paragraph (c) of this section, the 
definition of child restraint systems in Sec.  1310.3 of this part, and 
Sec.  1310.15(a) are effective October 1, 2006. Sections 1310.11 and 
1310.15(c) of this part are effective June 21, 2004. Sections 
1310.12(a) and 1310.22(a) are effective June 30, 2006. Section 
1310.12(b) of this part is effective February 20, 2001. All other 
provisions of this part are effective January 18, 2002.
    (c) Effective October 1, 2006, an agency may request a waiver of 
specific requirements of this part, except for the requirements of this 
paragraph. Requests for waivers must be made in writing to the 
responsible Health and Human Services (HHS) official, as part of an 
agency's annual application for financial assistance or amendment 
thereto, based on good cause. ``Good cause'' for a waiver will exist 
when adherence to a requirement of this part would itself create a 
safety hazard in the circumstances faced by the agency, or when 
compliance with requirements related to child restraint systems 
(Sec. Sec.  1310.11, 1310.15(a)) or bus monitors (Sec.  1310.12(a)) 
will result in a significant disruption to the program and the agency 
demonstrates that waiving such requirements is in the best interest of 
the children involved. The responsible HHS official is not authorized 
to waive any requirements of the Federal Motor Vehicle Safety Standards 
(FMVSS) made applicable to any class of vehicle under 49 CFR part 571. 
The responsible HHS official shall have the right to require such 
documentation as the official deems necessary in support of a request 
for a waiver. Approvals of waiver requests must be in writing, be 
signed by the responsible HHS official, and be based on good cause.
* * * * *
    2. Revise the definition of Child Restraint System in Sec.  1310.3 
to read as follows:


Sec.  1310.3  Definitions.

* * * * *
    Child Restraint System means any device designed to restrain, seat, 
or position children that meets the current requirements of Federal 
Motor Vehicle Safety Standard No. 213, Child Restraint Systems, 49 CFR 
571.213, for children in the weight category established under the 
regulation, or any device designed to restrain, seat, or position 
children, other than a Type I seat belt as defined at 49 CFR 571.209, 
for children not in the weight category currently established by 49 CFR 
571.213.
* * * * *


Sec.  1310.12  [Amended]

    3. In Sec.  1310.12, amend paragraph (a) by removing ``January 18, 
2006'' and adding ``June 30, 2006'' in its place.
    4. Revise Sec.  1310.15(a) to read as follows:


Sec.  1310.15  Operation of vehicles.

* * * * *
    (a) Effective October 1, 2006, on a vehicle equipped for use of 
such devices, any child enrolled in a Head Start or Early Head Start 
program is seated in a child restraint system appropriate to the 
child's height and weight while the vehicle is in motion.
* * * * *


Sec.  1310.22  [Amended]

    5. In Sec.  1310.22, amend paragraph (a) by removing ``January 18, 
2006'' and adding ``June 30, 2006'' in its place.

 [FR Doc. E6-8222 Filed 5-26-06; 8:45 am]
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