[Federal Register Volume 71, Number 192 (Wednesday, October 4, 2006)]
[Rules and Regulations]
[Pages 58533-58536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16488]


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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 for Children and Families (ACF), DHHS.

ACTION: Final rule.

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SUMMARY: This rule finalizes the provisions of the proposed rule 
published on May 30, 2006 and responds to public comments received as a 
result of the proposed rule. This final rule 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 rule also revises the 
definition of child restraint system in the regulation to remove the 
reference to weight which now conflicts with Federal Motor Vehicle 
Safety Standards.
    The regulation also reflects new effective dates for 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 and Section 7012 of 
Public Law 109-234.

DATES: These rules are effective November 3, 2006, except sections 
1310.12(a) and 1310.22(a) will become effective on December 30, 2006.

FOR FURTHER INFORMATION CONTACT: Office of Head Start, (202) 205-8572. 
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: 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 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 rules extend that 
limited waiver authority indefinitely.
    The rules also provide a definition of child restraint system in 
the Head Start regulations and codify in Head Start regulations the 
requirement for use of child restraint systems to reflect current 
National Highway Traffic Safety Administration (NHTSA) regulations with 
flexibility to address any future changes in the weight range covered 
by the NHTSA regulation. NHTSA is the agency responsible for issuing 
Federal Motor Vehicle Safety Standards.
    Finally, this rule removes provisions added to section 1310.11(b) 
and 1310.15(c) that are no longer necessary.

Summary Description of Regulatory Provisions and Response to Comments

Section 1310.2--Waiver Authority and Effective Dates

    The regulation provides that effective November 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 (Secs. 1310.11 and 
1310.15(a)) or the use of bus monitors (Sec. 1310.15(c) 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. We are using the November 1, 2006 effective date in 
recognition that the rule will not be effective until 30 days from the 
date of publication. In concert with this change, we also have added 
language under this section to ensure there is no gap in waivers 
between October 1, 2006 and November 1, 2006. That language provides 
that the responsible HHS official has authority to grant waivers 
related to child restraint systems or bus monitors that are retroactive 
to October 1, 2006, during the period from November 1, 2006 to October 
30, 2007.
    The regulation also provides that the effective date of Sec. 
1310.12(a) and 1310.22(a) is December 30, 2006, reflecting 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 and 
subsequent enactment of Section 7021 of Public

[[Page 58534]]

Law 109-234 extending this date to December 30, 2006. In the event that 
legislation authorizing appropriations for fiscal year 2006 to carry 
out the Head Start Act is enacted before November 1, 2006, a notice 
informing the public of the new effective date of Sections 
1310.2(b)(1), 1310.12(a) and 1310.22(a) will be issued.

Comment

    The majority of comments received support the proposed change to 
the waiver authority in the regulation. Concern over the potential loss 
of partnerships with school districts and loss of transportation 
services for Head Start children were cited. Over half expressed 
support for both bus monitor and child restraint system exceptions. 
Some letters also described circumstances related to one or the other 
of the two requirements. Two commenters suggested waivers be approved 
for a period exceeding one year. In addition, two Head Start agencies 
perceived the notice of proposed rulemaking as an opportunity to submit 
waiver requests.
    Three respondents indicated opposition to this change and instead 
suggested eliminating the requirements altogether so waivers would not 
be needed. One commenter opposed the change based on concern that Head 
Start will lose ground in providing safe transportation services for 
young children. A child restraint manufacturer described the 
availability of child restraint systems designed specifically for use 
in school buses and allowable alternate vehicles that have come on the 
market in recent years. One commenter expressed opposition based on 
concerns for safety, and another said that enough time had passed since 
the regulation was published that all Head Start programs should now 
achieve full compliance.

Response

    The Administration for Children and Families (ACF) agrees with the 
need to provide a mechanism to address the circumstances faced by 
individual agencies related to these issues. We maintain the view that 
the opportunity for annual authority is necessary in order to keep pace 
with changes in the industry and communities. Agencies should 
continuously seek opportunities to come into full compliance with 
support from the Head Start Technical Assistance system. In response to 
the concern that more agencies will request waivers, agencies will be 
required to justify their requests and to describe efforts toward 
achieving the goal of full compliance. ACF will publish guidance 
related to the circumstances under which requests will be approved. 
Except in extreme circumstances, those agencies who have previously 
achieved compliance will not receive waivers.

Definition and Requirements for Use of Child Restraint Systems

    This rule also updates and modifies the definition and requirements 
for use of child restraint systems. Under Sec. 1310.3, child restraint 
systems were 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 have updated 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.

Comment

    One commenter expressed appreciation for the Agency's proposal to 
update the definition of child restraint system, but notes the improved 
definition will have no meaningful effect if the restraint requirements 
are waived. One Head Start grantee expressed dismay that funding is not 
available to purchase more child restraint systems for those children 
who will require these systems under the revised definition.

Response

    We believe the improved definition will impact Head Start 
transportation services and therefore children positively. Agencies 
that may request and receive waiver approvals are the exception. With 
regard to funding, we wish to note that since publication of the NPRM a 
considerable amount of money has been made available to grantees to 
achieve compliance with the child restraint system and bus monitor 
requirements.

Section 1310.15--Operation of Vehicles

    Section 1310.15(a) of the regulation provided 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 is being updated 
to reflect FMVSS standards. We have removed 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 revised 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 regulation, the language requires 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.
    Comments related to the definition of child restraint systems are 
included above. No comments were received related to applicability of 
this requirement to other children on the bus.

Paperwork Reduction Act

    This rulemaking contains information collection requirements in 
Sec. 1310.2. This summary includes the estimated costs and assumptions 
for the paperwork requirements related to this rule. These paperwork 
requirements have been approved by the Office of Management and Budget 
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 Office of Head Start estimates that the 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.

[[Page 58535]]



                  Table 1.--Total Burden Hours of Rule
        [Summary of All Burden Hours, by Provision, for Grantees]
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                                                              Annualized
                         Provision                              burden
                                                                hours
------------------------------------------------------------------------
1310.2.....................................................          275
    Total..................................................          275
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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 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.
Michael O. Leavitt,
Secretary of Health and Human Services.

0
For the reasons discussed, title 45 CFR chapter XIII is amended as 
follows:

PART 1310--HEAD START TRANSPORTATION

0
1. The authority citation for part 1310 continues to read as follows:

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


0
2. Revise paragraphs (b) and (c) of Sec.  1310.2 to read as follows:


Sec.  1310.2  Applicability.

* * * * *
    (b)(1) Sections 1310.12(a) and 1310.22(a) of this part are 
effective December 20, 2006.
    (2) 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 November 1, 2006. Sections 1310.11 and 
1310.15(c) of this part are effective June 21, 2004. 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 November 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 (Secs. 
1310.11, 1310.15(a)) or bus monitors (Sec. 1310.15(c)) 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. In addition, the responsible HHS official shall have the 
authority to grant waivers of the requirements related to child 
restraint systems (Sec. 1310.11, 1310.15(a)) or bus monitors (Sec. 
1310.15(c)) that are retroactive to October 1, 2006 during the period 
from November 1, 2006 to October 30, 2007. 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.

0
2. Revise the definition of Child Restraint System in Sec.  1310.3 to 
read as follows:


Sec.  310.3  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.  1310.11  [Amended]

0
3. In Sec.  1310.11, remove and reserve paragraph (b).


Sec.  1310.12  [Amended]

0
4. In Sec.  1310.12, amend paragraph (a) by removing ``January 18, 
2006'' and adding ``December 30, 2006'' in its place.

0
5. Revise Sec.  1310.15(a) and (c) 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.
    (b) * * *
    (c) Effective June 21, 2004, there is at least one bus monitor on 
board at all

[[Page 58536]]

times, with additional bus monitors provided as necessary, such as when 
needed to accommodate the needs of children with disabilities. As 
provided in 45 CFR 1310.2(a), this paragraph does not apply to 
transportation services to children served under the home-based option 
for Head Start and Early Head Start.
* * * * *


Sec.  1310.22  [Amended]

0
6. In Sec.  1310.22, amend paragraph (a) by removing ``January 18, 
2006'' and adding ``December 30, 2006'' in its place.

 [FR Doc. E6-16488 Filed 10-3-06; 8:45 am]
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