[Federal Register: January 16, 2004 (Volume 69, Number 11)]
[Rules and Regulations]
[Page 2513-2517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja04-13]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1310
RIN 0970-AC16
Head Start Program
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), DHHS.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule will extend for 150 days those parts
of the Head Start transportation regulation that deal with the
requirement that each vehicle used to transport children is equipped
for use of child safety restraint systems and the requirement that each
bus have a bus monitor. Additionally, these rules will provide Head
Start grantees the opportunity to request further extension of the
effective date when such an extension is in the best interest of the
children they serve.
DATES: These regulations are effective February 17, 2004. In providing
this 30 day delay of the effective date, ACF is complying with section
644(d) of the Head Start Act which requires that at least 30 days prior
to the effective date, all rules, regulation, and application forms
shall be published in the Federal Register and shall be sent to each
grantee with the notification that each such grantee has the right to
submit comments prior to the final adoption thereof as well as the
relevant requirements of the Administrative Procedures Act by
publishing the notice of the interim final regulations in the Federal
Register as well as mailing copies to individual grantees.
Consideration will be given to comments received by March 16, 2004.
ADDRESSES: You may submit your comments in writing to the Associate
Commissioner, Head Start Bureau, 330 C Street, SW., Washington, DC
20447. Comments will be available for public inspection Monday through
Friday 8:30 a.m. to 5 p.m. at the Department's offices at the above
address. You may also transmit written comments electronically via the
Internet at:
http://regulations. acf. hhs. gov.
FOR FURTHER INFORMATION CONTACT: Craig Turner, (202) 205-8572.
SUPPLEMENTARY INFORMATION:
Justification for Interim Final Rule
The Administrative Procedure Act requirements for notice of
proposed rulemaking (NPRM) do not apply to rules when the agency for
good cause finds, and incorporates the finding, and a brief statement
of the reasons therefore in the rules issued, that notice thereon is
impracticable, unnecessary or contrary to the public interest. The
Department believes that amending certain provisions of the Head Start
transportation regulations under 45 CFR part 1310, before their current
effective date of January 20, 2004 is of such importance, that
publishing a notice of proposed rulemaking would be contrary to the
public interest.
Since the publication of 45 CFR part 1310, the Department has been
informed of what we believe to be significant issues which, if not
addressed, could result in many children being denied transportation
services to and from their Head Start program and many grantees being
cited with deficiencies which could lead to the termination of their
Head Start grants. Furthermore, the Department is now aware of several
new factors which have only come to the Department's attention since
promulgation of the final rule and believes these factors warrant
reconsideration of some of the requirements of this regulation.
Many Head Start programs operate coordinated transportation
programs in which they arrange for other agencies to provide
transportation services, often at reduced or no cost to the program. In
addition, many Head Start grantees that are local school systems
provide, using the school system's resources, free transportation to
Head Start children. It has come to the Department's attention
[[Page 2514]]
that many such arrangements integrate Head Start children into the on-
going transportation system administered by the school system or other
transportation provider. Head Start children ride the same bus as
school age children and often represent only a few of the several dozen
children on the bus. In considering the impact of this regulation, the
Department did not fully appreciate the impact on such arrangements but
rather was more focused on those programs with dedicated buses; that is
buses on which only Head Start children are transported. Many school
systems, and other transportation providers, forced to conform to the
requirements of child restraint systems and monitors have indicated
they will discontinue transportation services for Head Start children.
This will not only diminish Head Start's ability to engage as a
community player with other local organizations but will result in many
Head Start grantees choosing to discontinue the provision of
transportation services, as such services are not mandated. This will
likely disenfranchise many families with no ability to get their
children to and from the Head Start center and will pose significant
safety risks for other children who now instead of being transported on
a school bus will be transported in private vehicles which have been
shown in studies by the National Highway Transportation Safety
Administration (NHTSA) to put children at greater risk. We believe it
more prudent to explore with the Department's transportation partners
what alternatives might be available to assure children continue to be
safely transported on school buses.
We have also come to understand that some earlier assumptions about
possible options for implementing this regulation may have not been
entirely correct. For example, requiring child restraint systems often
times requires retrofitting a bus to make the installation of such
seats possible and such retrofitting can, in and of itself, cause
safety issues that may put children at risk. In addition, we have also,
since the regulation's publication, been informed that one of the major
requirements--that children up to 50 pounds be secured in child
restraint systems should be reconsidered. This requirement was based on
the National Highway Transportation and Safety Administration's (NHTSA)
standards which were developed for restraint systems used in passenger
vehicles. Crash testing by NHTSA with pre-school size dummies in school
buses suggests that, because of the compartmentalization of a bus, only
children less than 40 pounds need to be seated in child restraint
systems. The Department believes regulations which may implement
inappropriate requirements should be revisited.
Another consideration that led the Department to conclude an
Interim Final Regulation is appropriate is our better understanding of
some of the consequences which may result in grantees not fully
implementing these requirements. Specifically, Head Start grantees
which, during an on-site monitoring visit, were determined to not be
complying with the restraint system/monitor requirement would be
designated as deficient, and these programs would face the threat of
having their grants terminated if they did not immediately bring their
programs into compliance. This could result in many programs choosing
to relinquish their transportation programs, only to discover that some
months later, the Department had, through an NPRM process, chosen to
provide an opportunity for an extension of the effective date; thus
causing considerable disruption to those grantees and their enrolled
children and families. Such grantees would then need to try and
reimplement transportation programs which had been put in abeyance.
Causing this type of situation in order to follow the full process of
an NPRM seems unnecessary and unreasonable. There seems little gain in
forcing those programs discovered to be not complying with this
regulation (i.e. those grantees monitored for the first several months
after January 20) to remedy a situation which may become moot in a
relatively short time period.
The Department sought other solutions to ensure timely and
effective implementation of the requirements for bus monitors and child
safety restraint systems but determined that none were practicable and
that rulemaking is necessary. For example, several grantees sought
relief from these requirements through the waiver authority provided
under existing Head Start regulations at 45 CFR 1310.2(c). However, we
determined that the limited waiver authority provided under the
regulations did not envision the types of problems grantees are facing
and that these grantees would not meet the test set out in regulations.
Similarly, we attempted to assist grantees in meeting these rules
through the provision of technical assistance. However, as discussed
earlier, the issues involved are varied and widespread and cannot be
addressed through the normal technical assistance route which offers
limited one-time funding to assist individual grantees.
Therefore, the Department has determined that an Interim Final
Regulation providing grantees a short-term extension of 150 days with
the opportunity to request a longer extension of the effective date for
child safety restraints and monitors when such an extension would be in
the best interest of children they serve is warranted. Moreover, the
Department will carefully consider appropriate solutions to the issues
discussed above and, should changes to the current regulation be
warranted, will pursue appropriate changes to the Head Start
transportation regulation through a notice of proposed rulemaking.
In accordance with Section 644(d) of the Head Start Act as well as
the relevant requirements of the Administrative Procedures Act, we are
publishing notice of the interim final regulation and mailing copies to
individual grantees 30 days prior to the effective date.
Background
On January 18, 2001, the final Head Start transportation regulation
was published in the Federal Register (66 FR 5296). This regulation,
under 45 CFR part 1310, contains 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 are included in the regulations for
different requirements. The requirement, for example, that children be
transported in school buses or allowable alternate vehicles does not
take effect until January 18, 2006 while the requirement that each
vehicle used to transport children is equipped for use of child safety
restraint systems takes effect two years earlier on January 20, 2004.
This rule defers the effective date of the child safety restraint
(45 CFR 1310.11) and the attendant bus monitor requirements (45 CFR
1310.15(c)) for 150 days and provides grantees the opportunity to
request the date for their individual compliance be extended to not
later than January 18, 2006, concurrent with the effective date of the
school bus requirement, when such an extension would be in the best
interest of the children they serve.
[[Page 2515]]
Provisions of the Regulation
As indicated above, two sections of the regulations are scheduled
to become effective on January 20, 2004; specifically, the regulations
related to child safety restraints (45 CFR 1310.11) and bus monitors
(45 CFR 1310.15(c)). Section 1310.11 requires that vehicles used to
transport children weighing 50 pounds or less be equipped for use of
child safety restraint systems compliant with Federal Motor Vehicle
Safety Standard (FMVSS) 213. Section 1310.15(c) states that vehicles
must be staffed with at least one bus monitor in addition to the
driver.
We believe that implementation of these two requirements should be
deferred while the Department of Health and Human Services considers to
what extent, if any, exceptions to these two requirements should be
permitted.
Many Head Start agencies are local school systems that have agreed
to provide, as a local contribution, 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. All of the other pupils weigh more than the amount at which
child safety restraint systems are needed. The need to reconfigure
seats to install child safety restraint systems for these few Head
Start children, the reduction in the total number of children that can
be transported on a modified bus, and multiple daily bus runs all
combine to create significant obstacles for school systems and other
agencies.
Of potentially greater impact is that each such bus, under current
requirements, would need to 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 but these alternatives
are not practical when an agency other than a grantee is operating the
bus.
Our concern is that these requirements will result in school
systems and other contracted providers discontinuing the provision of
transportation to Head Start children. This is an issue either because
the monitor costs are prohibitively high or because the child safety
restraint requirement will result in schools needing more buses to
transport fewer children, again resulting in increased costs. Head
Start grantees without free transportation services will need to either
discontinue transportation services, forcing parents to transport
children to and from Head Start centers--with all the potential safety
issues such a situation could entail--or reduce enrollment in order to
free up sufficient funds to pay for what had previously been a free
service.
A few examples illustrate this point.
A school district in Kentucky serves over 97,000 students K-12.
Approximately 3,900 Head Start children are transported by the district
on 266 school buses. Adding child safety restraints would reduce the
seating capacity of these buses, requiring the school district to
purchase additional buses and add bus runs. Hiring 266 monitors would
cost millions of dollars and be cost prohibitive.
At least ten school districts in the Philadelphia area have said
they will curtail the provision of transportations services to Head
Start children.
Similar concerns have been echoed throughout the country. Waiver
requests and correspondence have come in, and more are anticipated as
the deadline approaches and grantees submit their annual refunding
applications.
Additionally, we believe the single most important safety feature
in the Head Start transportation regulations is the requirement that
children be transported on buses. Study after study, conducted by the
NHTSA and others, clearly establish that children should be transported
in buses and that children transported in other vehicles, such as
passenger vans, are at much greater risk. We are concerned that use of
funds for the cost of bus monitors and child safety restraint systems
would discourage grantees from voluntary early compliance with the
requirement for use of school buses or alternative vehicles, which
would have a greater impact on the safety of children than compliance
with either the bus monitor or child safety restraint requirement.
Finally, as explained in detail earlier under the justification for
the interim final rule, the Department is aware of other new factors,
including safety factors, since promulgation of the final rule which
provide compelling support for providing flexibility in the effective
date of the provisions addressing child restraint systems and bus
monitors while we consider these provisions more thoughtfully. We
continue to believe that the best interest of children should be our
paramount concern and that failure to provide some relief on the
January 20, 2004 effective date could jeopardize children.
For these reasons, we are revising section 45 CFR 1310.11 to
provide under paragraph (a) that effective June 21, 2004, rather than
January 20, 2004, each agency providing transportation services must
ensure that each vehicle used to transport children receiving Head
Start services is equipped for the use of height- and weight-
appropriate child safety restraint systems.
The rule also adds a new paragraph (b) under section 1310.11 to
provide that the responsible HHS official will approve requests to
extend this deadline to not later than January 18, 2006 when: (1) The
grantee provides notification of its intent to seek such an extension
by March 1, 2004; and (2) the grantee submits by April 1, 2004 a
request for an extension with information documenting that an extension
through the period requested (but not later than January 20, 2006)
would be in the best interest of the children served, as set out in
guidance provided by HHS.
Similarly, we are revising 45 CFR 1310.15(c) to provide under a new
paragraph (c)(1) that effective June 21, 2004, rather than January 20,
2004, there is at least one bus monitor on board at all times, with
additional bus monitors provided, as necessary, such as when needed to
accommodate the needs of children with disabilities. We also have added
a new paragraph (c)(2) to section 1310.15 to provide that the
responsible HHS official will approve requests to extend this deadline
to not later than January 20, 2006 when: (1) The grantee provides
notification of its intent to seek such an extension by March 1, 2004;
and (2) the grantee submits by April 1, 2004 a request for an extension
with information documenting that an extension through the period
requested (but not later than January 20, 2006)
[[Page 2516]]
would be in the best interest of the children served, as set out in
guidance provided by HHS. We note that the waiver provisions of 45 CFR
1310.2(c) is distinct from the provision allowing for postponement for
the requirements for child safety restraint systems and bus monitors.
Requests under section 1310.11(b) and 1310.15(c)(2) may be combined
and may be based on the same documentation since these requirements are
so closely interwoven, i.e., the role of the monitor under section
1310.15(c) is largely to assist children with the child safety
restraint systems required under section 1310.11(a) of the interim
final rule. HHS will issue further guidance on the process for seeking
extensions shortly.
We are also making a conforming change to 45 CFR 1310.2(b), which
summarizes the effective dates of the various provisions of the
regulations to provide that Sections 1310.11 and 1310.15(c) of this
part are effective June 21, 2004.
As indicated earlier, rules under 45 CFR 1310, including these
changes, 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).
Thus this rule provides an immediate extension of 150 days of the
requirements for child safety restraint systems and bus monitors. We
selected this time period because we believe it will provide grantees
sufficient time to consider their individual circumstances and to
consider if circumstances warrant submission of an application for an
extension without disrupting services or subjecting children to
potentially dangerous alternative modes of transportation. In addition,
this would extend the provision to nearly the end of the Head Start
grantee program year which would further prevent program disruption.
In tandem with these rules, we will evaluate the issues raised on
the requirements for child safety restraint systems and bus monitors
and seek solutions for the safest, most effective transportation
systems possible for Head Start and Early Head Start children and
families.
Finally, we note that this rulemaking would address Congressional
concerns which have suggested the need for some flexibility in the
current regulations, especially where local education agencies and Head
Start integrate transportation services.
Paperwork Reduction Act
This interim final rule contains information collection
requirements in sections 1310.11(b) and 1310.15(c)(20). This summary
includes the estimated costs and assumptions for the paperwork
requirements related to this interim final rule. A copy of this
information collection request is available on our Web site at http://regulations.acf.hhs.gov
and can also be obtained in hardcopy by
contacting Craig Turner at the Head Start Bureau, ACF. 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. 3504(h) 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 interim final rule would
create 1,670 burden hours in the first and only year of collection with
related annualized costs of $41,750 for respondents and $50,100 for the
Federal government. Table 1 summarizes number of costs by grantee. On a
per grantee basis, the Head Start Bureau estimates the same paperwork
for all relevant grantees. This is a onetime grantee collection.
Table 1.--Estimate of Respondents Hour Burden and Annualized Burden
Hours Costs
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Number of grantees and delegates........................ 1,670
Hours per respondent.................................... 1
Cost per respondent..................................... $25
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Total costs........................................... $41,750
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The paperwork burden is summarized by total annualized burden hours
by provision (Table 2) and by total annualized burden costs by
provision (Table 3). New information collection requirements are
imposed by sections 1310.11(b) and 1310.15(c)(2) of these regulations.
Section 1310.11(b) requires the responsible HHS official to approve
requests to extend the relevant deadline to no later than January 20,
2006 when (1) the grantee provides notification of its intent to seek
such an extension by March 1, 2004; and (2) the grantee submits by
April 1, 2004 a request for an extension with information documenting
that an extension through the period requested (but not later than
January 20, 2006) would be in the best interest of the children served,
as set out in guidance provided by HHS. Section 1310.15(c)(2) requires
the responsible HHS official to approve requests to extend this
deadline to not later than January 20, 2006 when (A) the grantee
provides notification of its intent to seek such an extension by March
1, 2004; and (B) the grantee submits by April 1, 2004 a request for an
extension with information documenting that an extension through the
period requested (but not later than January 20, 2006) would be in the
best interest of the children served, as set out in guidance provided
by HHS. Requests under section 1310.11(b) and 1310.15(c)(2) may be
combined and may be based on the same documentation.
HHS is working with OMB to obtain emergency approval of the
associated burden by February 1, 2004 in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)) before the effective date of
the 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.
Table 2.--Total Burden Hours of Interim Final Rule Summary of All Burden
Hours, by Provision, for Grantees
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Annualized
Provision burden hours
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1310.11(b).............................................. 835
1310.15(c)(2)........................................... 835
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Total................................................. 1,670
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Table 3.--Total Burden Costs of Interim Final Rule Summary of All Burden
Costs, by Provision, for Grantees
------------------------------------------------------------------------
Annualized
Provision burden costs
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1310.11(b).............................................. $20,875
1310.15(c)(2)........................................... 20,875
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Total................................................. 41,750
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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 merely provides flexibility in meeting the
effective date
[[Page 2517]]
of certain existing Head Start transportation requirements.
Regulatory Impact Analysis
Executive Order 12866 requires that regulations be reviewed 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 rule is considered a ``significant regulatory action'' under
the Executive Order, and therefore has been reviewed by the Office of
Management and Budget.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Report 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.
Congressional Review
This regulation is not a major rule as defined in 5 U.S.C. chapter
8.
Assessment of Federal Regulation 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 distributions
of power 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 Subject in 45 CFR Part 1310
Head Start, Reporting and recordkeeping requirements,
Transportation.
(Catalog of Federal Domestic Assistance Program Number 93.600, Head
Start)
Approved: December 22, 2003.
Wade F. Horn,
Assistant Secretary for Children and Families.
Dated: January 8, 2004.
Tommy G. Thompson,
Secretary of Health and Human Services.
0
For the reasons discussed above, 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. Amend Sec. 1310.2 to revise the second sentence of paragraph (b) to
read as follows:
Sec. 1310.2 Applicability
(a) * * *
(b) * * * Sections 1310.11 and 1310.15(c) of this part are
effective June 21, 2004. * * *
* * * * *
0
3. Revise Sec. 1310.11 (added on January 18, 2001 at 66 FR 5311 and
effective January 20, 2004) to read as follows:
Sec. 1310.11 Child Restraint Systems.
(a) Effective June 21, 2004, each agency providing transportation
services must ensure that each vehicle used to transport children
receiving such services is equipped for use of height- and weight-
appropriate child safety restraint systems.
(b) The responsible HHS official may approve a request to extend
the effective date under paragraph (a) of this section to not later
than January 20, 2006, if:
(1) Notification is received by March 1, 2004 that such a request
to the responsible HHS official will be forthcoming; and
(2) The request for an extension is submitted by April 1, 2004 with
information documenting that an extension through the period requested
(but not later than January 20, 2006) would be in the best interest of
the children served by the Head Start or Early Head Start programs, as
set out in guidance provided by HHS.
0
4. Amend Sec. 1310.15 to revise paragraph (c) (added on January 18,
2001 at 66 FR 5311 and effective January 20, 2004) to read as follows:
Sec. 1310.15 Operation of vehicles.
* * * * *
(c)(1) Effective June 21, 2004, there is at least one bus monitor
on board at all 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.
(2) The responsible HHS official may approve a request to extend
the effective date under paragraph (a) of this section to not later
than January 20, 2006, if:
(i) Notification is received by March 1, 2004 that such a request
to the responsible HHS official will be forthcoming; and
(ii) The request for an extension is submitted by April 1, 2004
with information documenting that an extension through the period
requested (but not later than January 20, 2006) would be in the best
interest of the children served by the Head Start or Early Head Start
programs, as set out in guidance provided by HHS.
* * * * *
[FR Doc. 04-1096 Filed 1-15-04; 8:45 am]
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