[Federal Register: October 4, 2006 (Volume 71, Number 192)]
[Rules and Regulations]
[Page 58533-58536]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04oc06-15]
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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
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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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