[Federal Register: May 30, 2006 (Volume 71, Number 103)]
[Proposed Rules]
[Page 30645-30648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my06-33]
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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]
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Annualized
Provision burden hours
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1310.2.................................................. 275
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Total............................................... 275
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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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