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.

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 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.

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) 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.

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.

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 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

For the reasons discussed above, title 45 CFR Chapter XIII is 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. Amend § 1310.2 to revise the second sentence of paragraph (b) to read as follows:

3. Revise §1310.11 (added on January 18, 2001 at 66 FR 5311 and effective January 20, 2004) to read as follows:

4. Amend § 1310.15 to revise paragraph (c) (added on January 18, 2001 at 66 FR 5311 and effective January 20, 2004) to read as follows: