Head Start Program

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1302

RIN 0970-AB52

Head Start Program

AGENCY: Administration on Children, Youth and Families (ACYF),

Administration for Children and Families (ACF), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Administration on Children, Youth and Families is issuing

this notice of proposed rulemaking to amend its procedures regarding

replacement of Indian tribal grantees. The proposed change would add

provisions to implement a new statutory provision that allows Indian

tribes which are Head Start grantees to identify an agency, and request

that the agency be designated by the Department as an alternative

grantee, when the grantee is terminated or denied refunding.

DATES: In order to be considered, comments on this proposed rule must

be received on or before February 17, 1998.

ADDRESSES: Please address comments to the Associate Commissioner, Head

Start Bureau, Administration for Children, Youth and Families, P.O. Box

1182, Washington, D.C. 20013. Beginning 14 days after close of the

comment period, comments will be available for public inspection in

Room 2217, 330 C Street, S.W., Washington, D.C. 20201, Monday through

Friday between the hours of 9:00 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: Douglas Klafehn, Deputy Associate

Commissioner, Head Start Bureau, Administration for Children, Youth and

Families, P.O. Box 1182, Washington, D.C. 20013; (202) 205-8572.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

Head Start is authorized under the Head Start Act (42 U.S.C. 9801

et seq.). It is a national program providing comprehensive

developmental services primarily to low-income preschool children, age

three to the age of compulsory school attendance, and their families.

In addition, Section 645A of the Head Start Act provides authority to

fund programs for families with infants and toddlers, known as Early

Head Start programs. To help enrolled children achieve their full

potential, Head Start programs provide comprehensive health,

nutritional, educational, social and other services. Additionally, Head

Start programs are required to provide for the direct participation of

the parents of enrolled children in the development, conduct, and

direction of local programs. Parents also receive training and

education to foster their understanding of and involvement in the

development of their children. In fiscal year 1996, Head Start served

752,000 children through a network of over 2,000 grantees and delegate

agencies.

While Head Start is intended to serve primarily children whose

families have incomes at or below the poverty line, or who receive

public assistance, the Head Start Act and implementing regulations

permit up to 10 percent (and more for Indian tribes under certain

circumstances) of the children in local programs to be from families

who do not meet these low-income criteria. The Act also requires that a

minimum of 10 percent of the enrollment opportunities in each program

be made available to children with disabilities. Such children are

expected to participate in the full range of Head Start services and

activities with their non-disabled peers and to receive needed special

education and related services.

II. Summary of the Proposed Regulation

The authority for this Notice of Proposed Rulemaking (NPRM) is

section 646 of the Head Start Act (42 U.S.C. 9841), as amended by

Public Law 103-252, Title I of the Human Service Amendments of 1994.

Section 646(e) directs the Secretary to specify a process by which an

Indian tribe may identify an agency, and request that the agency

identified be designated as the Head Start agency providing services to

the tribe, if (a) financial assistance to the tribal grantee is

terminated, and (b) the

[[Page 65779]]

tribe would otherwise be precluded from providing Head Start services

to its members because of the termination. The Act specifies that the

regulation must prohibit the designation as Head Start grantee of an

agency that includes an employee who served on the administrative or

program staff of the terminated agency when that employee was

responsible for a deficiency that was the basis for the termination.

The proposed rule:

Adds a new definition for Indian tribe;

Provides that an Indian tribe may identify an agency to

serve as the alternative grantee at the time that it receives a notice

of termination or a notice of denial of refunding;

Allows the tribe to participate in the selection of the

replacement grantee;

Allows the tribe a second opportunity to identify an

alternative agency if the Department finds the first agency identified

by the tribe is not an eligible agency capable of operating a Head

Start program. If the second agency identified by the tribe is not

selected as a Head Start grantee, a replacement grantee will be

designated under 45 CFR Part 1302.

III. Section by Section Discussion of the NPRM

Section 1302.2 Definitions

We propose to add to this section a definition for the phrase

``Indian tribe,'' which is the same definition that appears in Section

637(10) (42 U.S.C. Sec. 9832(10)) of the Head Start Act.

Section 1302.30 Procedure for Identification of Alternative Agency

Section 1302.30 outlines the procedures by which an Indian tribe

may identify an agency to the Department as an alternative grantee and

request that the agency be designated as a grantee in the event that

the tribe has been terminated or denied refunding as Head Start

grantee. While section 646(e)(1)(A) of the Head Start Act refers only

to the ``termination'' of financial assistance, we have interpreted

``termination'' in this section to mean either termination of a grant

or denial of refunding of the grantee, as there is no substantive

difference between these two actions in terms of their impact on a

grantee's Head Start program.

Section 1302.30(a) states that a grantee may take advantage of this

procedure only if it was the sole agency that was receiving funding to

provide Head Start services to the tribe, and if the members of the

tribe would otherwise be precluded from receiving Head Start services

because of the termination or denial of refunding. These basic

qualifying criteria are found in Section 646(e)(1) of the Head Start

Act.

Under section 1302.30(b) of the proposed procedures the Department,

if it moves to terminate or deny refunding to a tribal grantee, must

notify the grantee that it may propose an alternative agency to the

Department, in writing, within the time limits established for

appealing the Department's decision to deny refunding or terminate the

grant at 45 CFR Sec. 1303.14(c) and 45 CFR Sec. 1303.15(b)(2).

If the Department finds that the alternative agency identified by

the tribe is not an agency that is both eligible and capable of

operating a Head Start program, the Department will, under section

1302.30(b)(3), so notify the tribe, and the tribe will have another

opportunity to identify an alternative agency and request the

designation of that agency as the alternative agency. This must be done

within 15 days of the Department's sending notification to the grantee

that the agency identified is unsuitable. Section 1302.30(b)(4)

specifies that if the Department finds this second agency also not

capable of operating a Head Start program, a replacement grantee will

be selected by the Department according to the regulations under 45 CFR

part 1302. Funding of the grantee will continue during any appeal, as

provided under section 1302.30(c). The steps outlined in this proposed

regulation for designation of an alternative agency identified by the

tribe will be carried out during the appeal process.

Section 1302.30(d) provides that if the tribe does not identify an

agency and request that it be appointed as alternative agency, the

Department will seek a permanent replacement grantee under 45 CFR part

1302.

Section 1302.31 Requirements of Alternative Agency

The purpose of this section is to make clear that any agency

designated by the Secretary to replace the grantee serving the Indian

tribe must meet the minimum requirements for Head Start agencies as

established by the Head Start Act. These are minimum requirements,

which no agency designated a Head Start agency may fail to meet.

However, merely satisfying these requirements does not qualify an

agency to be a Head Start grantee. The Department will analyze the

capabilities and experience of the agency identified by the tribe to

determine whether that agency is capable of operating a Head Start

program. This analysis will be guided by the criteria for agency

designation found in section 641(d) of the Head Start Act and sections

1302.10 (b) (1) to (5) and 1302.11 (a) to (c) of this Part.

Section 1302.32 Alternative Agency--Prohibition

This section states that the tribe may not designate as an

alternative agency an agency which includes an employee who served on

the administrative or program staff of the Indian tribal grantee, and

who was responsible for a deficiency that was the basis of the

termination or denial of refunding described in section 1302.30. It

also specifies that the Department, not the tribe, reserves the right

to determine whether an employee was responsible for a deficiency

within the meaning and context of this section.

IV. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be drafted to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

proposed rule is consistent with these priorities and principles. This

Notice of Proposed Rulemaking sets forth a process whereby an Indian

tribe that is being terminated as a Head Start grantee may identify an

alternative agency and request that the alternative agency be

designated as the Head Start agency providing services to the tribe.

The costs of implementing this rule are not significant.

Regulatory Flexibility Act of 1980

The Regulatory Act (5 U.S.C. Ch. 6) requires the Federal Government

to anticipate and reduce the impact of rules and paperwork requirements

on small businesses. For each rule with a ``significant economic impact

on a substantial number of small entities'' an analysis must be

prepared describing the rule's impact on small entities. Small entities

are defined by the Act to include small businesses, small non-profit

organizations and small governmental entities. While these regulations

would affect small entities, they would not affect a substantial

number. For this reason, the Secretary certifies that this rule will

not have a significant impact on substantial numbers of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all

Departments are required to submit collections of information contained

in proposed rules published for public comment in the

[[Page 65780]]

Federal Register to the Office of Management and Budget for review and

approval. This NPRM does not contain collection of information as

defined in the Paperwork Reduction Act and implementing regulations.

List of Subjects in 45 CFR Part 1302

Education of disadvantaged, Grant programs--social programs,

Selection of grantees.

(Catalog of Federal Domestic Assistance Program Number 93.600,

Project Head Start)

Dated: November 24, 1997.

Olivia A. Golden,

Assistant Secretary for Children and Families.

For the reasons set forth in the Preamble, 45 CFR Part 1302 is

proposed to be amended as follows:

1. The Authority citation for Part 1302 continues to read as

follows:

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

PART 1302--POLICIES AND PROCEDURES FOR SELECTION, INITIAL FUNDING,

AND REFUNDING OF HEAD START GRANTEES, AND FOR SELECTION OF

REPLACEMENT GRANTEES

2. Section 1302.2 is amended by adding a definition for ``Indian

Tribe'' to read as follows:

Sec. 1302.2 Definitions.

* * * * *

Indian tribe means any tribe, band, nation, pueblo, or other

organized group or community of Indians, including any Native village

described in section 3(c) of the Alaska Native Claims Settlement Act

(43 U.S.C. 1602(c)) or established pursuant to such Act (43 U.S.C. 1601

et seq.) that is recognized as eligible for special programs and

services provided by the United States to Indians because of their

status as Indians.

* * * * *

3. A new Subpart D, containing new sections 1302.30, 1302.31, and

1302.32, is added to read as follows:

Subpart D--Replacement of Indian Tribal Grantees

Sec. 1302.30 Procedure for identification of alternative agency.

(a) An Indian tribe whose Head Start grant has been terminated, or

which has been denied refunding as a Head Start grantee, may identify

an agency and request the responsible HHS official to designate such

agency as an alternative agency to provide Head Start services to the

tribe if:

(1) The tribe was the only agency that was receiving federal

financial assistance to provide Head Start services to members of the

tribe; and

(2) The tribe would be otherwise precluded from providing such

services to its members because of the termination or denial of

refunding.

(b)(1) The responsible HHS official, when notifying a tribal

grantee of the intent to terminate financial assistance or deny its

application for refunding, must notify the grantee that it may identify

an agency and request that the agency serve as the alternative agency

in the event that the grant is terminated or refunding denied.

(2) The tribe must identify the alternate agency to the responsible

HHS official, in writing, within the time for filing an appeal under 45

CFR Part 1303.

(3) The responsible HHS official will notify the tribe, in writing,

whether the alternative agency proposed by the tribe is found to be

eligible for Head Start funding and capable of operating a Head Start

program. If the alternative agency identified by the tribe is not an

eligible agency capable of operating a Head Start program, the tribe

will have 15 days from the date of the sending of the notification to

that effect from the responsible HHS official to identify another

agency and request that the agency be designated. The responsible HHS

official will notify the tribe in writing whether the second proposed

alternate agency is found to be an eligible agency capable of operating

the Head Start program.

(4) If the tribe does not identify a suitable alternative agency, a

replacement grantee will be designated under these regulations.

(c) If the tribe appeals a termination of financial assistance or a

denial of refunding, it will, consistent with the terms of 45 CFR Part

1303, continue to be funded pending resolution of the appeal. However,

the responsible HHS official and the grantee will proceed with the

steps outlined in this regulation during the appeal process.

(d) If the tribe does not identify an agency and request that the

agency be appointed as the alternative agency, the responsible HHS

official will seek a permanent replacement grantee under these

regulations.

Sec. 1302.31 Requirements of alternative agency.

The agency identified by the Indian tribe must establish that it

meets all requirements established by the Head Start Act and these

requirements for designation as a Head Start grantee and that it is

capable of conducting a Head Start program. The responsible HHS

official, in deciding whether to designate the proposed agency, will

analyze the capacity and experience of the agency according to the

criteria found in section 641(d) of the Head Start Act and

Secs. 1302.10(b) (1) through (b)(5) and 1302.11 of this part.

Sec. 1302.32 Alternative agency--prohibition.

(a) No agency will be designated as the alternative agency pursuant

to this Subpart if the agency includes an employee who:

(1) Served on the administrative or program staff of the Indian

tribal grantee, and

(2) Was responsible for a deficiency that:

(i) Relates to the performance standards or financial management

standards described in the Head Start Act; and

(ii) Was the basis for the termination or denial of refunding

described in Sec. 1302.30 of this part.

(b) The responsible HHS official shall determine whether an

employee was responsible for a deficiency within the meaning and

context of this section.

[FR Doc. 97-32748 Filed 12-15-97; 8:45 am]

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