Head Start Program

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1305

RIN 0970 AB53

Head Start Program

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

Administration for Children and Families (ACF), Department of Health

and Human Services (HHS).

ACTION: Final rule.

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

the requirements on eligibility, recruitment, selection, enrollment and

attendance in Head Start in six areas affecting Head Start programs

serving specific populations. These amendments address new language in

the Head Start Act of 1994 and add a new definition for Indian Tribe;

amend the definition of migrant family; add the requirement that

migrant programs give priority to children from families that relocate

most frequently; expand the definition of a service area for Head Start

programs operated by Indian Tribes to include near-reservation

designations; expand the family income criteria for Indian grantees

meeting certain conditions; and amend the enrollment and reenrollment

criteria for children in Head Start and for children enrolled in an

Early Head Start program.

EFFECTIVE DATE: This rule is effective April 15, 1998.

FOR FURTHER INFORMATION CONTACT: Douglas Klafehn, Deputy Associate

Commissioner, Head Start Bureau, (202) 205-8572.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

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

et seq.), 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 for programs

serving low-income pregnant women and families with infants and

toddlers. Programs funded under this section are referred to 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 1997, Head Start served

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

agencies.

While Head Start is designed primarily to serve children whose

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

public assistance, the Head Start regulations permit up to ten percent

of the children in local programs to be from families who do not meet

these low-income criteria. Additionally, as provided in this rule,

Indian Tribes meeting certain conditions may enroll additional over-

income children above the ten percent limitation. The Act also requires

that a minimum of ten percent of the enrollment opportunities in each

program be made available to children with disabilities. These 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.

[[Page 12653]]

II. Purpose of the Final Rule

The purpose of this rule is to implement the new provisions in

sections 637, 640, 645 and 645A of the Head Start Act (42 U.S.C. 9801

et seq.), as amended by Public Law 103-252, Title I of the Human

Services Amendments of 1994.

Section 637 contains a new definition for ``Indian Tribe'' which

has been incorporated into this rule. It also contains a new definition

for ``migrant Head Start program'' which impacts on the current

definition of ``migrant family'' found at 45 CFR 1305.2(l). The

definition of ``migrant family'' has been amended in this rule to

include families who have changed their residence from one geographical

area to another in the preceding two-year period for the purpose of

engaging in agricultural work.

Several technical amendments have also been made to this section.

The definition of ``Head Start eligible'' at 45 CFR 1305.2(g) has been

revised to state that Indian Tribes meeting the conditions specified in

45 CFR 1305.4(b)(3) are exempted from the limitation that no more than

ten percent of the enrolled children may be from families that exceed

the low-income guidelines. Finally, the definition of ``Income'' at 45

CFR 1305.2(i) has been revised to refer to the other sources of income

contained in the definition of ``income'' in the U.S. Bureau of the

Census, Current Population Reports, Series P-60-185, and as provided in

the annual Family Income Guidelines issued by the Head Start Bureau.

Section 641(b) expands the definition of a community to include

Indians in any area designated as near-reservation. The expanded

definition of a service area for Indian Tribal Head Start grantees has

been incorporated into 45 CFR 1305.3(a) in this rule to permit Tribes

to include in their service areas all or parts of areas designated as

near-reservation by the Bureau of Indian Affairs (BIA). In order to

provide similar flexibility to Tribes which do not have a BIA

designation, but which face the same need to serve Indian children and

families living near the reservation, the rule also provides that a

Tribe, with the approval of the Tribe's governing council, may propose

to define its service area to include near-reservation areas in which

Indian people native to its reservation reside. Additionally, a new

paragraph (b) has been added to this section to clarify that, except in

situations where an expanded service area has been approved for a

Tribe, a grantee's service area may not overlap with that of other Head

Start grantees.

Section 645(d) expands eligibility for participation in Head Start

programs operated by Indian Tribes to permit them to enroll additional

children, beyond ten percent, from families that exceed the income-

eligibility guidelines, when specific conditions are met. These

conditions are that (1) all children from Indian and non-Indian

families living in the Tribe's approved service area that meet the low-

income guidelines who wish to be enrolled in Head Start are served by

the program, including children from income-eligible families living in

near-reservation communities if those communities are approved as part

of the Tribe's service area; (2) the Tribe does not use funds awarded

to expand Head Start services for this purpose; and (3) the program

predominantly serves children from families who meet the low-income

criterion. ``Predominantly'' has been defined in this rule to mean at

least 51 percent of the children enrolled in the Head Start program.

Tribal Head Start programs meeting these conditions must annually set

criteria that are approved by the Policy Council and the Tribal Council

for selecting over-income children who would benefit from participation

in the Head Start program. Changes have been made in 45 CFR 1305.4(b)

in this rule to conform with these new provisions.

Section 645(d) also requires that the Secretary specify, in

regulation, the requirements contained in this section after

consultation with Indian Tribes. Three meetings with members of the

Indian community were held during 1995 to obtain input in developing

this section of the rule.

Section 640(k)(1) requires that the Secretary give priority to

migrant Head Start programs that serve the children of migrant families

whose work requires them to relocate most frequently. Accordingly,

paragraph (b) under 45 CFR 1305.6, Selection process, has been expanded

in this rule to include the requirement that migrant programs must give

priority to children from families whose pursuit of agricultural work

required them to relocate most frequently within the previous two-year

period.

The regulation at 45 CFR 1305.7(c), Enrollment and re-enrollment,

currently states that, once a child has been found to be income-

eligible, he or she remains eligible for the current and succeeding

enrollment year. This paragraph has been amended to address eligibility

for infants and toddlers who are enrolled in an Early Head Start

program funded under the authority of section 645A of the Head Start

Act. In order to assure continuity of services once income eligibility

has been determined, such children remain eligible while they are

enrolled in Early Head Start. In addition, this paragraph has been

amended to include specific reference to Section 645A(b)(7), which

states that an agency which operates both a Head Start program and an

Early Head Start program must ensure that children enrolled in Early

Head Start and their families receive services through the age of

mandatory school attendance of the child.

Minor technical amendments have also been made in 45 CFR 1305.4(a)

and 45 CFR 1305.6(c). The amendment to 45 CFR 1305.4(a) substitutes

Early Head Start for Parent and Child Center programs as an example of

an exception to the requirement that children served by Head Start

programs must be at least three years old. The amendment to 45 CFR

1305.6(c) references Early Head Start and Individualized Family Service

Plans (IFSP) for infants and toddlers with disabilities. The IFSP is

defined in 45 CFR 1304.3 of the revised Head Start Program Performance

Standards.

III. Section-by-Section Discussion of the Final Rule

The Notice of Proposed Rulemaking (NPRM) was published in the

Federal Register (60 FR 54648) on October 25, 1995 with a 30 day

comment period. Twenty-seven letters, containing approximately 85

separate comments, were received. While most of the comments were

supportive, a number expressed concerns about specific sections of the

NPRM. We have carefully reviewed all of the comments received, and have

modified some sections of the NPRM based upon these comments. The

comments, and, as applicable, the rationale for making a change or

keeping the language as used in the NPRM, are discussed below.

Section 1305.2: Definitions

One comment was received, which supported the new definition of

``Indian Tribe'' provided in paragraph (k). No changes were made in the

definition.

A few comments were received regarding the amended definition of

``Migrant family'' in paragraph (m). One commenter supported the

revision, stating that the change, along with the new requirement that

priority be given to children from families whose agricultural work

requires them to relocate most frequently, will improve the continuity

of services to migrant families and children. Another commenter

suggested that the definition of agricultural work be expanded beyond

involvement in the production and harvesting of tree and field crops to

[[Page 12654]]

include subsistence activities such as fishing and hunting. We did not

change the definition to incorporate this suggestion, however, because

the language used conforms both with the description of agricultural

work contained in the current definition of a migrant family provided

at 45 CFR 1305.2(l) and with common usage of the term.

Section 1305.3: Determining Community Strengths and Needs

A few respondents supported the expanded meaning of a service area

for Head Start grantees that are Indian Tribes in paragraph (a) to

include areas designated as near-reservation, stating that this change

was long overdue and would help improve the continuity of education for

Indian children, increase access to Tribal Head Start programs, and

enable children to attain a greater appreciation of their heritage.

Several commenters from Oklahoma requested clarification about how

the term ``near-reservation'' would affect Indian Tribes in the State,

as they reside on trust lands, not on reservations. We have not changed

the language from the NPRM because we do not believe that such

clarification is needed. Both the Senate and the House Reports on the

Human Services Amendments of 1994 clearly state that this amendment ``*

* * will also make it possible for federally recognized tribes which do

not have reservations to provide Indian Head Start services, and to

make it possible for consortia of small tribes on small reservations to

provide Indian Head Start services to their children'' (Senate Report

No. 251, 103rd Congress, 2nd Session, pp. 30-31; House Report No. 483,

Part 1, 103rd Congress, 2nd Session, p. 46). Therefore, we believe that

latitude can be used in interpreting the term ``reservation'' to

include Indian trust lands and other such designations.

Some of these commenters also questioned the effect that expanding

Tribal service areas would have on non-Tribal Head Start programs which

provide services in the same counties, and suggested that the term

``near-reservation'' be limited to areas where no other Tribal or non-

Tribal Head Start program is providing services. Areas of concern

included the confusion that exists regarding how Tribal service areas

were determined, since they were funded after the non-Tribal programs

were operative; the need for processes to resolve potential conflicts

that might arise in instances where overlap exists between the Tribal

and non-Tribal Head Start service areas; and the need to provide

advanced notice and planning time to non-Tribal grantees whose existing

service areas would be affected by this provision.

While we appreciate the commenters' concerns, in this regard, we

have not made any changes in the final rule. Limiting the definition of

``near-reservation'' to an area not currently served by a Head Start

program would clearly go against the intent of the Congress. The

reports of both the Senate and the House of Representatives state that

the amendment clarifies ``* * * that children living near the

reservation should be included in the Indian programs' service area''

(Senate Report No. 251, 103rd Congress, 2nd Session, p. 30; House

Report No. 483, Part 1, 103rd Congress, 2nd Session, p. 46). Moreover,

when the near-reservation area is located within the service area of a

non-Tribal grantee, this provision enables Tribal Head Start grantees

to serve only a specific population of children--Tribal children who

are native to the reservation and are living within the designated

near-reservation area. Finally, we would fully expect, as this

provision is exercised, that discussions and negotiations between the

Tribal Head Start grantee and the non-Tribal grantee whose service area

includes the non-reservation area to be designated would occur as a

matter of course.

One respondent expressed concern about the term ``native to the

reservation,'' finding it not only vague, but also, if interpreted in

its strictest sense, referring only to Indian people born on the

reservation. The phrase ``socially, culturally and economically

affiliated with the Tribe and its reservation'' was proposed as being

more appropriate. While we understand the respondent's concern, we have

not changed the language from the NPRM. The term ``native'' is commonly

used to refer not only to the place of birth, but also to an

association with a particular place or location and, as such, is

appropriate within the context used in this regulation.

However, we have made a few clarifying changes in section 1305.3 in

order to make it consistent with the changes in section

1305.4(b)(3)(ii).

Section 1305.4: Age of Children and Family Income Eligibility

This section of the NPRM generated the most comments. A number of

respondents supported the new provision amending the family income

eligibility requirements for Head Start programs operated by Indian

Tribes to permit them to enroll additional children, beyond ten

percent, from families that exceed the low-income guidelines.

Commenters stated that the change would assist Indian programs in

maintaining their enrollment and in expanding their programs; that many

Native American children are in need of Head Start services which

emphasize their native cultures even though their family incomes may

not be as low as those of other families; and that meeting income

guidelines is an important, but not the only, factor impacting

negatively on Indian children and families. Respondents also cited

factors, such as fluctuating economies in many Tribal communities,

which result in Head Start enrollment patterns varying greatly from

year to year, as justifying the need for the change.

Concerns were raised, however, regarding the condition in paragraph

(b)(3)(i) that all children, both Indian and non-Indian, who are living

on the reservation and whose families meet the low-income guidelines

and wish them to be served by Head Start must be enrolled prior to

increasing the number of over-income Indian children served above ten

percent. Commenters stated that non-Indian families should not be

served over Indian families, as Indian Head Start was established to

serve Indian children; that the modification was designed to ensure

that Tribal families would not be penalized for moving off welfare and

going to work; and that income-eligible non-Indian families can be

served by a non-Tribal Head Start program, while the only place for

over-income Indian families is the Indian Head Start program. One

respondent objected to the use of Indian set-aside funds to provide

services to non-Indian children when Indian children who might benefit

from Head Start are denied services simply because their family income

is not considered to be at the poverty level; and pointed out that, on

most reservations, Head Start is the only comprehensive early childhood

program available.

We did not change this condition for several reasons. First, this

requirement is consistent with the language of section 645(d)(1)(B) of

the Head Start Act of 1994, which states, as one of the conditions

which must be met before enrolling over-income children in Tribal Head

Start programs, that the Tribe ``enrolls as participants in the program

all children in the community served by the tribe (including a

community with a near-reservation designation, as defined by the Bureau

of Indian Affairs) from families that meet the low-income criteria

specified under subsection (a)(1)(A).'' Moreover, income-eligible non-

Indian children living on the reservation would not be eligible for the

services provided by a non-Tribal Head

[[Page 12655]]

Start program because they reside within the service area of the Tribal

Head Start program. Therefore, denying these children the opportunity

to enroll in the Tribal program would preclude them from receiving Head

Start services.

In order to be consistent, and for the same reasons specified in

the paragraph above, we have modified paragraph (b)(3)(ii) to clarify

that, prior to serving over-income Indian children, Tribal grantees

that include non-Reservation areas in their service area, in addition

to serving income eligible Indian children, must serve non-Indian

income eligible children, whose families wish to enroll them in Head

Start, in those instances in which the non-Reservation area is not

served by another, non-Tribal, Head Start program. (At the time that

the Tribal grantee proposes to include the non-Reservation area in its

service area, ACF will make it clear whether the Tribal grantee will be

required to serve non-Indian income eligible children in an unserved

non-Reservation area along with Indian children.) This requirement also

parallels the language in section 645(d)(1)(B) of the Head Start Act;

and, similar to income-eligible non-Indian children living on the

reservation, these children would be deprived of the opportunity to

participate in Head Start if the Tribal program did not enroll them,

since that program would be the only Head Start program in the service

area. The changes in wording from the NPRM at Secs. 1305.4(b)(3)(ii)

and 1305.3(a) and (b) were done to provide greater clarity and

consistency between these two sections.

One commenter raised the concern that, due to factors such as the

lack of space at Head Start centers located in small communities and

the isolated location of family homes, it may not be feasible for a

Tribal Head Start grantee to serve all of the income-eligible Indian

children, resulting in vacant slots and the Tribe's inability to exceed

the ten percent over-income guideline. Another respondent had the

diametrically opposed concern that, on large reservations where Tribal

lands and communities are not contiguous, and which have a large number

of income-eligible non-Indian children who meet the on or near-

reservation status, a Tribe could conceivably find itself operating an

Indian Head Start program with a majority of non-Indian children. We

agree that, especially on ``checkerboard'' reservations, Tribes may not

be serving all of the income-eligible children or may be serving a high

percentage of non-Indian children. However, because Head Start is a

means-based program, with family income and the age of the child being

the primary determinants of eligibility, grantees must use the income

guidelines established annually by the Office of Management and Budget

as a principal basis for enrolling children in the program.

Several respondents questioned what assurances would be in place to

document that every income-eligible family was contacted prior to

enrolling over-income children. Tribal grantees would be expected to

carry out the recruitment procedures required under 45 CFR 1305.5 of

this regulation, and recruitment practices would be reviewed and

discussed as part of the on-site monitoring process.

One respondent questioned the condition in paragraph (b)(3)(iii)

that the Tribe must have the resources to enroll over-income children,

and that no funds provided by the Department of Health and Human

Services (HHS) to expand Head Start services may be used for this

purpose, stating that the position appears to be inconsistent. If, on

the one hand, HHS is acknowledging the need for greater participation

by Indian children in Head Start, it would seem that the Department

would also ensure that the children receive these services.

Additionally, the respondent pointed out that Tribes which have

developed a sound economic base predicated on gaming revenues would be

at a distinct advantage, as they could afford to supplement their Head

Start programs, while poorer Tribes would not have the resources to do

so. As this condition was established by section 645(d)(3) of the Head

Start Act of 1994, it cannot be amended or eliminated in the final

rule. A minor edit was made for clarification purposes by adding the

phrase ``from families whose incomes exceed the low-income

guidelines.''

Another respondent expressed concern about increasing income

eligibility for up to 49 percent of the children enrolled in Indian

Head Start programs, while non-Indian programs may enroll only ten

percent, stating that many of the families on the program's waiting

list are over the income guidelines by anywhere from $100 to $1,000.

Several other commenters also advocated that the authorization to

exceed the ten percent over-income limitation be extended to non-Tribal

Head Start grantees, such as grantees which are currently serving all

of the income-eligible children in their service areas and grantees

located in small rural communities, especially when there are no other

comparable services available for children in those communities. While

we understand these concerns, this provision is legislatively-based

and, therefore, cannot be extended to non-Tribal Head Start grantees.

One respondent stated that Indian Tribes should not be limited to

serving a certain percentage of low-income children but, rather, that

decisions regarding participation in the local Head Start program

should be made by the Tribal Head Start Policy Council and the Tribal

Council. Two factors were cited as being relevant: first, this position

would be consistent with the concept of Indian Self-Determination and

would acknowledge Tribal sovereignty; and, secondly, it would address

the primary issue that Head Start is so important for Tribal children,

who, because they are raised on somewhat isolated reservation

environments, need opportunities to increase their socialization skills

regardless of family income.

We have not made any change in the requirement that 51 percent of

the children must be from families whose incomes are below the low-

income guidelines. Section 645(d)(1)(C) of the Head Start Act states,

as one of the conditions that Tribal Head Start programs must meet in

order to enroll over-income children beyond ten percent, that ``. . .

the program predominantly serves children who meet the low-income

criteria.'' We defined the term ``predominantly'' in the NPRM to mean

at least 51 percent of the children enrolled in the program in order to

give Tribes as much flexibility as possible. As described in the

preamble to the NPRM, this position was strongly supported by the

Tribal representatives who participated in the consultation sessions

that were held in developing this regulation.

Section 1305.6: Selection Process

A few respondents raised concerns about the new requirement in

paragraph (b) that migrant programs must give priority to children from

families whose pursuit of agricultural work required them to relocate

most frequently within the previous two-year period. One commenter

expressed the concern that the ``revolving door'' that could result is

more likely to be detrimental to the overall quality of migrant Head

Start programs than it is to benefit the very frequently moving

children who would be given priority under the proposed rule; and

suggested that grantees be directed to consider whether the overall

effectiveness and quality of their programs can be maintained if the

centers are filled with children who would be there for only very short

periods of time.

Another respondent requested guidance or clarification on the

priority change; expressed the concern that children in an upstream

migrant program are enrolled on a first come,

[[Page 12656]]

first served basis, with the pool of applicants in June being totally

different from that in August or September, resulting, by September, in

families who truly migrate frequently being left on the waiting list;

and stated the assumption that the intent of the change is not to

displace enrolled children with those who come along later but, rather,

to apply the criterion as openings become available.

In response to the concerns that were raised, we have made a minor

change in the wording of 45 CFR 1305.6(b) from that in the NPRM and

have added the word ``also'' (``Migrant programs must also give

priority to children from families whose pursuit of agricultural work

required them to relocate most frequently within the previous two-year

period''). This change is designed to more clearly convey that the

frequency of a family's move is not the only criterion to be considered

when selecting the children and families to be served by a migrant Head

Start program. Other factors, such as the family's income and the age

of the child, as well as the recruitment priorities established by the

program pursuant to the requirements of 1305.3(c)(6), should also be

taken into account. We also wish to clarify that it is not the intent

of this requirement that children already enrolled in a migrant program

be displaced by children whose parents relocated more frequently within

the previous two-year period. Rather, this priority, along with the

other enrollment priorities, is to be exercised as openings become

available in a program.

Section 1305.7 Enrollment and Re-enrollment.

A number of commenters supported the amendment to paragraph (c) of

this section in the NPRM, which extended the income eligibility of

children enrolled in Early Head Start for the time that the child is

enrolled in the Early Head Start program, but required that the

family's income be reverified if the parents wished to enroll their

child in a Head Start program serving children between the ages of

three to compulsory school attendance and it had been two or more years

since this had been done. Respondents stated that this amendment would

enable families to be provided with an early, continuous, intensive and

comprehensive child development program; that if, after a child reaches

the age of three years, a family is over income, it would be preferable

to provide the opportunity to participate in Head Start to another low-

income family; that the continuity of services that is afforded has

proven beneficial for a significant number of families and provides a

readily available population on which to focus Head Start recruitment

and enrollment efforts; and that it would help ensure that children of

the lowest income and children at risk would have the opportunity to

fill Head Start slots when otherwise they might not have the chance to

do so.

One respondent stated that the proposed rule created a fair balance

in terms of income eligibility for infant and toddlers, citing, among

other reasons, that it would enable Early Head Start programs to track

outcomes for participating children and their families, thereby

enhancing the value of the findings from these demonstrations; that

excluding families who experience some degree of economic success would

be a disincentive for them to pursue such achievements; and that the

limited alternatives for adequate and affordable day care in Early Head

Start communities could affect a parent's ability to retain employment.

Another respondent recommended that the verification of family

income be required of all families transitioning from Early Head Start

to Head Start, regardless of how many years since this was done, as it

would provide a clear break from one program to the next; simplify the

tracking of when individual families need to provide income

verification information; and ensure that families who did not

participate in Early Head Start, but rank high in terms of need, have

an equal opportunity to enroll in Head Start.

A number of commenters, however, expressed concerns about the

recertification requirement, advocating that, once a child is certified

for participation in Early Head Start, the certification should

continue through Head Start until the age of enrollment in the public

school system. Several of these commenters stated that income is only

one criterion for eligibility, and that Early Head Start children and

families have a continuing need for the services provided by Head

Start. One respondent supportive of this position stated, based upon

experience with the Comprehensive Child Development Program, that the

level of intervention needed by families often intensifies as the

families achieve employment. Similarly, another commenter stated that

an array of issues seriously affects the achievement of wellness and

self-sufficiency for families; that Head Start should be considered a

program serving children from birth to age five; and that, if income is

regarded as the only criterion for eligibility at mid-point in the

program, a large number of very vulnerable families would immediately

lose all of their needed support services. Other commenters expressed

concerns that Early Head Start families found ineligible for Head

Start, in addition to not receiving the continuity of services they

need, would also have to seek day care services, which would be costly

and would defeat the purpose of becoming self-sufficient; and that the

removal of a child from Head Start for income reasons could have

negative consequences on the child's psychological development, as the

child could view his or her not being able to attend Head Start as a

sign that he or she had failed in some way.

Several respondents proposed alternative procedures for

consideration if the income redetermination policy for Early Head Start

families could not be waived. One commenter suggested that these

families be given priority for the available ten percent over income

enrollment in Head Start programs; and another recommended that 150

percent of poverty be used as the criterion in order to acknowledge the

vulnerability of families moving from dependency to self-sufficiency.

Other respondents urged that the extended eligibility for infants

and toddlers enrolled in Early Head Start should also be applied to

infants and toddlers enrolled in migrant Head Start programs, as these

children and families also need continuity of services and should not

be treated differently.

We have modified this section of the rule, primarily to clarify the

eligibility of children enrolled in an Early Head Start program. In

addition to the provision that children enrolled in Early Head Start

remain eligible while they are in that program, we have added specific

reference to Section 645A(b)(7) of the Head Start Act, which requires

that an agency which operates both an Early Head Start program and a

Head Start program must ensure that children and families receive

services until the child reaches the age of mandatory school

attendance. Regarding ensuring Head Start services, the phrase

``whenever possible'' has been added to address situations where

grantees simply do not have slots, in accordance with 45 CFR 1305.4(b),

to accommodate all children leaving its Early Head Start program whose

parents wish to enroll them in its Head Start program. The provision on

reverification of family income when a child moves from a program

serving infants and toddlers to a Head Start program serving children

age three and older has been retained with minor edits made for

clarity.

[[Page 12657]]

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

rule is consistent with these priorities and principles. This final

rule implements the new statutory requirements established in sections

637, 640, 641, 645 and 645A of the Head Start Act (42 U.S.C. 9801 et

seq.), as amended by Public Law 103-252, Title I of the Human Service

Amendments. It adds a new definition for Indian Tribe and changes the

definition of a migrant family to give priority to families that

relocate most frequently. It also authorizes Head Start grantees that

are Indian Tribes to include near-reservation areas when recruiting

children for Head Start services and, under certain circumstances, to

enroll additional children from families with incomes that exceed the

low-income guidelines above the ten percent limitation. Finally, it

clarifies the eligibility of children enrolled in an Early Head Start

program receiving funds under the authority of section 645A of the Head

Start Act.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. CH. 6) requires that the

Federal government 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 this regulation would affect small entities, it would

not affect a substantial number as we estimate that approximately 413

small businesses will be affected. This number includes Head Start

migrant programs, Indian tribal programs Early Head Start programs, and

delegate agencies. The approximate number of Head Start programs are

2000. For this reason, the Secretary certifies that this rule will not

have a significant impact on a substantial number of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all

Departments are required to submit to the Office of Management and

Budget (OMB) for review and approval any reporting or record-keeping

requirement inherent in a proposed or final rule. This final rule does

not contain any information collection or record keeping requirements.

List of Subjects in 45 CFR Part 1305

Disabilities, Education of disadvantaged, Grant programs--social

programs, Head Start enrollment, Preschool education.

(Catalog of Federal Domestic Assistance Program Number 93.600,

Project Head Start)

Dated: February 23, 1998.

Olivia A. Golden,

Assistant Secretary for Children and Families.

For the reasons set forth in the preamble, 45 CFR Part 1305 is

amended to read as follows:

PART 1305--[AMENDED]

1. The authority citation continues to read as follows:

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

2. Section 1305.2 is amended by revising paragraphs (g) and (i);

redesignating current paragraphs (k) through (r) as paragraphs (l)

through (s); adding a new paragraph (k); and revising newly

redesignated paragraph (m) to read as follows:

Sec. 1305.2 Definitions.

* * * * *

(g) Head Start eligible means a child that meets the requirements

for age and family income as established in this regulation or, if

applicable, as established by grantees that meet the requirements of

section 645(a)(2) of the Head Start Act. Up to ten percent of the

children enrolled may be from families that exceed the low-income

guidelines. Indian Tribes meeting the conditions specified in 45 CFR

1305.4(b)(3) are excepted from this limitation.

* * * * *

(i) Income means gross cash income and includes earned income,

military income (including pay and allowances), veterans benefits,

Social Security benefits, unemployment compensation, and public

assistance benefits. Additional examples of gross cash income are

listed in the definition of ``income'' which appears in U.S. Bureau of

the Census, Current Population Reports, Series P-60-185.

* * * * *

(k) 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.

* * * * *

(m) Migrant family means, for purposes of Head Start eligibility, a

family with children under the age of compulsory school attendance who

changed their residence by moving from one geographic location to

another, either intrastate or interstate, within the preceding two

years for the purpose of engaging in agricultural work that involves

the production and harvesting of tree and field crops and whose family

income comes primarily from this activity.

* * * * *

3. Section 1305.3 is amended by revising paragraph (a),

redesignating current paragraphs (b) through (f) as paragraphs (c)

through (g), and adding a new paragraph (b) to read as follows:

Sec. 1305.3 Determining community strengths and needs.

(a) Each Early Head Start grantee and Head Start grantee must

identify its proposed service area in its Head Start grant application

and define it by county or sub-county area, such as a municipality,

town or census tract or a federally-recognized Indian reservation. With

regard to Indian Tribes, the service area may include areas designated

as near-reservation by the Bureau of Indian Affairs (BIA) or, in the

absence of such a designation, a Tribe may propose to define its

service area to include nearby areas where Indian children and families

native to the reservation reside, provided that the service area is

approved by the Tribe's governing council. Where the service area of a

Tribe includes a non-reservation area, and that area is also served by

another Head Start grantee, the Tribe will be authorized to serve

children from families native to the reservation residing in the non-

reservation area as well as children from families residing on the

reservation.

(b) The grantee's service area must be approved, in writing, by the

responsible HHS official in order to assure that the service area is of

reasonable size and, except in situations where a near-reservation

designation or other expanded service area has been approved for a

Tribe, does not overlap with that of other Head Start grantees.

* * * * *

4. Section 1305.4 is amended by revising the last sentence of

paragraph (a) and revising paragraph (b) to read as follows:

[[Page 12658]]

Sec. 1305.4 Age of children and family income eligibility.

(a) * * * Examples of such exceptions are programs serving children

of migrant families and Early Head Start programs.

(b)(1) At least 90 percent of the children who are enrolled in each

Head Start program must be from low-income families.

(2) Except as provided in paragraph (b)(3) of this section, up to

ten percent of the children who are enrolled may be children from

families that exceed the low-income guidelines but who meet the

criteria that the program has established for selecting such children

and who would benefit from Head Start services.

(3) A Head Start program operated by an Indian Tribe may enroll

more than ten percent of its children from families whose incomes

exceed the low-income guidelines when the following conditions are met:

(i) All children from Indian and non-Indian families living on the

reservation that meet the low-income guidelines who wish to be enrolled

in Head Start are served by the program;

(ii) All children from income-eligible Indian families native to

the reservation living in non-reservation areas, approved as part of

the Tribe's service area, who wish to be enrolled in Head Start are

served by the program. In those instances in which the non-reservation

area is not served by another Head Start program, the Tribe must serve

all of the income-eligible Indian and non-Indian children whose

families wish to enroll them in Head Start prior to serving over-income

children.

(iii) The Tribe has the resources within its Head Start grant or

from other non-Federal sources to enroll children from families whose

incomes exceed the low-income guidelines without using additional funds

from HHS intended to expand Head Start services; and

(iv) At least 51 percent of the children to be served by the

program are from families that meet the income-eligibility guidelines.

(4) Programs which meet the conditions of paragraph (b)(3) of this

section must annually set criteria that are approved by the Policy

Council and the Tribal Council for selecting over-income children who

would benefit from such a program.

* * * * *

5. Section 1305.6 is amended by revising paragraph (b) and the last

sentence of paragraph (c) to read as follows:

Sec. 1305.6 Selection process.

* * * * *

(b) In selecting the children and families to be served, the Head

Start program must consider the income of eligible families, the age of

the child, the availability of kindergarten or first grade to the

child, and the extent to which a child or family meets the criteria

that each program is required to establish in Sec. 1305.3(c)(6).

Migrant programs must also give priority to children from families

whose pursuit of agricultural work required them to relocate most

frequently within the previous two-year period.

(c) * * * An exception to this requirement will be granted only if

the responsible HHS official determines, based on such supporting

evidence he or she may require, that the grantee made a reasonable

effort to comply with this requirement but was unable to do so because

there was an insufficient number of children with disabilities in the

recruitment area who wished to attend the program and for whom the

program was an appropriate placement based on their Individual

Education Plans (IEP) or Individualized Family Service Plans (IFSP),

with services provided directly by Head Start or Early Head Start in

conjunction with other providers.

* * * * *

6. Section 1305.7 is amended by revising paragraph (c) to read as

follows:

Sec. 1305.7 Enrollment and re-enrollment.

* * * * *

(c) If a child has been found income eligible and is participating

in a Head Start program, he or she remains income eligible through that

enrollment year and the immediately succeeding enrollment year.

Children who are enrolled in a program receiving funds under the

authority of section 645A of the Head Start Act (programs for families

with infants and toddlers, or Early Head Start) remain income eligible

while they are participating in the program. When a child moves from a

program serving infants and toddlers to a Head Start program serving

children age three and older, the family income must be reverified. If

one agency operates both an Early Head Start and a Head Start program,

and the parents wish to enroll their child who has been enrolled in the

agency's Early Head Start program, the agency must ensure, whenever

possible, that the child receives Head Start services until enrolled in

school.

[FR Doc. 98-6710 Filed 3-13-98; 8:45 am]

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