Increase Flexibility for Tribes in Child Care and Development Fund (CCDF) Eligibility, 57835-57838 [2024-15244]
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Federal Register / Vol. 89, No. 136 / Tuesday, July 16, 2024 / Proposed Rules
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Table of Contents
45 CFR Part 98
RIN 0970–AD11
Increase Flexibility for Tribes in Child
Care and Development Fund (CCDF)
Eligibility
Office of Child Care (OCC),
Administration for Children and
Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Health and
Human Services, Administration for
Children and Families proposes to
amend the Child Care and Development
Fund (CCDF) regulations through this
notice of proposed rulemaking (NPRM)
to allow all Indian Tribes and Tribal
Organizations operating CCDF
programs, at their discretion, to
establish and use eligibility criteria
regardless of family income.
DATES: In order to be considered,
written comments on this proposed rule
must be received on or before
September 16, 2024.
ADDRESSES: You may submit comments,
identified by docket number ACF–
2024–0010 and/or RIN number 0970–
AD11, to the Federal eRulemaking
Portal: https://www.regulations.gov.
Follow the instructions for submitting
comments.
Instructions: All submissions received
must include the agency name and
docket number or RIN number for this
rulemaking. All comments received are
a part of the public record and will be
posted for public viewing on
www.regulations.gov, without change.
That means all personal identifying
information (such as name or address)
will be publicly accessible. Please do
not submit confidential information, or
otherwise sensitive or protected
information. We accept anonymous
comments. If you wish to remain
anonymous, enter ‘‘N/A’’ in the required
fields.
Docket: Go to the Federal
eRulemaking Portal at https://
www.regulations.gov for access to the
rulemaking docket, including any
background documents and the plainlanguage summary of the proposed rule
of not more than 100 words in length
required by the Providing
Accountability Through Transparency
Act of 2023, 5 U.S.C. 553(b)(4).
FOR FURTHER INFORMATION CONTACT:
Megan Campbell, Office of Child Care,
202–690–6499 or megan.campbell@
acf.hhs.gov.
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SUMMARY:
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I. Background
Effective Dates
Severability
II. Statutory Authority
III. Discussion of Proposed Changes
IV. Regulatory Process Matters
Paperwork Reduction Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Executive Order 13132
Assessment of Federal Regulations and
Policies on Families
Regulatory Review
VI. Tribal Consultation Statement
List of Subjects in 45 CFR Part 98
I. Background
In response to requests from Tribal
Child Care and Development Fund
(CCDF) Lead Agencies for more
flexibility on family income eligibility
to better meet community needs and to
recent statutory changes to eligibility in
the Tribal Head Start program, this
NPRM proposes a regulatory change to
allow all Tribal CCDF Lead Agencies to
serve Indian children (as defined by the
Tribal Lead Agency) in their service area
regardless of family income or assets.
This NPRM is also responsive to
Executive Order 14112, Reforming
Federal Funding and Support for Tribal
Nations To Better Embrace Our Trust
Responsibilities and Promote the Next
Era of Tribal Self-Determination, which
directs agencies to ‘‘increase the
accessibility, equity, flexibility, and
utility of Federal funding.’’ This
proposal will provide Tribal Nations
with more flexibility to better meet
community needs, address calls for
greater Tribal sovereignty, and facilitate
better alignment between Tribal CCDF
and Tribal Head Start programs.
The Child Care and Development
Block Grant Act (42 U.S.C. 9857 et seq.),
hereafter referred to as the ‘‘Act,’’
together with section 418 of the Social
Security Act (42 U.S.C. 618) authorize
CCDF, which is the primary Federal
funding source to Tribes, States, and
Territories devoted to supporting
families with low incomes access to
child care and to increasing the quality
of child care for all children. CCDF
plays a vital role in supporting child
development and family well-being,
facilitating parent employment, training,
and education, and improving the
economic well-being of participating
families. In FY 2024, 264 Tribal Lead
Agencies representing 546 federally
recognized Tribal Nations received
CCDF grants totaling $600 million.1
1 https://www.acf.hhs.gov/occ/data/gy-2024-ccdftribal-allocations-based-appropriations.
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Annual Tribal CCDF awards range from
$70,000 to $88 million per year.
The Act does not explicitly apply
most of its provisions to the Tribal
CCDF program, so with some exceptions
and within certain parameters, the
Secretary of Health and Human Services
has the authority to determine many of
the CCDF requirements for Tribal Lead
Agencies, including the family income
eligibility requirements for children to
receive services from Tribal CCDF
programs. Current Tribal CCDF
regulations at 45 CFR 98.81(b)(1)
include different family income
eligibility requirements and flexibilities
based on a Tribe’s award allocation size
in FY 2016. Tribes who had allocations
under $250,000 in 2016 (155 Tribal
Lead Agencies) may serve any Indian
child (as defined by the Tribal Lead
Agency) in the defined service area,
regardless of family income or assets.
However, Tribal Lead Agencies who had
allocations above $250,000 in 2016 are
subject to the same CCDF income
eligibility standard as States, set forth at
45 CFR 98.20(a)(2)—family income
cannot be more than 85 percent of
Grantee Median Income and the family
must pass an asset test.
This proposed rule would provide the
109 Tribal Lead Agencies with medium
and large allocations the flexibility to
disregard family income and assets in
determining family eligibility for CCDF.
This would extend the flexibility Tribes
with smaller allocations have to
disregard family income to all Tribal
CCDF Lead Agencies. Tribes, at their
discretion, could continue to choose to
use family income criteria for eligibility,
but this would no longer be a
requirement. This proposal does not
alter existing flexibilities that permit
Tribal Lead Agencies to apply
categorical eligibility criteria for
families under certain conditions.
Tribal Nations have requested greater
flexibility for CCDF family income
eligibility. Tribes report the rules do not
provide the flexibility necessary for
Tribal Nations to implement CCDF
programs in ways that best meet the
needs of the children and families in
their communities. The significant
variation between Tribal Nation child
care needs, infrastructure, and location
as well as the individuality of the 546
federally-recognized Tribal Nations
receiving CCDF make the 85 percent
grantee median income eligibility
threshold poorly suited to Tribal
Nations, hindering their ability to
effectively and efficiently using CCDF to
serve children and families. OCC
recently sought feedback from Tribal
Nations and other interested parties on
areas where more flexibility and/or
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Federal Register / Vol. 89, No. 136 / Tuesday, July 16, 2024 / Proposed Rules
different program rules would better
serve children, families, and Tribal
Nations through a formal Request for
Information (RFI), published in the
Federal Register at 88 FR 48409 (July
27, 2023). Throughout the RFI feedback
process and other feedback processes,
Tribal Lead Agencies expressed
appreciation for many CCDF flexibilities
but explained current categorical
eligibility rules were complicated,
burdensome, and too limited and that
standard family income eligibility rules
were too narrow to meet community
needs. Many Tribal Lead Agencies
expressed support for changing
eligibility requirements so they can
serve Indian children (as defined by the
Tribal Lead Agency), regardless of
family income.
This proposal will also benefit Tribal
Nations by better aligning family
income eligibility rules in the Tribal
CCDF and Head Start programs. At the
request of Tribal Nations and the BidenHarris Administration, the Further
Consolidated Appropriations Act, 2024
(Pub. L. 118–47) included a legislative
change to section 645 of the Head Start
Act, 42 U.S.C. 6840, to allow Tribal
Head Start programs to serve children in
their service area regardless of family
income. The Head Start Act, unlike the
CCDBG Act, required legislative action
to make this change. This important
new Head Start flexibility better
supports Tribal sovereignty and allows
Tribal Head Start programs to better
meet the needs of children and families
in their communities. However, it
inadvertently makes CCDF more
restrictive than Head Start, creating
unintended implementation challenges
for Tribes and barriers to effectively and
efficiently using multiple types of early
childhood Federal funding to support
comprehensive early learning services,
child development, and family wellbeing. This challenge is especially
salient since almost all Tribal Head Start
grantees administer a Tribal CCDF
program. This proposal would better
align Head Start and CCDF and allow
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CCDF
title/code
ACF–118–A (CCDF Tribal
Plan) Part I and Part II.
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Relevant
section in the
proposed rule
Tribal Nations the necessary flexibility
to determine how early childhood
program family income eligibility
determinations can best support their
communities.
Effective Dates
ACF proposes that the final rule
become effective 60 days from the date
of publication of the final rule.
Severability
The provisions of this NPRM, once it
becomes final, are intended to be
severable, such that, in the event a court
were to invalidate any particular
provision or deem it to be
unenforceable, the remaining provisions
would continue to be valid.
II. Statutory Authority
This proposed regulation is being
issued under the authority granted to
the Secretary of Health and Human
Services by the CCDBG Act of 1990, as
amended (42 U.S.C. 9857, et seq.), and
section 418 of the Social Security Act
(42 U.S.C. 618).
IV. Regulatory Process Matters
III. Discussion of Proposed Changes
Paperwork Reduction Act
We propose to revise 45 CFR
98.81(b)(1) to allow all CCDF Tribal
Lead Agencies the flexibility to
determine family eligibility for CCDF
without regard to family income and
assets. The proposal amends
§ 98.81(b)(1)(ii) to allow Tribal Lead
Agencies to disregard family income
requirements described in § 98.20(a)(2),
while retaining the ability for Tribal
Lead Agencies with a Tribal median
income below a level determined by the
Secretary to deem any child in their
service area categorically eligible,
regardless of family income, work, or
training status. Currently, the 40 percent
of Tribal Lead Agencies with medium
and large allocations, as defined in
CCDF regulations, are subject to the
requirements at § 98.20(a)(2) that
children must be in families with
incomes below 85 percent Grantee
Median Income and with assets under
Under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq., as amended)
(PRA), all Departments are required to
submit to the Office of Management and
Budget (OMB) for review and approval
any reporting or recordkeeping
requirements inherent in a proposed or
final rule. As required by this Act, we
will submit any proposed revised data
collection requirements to OMB for
review and approval.
The proposed rule modifies the
previously approved ACF–118–A CCDF
Tribal Plan information collection, but
ACF has not yet initiated the OMB
approval process to implement these
changes. ACF will publish a Federal
Register notice soliciting public
comment on specific revisions to this
information collection and the
associated burden estimate and will
make available the proposed form and
instructions for review.
OMB control
No.
§ 98.81
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$1 million in order to be eligible for
CCDF. Tribes with small allocations are
not subject to the requirements at
§ 98.20(a)(2) and are therefore already
have the flexibility to serve Indian
children (as defined by the Tribal Lead
Agency) regardless of family income.
Extending the flexibility to serve any
Indian Child in the service area
regardless of family income to all Tribal
Lead Agencies better supports Tribal
sovereignty and self-determination, and
it gives Tribes the ability to prioritize
services in the way that best meets the
needs of Tribal Nations and
communities. It will create better
opportunities for Tribes to align CCDF
programs with other Tribal early
childhood programs, including Tribal
home visiting, Early Head Start, Head
Start, and tribally funded preschool.
This proposal does not make any
other changes to current Tribal CCDF
family eligibility rules, including
existing Tribal categorical eligibility
flexibilities, which remain unchanged.
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Frm 00042
Expiration
date
4/30/2025
Fmt 4702
Description
The proposed rule would provide new flexibilities which Tribal
lead agencies with medium and large allocations will be required to report on in the CCDF plans.
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Federal Register / Vol. 89, No. 136 / Tuesday, July 16, 2024 / Proposed Rules
The table below provides current
approved annual burden hours and
estimated annual burden hours for these
existing information collections that are
modified by this proposed rule.
ANNUAL BURDEN ESTIMATES
Total
number of
respondents
Instrument
ACF–118A Part I (for all tribes) ..............................................
ACF–118–A Part II (for medium and large Tribes only) .........
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(see 5 U.S.C. 605(b) as amended by the
Small Business Regulatory Enforcement
Fairness Act) requires Federal agencies
to determine, to the extent feasible, a
rule’s impact on small entities, explore
regulatory options for reducing any
significant impact on a substantial
number of such entities, and explain
their regulatory approach. The term
‘‘small entities,’’ as defined in the RFA,
comprises small businesses, not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. HHS
considers a rule to have a significant
impact on a substantial number of small
entities if it has at least a 3 percent
impact on revenue on at least 5 percent
of small entities. The Secretary proposes
to certify, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96–354),
that this rulemaking would not result in
a significant impact on a substantial
number of small entities, as this
rulemaking primarily impacts tribes
receiving Federal CCDF grants.
Therefore, an initial regulatory
flexibility analysis is not required for
this document.
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Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
regulatory actions on State, local, and
Tribal governments, and the private
sector. Under section 202 of the UMRA,
the Department generally must prepare
a written statement, including a costbenefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures by State, local or
Tribal governments, in the aggregate, or
the private sector, of $100 million in
1995 dollars, updated annually for
inflation. In 2024 the threshold is
approximately $183 million. This
proposed rule does not impose an
unfunded mandate on State, local, or
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Current
approved
average
burden hours
per response
Total number
of responses
per respondent
265
106
1
1
Tribal governments or the private sector
of more than $183 million per year.
Therefore, ACF is not required to
provide a statement, including a costbenefit analysis, of the impacts of the
proposed changes.
Executive Order 13132
Executive Order 13132 requires
Federal agencies to consult with State
and local government officials if they
develop regulatory policies with
federalism implications. Federalism is
rooted in the belief that issues that are
not national in scope or significance are
most appropriately addressed by the
level of government close to the people.
This rulemaking would not have
substantial direct impact on the States,
on the relationship between the Federal
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, this action does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement.
Assessment of Federal Regulations and
Policies on Families
Assessment of Federal Regulations
and Policies on Families section 654 of
the Treasury and General Government
Appropriations Act of 2000 requires
Federal agencies to determine whether a
policy or regulation may negatively
affect family well-being. If the agency
determines a policy or regulation
negatively affects family well-being,
then the agency must prepare an impact
assessment addressing seven criteria
specified in the law. HHS believes it is
not necessary to prepare a family
policymaking assessment (see Pub. L.
105–277) because the action it takes in
this NPRM would not have any impact
on the autonomy or integrity of the
family as an institution.
Regulatory Review
We have examined the impacts of the
rule under Executive Order 12866,
Executive Order 13563, the Regulatory
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Current
annual burden
hours
120
24
10,600
848
Proposed
estimated
average
burden hours
per response
120
24
Proposed
estimated
annual
burden hours
10,600
848
Flexibility Act (5 U.S.C. 601–612), and
the Unfunded Mandates Reform Act of
1995 (Pub. L. 104–4). Executive Orders
12866 and 13563 direct us to assess all
benefits, costs, and transfers of available
regulatory alternatives and, when
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity). A
regulatory impact analysis must be
prepared for rules deemed significant
under section 3(f)(1) of E.O. 12866, as
amended by E.O. 14094.
The Office of Information and
Regulatory Affairs has determined that
this proposed rule is not a significant
regulatory action under section 3(f)(1) of
E.O. 12866, as amended by E.O. 14094,
and does not require a full regulatory
impact analysis. This proposed rule has,
however, been designated ‘‘a significant
regulatory action’’ under section 3(f) of
Executive Order 12866, as amended by
Executive Order 14094. In FY 2024,
OCC estimates that up to $173 million
is allocated to Tribal Lead Agencies that
could be impacted by the proposed
change. Further, these Tribal Lead
Agencies have discretion on whether to
adopt this flexibility based on their
unique needs. This proposed rule does
not stipulate any new requirements.
VI. Tribal Consultation Statement
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, requires agencies to
consult with Indian tribes when
regulations have substantial direct
effects on one or more Indian tribes, on
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes. The
proposed changes included in this
NPRM are in response to requests from
Tribal Nations for greater flexibility for
CCDF family income eligibility that
OCC has received through formal
consultation with Tribal Leaders and
through the Request for Information
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(RFI) OCC published in July 2023.
Additional discussion of proposed
changes in section 3 of the preamble
serves as the Tribal impact statement.
We intend to notify Tribal lead agencies
about the opportunity to provide
comment on the NPRM no later than the
day of publication. Further, shortly after
publication of the NPRM, we will host
consultation with Tribal Leaders and
hold briefing sessions with Tribal lead
agencies and any other interested tribe
on the contents of the NPRM.
Jeff Hild, Principal Deputy Assistant
Secretary for the Administration for
Children and Families, performing the
delegable duties of the Assistant
Secretary, approved this document on
May 22, 2024.
(Catalog of Federal Domestic Assistance
Program Number 93.575, Child Care and
Development Block Grant; 93.596, Child Care
Mandatory and Matching Funds)
List of Subjects in 45 CFR Part 98
Child care, Grant programs—social
programs.
Dated: July 8, 2024.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
For the reasons set forth in the
preamble, we propose to amend 45 CFR
part 98 as follows:
PART 98—CHILD CARE AND
DEVELOPMENT FUND
1. The authority for part 98 continues
to read as follows:
■
Authority: 42 U.S.C. 618, 9858.
2. Amend § 98.81 by revising
paragraph (b)(1)(ii) to read as follows.
■
§ 98.81
Application and Plan procedures.
*
*
*
*
*
(b) * * *
(1) * * *
(ii) The basis for determining family
eligibility may be determined by the
Tribe notwithstanding family income as
described in § 98.20(a)(2).
*
*
*
*
*
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R2–ES–2022–0012;
FXES1111090FEDR–245–FF09E21000]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding and 12Month Determination on a Petition To
Revise Critical Habitat for Sonora
Chub
Fish and Wildlife Service,
Interior.
ACTION: Notification of a 90-day petition
finding and 12-month determination.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), announce our
90-day finding and 12-month
determination on how to proceed in
response to a petition to revise critical
habitat for Sonora chub (Gila ditaenia)
pursuant to the Endangered Species Act
of 1973, as amended (Act). The petition
requests that the Service revise the
existing critical habitat designation in
Arizona by adding California Gulch.
Our 90-day finding is that the petition,
in conjunction with information readily
available in our files, presents
substantial scientific information
indicating that the requested revision
may be warranted. Our 12-month
determination is that we intend to
proceed with processing the petition by
assessing critical habitat during the next
5-year status review for Sonora chub
scheduled for release as soon as fiscal
year 2027, as resources allow.
DATES: The finding and the
determination announced in this
document were made on July 16, 2024.
ADDRESSES: A detailed description of
the basis for this finding and this
determination is available on the
internet at https://www.regulations.gov
at Docket No. FWS–R2–ES–2022–0012.
Information and supporting
documentation used in preparing this
finding and determination is also
available by contacting the person listed
under FOR FURTHER INFORMATION
CONTACT. Please submit any new
information, materials, comments, or
questions concerning this finding to the
contact listed under FOR FURTHER
INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT:
Heather Whitlaw, Arizona Ecological
Services Field Office, 9828 North 31st
Ave. C3, Phoenix, AZ 85051–2517;
telephone 602–242–0210. Individuals in
the United States who are deaf,
deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY,
SUMMARY:
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TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
Background
Section 3(5)(A) of the Act defines
critical habitat as (i) the specific areas
within the geographical area occupied
by the species, at the time it is listed,
on which are found those physical or
biological features (I) essential to the
conservation of the species and (II)
which may require special management
considerations or protections; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed, upon a determination by the
Secretary of the Interior (Secretary) that
such areas are essential for the
conservation of the species.
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12(b), in determining which areas
we will designate as critical habitat from
within the geographical area occupied
by the species at the time of listing, we
consider the physical or biological
features that are essential to the
conservation of the species and which
may require special management
considerations or protection. Our
implementing regulations at 50 CFR
424.02 define the ‘‘physical or biological
features essential to the conservation of
the species’’ as the features that occur in
specific areas and that are essential to
support the life-history needs of the
species, including, but not limited to,
water characteristics, soil type,
geological features, sites, prey,
vegetation, symbiotic species, or other
features. A feature may be a single
habitat characteristic or a more complex
combination of habitat characteristics.
Features may include habitat
characteristics that support ephemeral
or dynamic habitat conditions. Features
may also be expressed in terms relating
to principles of conservation biology,
such as patch size, distribution
distances, and connectivity. In addition,
our implementing regulations at 50 CFR
424.02 define ‘‘special management
considerations or protection’’ as
methods or procedures useful in
protecting the physical or biological
features essential to the conservation of
listed species.
Section 4(b)(2) of the Act states that
the Secretary shall designate and make
revisions to critical habitat for listed
species on the basis of the best scientific
data available and after taking into
consideration the economic impact,
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[Federal Register Volume 89, Number 136 (Tuesday, July 16, 2024)]
[Proposed Rules]
[Pages 57835-57838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15244]
[[Page 57835]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 98
RIN 0970-AD11
Increase Flexibility for Tribes in Child Care and Development
Fund (CCDF) Eligibility
AGENCY: Office of Child Care (OCC), Administration for Children and
Families (ACF), Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Health and Human Services, Administration
for Children and Families proposes to amend the Child Care and
Development Fund (CCDF) regulations through this notice of proposed
rulemaking (NPRM) to allow all Indian Tribes and Tribal Organizations
operating CCDF programs, at their discretion, to establish and use
eligibility criteria regardless of family income.
DATES: In order to be considered, written comments on this proposed
rule must be received on or before September 16, 2024.
ADDRESSES: You may submit comments, identified by docket number ACF-
2024-0010 and/or RIN number 0970-AD11, to the Federal eRulemaking
Portal: https://www.regulations.gov. Follow the instructions for
submitting comments.
Instructions: All submissions received must include the agency name
and docket number or RIN number for this rulemaking. All comments
received are a part of the public record and will be posted for public
viewing on www.regulations.gov, without change. That means all personal
identifying information (such as name or address) will be publicly
accessible. Please do not submit confidential information, or otherwise
sensitive or protected information. We accept anonymous comments. If
you wish to remain anonymous, enter ``N/A'' in the required fields.
Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any
background documents and the plain-language summary of the proposed
rule of not more than 100 words in length required by the Providing
Accountability Through Transparency Act of 2023, 5 U.S.C. 553(b)(4).
FOR FURTHER INFORMATION CONTACT: Megan Campbell, Office of Child Care,
202-690-6499 or [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
Effective Dates
Severability
II. Statutory Authority
III. Discussion of Proposed Changes
IV. Regulatory Process Matters
Paperwork Reduction Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Executive Order 13132
Assessment of Federal Regulations and Policies on Families
Regulatory Review
VI. Tribal Consultation Statement
List of Subjects in 45 CFR Part 98
I. Background
In response to requests from Tribal Child Care and Development Fund
(CCDF) Lead Agencies for more flexibility on family income eligibility
to better meet community needs and to recent statutory changes to
eligibility in the Tribal Head Start program, this NPRM proposes a
regulatory change to allow all Tribal CCDF Lead Agencies to serve
Indian children (as defined by the Tribal Lead Agency) in their service
area regardless of family income or assets. This NPRM is also
responsive to Executive Order 14112, Reforming Federal Funding and
Support for Tribal Nations To Better Embrace Our Trust Responsibilities
and Promote the Next Era of Tribal Self-Determination, which directs
agencies to ``increase the accessibility, equity, flexibility, and
utility of Federal funding.'' This proposal will provide Tribal Nations
with more flexibility to better meet community needs, address calls for
greater Tribal sovereignty, and facilitate better alignment between
Tribal CCDF and Tribal Head Start programs.
The Child Care and Development Block Grant Act (42 U.S.C. 9857 et
seq.), hereafter referred to as the ``Act,'' together with section 418
of the Social Security Act (42 U.S.C. 618) authorize CCDF, which is the
primary Federal funding source to Tribes, States, and Territories
devoted to supporting families with low incomes access to child care
and to increasing the quality of child care for all children. CCDF
plays a vital role in supporting child development and family well-
being, facilitating parent employment, training, and education, and
improving the economic well-being of participating families. In FY
2024, 264 Tribal Lead Agencies representing 546 federally recognized
Tribal Nations received CCDF grants totaling $600 million.\1\ Annual
Tribal CCDF awards range from $70,000 to $88 million per year.
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\1\ https://www.acf.hhs.gov/occ/data/gy-2024-ccdf-tribal-allocations-based-appropriations.
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The Act does not explicitly apply most of its provisions to the
Tribal CCDF program, so with some exceptions and within certain
parameters, the Secretary of Health and Human Services has the
authority to determine many of the CCDF requirements for Tribal Lead
Agencies, including the family income eligibility requirements for
children to receive services from Tribal CCDF programs. Current Tribal
CCDF regulations at 45 CFR 98.81(b)(1) include different family income
eligibility requirements and flexibilities based on a Tribe's award
allocation size in FY 2016. Tribes who had allocations under $250,000
in 2016 (155 Tribal Lead Agencies) may serve any Indian child (as
defined by the Tribal Lead Agency) in the defined service area,
regardless of family income or assets. However, Tribal Lead Agencies
who had allocations above $250,000 in 2016 are subject to the same CCDF
income eligibility standard as States, set forth at 45 CFR
98.20(a)(2)--family income cannot be more than 85 percent of Grantee
Median Income and the family must pass an asset test.
This proposed rule would provide the 109 Tribal Lead Agencies with
medium and large allocations the flexibility to disregard family income
and assets in determining family eligibility for CCDF. This would
extend the flexibility Tribes with smaller allocations have to
disregard family income to all Tribal CCDF Lead Agencies. Tribes, at
their discretion, could continue to choose to use family income
criteria for eligibility, but this would no longer be a requirement.
This proposal does not alter existing flexibilities that permit Tribal
Lead Agencies to apply categorical eligibility criteria for families
under certain conditions.
Tribal Nations have requested greater flexibility for CCDF family
income eligibility. Tribes report the rules do not provide the
flexibility necessary for Tribal Nations to implement CCDF programs in
ways that best meet the needs of the children and families in their
communities. The significant variation between Tribal Nation child care
needs, infrastructure, and location as well as the individuality of the
546 federally-recognized Tribal Nations receiving CCDF make the 85
percent grantee median income eligibility threshold poorly suited to
Tribal Nations, hindering their ability to effectively and efficiently
using CCDF to serve children and families. OCC recently sought feedback
from Tribal Nations and other interested parties on areas where more
flexibility and/or
[[Page 57836]]
different program rules would better serve children, families, and
Tribal Nations through a formal Request for Information (RFI),
published in the Federal Register at 88 FR 48409 (July 27, 2023).
Throughout the RFI feedback process and other feedback processes,
Tribal Lead Agencies expressed appreciation for many CCDF flexibilities
but explained current categorical eligibility rules were complicated,
burdensome, and too limited and that standard family income eligibility
rules were too narrow to meet community needs. Many Tribal Lead
Agencies expressed support for changing eligibility requirements so
they can serve Indian children (as defined by the Tribal Lead Agency),
regardless of family income.
This proposal will also benefit Tribal Nations by better aligning
family income eligibility rules in the Tribal CCDF and Head Start
programs. At the request of Tribal Nations and the Biden-Harris
Administration, the Further Consolidated Appropriations Act, 2024 (Pub.
L. 118-47) included a legislative change to section 645 of the Head
Start Act, 42 U.S.C. 6840, to allow Tribal Head Start programs to serve
children in their service area regardless of family income. The Head
Start Act, unlike the CCDBG Act, required legislative action to make
this change. This important new Head Start flexibility better supports
Tribal sovereignty and allows Tribal Head Start programs to better meet
the needs of children and families in their communities. However, it
inadvertently makes CCDF more restrictive than Head Start, creating
unintended implementation challenges for Tribes and barriers to
effectively and efficiently using multiple types of early childhood
Federal funding to support comprehensive early learning services, child
development, and family well-being. This challenge is especially
salient since almost all Tribal Head Start grantees administer a Tribal
CCDF program. This proposal would better align Head Start and CCDF and
allow Tribal Nations the necessary flexibility to determine how early
childhood program family income eligibility determinations can best
support their communities.
Effective Dates
ACF proposes that the final rule become effective 60 days from the
date of publication of the final rule.
Severability
The provisions of this NPRM, once it becomes final, are intended to
be severable, such that, in the event a court were to invalidate any
particular provision or deem it to be unenforceable, the remaining
provisions would continue to be valid.
II. Statutory Authority
This proposed regulation is being issued under the authority
granted to the Secretary of Health and Human Services by the CCDBG Act
of 1990, as amended (42 U.S.C. 9857, et seq.), and section 418 of the
Social Security Act (42 U.S.C. 618).
III. Discussion of Proposed Changes
We propose to revise 45 CFR 98.81(b)(1) to allow all CCDF Tribal
Lead Agencies the flexibility to determine family eligibility for CCDF
without regard to family income and assets. The proposal amends Sec.
98.81(b)(1)(ii) to allow Tribal Lead Agencies to disregard family
income requirements described in Sec. 98.20(a)(2), while retaining the
ability for Tribal Lead Agencies with a Tribal median income below a
level determined by the Secretary to deem any child in their service
area categorically eligible, regardless of family income, work, or
training status. Currently, the 40 percent of Tribal Lead Agencies with
medium and large allocations, as defined in CCDF regulations, are
subject to the requirements at Sec. 98.20(a)(2) that children must be
in families with incomes below 85 percent Grantee Median Income and
with assets under $1 million in order to be eligible for CCDF. Tribes
with small allocations are not subject to the requirements at Sec.
98.20(a)(2) and are therefore already have the flexibility to serve
Indian children (as defined by the Tribal Lead Agency) regardless of
family income. Extending the flexibility to serve any Indian Child in
the service area regardless of family income to all Tribal Lead
Agencies better supports Tribal sovereignty and self-determination, and
it gives Tribes the ability to prioritize services in the way that best
meets the needs of Tribal Nations and communities. It will create
better opportunities for Tribes to align CCDF programs with other
Tribal early childhood programs, including Tribal home visiting, Early
Head Start, Head Start, and tribally funded preschool.
This proposal does not make any other changes to current Tribal
CCDF family eligibility rules, including existing Tribal categorical
eligibility flexibilities, which remain unchanged.
IV. Regulatory Process Matters
Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq., as
amended) (PRA), all Departments are required to submit to the Office of
Management and Budget (OMB) for review and approval any reporting or
recordkeeping requirements inherent in a proposed or final rule. As
required by this Act, we will submit any proposed revised data
collection requirements to OMB for review and approval.
The proposed rule modifies the previously approved ACF-118-A CCDF
Tribal Plan information collection, but ACF has not yet initiated the
OMB approval process to implement these changes. ACF will publish a
Federal Register notice soliciting public comment on specific revisions
to this information collection and the associated burden estimate and
will make available the proposed form and instructions for review.
----------------------------------------------------------------------------------------------------------------
Relevant
CCDF title/code section in the OMB control Expiration Description
proposed rule No. date
----------------------------------------------------------------------------------------------------------------
ACF-118-A (CCDF Tribal Plan) Part Sec. 98.81 0970-0198 4/30/2025 The proposed rule would
I and Part II. provide new flexibilities
which Tribal lead agencies
with medium and large
allocations will be required
to report on in the CCDF
plans.
----------------------------------------------------------------------------------------------------------------
[[Page 57837]]
The table below provides current approved annual burden hours and
estimated annual burden hours for these existing information
collections that are modified by this proposed rule.
Annual Burden Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Proposed
Total number Total number of approved estimated Proposed
Instrument of responses per average Current annual average burden estimated
respondents respondent burden hours burden hours hours per annual burden
per response response hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
ACF-118A Part I (for all tribes)........................ 265 1 120 10,600 120 10,600
ACF-118-A Part II (for medium and large Tribes only).... 106 1 24 848 24 848
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires Federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. The term ``small
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. HHS considers a rule to have a
significant impact on a substantial number of small entities if it has
at least a 3 percent impact on revenue on at least 5 percent of small
entities. The Secretary proposes to certify, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96-354), that this rulemaking would not
result in a significant impact on a substantial number of small
entities, as this rulemaking primarily impacts tribes receiving Federal
CCDF grants. Therefore, an initial regulatory flexibility analysis is
not required for this document.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of regulatory actions on State, local, and Tribal governments,
and the private sector. Under section 202 of the UMRA, the Department
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local or Tribal governments, in
the aggregate, or the private sector, of $100 million in 1995 dollars,
updated annually for inflation. In 2024 the threshold is approximately
$183 million. This proposed rule does not impose an unfunded mandate on
State, local, or Tribal governments or the private sector of more than
$183 million per year. Therefore, ACF is not required to provide a
statement, including a cost-benefit analysis, of the impacts of the
proposed changes.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consult with
State and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. This rulemaking would not have substantial direct impact on the
States, on the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, this action does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Assessment of Federal Regulations and Policies on Families
Assessment of Federal Regulations and Policies on Families section
654 of the Treasury and General Government Appropriations Act of 2000
requires Federal agencies to determine whether a policy or regulation
may negatively affect family well-being. If the agency determines a
policy or regulation negatively affects family well-being, then the
agency must prepare an impact assessment addressing seven criteria
specified in the law. HHS believes it is not necessary to prepare a
family policymaking assessment (see Pub. L. 105-277) because the action
it takes in this NPRM would not have any impact on the autonomy or
integrity of the family as an institution.
Regulatory Review
We have examined the impacts of the rule under Executive Order
12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C.
601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct us to assess all benefits,
costs, and transfers of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). A regulatory impact analysis must be prepared for rules deemed
significant under section 3(f)(1) of E.O. 12866, as amended by E.O.
14094.
The Office of Information and Regulatory Affairs has determined
that this proposed rule is not a significant regulatory action under
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094, and does not
require a full regulatory impact analysis. This proposed rule has,
however, been designated ``a significant regulatory action'' under
section 3(f) of Executive Order 12866, as amended by Executive Order
14094. In FY 2024, OCC estimates that up to $173 million is allocated
to Tribal Lead Agencies that could be impacted by the proposed change.
Further, these Tribal Lead Agencies have discretion on whether to adopt
this flexibility based on their unique needs. This proposed rule does
not stipulate any new requirements.
VI. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, requires agencies to consult with Indian tribes
when regulations have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. The proposed changes included
in this NPRM are in response to requests from Tribal Nations for
greater flexibility for CCDF family income eligibility that OCC has
received through formal consultation with Tribal Leaders and through
the Request for Information
[[Page 57838]]
(RFI) OCC published in July 2023. Additional discussion of proposed
changes in section 3 of the preamble serves as the Tribal impact
statement. We intend to notify Tribal lead agencies about the
opportunity to provide comment on the NPRM no later than the day of
publication. Further, shortly after publication of the NPRM, we will
host consultation with Tribal Leaders and hold briefing sessions with
Tribal lead agencies and any other interested tribe on the contents of
the NPRM.
Jeff Hild, Principal Deputy Assistant Secretary for the
Administration for Children and Families, performing the delegable
duties of the Assistant Secretary, approved this document on May 22,
2024.
(Catalog of Federal Domestic Assistance Program Number 93.575, Child
Care and Development Block Grant; 93.596, Child Care Mandatory and
Matching Funds)
List of Subjects in 45 CFR Part 98
Child care, Grant programs--social programs.
Dated: July 8, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, we propose to amend 45
CFR part 98 as follows:
PART 98--CHILD CARE AND DEVELOPMENT FUND
0
1. The authority for part 98 continues to read as follows:
Authority: 42 U.S.C. 618, 9858.
0
2. Amend Sec. 98.81 by revising paragraph (b)(1)(ii) to read as
follows.
Sec. 98.81 Application and Plan procedures.
* * * * *
(b) * * *
(1) * * *
(ii) The basis for determining family eligibility may be determined
by the Tribe notwithstanding family income as described in Sec.
98.20(a)(2).
* * * * *
[FR Doc. 2024-15244 Filed 7-12-24; 8:45 am]
BILLING CODE 4184-87-P
