Increase Flexibility for Tribes in Child Care and Development Fund (CCDF) Eligibility, 90605-90608 [2024-26909]
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Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Final rule.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 98
This final rule amends the
Child Care and Development Fund
(CCDF) regulations to provide all Indian
Tribes and Tribal Organizations
operating CCDF programs the flexibility,
at their discretion, to establish and use
eligibility criteria regardless of family
income or assets.
SUMMARY:
RIN 0970–AD11
Increase Flexibility for Tribes in Child
Care and Development Fund (CCDF)
Eligibility
Office of Child Care (OCC),
Administration for Children and
AGENCY:
DATES:
Effective: November 18, 2024.
FOR FURTHER INFORMATION CONTACT:
Megan Campbell, Office of Child Care,
202–690–6499 or megan.campbell@
acf.hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority .....................................................................................................................................................................................
II. Background .................................................................................................................................................................................................
Effective Dates .........................................................................................................................................................................................
Severability ..............................................................................................................................................................................................
III. Development of Regulation ......................................................................................................................................................................
IV. Discussion of Comments and Regulatory Provisions .............................................................................................................................
V. Regulatory Process Matters .......................................................................................................................................................................
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. Statutory Authority
This final rule is being issued under
the authority granted to the Secretary of
Health and Human Services by the
Child Care and Development Block
Grant (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).
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II. Background
In response to requests from Tribal
Leaders and 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 final
rule amends the CCDF regulations to
provide all Tribal CCDF Lead Agencies
the flexibility to serve Indian children
(as defined by the Tribal Lead Agency)
in their defined service area regardless
of family income or assets. This final
rule 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 final
rule provides Tribal Nations with more
flexibility to better meet community
needs, responds to calls for greater
Tribal sovereignty and selfdetermination, and facilitates better
alignment between Tribal CCDF and
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American Indian and Alaska Native
(AIAN) Head Start programs.
The CCDBG 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
the CCDF program, which is the primary
federal funding source to Tribes, States,
and Territories devoted to supporting
families 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 fiscal year
(FY) 2024, 264 Tribal Lead Agencies
representing 546 federally recognized
Tribal Nations received CCDF grants
totaling nearly $600 million.1 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
and assets eligibility requirements for
children to receive services from Tribal
CCDF programs. Previous Tribal CCDF
regulations included different family
income and assets eligibility
requirements and flexibilities based on
a Tribal Lead Agency’s award allocation
size in FY 2016. Tribal Lead Agencies
1 https://www.acf.hhs.gov/occ/data/gy-2024-ccdftribal-allocations-based-appropriations.
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who had allocations under $250,000 in
2016 (155 Tribal Lead Agencies) could
serve any Indian child (as defined by
the Tribal Lead Agency) in their defined
service area, regardless of family income
or assets. However, Tribal Lead
Agencies with allocations above
$250,000 in 2016 were subject to the
same CCDF income and assets eligibility
standard as States, set forth at
§ 98.20(a)(2), which meant that family
income could not be more than 85
percent of Grantee Median Income
(GMI) and family assets could not
exceed $1 million.
This final rule extends the existing
flexibility for Tribal Lead Agencies with
small allocations to disregard family
income and assets in determining family
eligibility for CCDF to all Tribal Lead
Agencies. All Tribal CCDF Lead
Agencies may continue to use family
income and/or assets criteria for
eligibility at their option, but it will no
longer be a requirement. Tribal Lead
Agencies choosing to use family income
or assets criteria for eligibility would
have the flexibility to determine the
appropriate threshold for their Nation.
This final rule does not alter existing
flexibilities that permit Tribal Lead
Agencies with medium and large
allocations to apply categorical
eligibility criteria for families under
certain conditions.
This final rule will benefit Tribal
Nations by better aligning family
income eligibility rules in the Tribal
CCDF with Head Start programs and
providing necessary flexibility to
determine how early childhood program
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Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 / Rules and Regulations
family income or assets determinations
can best support their communities.
This alignment is particularly salient
because many American Indian and
Alaskan Native (AIAN) Head Start grant
recipients administer a Tribal CCDF
program. At the request of Tribal
Nations and the Biden-Harris
Administration, the Further
Consolidated Appropriations Act, 2024
(Public Law (Pub. L.) 118–47, Div. D,
Tit. II, Sec. 238) included changes to
AIAN Head Start eligibility criteria, to
make eligible for Head Start services all
age-eligible children in an AIAN
program’s service area regardless of
income. The Head Start Act, unlike the
CCDBG Act, required legislative action
to make this change.
Effective Dates
This final rule will become effective
on the date of publication to expedite
Tribal Lead Agencies’ ability to
implement the flexibilities included in
this final rule.
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Severability
The provisions of this final rule 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.
III. Development of Regulation
ACF published a notice of proposed
rulemaking (NPRM) in the Federal
Register on July 16, 2024, (89 FR 57835)
proposing revisions to CCDF
regulations. We provided a 60-day
comment period during which
interested parties could submit
comments in writing electronically.
ACF received 18 comments on the
proposed rule (public comments on the
proposed rule are available for review
on www.regulations.gov), including
Tribal Nations and Tribal organizations,
a state CCDF Lead Agency, non-profit
and research organizations, parents, and
individual members of the public.
Public comments informed the
development of content for this final
rule.
Tribal consultation and comments.
ACF is committed to consulting with
Tribal Nations prior to promulgating
any regulation that has Tribal
implications. ACF held a formal
consultation session virtually in August
2024 with Tribal leaders and authorized
representatives to discuss the impact of
the proposed regulations on Tribes.
Tribes and Tribal organizations were
informed of these events through formal
letters to Tribal leaders and
announcements to Tribal CCDF
administrators. ACF also distributed
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materials specifically addressing the
impact of the proposed rule on Tribes.
ACF will publish a consultation report,
which will be posted as a supplemental
document in the Federal Register and
will include information on
consultation attendees as well as their
specific comments. During consultation,
ACF received testimony from one
authorized representative who
expressed strong support for the
proposed change. This final rule was
informed by this testimony.
In addition, prior to the development
of the NPRM, OCC sought feedback from
Tribal Nations and other interested
parties on areas where more flexibility
and/or 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). Through the RFI process,
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.
OCC also received feedback on the need
for flexibility in eligibility
determination at the ACF Tribal Early
Childhood Consultation held in July
2024. This final rule was informed by
this feedback.
This final rule maintains the structure
and organization of the current CCDF
regulations. Where language of previous
regulations remains unchanged, the
preamble explanation and interpretation
of that language published with all prior
final rules also is retained, unless
specifically modified in the preamble to
this rule. (See 57 FR 34352, Aug. 4,
1992; 63 FR 39936, Jul. 24, 1998; 72 FR
27972, May 18, 2007; 72 FR 50889, Sep.
5, 2007; 81 FR 67438, Sept. 30, 2016; 89
FR 15366, Mar. 1, 2024).
IV. Discussion of Comments and
Regulatory Provisions
This final rule amends § 98.81(b)(1) to
provide all CCDF Tribal Lead Agencies
the flexibility to determine family
eligibility for CCDF without regard to
family income and assets. Specifically,
the rule revises § 98.81(b)(1)(ii) so that
all Tribal Lead Agencies may disregard
family income and assets 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 work, or training status.
Previously, the 40 percent of Tribal
Lead Agencies with medium and large
allocations were subject to the
requirements at § 98.20(a)(2) that
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children must be in families with
incomes below 85 percent Grantee
Median Income (GMI) and with assets
under $1 million to be eligible for
CCDF. Tribes with small allocations
were already exempt from the
requirements at § 98.20(a)(2). Extending
the flexibility to serve any Indian child
in the service area regardless of family
income or assets to all Tribal Lead
Agencies gives the Lead Agencies the
authority to better meet the needs of
Tribal Nations and their communities
and supports Tribal sovereignty and
self-determination. It also creates better
opportunities for Tribes to align CCDF
programs with other Tribal early
childhood programs, including Tribal
home visiting, Early Head Start, Head
Start preschool, and tribally or state
funded preschool.
The new flexibility included in this
final rule is at the option of the Tribal
Lead Agency. Therefore, Tribal Lead
Agencies with medium and large
allocations may choose to continue
using income and/or assets when
determining if a child is eligible for
CCDF. Tribal Lead Agencies who choose
to keep income and/or assets as
eligibility criteria are not limited to
setting the income threshold at or below
85 percent GMI, or an asset limit at $1
million and may set these thresholds
higher.
This final rule does not make any
other changes to Tribal CCDF
regulations. No other changes were
made to family eligibility rules,
including existing Tribal categorical
eligibility flexibilities, which remain
unchanged.
Comment: Commenters unanimously
expressed support for the proposed
change to provide all Tribal Lead
Agencies the flexibility to serve all
Indian children (as defined by the Lead
Agency) in their service area regardless
of family income or assets. Commenters
noted that the change is a step toward
promoting Tribal sovereignty and
enabling Tribal Nations to implement
the CCDF program in a way that meets
the unique needs of each community.
They also noted that the change better
aligns with eligibility rules of other
early childhood programs, including
Head Start, which may lead to more
inclusive and equitable services for
Native families.
Response: We acknowledge that
commenters supported the proposed
change and agree that this change
supports Tribal sovereignty and have
retained the provision as proposed with
one minor addition to clarify that Tribal
Lead Agencies may disregard eligibility
requirements for assets, in addition to
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those required for income, which has
always been the intent of the rule.
Comment: While all commenters
supported the change, some noted that
all Tribal Lead Agencies may not have
the funding to serve all Indian children
in their service areas.
Response: This regulatory change
provides a new flexibility for all Tribal
Lead Agencies. The rule does not
impact Congressionally appropriated
funds or Tribal CCDF allocations.
Disregarding income and assets as
eligibility criteria is an option for Tribal
Lead Agencies, not a requirement.
Tribal Lead Agencies have flexibility to
establish income and asset requirements
that balance the needs of the community
and resources available.
CCDF title/code
V. Regulatory Process Matters
Paperwork Reduction Act
Under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq., as amended), 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 all
revised data collection requirements to
OMB for review and approval.
The final rule modifies the previously
approved ACF–118–A CCDF Tribal Plan
information collection (OMB #0970–
0198). ACF initiated the process to
receive OMB approval to revise and
extend approval of the ACF–118–A
Relevant
section in the
proposed rule
ACF–118–A (CCDF Tribal Plan)
Part I and Part II.
OMB
control No.
§ 98.81
The table below provides current
approved annual burden hours and
estimated annual burden hours for these
0970–0198
90607
CCDF Tribal Plan. This began with the
initial 60-day comment period, which
started on July 2, 2024, (89 FR 54827)
and the first comment period ended on
September 3, 2024. ACF will include
the changes that result from this final
rule in the revision request that is
submitted to OMB for review and
approval. This includes updates to the
information collection and the
associated burden estimates. This
process will include publication of a
second Federal Register notice
soliciting public comments over a 30day period on the revisions to the ACF–
118–A CCDF Tribal Plan.
Expiration
date
Description
4/30/2025
This final rule provides new flexibilities which Tribal lead agencies with medium and large allocations will be required to report on in the CCDF plans.
existing information collections that are
modified by this final rule.
ANNUAL BURDEN ESTIMATES
Instrument
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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
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Estimated
average
burden hours
per response
based on
final rule
Estimated
annual
burden hours
based on
final rule
Total
number of
responses per
respondent
265
1
120
10,600
120
10,600
106
1
24
848
24
848
ACF–118A Part I (for all tribes) ...................
ACF–118–A Part II (for medium and large
Tribes only) ...............................................
We did not receive any public
comments on these burden estimates,
which were included in the NPRM.
Current
approved
average
burden hours
per response
Total
number of
respondents
Current annual
burden hours
entities if it has at least a 3 percent
impact on revenue on at least 5 percent
of small entities. The Secretary certifies,
under 5 U.S.C. 605(b), as enacted by the
RFA (Pub. L. 96–354), that this
rulemaking will not result in a
significant impact on a substantial
number of small entities, as this
rulemaking primarily impacts tribes
receiving federal CCDF grants.
Therefore, a 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-
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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 final
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 costbenefit analysis, of the impacts of the
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
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Federal Register / Vol. 89, No. 222 / Monday, November 18, 2024 / Rules and Regulations
not national in scope or significance are
most appropriately addressed by the
level of government close to the people.
This rulemaking does 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.
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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 final rule will 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 RFA (5
U.S.C. 601–612), and the UMRA 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).
The Office of Information and
Regulatory Affairs has determined that
this final rule is not a significant
regulatory action under section 3(f)(1) of
Executive Order 12866, as amended by
Executive Order 14094. This final rule
has, however, been designated ‘‘a
significant regulatory action’’ under
section 3(f) of Executive Order 12866, as
amended by Executive Order 14094. Of
the nearly $600 million appropriated for
264 Tribal Lead Agencies in FY 2024,
approximately $422 million was
allocated to grantees that already have
discretion to take-up the flexibilities
included in this rule. The remaining
$173 million is allocated to Tribal Lead
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Agencies that could be impacted by the
change included in this rule. Further,
these Tribal Lead Agencies have
discretion on whether to adopt this
flexibility based on their unique needs.
This final rule does not stipulate any
new requirements.
DEPARTMENT OF TRANSPORTATION
VI. Tribal Consultation Statement
RIN 2126–AC66
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
discussion in sections III and IV of the
preamble serves as the Tribal impact
statement and contains a detailed
description of the consultation and
outreach in this final rule.
Federal Motor Carrier Safety
Regulations
(Catalog of Federal Domestic Assistance
Program Number 93.575, Child Care and
Development Block Grant; 93.596, Child Care
Mandatory and Matching Funds)
Dated: November 14, 2024.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
List of Subjects in 45 CFR Part 98
Child care, Grant programs-social
programs.
For the reasons set forth in the
preamble, we amend 45 CFR part 98 as
follows:
PART 98—CHILD CARE AND
DEVELOPMENT FUND
1. The authority citation 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 or
assets as described in § 98.20(a)(2).
*
*
*
*
*
[FR Doc. 2024–26909 Filed 11–15–24; 8:45 am]
BILLING CODE 4184–87–P
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Federal Motor Carrier Safety
Administration
49 CFR Chapter III
[Docket No. FMCSA–2024–0201]
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule; general technical,
organizational, conforming, and
correcting amendments.
AGENCY:
FMCSA amends its
regulations by making technical
corrections throughout the Federal
Motor Carrier Safety Regulations
(FMCSRs). The Agency makes minor
changes to correct inadvertent errors
and omissions, remove or update
obsolete references, and improve the
clarity and consistency of certain
regulatory provisions. The Agency also
makes a change to its rules of
organization, procedures, and practice.
Because the rule does not impose any
new material requirements or increase
compliance obligations, it is issued
without prior notice and opportunity for
comment, pursuant to the good cause
exception in the Administrative
Procedure Act (APA).
DATES: Effective November 18, 2024.
Petitions for Reconsideration of this
final rule must be submitted to the
FMCSA Administrator no later than
December 18, 2024.
FOR FURTHER INFORMATION CONTACT: Mr.
Nicholas Lockhart, Regulatory
Development Division, Office of Policy,
FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001; (202) 366–
2219; nicholas.lockhart@dot.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Legal Basis for the Rulemaking
Congress delegated certain powers to
regulate interstate commerce to DOT in
numerous pieces of legislation, most
notably in section 6 of the Department
of Transportation Act (DOT Act) (Pub.
L. 89–670, 80 Stat. 931, 937, Oct. 15,
1966). Section 6 of the DOT Act
transferred to DOT the authority of the
former Interstate Commerce
Commission (ICC) to regulate the
qualifications and maximum hours of
service of employees, the safety of
operations, and the equipment, of motor
carriers in interstate commerce (80 Stat.
939). This authority, first granted to the
ICC in the Motor Carrier Act of 1935
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]]>Agencies
[Federal Register Volume 89, Number 222 (Monday, November 18, 2024)]
[Rules and Regulations]
[Pages 90605-90608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26909]
[[Page 90605]]
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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: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Child Care and Development Fund
(CCDF) regulations to provide all Indian Tribes and Tribal
Organizations operating CCDF programs the flexibility, at their
discretion, to establish and use eligibility criteria regardless of
family income or assets.
DATES: Effective: November 18, 2024.
FOR FURTHER INFORMATION CONTACT: Megan Campbell, Office of Child Care,
202-690-6499 or [email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Authority......................................... 3
II. Background................................................. 3
Effective Dates............................................ 5
Severability............................................... 5
III. Development of Regulation................................. 5
IV. Discussion of Comments and Regulatory Provisions........... 7
V. Regulatory Process Matters.................................. 9
Regulatory Flexibility Act................................. 11
Unfunded Mandates Reform Act of 1995....................... 12
Executive Order 13132...................................... 12
Assessment of Federal Regulations and Policies on Families. 13
Regulatory Review.......................................... 13
VI. Tribal Consultation Statement.............................. 14
List of Subjects in 45 CFR Part 98............................. 14
I. Statutory Authority
This final rule is being issued under the authority granted to the
Secretary of Health and Human Services by the Child Care and
Development Block Grant (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).
II. Background
In response to requests from Tribal Leaders and 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
final rule amends the CCDF regulations to provide all Tribal CCDF Lead
Agencies the flexibility to serve Indian children (as defined by the
Tribal Lead Agency) in their defined service area regardless of family
income or assets. This final rule 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 final rule provides Tribal Nations with more flexibility to better
meet community needs, responds to calls for greater Tribal sovereignty
and self-determination, and facilitates better alignment between Tribal
CCDF and American Indian and Alaska Native (AIAN) Head Start programs.
The CCDBG 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 the CCDF program, which is the primary federal
funding source to Tribes, States, and Territories devoted to supporting
families 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 fiscal year (FY) 2024, 264 Tribal Lead
Agencies representing 546 federally recognized Tribal Nations received
CCDF grants totaling nearly $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 and assets eligibility
requirements for children to receive services from Tribal CCDF
programs. Previous Tribal CCDF regulations included different family
income and assets eligibility requirements and flexibilities based on a
Tribal Lead Agency's award allocation size in FY 2016. Tribal Lead
Agencies who had allocations under $250,000 in 2016 (155 Tribal Lead
Agencies) could serve any Indian child (as defined by the Tribal Lead
Agency) in their defined service area, regardless of family income or
assets. However, Tribal Lead Agencies with allocations above $250,000
in 2016 were subject to the same CCDF income and assets eligibility
standard as States, set forth at Sec. 98.20(a)(2), which meant that
family income could not be more than 85 percent of Grantee Median
Income (GMI) and family assets could not exceed $1 million.
This final rule extends the existing flexibility for Tribal Lead
Agencies with small allocations to disregard family income and assets
in determining family eligibility for CCDF to all Tribal Lead Agencies.
All Tribal CCDF Lead Agencies may continue to use family income and/or
assets criteria for eligibility at their option, but it will no longer
be a requirement. Tribal Lead Agencies choosing to use family income or
assets criteria for eligibility would have the flexibility to determine
the appropriate threshold for their Nation. This final rule does not
alter existing flexibilities that permit Tribal Lead Agencies with
medium and large allocations to apply categorical eligibility criteria
for families under certain conditions.
This final rule will benefit Tribal Nations by better aligning
family income eligibility rules in the Tribal CCDF with Head Start
programs and providing necessary flexibility to determine how early
childhood program
[[Page 90606]]
family income or assets determinations can best support their
communities. This alignment is particularly salient because many
American Indian and Alaskan Native (AIAN) Head Start grant recipients
administer a Tribal CCDF program. At the request of Tribal Nations and
the Biden-Harris Administration, the Further Consolidated
Appropriations Act, 2024 (Public Law (Pub. L.) 118-47, Div. D, Tit. II,
Sec. 238) included changes to AIAN Head Start eligibility criteria, to
make eligible for Head Start services all age-eligible children in an
AIAN program's service area regardless of income. The Head Start Act,
unlike the CCDBG Act, required legislative action to make this change.
Effective Dates
This final rule will become effective on the date of publication to
expedite Tribal Lead Agencies' ability to implement the flexibilities
included in this final rule.
Severability
The provisions of this final rule 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.
III. Development of Regulation
ACF published a notice of proposed rulemaking (NPRM) in the Federal
Register on July 16, 2024, (89 FR 57835) proposing revisions to CCDF
regulations. We provided a 60-day comment period during which
interested parties could submit comments in writing electronically.
ACF received 18 comments on the proposed rule (public comments on
the proposed rule are available for review on www.regulations.gov),
including Tribal Nations and Tribal organizations, a state CCDF Lead
Agency, non-profit and research organizations, parents, and individual
members of the public. Public comments informed the development of
content for this final rule.
Tribal consultation and comments. ACF is committed to consulting
with Tribal Nations prior to promulgating any regulation that has
Tribal implications. ACF held a formal consultation session virtually
in August 2024 with Tribal leaders and authorized representatives to
discuss the impact of the proposed regulations on Tribes. Tribes and
Tribal organizations were informed of these events through formal
letters to Tribal leaders and announcements to Tribal CCDF
administrators. ACF also distributed materials specifically addressing
the impact of the proposed rule on Tribes. ACF will publish a
consultation report, which will be posted as a supplemental document in
the Federal Register and will include information on consultation
attendees as well as their specific comments. During consultation, ACF
received testimony from one authorized representative who expressed
strong support for the proposed change. This final rule was informed by
this testimony.
In addition, prior to the development of the NPRM, OCC sought
feedback from Tribal Nations and other interested parties on areas
where more flexibility and/or 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). Through the RFI process, 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. OCC also received feedback on the need for
flexibility in eligibility determination at the ACF Tribal Early
Childhood Consultation held in July 2024. This final rule was informed
by this feedback.
This final rule maintains the structure and organization of the
current CCDF regulations. Where language of previous regulations
remains unchanged, the preamble explanation and interpretation of that
language published with all prior final rules also is retained, unless
specifically modified in the preamble to this rule. (See 57 FR 34352,
Aug. 4, 1992; 63 FR 39936, Jul. 24, 1998; 72 FR 27972, May 18, 2007; 72
FR 50889, Sep. 5, 2007; 81 FR 67438, Sept. 30, 2016; 89 FR 15366, Mar.
1, 2024).
IV. Discussion of Comments and Regulatory Provisions
This final rule amends Sec. 98.81(b)(1) to provide all CCDF Tribal
Lead Agencies the flexibility to determine family eligibility for CCDF
without regard to family income and assets. Specifically, the rule
revises Sec. 98.81(b)(1)(ii) so that all Tribal Lead Agencies may
disregard family income and assets 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 work, or training status. Previously, the 40 percent of Tribal Lead
Agencies with medium and large allocations were subject to the
requirements at Sec. 98.20(a)(2) that children must be in families
with incomes below 85 percent Grantee Median Income (GMI) and with
assets under $1 million to be eligible for CCDF. Tribes with small
allocations were already exempt from the requirements at Sec.
98.20(a)(2). Extending the flexibility to serve any Indian child in the
service area regardless of family income or assets to all Tribal Lead
Agencies gives the Lead Agencies the authority to better meet the needs
of Tribal Nations and their communities and supports Tribal sovereignty
and self-determination. It also creates better opportunities for Tribes
to align CCDF programs with other Tribal early childhood programs,
including Tribal home visiting, Early Head Start, Head Start preschool,
and tribally or state funded preschool.
The new flexibility included in this final rule is at the option of
the Tribal Lead Agency. Therefore, Tribal Lead Agencies with medium and
large allocations may choose to continue using income and/or assets
when determining if a child is eligible for CCDF. Tribal Lead Agencies
who choose to keep income and/or assets as eligibility criteria are not
limited to setting the income threshold at or below 85 percent GMI, or
an asset limit at $1 million and may set these thresholds higher.
This final rule does not make any other changes to Tribal CCDF
regulations. No other changes were made to family eligibility rules,
including existing Tribal categorical eligibility flexibilities, which
remain unchanged.
Comment: Commenters unanimously expressed support for the proposed
change to provide all Tribal Lead Agencies the flexibility to serve all
Indian children (as defined by the Lead Agency) in their service area
regardless of family income or assets. Commenters noted that the change
is a step toward promoting Tribal sovereignty and enabling Tribal
Nations to implement the CCDF program in a way that meets the unique
needs of each community. They also noted that the change better aligns
with eligibility rules of other early childhood programs, including
Head Start, which may lead to more inclusive and equitable services for
Native families.
Response: We acknowledge that commenters supported the proposed
change and agree that this change supports Tribal sovereignty and have
retained the provision as proposed with one minor addition to clarify
that Tribal Lead Agencies may disregard eligibility requirements for
assets, in addition to
[[Page 90607]]
those required for income, which has always been the intent of the
rule.
Comment: While all commenters supported the change, some noted that
all Tribal Lead Agencies may not have the funding to serve all Indian
children in their service areas.
Response: This regulatory change provides a new flexibility for all
Tribal Lead Agencies. The rule does not impact Congressionally
appropriated funds or Tribal CCDF allocations. Disregarding income and
assets as eligibility criteria is an option for Tribal Lead Agencies,
not a requirement. Tribal Lead Agencies have flexibility to establish
income and asset requirements that balance the needs of the community
and resources available.
V. Regulatory Process Matters
Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq., as
amended), 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 all revised data collection
requirements to OMB for review and approval.
The final rule modifies the previously approved ACF-118-A CCDF
Tribal Plan information collection (OMB #0970-0198). ACF initiated the
process to receive OMB approval to revise and extend approval of the
ACF-118-A CCDF Tribal Plan. This began with the initial 60-day comment
period, which started on July 2, 2024, (89 FR 54827) and the first
comment period ended on September 3, 2024. ACF will include the changes
that result from this final rule in the revision request that is
submitted to OMB for review and approval. This includes updates to the
information collection and the associated burden estimates. This
process will include publication of a second Federal Register notice
soliciting public comments over a 30-day period on the revisions to the
ACF-118-A CCDF Tribal Plan.
----------------------------------------------------------------------------------------------------------------
Relevant
CCDF title/code section in the OMB control Expiration Description
proposed rule No. date
----------------------------------------------------------------------------------------------------------------
ACF-118-A (CCDF Tribal Plan) Part I Sec. 98.81 0970-0198 4/30/2025 This final rule provides new
and Part II. flexibilities which Tribal
lead agencies with medium and
large allocations will be
required to report on in the
CCDF plans.
----------------------------------------------------------------------------------------------------------------
The table below provides current approved annual burden hours and
estimated annual burden hours for these existing information
collections that are modified by this final rule.
Annual Burden Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current Estimated
Total Total number approved average burden Estimated
Instrument number of of responses average burden Current annual hours per annual burden
respondents per respondent hours per burden hours response based hours based on
response on final rule final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------
We did not receive any public comments on these burden estimates,
which were included in the NPRM.
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 certifies, under 5 U.S.C. 605(b), as enacted by
the RFA (Pub. L. 96-354), that this rulemaking will not result in a
significant impact on a substantial number of small entities, as this
rulemaking primarily impacts tribes receiving federal CCDF grants.
Therefore, a 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 final 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
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
[[Page 90608]]
not national in scope or significance are most appropriately addressed
by the level of government close to the people. This rulemaking does
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 final rule will 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 RFA (5 U.S.C. 601-612), and the UMRA
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).
The Office of Information and Regulatory Affairs has determined
that this final rule is not a significant regulatory action under
section 3(f)(1) of Executive Order 12866, as amended by Executive Order
14094. This final rule has, however, been designated ``a significant
regulatory action'' under section 3(f) of Executive Order 12866, as
amended by Executive Order 14094. Of the nearly $600 million
appropriated for 264 Tribal Lead Agencies in FY 2024, approximately
$422 million was allocated to grantees that already have discretion to
take-up the flexibilities included in this rule. The remaining $173
million is allocated to Tribal Lead Agencies that could be impacted by
the change included in this rule. Further, these Tribal Lead Agencies
have discretion on whether to adopt this flexibility based on their
unique needs. This final 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 discussion in sections
III and IV of the preamble serves as the Tribal impact statement and
contains a detailed description of the consultation and outreach in
this final rule.
(Catalog of Federal Domestic Assistance Program Number 93.575, Child
Care and Development Block Grant; 93.596, Child Care Mandatory and
Matching Funds)
Dated: November 14, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
List of Subjects in 45 CFR Part 98
Child care, Grant programs-social programs.
For the reasons set forth in the preamble, we amend 45 CFR part 98
as follows:
PART 98--CHILD CARE AND DEVELOPMENT FUND
0
1. The authority citation 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 or assets as described in
Sec. 98.20(a)(2).
* * * * *
[FR Doc. 2024-26909 Filed 11-15-24; 8:45 am]
BILLING CODE 4184-87-P
