27972 Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 

Name of non-regulatory 

SIP revision 

Applicable geographic 

area State submittal date EPA approval date Additional explanation 

VMT Offset SIP Revision .. Washington DC 1-hour 

ozone nonattainment 

area.

9/2/03, 2/24/04 .................. 5/16/05, 70 FR 25688 .......

Contingency Measure Plan Washington, DC Area ....... 9/2/03, 2/24/04 .................. 5/16/05, 70 FR 25688 .......

1-hour Ozone Modeled 

Demonstration of Attainment.

Washington DC 1-hour 

ozone nonattainment 

area.

9/2/03, 2/24/04 .................. 5/16/05, 70 FR 25688.

Attainment Demonstration 

and Early Action Plan for 

the Washington County 

Ozone Early Action 

Compact Area.

Washington County ........... 12/20/04, 2/28/05 .............. 8/17/05, 70 FR 48283.

1-hour Ozone Attainment 

Plan.

Washington DC 1-hour 

ozone nonattainment 

area.

9/2/2003, 2/24/2004 .......... 11/16/05, 70 FR 69440.

8-hour Ozone Maintenance 

Plan for the Kent and 

Queen Anne’s Area.

Kent and Queen Anne’s 

Counties.

05/2/06, 05/19/06 .............. 12/22/06, 71 FR 76920.

[FR Doc. E7–9518 Filed 5–17–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 98 

RIN 0970–AC18 

Child Care and Development Fund 

State Match Provisions 

AGENCY: Administration for Children 

and Families (ACF), HHS. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Child Care and Development Fund 

(CCDF) regulations to permit States to 

designate multiple public and/or private 

entities as eligible to receive private 

donations that may be certified as child 

care expenditures for purposes of 

receiving CCDF Federal matching funds. 

This final rule also raises from 20 to 30 

percent the amount of each State’s 

match requirement that may be met 

with public pre-kindergarten 

expenditures in order to implement a 

provision of the President’s Good Start, 

Grow Smart initiative. These provisions 

are intended to give States increased 

flexibility in making the necessary State 

expenditures on child care to draw 

down their full allotment of CCDF 

Federal matching funds. 

DATES: Effective: October 1, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Williams, Child Care Program 

Specialist, Child Care Bureau, 1250 

Maryland Ave, SW., 8th Floor, 

Washington, DC 20024, telephone (202) 

401–4795, e-mail 

awilliams@acf.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Child Care and Development Fund 

B. Summary of the Statutory Provisions 

Related to the State Match Requirement 

C. State Match Requirement Regulations 

D. Notice of Proposed Rulemaking 

II. Statutory Authority 

III. Provisions of Final Rule 

A. Certifying Private Donations as State 

Expenditures 

1. Summary of the Former Regulations 

Regarding Certifying Private Donations 

as State Expenditures in the CCDF 

Regulations 

2. Consultation With States and Other 

Organizations 

3. Discussion of Comments 

4. Changes Made in Final Rule 

B. Public Pre-Kindergarten Expenditures 

1. Summary of the Former Regulations 

Regarding Public Pre-Kindergarten 

Expenditures in the CCDF Regulations 

2. Consultation With States and Other 

Organizations 

3. Discussion of Comments 

4. Changes Made in Final Rule 

IV. Regulatory Impact Analyses 

A. Executive Order 12866 

B. Regulatory Flexibility Analysis 

C. Assessment of the Impact on Family 

Well-Being 

D. Paperwork Reduction Act 

E. Unfunded Mandates Reform Act of 1995 

F. Congressional Review 

G. Executive Order 13132 

I. Background 

This final rule makes revisions to the 

matching fund requirements of the 

Child Care and Development Fund 

(CCDF) regulations. The new 

requirements permit States to designate 

multiple public and/or private entities 

as eligible to receive donated funds that 

States certify as child care expenditures 

for purposes of receiving Federal CCDF 

matching funds and permit States to use 

public pre-kindergarten expenditures 

for up to 30 percent of the expenditures 

required to claim their full allotment of 

CCDF Federal matching funds. A 

discussion of comments to the final 

rule’s revisions that were received in 

response to the publication of a Notice 

of Proposed Rulemaking (NPRM) on 

November 9, 2004, (69 FR 64881) may 

be found below in the preamble. This 

final rule is not substantively different 

from the revisions proposed by the 

NPRM; however, minor technical 

changes have been made to address 

concerns raised by some commenters. 

A. Child Care and Development Fund 

(CCDF) 

CCDF assists low-income families, 

including families receiving or 

transitioning from the Temporary 

Assistance for Needy Families program 

(TANF), in the purchase of child care 

services, thereby allowing parents to 

work or attend training or education. 

States must spend a portion of their 

CCDF allotment on expenditures to 

improve the quality and availability of 

child care. 

B. Summary of the Statutory Provisions 

Related to the State Match Requirement 

CCDF is comprised of three funding 

streams—discretionary funds subject to 

annual appropriation by Congress as 

authorized under Sec. 658B of the 

CCDBG Act, 42 U.S.C. 9858, and 

mandatory and matching funds 

appropriated under Sec. 418 of the 

Social Security Act (‘‘SSA’’), 42 U.S.C. 

618. Pursuant to Sec. 418(a)(2) of the 

SSA, the Federal CCDF matching funds 

are the funds remaining after the 

mandatory funds have been distributed 

to the States. Matching funds are 

allocated to the States on the basis of the 


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number of children under age 13 in the 

State compared with the number of 

children under age 13 in the Nation. 

These funds must be matched by States 

at the State’s Federal medical assistance 

percentage (FMAP) rate. 

C. State Match Requirement Regulations 

CCDF regulations are codified at 45 

CFR part 98. Previously, the relevant 

matching fund requirements of the 

CCDF regulations provided that donated 

funds from private sources could be 

qualified as State expenditures for 

purposes of receiving Federal CCDF 

matching funds, provided that such 

funds were transferred to or under the 

control of the State CCDF Lead Agency 

or given to the single entity designated 

by the State to receive donated funds. 45 

CFR 98.53(f). In order to qualify as State 

CCDF matching funds, the former CCDF 

regulations also stipulated that private 

donations, whether they were 

transferred directly to the State or to a 

designated entity, (i) must have been 

donated without any restriction that 

would require their use for a specific 

individual, organization, facility or 

institution; (ii) could not revert to the 

donor’s facility or use; (iii) were not 

used to match other Federal funds; (iv) 

shall have been certified both by the 

donor and by the Lead Agency as 

available and representing expenditures 

eligible for Federal match; and (v) shall 

have been subject to the audit 

requirements in Sec. 98.65. 45 CFR 

98.53(e)(2). 

The former relevant matching fund 

requirements also provided that States 

could use public pre-kindergarten 

expenditures for up to 20 percent of the 

expenditures serving as maintenance-ofeffort and up to 20 percent of the 

expenditures meeting CCDF matching 

requirements. 45 CFR 98.53(h). States 

seeking to use pre-kindergarten 

expenditures for between 10 and 20 

percent of the expenditures serving as 

maintenance-of-effort or meeting CCDF 

matching requirements had to provide a 

description of the efforts they would 

undertake to ensure that prekindergarten programs meet the needs 

of working families. They also were 

required to demonstrate how they will 

coordinate their pre-kindergarten and 

child care services to expand the 

availability of child care. 45 CFR 

98.53(h)(4). 

While retaining most of the provisions 

governing CCDF State matching 

requirements, this rule finalizes the 

provisions of the NPRM to give States 

more flexibility in making the necessary 

State expenditures for child care to 

draw down their full allotment of 

Federal CCDF matching funds. Since 

FY1999, nine States have failed to draw 

down their full allotment of Federal 

CCDF matching funds in at least one 

year. Five of these States have failed to 

draw down their full allotment of 

Federal CCDF matching funds in 

multiple years. Three States failed to 

draw down their full allotment of 

Federal CCDF matching funds in each of 

fiscal years 2003 and 2004. State 

expenditure and allotment data can be 

found at http://www.acf.dhhs.gov/ 

programs/ccb/data/index.htm. In recent 

months, ACF Regions and the Child 

Care Bureau have received requests 

from States for increased flexibility in 

the use of donated funds and public prekindergarten expenditures to meet 

CCDF matching requirements. 

Furthermore, Good Start, Grow Smart: 

The Bush Administration’s Early 

Childhood Initiative, the document that 

describes the President’s Good Start, 

Grow Smart initiative, specifically 

provides that the amount of State prekindergarten expenditures that may be 

used for Federal match should be 

increased to give States more flexibility 

in funding quality activities in support 

of early learning. This final rule 

implements that recommendation. Good 

Start, Grow Smart: The Bush 

Administration’s Early Childhood 

Initiative may be downloaded from the 

President’s Web site at http:// 

www.whitehouse.gov/infocus/ 

earlychildhood/toc.html. 

Finally, this final rule makes 

technical corrections and clarifies some 

ambiguities in the CCDF regulations. 

D. Notice of Proposed Rulemaking 

A Notice of Proposed Rulemaking 

(NPRM) was published in the Federal 

Register on November 9, 2004 (69 FR 

64881) with a 60-day public comment 

period. As discussed later in this 

preamble, we received comments from 9 

commenters: three State child care 

administrators and six national 

advocacy groups for child care. 

II. Statutory Authority 

This final rule is being issued under 

the authority granted to the Secretary of 

Health and Human Services (HHS) by 

Sec. 658E of the CCDBG Act, 42 U.S.C. 

§ 9858c. 

III. Provisions of Final Rule 

A. Certifying Private Donations as State 

Expenditures 

1. Summary of the Former Regulations 

Regarding Certifying Private Donations 

as State Expenditures in the CCDF 

Regulations 

In order to certify funds donated from 

private sources that are not transferred 

to or under State control as 

expenditures for the purpose of 

receiving Federal CCDF matching funds, 

former CCDF regulations provided that 

States must designate a single entity to 

receive such privately donated funds 

and all such privately donated funds 

must be transferred to this single 

designated entity. The specific 

provisions setting forth this requirement 

appeared at § 98.53(f) of the CCDF 

regulations and provided that funds 

donated from private sources ‘‘may be 

given to the entity designated by the 

State to receive donated funds’’ in the 

State Plan. 

2. Consultation With States and Other 

Organizations 

Requests have been made by State 

officials for increased flexibility in 

meeting the States’ CCDF matching 

requirements. The Child Care Bureau 

has also learned that States found the 

CCDF regulations too restrictive when 

States sought to encourage coordination 

among early childhood education 

programs or to implement the 

President’s Good Start, Grow Smart 

initiative. For example, the requirement 

for a single designated entity to receive 

privately donated funds has impeded 

the ability of some States to partner with 

multiple organizations that are 

interested in contributing towards the 

State’s match requirement. 

3. Discussion of Comments 

Greater Flexibility and Coordination 

Comment: Two commenters noted 

that the proposed rule would allow 

greater flexibility in making the 

necessary State expenditures on child 

care to draw down the full allotment of 

Federal CCDF matching funds and 

would promote the ability of States to 

coordinate the use of private funds in a 

more cohesive system of early care and 

education. However, several 

commenters noted concerns regarding 

the tracking and reporting that would be 

needed to comply with Federal 

requirements. 

Response: It is the intent of the Child 

Care Bureau that the flexibility created 

by this rule will ease the burden on 

States in meeting their CCDF matching 

requirement and free more State funds 

for use in coordinated efforts that 

emphasize quality child care and early 

education. 

With respect to the concerns raised by 

the commenters regarding the tracking 

and reporting of privately donated 

funds, we note that States are 

responsible for ensuring that private 

donations counted towards a State’s 

CCDF match requirements meet all the 


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27974 Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 

rules and restrictions set forth for such 

funds in CCDF regulations. As provided 

in the Child Care Bureau’s October 30, 

1996 Program Instruction on Matching 

Funds, Maintenance of Effort, and 

Administrative Costs (ACYF–PI–CC–96–

17), ‘‘Federal matching funds are only 

available to match State expenditures 

for those child care service [sic] and 

related activities, including quality 

activities, that are allowable and are also 

included by the State as part of its 

program under the Act and noted in the 

approved State Plan.’’ Sec. 98.53(e)(2) of 

the CCDF regulations (as amended by 

this final rule) provides for special rules 

concerning privately donated funds: (1) 

Such funds must be donated without 

any restriction that would require their 

use for a specific individual, 

organization, facility or institution; (2) 

such funds may not revert to the donor’s 

facility or use; (3) such funds may not 

be used to match other Federal funds; 

(4) such funds must be certified both by 

the Lead Agency and by the donor (if 

funds are donated directly to the Lead 

Agency) or the entity designated by the 

State to receive donated funds pursuant 

to Sec. 98.53(f) (if funds are donated 

directly to the designated entity) as 

available and representing funds eligible 

for Federal match; and (5) such funds 

shall be subject to the audit 

requirements in Sec. 98.65 of the CCDF 

regulations. States must take 

responsibility to ensure compliance 

with CCDF rules and restrictions 

regarding private donations when 

considering which and how many 

private or public entities will be 

designated as eligible to receive private 

donations for CCDF match. 

We take this opportunity to make a 

technical change to the CCDF 

regulations in response to the concern 

raised regarding the tracking of private 

donations. Sec. 98.53(e)(2)(iv) of the 

former CCDF regulations required both 

the donor and the Lead Agency to 

certify that privately donated funds 

were ‘‘available and representing 

expenditures eligible for Federal 

match.’’ Read literally in the case of a 

State using private donations to an 

entity designated by the State to receive 

such funds for the purpose of meeting 

CCDF matching requirements, this 

would require the State and/or the 

designated entity to obtain numerous 

certifications from individual donors 

who neither had control over funds they 

had already donated to the designated 

entity, nor had the expertise to 

determine whether such funds 

represented expenditures eligible for 

Federal match. 

We believe that requiring donors to 

certify to the availability and eligibility 

of unrestricted funds donated to a 

designated entity would be unduly 

burdensome on donors, designated 

entities, and Lead Agencies. Requiring 

designated entities to make or collect 

numerous certifications from donors 

who contributed some portion of 

unrestricted funds, often in small 

amounts, that were used to pay for an 

expenditure meeting CCDF State match 

requirements, would have a chilling 

effect on the donation process. Further, 

we see little value in certifications from 

donors who have neither control over 

funds that have already been donated, 

nor the expertise to determine whether 

such funds represent expenditures 

eligible for CCDF State match. We 

therefore revise Sec. 98.53(e)(2)(iv) to 

provide that privately donated funds 

must ‘‘be certified both by the Lead 

Agency and by the donor as available 

and representing funds eligible for 

Federal match if funds are donated 

directly to the Lead Agency. If private 

funds are donated directly to the 

designated entity, those funds must be 

certified both by the Lead Agency and 

the entity designated by the State to 

receive donated funds as available and 

representing funds eligible for Federal 

match, pursuant to Sec. 98.53(e).’’ The 

preamble to the CCDF regulations 

supports this interpretation, noting, 

‘‘Both the Lead Agency and the entity 

designated by the State to receive 

donated funds must * * * certify that 

the donated funds are available and 

eligible for Federal match.’’ 63 FR 

39965. Therefore, we believe that the 

intent of the CCDF regulations has 

always been that the Lead Agency and 

the entity designated by the State to 

receive donated funds should certify to 

the availability and eligibility of 

privately donated funds donated to the 

designated entity, and thus consider this 

revision to be a technical change. In 

cases where private donations are made 

directly to the Lead Agency, donors are 

still required to make the required 

certifications. 

Reduced Accountability/Increased 

Fraud and Misexpenditure 

Comment: Several commenters 

opined that allowing States to designate 

multiple entities to receive private 

donations would lead to reduced 

accountability and increased fraud and 

misexpenditure. According to these 

commenters, it would be difficult under 

the proposed rule for States to 

independently determine whether funds 

reported as collected were actually 

collected in a manner consistent with 

the CCDF regulations and harder to 

determine whether the safeguards were 

being followed. The commenters 

suggested: (1) Making funds subject to 

audit requirements that would 

specifically focus on determining 

compliance with safeguards applicable 

to donated funds; (2) collecting and 

publishing information on the amount 

of donated funds used to help States 

draw down Federal matching funds and 

ensuring that program reviews include 

components designed to monitor 

compliance with Federal requirements 

applicable to donated funds; and (3) 

requiring the State agency, rather than 

the agency receiving the donated funds, 

to make determinations on whether 

donated funds count as a State match. 

Response: It is important to recognize 

that under existing CCDF regulations, 

States have the flexibility to designate a 

single entity to receive privately 

donated funds. To date, we are not 

aware of any documented instances of 

fraud or misexpenditure by these 

designated entities despite regular 

audits. We see no reason why simply 

allowing States to designate more than 

one entity to receive privately donated 

funds would lead to greater fraud or 

misexpenditure. 

At the same time, we recognize the 

importance of maintaining 

accountability and integrity in the 

program, and we reiterate that Sec. 

98.53(e)(2)(v) of the CCDF regulations 

explicitly requires that State match 

funds derived from privately donated 

funds are subject to the audit 

requirements in Sec. 98.65 of the CCDF 

regulations. 

Therefore, pursuant to Sec. 98.65(d), 

any Federal match funds drawn down 

with privately donated funds that are 

determined through the audit process 

not to have been expended in 

accordance with CCDF statutory or 

regulatory provisions, or with the State 

Plan, are subject to disallowance and 

being returned to the Federal 

government. States using privately 

donated funds to meet their CCDF State 

match requirement, whether such funds 

are received by the State or a designated 

third party, should be cognizant of this 

requirement and implement all 

necessary systems and procedures to 

ensure that all funds used to meet CCDF 

State match requirements comply with 

CCDF’s statutory and regulatory 

requirements. 

We also note that States are required 

to report their use of privately donated 

funds to meet their CCDF State match 

requirement in two places. First, in Sec. 

1.8 of the Child Care and Development 

Fund Plan for FFY 2006–2007, States 

must answer whether they will use 

privately donated funds to meet a part 

of their CCDF State match requirement 

and identify and describe the entity or 


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Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 27975 

entities designated to receive privately 

donated funds. Second, States must 

report on a quarterly basis the amount 

of privately donated funds used to meet 

their CCDF State match requirement on 

the ACF–696 Financial Report. We 

recommend that States take appropriate 

measures with respect to their own datacollection requirements to ensure that 

donors and entities designated to 

receive private donations comply with 

CCDF statutory and regulatory 

requirements. 

Further, we note that the State as well 

as the donor or the entity receiving 

privately donated funds are required by 

CCDF regulations to certify that the 

privately donated funds are both 

available and represent expenditures 

eligible for Federal match. Through the 

certification process, States are held 

accountable for all privately donated 

funds used as CCDF State match 

whether such funds are donated to the 

State directly or donated to a designated 

entity. Further, we reiterate that 

designations of privately donated funds 

as eligible for CCDF Federal matching 

funds are subject to verification through 

audit. 

Finally, in an effort to reduce the 

chances of fraud or misexpenditure and 

to further clarify our regulations, we 

take this opportunity to make another 

technical change by removing the word 

‘‘and’’ after Sec. 98.53(e)(2)(ii). One 

Lead Agency interpreted the inclusion 

of the word ‘‘and’’ between clauses (ii) 

and (iii) of Sec. 98.53(e)(2) to mean that 

privately donated funds were only 

required to meet the requirements of 

clauses (i) and (ii) or clauses (iii)–(v), 

but not all five clauses. We believe that 

the word ‘‘and’’ was inadvertently left 

in the regulations when they were 

revised in 1998. We further believe that 

removing the word ‘‘and’’ does not 

change the meaning or our 

interpretation of Sec. 98.53(e)(2). 

However, we want to avoid any 

misinterpretation of Sec. 98.53(e)(2) that 

might lead to privately donated funds 

being claimed as CCDF State match 

without meeting all five requirements of 

Sec. 98.53(e)(2). We consider this 

revision to be a technical change. 

Distorted Program Priorities 

Comment: Several commenters argued 

that CCDF rules that prohibit special 

conditions on private donations and the 

reversion of donations back to the donor 

may be interpreted to apply only to 

donors and not the entities designated 

to receive donations. According to these 

commenters, if private donations are 

generated with special conditions, 

entities could raise funds that would be 

limited to the benefit of their members. 

Allowing the entity receiving donated 

funds to impose special conditions or 

spend donated funds on their own 

programs increases the risk that overall 

program priorities would be distorted. 

The commenters suggested: (1) 

Specifying that the entity receiving 

funds may not impose a requirement 

that the funds be used for a specific 

individual or group of individuals, 

organization, facility or institution; (2) 

specifying that funds may not revert to 

such entity’s facility or use; and (3) 

specifying that decisions about the 

appropriate expenditures of donated 

funds counting as State match must be 

made by the State agency rather than the 

entity receiving donated funds. 

Response: Sec. 98.53(e)(2) prohibits 

donors from placing special conditions 

on private donations that would require 

their use for a specific individual, 

organization, facility or institution or 

that would result in their reversion to 

the donor’s facility or use. However, the 

preamble to the CCDF regulations makes 

clear that limiting the use of privately 

donated funds to a specific geographic 

area, such as within the limits of a 

specific city or even a single 

neighborhood, is permissible, as this 

was one of the intentions of allowing 

separate entities to receive privately 

donated funds for use as CCDF State 

match. 63 FR 39965. 

CCDF regulations provide that 

restrictions on placing special 

conditions on privately donated funds 

apply only to donors and not to the 

entities receiving them. However, CCDF 

regulations also provide that the entities 

receiving privately donated funds as 

well as the State must certify that such 

donated funds are both available and 

eligible for Federal match. Therefore, 

both the entities receiving privately 

donated funds as well as the State must 

take appropriate steps to ensure that 

such funds are spent on allowable 

activities, as described in the approved 

State Plan, that meet the goals and 

purposes of the CCDBG Act. States must 

be vigilant in monitoring the entities 

that they designate as eligible to receive 

privately donated funds, and should act 

quickly and decisively to remove their 

designation if any impropriety has 

occurred. 

Entities that receive privately donated 

funds may expend such funds on their 

own activities, provided that such 

activities qualify as eligible child care 

activities under the CCDBG Act and 

CCDF regulations, and provided further 

that such activities are permissible 

under State or local law and regulations 

governing conflict of interest. Qualifying 

child care activities may include child 

care direct services or related activities, 

including quality activities, provided 

that such services and activities meet 

eligibility and other program 

requirements, are consistent with the 

goals and purposes of the CCDBG Act, 

and are noted in the approved State 

Plan. Again, States have the 

responsibility of ensuring that the 

activities funded through private 

donations meet all the requirements to 

qualify as CCDF State match. If a State 

determines that an entity designated to 

receive private donations is acting 

improperly, it must remove that entity’s 

designation and find another source to 

meet the State’s CCDF State match 

requirement. 

Competition/Inequitable Distribution of 

Funds 

Comment: Several commenters 

believed that allowing States to 

designate multiple entities to receive 

private donations creates the risk that 

that such entities would compete in the 

collection of private funds. These 

commenters opined that competition 

could lead to inequitable distribution of 

funds because wealthy communities 

could generate more private donations 

than poor communities. They also 

argued that the proposed rule could 

result in competition among child care 

providers that might be put in a position 

of having to raise funds to contribute to 

match. The commenters suggested: (1) 

Specifying that any State electing to use 

donated funds as CCDF State match 

must provide assurances that CCDF 

matching funds will be allocated in an 

equitable manner that does not result in 

disproportionate allocation of resources 

to communities or entities based on the 

collection of donated funds; and (2) 

requiring States to describe in their 

State Plans how the allocation of funds 

for services and quality activities 

between areas of the State is reasonable 

and appropriate in light of the identified 

needs of the respective areas of the 

State. 

Response: As noted above, the 

preamble to the CCDF regulations makes 

clear that limiting the use of privately 

donated funds to a specific geographic 

area, such as within the limits of a 

specific city or even a single 

neighborhood, was one of the intentions 

of allowing separate entities to receive 

privately donated funds for use as CCDF 

State match. To date, we have found no 

evidence that this has led to inequity in 

child care spending among communities 

of varying economic status. We see no 

reason why simply allowing States to 

designate more than one entity to 

receive privately donated funds would 

lead to greater inequities among various 

regions of a State. 


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27976 Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 

We take this opportunity to remind 

States of CCDF’s parental choice 

requirements. Sec. 98.30(f) of the CCDF 

regulations prohibits States or local 

governments from establishing rules, 

procedures or other requirements 

promulgated for purposes of the CCDF 

that significantly restrict parental choice 

by: (i) Expressly or effectively excluding 

any category of care or type of provider, 

or any type of provider within a 

category of care; (ii) having the effect of 

limiting parental access to or choice 

from among such categories of care or 

types of providers; or (iii) excluding a 

significant number of providers in any 

category of care or of any type of care. 

If a State enacted a rule, procedure or 

other requirement to take advantage of 

the additional flexibility provided by 

this final rule that had the effect of 

limiting parental choice in violation of 

CCDF regulations, then that State would 

be subject to losing all or a portion of 

its CCDF grant. We urge States to 

consider CCDF’s parental choice 

requirements carefully in crafting new 

rules, procedures, or other requirements 

designed to take advantage of this final 

rule. 

We further urge States to monitor how 

State and Federal child care funds are 

distributed across a State and use the 

flexibility provided by CCDF statute and 

regulations to ensure that child care 

resources are distributed equitably and 

optimally. Further, we will take under 

advisement prior to the 2010–2011 State 

Plan submission process the 

recommendation to require States to 

describe in their State Plans how they 

make use of privately donated funds 

and whether such use leads to disparate 

services across varying regions of a 

State. We will, at that time, publish a 

Federal Register notice (OMB Control 

Number 0970–0114) to solicit public 

comment as to the availability of child 

care services that meet the needs of 

working parents. 

Reduced Funding for Child Care 

Comment: Several commenters 

opined that child care is not adequately 

funded and that the proposed changes 

to CCDF regulations may actually result 

in fewer child care services, particularly 

for infants and toddlers. They argue that 

increased use of private donations to 

meet CCDF State match requirements 

could result in shrinkage of public 

commitment because legislatures might 

reduce appropriations in the 

expectation that agencies or 

communities should generate private 

match instead. Those commenters 

suggest that States be prohibited from 

reducing their current child care 

spending for subsidies, quality 

improvement, and infants and toddlers. 

Response: Allowing more than one 

public or private entity to receive 

private donations in no way changes 

States’ CCDF matching and MOE 

requirements. Whether the source of the 

CCDF matching or MOE funds is from 

the State or from a private donation to 

a designated entity, the amount required 

to draw down a State’s full allotment of 

CCDF matching funds is not altered by 

this regulatory change. Further, these 

rules are intended to increase State 

flexibility and should have a positive 

impact on funding child care. States 

ultimately have responsibility to 

determine how best to address child 

care and this regulation will give States 

additional flexibility to meet the needs 

of children and families. 

With respect to child care funding for 

certain ages of eligible children, such as 

infants and toddlers, we note that States 

already have the flexibility to allocate 

funds between direct services and 

quality activities and among the various 

ages of eligible children according to the 

particular circumstances within the 

State. However, there are several 

requirements of States that ensure that 

CCDF funds are spread across all 

eligible children and types of child care 

activities. States are required to spend at 

least four percent of their CCDF 

allotment on quality activities and at 

least 70 percent of their allotment of 

CCDF mandatory and matching funds 

on direct services for families receiving 

TANF assistance, transitioning off of 

TANF assistance, or at risk of becoming 

dependent on TANF assistance. 

Additionally, set-asides in annual 

appropriation of CCDF discretionary 

funds require States to spend CCDF 

funds on specified activities, such as 

‘‘activities that improve the quality of 

infant and toddler care.’’

This rule is not intended to reward 

one group of children at the expense of 

the other. Rather, this rule hopes to 

facilitate greater funding opportunities 

for all eligible children through private 

donations and to encourage greater 

cooperation and coordination between 

the child care and early education 

communities. We feel this is in the best 

interests of all children. However, we 

will continue to monitor States’

implementation of the CCDF program 

through State Plans, annual State 

expenditure data and other reporting 

requirements. We also will publish a 

Federal Register notice (OMB Control 

Number 0970–0114) to solicit public 

comment as to the availability and 

coordination of child care services that 

meet the needs of working parents prior 

to 2010–2011 State Plan submission 

process. 

Lack of Rationale 

Comment: Several commenters noted 

that the NPRM does not adequately 

explain why the existing requirement 

restricting States to the designation of a 

single entity for receipt of private 

donations has been a problem and offers 

no examples of any instance in which 

it has impeded coordination or 

discouraged the use of private 

contributions. They argue that States 

should be required to demonstrate in 

their State plan how they are using any 

increase in available funds to both 

improve coordination and to increase 

the availability of services for lowincome working families. 

Response: As noted above, since 

FY1999, nine States have failed to draw 

down their full allotment of Federal 

CCDF matching funds in at least one 

year, and five of these States have failed 

to draw down their full allotment of 

Federal CCDF matching funds in 

multiple years. It is our belief that 

greater flexibility in meeting their State 

match could have helped these States 

draw down their full allotment of CCDF 

Federal match funds. We also reiterate 

that the Child Care Bureau has received 

requests from State officials for 

increased flexibility in meeting the 

States’ CCDF matching requirements, 

particularly for States seeking to 

encourage coordination among early 

childhood education programs or to 

implement the President’s Good Start, 

Grow Smart initiative. It is our belief 

that this rule change will enable States 

to raise more funds for child care and 

encourage more public-private 

partnerships in increasing the quality 

and availability of affordable child care. 

We do see merit in the suggestion that 

States should be required to 

demonstrate in their State Plan how 

they are using privately donated funds 

to both improve coordination and to 

increase the availability of services for 

low-income working families. While no 

regulatory changes are needed, we will 

take that suggestion under advisement 

prior to the 2010–2011 State Plan 

submission process. We will, at that 

time, publish a Federal Register notice 

(OMB Control Number 0970–0114) to 

solicit public comment as to the 

availability and coordination of child 

care services that meet the needs of 

working parents. 

4. Changes Made in Final Rule 

In order to grant States greater 

flexibility in meeting the matching 

requirements for Federal CCDF 

matching funds, this final rule provides 


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Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 27977 

that States shall be allowed to designate 

multiple public and/or private entities 

to receive privately donated funds that 

may be certified as State expenditures 

for purposes of receiving Federal CCDF 

matching funds. We revised Sec. 

98.53(f) to provide that privately 

donated funds ‘‘may be given to the 

public or private entities designated by 

the State to implement the child care 

program in accordance with Sec. 98.11 

provided that such entities are 

identified and designated in the State 

Plan to receive donated funds pursuant 

to Sec. 98.16(c)(2).’’ Additionally, 

conforming changes to Secs. 98.16(c)(2) 

and 98.53(e)(2)(iv) reflect the fact that 

privately donated funds may be given to 

‘‘public or private entities.’’

Also, as discussed above, two 

technical changes are made to address 

concerns noted in comments. First, Sec. 

98.53(e)(2)(iv) is revised to provide that 

privately donated funds must ‘‘be 

certified both by the Lead Agency and 

by the donor (if funds are donated 

directly to the Lead Agency) or the 

entity designated by the State to receive 

donated funds pursuant to Sec. 98.53(f) 

(if funds are donated directly to the 

designated entity) as available and 

representing funds eligible for Federal 

match.’’ Second, the word ‘‘and’’ after 

Sec. 98.53(e)(2)(ii) is removed. 

B. Public Pre-Kindergarten Expenditures 

1. Summary of the Former Regulations 

Regarding Public Pre-Kindergarten 

Expenditures in the CCDF Regulations 

Former CCDF regulations provided 

that, once States had met their 

maintenance-of-effort requirement, they 

could use public pre-kindergarten 

expenditures for up to 20 percent of 

their child care expenditures designated 

toward meeting CCDF matching 

requirements. States seeking to use the 

full 20 percent of pre-kindergarten 

expenditures to meet the matching 

requirements were required to provide a 

description of the efforts they would 

undertake to ensure that prekindergarten programs met the needs of 

working families. They were also 

required to demonstrate how they 

would coordinate their pre-kindergarten 

and child care services to expand the 

availability of child care. The specific 

provisions setting forth this requirement 

appeared at Sec. 98.53(h)(3) of the CCDF 

regulations and provided that ‘‘[i]n any 

fiscal year, a State may use other public 

pre-K funds for up to 20% of the 

expenditures serving as the State’s 

matching funds under this subsection.’’

2. Consultation With States and Other 

Organizations 

Requests have been made by State 

officials for increased flexibility in 

meeting the States’ CCDF matching 

requirements. The Child Care Bureau 

has also been informed that States were 

finding the former CCDF regulations to 

be too restrictive when States sought to 

encourage coordination among early 

childhood education programs or to 

implement the President’s Good Start, 

Grow Smart initiative. This rule will 

provide greater leverage to ensure 

coordination between pre-kindergarten 

and child care. 

3. Discussion of Comments 

More Funds for Quality Enhancements 

Comment: Two commenters noted 

that CCDF funds freed by the proposed 

change could be directed toward quality 

enhancements supporting early 

learning, and that increased 

coordination could lead to increased 

efficiencies, improved service 

effectiveness, and the potential to 

leverage additional private donations. 

Response: We agree. It is the intent of 

the Child Care Bureau that the 

flexibility created by this rule will ease 

the burden on States in meeting their 

CCDF matching requirement, free more 

State funds for use in funding quality 

activities in support of early learning, 

and encourage coordination among 

those working to improve and expand 

early education and child care. 

Reduced Funding for Child Care 

Comment: Several commenters 

reiterated their argument that child care 

is not adequately funded and the 

proposed changes to the CCDF 

regulations may actually result in fewer 

child care services, particularly for 

infants and toddlers. One commenter 

argued that if preschool children move 

away from community-based child care 

to State pre-K programs, child care 

providers would be left with a 

disproportionate share of infants and 

toddlers who are more expensive to 

serve. Commenters noted that increased 

use of pre-k expenditures for CCDF 

State match could lead to the 

supplanting of current State investments 

in child care subsidy programs and an 

overall reduction of funding for child 

care. The commenters suggested: (1) 

Prohibiting States from reducing their 

current child care spending for 

subsidies, quality improvement, and 

infants and toddlers; and (2) specifying 

that any State using pre-k expenditures 

for more than 20 percent of their 

matching funds provide assurances that 

the State will not supplant existing 

services and demonstrate that the 

increase in funds has not resulted in a 

decline in State child care expenditures. 

Response: Increasing the allowable 

pre-K funds for State match from 20% 

to 30% is intended to provide an 

incentive for States to more closely link 

their pre-K and child care systems and 

establish a coordinated system that 

better meets the needs of working 

families for full-day/full-year services 

that prepare children to enter school 

ready to learn. The intent is not to create 

an incentive for States to divert State 

funds away from other child care 

programs to meet their Matching 

requirements solely through pre-K 

expenditures. Additionally, we note that 

to address potential concerns about the 

use of pre-K expenditures in meeting 

CCDF requirements, expenditures for 

pre-K programs may constitute no more 

than 30 percent of State match 

expenditures. 

To reiterate what we stated in the 

1998 final rule, a chief concern to 

working parents is that many pre-K 

services are only part-day and or partyear and such programs may not serve 

the family’s real needs. CCDF 

regulations require a State using pre-k 

expenditures to meet its CCDF State 

match requirement to describe in its 

State Plan the efforts it will undertake 

to ensure that pre-K programs meet the 

needs of working parents. 

We further note that CCDF regulations 

require that State Plans shall reflect a 

State’s intent to use public pre-K funds 

in excess of 10% of its or State matching 

funds in a fiscal year and how the State 

will coordinate its pre-K and child care 

services to expand the availability of 

child care. Thus, the CCDF regulations 

do require States to take steps to ensure 

that their pre-k programs meet the needs 

of working parents and, in some 

instances, to coordinate their pre-k and 

child care services to expand the 

availability of child care to all. 

Rationale for Rule Change 

A number of commenters argued that 

it is unclear how increasing the amount 

of State pre-k dollars that can be used 

to meet the match requirement will in 

any way improve coordination. These 

commenters suggested requiring States 

to demonstrate in their State plan how 

they are using any increase in available 

funds to both improve coordination and 

to increase the availability of services 

for low-income working families. 

Response: As discussed above, since 

FY1999, nine States have failed to draw 

down their full allotment of Federal 

CCDF matching funds in at least one 

year, and five of these States have failed 

to draw down their full allotment of 


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27978 Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 

Federal CCDF matching funds in 

multiple years. It is our belief that 

greater flexibility in meeting their State 

match could have helped these States 

draw down their full allotment of CCDF 

Federal match funds. We also reiterate 

that the Child Care Bureau has received 

requests from State officials for 

increased flexibility in meeting the 

States’ CCDF matching requirements, 

particularly for States seeking to 

encourage coordination among early 

childhood education programs or to 

implement the President’s Good Start, 

Grow Smart initiative. It is our belief 

that this rule change will enable States 

to raise more funds for child care and 

encourage more public-private 

partnerships in increasing the quality 

and availability of affordable child care. 

We do see merit in the suggestion that 

States should be required to 

demonstrate in their State Plan how 

they are using any increase in available 

funds to both improve coordination and 

to increase the availability of services 

for low-income working families. While 

no regulatory changes are needed, we 

will take that suggestion under 

advisement prior to the 2010–2011 State 

Plan submission process.. We will, at 

that time, publish a Federal Register 

notice (OMB Control Number 0970–

0114) to solicit public comment as to 

the availability and coordination of 

child care services that meet the needs 

of working parents. 

4. Changes Made in This Final Rule 

In order to grant States greater 

flexibility in meeting the matching 

requirements for Federal CCDF 

matching funds, this final rule provides 

that once a State has met its 

maintenance-of-effort requirement, it 

may designate a portion of its public 

pre-kindergarten expenditures as 

expenditures toward Federal CCDF 

matching funds; provided that the 

portion of public pre-kindergarten 

expenditures designated as State 

matching funds may not exceed 30 

percent of the amount of expenditures 

required by the State to draw down its 

full allotment of Federal CCDF matching 

funds. We propose to revise Sec. 

98.53(h)(3) to provide that, ‘‘[i]n any 

fiscal year, a State may use other public 

pre-K funds as expenditures serving as 

State matching funds under this 

subsection; such public pre-K funds 

used as State expenditures may not 

exceed 30% of the amount of a State’s 

expenditures required to draw down the 

State’s full allotment of Federal 

matching funds available under this 

subsection.’’ Additionally, conforming 

changes would be made to Sec. 

98.53(h)(4) to provide that the CCDF 

Plan ‘‘shall reflect the State’s intent to 

use public pre-K funds in excess of 

10%, but not for more than 20% of its 

maintenance-of-effort or 30% of its State 

matching funds in a fiscal year.’’

III. Regulatory Impact Analyses 

A. Executive Order 12866 

Executive Order 12866 requires that 

regulations be drafted to ensure that 

they are consistent with the priorities 

and principles set forth in Executive 

Order 12866. The Department has 

determined that this final rule is 

consistent with these priorities and 

principles. Moreover, we have 

consulted with the Office of 

Management and Budget (OMB) and 

determined that these final rules meet 

the criteria for a significant regulatory 

action under Executive Order 12866. 

Thus, they were subject to OMB review. 

Executive Order 12866 encourages 

agencies, as appropriate, to provide the 

public with meaningful participation in 

the regulatory process. As described 

earlier, the Child Care Bureau and ACF 

regional offices have been contacted by 

numerous States expressing their desire 

for greater flexibility in meeting their 

matching requirement for Federal CCDF 

matching funds. This rule addresses 

these concerns. In addition, we have 

provided a 60-day public comment 

period and have responded to or 

addressed all comments in this final 

rule. 

B. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act (5 

U.S.C. Ch. 6) (RFA) requires the Federal 

government to anticipate and reduce the 

impact of rules and paperwork 

requirements on small businesses and 

other small entities. Small entities are 

defined in the RFA to include small 

businesses, small non-profit 

organizations, and small governmental 

entities. This rule will affect only the 50 

States and the District of Columbia. 

Therefore, the Secretary certifies that 

this rule will not have a significant 

impact on small entities. 

C. Assessment of the Impact on Family 

Well-Being 

We certify that we have made an 

assessment of this final rule’s impact on 

the well-being of families, as required 

under Sec. 654 of the Treasury and 

General Appropriations Act of 1999. 

This final rule will make it easier for 

States to receive their full allotment of 

Federal matching funds through CCDF. 

These funds are to be used by States to 

assist low-income families in 

purchasing child care services, to 

provide comprehensive consumer 

education to parents and the public, and 

to improve the quality and availability 

of child care. 

D. Paperwork Reduction Act 

In order for States to use the increased 

flexibility provided by the final rule, 

Lead Agencies must amend their Lead 

Agency Plans, the information 

requirements of which are set forth in 

Sec. 98.16 of the CCDF regulations. As 

required by the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3507 (d)), the 

Administration for Children and 

Families has submitted a copy of this 

section, together with a copy of this 

final rule to the Office of Management 

and Budget (OMB) for its review. 

Title: Amendment to State/Territorial 

Plan Pre-Print (ACF–118) for the Child 

Care and Development Fund (Child Care 

and Development Block Grant). 

Description: The legislativelymandated plans serve as the agreement 

between the Lead Agency and the 

Federal Government as to how CCDF 

programs will be administered in 

conformance with legislative 

requirements, pertinent Federal 

regulations, and other applicable 

instructions and guidelines issued by 

ACF. This information is used for 

Federal oversight of the Child Care and 

Development Fund. Because the State 

Plans must accurately reflect the 

manner in which a State meets the 

matching requirements for Federal 

CCDF matching funds, in order for a 

State to use the increased flexibility 

provided by this final rule, it must 

submit an amendment to its plan 

reflecting the change in the manner in 

which it meets the matching 

requirement for Federal CCDF matching 

funds. Because the information required 

to take advantage of the provisions of 

this final regulation are already 

collected in the ACF–118 (OMB Control 

Number 0970–0114), a new information 

collection document will not be 

necessary. 

Respondents: State and territorial 

governments. 


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Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 27979 

ANNUAL BURDEN ESTIMATES

Number of respondents* Number of submittals Average burden hour per submittal Total burden hours 

22 1 2 44 

* Estimate based upon the total number of States using private donations and/or their public pre-kindergarten expenditures as their expenditures toward Federal CCDF matching funds in FY2002, plus an additional number of States that are expected to take advantage of the increased 

flexibility in using private donations and/or public pre-kindergarten expenditures to meet their State CCDF matching requirement. 

The Administration for Children and 

Families will consider comments by the 

public on this proposed collection of 

information in the following areas: 

(1) Evaluating whether the proposed 

collection is necessary for the proper 

performance of the functions of ACF, 

including whether the information will 

have practical utility; 

(2) Evaluating the accuracy of the 

ACF’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

(3) Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

(4) Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technology, e.g., permitting electronic 

submission of responses. 

OMB is required to make a decision 

concerning the collection of information 

contained in this final rule between 30 

and 60 days after publication of this 

document in the Federal Register. 

Therefore, a comment is best assured of 

having its full effect if OMB receives it 

within 30 days of publication. This does 

not affect the deadline for the public to 

comment to the Department on the final 

rule. Written comments to OMB for the 

proposed information collection should 

be sent directly to the following: Office 

of Management and Budget, either by 

fax to 202–395–6974 or by e-mail to 

OIRA_submission@omb.eop.gov. Please 

mark faxes and e-mails to the attention 

of the desk officer for ACF. 

E. Unfunded Mandates Reform Act of 

1995 

Sec. 202 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. 

This final rule will not result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. Expenditures made to 

meet the requirements for Federal CCDF 

matching funds are made entirely at the 

option of the State or Tribal government 

seeking the Federal CCDF matching 

funds. 

F. Congressional Review 

This final rule is not a major rule as 

defined in 5 U.S.C. 804. 

G. Executive Order 13132 

Executive Order 13132 guarantees 

‘‘the division of governmental 

responsibilities between the national 

government and the States that was 

intended by the Framers of the 

Constitution, to ensure that the 

principles of federalism established by 

the Framers guide the executive 

departments and agencies in the 

formulation and implementation of 

policies, and to further the policies of 

the Unfunded Mandates Reform Act.’’

The Secretary certifies that this final 

rule does not have a substantial direct 

effect on 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. This final 

rule does not preempt State law and 

does not impose unfunded mandates. 

This final rule does not contain 

regulatory policies with federalism 

implications that would require specific 

consultations with State or local elected 

officials. 

List of Subjects 

Charitable donation, Child care, Day 

care, Early education, Grant programs—

social programs, Pre-kindergarten, State 

match. 

(Catalogue of Federal Domestic Assistance 

Programs: 93.575, Child Care and 

Development Block Grant; 93.596, Child Care 

Mandatory and Matching Funds) 

Dated: April 13, 2007. 

Daniel C. Schneider, 

Acting Assistant Secretary for Children and 

Families. 

Approved: May 9, 2007. 

Michael O. Leavitt, 

Secretary, Department of Health and Human 

Services. 

■ For the reasons set forth in the 

preamble, Part 98 of Subtitle A of Title 

45 of the Code of Federal Regulations 

are amended as follows: 

PART 98—CHILD CARE AND 

DEVELOPMENT FUND 

■ 1. The authority for part 98 continues 

to read: 

Authority: 42 U.S.C. 618, 9858. 

■ 2. Amend 45 CFR 98.16 to revise 

paragraph (c)(2) as follows: 

§ 98.16 Plan provisions. 

* * * * * 

(c) * * * 

(2) Identification of the public or 

private entities designated to receive 

private donated funds and the purposes 

for which such funds will be expended, 

pursuant to Sec. 98.53(f); 

* * * * * 

■ 3. Amend 45 CFR 98.53 to revise 

paragraphs (e)(2), (f), (h)(3), and (h)(4) to 

read as follows: 

§ 98.53 Matching fund requirements. 

* * * * * 

(e) An expenditure in the State for 

purposes of this subpart may be: 

* * * * * 

(2) Donated from private sources 

when the donated funds: 

(i) Are donated without any 

restriction that would require their use 

for a specific individual, organization, 

facility or institution; 

(ii) Do not revert to the donor’s 

facility or use; 

(iii) Are not used to match other 

Federal funds; 

(iv) Shall be certified both by the Lead 

Agency and by the donor (if funds are 

donated directly to the Lead Agency) or 

the Lead Agency and the entity 

designated by the State to receive 

donated funds pursuant to § 98.53(f) (if 

funds are donated directly to the 


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27980 Federal Register / Vol. 72, No. 96 / Friday, May 18, 2007 / Rules and Regulations 

designated entity) as available and 

representing funds eligible for Federal 

match; and 

(v) Shall be subject to the audit 

requirements in § 98.65 of these 

regulations. 

(f) Donated funds need not be 

transferred to or under the 

administrative control of the Lead 

Agency in order to qualify as an 

expenditure eligible to receive Federal 

match under this subsection. They may 

be given to the public or private entities 

designated by the State to implement 

the child care program in accordance 

with § 98.11 provided that such entities 

are identified and designated in the 

State Plan to receive donated funds in 

accordance with § 98.16(c)(2). 

* * * * * 

(h) * * * 

(3) In any fiscal year, a State may use 

public pre-K funds for up to 20% of the 

funds serving as maintenance-of-effort 

under this subsection. In addition, in 

any fiscal year, a State may use other 

public pre-K funds as expenditures 

serving as State matching funds under 

this subsection; such public pre-K funds 

used as State expenditures may not 

exceed 30% of the amount of a State’s 

expenditures required to draw down the 

State’s full allotment of Federal 

matching funds available under this 

subsection. 

(4) If applicable, the CCDF Plan shall 

reflect the State’s intent to use public 

pre-K funds in excess of 10%, but not 

for more than 20% of its maintenanceof-effort or 30% of its State matching 

funds in a fiscal year. Also, the Plan 

shall describe how the State will 

coordinate its pre-K and child care 

services to expand the availability of 

child care. 

* * * * * 

[FR Doc. E7–9626 Filed 5–17–07; 8:45 am] 

BILLING CODE 4184–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 070213033–7033–01] 

RIN 0648–XA25 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Cod by 

Catcher Vessels Less than 60 Feet 

(18.3 m) LOA Using Pot or Hook-andLine Gear in the Bering Sea and 

Aleutian Islands Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific cod by catcher vessels 

less than 60 feet (18.3 meters (m)) length 

overall (LOA) using pot or hook-andline gear in the Bering Sea and Aleutian 

Islands management area (BSAI). This 

action is necessary to prevent exceeding 

the 2007 Pacific cod total allowable 

catch (TAC) allocated to catcher vessels 

less than 60 feet (18.3 m) LOA using pot 

or hook-and-line gear in the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), May 15, 2007, through 2400 

hrs, A.l.t., December 31, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Hogan, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2007 and 2008 final harvest 

specifications for groundfish in the 

BSAI (72 FR 9451, March 2, 2007), the 

reallocation on March 5, 2007 (72 FR 

10428, March 8, 2007), and the 

reallocation on April 31, 2007 (72 FR 

18595, April 30, 2007) allocated a 

directed fishing allowance for Pacific 

cod of 2,853 metric tons to catcher 

vessels less than 60 feet (18.3 m) LOA 

using pot or hook-and-line gear in the 

BSAI. 

In accordance with § 679.20(d)(1)(iii), 

the Regional Administrator finds that 

the 2007 Pacific cod directed fishing 

allowance allocated to catcher vessels 

less than 60 feet (18.3 m) LOA using pot 

or hook-and-line gear in the BSAI has 

been reached. Consequently, NMFS is 

prohibiting directed fishing for Pacific 

cod by catcher vessels less than 60 feet 

(18.3 m) LOA using pot or hook-andline gear in the BSAI. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of Pacific cod by 

catcher vessels less than 60 feet (18.3 m) 

LOA using pot or hook-and-line gear in 

the BSAI. NMFS was unable to publish 

a notice providing time for public 

comment because the most recent, 

relevant data only became available as 

of May 14, 2007. 

The AA also finds good cause to 

waive the 30–day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by section 

679.20 and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: May 15, 2007. 

James P. Burgess, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 07–2473 Filed 5–15–07; 1:42 pm] 

BILLING CODE 3510–22–S 


cprice-sewell on PRODPC61 with RULES