7368 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

1See a copy of the NPRM at https://

www.federalregister.gov/articles/2011/03/18/2011- 

6326/head-start-program. 

2See The Improving Head Start for School 

Readiness Act of 2007, Public Law 110–134, 

December 12, 2007 at http://www.govtrack.us/

congress/bills/110/hr1429/text . 

Federal supply class/

group Title Examples of hazardous materials requiring identification 

6685 .............................. Pressure, temperature, and humidity measuring and controlling instruments.Items containing mercury or compressed gases. 

6740 .............................. Photographic .................................................... Items containing radioactive compounds. 

6750 .............................. Photographic supplies ...................................... Items containing hazardous chemicals, solvents, thinners, and cements. 

6780 .............................. Photographic sets, kits, and outfits .................. Items containing hazardous chemicals, solvents, thinners, and cements. 

7360 .............................. Sets, kits, and outfits; food preparation and 

serving.

Items containing compressed gases such as fire extinguishers. 

7510 .............................. Office supplies ................................................. Hazardous items, such as thinners, cleaning fluids, flammable inks, 

and varnishes. 

8405 .............................. Outerwear, men’s ............................................. Maintenance kits containing flammable solvents. 

8410 .............................. Outerwear, women’s ........................................ Maintenance kits containing flammable solvents. 

8415 .............................. Clothing, special purpose ................................ Maintenance kits containing flammable solvents. 

8465 .............................. Individual equipment ........................................ Maintenance kits containing flammable solvents. 

8510 .............................. Perfumes, toilet preparations, and powders .... Shipping containers and pressurized containers with flammable or 

nonflammable propellants. 

8520 .............................. Toilet soap, shaving preparations, and 

dentifrices.

Shipping containers and pressurized containers with flammable or 

nonflammable propellants. 

8720 .............................. Fertilizers .......................................................... Items containing weed and pest control or other harmful ingredients 

or because of their composition, are hazardous. 

9390 .............................. Miscellaneous fabricated nonmetallic materials.Items containing flammable solvents or asbestos. 

9920 .............................. Smokers’ articles and matches ........................ Lighter fuel and matches only. 

9930 .............................. Memorials; cemeteries and mortuary equipment and supplies.Items containing formaldehyde or its solutions. 

[FR Doc. 2015–02538 Filed 2–9–15; 8:45 am] 

BILLING CODE 6820–14–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1305 

RIN 0970–AC46 

Head Start Program 

AGENCY: Office of Head Start (OHS), 

Administration for Children and 

Families (ACF), Department of Health 

and Human Services (HHS). 

ACTION: Final rule. 

SUMMARY: This rule will ensure the 

neediest children and families in our 

country benefit from Head Start services 

first. 

DATES: This final rule becomes effective 

March 12, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Rathgeb, Office of Head Start, 

202–205–7378 (not a toll-free call). Deaf 

and hearing impaired individuals may 

call the Federal Dual Party Relay 

Service at 1–800–877–8339 between 8 

a.m. and 7 p.m. Eastern Time. 

SUPPLEMENTARY INFORMATION: 

I. Program Purpose 

The national Head Start program 

funds local organizations to provide 

comprehensive school readiness 

services to preschool-age children from 

low-income families. These services 

enhance children’s social and cognitive 

development, through health, 

educational, nutritional and other social 

services. These services also are 

designed to respond to children’s 

ethnic, cultural, and linguistic heritages. 

Many Head Start programs also provide 

Early Head Start, which serves infants, 

toddlers, and pregnant women whose 

families have incomes below the 

Federal poverty level. 

II. Background 

We published a Notice of Proposed 

Rulemaking (NPRM) on March 18, 2011 

to propose provisions that ensure only 

the neediest families receive Head Start 

services first.1 We received great 

feedback during the 30-day comment 

period and, in response, made changes, 

where appropriate. These changes 

clarify Head Start’s eligibility 

procedures and enrollment 

requirements, and reinforce Head Start’s 

overall mission to support low-income 

families and early learning. We believe 

this final rule, which is published under 

the authority granted to the Secretary of 

Health and Human Services under the 

Head Start Act (Act) 2 at sections 644(c), 

645(a)(1)(A), and 645A(c), provides a 

balanced approach to program 

administration, improves overall 

program effectiveness, and better aligns 

us with current practices in the field. 

III. General Comments and the Final 

Rule 

We received comments in general 

about this rule. Below, we summarized 

the comments and responded to them 

accordingly. 

Comment: Many commenters 

supported the notice of proposed 

rulemaking. They believe the rule 

strengthens Head Start programs and 

program accountability. Some programs 

currently verify eligibility in a similar 

manner to what we proposed. In 

addition, a national organization asked 

us to consider five guiding principles— 

accountability, efficiency, clarity, do no 

harm, and flexibility. 

Response: We appreciate the positive 

comments, and we believe we have met 

the five guiding principles. In this final 

rule, we include provisions that 

improve Federal oversight and ensure 

accountability for purposes consistent 

with the Act. We make the process 

programs must use to determine 

eligibility more efficient and clear so 

there is less room for programs to err. 

The ‘‘do no harm’’ principle derives 

from medical ethics. It reminds health 

care providers to consider the possible 

harm that any intervention might do. 

We carefully considered any possible 

harm that this regulation might do. 

Finally, we are less prescriptive so as to 


rljohnson on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 7369 

3See http://eclkc.ohs.acf.hhs.gov/hslc/standards/

PIs/2010/Head%20Start%20Eligibiliy%20

Verification%20Form,%20expires%2002-28- 

2013.pdf. 

allow programs flexibility to better 

accomplish program and statutory goals. 

Comment: Some respondents believed 

the rule is unnecessary and 

overreaching. Others suggested that it 

did not go far enough to effectively 

ensure families with incomes below the 

poverty level are served first. One 

commenter thought the measures 

seemed excessive and contrary to 

current trends in other Federal programs 

that serve similar populations. Other 

commenters were concerned the 

regulation will impose time and cost 

burdens on programs. 

Response: We believe this rule does 

not overreach; but is rather necessary to 

support Head Start’s overall mission. 

Furthermore, other Federal programs 

that serve similar populations have 

more rigorous and exhaustive regulatory 

requirements than what we proposed 

here. Moreover, we have struck the 

appropriate balance between reasonable 

cost burden and effective oversight. In 

fact, some Head Start programs 

currently conduct processes similar to 

what we require here with existing staff 

and resources. For example, programs 

currently collect and retain documents 

they use to determine family eligibility. 

Programs also already contact third 

parties to verify family eligibility. 

Comment: Some respondents believed 

the rule will reduce enrollment, 

particularly for Latino and dual 

language learner children. Others stated 

the provisions for programs to 

document and certify eligibility are too 

restrictive. A commenter stated that if 

we required families to provide 

documents that are not always readily 

available, we may create an 

environment where the neediest 

families may not receive services. 

Response: We believe the rule 

establishes reasonable expectations for 

families without causing unnecessary 

burdens. For example, if a family cannot 

prove income or homelessness, the 

family can declare its eligibility in 

writing. If so, we require program staffs 

to make reasonable efforts to verify the 

family’s eligibility. In addition to 

verifying eligibility, staffs must also 

create eligibility determination records 

for each participant. We also require 

programs to train and to monitor staffs 

who make eligibility decisions. We 

believe these requirements are enough 

to ensure staffs only enroll eligible 

children. We removed requirements for 

staffs to certify that they have made 

reasonable efforts to verify information. 

Comment: A few commenters asked 

us to reference Migrant or Seasonal 

Head Start each time we refer to Head 

Start and Early Head Start programs and 

to use the term party rather than the 

term entity throughout the rule when we 

refer to third parties. 

Response: Unless otherwise specified, 

when we mention Head Start, we mean 

Head Start, Early Head Start, and 

Migrant or Seasonal Head Start. We use 

the word party, when appropriate. 

Comment: Commenters asked us to 

clarify what enrolled child means and 

how programs should report end of the 

month enrollment. Other commenters 

suggested that we include all eligibility 

requirements from Head Start guidance 

materials in this regulation. 

Response: We define enrolled and we 

believe the definition clarifies how 

programs report end of the month 

enrollment. We also redefined 

enrollment, in an effort to be consistent 

with the definition used for reporting. 

We did not include eligibility 

requirements from Head Start guidance 

materials; because once this regulation 

becomes final, it will supersede all other 

previously issued guidance. The 

definitions for enrolled and enrollment 

in this regulation are consistent with 

current guidance and practice. 

Comment: Some commenters were 

concerned about: (1) Linking to the 

service area in which a family lives, 

rather than where a parent works; (2) 

questions about disability 

determinations related to enrollment; (3) 

setting priorities for enrollment and 

selection including over-income 

requirements; (4) attendance regulations 

at § 1305.8; and (5) under enrollment. 

Response: We did not make any 

changes based on these concerns 

because they are outside the scope of 

this regulation. This regulation is 

narrow in scope. It only revises § 1305.2 

Definitions and § 1305.4 Eligibility. It 

does not address recruitment, selection, 

enrollment and attendance, which are 

addresses in other sections of 45 CFR 

1305. 

Comment: Respondents asked 

whether this regulation, when it 

becomes effective, will apply to families 

on Head Start waiting lists. 

Response: Programs must determine 

each wait listed families’ eligibility, 

according to this regulation when it 

becomes effective, before the family is 

enrolled. 

Comment: Respondents suggested that 

we allow a phase-in period so programs 

can receive technical support; issue a 

national Head Start application and 

standardized forms to minimize varying 

interpretations; and create a toll-free 

technical assistance hotline. 

Response: We do not believe an 

additional phase-in period is necessary. 

We provided notice with the proposed 

rule. And, the final rule will not become 

effective until 30 days after it is 

published. This should give programs 

ample time to adjust their practices. 

However, we will continue to provide 

technical support. We also issued a 

standard checklist to help programs 

navigate the verification process.3 We 

will not issue any national applications. 

We would rather allow programs to 

develop applications appropriate for 

their communities and services, 

provided they meet Head Start 

requirements. 

IV. Section-by-Section Discussion and 

the Final Rule 

We received comments about changes 

we proposed to specific sections in the 

regulation. Below, we identified each 

section, summarized the comments, and 

responded to them accordingly. 

Section 1305.2—Definitions 

We show how this entire section will 

look below. We removed paragraph 

designations and we added new 

definitions for: accepted, enrolled, foster 

care, homeless children, Migrant or 

Seasonal Head Start Program, 

participant, relevant time period, and 

verify. We also revised these current 

definitions: enrollment, family, and 

Head Start eligible. We believe our 

efforts here make the regulation easier to 

understand. 

Comment: One commenter suggested 

that we clarify who is authorized to 

apply for Head Start Services on behalf 

of a child. 

Response: We redefined family for 

this purpose. Any family member may 

apply for Head Start services on a 

child’s behalf. 

Comment: Commenters suggested we 

define family, parent, and guardian for 

the purposes of determining income. 

Response: As stated above, we 

redefined family to clarify who could 

apply for Head Start services. The 

revised definition also clarifies for 

programs whose income to consider 

when they determine whether a 

pregnant woman or a child is eligible for 

services. For example, in the case of a 

pregnant woman, the definition requires 

programs to consider income from those 

who financially support the woman. In 

the case of a child, the definition 

requires programs to consider income 

from the child’s family. We define 

family, for a child, to mean all persons 

that live with child, who are financially 

supported by the child’s parents or 

guardians and who are related to the 

child by blood marriage or adoption, or 

the child’s authorized caregiver or 


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4See 42 U.S.C. 9840(a)(1)(B)(i). 

5See 42 U.S.C. 9832(11). 

legally responsible party. We did not 

define parent because the term has no 

special meaning for Head Start 

purposes. Moreover, we did not define 

guardian because we believe our revised 

definition for family is broad enough to 

include various situations. 

Comment: A commenter requested 

that we define foster care, so programs 

will not have to cross reference child 

welfare regulations. Similarly, other 

commenters suggested we consult with 

tribal leadership to determine if the 

definition should be adjusted for tribal 

populations. Some commenters asked 

that we revise Head Start eligible to 

include Migrant or Seasonal Head Start 

Program. Other commenters suggested 

that we define Migrant or Seasonal 

Head Start Program. 

Response: We added the foster care 

definition used by Federal child welfare 

programs. This definition encompasses 

all children that fall under this 

definition, tribal or otherwise. We 

revised Head Start eligible to include 

Migrant or Seasonal Head Start Program. 

We also defined Migrant or Seasonal 

Head Start Program. 

Comment: We received comments 

about the phrase ‘‘is eligible for or, in 

the absence of child care, would be 

potentially eligible for public 

assistance.’’ Commenters asked us to 

define average daily attendance and 

eligibility period. We also received 

comments about trailer parks as 

proposed in the homeless children 

definition. 

Response: We did not define the 

phrase ‘‘is eligible for or, in the absence 

of child care, would be potentially 

eligible for public assistance.’’ We took 

the phrase directly from section 

645(a)(1)(B)(i) of the Act.4 As always, 

we expect programs to continue to 

enroll the neediest families first. We did 

not define average daily attendance 

because attendance is beyond the scope 

of this regulation. This regulation 

focuses on eligibility. It does not 

address attendance, which is addressed 

in another section of 45 CFR 1305. We 

did not define eligibility period, but we 

clarified how long a participant remains 

eligible in § 1305.4(k). We defined 

relevant time period to alleviate any 

confusion. We did not define trailer 

parks because we changed our proposed 

homeless children definition to 

correspond with section 637(11) of the 

Act.5

Comment: One commenter asked why 

we require a child to attend at least one 

day of classes to be considered enrolled 

when the current definition for 

enrollment does not mention anything 

about attendance. 

Response: In light of this comment, 

we redefined enrollment. And we 

defined enrolled and accepted. We 

referred to the PIR for guidance. In the 

PIR, a child or a pregnant woman is 

enrolled once they have attended class 

or received a service. A child or 

pregnant woman is considered accepted 

when they have met the eligibility 

criteria and have completed the process 

for enrolling in the program. 

Consequently, persons on Head Start 

waiting lists have been accepted but are 

not yet enrolled. 

Comment: Overwhelmingly, 

commenters were pleased that we used 

the definition of ‘‘homeless children’’ 

from the McKinney-Vento Homeless 

Assistance Act, but believed we should 

provide additional guidance and 

technical assistance on homeless 

children. In addition, a few commenters 

asked how the definition applies to 

migrant or seasonal farm worker 

populations. 

Response: We will continue to 

provide training and technical 

assistance on homeless children. The 

McKinney-Vento Homeless Assistance 

Act does not specifically define 

homelessness for migrant or seasonal 

populations. However, the definition in 

this regulation also applies to Migrant or 

Seasonal Head Start programs. 

Section 1305.4—Determining, Verifying, 

and Documenting Eligibility 

This section focuses on eligibility 

requirements, procedures for how 

programs determine eligibility, and staff 

training. Based on comments, we 

reorganized this section to make it 

easier to understand by adding new 

paragraphs: (a) Process Overview; (d) 

Additional allowances for programs; (g) 

Migrant or Seasonal eligibility 

requirements; and (k) Eligibility 

Duration. 

Section 1305.4(a) 

This paragraph describes overall how 

programs must determine families’ 

eligibility. This is a new paragraph. We 

did not propose a similar paragraph in 

the NPRM. 

Comment: An organization stated that 

the proposed structure of this section 

may be confusing because programs 

must determine age before any other 

eligibility requirements. 

Response: We reorganized the section. 

Paragraph (a) provides an overview of 

the eligibility process and paragraph (b) 

now speaks to age eligibility 

requirements. 

Comment: A few commenters were 

concerned the in-person interview may 

be burdensome for families. 

Response: We allow programs to 

waive the in-person interview for a 

telephonic interview, if the in-person 

interview poses a burden for families. In 

these instances, programs are required 

to note in the eligibility determination 

record the reasons why an in-person 

interview was not possible. Incidentally, 

we did not specify where program staffs 

must conduct the in-person interview. 

Programs may conduct the in-person 

interview at a mutually agreed upon 

location. 

Comment: One commenter expressed 

concern that the proposed rule did not 

state what qualified as an ‘‘official 

document.’’ 

Response: We removed the term 

official as it related to documents. 

However, program staffs must create an 

eligibility determination record in 

accordance with paragraph (l) of this 

section for each enrolled participant. 

Paragraph (l) describes what each 

eligibility determination record must 

contain and for how long it must be 

kept. 

Comment: Commenters asked us to 

clarify who is authorized to apply for 

program services. They suggested we 

change the phrase ‘‘. . . the pregnant 

woman or the child’s parent, guardian, 

or other person (s) seeking services for 

the child who has knowledge of the 

family’s finances’’ to ‘‘. . . the pregnant 

woman or the child’s parent, guardian, 

authorized caregiver, or legally 

responsible party.’’ 

Response: We replaced the phrase 

‘‘. . . the pregnant woman or the child’s 

parent, guardian, or other person (s) 

seeking services for the child who has 

knowledge of the family’s finances’’ 

with the term family. As stated above, 

we redefined family. For a child, family 

means ‘‘all persons living in the same 

household who are: Supported by the 

child’s parent(s)’ or guardian(s)’ income, 

and related to the child’s parent(s) or 

guardian(s) by blood, marriage, or 

adoption; or the child’s authorized 

caregiver or legally responsible party. 

For a pregnant woman, family means all 

persons who financially support the 

pregnant woman. We believe this 

change makes the regulation easier to 

understand and clarifies who is 

authorized to apply for services. 

Section 1305.4(b) 

This paragraph outlines Head Start 

and Early Head Start age requirements. 

It was proposed as paragraph (a) Age 

Eligibility in the NPRM. 

Comment: Commenters offered edits 

to titles and language in this paragraph 


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6See 42 U.S.C. 9832(11). 

in order to reduce confusion. 

Commenters also recommended that we 

summarize section 645(a)(2) of the Act 

because we reference it in the 

introductory paragraph. 

Response: We changed the title to, 

‘‘Age eligibility requirements,’’ and we 

removed the reference to section 

645(a)(2) of the Act. 

Comment: Many commenters asked 

us to define age eligibility specifically 

for Migrant or Seasonal Head Start 

programs. 

Response: We defined age 

requirements for Migrant or Seasonal 

Head Start programs under paragraph 

(b)(3). 

Comment: Commenters wanted to 

know how programs could verify age 

eligibility particularly in relation to the 

date used by the school district in the 

community where the Head Start 

program operates. One respondent 

suggested that we use ‘‘the date used to 

determine eligibility for public school’’ 

language in Early Head Start as well as 

Head Start. 

Response: We reinforced in paragraph 

(h) that program staffs must verify a 

child’s age according to program 

policies and procedures. We emphasize 

that these policies cannot require staffs 

to collect documents if doing so 

prevents a family from enrolling an 

otherwise eligible child. We did not add 

the ‘‘public school’’ eligibility date to 

the Early Head Start description because 

it does not apply. Generally, eligible 

children transition from Head Start 

programs to public school. 

Consequently, ‘‘the date used to 

determine eligibility for public school’’ 

applies for Head Start not Early Head 

Start, which serves children birth to age 

three. 

Comment: One commenter was 

concerned that basing age requirements 

on public school criteria could delay a 

child from moving to Head Start for an 

entire year, rather than beginning the 

transition six months before his third 

birthday. Respondents asked how to 

address situations when a public school 

district uses a date to determine 

eligibility that is after the date Head 

Start classes begin. Other commenters 

wanted flexibility to enroll children 

who are old enough to attend 

kindergarten in their school districts, 

but have Individualized Education 

Plans (IEP) that state they need another 

year of preschool. Another commenter 

suggested that if we allow programs to 

enroll infants, we should require that 

infants not attend group care for at least 

four to six weeks. 

Response: We exempt children who 

transition from Early Head Start to Head 

Start from age eligibility requirements. 

Current regulations at § 1304.41(c)(2) 

require ‘‘As appropriate, a child may 

remain in Early Head Start, following 

his or her third birthday, for additional 

months until he or she can transition 

into Head Start or another program.’’ 

Even though age eligibility requirements 

do not apply when a child transitions 

from Early Head Start to Head Start, 

programs must verify the family’s 

income again. We added children that 

are ‘‘at least three years old or will turn 

three by the date used to determine 

eligibility for public school’’ in 

paragraph (b)(2) to allow programs to 

enroll children who are slightly 

younger, as appropriate. Section 

645A(c)(2) of the Act 6 specifies that 

‘‘children under three’’ may be eligible 

to participate in Early Head Start 

programs; the Act also requires Early 

Head Start programs to serve children 

from birth to age three. Programs do not 

have flexibility to enroll children who 

are old enough to attend kindergarten in 

their school districts, but have IEPs that 

state they need another year of 

preschool. If a program intends to enroll 

a child with an IEP, it must ensure the 

child meets Head Start age 

requirements. We do not have a 

minimum age requirement for infants to 

enroll in group care; however, programs 

that provide infant group care must 

comply with state licensing 

requirements regarding the age at which 

infants can enter group care. 

Comment: One commenter asked us 

to reimburse programs for obtaining 

birth certificates. 

Response: We did not make any 

changes to address this comment 

because we do not require programs to 

collect birth certificates. 

Section 1305.4(c) 

This paragraph describes income 

eligibility requirements. It was proposed 

as paragraph (b) Income Eligibility in the 

NPRM. 

Comment: Commenters found this 

paragraph rather confusing, because it 

contained program requirements and 

program options. Other commenters 

asked us to explain when programs can 

enroll children with disabilities and 

children whose family incomes are over 

the poverty line. 

Response: In order to make this 

paragraph clearer, we removed program 

options and placed them under new 

paragraph (d) Additional allowances for 

programs. We hope this clarifies that a 

program can enroll families under 

paragraph (d) options only after it has 

satisfied requirements listed here in 

paragraph (c) or requirements in 

paragraph (f). We also removed migrant 

or seasonal family eligibility 

requirements and placed them under 

paragraph (g) Migrant or Seasonal 

eligibility requirements. We also 

removed language that describes how 

long participants remain eligible for 

services and placed it under paragraph 

(k) Eligibility Duration. We believe these 

changes make the regulation easier to 

read. 

Section 1305.4(d) 

We created this new paragraph with 

language from proposed paragraph (b) 

Income Eligibility. We believe this new 

paragraph will clarify conditions under 

which programs may enroll families 

who do not otherwise qualify for 

services. A program can only use these 

options after it has enrolled homeless 

children, or pregnant women and 

children whose family incomes fall 

below the poverty line, or pregnant 

women and children whose families are 

eligible for, or in the absence of child 

care, would be potentially eligible for 

public assistance. 

Comment: An organization suggested 

we include specific language from the 

Act that describes what programs are 

required to report annually if they 

choose to enroll families between 100 

and 130 percent of the poverty line. 

Another commenter requested that the 

rule state when the report is due, what 

annual cycle should be used for the 

report, and where and to whom should 

the report be submitted. A commenter 

suggested that we allow 12.5 percent of 

participants to be over-income and 

remove all ‘‘35 percent’’ regulations. 

Response: We included specific 

language from the Act that describes 

what a program is required to report if 

it chooses to enroll families under the 

eligibility option allowing for inclusion 

of families between 100 and 130 percent 

of the poverty line. We also indicated 

when these reports are due and where 

they must be submitted. However, we 

do not have authority to remove all ‘‘35 

percent regulations.’’ These regulations 

are required by statute. 

Section 1305.4(e) 

This paragraph lists additional 

options specifically for tribes operating 

Head Start programs. It was proposed as 

paragraph (d) Special Rule for Indian 

Tribes in the NPRM. 

Comment: One commenter suggested 

the special rule for Indian tribes be used 

for all programs. 

Response: We have not made any 

changes in response to this comment 

because the Act specifically applies 

these allowances to Indian tribes. 


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7372 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

Section 1305.4(f) 

This paragraph identifies what makes 

a family categorically eligible for 

services. It was proposed as paragraph 

(c) Categorical Eligibility in the NPRM. 

Comment: We received comments 

about families experiencing 

homelessness. Many were concerned 

about how to identify and actually 

provide services to these families. 

Response: We defined homeless 

children at § 1305.2 and we added 

language that aligned with the Act to 

help programs better serve these 

families. 

The Act identifies homeless children 

as categorically eligible for Head Start 

services. In light of the Act, we add 

homelessness as category for eligibility 

at § 1305.4(f). We also offer several 

methods, from service provider 

statements to self-declarations that 

programs can use to verify a family’s 

circumstances. 

The Act also requires programs to 

allow homeless children to attend Head 

Start classrooms, without birth 

certificates, proof of residency, or 

immunization records. Congress 

recognizes that sporadic living 

conditions can make it difficult for these 

families to track information. It does not 

want to bar homeless families from 

enrolling in Head Start programs just 

because they do not have these 

documents. 

Here, we require programs to allow 

families of homeless children to apply 

to, enroll in, and attend Head Start 

programs, even if they do not have proof 

of residency, immunization and other 

medical records, and birth certificates. 

We require programs to give these 

families reasonable time to collect these 

and other required documents. Head 

Start is based on the premise that all 

children share certain needs, and that 

children from low-income families can 

benefit from comprehensive 

developmental services to meet those 

needs. Homeless children are 

particularly vulnerable and need the 

services that a Head Start program can 

offer. 

Comment: Numerous respondents 

asked us to define public assistance. 

Some commenters suggested that we 

include child-care, Supplemental 

Nutrition Assistance Program (SNAP, 

formerly known as food stamps) and 

Medicaid rather than TANF and SSI in 

the definition. 

Response: Public assistance includes 

TANF and SSI. We believe this is 

consistent with longstanding Head Start 

guidance. We appreciate the suggestion 

that we to extend the public assistance 

definition to include Medicaid, SNAP, 

child care and other benefits. However, 

we have narrowly construed public 

assistance in the past and believe that 

our interpretation of public assistance is 

consistent with the overall thrust of the 

eligibility requirements, which 

emphasize serving children from 

families in the lowest income brackets. 

Some forms of public assistance such as 

Medicaid, SNAP and child care have 

eligibility levels higher than the Head 

Start eligibility level. For example, 

SNAP eligibility is 130 percent of the 

poverty line and child-care eligibility in 

some states is higher than 150 percent 

of poverty. Further, when Congress 

expanded eligibility to include the 

ability for grantees to serve families 

with incomes between 100 and 130 

percent of the poverty level, they 

provided very narrow authority to do so. 

This indicates that Congress’s intent 

was not to broadly expand eligibility to 

higher incomes. Therefore, Head Start 

considering TANF and SSI as public 

assistance is consistent with the statute 

and the intent of Congress that Head 

Start programs should serve families 

with the lowest income and the greatest 

need. 

Comments: Some commenters asked 

us to explain how programs can 

determine a family’s potential eligibility 

for public assistance. 

Response: If a family gives written 

consent, the program could verify the 

family’s potential eligibility for public 

assistance with third parties, like TANF 

or SSI officials. Moreover, if a family 

does not have proof of income, the 

program can accept a family member’s 

written declaration that states the family 

is potentially eligible for public 

assistance. In these instances, program 

staffs are required to verify the family’s 

eligibility. 

Comment: Commenters asked us to 

clarify how children in foster care are 

considered categorically eligible for 

services. 

Response: We believe our categorical 

eligibility discussion is sufficient. 

However, to clarify what it means for a 

child to be in foster care, we defined 

foster care in § 1305.2. Our foster care 

definition is consistent with the 

definition used by ACF’s Children’s 

Bureau at 45 CFR 1355.20. 

Comment: One commenter urged us 

to expand the definition of homeless 

and the income eligibility guidelines to 

include families with medically fragile 

and autistic children because they often 

face financial and emotional struggles 

and unstable living situations. 

Response: While we are sensitive to 

these concerns, we lack the authority to 

modify either the statutory definition of 

homeless or the income eligibility 

requirements for Head Start that are 

specified in the Act. Furthermore, 

programs can fill at least 10 percent of 

their enrollment with disabled or 

medically fragile children, even if their 

families’ incomes are above the poverty 

guideline. Consequently, these children 

may be served, if the program has slots 

available. 

Section 1305.4(g) 

This is a new paragraph. It describes 

eligibility requirements for migrant or 

seasonal families. 

Section 1305.4(h) 

This is a new paragraph. It reinforces 

that staffs must verify a child’s age 

according to program policies and 

procedures. 

Section 1305.4(i) 

We proposed the language here under 

paragraph (e) Income Verification in the 

NPRM. This paragraph explains how 

program staffs verify family income. It 

also describes the documents families 

can present to prove income eligibility. 

Comment: Commenters asked what to 

do when families do not have 12 

months of pay stubs readily available. 

Commenters also asked how programs 

could judge whether a family’s income 

accurately reflects current 

circumstances. 

Response: When families are missing 

any pay stubs or other documentation to 

prove income, programs may use the 

information provided to calculate total 

annual income by using appropriate 

multipliers. To do this, the program will 

multiply the family’s income earned in 

a certain time period by the number of 

weeks or months the family worked 

during the time period being 

considered. We also revised the 

regulation to provide that if the family 

can demonstrate a significant change in 

income, such as job loss, the program 

may consider the family’s current 

income circumstances. 

Comment: Respondent asked us to 

clarify the parameters programs have to 

investigate families’ circumstances 

when they report no income. Other 

commenters stated that SNAP and 

Medicaid have much higher income 

guidelines than Head Start and as a 

result they should not be used to 

determine eligibility. 

Response: We intentionally did not 

provide examples of how to verify that 

a family has no income. We believe our 

silence in this instance will afford 

programs greater flexibility in their 

efforts to make informed eligibility 

decisions. 

Comment: We received comments 

from program managers about using 


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third parties to verify whether families 

are categorically eligible for services. 

They asked us to clarify who, i.e. what 

third party, could verify whether a 

family is homeless. These commenters 

believed that homeless families often 

lack close ties with family members 

who potentially could verify the 

family’s circumstances. Consequently, 

programs would have to exert 

tremendous ‘‘man hours’’ to verify a 

family’s circumstances. Other 

commenters recommended that we 

allow families, who do not have income 

or who are unable to prove income, to 

attest to their eligibility in writing, 

either as an alternative to, or in addition 

to third party verification. 

Response: Programs may use third 

parties to verify a family’s 

circumstances, if the family gives 

written consent. In these cases, 

programs may contact family members, 

shelter workers, employers, and social 

workers. We do not prescribe who 

programs should use as third parties to 

verify a family’s circumstances. Instead, 

we afford programs flexibility to 

determine which third parties they 

could rely on to get information about 

the families they serve. Moreover, we 

allow programs to accept written 

declarations from families who do not 

have income or who cannot prove 

income. However, in this and in all 

other instances, we require program 

staffs to make reasonable efforts to 

verify the family’s eligibility. 

Comment: Commenters were 

concerned about how long it could take 

to verify income, noting that programs 

are working with limited funds, and 

may require more staff. 

Response: We do not believe these 

requirements will cause undue burdens 

for program staff. Programs currently 

verify family income with existing 

staffs. They collect supporting 

documents and contact third parties 

when necessary. 

Comment: A commenter wanted to 

know how to determine income 

eligibility for various household 

situations, including custody and 

incarceration. 

Response: We believe the definition 

for family addresses this concern. 

Comment: Commenters asked how 

often programs must verify whether a 

migrant family’s income comes 

primarily from agricultural work. 

Response: We did not address income 

verification for Migrant or Seasonal 

Head Start (MSHS) programs in the 

NPRM and we do not address the issue 

here in the final rule. We realize MSHS 

programs verify family income 

eligibility annually in order to ensure 

children from migrant or seasonal farm 

worker families receive services that are 

specifically designed to address the 

needs of families that perform 

agricultural work. However, MSHS 

programs are not exempt from the two 

year eligibility requirement in the Act. 

Due to the Act’s two year eligibility 

requirement, if an MSHS program 

determines a child is no longer eligible 

for its services after the first year, the 

child can be enrolled in a non-MSHS 

program in the community for a second 

year. But if the child cannot be enrolled 

in a non-MSHS program, the MSHS 

program must continue to serve him. 

Section 1305.4(j) 

We proposed language here under 

paragraph (f) Verification of categorical 

eligibility in the NPRM. This paragraph 

explains how programs must verify 

categorical eligibility. 

Comment: A few commenters stated 

that this paragraph is inconsistent with 

the requirement that authorizes, ‘‘In 

place of the foregoing documents, the 

program can substitute a written 

statement of a program staff member 

certifying that the staff member has 

made reasonable efforts to confirm a 

child is homeless.’’ Commenters were 

concerned that proving homelessness 

would be particularly difficult for some 

populations and sought guidance on the 

meaning of ‘‘reasonable efforts’’ to 

confirm that a child is homeless. One 

organization recommended that we 

require families experiencing 

homelessness to present additional 

documents to establish eligibility under 

this category. Another commenter 

believed the process of verifying 

homelessness should mirror the 

processes used by the local education 

authorities in the community and the 

National Center for the Education of 

Homeless Children. 

Response: We removed requirements 

for staffs to certify that they have made 

reasonable efforts to verify family 

eligibility. Consequently, we removed: 

‘‘In place of the foregoing documents, 

the program can substitute a written 

statement of a program staff member 

certifying that the staff member has 

made reasonable efforts to confirm a 

child is homeless.’’ We specify the types 

of documents programs are required to 

use in order to verify homelessness. 

However, in cases where these 

documents are not available, the family 

may declare in writing that the child or 

pregnant woman is homeless. In these 

instances, we require staff to verify the 

family’s status and to describe the 

child’s living situation. We did not 

specify how programs should inquire 

about a family’s housing status. 

However, we will continue to provide 

best practices tips through training and 

technical assistance. We believe the 

phrase ‘‘reasonable efforts’’ is clear. But 

we also provide training and technical 

assistance on what constitutes 

‘‘reasonable efforts’’ on the Head Start 

Early Childhood Learning & Knowledge 

Center Web site and other resources. 

Comment: One commenter explained 

that trying to verify homelessness as a 

categorical eligibility factor and to 

document the income of the same 

family may result in undue pressure on 

program staff. Staff may fear 

repercussions despite having made 

reasonable efforts to collect accurate 

documentation. 

Response: We did not require 

programs to verify both income and 

homelessness. Programs are required to 

verify whether a family is either 

‘‘income eligible’’ or ‘‘categorically 

eligible.’’ 

Comment: A commenter noted that in 

proposed paragraph (f)(2), the phrase 

‘‘to prove a claim that a pregnant 

woman or family has no income’’ 

should read ‘‘to prove a claim that a 

pregnant woman or family is homeless.’’ 

Response: This was an error. But we 

grammatically restructured this 

paragraph in a way so that it is clear we 

are referring to categorical eligibility 

and not income eligibility. We also 

clarified that a program may use third 

parties to prove a claim that a family is 

categorically eligible. 

Comment: We received comments, 

concerns, and recommendations about 

using third parties to verify a family’s 

categorical eligibility. While some 

commenters supported this provision, 

many more were concerned that the use 

of third parties could create unintended 

consequences such as deterring 

enrollment or making families and Head 

Start staff uncomfortable. Some 

commenters wanted us to offer more 

guidance on who could serve as a third 

party contact and whether it had to be 

someone in a professional capacity or if 

the program has discretion to decide. 

Numerous respondents questioned the 

value of using other family members 

and friends as third party verifiers. 

Commenters asked us to explain how to 

collect acceptable information from 

third parties, and what documents are 

considered appropriate. Another 

respondent asked us to clarify whether 

programs that already have selfdeclaration procedures are required to 

use third party verification as well. One 

commenter suggested that we do not 

require families to consent to third party 

verification when third party 

verification could prove detrimental. 

Response: We believe third parties 

may be helpful to verify eligibility in 


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cases where families lack 

documentation. Programs should only 

use third party verification if the family 

consents and if other verification 

methods are not feasible. Beyond what 

is specified in the rule, programs may 

use their own process for verifying 

information, keeping in mind the 

purpose, goals, and other rules related 

to eligibility. Furthermore, throughout 

the verification process, we require 

program staff to adhere to program 

safety and privacy policies outlined in 

45 CFR 1304.52(h). 

Comment: Commenters supported 

having program staff certify that he or 

she made reasonable efforts to confirm 

that a child is homeless. They suggested 

programs use this method to verify 

income and other forms of categorical 

eligibility as well. 

Response: As we mentioned above, 

we removed requirements for staffs to 

certify that they have made reasonable 

efforts to verify a family’s eligibility. 

However, if a family declares that it is 

either income or categorically eligible 

for services, we require staffs to make 

reasonable efforts to verify the family’s 

situation and to describe the family’s 

living situation. 

Section 1304(k) 

This is a new paragraph. It explains 

how long participants remain eligible 

for services. 

Section 1305.4(l) 

This paragraph describes what 

eligibility determination records must 

contain and how long they must be 

kept. It was proposed as (g) Records and 

Certification in the NPRM. 

Comment: Some commenters 

recommended we require programs to 

store data and eligibility determination 

records electronically. One commenter 

asked us to explain what an ‘‘eligibility 

determination record’’ is as used in 

proposed paragraph (g), and how long 

these records must be kept. 

Response: We clarified in paragraph 

(l) that eligibility determination records 

may be maintained either electronically 

or in hard copy. Programs may choose 

whichever system is appropriate for 

their needs so long as the system 

provides accurate information and 

ensures confidentiality. We believe the 

term ‘‘eligibility determination record’’ 

defines itself. However, we describe 

what eligibility determination records 

must contain. Programs must keep these 

records according to 45 CFR 74.53 and 

45 CFR 92.42. These are general HHS 

rules on records retention that stem 

from Office of Management and Budget 

Circulars A–110 and A–102 

respectively. 

Comment: Numerous commenters 

recommended that the language in 

proposed paragraph (g)(1) that states 

‘‘copies of all documents submitted 

. . .’’ be changed to ‘‘all documents 

used to verify eligibility’’ to limit the 

scope. Commenters also wanted to 

know how programs are supposed to 

copy documents when recruiting and 

intake usually take place where there is 

no access to photocopy machines. 

Response: A program must be able to 

show in the eligibility determination 

record what documents it used to find 

a participant eligible for services. 

However, if a staff does not have access 

to a copier, he may review documents 

and verify their contents. He can then 

allow the family to present those 

documents up until the child’s first day 

of class, when he can make copies. 

Comment: One commenter proposed 

changing proposed paragraph (g)(1) to 

remove reference to ‘‘any staff member’s 

notes recording any other information’’ 

believing the term is difficult to define, 

implement uniformly or monitor for 

compliance. Another commenter related 

to ‘‘staff member’s notes’’ questioned 

whether staff notes are considered valid 

documentation, and if so, what rules 

govern them. 

Response: We removed the reference 

to ‘‘staff member’s notes.’’ Even without 

staff member notes, program staffs 

should be able to capture all pertinent 

information as they determine family 

eligibility. 

Comment: Commenters recommended 

that we remove proposed paragraph 

(g)(4)(ii), which required programs to 

maintain documents related to third 

party verification. 

Response: We require programs to 

keep documents related to third party 

verification in paragraph (l)(2)(C). Third 

party verification allows programs more 

flexibility and families more options to 

prove eligibility. However, we reinforce 

that staff limit the scope of verifying to 

that which is relevant to prove 

eligibility and adhere to program safety 

and security policies. 

Comment: A commenter was 

concerned about the requirement in 

proposed paragraph (g)(5) to maintain 

‘‘a record of the eligibility criterion 

under which the pregnant woman or the 

child was determined eligible.’’ The 

commenter explained this may be 

particularly difficult in the over-income 

categories. For example, the program 

may verify a family’s income level 

throughout the spring and summer 

recruiting season, but enroll and assign 

them to either paragraph (g)(5)(v) (10 

percent allowed over-income category) 

or paragraph (g)(5)(vi) (over 100 percent 

but below 130 percent of poverty 

category) in the fall. 

Response: If a program enrolls a child 

whose family is over income under one 

of the two over income categories, in 

paragraph (l)(2)(iii), we require staff to 

say as much in a written statement and 

to make that statement a part of the 

eligibility determination record. 

However, we do not require staff to 

specify which of the two over-income 

eligibility categories applies or when, 

i.e. when the family is determined 

eligible for services or when the family 

is enrolled. Programs must, however, 

make this distinction for reporting 

purposes. 

Comment: We received a few 

comments about proposed paragraph 

(g)(6) that requires ‘‘a signed and dated 

statement by the program staff person.’’ 

Supporters believe this will strengthen 

the integrity of Head Start programs 

nationwide and increase accountability. 

Another commenter was concerned 

about this requirement because her 

program uses multiple staffs to collect 

eligibility information, but only one 

staff to determine eligibility. 

Response: We removed this 

requirement as proposed in paragraph 

(g)(6). However, in (l)(2)(ii), we require 

staffs to provide a statement that he or 

she made reasonable efforts to verify 

information. We do not prescribe any 

particular method for how programs 

may collect eligibility information. We 

want to make it clear that we hold 

program management ultimately 

responsible for each eligibility 

determination. 

Comment: We received a comment 

about proposed paragraph (g)(7), which 

required programs to maintain 

eligibility determination records for 

three years. The commenter 

recommended that these records be kept 

only as long as the child or pregnant 

woman is enrolled in the program. 

Response: We took the three-year 

record retention requirement from 45 

CFR 74.53 and 45 CFR 92.42. These 

regulations require grantees to keep 

financial records, supporting 

documents, statistical records, and all 

other records pertinent to their grant for 

three years. Eligibility determination 

records do not fit these criteria. 

Therefore, we require programs to keep 

eligibility determination records for 

those currently enrolled, for as long as 

they are enrolled, and for one year after 

they have stopped receiving services or 

are no longer enrolled. 

Section 1305.4(m) 

This paragraph requires programs to 

establish policies and procedures that 

describe what happens when staffs 


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violate this rule. It was proposed as (h) 

Establishment of agency policies 

regarding violation of eligibility 

determination regulations, policies, and 

procedures in the NPRM. 

Comment: Commenters expressed 

concern about requiring programs to 

establish policies that describe actions 

taken against staffs who intentionally 

violate Federal and program eligibility 

regulations. They believe this 

requirement is overreaching. Other 

respondents recommended that 

programs must have a general policy 

against fraud. 

Response: We do not believe this 

requirement is overreaching. Current 

regulations require programs to 

establish and implement written staff 

personnel policies that describe 

appropriate penalties for violating 

standards of conduct. Programs that 

already have related policies in place 

will be in compliance with these new 

rules as long as their policies cover what 

is specified in this rule. 

Comment: One commenter applauds 

our efforts to inform the Head Start 

workforce about fraud, and the 

consequences for committing fraud. 

However, the commenter does not 

believe we have articulated what it 

means to commit fraud clearly. In order 

to avoid a ‘‘chilling effect on hiring.’’ 

the commenter suggested we discuss 

‘‘intent’’ more in the preamble. 

Response: We believe we are quite 

clear about who is eligible for Head 

Start services and about how a program 

must determine eligibility. Staffs that 

intentionally enroll ineligible families 

should be held accountable. We believe 

the intent requirement as stated should 

be sufficient to weed out inadvertent or 

mistaken enrollments. 

Section 1305.4(n) 

We initially proposed this language 

under paragraph (i) Training in the 

NPRM. This paragraph details training 

requirements for staff and others 

responsible for making eligibility 

decisions. 

Comment: Many commenters were 

concerned 30 days after the effective 

date of the rule was not enough time for 

programs to design and conduct 

training. Some respondents 

acknowledged the importance of their 

roles, but explained that governing body 

and policy council members should 

have more time to implement 

procedures because they are not 

involved directly in the eligibility 

verification process. A few commenters 

suggested that training should be 

ongoing for some staff. 

Response: Programs are required to 

train program management and all staffs 

who make eligibility determinations, 

within 90 days after the effective date of 

this rule. After the initial training, 

programs must train each newly hired 

staff member as soon as possible, but 

within 90 days of hire. Programs must 

train all governing body and policy 

council members, within 180 days of 

the rule being effective. Or, after the 

initial training, programs must train a 

new governing body member or a new 

policy council member, within 180 days 

of his or her term. We have not added 

specific flexibility for programs with 

shorter operating periods because we 

believe programs will be able to 

complete the training requirements in 

the time allowed. We require programs 

to develop their own policies on how 

often training is provided, after the 

initial training, to allow flexibility in 

training frequency. 

Comment: A commenter 

recommended that we require training 

to include consequences for families 

who commit or attempt to commit fraud 

by providing false documents or 

eligibility information. 

Response: We agree. We require 

program training to include 

consequences for families who commit 

or attempt to commit fraud by providing 

false documents or eligibility 

information. 

Comment: Commenters suggested that 

we provide training and technical 

assistance materials, such as webinars, 

PowerPoint presentations, and 

guidelines with consistent goals, 

measures, or outcomes for training. 

Response: We did not make any 

changes to the rule as a result of these 

comments. However, the National 

Center on Program Management and 

Fiscal Operations will develop training 

assistance to help programs implement 

these new training requirements. We 

believe these requirements are 

reasonable and will not cause undue 

burdens. In addition, we allow programs 

flexibility to determine appropriate 

training for their operational needs. We 

do not specify exactly how training 

must be delivered, the length of 

training, or specific content beyond 

what topics must be covered. 

V. Impact Analyses 

Paperwork Reduction Act 

This rule establishes new information 

collection requirements in § 1305.4(c), 

(f), (g), (h), (i), and (j). As required by the 

Paperwork Reduction Act of 1995, 

codified at 44 U.S.C. 3507, the 

Administration for Children and 

Families will submit a copy of these 

sections to the Office of Management 

and Budget (OMB) for review and they 

will not be effective until they have 

been approved and assigned a clearance 

number. 

Requirement Respondents Annual 

Average 

burden 

per 

respondent 

(hours) 

Total 

burden 

hours 

§ 1305.4(d)(2) .......................................................................... 20 1 ............................................. 2 40 

§ 1305.4(h)(i), and (j) .............................................................. 1,600 (should reflect info collections 

for each applicant).

15 24,000 

§ 1305.4(l) ............................................................................... 1,600 (should reflect info collections 

for each applicant).

15 24,000 

We estimate costs to implement these 

requirements will be approximately 

$1,103,959 annually. We used the 

average hourly salary for an assistant 

teacher, which is closest to the salary for 

a family worker, who would be doing 

this work. The estimated hourly salary 

for a family worker including overhead 

and fringe benefits is $22.98. We 

multiplied this hourly rate by the 

estimated total burden hours, 48,040, to 

get the total estimated cost. We 

reevaluated the cost burden and the cost 

burden increased in both the hours of 

burden and the cost to each program. 

We also determined that the family 

services coordinator would not be the 

staff person who would verify family 

eligibility. Instead, the family service 

worker would conduct intake and 

determine eligibility. The average salary 

for a family service worker is closest to 

that of an assistant teacher. When we 

adjusted the family service worker’s 


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salary, we included fringe benefits 

which we did not include in our 

original estimate. 

Regulatory Flexibility Act 

The Secretary certifies that, under 5 

U.S.C. 605(b), as enacted by the 

Regulatory Flexibility Act (Pub. L. 96– 

354), this rule will not result in a 

significant economic impact on a 

substantial number of small entities. 

This rule primarily is intended to 

ensure accountability for Federal funds 

consistent with the purposes of the 

Head Start Act and is not duplicative of 

other requirements. We believe this rule 

implements the aims of the Head Start 

Act, as amended, to improve the 

effectiveness of Head Start programs 

while preserving the ability of Head 

Start grantees to continue using 

creativity and innovation to promote the 

school readiness of low-income 

children. 

Respondents commented that they 

thought the estimated costs of $85 per 

grantee were too low, considering the 

new costs of maintaining copies of 

documents; revamping agency polices 

and systems; creating additional human 

resource procedures and policies to 

address violations of regulations, 

keeping and filing additional documents 

in the file, and training on these 

elements. One organization that 

commented said that it did not have 

exact numbers to confirm or refute the 

amount, but asked HHS to reconsider 

this estimate. Other respondents shared 

calculations of their estimated costs of 

implementing these new requirements. 

In response to these comments, we have 

adjusted the number of burden hours 

and the total calculation of the cost of 

meeting the new requirements. 

Specifically, as noted under the 

Paperwork Reduction Act section of this 

preamble, we estimate the cost of 

implementing the new reporting 

requirements will be approximately 

$1,103,959 annually, which when 

applied to all 1,600 grantees nationally, 

results in a cost per grantee of less than 

$1,236. In developing this estimate, we 

assumed that each of the 1,600 Head 

Start and Early Head Start grantees 

would spend an additional 30 hours 

beyond what they spend currently to 

verify eligibility. The total burden hours 

for each program would be 30 

additional hours for the expanded 

requirements on verifying eligibility (15) 

and record keeping (15) as noted in the 

chart. We anticipate that some of the 

additional 30 hours would include time 

needed for grantees to training staff, 

ensuring record keeping systems 

complied with the new requirements 

and maintaining records. We included 

in our estimated annual costs minimal 

costs incurred by those grantees that 

choose to serve additional pregnant 

women and children per the authority 

granted at section 645(a)(1)(B)(iii)(II) in 

the Act, and therefore would be 

required to comply with the annual 

reporting requirements described in 

section 645(a)(1)(B)(iv) of the Act and 

paragraph (c)(3)(ii) of this rule. Since no 

grantees have taken the opportunity to 

serve additional pregnant woman and 

children per the authority granted at 

section 645(a)(1)(B)(iii)(II) in the Act to 

date, our reasonable expectation is that 

approximately 20 grantees per year 

might choose to use this authority in the 

future, at a total estimated cost of $1,236 

per year. 

Regulatory Impact Analysis 

Executive Order 12866 requires that 

regulations be reviewed to ensure that 

they are consistent with the priorities 

and principles set forth in the Executive 

Order. The Department has determined 

that this Final Rule is consistent with 

these priorities and principles. These 

regulations incorporate statutory 

changes to the Head Start program 

enacted in the Act and strengthens 

procedures by which programs 

determine who is eligible for Head Start 

services. We have consulted with OMB 

and determined that these rules meet 

criteria for a significant regulatory 

action under Executive Order 12866. 

We do not believe there will be a 

significant economic impact from this 

regulatory action. Based on our estimate 

described under the Paperwork 

Reduction Act section of this preamble, 

the total cost will fall well below the 

$100 million threshold. The estimated 

total cost of implementation of these 

rules for all grantees is approximately 

$1,103,959 annually. 

Unfunded Mandates Reform Act of 1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 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. If an agency must 

prepare a budgetary impact statement, 

section 205 requires that it select the 

most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule consistent with 

the statutory requirements. Section 203 

requires a plan for informing and 

advising any small government that may 

be significantly or uniquely impacted. 

The Department has determined that 

this rule will not impose a mandate that 

will result in the expenditure by state, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

more than $100 million in any one year. 

Congressional Review 

This regulation is not a major rule as 

defined in 5 U.S.C. chapter 8. 

Executive Order 13132 

Executive Order 13132, Federalism, 

requires that Federal agencies consult 

with state and local government officials 

in the development of regulatory 

policies with federalism implications. 

This rule will not have substantial 

direct impact on the states, on the 

relationship between the National 

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, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

Treasury and General Government 

Appropriations Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule will not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, HHS has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

List of Subjects in 45 CFR Part 1305 

Education of disadvantaged, Grant 

programs/social programs, Individuals 

with disabilities. 

(Catalog of Federal Domestic Assistance 

Program Number 93.600, Project Head Start) 

Dated: January 14, 2015. 

Mark H. Greenberg, 

Acting Assistant Secretary for Children and 

Families. 

Approved: January 27, 2015. 

Sylvia M. Burwell, 

Secretary. 

For the reasons set forth in the 

preamble, part 1305 of 45 CFR chapter 

XIII is amended to read as follows: 


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Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 7377 

PART 1305—ELIGIBILITY, 

RECRUITMENT, SELECTION, 

ENROLLMENT, AND ATTENDANCE IN 

HEAD START 

■ 1. The authority citation for part 1305 

is revised to read as follows: 

Authority: 42 U.S.C. 9801 et seq., 5 U.S.C. 

553(b). 

■ 2. Revise § 1305.2 to read as follows: 

§ 1305.2 Definitions. 

Accepted means a child or pregnant 

woman has met the eligibility criteria 

and has completed the enrollment 

process. 

Children with disabilities means 

children with mental retardation, 

hearing impairments including 

deafness, speech or language 

impairments, visual impairments 

including blindness, serious emotional 

disturbance, orthopedic impairments, 

autism, traumatic brain injury, other 

health impairments or specific learning 

disabilities who, by reason thereof need 

special education and related services. 

The term ‘‘children with disabilities’’ 

for children aged three to five, inclusive, 

may, at a state’s discretion, include 

children experiencing developmental 

delays, as defined by the state and as 

measured by appropriate diagnostic 

instruments and procedures, in one or 

more of the following areas: physical 

development, cognitive development, 

communication development, social or 

emotional development, or adaptive 

development; and who, by reason 

thereof, need special education and 

related services. 

Enrolled means a child has been 

accepted and attended at least one class, 

has received at least one home visit, or 

has received at least one direct service 

while pending completion of necessary 

documentation for attendance in a 

center, based on state and local 

licensing requirements. For Early Head 

Start, enrollment includes all pregnant 

women that have been accepted and 

received at least one direct service. 

Enrollment means the number of 

participants in an Early Head Start, a 

Head Start, a Migrant or Seasonal, or an 

American Indian Alaska Native Head 

Start program. 

Enrollment opportunities mean 

vacancies that exist at the beginning of 

the enrollment year, or during the year 

because of children who leave the 

program, that must be filled for a 

program to achieve and maintain its 

funded enrollment. 

Enrollment year means the period of 

time, not to exceed twelve months, 

during which a Head Start program 

provides center or home-based services 

to a group of children and their families. 

Family, for a child, means all persons 

living in the same household who are: 

(1) Supported by the child’s parent(s)’ 

or guardian(s)’ income; and 

(2) Related to the child’s parent(s) or 

guardian(s) by blood, marriage, or 

adoption; or 

(3) The child’s authorized caregiver or 

legally responsible party. 

Family, for a pregnant woman, means 

all persons who financially support the 

pregnant woman. 

Foster care means 24-hour substitute 

care for children placed away from their 

parents or guardians and for whom the 

state agency has placement and care 

responsibility. This includes, but is not 

limited to, placements in foster family 

homes, foster homes of relatives, group 

homes, emergency shelters, residential 

facilities, child care institutions, and 

pre-adoptive homes. A child is in foster 

care in accordance with this definition 

regardless of whether the foster care 

facility is licensed and payments are 

made by the state or local agency for the 

care of the child, whether adoption 

subsidy payments are being made prior 

to the finalization of an adoption, or 

whether there is Federal matching of 

any payments that are made. 

Funded enrollment means the number 

of children which the Head Start grantee 

is expected to serve, as indicated on the 

grant award. 

Head Start eligible means a child or 

pregnant woman who meets the 

requirements for age and family income 

or categorical eligibility or, if applicable, 

the requirements established by a 

grantee under section 645(a)(2) of the 

Head Start Act or by a Head Start 

program operated by an Indian tribe 

under 45 CFR 1305.4(e). Unless 

otherwise noted, references to Head 

Start eligible include Early Head Start 

and Migrant or Seasonal Head Start 

programs. 

Head Start program means a Head 

Start grantee or its delegate agency(ies). 

Homeless children means the same as 

homeless children and youths in section 

725(2) of the McKinney-Vento Homeless 

Assistance Act at 42 U.S.C. 11434a(2). 

The definition in this regulation also 

applies to Migrant or Seasonal Head 

Start programs. 

Income means gross cash income and 

includes earned income, military 

income (including pay and allowances), 

veterans’ benefits, Social Security 

benefits, unemployment compensation, 

and public assistance benefits. 

Additional examples of gross cash 

income are listed in the definition of 

‘‘income’’ which appears in U.S. Bureau 

of the Census, Current Population 

Reports, Series P–60–185. 

Income guidelines means the poverty 

line specified in section 637(19) of the 

Act (42 U.S.C. 9832). 

Indian Tribe means any tribe, band, 

nation, pueblo, or other organized group 

or community of Indians, including any 

Native village described in section 3(c) 

of the Alaska Native Claims Settlement 

Act (43 U.S.C. 1602(c)) or established 

pursuant to such Act (43 U.S.C. 1601 et 

seq.), that is recognized as eligible for 

special programs and services provided 

by the United States to Indians because 

of their status as Indians. 

Low-income family means a family 

whose total income before taxes is equal 

to, or less than, the income guidelines. 

Migrant family means, for purposes of 

Head Start eligibility, a family with 

children under the age of compulsory 

school attendance who changed their 

residence by moving from one 

geographic location to another, either 

intrastate or interstate, within the 

preceding two years for the purpose of 

engaging in agricultural work that 

involves the production and harvesting 

of tree and field crops and whose family 

income comes primarily from this 

activity. 

Migrant or Seasonal Head Start 

Program means: 

(1) With respect to services for 

migrant farmworkers, a Head Start 

program that serves families who are 

engaged in agricultural labor and who 

have changed their residence from one 

geographic location to another in the 

preceding 2-year period; and 

(2) With respect to services for 

seasonal farmworkers, a Head Start 

program that serves families who are 

engaged primarily in seasonal 

agricultural labor and who have not 

changed their residence to another 

geographic location in the preceding 2- 

year period. 

Participant means a pregnant woman 

or a child who is enrolled in and 

receives services from a Head Start, an 

Early Head Start, a Migrant Seasonal 

Head Start, or an American Indian 

Alaska Native Head Start program. 

Recruitment means the systematic 

ways in which a Head Start program 

identifies families whose children are 

eligible for Head Start services, informs 

them of the services available, and 

encourages them to apply for enrollment 

in the program. 

Recruitment area means that 

geographic locality within which a Head 

Start program seeks to enroll Head Start 

children and families. The recruitment 

area can be the same as the service area 

or it can be a smaller area or areas 

within the service area. 


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Relevant time period means: 

(1) The 12 months preceding the 

month in which the application is 

submitted; or 

(2) During the calendar year preceding 

the calendar year in which the 

application is submitted, whichever 

more accurately reflects the needs of the 

family at the time of application. 

Responsible HHS official means the 

official of the U.S. Department of Health 

and Human Services having authority to 

make Head Start grant awards, or his or 

her designee. 

Selection means the systematic 

process used to review all applications 

for Head Start services and to identify 

those children and families that are to 

be enrolled in the program. 

Service area means the geographic 

area identified in an approved grant 

application within which a grantee may 

provide Head Start services. 

Vacancy means an unfilled 

enrollment opportunity for a child and 

family in the Head Start program. 

Verify or any variance of the word 

means to check or determine the 

correctness or truth by investigation or 

by reference. 

■ 3. Revise § 1305.4 to read as follows: 

§ 1305.4 Determining, verifying, and 

documenting eligibility. 

(a) Process overview. (1) Program staff 

must: 

(i) Conduct an in-person interview 

with each family, unless paragraph 

(a)(2) of this section applies; 

(ii) Verify information as required in 

paragraphs (h) through (j) of this 

section; and, 

(iii) Create an eligibility 

determination record for each enrolled 

participant according to paragraph (l) of 

this section. 

(2) Program staff may interview the 

family over the telephone if an inperson interview is not possible. In 

addition to meeting the criteria 

provided in paragraph (a)(1) of this 

section, program staff must note in the 

eligibility determination record reasons 

why the in-person interview was not 

possible. 

(b) Age eligibility requirements. (1) 

For Early Head Start, except when the 

child is transitioning to Head Start, a 

child must be an infant or a toddler 

younger than three years old. A 

pregnant woman may be any age. 

(2) For Head Start, a child must: 

(i) Be at least three years old; or, 

(ii) Turn three years old by the date 

used to determine eligibility for public 

school in the community in which the 

Head Start program is located; and, 

(iii) Not be older than compulsory 

school age. 

(3) For Migrant or Seasonal Head 

Start, a child must be younger than 

compulsory school age by the date used 

to determine public school eligibility for 

the community in which the program is 

located. 

(c) Income eligibility requirements. (1) 

A pregnant woman or a child is eligible, 

if: 

(i) The family’s income is equal to or 

below the poverty line; or, 

(ii) The family is eligible or, in the 

absence of child care, would be 

potentially eligible for public assistance. 

(2) If the family’s income is above the 

poverty line, a program may enroll a 

pregnant woman or a child who would 

benefit from services. These participants 

can only make up to 10 percent of a 

program’s enrollment in accordance 

with paragraph (d) of this section. 

(d) Additional allowances for 

programs. (1) A program may enroll an 

additional 35 percent of participants 

whose families are neither income nor 

categorically eligible and whose family 

incomes are below 130 percent of the 

poverty line, if the program: 

(i) Establishes and implements 

outreach, and enrollment policies and 

procedures to ensure it is meeting the 

needs of income or categorically eligible 

pregnant women, children, and children 

with disabilities, before serving 

ineligible pregnant women or children; 

and 

(ii) Establishes criteria that ensures 

eligible pregnant women and children 

are served first. 

(2) If a program chooses to enroll 

participants, who are neither income 

nor categorically eligible, and whose 

family incomes are between 100 and 

130 percent of the poverty line, it must 

be able to report to the Head Start 

Regional Program Office: 

(i) How it is meeting the needs of lowincome families or families potentially 

eligible for public assistance, homeless 

children, and children in foster care, 

and include local demographic data on 

these populations; 

(ii) Outreach and enrollment policies 

and procedures that ensure it is meeting 

the needs of income eligible or 

categorically eligible children or 

pregnant women, before serving overincome children or pregnant women; 

(iii) Efforts, including outreach, to be 

fully enrolled with income eligible or 

categorically eligible pregnant women 

or children; 

(iv) Policies, procedures, and 

selection criteria it uses to serve eligible 

children; 

(v) Its current enrollment and its 

enrollment for the previous year; 

(vi) The number of pregnant women 

and children served, disaggregated by 

whether they are either income or 

categorically eligible or meet the overincome requirements of paragraph (c)(2) 

of this section; and, 

(vii) The eligibility criteria category of 

each child on the program’s waiting list. 

(e) Additional Allowances for Indian 

tribes. (1) Notwithstanding paragraph 

(c)(2) of this section, a tribal Head Start 

or Early Head Start program may fill 

more than10 percent of its enrollment 

with participants whose family incomes 

exceed the low-income guidelines or 

who are not categorically eligible, if: 

(i) The program has served all 

pregnant women or children who wish 

to be enrolled from Indian and nonIndian families living on the reservation 

who either meet low-income guidelines 

or who are categorically eligible; 

(ii) The program has served all 

pregnant women or children who wish 

to be enrolled from income-eligible or 

categorically-eligible Indian families 

native to the reservation, but living in 

non-reservation areas the tribe has 

approved as part of its service area; 

(iii) The tribe has resources within its 

grant or from other non-Federal sources, 

without using additional funds from 

HHS intended to expand Early Head 

Start or Head Start services, to enroll 

pregnant women or children whose 

family incomes exceed low-income 

guidelines or who are not categorically 

eligible; and, 

(iv) At least 51 percent of the 

program’s participants are either income 

or categorically eligible. 

(2) If another Early Head Start or Head 

Start program does not serve a nonreservation area, the program must serve 

all income-eligible and categoricallyeligible Indian and non-Indian pregnant 

women or children who wish to enroll 

before serving over-income pregnant 

women or children. 

(3) A program that meets the 

conditions of this paragraph must 

annually set criteria that are approved 

by the policy council and the tribal 

council for selecting over-income 

pregnant women or children who would 

benefit from Early Head Start or Head 

Start services. 

(f) Categorical eligibility requirements. 

(1) A family is categorically eligible for 

Head Start, if: 

(i) The child is homeless, as defined 

in § 1305.2; or, 

(ii) The child is in foster care, as 

defined in § 1305.2. 

(2) If a program determines a child is 

categorically eligible under paragraph 

(f)(1)(i) of this section, it must allow the 

child to attend a Head Start program, 

without immunization and other 

medical records, proof of residency, 

birth certificates, or other documents. 


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Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 7379 

The program must give the family 

reasonable time to present these 

documents. 

(g) Migrant or Seasonal eligibility 

requirements. A child is eligible for 

Migrant or Seasonal Head Start, if: 

(1) The family meets an income 

eligibility requirement in paragraph (c) 

of this section; or 

(2) The family meets a categorical 

requirement in paragraph (f) of this 

section; and 

(3) The family’s income comes 

primarily from agricultural work. 

(h) Verifying age. Program staff must 

verify a child’s age according to program 

policies and procedures. A program’s 

policies and procedures cannot require 

staff to collect documents that confirm 

a child’s age, if doing so creates a barrier 

for the family to enroll the child. 

(i) Verifying income. (1) If the family 

can provide all W–2 forms, pay stubs, or 

pay envelopes for the relevant time 

period, program staff must: 

(i) Use all family income for the 

relevant time period to determine 

eligibility according to income 

guidelines; 

(ii) State the family income for the 

relevant time period; and 

(iii) State whether the pregnant 

woman or child qualifies as lowincome. 

(2) If the family cannot provide all W– 

2 forms, pay stubs, or pay envelopes for 

the relevant time period, program staff 

may accept written statements from 

employers for the relevant time period 

and use information provided to 

calculate total annual income with 

appropriate multipliers. 

(3) If the family reports no income for 

the relevant time period, a program 

may: 

(i) Accept the family’s signed 

declaration to that effect, if program 

staff: 

(A) Describes efforts made to verify 

the family’s income; and, 

(B) Explains how the family’s total 

income was calculated; or, 

(ii) Seeks information from third 

parties about the family’s eligibility, if 

the family gives written consent. If a 

family gives consent to contact third 

parties, program staff must adhere to 

program safety and privacy policies and 

procedures and ensure the eligibility 

determination record adheres to 

paragraph (l)(2)(ii)(C) in this section. 

(4) If a child moves from an Early 

Head Start program to a Head Start 

program, program staff must verify the 

family’s income again. 

(5) If the family can demonstrate a 

significant change in income for the 

relevant time period, program staff may 

consider current income circumstances. 

(j) Verifying categorical eligibility. (1) 

A family can prove categorical 

eligibility, with: 

(i) A court order or other legal or 

government-issued document or a 

written statement from a government 

child welfare official demonstrating the 

child is in foster care; 

(ii) A written statement from a 

homeless services provider, school 

personnel, or other service agency 

attesting that the child is homeless or 

any other documentation that indicates 

homelessness, including documentation 

from a public or private agency, a 

declaration, information gathered on 

enrollment or application forms, or 

notes from an interview with staff to 

establish the child is homeless, as 

defined in § 1305.2 or, 

(iii) Any other document that 

establishes categorical eligibility. 

(2) If a family can provide one of 

documents described in paragraph (j)(1) 

of this section, program staff must: 

(i) Describe efforts made to verify the 

accuracy of the information provided; 

and, 

(ii) State whether the family is 

categorically eligible. 

(3) If a family cannot provide one of 

the documents described in paragraph 

(j)(1) of this section to prove the child 

is homeless, a program may accept the 

family’s signed declaration to that effect, 

if, in a written statement, program staff: 

(i) Describes the efforts made to verify 

that a child is homeless, as defined in 

§ 1305.2; and, 

(ii) Describes the child’s living 

situation, including the specific 

condition described in § 1305.2 under 

which the child was determined to be 

homeless. 

(4) Program staff may seek 

information from third parties who have 

first-hand knowledge about a family’s 

categorical eligibility, if the family gives 

consent. If the family gives consent to 

contact third parties, program staff must 

adhere to program safety and privacy 

policies and procedures and ensure the 

eligibility determination record adheres 

to paragraph (l) (2)(ii)(C) in this section. 

(k) Eligibility duration. (1) If a child is 

determined eligible under this section 

and is participating in a Head Start 

program, he or she will remain eligible 

through the end of the succeeding 

program year. 

(2) If a program operates both an Early 

Head Start and a Head Start program, 

and the parents wish to enroll their 

child who has been enrolled in the 

program’s Early Head Start, the program 

must ensure, whenever possible, the 

child receives Head Start services until 

enrolled in school. 

(l) Records. (1) A program must keep 

eligibility determination records for 

each participant and on-going training 

records for program staffs. A program 

may keep these records electronically. 

(2) Each eligibility determination 

record must include: 

(i) Copies of any documents or 

statements, including declarations, that 

are deemed necessary to verify 

eligibility under paragraphs (h) through 

(j) of this section; 

(ii) A statement that program staff has 

made reasonable efforts to verify 

information by: 

(A) Conducting either an in-person, or 

a telephonic interview with the family 

as described under paragraph (a) of this 

section; 

(B) Describing efforts made to verify 

eligibility, as required under paragraphs 

(h) through (j) of this section; and, 

(C) Collecting documents required for 

third party verification under 

paragraphs (i)(3)(ii) and (j)(4) of this 

section, that includes: 

(1) The family’s written consent to 

contact each third party; 

(2) The third parties’ names, titles, 

and affiliations; and, 

(3) Information from third parties 

regarding the family’s eligibility. 

(iii) A statement that identifies 

whether: 

(A) The family’s income is below 

income guidelines for its size, and lists 

the family’s size; 

(B) The family is eligible for or, in the 

absence of child care, potentially 

eligible for public assistance; 

(C) The child is homeless child, as 

defined at § 1305.2 including the 

specific condition described in § 1305.2 

under which the child was determined 

to be homeless; 

(D) The child is in foster care; 

(E) The family meets the over-income 

requirement in paragraph (c)(2) of this 

section; or, 

(F) The family meets alternative 

criteria under paragraph (d) of this 

section. 

(3) A program must keep eligibility 

determination records: 

(i) For those currently enrolled, as 

long as they are enrolled; and, 

(ii) For one year after they have either 

stopped receiving services; or, 

(iii) Are no longer enrolled. 

(m) Program policies and procedures 

on violating eligibility determination 

regulations. A program must establish 

policies and procedures that describe all 

actions taken against staff who 

intentionally violate Federal and 

program eligibility determination 

regulations and who enroll pregnant 

women and children that are not 

eligible to receive Early Head Start or 

Head Start services. 


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7380 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

(n) Training. (1) A program must train 

all governing body, policy council, 

management, and staff who determine 

eligibility on applicable Federal 

regulations and program policies and 

procedures. Training must, at a 

minimum: 

(i) Include methods on how to collect 

complete and accurate eligibility 

information from families and third 

party sources; 

(ii) Incorporate strategies for treating 

families with dignity and respect and 

for dealing with possible issues of 

domestic violence, stigma, and privacy; 

and, 

(iii) Explain program policies and 

procedures that describe actions taken 

against staff, families, or participants 

who intentionally attempt to provide or 

provide false information. 

(2) A program must train management 

and staff members who make eligibility 

determinations within 90 days 

following the effective date of this rule, 

and as soon as possible, but within 90 

days of hiring new staff after the initial 

training has been conducted. 

(3) A program must train all governing 

body and policy council members 

within 180 days following the effective 

date of this rule, and within 180 days of 

the beginning of the term of a new 

governing body or policy council 

member after the initial training has 

been conducted. 

(4) A program must develop policies 

on how often training will be provided 

after the initial training. 

[FR Doc. 2015–02491 Filed 2–9–15; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 130321272–5109–03] 

RIN 0648–XC589 

Listing Endangered or Threatened 

Species: Amendment to the 

Endangered Species Act Listing of the 

Southern Resident Killer Whale 

Distinct Population Segment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: On January 25, 2013, we, 

NMFS, received a petition submitted by 

the People for the Ethical Treatment of 

Animals Foundation to remove the 

exclusion of captive animals from the 

endangered species listing of Southern 

Resident killer whale DPS, as well as, 

recognize the captive killer whale 

(Orcinus orca) ‘‘Lolita’’ as a protected 

member of the endangered Southern 

Resident killer whale Distinct 

Population Segment (DPS). We 

completed a status review and 

published a proposed rule, and we are 

now amending the regulatory language 

of the Endangered Species Act (ESA) 

listing of the DPS by removing the 

exclusion for captive members of the 

population. We have further determined 

that Lolita, a female killer whale 

captured from the Southern Resident 

killer whale population in 1970 who 

resides at the Miami Seaquarium in 

Miami, Florida, is not excluded from the 

Southern Resident killer whale DPS due 

to her captive status. 

We proposed to amend the regulatory 

language of the ESA listing to remove 

the exclusion for captive whales from 

the Southern Resident killer whale DPS 

on January 27, 2014. Additionally, we 

solicited scientific and commercial 

information pertaining to the proposed 

rule and also conducted a peer review 

of the status review information on 

Lolita that informed the proposed rule. 

We have determined that captive 

members of the Southern Resident killer 

whale population should be included in 

the listed Southern Resident killer 

whale DPS. This rule amends the 

regulatory language of the listing to 

remove the exclusion for captive 

members of the DPS. 

DATES: This final rule becomes effective 

on May 11, 2015. 

ADDRESSES: Information supporting this 

final rule can be found on our Web site 

at: http://

www.westcoast.fisheries.noaa.gov/

protected_species/marine_mammals/

killer_whale/lolita_petition.html. 

Or in our office at: 

• Protected Resources Division, 

NMFS, Northwest Region, Protected 

Resources Division, 7600 Sand Point 

Way NE., Attention Lynne Barre, Branch 

Chief. 

FOR FURTHER INFORMATION CONTACT: 

Lynne Barre, NMFS Northwest Region, 

(206) 526–4745; Marta Nammack, NMFS 

Office of Protected Resources, (301) 

427–8469. 

SUPPLEMENTARY INFORMATION: 

ESA Statutory Provisions and Policy 

Considerations 

On January 25, 2013, we received a 

petition submitted by the People for the 

Ethical Treatment of Animals 

Foundation on behalf of the Animal 

Legal Defense Fund, Orca Network, 

Howard Garrett, Shelby Proie, Karen 

Munro, and Patricia Sykes to remove the 

exclusion of captive whales from the 

SRKW DPS ESA listing and to include 

the killer whale known as Lolita in the 

ESA listing of the Southern Resident 

killer whales. Lolita is a female killer 

whale captured from the Southern 

Resident population in 1970, who 

currently resides at the Miami 

Seaquarium in Miami, Florida. Copies 

of the petition are available upon 

request (see ADDRESSES, above). 

In accordance with section 4(b)(3)(A) 

of the ESA, to the maximum extent 

practicable within 90 days of receipt of 

a petition to list, reclassify, or delist a 

species, the Secretary of Commerce is 

required to make a finding on whether 

that petition presents substantial 

scientific or commercial information 

indicating that the petitioned action 

may be warranted, and to promptly 

publish such finding in the Federal 

Register (16 U.S.C. 1533(b)(3)(A)). The 

Secretary of Commerce has delegated 

this duty to NMFS. If we find that the 

petition presents substantial 

information indicating that the 

petitioned action may be warranted, we 

must commence a review of the status 

of the species concerned, during which 

we will conduct a comprehensive 

review of the best available scientific 

and commercial information. On April 

29, 2013 we made a finding (78 FR 

25044) that there was sufficient 

information indicating that the 

petitioned action may be warranted and 

requested comments to inform a status 

review. 

After accepting a petition and 

initiating a status review, within 12 

months of receipt of the petition we 

must conclude the review with a 

determination that the petitioned action 

is not warranted, or a proposed 

determination that the action is 

warranted. Under specific facts, we may 

also issue a determination that the 

action is warranted but precluded. On 

January 27, 2014 we made a finding (79 

FR 4313) that the petitioned action to 

remove the exclusion of captive killer 

whales from the ESA listing of the 

Southern Resident killer whale DPS and 

to include captive killer whales in the 

ESA listing of the Southern Resident 

killer whale DPS was warranted and 

proposed to amend the regulatory 

language describing the DPS by 

removing the current exclusion for 

captive whales. Within 12 months of 

issuing a proposed rule on a listing 

determination, we must publish a final 

regulation to implement the 

determination or publish a notice 

extending the 12-month period. This 

notice is a final rule to implement our 


rljohnson on DSK3VPTVN1PROD with RULES