34328 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

(5) An individual being monitored to

assess the response to or efficacy of an

FDA-approved osteoporosis drug

therapy.

(e) Denial as not reasonable and

necessary. If HCFA determines that a

bone mass measurement does not meet

the conditions for coverage in

paragraphs (b) or (d) of this section, or

the standards on frequency of coverage

in paragraph (c) of this section, it is

excluded from Medicare coverage as not

‘‘reasonable’’ and ‘‘necessary’’ under

section 1862(a)(1)(A) of the Act and

§ 411.15(k) of this chapter.

PART 414—PAYMENT FOR PART B

MEDICAL AND OTHER HEALTH

SERVICES

B. Part 414 is amended to read as

follows:

1. The authority citation for part 414

continues to read as follows:

Authority: Sections 1102, 1871, and

1881(b)(1) of the Social Security Act (42

U.S.C. 1302, 1395hh, and 1395rr(b)(1)).

2. In § 414.2, in the definition of

‘‘Physician services’’, a new paragraph

(7) is added to read as follows:

§ 414.2 Definitions.

* * * * *

Physician services * * *

(7) Bone mass measurement.

* * * * *

§ 414.50 [Amended]

3. In § 414.50(a), in the first sentence,

revise ‘‘If a’’ to read ‘‘For services

covered under section 1861(s)(3) of the

Act and paid for under this part 414

subpart A, if a’’.

(Catalog of Federal Domestic Assistance

Program No. 93.774, Medicare—

Supplementary Medical Insurance Program)

Dated: June 3, 1998.

Nancy-Ann Min DeParle,

Administrator, Health Care Financing

Administration.

Dated: June 9, 1998.

Donna E. Shalala,

Secretary.

[FR Doc. 98–16783 Filed 6–19–98; 3:00 pm]

BILLING CODE 4120–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Administration for Children and

Families

45 CFR Part 1302

RIN 0970–AB52

Head Start Program

AGENCY: Administration on Children,

Youth and Families (ACYF),

Administration for Children and

Families (ACF), HHS.

ACTION: Final rule.

SUMMARY: The Administration on

Children, Youth and Families is issuing

this final rule to amend its procedures

regarding replacement of Indian tribal

grantees. The change would add

provisions to implement a new statutory

provision that allows Indian tribes

which are Head Start grantees to

identify an agency, and request that the

agency be designated by the Department

as an alternative grantee, when the

grantee is terminated or denied

refunding.

EFFECTIVE DATES: The effective date of

this final rule is July 24, 1998.

FOR FURTHER INFORMATION CONTACT:

Douglas Klafehn, Deputy Associate

Commissioner, Head Start Bureau,

Administration for Children, Youth and

Families, P.O. Box 1182, Washington,

D.C. 20013; (202) 205–8572.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

Head Start is authorized under the

Head Start Act (42 U.S.C. 9801 et seq.).

It is a national program providing

comprehensive developmental services

primarily to low-income preschool

children, age three to the age of

compulsory school attendance, and

their families. In addition, Section 645A

of the Head Start Act provides authority

to fund programs for families with

infants and toddlers, known as Early

Head Start programs. To help enrolled

children achieve their full potential,

Head Start programs provide

comprehensive health, nutritional,

educational, social and other services.

Additionally, Head Start programs are

required to provide for the direct

participation of the parents of enrolled

children in the development, conduct,

and direction of local programs. Parents

also receive training and education to

foster their understanding of and

involvement in the development of their

children. In fiscal year 1997, Head Start

served 793,809 children through a

network of over 2,000 grantees and

delegate agencies.

While Head Start is intended to serve

primarily children whose families have

incomes at or below the poverty line, or

who receive public assistance, the Head

Start Act and implementing regulations

permit up to 10 percent (and more for

Indian tribes under certain

circumstances) of the children in local

programs to be from families who do not

meet these low-income criteria. The Act

also requires that a minimum of 10

percent of the enrollment opportunities

in each program be made available to

children with disabilities. Such children

are expected to participate in the full

range of Head Start services and

activities with their non-disabled peers

and to receive needed special education

and related services.

II. Summary of the Final Rule

This final rule was published as a

Notice of Proposed Rulemaking on

December 16, 1997, in the Federal

Register (62 FR 65778). We received no

comments on the rule and therefore are

issuing it as final with no changes.

The authority for this final rule is

section 646 of the Head Start Act (42

U.S.C. 9841), as amended by Public Law

103–252, Title I of the Human Service

Amendments of 1994. Section 646(e)

directs the Secretary to specify a process

by which an Indian tribe may identify

an agency, and request that the agency

identified be designated as the Head

Start agency providing services to the

tribe, if (a) financial assistance to the

tribal grantee is terminated, and (b) the

tribe would otherwise be precluded

from providing Head Start services to its

members because of the termination.

The Act specifies that the regulation

must prohibit the designation as Head

Start grantee of an agency that includes

an employee who served on the

administrative or program staff of the

terminated agency when that employee

was responsible for a deficiency that

was the basis for the termination.

The final rule:

• Adds a new definition for Indian

tribe;

• Provides that an Indian tribe may

identify an agency to serve as the

alternative grantee at the time that it

receives a notice of termination or a

notice of denial of refunding;

• Allows the tribe to participate in

the selection of the replacement grantee;

and

• Allows the tribe a second

opportunity to identify an alternative

agency if the Department finds the first

agency identified by the tribe is not an

eligible agency capable of operating a

Head Start program. If the second

agency identified by the tribe is not

selected as a Head Start grantee, a
Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations 34329

replacement grantee will be designated

under 45 CFR Part 1302.

III. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that

regulations be drafted to ensure that

they are consistent with the priorities

and principles set forth in the Executive

Order. The Department has determined

that this final rule is consistent with

these priorities and principles. This

final rule sets forth a process whereby

an Indian tribe that is being terminated

as a Head Start grantee may identify an

alternative agency and request that the

alternative agency be designated as the

Head Start agency providing services to

the tribe. The costs of implementing this

rule are not significant.

Regulatory Flexibility Act of 1980

The Regulatory Flexibility Act (5

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

Government to anticipate and reduce

the impact of rules and paperwork

requirements on small businesses. For

each rule with a ‘‘significant economic

impact on a substantial number of small

entities’’ an analysis must be prepared

describing the rule’s impact on small

entities. Small entities are defined by

the Act to include small businesses,

small non-profit organizations and small

governmental entities. While these

regulations would affect small entities,

they would not affect a substantial

number. Also, the rule will not have a

significant economic impact because the

only action called for is to nominate a

successor grantee, which should not

require more than a nominal

expenditure of grant funds. For this

reason, the Secretary certifies that this

rule will not have a significant impact

on substantial numbers of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995, Public Law 104–13, all

Departments are required to submit

collections of information contained in

proposed and final rules published in

the Federal Register to the Office of

Management and Budget for review and

approval. This final rule does not

contain collection of information as

defined in the Paperwork Reduction Act

and implementing regulations.

List of Subjects in 45 CFR Part 1302

Education of disadvantaged, Grant

programs—social programs, Selection of

grantees.

(Catalog of Federal Domestic Assistance

Program Number 93.600, Project Head Start)

Dated: June 2, 1998.

Olivia A. Golden,

Assistant Secretary for Children and Families.

For the reasons set forth in the

Preamble, 45 CFR Part 1302 is amended

as follows:

PART 1302—POLICIES AND

PROCEDURES FOR SELECTION,

INITIAL FUNDING, AND REFUNDING

OF HEAD START GRANTEES, AND

FOR SELECTION OF REPLACEMENT

GRANTEES

1. The Authority citation for part 1302

continues to read as follows:

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

2. Section 1302.2 is amended by

adding a definition for ‘‘Indian Tribe’’ to

read as follows:

§ 1302.2 Definitions.

* * * * *

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.

* * * * *

3. A new Subpart D, containing new

sections 1302.30, 1302.31, and 1302.32,

is added to read as follows:

Subpart D—Replacement of Indian

Tribal Grantees

§ 1302.30 Procedure for identification of

alternative agency.

(a) An Indian tribe whose Head Start

grant has been terminated, or which has

been denied refunding as a Head Start

grantee, may identify an agency and

request the responsible HHS official to

designate such agency as an alternative

agency to provide Head Start services to

the tribe if:

(1) The tribe was the only agency that

was receiving federal financial

assistance to provide Head Start services

to members of the tribe; and

(2) The tribe would be otherwise

precluded from providing such services

to its members because of the

termination or denial of refunding. (b)(1) The responsible HHS official,

when notifying a tribal grantee of the

intent to terminate financial assistance

or deny its application for refunding,

must notify the grantee that it may

identify an agency and request that the

agency serve as the alternative agency in

the event that the grant is terminated or

refunding denied. (2) The tribe must identify the

alternate agency to the responsible HHS

official, in writing, within the time for

filing an appeal under 45 CFR Part 1303.

(3) The responsible HHS official will

notify the tribe, in writing, whether the

alternative agency proposed by the tribe

is found to be eligible for Head Start

funding and capable of operating a Head

Start program. If the alternative agency

identified by the tribe is not an eligible

agency capable of operating a Head Start

program, the tribe will have 15 days

from the date of the sending of the

notification to that effect from the

responsible HHS official to identify

another agency and request that the

agency be designated. The responsible

HHS official will notify the tribe in

writing whether the second proposed

alternate agency is found to be an

eligible agency capable of operating the

Head Start program.

(4) If the tribe does not identify a

suitable alternative agency, a

replacement grantee will be designated

under these regulations.

(c) If the tribe appeals a termination

of financial assistance or a denial of

refunding, it will, consistent with the

terms of 45 CFR Part 1303, continue to

be funded pending resolution of the

appeal. However, the responsible HHS

official and the grantee will proceed

with the steps outlined in this

regulation during the appeal process.

(d) If the tribe does not identify an

agency and request that the agency be

appointed as the alternative agency, the

responsible HHS official will seek a

permanent replacement grantee under

these regulations.

§ 1302.31 Requirements of alternative

agency.

The agency identified by the Indian

tribe must establish that it meets all

requirements established by the Head

Start Act and these requirements for

designation as a Head Start grantee and

that it is capable of conducting a Head

Start program. The responsible HHS

official, in deciding whether to

designate the proposed agency, will

analyze the capacity and experience of

the agency according to the criteria

found in section 641(d) of the Head

Start Act and §§ 1302.10 (b)(1) through

(5) and 1302.11 of this part.

§ 1302.32 Alternative agency—prohibition.

(a) No agency will be designated as

the alternative agency pursuant to this

subpart if the agency includes an

employee who:

(1) Served on the administrative or

program staff of the Indian tribal

grantee, and

(2) Was responsible for a deficiency

that:

(i) Relates to the performance

standards or financial management
34330 Federal Register / Vol. 63, No. 121 /Wednesday, June 24, 1998 /Rules and Regulations

1Parenthetical text is only appropriate for

vehicles with a factory-installed on-off switch.

2While the final rule includes a definition of

‘‘smart passenger air bags’’, the agency is currently

working on a rulemaking which will replace this

definition with a definition of ‘‘advanced air bags’’.

3Cf., letter to Hank Thorp, Inc., August 7, 1973

(FMVSS No. 211); letter to Joseph Lucas North

America, Inc., October 6, 1975 (FMVSS No. 106).

standards described in the Head Start

Act; and

(ii) Was the basis for the termination

or denial of refunding described in

§ 1302.30 of this part.

(b) The responsible HHS official shall

determine whether an employee was

responsible for a deficiency within the

meaning and context of this section.

[FR Doc. 98–16826 Filed 6–23–98; 8:45 am]

BILLING CODE 4184–01–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety

Administration

49 CFR Part 571

[Docket No. NHTSA–98–3968, Notice 1]

RIN 2127–AG14

Federal Motor Vehicle Safety

Standards; Occupant Crash Protection

AGENCY: National Highway Traffic

Safety Administration (NHTSA),

Department of Transportation.

ACTION: Response to petitions for

reconsideration.

SUMMARY: This action denies four

petitions for reconsideration of

NHTSA’s final rule and correcting

amendments concerning air bag warning

labels. The rule requires vehicles with

air bags to bear three new, attentiongetting warning labels. Two of the labels

replace previous labels on the sun visor

and the third is a new temporary (i.e.,

removable) label located on the vehicle

dash.

SUPPLEMENTARY INFORMATION:

I. Background

NHTSA published a final rule

amending Federal Motor Vehicle Safety

Standard (FMVSS) No. 208, Occupant

Crash Protection’’, on November 27,

1996 (61 FR 60206). The rule requires

vehicles with air bags to bear three new,

attention-getting warning labels. Two of

the labels replace previous labels on the

sun visor and the third is a new

removable label located on the vehicle

dash. Under the final rule, the labels on

the sun visors in vehicles produced after

February 25, 1997, are required to state:

WARNING: DEATH or SERIOUS INJURY

can occur. Children 12 and under can be

killed by the air bag. The BACK SEAT is the

SAFEST place for children. NEVER put a

rear-facing child seat in the front (unless air

bag is off) 1. Sit back as far as possible from

the air bag. ALWAYS use SEAT BELTS and

CHILD RESTRAINTS.

The removable label on the dash must

state:

WARNING: Children May Be KILLED or

INJURED by Passenger Air Bag. The back seat

is the safest place for children 12 and under.

Make sure all children use seat belts or child

seats.

The rule excludes vehicles with smart

passenger air bags, as those devices are

defined in the regulatory text made part

of the final rule.2

Subsequent to the final rule, NHTSA

published three correcting or technical

amendments. On December 4, 1996, the

agency published a correcting

amendment allowing manufacturers of

vehicles without passenger-side air bags

to omit the required warning language

concerning hazards to children from air

bags (61 FR 64297). A second correcting

amendment was issued on December 11,

1996 that allowed manufacturers of

vehicles with no back seat to omit the

required warning language stating that

children are safest in the back seat (61

FR 57187). On January 2, 1997, NHTSA

published a technical amendment

correcting a typographical error by

changing the word ‘‘may’’ to ‘‘can’’ in

the temporary warning label (62 FR 31).

II. Summary of Petitions

NHTSA received three petitions for

reconsideration of the November 27,

1996 final rule. Meyercord, a label

manufacturer, petitioned for a definition

of the term ‘‘permanently affixed’’ as

used in the standard. The Parent’s

Coalition for Air Bag Warnings asked for

the definition of ‘‘smart passenger air

bag’’ to be refined to include air bags

that do not deploy if the passenger seat

is occupied by an individual weighing

130 pounds or less rather than 66

pounds or less. AAMA requested an

amendment allowing the new air bag

warning label and the utility vehicle

rollover warning label required under

49 CFR section 575.105 to be on the

same side of the sun visor.

The agency received one petition for

reconsideration of the December 11,

1996 correcting amendment. AAMA

asked that the required warning

language regarding children and the

back seat be changed from ‘‘The BACK

SEAT is the SAFEST place for children’’

to ‘‘If the vehicle has a BACK SEAT,

that seat is the SAFEST place for

children’’. Under AAMA’s petition, all

vehicles, including those without a back

seat, would be required to use its

proposed language in the warning

labels.

III. Discussion of Issues

A. Petitions for Reconsideration of the

November 27, 1996 Final Rule

1. Meyercord

Meyercord petitioned the agency to

‘‘require that the air bag warning

graphics pass specifications to ensure

that the important message does in fact

remain ‘‘permanently affixed.’’

Meyercord maintains that there is

consensus in the automotive industry

that labels which are ‘‘permanently

affixed’’ ‘‘should last the life of the

vehicle and that any attempt to remove

it would result in the base material

being cut or gouged in some way.’’

According to Meyercord, only heat

transfer graphics can meet this

definition of ‘‘permanently affixed’’.

Sticker graphics, Meyercord avers, can

be peeled away. The company included

in its petition a photograph of a sun

visor with a peeling sticker graphic and

Ford’s 15-page Engineering Material

Specification No. WSS–M7G7–B1,

which it believes will assist the agency

in defining a level of adhesiveness.

Meyercord’s petition is denied.

Following its practice in other NHTSA

regulations where the term

‘‘permanently affixed’’ is also used,

NHTSA did not define ‘‘permanently

affixed’’ when it added the term to

Standard No. 208. NHTSA has not

found a definition necessary in those

other regulations. When asked, NHTSA

has issued an interpretation of the

term.3 Specifically, NHTSA has said

that a label is permanent if it cannot be

removed without destroying or defacing

it and that the label should remain

legible for the expected life of the

product under normal conditions.

NHTSA does not know the context

under which the label depicted in the

photograph submitted by Meyercord

began to peel away from the sun visor.

NHTSA surmises that the vehicle was

probably within its expected lifespan,

given the time when such labels were

first required on motor vehicles. Absent

the existence of abnormal conditions in

the history of the vehicle, the

photograph might be an indication of a

noncompliance with Standard No. 208.

In such an instance, the existence of a

performance test is not necessary to

enforce the requirement for permanently

affixing a label.