Billing Code: 4184-87
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 98
RIN 0970-AD11
Increase Flexibility for Tribes in Child Care and Development Fund (CCDF) Eligibility
AGENCY: Office of Child Care (OCC), Administration for Children and Families (ACF),
Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
SUMMARY: The Department of Health and Human Services, Administration for Children and
Families proposes to amend the Child Care and Development Fund (CCDF) regulations through
this notice of proposed rulemaking (NPRM) to allow all Indian Tribes and Tribal Organizations
operating CCDF programs, at their discretion, to establish and use eligibility criteria regardless
of family income.
DATES: In order to be considered, written comments on this proposed rule must be received on
or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL
REGISTER].
ADDRESSES: You may submit comments, identified by docket number ACF-2024-0010
and/or RIN number 0970-AD11, to the Federal eRulemaking Portal:
https://www.regulations.gov. Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name and docket number or RIN
number for this rulemaking. All comments received are a part of the public record and will be
posted for public viewing on www.regulations.gov, without change. That means all personal
identifying information (such as name or address) will be publicly accessible. Please do not
submit confidential information, or otherwise sensitive or protected information. We accept
anonymous comments. If you wish to remain anonymous, enter “N/A” in the required fields.

Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the
rulemaking docket, including any background documents and the plain-language summary of the
proposed rule of not more than 100 words in length required by the Providing Accountability
Through Transparency Act of 2023, 5 U.S.C. 553(b)(4).
FOR FURTHER INFORMATION CONTACT: Megan Campbell, Office of Child Care, 202690-6499 or megan.campbell@acf.hhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
Effective Dates
Severability
II. Statutory Authority
III. Discussion of Proposed Changes
IV. Regulatory Process Matters
Paperwork Reduction Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Executive Order 13132
Assessment of Federal Regulations and Policies on Families
Regulatory Review
VI. Tribal Consultation Statement
List of Subjects in 45 CFR Part 98

I. Background
In response to requests from Tribal Child Care and Development Fund (CCDF) Lead
Agencies for more flexibility on family income eligibility to better meet community needs and to
recent statutory changes to eligibility in the Tribal Head Start program, this NPRM proposes a
regulatory change to allow all Tribal CCDF Lead Agencies to serve Indian children (as defined
by the Tribal Lead Agency) in their service area regardless of family income or assets. This

NPRM is also responsive to Executive Order 14112, Reforming Federal Funding and Support
for Tribal Nations To Better Embrace Our Trust Responsibilities and Promote the Next Era of
Tribal Self-Determination, which directs agencies to “increase the accessibility, equity,
flexibility, and utility of Federal funding.” This proposal will provide Tribal Nations with more
flexibility to better meet community needs, address calls for greater Tribal sovereignty, and
facilitate better alignment between Tribal CCDF and Tribal Head Start programs.
The Child Care and Development Block Grant Act (42 U.S.C. 9857 et seq.), hereafter
referred to as the “Act,” together with section 418 of the Social Security Act (42 U.S.C. 618)
authorize CCDF, which is the primary Federal funding source to Tribes, States, and Territories
devoted to supporting families with low incomes access to child care and to increasing the
quality of child care for all children. CCDF plays a vital role in supporting child development
and family well-being, facilitating parent employment, training, and education, and improving
the economic well-being of participating families. In FY 2024, 264 Tribal Lead Agencies
representing 546 federally recognized Tribal Nations received CCDF grants totaling $600
million.1 Annual Tribal CCDF awards range from $70,000 to $88 million per year.
The Act does not explicitly apply most of its provisions to the Tribal CCDF program, so
with some exceptions and within certain parameters, the Secretary of Health and Human
Services has the authority to determine many of the CCDF requirements for Tribal Lead
Agencies, including the family income eligibility requirements for children to receive services
from Tribal CCDF programs. Current Tribal CCDF regulations at 45 CFR 98.81(b)(1) include
different family income eligibility requirements and flexibilities based on a Tribe’s award
allocation size in FY 2016. Tribes who had allocations under $250,000 in 2016 (155 Tribal Lead
Agencies) may serve any Indian child (as defined by the Tribal Lead Agency) in the defined
service area, regardless of family income or assets. However, Tribal Lead Agencies who had

https://www.acf.hhs.gov/occ/data/gy-2024-ccdf-tribal-allocations-based-appropriations.

allocations above $250,000 in 2016 are subject to the same CCDF income eligibility standard as
States, set forth at 45 CFR 98.20(a)(2) - family income cannot be more than 85 percent of
Grantee Median Income and the family must pass an asset test.
This proposed rule would provide the 109 Tribal Lead Agencies with medium and large
allocations the flexibility to disregard family income and assets in determining family eligibility
for CCDF. This would extend the flexibility Tribes with smaller allocations have to disregard
family income to all Tribal CCDF Lead Agencies. Tribes, at their discretion, could continue to
choose to use family income criteria for eligibility, but this would no longer be a requirement.
This proposal does not alter existing flexibilities that permit Tribal Lead Agencies to apply
categorical eligibility criteria for families under certain conditions.
Tribal Nations have requested greater flexibility for CCDF family income eligibility.
Tribes report the rules do not provide the flexibility necessary for Tribal Nations to implement
CCDF programs in ways that best meet the needs of the children and families in their
communities. The significant variation between Tribal Nation child care needs, infrastructure,
and location as well as the individuality of the 546 federally-recognized Tribal Nations receiving
CCDF make the 85 percent grantee median income eligibility threshold poorly suited to Tribal
Nations, hindering their ability to effectively and efficiently using CCDF to serve children and
families. OCC recently sought feedback from Tribal Nations and other interested parties on areas
where more flexibility and/or different program rules would better serve children, families, and
Tribal Nations through a formal Request for Information (RFI), published in the Federal
Register at 88 FR 48409 (July 27, 2023). Throughout the RFI feedback process and other
feedback processes, Tribal Lead Agencies expressed appreciation for many CCDF flexibilities
but explained current categorical eligibility rules were complicated, burdensome, and too limited
and that standard family income eligibility rules were too narrow to meet community needs.

Many Tribal Lead Agencies expressed support for changing eligibility requirements so they can
serve Indian children (as defined by the Tribal Lead Agency), regardless of family income.
This proposal will also benefit Tribal Nations by better aligning family income eligibility
rules in the Tribal CCDF and Head Start programs. At the request of Tribal Nations and the
Biden-Harris Administration, the Further Consolidated Appropriations Act, 2024 (Pub. L. 11847) included a legislative change to section 645 of the Head Start Act, 42 U.S.C. 6840, to allow
Tribal Head Start programs to serve children in their service area regardless of family income.
The Head Start Act, unlike the CCDBG Act, required legislative action to make this change. This
important new Head Start flexibility better supports Tribal sovereignty and allows Tribal Head
Start programs to better meet the needs of children and families in their communities. However,
it inadvertently makes CCDF more restrictive than Head Start, creating unintended
implementation challenges for Tribes and barriers to effectively and efficiently using multiple
types of early childhood Federal funding to support comprehensive early learning services, child
development, and family well-being. This challenge is especially salient since almost all Tribal
Head Start grantees administer a Tribal CCDF program. This proposal would better align Head
Start and CCDF and allow Tribal Nations the necessary flexibility to determine how early
childhood program family income eligibility determinations can best support their communities.
Effective Dates
ACF proposes that the final rule become effective 60 days from the date of publication of
the final rule.
Severability
The provisions of this NPRM, once it becomes final, are intended to be severable, such
that, in the event a court were to invalidate any particular provision or deem it to be
unenforceable, the remaining provisions would continue to be valid.

II. Statutory Authority
This proposed regulation is being issued under the authority granted to the Secretary of
Health and Human Services by the CCDBG Act of 1990, as amended (42 U.S.C. 9857, et seq.),
and section 418 of the Social Security Act (42 U.S.C. 618).
III. Discussion of Proposed Changes
We propose to revise 45 CFR 98.81(b)(1) to allow all CCDF Tribal Lead Agencies the
flexibility to determine family eligibility for CCDF without regard to family income and assets.
The proposal amends § 98.81(b)(1)(ii) to allow Tribal Lead Agencies to disregard family income
requirements described in § 98.20(a)(2), while retaining the ability for Tribal Lead Agencies
with a Tribal median income below a level determined by the Secretary to deem any child in
their service area categorically eligible, regardless of family income, work, or training status.
Currently, the 40 percent of Tribal Lead Agencies with medium and large allocations, as defined
in CCDF regulations, are subject to the requirements at § 98.20(a)(2) that children must be in
families with incomes below 85 percent Grantee Median Income and with assets under $1
million in order to be eligible for CCDF. Tribes with small allocations are not subject to the
requirements at § 98.20(a)(2) and are therefore already have the flexibility to serve Indian
children (as defined by the Tribal Lead Agency) regardless of family income. Extending the
flexibility to serve any Indian Child in the service area regardless of family income to all Tribal
Lead Agencies better supports Tribal sovereignty and self-determination, and it gives Tribes the
ability to prioritize services in the way that best meets the needs of Tribal Nations and
communities. It will create better opportunities for Tribes to align CCDF programs with other
Tribal early childhood programs, including Tribal home visiting, Early Head Start, Head Start,
and tribally funded preschool.
This proposal does not make any other changes to current Tribal CCDF family eligibility
rules, including existing Tribal categorical eligibility flexibilities, which remain unchanged.

IV. Regulatory Process Matters
Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq., as amended) (PRA), all
Departments are required to submit to the Office of Management and Budget (OMB) for review
and approval any reporting or recordkeeping requirements inherent in a proposed or final
rule. As required by this Act, we will submit any proposed revised data collection requirements
to OMB for review and approval.
The proposed rule modifies the previously approved ACF-118-A CCDF Tribal Plan
information collection, but ACF has not yet initiated the OMB approval process to implement
these changes. ACF will publish a Federal Register notice soliciting public comment on
specific revisions to this information collection and the associated burden estimate and will make
available the proposed form and instructions for review.
CCDF title/code
ACF–118–A

Relevant section in OMB Control
the proposed rule

Number

§ 98.81

0970-0198

Expiration Date

Description

4/30/2025

The proposed

(CCDF Tribal Plan)

rule would

Part I and Part II

provide new
flexibilities
which Tribal
lead agencies
with medium
and large
allocations will
be required to
report on in the
CCDF plans.

The table below provides current approved annual burden hours and estimated annual
burden hours for these existing information collections that are modified by this proposed rule.

ANNUAL BURDEN ESTIMATES
Instrument Total number Total number of Current
of
responses per approved
respondents respondent
average
burden
hours per
response
ACF-118A 265
1
120
Part I (for
all tribes)
ACF–118– 106
1
24
A Part II
(for medium
and large
Tribes only)

Current annual Proposed
Proposed
burden hours estimated
estimated
average
annual
burden hours burden
per response hours
10,600

10,600

24

Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as amended by the Small
Business Regulatory Enforcement Fairness Act) requires Federal agencies to determine, to the
extent feasible, a rule’s impact on small entities, explore regulatory options for reducing any
significant impact on a substantial number of such entities, and explain their regulatory
approach. The term ‘‘small entities,’’ as defined in the RFA, comprises small businesses, notfor-profit organizations that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than 50,000. HHS considers a
rule to have a significant impact on a substantial number of small entities if it has at least a 3
percent impact on revenue on at least 5 percent of small entities. The Secretary proposes to
certify, under 5 U.S.C. 605(b), as enacted by the RFA (Pub. L. 96–354), that this rulemaking
would not result in a significant impact on a substantial number of small entities, as this
rulemaking primarily impacts tribes receiving Federal CCDF grants. Therefore, an initial
regulatory flexibility analysis is not required for this document.
Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4,
establishes requirements for Federal agencies to assess the effects of regulatory actions on State,
local, and Tribal governments, and the private sector. Under section 202 of the UMRA, the
Department generally must prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with “Federal mandates” that may result in expenditures by State, local
or Tribal governments, in the aggregate, or the private sector, of $100 million in 1995 dollars,
updated annually for inflation. In 2024 the threshold is approximately $183 million. This
proposed rule does not impose an unfunded mandate on State, local, or Tribal governments or
the private sector of more than $183 million per year. Therefore, ACF is not required to provide
a statement, including a cost-benefit analysis, of the impacts of the proposed changes.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consult with State and local
government officials if they develop regulatory policies with federalism
implications. Federalism is rooted in the belief that issues that are not national in scope or
significance are most appropriately addressed by the level of government close to the
people. This rulemaking would not have substantial direct impact on the States, on the
relationship between the Federal Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, this action does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
Assessment of Federal Regulations and Policies on Families
Assessment of Federal Regulations and Policies on Families section 654 of the Treasury
and General Government Appropriations Act of 2000 requires Federal agencies to determine
whether a policy or regulation may negatively affect family well-being. If the agency determines
a policy or regulation negatively affects family well-being, then the agency must prepare an

impact assessment addressing seven criteria specified in the law. HHS believes it is not
necessary to prepare a family policymaking assessment (see Pub. L. 105–277) because the action
it takes in this NPRM would not have any impact on the autonomy or integrity of the family as
an institution.
Regulatory Review
We have examined the impacts of the rule under Executive Order 12866, Executive
Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all
benefits, costs, and transfers of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other advantages; distributive impacts;
and equity). A regulatory impact analysis must be prepared for rules deemed significant under
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.
The Office of Information and Regulatory Affairs has determined that this proposed rule
is not a significant regulatory action under section 3(f)(1) of E.O. 12866, as amended by E.O.
14094, and does not require a full regulatory impact analysis. This proposed rule has, however,
been designated “a significant regulatory action” under section 3(f) of Executive Order 12866, as
amended by Executive Order 14094. In FY 2024, OCC estimates that up to $173 million is
allocated to Tribal Lead Agencies that could be impacted by the proposed change. Further, these
Tribal Lead Agencies have discretion on whether to adopt this flexibility based on their unique
needs. This proposed rule does not stipulate any new requirements.
VI. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination with Indian Tribal Governments,
requires agencies to consult with Indian tribes when regulations have substantial direct effects on

one or more Indian tribes, on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the Federal Government and Indian
tribes. The proposed changes included in this NPRM are in response to requests from Tribal
Nations for greater flexibility for CCDF family income eligibility that OCC has received through
formal consultation with Tribal Leaders and through the Request for Information (RFI) OCC
published in July 2023. Additional discussion of proposed changes in section 3 of the preamble
serves as the Tribal impact statement. We intend to notify Tribal lead agencies about the
opportunity to provide comment on the NPRM no later than the day of publication. Further,
shortly after publication of the NPRM, we will host consultation with Tribal Leaders and hold
briefing sessions with Tribal lead agencies and any other interested tribe on the contents of the
NPRM.
Jeff Hild, Principal Deputy Assistant Secretary for the Administration for Children and
Families, performing the delegable duties of the Assistant Secretary, approved this document on
May 22, 2024.
(Catalog of Federal Domestic Assistance Program Number 93.575, Child Care and
Development Block Grant; 93.596, Child Care Mandatory and Matching Funds)
List of Subjects in 45 CFR Part 98
Child care, Grant programs-social programs.
Dated: July 8, 2024.
Xavier Becerra,
Secretary,
Department of Health and Human Services.
For the reasons set forth in the preamble, we propose to amend 45 CFR part 98 as
follows:
PART 98—CHILD CARE AND DEVELOPMENT FUND
1. The authority for part 98 continues to read as follows:

Authority: 42 U.S.C. 618, 9858.
2. Amend § 98.81 by revising paragraph (b)(1)(ii) to read as follows.
§ 98.81 Application and Plan procedures.
*****
(b) * * *
(1) * * *
(ii) The basis for determining family eligibility may be determined by the Tribe
notwithstanding family income as described in § 98.20(a)(2).
*****

[FR Doc. 2024-15244 Filed: 7/12/2024 8:45 am; Publication Date: 7/16/2024]